Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17311

1 Monday, 10 October 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9:08 a.m.

5 JUDGE ORIE: Good morning to everyone. Mr. Registrar, would you

6 please call the case.

7 THE REGISTRAR: Good morning, Your Honours. This is case number

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

9 JUDGE ORIE: Thank you, Mr. Registrar. Today the opening of the

10 Defence case has been scheduled. As announced by Defence counsel, an

11 opening statement will be made. At the same time, the Chamber still owes

12 you a decision on the Zvornik contextual documents. That decision, and I

13 already can inform the parties, that for 98 or 99 per cent the exhibits

14 will be admitted. There is one or two items we just need perhaps a couple

15 of days. So it's just about one or two contextual documents that there

16 can be any doubt as to non-admission -- to admission or non-admission.

17 Mr. Stewart, is the Defence ready to make its delayed opening

18 statement under Rule 84?

19 MR. STEWART: I'm sorry, delayed opening statement?

20 JUDGE ORIE: Delayed; it's for you to choose whether you make your

21 statement at the beginning of the case, at the beginning of the Defence

22 case. To that extent I'm saying delayed opening statement. I had nothing

23 more in mind.

24 MR. STEWART: I just wanted to be sure Your Honour. The word has

25 cropped from time to time.

Page 17312

1 May I start, please, Your Honours with just a reference to a

2 cultural difference so there is no confusion. There is a cultural

3 difference between the Prosecution team and the Defence team in this

4 respect: That they -- many of them, and certainly the leading members of

5 the Prosecution team, have practised for many years in the United States.

6 The two counsel currently on the Defence team -- when I say "currently" I

7 don't wish that to sound like "current wife." We intend to be on the team

8 until the end of the case. But we have practised for many years at the

9 Bar of England and Wales, and Mr. Josse's predecessor also practised in a

10 common law system closer to the English system, in Australia. I say it

11 for this reason, Your Honour: That there is a habit which is very

12 different; that counsel from the United States will very often say they

13 think something, that their opinion is something, and so on, and it's

14 woven into their submissions in a way which, for us from a modest sized

15 island off to the West of here, sometimes find difficult to disentangle.

16 When we make submissions, Your Honour, we make submissions. We do

17 not express personal opinions. It doesn't mean we don't have any. We're

18 not intellectual units. We're not emotional units. Of course we do have

19 our private opinions and sometimes our private opinions will coincide with

20 the submissions. Sometimes they don't. Sometimes, of course, it may be

21 fairly apparent, but that's another matter. That's, in a sense, behind

22 the veil. Everything we say to the Court, apart if I say I think the

23 air-conditioning is a bit fierce this morning, that's a personal opinion,

24 that's not a submission, but leave aside that sort of thing. Everything

25 we say to the Court is a submission. It is a submission as counsel for

Page 17313

1 Mr. Krajisnik. It is the Defence case. It is Mr. Krajisnik's case. We

2 are only - and I stress only - we are only Mr. Krajisnik's advocates.

3 Mr. Krajisnik is on trial. We are Mr. Krajisnik when we stand up and make

4 these submissions to the Tribunal. I am Mr. Krajisnik for these purposes.

5 Mr. Josse is Mr. Krajisnik for these purposes. We do that -- the

6 difference between us and Mr. Krajisnik is we are professional advocates

7 and everything we do has to be consistent with our duties as members of

8 our Bar and our duties as members of the association and our duties to

9 this Tribunal in the way that we recognise duties to the Court on the

10 basis of long practice in England and Wales. So, Your Honour, that

11 preface, we submit, is important to understand the way in which we frame

12 our submissions throughout this case and the way in which we present our

13 case.

14 Your Honour, there is - and it is absolutely unreal to suggest

15 anything different - there is in relation to many cases before this

16 Tribunal, and this one is no exception, a very high degree of prejudgement

17 in the world outside this Court. When one puts forward names such as

18 Karadzic - and I mean no disrespect to anybody today if I don't say

19 Misters and Doctors and so on, it's just quicker to do it that way. When

20 we put forward names of Karadzic, Mladic, Krajisnik we have here in Court,

21 in the world outside many, many people have the clearest idea that these

22 are just guilty men who just have to be got here in two of the cases that

23 I have mentioned, and when they are got here, there will be a trial and

24 then they will be convicted. Now, in a different part of the world,

25 Saddam Hussein is on trial. It would be again unreal to suppose that in

Page 17314

1 the world outside there is not a vast number of people who suppose that

2 whatever trial Saddam Hussein obtains, the chances of his not being

3 convicted at the end of the trial are simply zero. And one can imagine --

4 I obviously hold no brief one way or the other in relation to that matter,

5 but one can imagine the political repercussions of an acquittal of a man

6 whose actions supposedly are at the root of massive military action in

7 that part of the world.

8 I say this, Your Honours, because a very high degree of judicial

9 courage is needed in relation to this sort of a case. This is one area

10 where a bench of professional Judges is in some ways under greater

11 pressure than a jury. A jury can largely retire after the case is over

12 into relative obscurity and anonymity. It is a good thing if they do, on

13 the whole. Any disagreements or objections to their verdicts may come, of

14 course, from friends, relatives, acquaintances, and if I'm allowed to be a

15 little bit English here, the chap you meet in the pub for a short time,

16 and probably for a short time a jury member in a high profile case where a

17 defendant is acquitted in circumstances where the media momentum has

18 suggested very clearly to the populace at large that this is plainly a

19 guilty man, terrible things have been done, it's supposed. Well, the

20 police arrested him, no smoke without fire; all those matters with which

21 anybody involved in the legal system is extremely familiar. Short-lived.

22 It will have little or no effect, usually, on anybody's personal or

23 professional reputation. It holds no real fears for an ordinary member of

24 the public as a member of a jury. But the Judges of this Tribunal, with

25 Your Honours' vast experience in the law and great skills that you bring

Page 17315

1 to bear on this case, are in a different position because you inevitably

2 can expect, must expect, and do expect, rightly, that your decisions, and

3 your judicial reputations, of course, because just as barristers are only

4 as good as their last case, there's a sense in which Judges' reputations

5 are only as good as their last judgement, can expect your decisions and

6 reputations to be under the closest scrutiny. And informed scrutiny.

7 They will be subject to uninformed scrutiny, that just goes with the

8 territory. Everybody involved in this matter. It's right. It's part of

9 the public nature of a trial. It's not a disparagement. We don't expect

10 the world to -- every person out there to live and breathe cases of this

11 nature. It would be rather unfortunate for human life if they did. But

12 an interest is important in the world at large, and scrutiny by what one

13 might loosely call the informed public, and the informed international

14 public, is something to which everything that happens in this Tribunal

15 will be subjected. So -- and that will apply particularly forcefully if,

16 as the Defence say, it should be and ultimately will be, if your verdict

17 turns out to be something quite different from what the world at large and

18 the legal and political community have been expecting. And we do put it

19 in those terms because we don't wish this case to proceed in some utterly

20 unreal vacuum. I will come to the question of how this case must proceed

21 within the confines of a public court, within the confines of the evidence

22 and so on. I'll come to that. But it is unreal to suppose that there

23 aren't enormous pressures. And Your Honours, we're not submitting that

24 Judges -- it would be an insolent submission to suggest that Judges of

25 this Tribunal are not equipped and ready to withstand such pressures, but

Page 17316

1 they are there. And this case, a case of this nature, and specifically

2 Mr. Krajisnik's case, are at the top end of the scale of cases which

3 require that degree of judicial courage to reach a decision which it is

4 plain would not be the expected, and in many quarters would not be the

5 desired result. Acquittal of Mr. Krajisnik would cause consternation. We

6 know that, and Your Honours know that. But if it is the right result in

7 the long term, not so much the consternation but the deep undermining of a

8 judicial system if it is the wrong result, is -- far outweighs any such

9 consternation.

10 The -- it's a search for the truth. It is a search for the truth

11 in an inevitably qualified way because, for a start, it's not divine

12 justice. It's human justice. Divine justice, no personal opinions are

13 going to be expressed in that area, but if divine justice has to be faced,

14 that will be some other day, and that is not our direct concern.

15 The search for the truth in this human system of justice is a

16 search conducted in different ways by different systems, and Your Honours,

17 along with your fellow Judges in this Tribunal, are constantly searching,

18 we hope with the helpful assistance of counsel in this case as in other

19 cases, for a reconciliation of the different cultures and the different

20 systems, and many times in the course of this case Your Honours have

21 correctly referred to the hybrid nature of the system under which this

22 Tribunal operates. And, Your Honour, we unreservedly accept that it is

23 that. We have had, and no doubt during the course of the rest of this

24 case we will continue to have, submissions and debates, debates in a

25 proper courtroom way about the balance and about what features should go

Page 17317

1 into a hybrid system from different systems, starting from the position

2 the Defence will always submit that the essential nature of these trials,

3 as enshrined in the Statute and the Rules of Procedure, is adversarial.

4 That, we submit, is plain whatever adjustments and qualifications are

5 made.

6 But whatever the balance of different systems, an essential

7 feature of all criminal trials under any recognisably acceptable system is

8 -- is this: That it is an individual on trial. And that is especially,

9 especially a signal feature of the new International Criminal Court, with

10 all the immunities swept away as a corollary effect. Precisely because it

11 is individuals that are put on trial, individuals should not be able to

12 escape liability, because if there is a human being in the dock, to use

13 that phrase, who is on trial, then that human being, he or she, is not

14 allowed to escape liability by saying, "Well, I was really my country. I

15 was really my government. I was really only that." It is individual

16 responsibility. But the other and most important and long established

17 fundamental feature of any acceptable criminal system is that, as we know,

18 there is not collective guilt. There must not be collective guilt. There

19 must not be guilt by association. There must not be -- and it's not a

20 technical phrase but I suggest that it's clear what we are saying; there

21 mustn't be guilt by substitution. It must be that particular -- if there

22 is to be a conviction ultimately, contrary to the Defence's submissions,

23 it must be on the basis that that individual, and in this case it's

24 Mr. Krajisnik, is himself criminally responsible for acts which are, of

25 course, then by definition must be crimes. And in the very broadest

Page 17318

1 terms, it means there must be justice, not vengeance.

2 Again, we know, and there can't be any possible dispute, the idea

3 that all is at peace -- all is at peace in the very clear, simple way in

4 the former Yugoslavia, but the idea that all is at peace and all is

5 sweetness and light and harmony and there is forgiveness, it is -- of

6 course it isn't forgotten, we know that. Things don't get forgotten and

7 they certainly are no more easily forgotten in the former Yugoslavia than

8 in any other part of the world. That has become apparent in the course of

9 this case. There are, not surprisingly, tremendously strong feelings.

10 Anybody who, as many people have, lost family members in terrible

11 circumstances, are going to harbour those feelings and they're going to

12 harbour them for the rest of their lives. There is burning resentment

13 among Serbs at many of the terrible things that were done by Muslims and

14 Croats. There is burning resentment - resentment is too mild a word in

15 the Muslim Community - at terrible things. And terrible things were done

16 to the Muslims at terrible things were done to Muslims at the hands of

17 Serb. It's no part of Mr. Krajisnik's case that that didn't happen. It

18 would be unreal. Mr. Krajisnik does not wish to put forward any such

19 absurd contention.

20 But the state in a domestic prosecution, the international

21 community, the combination of states which is behind this Tribunal and

22 these prosecutions, and the Prosecution because the Prosecution is

23 presenting the case against Mr. Krajisnik on their behalf, in effect, with

24 the Trial Chamber having - and Appeals Chamber, if it should come to it -

25 having the ultimate responsibility of the decision. But the Prosecution

Page 17319

1 always have the burden, which the Trial Chamber, of course, and we don't

2 suggest they would ever do anything different, loyally accept and apply

3 the burden that to convict a human being of any crime - it applies even to

4 trivial crimes, but we certainly don't have trivial crimes on the

5 indictment in this case - to hold Mr. Krajisnik in this case individually

6 responsible for these terrible events - and they were - to take away his

7 freedom - now his freedom has been taken away the last few years anyway,

8 but I'm talking about taking away his freedom at the end of this trial if

9 he is convicted - requires proof by evidence.

10 And the truth, tying in with the phrase the search for the truth,

11 the truth, and it's the only truth which can be reached and found in this

12 case, is the truth of what is established by the evidence. For the

13 purposes of this trial and the purposes of the verdict against

14 Mr. Krajisnik, that is the only truth. If there is any doubt, if there is

15 any uncertainty, if there are any gaps, they must not be resolved or

16 filled by speculation or guesswork. They can only be filled, if there are

17 gaps, the case against Mr. Krajisnik can only be made and in the end he

18 can only be convicted on evidence in this courtroom, within the ambit of

19 admissible evidence. Of course it includes procedurally all the 92 bis

20 evidence. Every bit of evidence is evidence, of course, but

21 tautologically, everything which is not evidence is absolutely not

22 evidence, apart from the obvious facts in the world of which judicial

23 notice can be taken. The sun comes up in the east. We know that. Of

24 course that's all part of evidence in a case, without getting into some

25 academic analysis of it. That is well understood. But it's also well

Page 17320

1 understood that beyond evidence in the case is, for the purposes of

2 Mr. Krajisnik's guilt or innocence, a void. It just does not exist.

3 Anything else of which one can't simply take judicial notice as to context

4 of the world in which the evidence is presented, everything else is a

5 void.

6 There are different ways of expressing the burden of proof.

7 Traditional English expression adopted and followed throughout the common

8 law world has been for decades, centuries probably, Mr. Josse probably

9 knows better than I do, he'll fill me in the on the history, but for

10 centuries, I have some confidence in suggesting, that was beyond

11 reasonable doubt. It's -- it's fallen into disuse a bit. The modern

12 phrase adopted by criminal courts in England is for the Judge to tell the

13 jury, because serious cases still are dealt with by juries, is for the

14 Judge to tell the jury that you must be satisfied so you are sure that the

15 defendant is guilty. The modern phrase is thought, and we're not

16 quarreling with that, and we accept it anyway within our system, is

17 thought to be clearer and more understandable to a jury, but in substance

18 they're the same. Nothing in the Statute, Rules, or jurisprudence of this

19 Tribunal even hints at any different test or standard, and we approach the

20 case on the footing that this Trial Chamber would never be seeking to

21 apply anything, however it was precisely phrased in words, never be

22 seeking to apply any lower test or standard in Mr. Krajisnik's case.

23 So the Defence are content, of course, with the test that before

24 you can convict Mr. Krajisnik on any count, and there are a number of

25 counts and each one, although they may overlap, each one has to be

Page 17321

1 carefully and separately considered, and each of those counts you must be

2 satisfied so you are sure that he is guilty. So any doubt which makes you

3 feel unsure in relation to any count means that you must, and it's not --

4 I say must not in the sense it's our function to give orders to the Trial

5 Chamber. Again, we would not be so insolent or presumptuous, but in terms

6 of the duties that Your Honours have, you must then acquit Mr. Krajisnik.

7 So far we only have the Prosecution evidence, of course. We are

8 at this watershed now where we're coming to the Defence case. Your

9 Honours have so far issued a decision that there is a case to answer,

10 reached by clear indication, or expressed by clear indication by the

11 rejection of the Defence's 98 bis application, which for those that don't

12 pore over the Rules of this Tribunal, was our submission that on the

13 Prosecution case evidence, there was no case to answer, that there was not

14 sufficient evidence, without the Defence having to call any evidence, not

15 sufficient evidence on which safely to convict Mr. Krajisnik.

16 Now, Your Honours have rejected that, and I am not going to go

17 into the -- all the appeal issues and the procedural matters of where we

18 are, the tangle there in relation to appeal. Your Honours' decision is

19 effectively this: That on all the evidence presented by the Prosecution,

20 this Court has at this point decided that it would be possible that when

21 that evidence is scrutinised, Mr. Krajisnik could be found guilty. It's

22 not a finding that if Defence didn't call any evidence Mr. Krajisnik

23 would, therefore, be convicted. The evidence would still have to be

24 scrutinised if - which is not going to happen - if we didn't call a jot or

25 an iota of Defence evidence. So the decision as it stands at the moment

Page 17322

1 is not that he would be convicted and not that the evidence so far shows

2 beyond reasonable doubt that he's guilty of anything. The decisions on

3 those questions lie in the future.

4 It's important for this reason, because it ties in with what we've

5 already said this morning on the fundamental burden of proof. The Defence

6 doesn't have to disprove the Prosecution case. In practice, as a factual

7 matter, as a matter of presentation, the Defence case will include

8 elements which will disprove aspects of the Prosecution case. The fact

9 that you don't have to doesn't mean you don't do that where the Defence

10 has evidence which does, in some cases - and we do submit this - in some

11 cases will demolish the Prosecution evidence and in other cases will cast

12 serious doubt on it, then we will present that evidence. But the fact

13 that the Defence goes factually and evidentially beyond the burden doesn't

14 change the burden. The Defence, after all, can, consistent with the

15 burden, call no evidence at all. That's not what we're going to do, and

16 I'll come to it. Your Honours know already that a very important feature

17 of the Defence case is that Mr. Krajisnik himself is going to give

18 evidence, and I will come to that. So the case remains open.

19 There has been, whatever privately occurs in Chambers and whatever

20 work is done on papers, there has been and cannot have been so far -- I

21 get my grammar mixed up. There has been no detailed consideration of the

22 case against Mr. Krajisnik on its merits, and there can't be yet because

23 the Defence has always made it clear that it would be presenting evidence.

24 The case is just a long way from over. The case remains open, and

25 Mr. Krajisnik still, as he has done throughout and for the last five years

Page 17323












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Page 17324

1 that he's been confined to the United Nations -- five and a half years

2 now, to the United Nations Detention Unit in the Hague, Mr. Krajisnik

3 still stands in the metaphorical sense, he's sitting behind me here,

4 stands innocent until eventually it's decided after the judgement of this

5 Trial Chamber, any Appeals Chamber that looks at the matter, that he's

6 guilty on any of the counts, and unless and until such a finding of guilt

7 has been reached following a fair trial in which he has had sufficient

8 opportunity of meeting the Prosecution case, including presentation of his

9 own Defence by evidence called for him.

10 This case includes one major feature absent from many trials on

11 serious criminal charges, and that applies to trials in domestic courts as

12 well as international tribunals. Right from the outset of this trial and

13 -- well, here I'm just expressing my personal recollection, Your Honours;

14 my recollection is it was very early in the trial. Whether it was days or

15 whether it was a tiny number of weeks, but very early indeed in the trial

16 it was made clear by Mr. Krajisnik's lawyers, that was -- that's always

17 included me since before the trial began, and on occasions when the

18 opportunity has been given to him, by Mr. Krajisnik himself, that he would

19 be giving evidence himself and would, therefore, and will therefore be

20 subjecting himself to cross-examination on the huge range of issues put

21 forward by the Prosecution as relevant to the case against Mr. Krajisnik.

22 And, Your Honours, I again expressing just personal recollection here, I

23 believe that at no point during this trial has Mr. Krajisnik, certainly

24 not his lawyers on his behalf, has Mr. Krajisnik ever resiled from that

25 position or ever expressed any contingent or provisional nature of his

Page 17325

1 decision to give evidence. Clearly contingent if the Prosecution case had

2 been dismissed on the 98 bis application, then of course he would have,

3 but apart from that obvious point, Mr. Krajisnik's firm commitment has

4 never been qualified in any way at all.

5 Mr. Krajisnik remains firmly and unequivocally committed to doing

6 what he has always wanted to do in this case and said he would do; to tell

7 the true facts as he sees them - he can only present them as he sees them,

8 like any human being, as he honestly sees them - and to explain as fully

9 as possible, first in this instance by his own evidence but also more

10 broadly by the evidence of other Defence witnesses, the truth as to what

11 has happened. And Mr. Krajisnik has consistently expressed, and through

12 me today as his advocate, expresses again the strong wish that the facts

13 should be as thoroughly investigated as possible, and in particular that

14 he, Mr. Momcilo Krajisnik, has the full opportunity of giving his personal

15 account of the enormously wide-ranging events brought up by the

16 Prosecution.

17 At present, despite the considerable time that this trial has

18 taken, and correctly taken because the events are so wide-ranging, at

19 present the Trial Chamber of course has only a partial and incomplete

20 picture of the relevant events. It will always be incomplete for the

21 reasons I've recognised. This is not -- this is human justice. We can't

22 recreate -- we're not out to recreate them, of course, but we can't simply

23 draw the complete picture of what happened in former Yugoslavia in the

24 early 1990s. That's not possible. A human court can only do its best,

25 but the best can go a long way, and again, if the best does not produce a

Page 17326

1 clear, undoubted compendium of evidence which shows unequivocally that the

2 defendant is guilty, then he is not guilty and he remains innocent.

3 But Mr. Krajisnik wishes and intends to present a full Defence.

4 It's not his burden, but he will present a full Defence which will fill

5 out the picture. It will explain misunderstandings, and it will remove

6 misconceptions which could easily be gained from the Prosecution case.

7 And it will lead to the conclusion not just that there is sufficient

8 doubt, which is enough, but that conviction of Mr. Krajisnik would be a

9 serious miscarriage of justice because it would be the conviction of an

10 innocent man for the crimes of others.

11 This isn't a case in which there have been no crimes. That's

12 obvious. The Defence hasn't sought, except it sought to test, of course,

13 and that's legitimate, from time to time, but in many instances -

14 probably, on examination of the record and the transcript, most instances

15 - the Defence has not sought to challenge the veracity of the evidence

16 which has described appalling crimes committed against individuals in

17 different parts of Bosnia and Herzegovina, especially in 1992. That was

18 an annus horribilis, there is no question about it. We heard -- I have to

19 be careful because, without double-checking, I can't be 100 per cent sure

20 whether the particular witness is a protected witness or not, but we heard

21 a -- within the last two or three months of the Prosecution case, a woman

22 described to the Trial Chamber how her children were snatched from her,

23 never seen again, and they're dead. That's clear. Her husband is

24 certainly dead, and his body, the remains of his body have been found.

25 The Defence doesn't suggest that those things didn't happen. We

Page 17327

1 don't suggest that that lady bravely -- that she didn't bravely come to

2 tell the truth in relation to those matters. Of course she did. And

3 nobody could suggest that her recollection of those events, except in the

4 most irrelevant detail, could possibly be mistaken. People do invent

5 things, but that lady was not inventing those things. That's not the

6 Defence case. Those were terrible events and it's not the Defence case

7 that they weren't and it didn't happen.

8 The Defence case does include - but, Your Honours, we hope that we

9 have and will continue to keep it properly within the confines of where it

10 has a relevant bearing on Mr. Krajisnik's case - the Defence case does

11 include that crimes were committed on all sides. Terrible crimes were

12 committed on all sides. Proportions don't help the individuals. If there

13 were three times as many of one nationality subjected to appalling

14 brutality as another nationality, it's dismal arithmetic, and it's not

15 arithmetic that the Defence wishes to explore in an unproductive and

16 depressing way. Those things happened.

17 Mr. Krajisnik doesn't defend himself and he won't defend himself

18 and he refuses to defend himself by an irresponsible denial that terrible

19 events and terrible crimes were committed in many parts of Bosnia,

20 especially in the last year for which Mr. Krajisnik is indicted. Awful

21 things have happened since as well, but Mr. Krajisnik is charged with the

22 responsibility up to very near the end of 1992, and 1992 particularly was

23 a year in which -- most of the terrible things of which Your Honours have

24 heard evidence in this case happened in 1992, whatever their genesis.

25 This was an appallingly brutal war, if there ever can be a war

Page 17328

1 without brutality. There were killings, rapes, tortures, brutal

2 ill-treatment on an appalling scale. There was devastating destruction of

3 lives and property. There was ravaging of homes and livelihoods.

4 Mothers, fathers, sons, daughters, brothers, sisters were lost by tens or

5 hundreds of thousands. Nobody in their right mind denies that. So

6 Mr. Krajisnik doesn't deny it. No nationality or group went unharmed and

7 unscathed, and every nationality and every ethnic group both suffered and

8 harboured and still harbours among their numbers war criminals.

9 There was brutality on all sides. There is no excuse for -- there

10 isn't an excuse for any of those terrible acts of brutality. The -- in

11 wartime, there are, of course, the legitimate -- once a war has started,

12 there are legitimate actions of self-defence or legitimate aggression in

13 the course of the war once it's started. That's not what this case is

14 about. After all, people don't just get put on trial for killing the

15 enemy in the course of a war, tragic though that is in human terms.

16 Only the most -- well, only the fortunate families in that region

17 of the world escaped unscathed and unmarked by tragic loss. And as it

18 happens, Mr. Krajisnik's own family was not among the fortunate. In the

19 midst of all this turmoil, it's not -- I'm not putting it forward, it's

20 not the central feature of the case, but it is a central feature of

21 Mr. Krajisnik's life and Mr. Krajisnik is the man on trial. In the midst

22 of all the turmoil and pain of that brutal year, in August 1992,

23 Mr. Krajisnik lost his own wife and the mother of his three children. It

24 was and is a large event in the life of Mr. Krajisnik and his own

25 children. But notwithstanding that tragedy within Mr. Krajisnik's own

Page 17329

1 family, if he were truly responsible in any way for these terrible crimes,

2 then he would have to answer for them, in this world, wherever else, and

3 before this Court.

4 I say no more about that personal tragic event. Mr. Krajisnik

5 will give his own account of the war from where he was and from what he

6 knows, from what he saw, what he knew about, and the events which led up

7 to it. But Mr. Krajisnik - and Your Honours will hear this and it is part

8 of the picture - Mr. Krajisnik had a human family life as well in parallel

9 to all his work and his political activities. You will, therefore, have

10 the opportunity of judging the man. You're judging ultimately the

11 responsibility of the man or not responsibility for the crimes with which

12 he's charged, but you will have the opportunity of judging the man as well

13 as part of Your Honours' heavy task in reaching your conclusions whether

14 he is to be held criminally responsible in this Tribunal.

15 Now, there are some questions in relation to Mr. Krajisnik, the

16 man, which do have a significant bearing, must be taken into account in

17 assessing his responsibility for any crimes. Are there inflammatory

18 statements by Mr. Krajisnik, as - and we don't reject this label and

19 Mr. Krajisnik doesn't reject the label of his being in some sense one of

20 the Bosnian Serb leaders. It requires more careful analysis to see where

21 it leads, but that as a simple label is not rejected and couldn't be

22 rejected by the Defence. Are there inflammatory statements? The

23 Prosecution point to and have pointed to a small number of passages of

24 Mr. Krajisnik's public utterances that they would suggest fall into that

25 category. I'm not getting into that this morning because -- not because

Page 17330

1 it's -- they are to be avoided or evaded or not faced by the Defence, but

2 the time to look at those in detail is going to be particularly when

3 Mr. Krajisnik gives evidence, because that's his opportunity to explain

4 whatever he was saying on whatever occasion and to be cross-examined on

5 that. But are there -- are there racist remarks by Mr. Krajisnik? Are

6 there offensive, abusive statements about members of other nationalities?

7 Well, there aren't. There are plenty of those statements around on all

8 sides. There are plenty such statements on record from that period on all

9 sides, but Your Honours have seen the way in which Mr. Krajisnik conducted

10 himself.

11 Are there -- are there orders by Mr. Krajisnik to commit crimes or

12 to do acts which were in fact crimes? If there aren't, that doesn't

13 itself mean necessarily that he can't be convicted. We're not putting

14 forward an unreal submission, but it's an important point. The Defence

15 position on that is clear: No, there aren't.

16 Are there directions, orders, instructions from Mr. Krajisnik to

17 the army, to the police, to municipal leaders? Again, the Defence

18 submission, based on the evidence is no, there aren't.

19 So what is the case against Mr. Krajisnik? Not the case to be

20 analysed. This is an opening statement. It's the -- nothing I say this

21 morning will in the end have any real importance, weight, or significance

22 if it turns out to have no connection with the evidence in this case,

23 because we go back to the evidence. But as a -- we see the purpose of the

24 opening statement as to just, at this important juncture in the case, just

25 help if it does help in a small way, just help to achieve some -- some

Page 17331

1 contribution to the direction, some clarity as to where this case is now

2 supposed to go, and that's not intended in any presumptuous way in a Court

3 where Your Honours have great experience, knowing where cases go anyway,

4 but this particular case, what are the Prosecution essentially trying to

5 do?

6 It's all about links, isn't it? When there has been legitimate,

7 not informal but legitimate exploration of this case and where it is going

8 in procedural meetings and 65 ter conferences or in Court, we know that

9 when the -- there's a crime base, and I've already said probably pretty

10 much as much as the Defence would wish to say this morning about what

11 we've called the crime base. These individual events, the violent events

12 that took place throughout Bosnia, particularly from the end of March,

13 beginning of April, then through the ensuing months of 1992. Of course

14 there was violence and there were pockets of violence and there was arming

15 and there were incidents before war broke out, but that's when it really

16 started.

17 Mr. Krajisnik can't and mustn't be convicted unless there is the

18 link or there are the links that make him individually criminally

19 responsible for those events.

20 Now, he was a Bosnian Serb leader. Yes, he was. That's not --

21 that's not the link. That doesn't -- that's not the end of case. It

22 would be a bit simple. All these events happen, Mr. Krajisnik is one of

23 the Bosnian Serb leaders, therefore he's guilty. Nobody -- the

24 Prosecution don't suggest - or we hope they don't and if they do it's just

25 not good enough - don't suggest that that can be the basis of a conviction

Page 17332

1 of Mr. Krajisnik.

2 What were his leadership positions? Well, yes, he was throughout

3 the whole of the relevant period, he was the president. In some other

4 terminology from some other countries, that might be called the speaker.

5 No two systems are exactly the same; he was the president, he was the

6 speaker of the Serb Assembly. He had been, we know, an important figure

7 in Bosnia and Herzegovina before the split, because he had been the same

8 thing, the president and the speaker of the Bosnia and Herzegovina

9 Assembly, and he has already received, in the course of the Prosecution

10 evidence, considerable plaudits for his work as the president of that

11 Assembly. But, Your Honours, all the plaudits in the world for the

12 efficiency and the effective handling and diplomatic handling of that

13 particular task and that particular job, that doesn't mean somebody is

14 guilty or innocent of crimes. We don't submit that.

15 But as the speaker of the Bosnian Serb Assembly, we're not going

16 to go into elaborate submissions this morning, but just going to pose the

17 question: Does that normally -- I leave aside normally. Could that in

18 this case constitute the link to make Mr. Krajisnik criminally liable for

19 the actions and events of which evidence has been given?

20 I'm just going to give you the short answer this morning, Your

21 Honour. No. It's just not enough. That will be -- have to be elaborated

22 in due course in a full final brief, if we ever get time to write one.

23 But it raises the question, well, what beyond that? Because

24 that's not enough. And we have seen from the Prosecution evidence that

25 implicitly the Prosecution themselves or the Prosecution case recognises

Page 17333

1 it can't be enough, because they've been trying throughout the Prosecution

2 case to establish other links and other routes, other channels by which

3 Mr. Krajisnik can be held responsible.

4 And this is not the point in the case to argue the case in any

5 full sense. This is the point in the case to raise the questions, to give

6 the pointers, to indicate where the Defence say that there are real

7 weaknesses and real gaps and real flaws in the Prosecution case.

8 Expanded Presidency. I'm going to keep all these items short, but

9 expanded Presidency. There are two aspects to that. One is the technical

10 legal aspect, the de jure aspect. The other is the actual factual

11 position, the de facto aspect.

12 Your Honours already know from the examination and exploration of

13 this aspect of the case during the Prosecution case that there is in the

14 terms of the legal and constitutional system established as the Republika

15 Srpska or by the Republika Srpska, if you like. That's the name that

16 superseded at some point in early 1992 the Serb Republic, then Republika

17 Srpska, the animal or the entity which emerged after the split in the

18 Bosnia-Herzegovina Assembly in mid-October 1991, and then by January,

19 certainly by the beginning of the war, had been established as a serious

20 entity with its own constitutional legal documents, its own structure.

21 There is and always was a flaw in the -- within Republika Srpska

22 terms in the establishment of the expanded Presidency because the specific

23 condition required to trigger off the expanded Presidency never in fact

24 occurred. A state of war. There was a declaration of an imminent state

25 of war, but strictly speaking, it never existed within those terms.

Page 17334

1 However, that's not a -- that's not a trivial point, because so

2 far as the Prosecution seek to pin liability on Mr. Krajisnik based on the

3 technical legal status of the expanded Presidency and his membership of

4 it, that just fails in terms. It's maybe a technical point in a sense,

5 but it's a technical point, to me it's a technical point, if you like.

6 It's a legal answer to a legal point, because the Defence doesn't suggest

7 that you don't move on, then, straight away to the question of whether

8 there was a body calling itself and perhaps believing it was the expanded

9 Presidency, perhaps with an unrecognised flaw. That's something that just

10 has to be considered on the evidence, an unrecognised flaw in its own

11 constitution and its own legality within the Republika Srpska

12 constitutional and legal system.

13 When one looks at the expanded Presidency, yes, there are -- there

14 are minutes, there are documents, there are agendas of some sort

15 indicating a body, the expanded Presidency, but the evidence of

16 Mr. Krajisnik's participation in that expanded Presidency and the evidence

17 of what actual authority, what actual influence that body had over the

18 events in question, and the evidence of any serious linkage between that

19 body and Mr. Krajisnik personally and what happened is flimsy. It will

20 require to be most carefully considered, and our submission at this point

21 is just that it is flimsy.

22 Another route through which the Prosecution seek to establish the

23 link between Mr. Krajisnik himself and the crimes is through Mr. Karadzic.

24 Now, Your Honours, we hold in a perfectly proper way the brief for

25 Mr. Krajisnik. Mr. Krajisnik is our concern. Mr. Krajisnik is our

Page 17335

1 client. Mr. Krajisnik's Defence is what we present. And we don't present

2 any other Defence for anybody else. Neither do we present any prosecution

3 of anybody else. We are not Dr. Karadzic's lawyers. We do not make any

4 submissions in relation to Dr. Karadzic except, when the evidence is

5 complete, so far as they have a genuine bearing on our client,

6 Mr. Krajisnik's position and the case against him. If - Mrs. Del Ponte

7 would prefer it to be described as when - Dr. Karadzic is apprehended, he

8 will be put on trial and somebody else will have the responsibility of

9 prosecuting him, and somebody else will have the responsibility of

10 defending him, but it isn't us.

11 The -- the Prosecution in this case against Mr. Krajisnik use as

12 one of the routes, one of their attempts to construct a chain from

13 Mr. Krajisnik to these events, they want to go through Dr. Karadzic. Now,

14 of course they've got to establish sufficiently -- the Prosecution have

15 got to establish sufficiently a direct link from Dr. Karadzic to those

16 events, because otherwise a link between Mr. Krajisnik and Dr. Karadzic

17 doesn't help them anyway. But let's leave that aside, certainly for

18 today, leave aside the link of Dr. Karadzic to events, just entirely on

19 one side.

20 Mr. Krajisnik, Dr. Karadzic, they were put on trial together a few

21 years ago. One might be forgiven for not understanding for quite a lot of

22 Prosecution case that they were completely acquitted, and ultimately we

23 had the Judge in that case, as it happens, in Court giving evidence and

24 making it absolutely clear first that he really just didn't think there

25 was anything like a case against them; and secondly, expressing the view,

Page 17336












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 17337

1 which he's entitled to express, that there was some political motivation

2 for the prosecution in the first place. That sort of evidence just needs

3 to be thrown aside.

4 Mr. Krajisnik and Dr. Karadzic knew each other. That's neither a

5 crime nor a sin nor a surprise. Mr. Krajisnik will explain and, Your

6 Honours, we undertake to keep it as best we can within the proper confines

7 of relevance, Mr. Krajisnik will explain, when he gives evidence, how he

8 first came to know Dr. Karadzic, what their relationship was over the

9 years they've known each other. After all, the Prosecution wish to make

10 the relations between Mr. Krajisnik and Dr. Karadzic an important feature

11 of their case. So it's going to have to be an element of the evidence

12 that Mr. Krajisnik himself gives to Your Honours.

13 Mr. Krajisnik attended -- participated, didn't just attend.

14 Mr. Krajisnik participated in a significant number of significant

15 international negotiations in attempts, and laudable attempts by all

16 concerned, to try to resolve the many and complicated conflicts in former

17 Yugoslavia by as peaceful means as could be managed. That's a leadership

18 role in some clear sense. Mr. Krajisnik, of course, participated in very

19 important negotiations a considerable time after the indictment period,

20 when he was at Dayton, but he was involved in the earlier negotiations

21 which did take place in 1991, 1992, during the indictment period.

22 The Bosnian Serbs, no less than anybody else, didn't send the tea

23 boy to the negotiations, they sent their leaders, or, if you like, the

24 people they sent to negotiations of that importance thereby become

25 leaders. They become important because they send them.

Page 17338

1 Dr. Koljevic was there frequently. Dr. Karadzic was nearly always

2 there. Mr. Krajisnik was nearly always - very often - there at those

3 negotiations. It's a not incidental, it's a slightly subsidiary point,

4 that Dr. Karadzic and Dr. Koljevic and both, and this is clear on the

5 evidence, both had a very good command of English. And in Dr. Koljevic's

6 case, he could even go out in the corridors and discuss Shakespeare.

7 Mr. Krajisnik had, and for practical purposes has, no useful English, so

8 his participation in all these - with interpreters, of course - but his

9 participation in all these discussions has to be judged in that light.

10 I won't dwell on it, Your Honour. Mr. Krajisnik can describe in

11 more detail how it went, but English speaking participants, and

12 particularly when we're looking at the talks involving Mr. Cyrus Vance and

13 Mr. Okun who came here, English speakers on one side of the table, English

14 speakers, not native English speakers on the other side of the table or

15 somewhere else on the table. It's Mr. Krajisnik's participation -- Your

16 Honours, we aren't submitting -- we won't be submitting that Krajisnik

17 wasn't a serious participant. We're not suggesting he was just some fly

18 on the wall or some non-participant through the language issue. We're not

19 going that far, we're just putting it in context.

20 But when we consider -- and it's neither my task nor would it be

21 useful today for me to start exploring the ins and outs of the evidence of

22 the individual witness who have given evidence, but I've mentioned one

23 earlier, not by name, a victim of terrible crimes, this is the second one

24 I'm mentioning this morning -- well, I've mentioned not by name, it was

25 Mr. Trbojevic. There's no secret about his identity either; the judge who

Page 17339

1 dealt with the prosecution of Mr. Krajisnik and Dr. Karadzic.

2 I think this is now the third part while I'm mentioning Mr. Okun.

3 Mr. Okun as Mr. Vance's deputy attended a number of meetings at which Mr.

4 Krajisnik was present. He made extensive notes. He came and gave

5 evidence before this Tribunal. Your Honour, Mr. Okun is a highly

6 respected man with a distinguished career. What is important with a

7 witness such as Mr. Okun is just to be careful about the limits of what he

8 can say and what he is saying. He could only give -- in the end, he can

9 give an account of any of the actual substance of the negotiations, but

10 that wasn't really the issue. Your Honours are not here, and the

11 Prosecution case doesn't really involve going into the ins and outs of

12 those particular negotiations. Some of the other ones, the Cutileiro ones

13 are another matter, but the detailed content and how the discussion

14 progressed from one meeting to the next, from one hour to the next, don't

15 really arise. The thrust of Mr. Okun's evidence was Mr. Krajisnik's

16 influence over Dr. Karadzic. Mr. Krajisnik was there. When Mr. Krajisnik

17 wasn't there, he was there in spirit.

18 You can be somewhere in spirit, of course. It's just that it

19 requires the utmost care if somebody's presence in spirit is presented as

20 a significant ingredient in a criminal prosecution for the charges with

21 which Mr. Krajisnik faces. That's where great care has to be taken.

22 So Dr. Karadzic consulted Mr. Krajisnik. Dr. Karadzic took notice

23 of what Mr. Krajisnik said. Dr. Karadzic listened to Mr. Krajisnik. It

24 would be a bit odd if he didn't. The Bosnian Serbs want to send a group

25 of people around Europe, and eventually around the world, to negotiations

Page 17340

1 where one of them, Mr. Krajisnik, who was the president of their Assembly

2 is just there as a piece of the furniture? Well, hardly. Of course

3 Dr. Karadzic took some notice of Mr. Krajisnik. Mr. Krajisnik was there,

4 apart from anything else, because there was an Assembly. There was a

5 functioning parliament and we see it. It wasn't a tame animal throughout

6 the period concerned. And certainly I don't mean animals, of course Your

7 Honours don't misunderstand that, but the individual deputies were not --

8 we can see from the transcripts they weren't all household pets that just

9 did what they were told and never squeaked up and argued about what was

10 going on. Decisions and proposals and agreements had to be carried back

11 to Republika Srpska, and they had to be referred to the Assembly.

12 Now, we don't -- the Defence case does not -- not rest on

13 Mr. Krajisnik being unimportant. That would be a ludicrous submission to

14 make. Of course he wasn't unimportant. Why was he -- why was he there at

15 these international negotiations? He was the president of the Assembly.

16 But that's a different point. Being important doesn't make you criminally

17 responsible. You have to look at what the man actually did. You can't

18 just look at the positions. You can't look at just at whether he was

19 there in spirit, can't even just look at whether he was respected, whether

20 he was relied upon, whether he was consulted, whether he was viewed as

21 important. All the time you have to look rigorously, what did he do?

22 What did he say? What decisions did he participate in? What were his

23 actual responsibilities? What were his powers? What was he able to get

24 other people to do? What was he able to stop other people from doing?

25 Those are the questions. Not just labels.

Page 17341

1 We've had -- I'm not going to dwell on individual witnesses to any

2 significant degree. I will mention one or two more in the course of the

3 next hour or so, but we've had witnesses come along, we've had the

4 Prosecution entering into -- they've got their job to do, Your Honour, but

5 some of the evidence was like -- like watching a very -- well, a second

6 team club tennis match, with the Prosecution asking a witness who knew no

7 more than what he'd seen on television and could read in the newspapers,

8 who were the important people in Republika Srpska, who were the important

9 people in the power structure.

10 And I do put this submission quite strongly in these terms, Your

11 Honour. Some of this evidence is just like going out with a clipboard on

12 the street and asking the first six people who come along to tell you who

13 in their view are the important leaders. In England, they'd end up

14 identifying band leaders as cabinet ministers. It's just -- some of the

15 evidence is really, on that level really quite farcical, and Your Honours

16 must, with respect, rigorously examine that evidence and toss out that

17 sort of evidence. It's worthless. The case must focus on what

18 Mr. Krajisnik actually provably and proven did and said.

19 What are supposedly the links between Mr. Krajisnik and the army

20 or the police? They've got to be shown. They've got to be scrutinised.

21 They've got to be examined.

22 Whatever label one attaches and whatever positions Mr. Krajisnik

23 held -- National Security Council, not very much evidence of what that

24 did, is there? Personnel commission. What on earth has that got to do

25 with anything, once we've actually had a look at the evidence in the light

Page 17342

1 of day? Look at what he actually did. What did Mr. Krajisnik in relation

2 to the army? What's the link there between Mr. Krajisnik and the army?

3 There was a General Staff. What -- what contacts, what control, what

4 powers, what authority, what is shown for Mr. Krajisnik there?

5 He had a conversation with Mr. Mladic. I don't remember the

6 details. We're going to look at them. Not today, but in due course we'll

7 look at them again, so I won't take the risk of misstating it because I

8 don't remember it in detail. Has a conversation with Mr. Mladic in which

9 it ends up with something like -- and we'll look at it in due course and

10 it doesn't matter if I'm rather crudely paraphrasing it, it's something

11 like, "Well, I'll come round in the morning then and you can tell me what

12 to do." Something like that. Well, we're going to hear Mr. Krajisnik

13 explain what he can remember about that, and what it did mean and what it

14 could possibly mean.

15 The same with the police. There's not much for me to say this

16 morning on this because we -- we shall look at the evidence in due course,

17 but even if we did look at the evidence, frankly, there wouldn't be much

18 to say anyway because there isn't much evidence.

19 Municipal authorities. All these 109 municipalities throughout

20 Bosnia and Herzegovina. We -- we get some evidence of Mr. Krajisnik

21 visiting a particular municipality on a particular day. On a superficial

22 view, it looks like a serious business meeting. It looks and is presented

23 as if the Bosnian Serb leaders, in the guise of Mr. Krajisnik on that

24 occasion, have gone to the municipality to start giving instructions about

25 exactly how they're going to run their municipality and how they're going

Page 17343

1 to deal with the existing or imminent conflict. The reality is that it's

2 -- it's a special day. It's -- I can't remember. It's a saint's day,

3 it's a festive day of some sort. I don't mean to diminish it or disparage

4 it if I simply don't remember what the day was, but it was an important

5 day in the Serb calendar. Mr. Krajisnik is clearly, even on the evidence

6 as it stands at the moment without Mr. Krajisnik, as he will do,

7 explaining to Your Honours what happened on such occasions, it's apparent

8 that it was -- it was an invitation to, in this context, a dignitary.

9 Mr. Krajisnik for these purposes can broadly be labelled with the rather

10 pompous sounding English word, anyway, of dignitary. He was there for

11 that purpose. And of course, courtesies and politeness require on such

12 occasions that are some meetings and everybody is familiar with situations

13 there where at least there's some sort of diplomatic presentation of

14 something, it looks like some sort of business meeting, but there's no

15 content, there's nothing shown by way of any real authority. But we don't

16 see orders from Mr. Krajisnik. We don't see instructions. We don't see

17 directions. We got all sorts of flimsy evidence about reports, but we

18 don't see them, haven't -- practically nothing concrete going back to

19 Mr. Krajisnik, only the flimsiest suggestions that he was in any way

20 running or controlling or directing what was happening in these 109, in

21 many cases far-flung, municipalities which in a number of instances for a

22 considerable period that we're looking at were cut off anyway from where

23 Mr. Krajisnik was. Communications cut off, hopeless to have any thought

24 of controlling what those people were doing.

25 And he's supposed to have been -- he's supposed to have been

Page 17344

1 following closely and controlling and directing what was happening in the

2 municipalities through his relations with the deputies in the Assembly.

3 They are supposed to have been there in their municipalities soaking up

4 and gathering the information, carrying it to Pale after April 1992, and

5 before that, to Sarajevo, reporting it to Mr. Krajisnik. Mr. Krajisnik's

6 "influence" over the deputies enabled him, then, to get them to carry back

7 to the -- I'm certainly -- I'm exaggerating what has come out of the

8 evidence, but in our submission I'm not exaggerating what the Prosecution

9 would like and suggest that you should get out of that evidence, but you

10 can't get it out of the evidence that Mr. Krajisnik -- so he has some

11 influence over deputies. He would be a very poor president of the

12 Republika Srpska Assembly if he had no influence over the deputies in his

13 own parliament. He would get the sack in no time. It's a basic

14 qualification of the job that you culcate some respect in the deputies of

15 the parliament over which you're presiding, and the influence.

16 We know what happens in parliaments. There is procedural wheeling

17 and dealing going on all the time behind the scenes. That's apparent

18 already without Mr. Krajisnik describing it in detail. Mr. Krajisnik, the

19 evidence from Prosecution witnesses is clear; Mr. Krajisnik is A, good at

20 that sort thing; B, likes doing it. On the whole, people are good at that

21 sort of thing because they like doing it. If you don't like doing it,

22 you're likely to be pretty hopeless. Mr. Krajisnik likes that sort of

23 thing, and he's good at it, and he's efficient at it. And in the Bosnian

24 Serb Assembly, as in any other parliament, there is timetabling. There is

25 trying to get off the agenda issues which don't have to be contentious by

Page 17345

1 getting them sorted out without having to bring them into the Chamber, and

2 trying to cut down to minimum those matters which really require extensive

3 debate.

4 Now, I don't -- in a way it's not necessary, but it's not really

5 proper for me to go any further because we've had such a limited and

6 slight account from Prosecution witnesses as to what was really going on.

7 On that point it could almost be left there because they don't cross the

8 threshold of any sort of burden in that pocket of the case. But Your

9 Honours are going to hear explanations and accounts of that. Your Honours

10 are going to hear it from Mr. Krajisnik, Your Honours are going to hear

11 that from deputies in the Republika Srpska Assembly. Your Honours are

12 going to get a proper feel of what was actually happening and what Mr.

13 Krajisnik was actually doing.

14 Now, Your Honour -- Your Honours, I haven't finished there. I see

15 it's twenty-five to eleven.

16 JUDGE ORIE: Yes. I would have invited you in some five minutes

17 to see whether you could find time for a break, but anywhere between now

18 and ten minutes. I leave it up to you.

19 MR. STEWART: Now would be as good a time as any, Your Honour.

20 JUDGE ORIE: Then we'll have a break for half an hour and we'll

21 resume at five minutes past eleven.

22 --- Recess taken at 10:34 a.m.

23 --- Upon resuming at 11:13 a.m.

24 JUDGE ORIE: Mr. Stewart, before I give you an opportunity to

25 proceed, I'd like to ask to the Prosecution whether they intend to file

Page 17346

1 any response to the two motions that have been filed on the 6th of

2 October, one in relation to an application for an extension of time to

3 apply for certification to appeal the Chamber's decision on the motion for

4 acquittal, and the other one, the application by the Defence for a

5 certificate to appeal the Chamber's denial of the Defence motion for

6 extension of time in which to comply with the 65 ter (g) requirements.

7 MR. HARMON: No, Your Honour. We do not intend to file any

8 response.

9 JUDGE ORIE: Do you want to orally respond; and if so, when?

10 MR. HARMON: We would, Your Honour, but if we could do that not at

11 this moment.

12 JUDGE ORIE: So either later today or tomorrow morning?

13 MR. HARMON: Yes, Your Honour. Thank you.

14 JUDGE ORIE: We'll then wait for that oral response and meanwhile

15 continue.

16 Mr. Stewart.

17 MR. STEWART: Thank you, Your Honour. The -- Your Honours have

18 heard quite a bit of evidence already about variants A and B and also

19 another significant aspect of the Prosecution's evidence, there's been

20 evidence in relation to six strategic goals. Those are clearly major

21 items for exploration in the evidence and they will indeed be important

22 items for consideration in the Defence evidence, and particularly in the

23 evidence of Mr. Krajisnik.

24 As far as Variants A and B are concerned, we will confine

25 ourselves this morning to relatively brief comments. The evidence in

Page 17347

1 relation to that variant A and B document is, on the Prosecution case as

2 we have it now, to put it euphemistically, untidy. It is a very long way

3 from showing that this was in any sense an official document of the SDS

4 leadership which was part of some concerted and organised plan involving

5 dissemination of such instructions to all the municipalities. Just even

6 on the Prosecution evidence, it just doesn't come across like that at all.

7 It's an extraordinary document -- without dwelling on the details, it's an

8 extraordinary document with some extraordinary features just on its face

9 if it really is what the Prosecution say it was. And even from the

10 Prosecution witnesses we have seen the enormous disparities in the way in

11 which that document did or didn't reach particular municipalities or

12 particular municipality leaders, what was or wasn't done with it, whether

13 they'd ever heard of it, what steps were taken, if any, in relation to

14 that document, just on the Prosecution evidence alone, indicate that it is

15 a very long way from being what the Prosecution say it is.

16 One further comment to make on variants A and B is that it's of

17 course been a document which has featured in other cases. Well, of course

18 -- leave aside "of course," it has featured in other cases before this

19 Tribunal. So far as evidence in other cases has become evidence in this

20 case, well it's thrown into the whole melting pot of evidence in the case

21 against Mr. Krajisnik.

22 So far as any adjudicated facts or evidence introduced by way of

23 92 bis, so far as that has not happened, so far as such material and such

24 consideration of variants A and B in other cases has not found its way

25 into this case, it is in that void that I referred to earlier on. It

Page 17348

1 absolutely must be disregarded. The relevance, significance, genesis, the

2 importance of variants A and B are to be judged, and the application or

3 non-application of that document is to be judged by Your Honours against

4 Mr. Krajisnik or in favour of Mr. Krajisnik on the evidence in

5 Mr. Krajisnik's case. And Your Honours will hear more about those matters

6 during the course of evidence in the Defence case.

7 So far as six strategic goals are concerned, I wouldn't begin to

8 get into what is a large and complicated topic on the evidence simply to

9 say that Your Honours will know already from the approach adopted by the

10 Defence during the course of the Prosecution case that the Defence case

11 and Mr. Krajisnik's position is that the six strategic goals, as a policy,

12 in the context of the conflict and in the context of the concerns and

13 fears that the Bosnian Serbs had, was not in any of its elements or

14 overall in any way a criminal plan. It wasn't part of any criminal plan.

15 It wasn't inherently criminal. And neither in any respect in which it was

16 followed and implemented by the Bosnian Serb leadership was it criminal in

17 any way from -- for which Mr. Krajisnik, on the evidence, can be said to

18 have any responsibility.

19 What happened on the ground in the fighting, in the conflict,

20 nobody can -- on the fullest evidence, nobody can ever draw a clear

21 defined line which shows what actions in what corners, in what quarters of

22 Bosnia were or weren't conducted supposedly by the people who were

23 carrying them out in implementation of some specific plan. It just never

24 is as neat as that. But so far as the six strategic goals will be

25 explored, do require careful scrutiny, Your Honours will hear from

Page 17349












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Page 17350

1 Mr. Krajisnik himself what they were about, what he -- because of course

2 he doesn't disclaim knowledge of the six strategic objectives. That would

3 be an absurd contention. Of course he doesn't. Mr. Krajisnik attended

4 the Cutileiro and was a participant in the Cutileiro talks, and there is a

5 clear and close link between what was contemplated by the Lisbon and

6 Sarajevo agreements reached as a result of the Cutileiro talks, but not,

7 in the end, of course followed through because of changes of heart and

8 changes of position particularly by Mr. Izetbegovic, the Bosnian Muslim

9 leader.

10 There are different views and different assessments of the

11 Cutileiro plan itself and the Lisbon and Sarajevo agreements, but Your

12 Honours are going to have a better, clearer, expanded picture of what was

13 involved in the six strategic goals and how they tie in with the

14 legitimate, positive, and entirely good faith efforts of the participants

15 in the Cutileiro negotiations to try to achieve - unfortunately, didn't

16 succeed - try to achieve a peaceful resolution of the disputes and

17 burgeoning conflicts at that time.

18 The quality of the Prosecution evidence, since the Defence are

19 going to present a case and are going to present not just Mr. Krajisnik's

20 evidence but the evidence of a substantial number of other witnesses, the

21 quality of the Prosecution evidence is always, as in any case, of course

22 an important consideration, and many criminal cases, again both in

23 domestic jurisdictions and before this Tribunal, produce a range of

24 Prosecution witnesses including in some cases the clearly criminal

25 themselves among the array of Prosecution witnesses.

Page 17351

1 We do have in this particular case the most extreme range of

2 witnesses in relation both to their part, active or passive, in the events

3 in question, or in some cases their limited participation in the actual

4 events in Bosnia but their connection in some way with those events. We

5 have extremes in the at least superficial reliability of their evidence.

6 At one end of the spectrum we have, again, the lady that I mentioned

7 earlier who -- she and her family were -- her family particularly and she

8 herself in that very direct sense were absolute victims of this conflict.

9 I take her, and it's intended as a positive, complimentary remark

10 about that witness, I take her really as the paradigm of a genuine good

11 faith, truthful, reliable witness where it would be absurd for the Defence

12 to suggest there was any significant doubts about her evidence. If she

13 has misremembered something, probably none of us and Your Honours would

14 ever be able to see if she's misremembered something because it could only

15 be on the most incidental and trivial aspects of her evidence. The

16 essential thrust of what she -- and there are other witnesses in that

17 category. It's not necessary or appropriate at the moment to identify

18 them, but at some point the Defence would expect to make clear which of

19 the Prosecution witnesses we regarded as being in that category or what

20 areas we regarded as being in that category. It's already implicit in

21 some of our responses on 92 bis applications and so on. That's one end of

22 the spectrum.

23 The other end of the spectrum, and I don't make the slightest

24 apology for singling him out because, well, he deserves no more and no

25 less; take somebody like Mr. Deronjic. I have no wish to, on

Page 17352

1 Mr. Krajisnik's behalf, to make Mr. Deronjic's already no doubt very

2 difficult life more difficult, but he is a despicable character. That has

3 to be said. Mr. Deronjic murdered more than 60 people. He, with others,

4 torched a village. People were burnt to death. He comes and gives

5 evidence against Mr. Krajisnik. Again another feature Mr. Deronjic's

6 evidence, and he is not the only witness to whom this applies, is that

7 Mr. Deronjic's evidence is given when he's imminently going to be

8 sentenced himself. There is a deal. There is no dispute about that.

9 These deals are done all the time. There is a deal: Mr. Deronjic's

10 cooperation with the Prosecution is potentially going to make and is

11 supposed to make and is open to make a significant contribution to the

12 softening of the penalty that Mr. Deronjic is going to suffer for his

13 absolutely appalling and despicable crimes. And it could be said that,

14 judged from many perspectives -- well, one can confidently submit this:

15 The sentence that Mr. Deronjic received, whatever the line taken by him

16 and his lawyers, was hardly excessive in relation to the crimes of which

17 on his own admission he was convicted.

18 Now, you can be a despicable war criminal like Mr. Deronjic and

19 tell the truth. They're not logically inconsistent. But to say that his

20 evidence in those circumstances requires care, well, that's an

21 understatement beyond ordinary English understatement.

22 I mentioned Mr. Okun. Of course Mr. Okun is in a totally

23 different category from Mr. Deronjic in every single way that I have

24 mentioned, except that, of course, one would always expect that Mr. Okun

25 comes to tell the truth. I don't suggest that a distinguished career

Page 17353

1 diplomat and gentleman such as Mr. Okun doesn't come to court to tell the

2 truth as he sees it. Of course he does. But his direct connection with

3 these events is, when it comes down to it, really rather slight. Although

4 those negotiations were important, and that is the relations between

5 Mr. Krajisnik and Mr. Karadzic and Mr. Krajisnik's participation in those

6 negotiations are an element of the Prosecution's case, and I've already

7 dealt with that this morning, Mr. Okun, he wasn't there. He wasn't on the

8 ground. He has no firsthand knowledge of any of the events, and he really

9 has only that.

10 On serious examination, slight knowledge of anything that could

11 truly be called Mr. Krajisnik's participation, Mr. Krajisnik's role in the

12 matters which form the subject of this indictment, it's -- the evidence is

13 little pieces of the jigsaw. But somebody like Mr. Okun, his evidence,

14 treated with the utmost respect as a truthful experience, good faith

15 witness, but it really doesn't go that far.

16 We've got witnesses like - one could almost be forgiven for

17 thinking the case was about him at some stage rather than about

18 Mr. Krajisnik - Mr. Davidovic. We're going to have to look again in all

19 sorts of ways at Mr. Davidovic, but he is and, in our submission, he will

20 remain, when the dust has settled, in the category of witnesses whose

21 evidence will need to be treated with the greatest caution, because there

22 are a number of witnesses, and the Defence case is that Mr. Davidovic is

23 one of them, who have things to hide. And whenever a witness has things

24 to hide -- Your Honour, we're not disregarding the real prospect, that

25 that point will apply to some Defence witnesses. We don't wish to present

Page 17354

1 Mr. Krajisnik's case in an unreal world, but the Prosecution have to

2 present evidence if they wish, in the end, to see Mr. Krajisnik convicted

3 on which he can be properly convicted.

4 The -- a similar comment where we recognise that the point in

5 principle may apply to Prosecution and to Defence witnesses, relates to

6 protected witnesses. The Defence has always tried its hardest to convey

7 to the Trial Chamber that it doesn't wish genuine protection of genuinely

8 at-risk witnesses to be compromised in any way. That would be

9 irresponsible, and the Trial Chamber has that heavy responsibility. And

10 it is no part of the Defence's position to try to undermined that

11 protection or to hamper the discharge of that responsibility.

12 But the Defence's position has always been, as Your Honours have

13 heard, to do its utmost to assist the Trial Chamber in keeping the

14 protection to what is genuinely required so that as much as possible of

15 the evidence against Mr. Krajisnik, and that will apply also to evidence

16 given in broad terms for Mr. Krajisnik as part of his Defence, can be

17 given in public. Not because however much we do subscribe to that as an

18 admirable principle, it is our concern to ensure for its own sake that the

19 public is able to follow this trial as fully as possible. That is a

20 correct concern, a legitimate concern, and a proper part of the

21 administration of justice. It's just not primarily our responsibility as

22 Defence counsel. It's our responsibility to support and help that and not

23 undermine it, but our heaviest responsibility there, consistent with our

24 overriding duties to the Court, is to Mr. Krajisnik, which in our

25 submission involves, and this is consistent with Mr. Krajisnik's own

Page 17355

1 wishes, ensuring that as far as possible witnesses give their evidence

2 knowing that it is being heard outside the courtroom, knowing that they

3 are, in the fullest way that can be managed, accountable for it.

4 Whatever the reasons and however important the protection of a

5 witness and however admirable a witness, secret evidence, because that is

6 what it is, secret evidence is liable to be dangerous evidence and has

7 always to be especially carefully scrutinised, because even openly,

8 accusations are very easy to make. Allegations are very easy to make.

9 And they're even easier to make when you can make them in the confidence

10 that nobody outside the direct participants in this trial will know that

11 you're making them.

12 We've got witnesses like Mr. Kljuic. Well, actually there's no

13 other witness quite like Mr. Kljuic, but there's a feature of Mr. Kljuic's

14 evidence which must be focused upon and which, in relation to other

15 witnesses -- or raises a question which ought to be asked in relation to

16 other witnesses. One might have thought that Mr. Kljuic, from the way in

17 which Mr. Kljuic presented himself and the way in which Mr. Kljuic

18 regarded himself, which came across very clearly, one might have got the

19 impression that Mr. Kljuic's real true purpose in coming along to this

20 Court was to assist in the search for the truth, and no doubt to this day

21 Mr. Kljuic could convince himself that that was exactly why he came here.

22 But Your Honours will remember that Mr. Kljuic's purpose and aim of coming

23 here to help the Trial Chamber to see the truth ran into its limits as

24 soon as it came into conflict with his own personal concerns about his

25 rights of authorship to keep his documents to himself for the publication

Page 17356

1 of his forthcoming book. It's not very satisfactory, is it?

2 Mr. Kljuic's concerns about his documents and his authorship

3 rights set against Mr. Krajisnik's concerns to have a fair trial and to be

4 acquitted of the gravest charges that can be brought, and to have the

5 proper prospect of leaving The Hague to go home for the rest of his life

6 instead of spending - and nobody would suggest any other outcome if

7 Mr. Krajisnik were convicted - instead of spending a significant part of

8 the rest of his natural life not a free man.

9 One really needs to look at the evidence of people like Mr. Kljuic

10 in that light. Mr. Kljuic -- well, the school report, "this boy has

11 performed to his own entire satisfaction throughout the whole term" has

12 some application to Mr. Kljuic. Mr. Kljuic would be very satisfied, no

13 doubt, with his own evidence, but the Trial Chamber should not be

14 satisfied with Mr. Kljuic's evidence. It is deeply unsatisfactory.

15 I'm not going to go witness through witness. I've just tried this

16 morning to identify examples of categories or subcategories of witness

17 where there is the strongest need to treat their evidence with great

18 caution. There are gaps in Mr. Kljuic's evidence because he didn't

19 produce all the material, in the end. He just didn't.

20 The case is at a crucial watershed, of course. This case has an

21 extraordinary tangled history anyway, even for a serious, grave, complex

22 criminal case, criminal trial. It has an unhappily tangled history. We

23 have the inordinately long time that Mr. Krajisnik has spent in prison

24 awaiting the start of his trial, the suspension from practice by his own

25 Bar of Mr. Krajisnik's previous lead counsel a few weeks before the date

Page 17357

1 fixed for the beginning of the trial was a hugely disruptive event, one

2 for which Mr. Krajisnik was not responsible in any way. It was a severe

3 blow. It would be to any defendant in that position, and was a severe

4 blow to Mr. Krajisnik for that to have happened. His trial was supposed

5 to start in May 1993 -- 2003, after he had already been in prison for just

6 over three years, and then didn't start for nearly another year, and then

7 started. And, Your Honours, we made submissions, we made applications.

8 They've largely been rejected, refused, but despite the rejection of

9 various applications for more time, for adjournments, for opportunity to

10 deal with Mr. Krajisnik's case properly, despite the rejection, it's

11 incontrovertible, in our submission, that Mr. Krajisnik's case and

12 Mr. Krajisnik's Defence have been prepared and have had to be prepared in

13 something very far from satisfactory. Far from ideal, of course, but the

14 ideal is not easily attainable anyway. But far from satisfactory

15 circumstances.

16 So far as the search for the truth with all the qualifications

17 that apply, so far as search for the truth is correct, a simple label to

18 attach to this trial, it has already not just the potential because the

19 Defence submission is it's already happened, but it's important that the

20 situation is not exacerbated, not aggravated for the future. It's already

21 been seriously damaged, has the potential to be seriously damaged by that

22 history that I've just referred to and, and this must be said, Your

23 Honour, the completion strategy, despite -- and, Your Honour, we have

24 heard and we understand the assurances that have continually been given,

25 but the clear commitment by the President of this Tribunal many, many

Page 17358

1 months ago to the Security Council of an end date to this trial, which has

2 been consistently preserved, with tiny adjustments, as the end date of

3 this trial, remains a cause for concern.

4 There are also, and we've seen these difficulties addressed

5 head-on recently, or quite close to head-on in decisions, in submissions

6 made by the Defence and then the Prosecution to this Trial Chamber, and

7 decisions that there are the extraordinarily unsatisfactory circumstances

8 relating to the funding and resources for the Defence. Now, Your Honour,

9 I'm not going to spend hours and hours launching into an analysis of all

10 the directives and all that sort thing, but putting it in a nutshell, the

11 -- they are the arrangements we've got, but the structure for dealing

12 with a partially indigent defendant before this Tribunal, and I don't just

13 mean this Trial Chamber but I'm concerned specifically for Mr. Krajisnik,

14 is deeply unsatisfactory.

15 A man is brought here, in this case Mr. Krajisnik, who sees

16 himself, and the Defence submission is that he will ultimately be shown

17 correctly to have seen himself as the victim of an injustice in being

18 brought here at all. So he feels he shouldn't be here, and he's been here

19 for five years locked up. And it's going to be six years, even on the

20 present schedule. If Mr. Krajisnik is acquitted on all charges, he's

21 going to have spent six years of his life in prison. And in order to have

22 any sort of effective representation of counsel, he is expected to dig

23 fairly deeply into his own pocket while the trial is continuing.

24 Now, Your Honour, it's not -- there's no ruling to be sought from

25 this Trial Chamber on the ins and outs or the rights and wrongs of that

Page 17359

1 system, it is just deeply unsatisfactory. It has the potential to knock

2 an enormous hole in the whole exercise of search for the truth. If we are

3 going to end up with some qualified search for the truth, some seriously

4 undermined search for the truth on the basis that the imperfections in the

5 search of the truth, though serious, are going to be laid at

6 Mr. Krajisnik's door, well, what the Defence has said recently, in a way,

7 is let's know that. Let's at least know very clearly that with the way in

8 which - and I have to say this - my predecessor's handling of the case up

9 to April, May 2003, shortly before the trial, was clearly out of control

10 and was clearly uncontrolled and was clearly not properly managed and

11 controlled, it's not right that those consequences of that should now

12 sought to be repaired at the cost of any serious impingement upon the

13 quality of this trial and the search for the truth. And the utmost care

14 must be taken.

15 And it is also not right -- the United Nations has its budget.

16 This Tribunal cannot go on to the end of this century, everybody

17 acknowledges that, but it can't be done, and justice by this institution

18 can't be done if corners are cut in any of the trials, let alone this

19 enormously wide-ranging and grave charges trial against Mr. Krajisnik. It

20 can't be done if there is any substantial failure to explore the issues

21 and to allow the fullest presentation of Mr. Krajisnik's evidence to meet

22 these grave charges.

23 The -- the line has to be drawn, we submit, only at the irrelevant

24 or the repetitive. They can overlap. There are some aspects of evidence

25 where by the time, say, two or three witnesses have given evidence, there

Page 17360

1 can be no significant addition from having another half dozen witnesses.

2 It just doesn't add anything. That's accepted as a principle, but it has

3 to be very carefully applied in practice.

4 Well, repetitive equal is irrelevant in a sense. Ten witnesses

5 each of whom individually might give relevant evidence and the last seven

6 might simply not add anything at all. So they're in a sense either

7 repetitive or irrelevant, but apart from that line where a witness has

8 anything significant to add to the evidence in this case and to assist

9 that search for the truth, then it is an impingement, it is a restriction,

10 it is a shortfall in the administration of justice if that evidence is for

11 any reason excluded. And if it's excluded on grounds of cost or

12 schedules, needs to meet timetables or targets, then justice is not done.

13 And that's not to fail to recognise that in the real world there

14 is not perfect justice, and it's not to fail to recognise to the real

15 world resources have to have some relevance. Of course they do. But

16 these charges against Mr. Krajisnik are the most serious. And after

17 spending five years, coming up to six years, in prison on these charges,

18 the very least Mr. Krajisnik is entitled to do is not to be excluded or

19 restricted in his legitimate wish to put forward any relevant evidence

20 that may help him and help the Tribunal, help the Trial Chamber to see

21 what happened to reach its verdict.

22 The -- this is also, being a watershed in this case, this is a

23 critical opportunity for this Trial Chamber to use Your Honours'

24 wide-ranging, combined experience, and this is where the benefit of Your

25 Honours' different backgrounds, although none of Your Honours are common

Page 17361

1 lawyers, but you can't win them all, the combined experience and the

2 combined benefits of Your Honours' backgrounds should make a huge positive

3 contribution to this case.

4 The -- it may seem a statement to the obvious, but evidence should

5 not be made to fit into boxes. The Prosecution, legitimately, because

6 they have an utterly different task, the Prosecution legitimately, within

7 certain confines of what's a proper presentation, and we don't suggest

8 those limits have been overstepped by our colleagues in this case, the

9 Prosecution job is to present the evidence in the boxes. They make the

10 charges, they set out the counts in the indictment, they set out the

11 elements, and they go and get, as far as they can, the evidence to support

12 it. That's their legitimate role.

13 The Trial Chamber's role is to be careful not to do that. And,

14 Your Honours, we do -- we do make the submission that at points in the

15 Prosecution case that Your Honours were not sufficiently careful to draw

16 that distinction and that there were points in the Prosecution case at

17 which at the very least the impression was given that Your Honours were

18 looking for the evidence to put in a bit of the jigsaw.

19 If Your Honours, in the course of the Defence case -- well, I'll

20 put it a different way. That submission on what we suggest has happened

21 is a submission on something it won't matter at all. Your Honours, judge

22 not that you be not judged, but Your Honours' -- Your Honours' overall

23 handling of this case cannot be judged until the end of the case. Of

24 course, by definition that's tautology. When it comes to the end of the

25 case, it is the Defence's earnest hope on Mr. Krajisnik's behalf that

Page 17362












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Page 17363

1 overall the correct approach will have been adopted, that there won't have

2 been, as opposed to search for the truth, a search for bits of the jigsaw

3 to fit the case in a way that -- in a way that leads to a conclusion that

4 the evidence won't bear.

5 One can pick a bit here, one can pick a statement there. It's

6 quite easy to do, in a way. To write a -- to write a judgement in a case

7 of this nature, pick what that witness said, pick what that witness said,

8 take something there, put something -- it's not that difficult to do, but

9 it's wrong. Every piece of evidence must be rigorously tested. It must

10 not be taken out of context. It -- when witness say something, it needs

11 the most careful examination of how and why and when they said it and how

12 they came to say it. And Your Honours have taken a very liberal approach

13 because you are professional judges and you have experience and training

14 and ability which enables you to analyse and evaluate evidence in a more

15 skilful way than an untrained jury member with all their skills and

16 knowledge and experience of the world. But Your Honours have that

17 advantage, and with that advantage, Your Honours have allowed for

18 yourselves a wide range of evidence that Your Honours would have kept from

19 a jury, because juries, of course are fundamentally intelligence, but they

20 don't have the same skills and they don't have the same ability as

21 professional judges to evaluate and draw the proper lines.

22 There's no problem about that, Your Honour, provided that those

23 proper lines are then drawn, so that when we get hearsay, double hearsay,

24 treble hearsay, vague hearsay, when we get that, Your Honours recognise it

25 and are careful, and anybody -- because again, please don't misunderstand

Page 17364

1 this, Your Honours. We're not suggesting that any judgement in this case

2 will be rubber stamped in any way. We wouldn't make such a ridiculous and

3 insolent submission. But it's also a real world assessment that in a case

4 of this size the job can't be done without a team which extends beyond

5 Your Honours. Of course it is. And we all have our -- we all have our

6 support teams in this case, and Your Honours are entitled to that as much

7 as anybody, of course, and the job can't be done properly without that.

8 But it does mean that those lines must be carefully drawn by Your Honours,

9 that that part of exercise has to be most carefully scrutinised and

10 directed by Your Honours.

11 The -- there's been lots written and lots said, and I'm only

12 concerned this morning standing here for Mr. Krajisnik, with its impact on

13 Mr. Krajisnik's case. That's the proper ambit of my concern as his

14 advocate. But justice from this Tribunal and justice by this Tribunal is

15 not achieved, and when finally the doors of this Tribunal are closed, a

16 hundred per cent conviction rate wouldn't necessarily be seen as a

17 success. It would represent either an unduly cautious or an almost

18 inhumanly brilliant ability on the part of the Office of the Prosecutor to

19 select cases for prosecution.

20 The justice comes in convicting the guilty and not convicting the

21 innocent. And the innocent are those against whom insufficient evidence

22 is presented to establish guilt. And, Your Honours, the Defence

23 submission is that when this particular trial comes to its end, there is

24 and will be insufficient evidence to convict Mr. Krajisnik. For all his

25 importance and for all the terrible events that occurred, it is individual

Page 17365

1 criminal responsibility. It's not politics in the end. That's what it's

2 about: Is this man, Mr. Krajisnik, guilty? Is he to be convicted? Is he

3 responsible? Is he to spend, inevitably then, many, many years of the

4 rest of his life in prison? That's the heavy responsibility.

5 We have simply sought this morning, in a summary, before we

6 present our first witness, who is here, available, ready to give evidence,

7 simply sought, with the greatest of respect to Your Honours, to say on

8 Mr. Krajisnik's behalf how his case, his guilt or innocence should be

9 approached, what we are all here to try to do. And one thing that nobody

10 is here to do is to convict anybody against whom the evidence does not

11 establish, so that you are sure, his guilt.

12 JUDGE ORIE: Thank you, Mr. Stewart, for this opening statement.

13 I was informed that, although I had a different impression last

14 Thursday, but that you wanted to start the examination of your first

15 witness already today. Is that a correct information?

16 MR. STEWART: Your Honour, it is. I have finished a little bit

17 earlier than I'd expected, even than I'd expected at the beginning of this

18 session, but the position is this, Your Honour: Our first witness is

19 here. We are ready to proceed with him. A break would be needed anyway,

20 Your Honour, to sort out some technical aspects and probably to give all

21 concerned just a chance to organise themselves. Although it's rather

22 early, Your Honour, I believe it's not particularly disruptive or awkward

23 to take this particular break slightly earlier.

24 JUDGE ORIE: Yes. I also do understand that there are some

25 problems with the exhibits and translation of exhibits. Of course we

Page 17366

1 could wait until tomorrow, but we also could start and see what actually,

2 and we're now talking about the first witness and this is of course not

3 exemplary for what will happen in the near future, that's at least how I

4 understand matters, to see by -- just by starting, to see whether we are

5 confronted with these problems, to what extent they are surmountable, to

6 what extent translations on the spot by reading portions of the evidence

7 could already help us out, although not permanently but on a provisional

8 basis.

9 But, Mr. Harmon, you're standing.

10 MR. HARMON: Yes. Thank you. Just to put on the record, Your

11 Honour, we foreshadowed last week potential difficulties the Prosecution

12 would have if it didn't receive in a timely fashion exhibits that we were

13 expecting to receive last week. Mr. Josse will not contest this, I know

14 that, but last night we were delivered approximately nine exhibits from

15 the Defence. I don't know the exact page count, maybe around a hundred

16 pages, but all untranslated.

17 Now, that puts us in an obvious situation of difficulty, because

18 without knowing what these exhibits are and without having the opportunity

19 to, one, get them in English, we have to submit them for translation

20 ourselves, we may not get those exhibits in a proper time in which to make

21 our study of those documents.

22 So I just bring that to the Court's attention, because we will

23 endeavour, in the best way we can, to get through this first witness, but

24 it may be inevitable that we are unable to do so because of the late

25 submission of the exhibits. We are coming up to a time when, tomorrow, we

Page 17367

1 again expect to see a list of witnesses who will be called two weeks hence

2 with the list of exhibits, hopefully translated, because that is what is

3 in the guidelines, and we wish to avoid as many problems as we can, and we

4 can do so if we have these submissions to us in a timely fashion.

5 I just wanted to put that on the record.

6 JUDGE ORIE: Yes. I think it's good to have that on the record,

7 and I hinted already to the problems. And of course we all know that for

8 some exhibits it's less dramatic if we do not have a full translation. I

9 remember a few pay lists where it can be easily explained what the exhibit

10 is, and even without having all the details translated, one could proceed.

11 But I also understand that for other exhibits, especially if portions are

12 used only and if the context of the whole is not clear to the -- to the

13 Prosecution, that they might have difficulties in preparing for

14 cross-examination.

15 Mr. Josse, you're on your feet.

16 MR. JOSSE: Well, I'm calling this first witness, and I've been

17 dealing with this practical problem over the weekend, and it's a most

18 unsatisfactory state of affairs, Your Honour. The Defence accept that. I

19 want to put on record the cooperation that I personally have had from my

20 learned friends who prosecute this case, bearing in mind the difficult

21 situation that we have placed them in.

22 I regret to say that they're not the only ones who are in a

23 difficult position in this regard. Your Honour and Your Honour's

24 colleagues are too, I'm afraid, because though we have bundles for the

25 Chamber, they of course are all in B/C/S and they are totally

Page 17368

1 untranslated.

2 JUDGE ORIE: May I ask just one question. The cooperation between

3 the parties, has it been checked that not already a translation of any of

4 these documents exists? Because that's still not to be excluded.

5 MR. TIEGER: Yes, Your Honour. That was one of the first things

6 we did. We managed to identify one or two smallish documents that fell

7 within that category, but that seems to be it.

8 JUDGE ORIE: The majority not.

9 Mr. Josse, for witnesses to come, have you arranged for any type

10 of communication, inviting a witness that if he thinks that he has any

11 relevant documents, because I take it that these are documents the witness

12 would bring himself because otherwise it might be easier to identify the

13 documents you would use during the examination of the witness, is there

14 any scheme, any arrangement that witnesses would at least send in any

15 document, even if it was only with a one-line explanation of what the

16 document is, at least in advance so that we could -- I mean, I do, and the

17 Chamber does accept your feelings at the moment that it's an

18 unsatisfactory situation. Of course, the Chamber is specifically

19 interested in how to avoid this to become a routine rather than the

20 exception.

21 MR. JOSSE: So far as this witness is concerned, let me assure the

22 Court that all the documents in the bundle he brought with him. He told

23 us that he had a significant number of documents. We attempted to make an

24 arrangement by which not only would he send them but in fact they would be

25 reproduced very quickly. I think Mr. Stewart may have mentioned to the

Page 17369

1 Chamber previously he has an arrangement with his London Chambers in that

2 regard. For reasons I'm not altogether clear about, the witness didn't

3 supply the documents. I suspect costs from his point of view may have

4 been somewhat prohibitive because there are so many, and of course he's

5 not in a position to sort them out and quite a number of the documents he

6 brought with him were of no interest and are not in the bundle. So he

7 didn't send them for one reason or another, and we were confronted with

8 them when he arrived here on Friday, having, again, regrettably, being

9 delayed on his way out here.

10 Your Honour asks what arrangements we are going to make as to the

11 future. Well, again being frank with the Court, that is a matter under

12 active consideration, but as yet, speaking for myself and I hope

13 Mr. Stewart will forgive me for saying this, we have come up with no

14 operative method that will stop this happening again. I can understand

15 Your Honour and Your Honour's colleagues' utmost dissatisfaction with the

16 state of affairs.

17 What Mr. Stewart asked me to add is what we could easily organise

18 is a request to a witness two, perhaps three weeks before they are due to

19 give evidence, that they submit the documents by fax machine, bus that's

20 going to be easier said than done, because rather like this witness, they

21 may not do it, for whatever reason. As I said, I haven't actually asked

22 Mr. Vasic why it proved not possible. I suspect cost is a simple answer.

23 JUDGE ORIE: Yes. Sometimes communication with witnesses go

24 through the Victims and Witness Section. They are assisting in quite some

25 practical aspects. I wonder whether any assistance from them could

Page 17370

1 contribute to resolving the problem.

2 MR. JOSSE: Could I say they have been enormously helpful in this

3 regard: We as a team have been to see them, they have explained to us

4 their procedures. We're due to have another meeting with another section

5 of the service tomorrow, and I'm more than happy to take that up with

6 them.

7 JUDGE ORIE: Yes. Because finally -- of course, the Chamber will

8 accept shortcomings. I mean, we have had similar situations in the

9 presentation of the Prosecution's case. The Chamber would have, however,

10 have great difficulties in accepting that the Prosecution would not be in

11 a position to prepare for cross-examination because the witness is not

12 willing, not in a position, for unclear reasons, to present any exhibits

13 in a timely way to the Defence, but let's not -- let's first concentrate

14 on how to resolve the problem rather than thinking about what should be

15 done if the problem cannot be resolved.

16 MR. JOSSE: The Defence accept that wholeheartedly. For what it's

17 worth, could I mention that clearly it doesn't make the

18 examination-in-chief that I'm about to begin any easier.

19 JUDGE ORIE: Yes. It's -- I do understand that the Defence is

20 also confronted with considerable problems in that respect. We stand

21 adjourned and we will give an opportunity to the Defence call its first

22 witness at twenty minutes to one.

23 --- Recess taken at 12:14 p.m.

24 --- Upon resuming at 12:44 p.m.

25 JUDGE ORIE: Mr. Josse, is the Defence ready to call not its next

Page 17371

1 witness but its first witness?

2 MR. JOSSE: First witness, Your Honour, yes. The witness is

3 Nemanja Vasic, please.

4 JUDGE ORIE: Yes. Could the witness be brought into the

5 courtroom.

6 [The witness entered court]

7 JUDGE ORIE: Good afternoon. I take it that you are Mr. Vasic.

8 Mr. Vasic, before you give evidence in this Court, the Rules of Procedure

9 and Evidence require you to make a solemn declaration that you'll speak

10 the truth, the whole truth, and nothing but the truth. The text of this

11 declaration is now handed out to you by the usher. May I invite you to

12 make that solemn declaration.

13 THE WITNESS: [Interpretation] I solemnly declare that I will speak

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

15 JUDGE ORIE: Thank you, Mr. Vasic. Please be seated.

16 Mr. Vasic --

17 MR. JOSSE: I'm going to deal with that, if I may. That's the

18 first thing I'm going to deal with.

19 JUDGE ORIE: Thank you.

20 Mr. Vasic, you will first be questioned by Mr. Josse, who is

21 counsel for the Defence.

22 Mr. Josse, please proceed.


24 [Witness answered through interpreter]

25 Examined by Mr. Josse:

Page 17372

1 Q. If you'd just give the Court your name, please.

2 A. My name is Nemanja Vasic.

3 Q. Now, you have just taken from your briefcase, Mr. Vasic, various

4 bundles of document; is that correct?

5 A. Yes.

6 Q. To your right, first of all, are a series of plastic binders that

7 you have brought to The Hague that contain documents that you think may be

8 relevant to your evidence; is that correct?

9 A. Yes.

10 Q. And it's right, and I think you've seen this, that they've been

11 numbered by someone else, and in fact they correspond, the numbering on

12 your plastic binders, with the tabs in the bundles that the Chamber and

13 the Prosecution now have. That's correct, isn't it?

14 A. Yes.

15 MR. JOSSE: So in short, so far as that's concerned, Your Honour,

16 they're original documents which the witness may wish to refer to.



19 Q. Directly in front of you in the witness box is a notebook; is that

20 correct?

21 A. It is.

22 Q. Contained within that notebook are notes that you've made since

23 you've been in The Hague; is that right?

24 A. Yes. These are notes, numbers that I jotted down referring to

25 these documents, just so that I can find my way through the bundle as

Page 17373

1 quickly as possible so as not to waste any of your time.

2 Q. And you would like the leave of the Court to use those notes as

3 and when you require it in order to facilitate your evidence; is that

4 right?

5 A. Yes.

6 JUDGE ORIE: Any objection by the Prosecution against the use of

7 this kind of notes?

8 MR. TIEGER: It may not have been entirely clear to the witness,

9 Your Honour, that in the event he wishes to refer to the notes he should

10 make it expressed to the Court and seek leave to do so.

11 JUDGE ORIE: Yes. Mr. Vasic, whenever you would feel any need to

12 consult your notes, would you please tell us that you intend to do so and

13 then it depends on the circumstances, I take it, whether there would be

14 any objection against it. So whenever you want to rely on it, please tell

15 us.


17 Q. I think it's worth making one other thing clear: You made those

18 notes entirely on your own, Mr. Vasic, didn't you? No one else was

19 present when you made them.

20 A. Yes. I did it on my own.

21 JUDGE ORIE: It seems that we have a technical problem. Could we

22 be assisted by one of the technicians for Judge Hanoteau's LiveNote, which

23 is not functioning.

24 Meanwhile, we'll proceed, Mr. Josse.

25 MR. JOSSE: I should just say in passing there was some messing

Page 17374

1 around with our terminals because we're about to play a CD, so I hope that

2 hasn't affected the learned Judge's terminal.

3 JUDGE ORIE: Yes, I may hope that your playing a CD doesn't

4 interfere with our systems, but let's continue and we'll see.


6 Q. You're from the Prnjavor municipality, aren't you, Mr. Vasic?

7 Well, it was a question --

8 A. Yes.

9 Q. And I want you to give the Court a brief resume of your political

10 career up until the time you became president of the municipality within

11 Prnjavor.

12 A. I was a member of the League of Communists for a simple reason;

13 nobody could become manager unless they were a member of the League of

14 Communists. I was a young, educated man and I was ambitious, and I wanted

15 to pursue my career and become manager, and therefore I had to join the

16 communist league.

17 When we had the first multi-party elections, I was offered by the

18 communist league to become president of the Executive Committee of the

19 municipality of Prnjavor if I put my name down on their list. Since I

20 felt threatened as a member of the Serb nation at that time, I actually

21 made the decision to join the SDS because the Serb people seemed to be

22 gathering around that party in order to put a stop or prevent this

23 majority dominance. That was the way we felt at the time.

24 Q. And you stood in that first multi-party election for the SDS?

25 A. Yes. I was on their list, and I was elected by an overwhelming

Page 17375












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13 English transcripts.













Page 17376

1 majority.

2 Q. And elected as what?

3 A. As the president of the General Assembly of the municipality of

4 Prnjavor.

5 Q. And in Prnjavor, was that a paid position?

6 A. As a rule, that would have been a paid position. I was the only

7 exception in all of the Republic of Bosnia and Herzegovina. Since the

8 employees of the company I had worked for feared that, after my mandate, I

9 might not go back to the company, well, they decided that throughout my

10 mandate as the president of that municipality I should continue to be on

11 the payroll of my company so that, upon my completion of my mandate, I

12 could go back. And in that case I had to work as the president of the

13 municipality on a voluntary basis but I would do it as a full-time job,

14 and that was the case throughout my mandate.

15 JUDGE ORIE: Mr. Josse, just for my better understanding of the

16 testimony, could you seek some clarification as to the reference to

17 majority dominance the witness gave on page 60, line 14. He said, "... in

18 order to put a stop or prevent this majority dominance."

19 MR. JOSSE: Yes.

20 Q. Mr. Vasic, you had said earlier in your evidence that you felt

21 threatened as a Serb. You joined the SDS because people appeared to be

22 gathering around that party "in order to put a stop or prevent this

23 majority dominance." When you talked about "majority dominance," what

24 are you referring to?

25 A. I was referring to my feeling threatened politically and the fact

Page 17377

1 that Serbs at Prnjavor felt threatened because, during the previous

2 mandate, even though the municipality of Prnjavor had 75 per cent of Serb

3 population, well, we were not represented even up to 10 per cent in

4 government, and the Communist Party always gave this rationale according

5 to which that order came from Sarajevo. Those instructions had come from

6 Sarajevo.

7 When it used to happen in the former Yugoslavia, we obviously had

8 good reason to fear what would happen if things changed afterwards and the

9 Muslims from the federation, as it is now, were in favour of this change.

10 And the people's fear is something else.

11 I'm afraid I haven't quite understood the question. What do you

12 want me to elaborate upon?

13 JUDGE ORIE: Yes. You said you wanted to put an end to a majority

14 dominance. It's not entirely clear what majority dominated who -- whom.

15 So therefore I'd like to hear from you what majority you had in mind and

16 what domination you had in mind.

17 THE WITNESS: [Interpretation] What I meant was that in case this

18 minority, this 14 per cent minority in terms of the total number of

19 inhabitants, had more than 80 per cent of positions of power, that it

20 translated into their political dominance or they had the majority in

21 terms of government, and it was not in line with the actual ethnic make-up

22 of the area. And I did mention that at the Municipal Committee back in

23 1988 -- 1989, and I ended up having enormous difficulties. I think had

24 the -- either events in the 1990s happened I might well have ended up in

25 prison simply because I made that statement. It was a reflection of the

Page 17378

1 truth.

2 In the municipality of Prnjavor, all important positions of power

3 were in the hands of Muslims and some in the hands of Croats, and Serbs

4 only had two significant positions, the two least important ones, in fact;

5 the president of the trade unions and the party secretary, and that used

6 to be considered as an important political position at the time as well.

7 JUDGE ORIE: Yes. I now better understand. It's more or less a

8 minority dominance, but in political terms they, by taking the majority of

9 the posts, that's what you wanted to put an end to.

10 Please proceed, Mr. Josse.


12 Q. Perhaps we should have dealt briefly - I know evidence has been

13 put before the Chamber before - about the ethnic make-up of the

14 municipality in the 1990 census, but it's right approximately 71 per cent

15 of the population were Serbs, 15 per cent were Muslims, and just under 4

16 per cent were of Croat ethnic origin; is that correct?

17 A. Yes. And there were about 20 ethnic minorities. So we used to

18 call ourselves the Little Europe. We have a Czech village, an Italian

19 village, and quite a few minorities, in fact.

20 Q. I want to turn immediately to the effect that the war in Croatia

21 had on your municipality, and in particular to events in the early part of

22 1992. There was a meeting, I think, on the 26th of March, 1992, that I'd

23 like you to deal with in particular.

24 A. There was this general psychosis, in fact, a fear felt by everyone

25 that the war in Croatia might spill over into Bosnia and Herzegovina.

Page 17379

1 There were quite a few events that indicated that.

2 On the 8th of September, 1991, a bridge across the river was

3 mined, and it is the river which divides Prnjavor municipality from

4 Derventa and in the direction of Serbia, and it was a very frightening

5 message for Serbia.

6 After a couple of days, the information was published according to

7 which the explosives came from the Varazdin barracks. It was unofficial

8 information. It was just information that was circulating amongst the

9 people. I don't know who started it. And on the 25th of March, 1992, in

10 a village called Sijekovac, in the vicinity of Derventa, there were some

11 inter-ethnic tensions and problems so that Biljana Plavsic and Fikret

12 Avdic came along to sort things out. And there was a representative of

13 the Croat people but I can't recall his name at the moment. I think he

14 was a member of the Presidency of the BH.

15 Upon their -- or, rather, after their departure during that time,

16 people from Slavonski Brod and some indigenous Croat population massacred

17 the population of that village and a number of families were slaughtered.

18 A number of Serb families, I mean. The family Zecevic and two other

19 people were buried on the territory of our municipality because they were

20 afraid they wouldn't be able to organise the funeral there because the

21 entire Serb population fled the village. So we organised the funerals and

22 that was an extra dose of fear, if you like, for the Serb population.

23 On the 28th of March, when returning from a meeting in Sarajevo,

24 the president of the Executive Committee of the municipality of Prnjavor,

25 Radivoje Radivojevic, was arrested as well as the secretary Slavica

Page 17380

1 Kuzmanovic, and they were arrested by paramilitaries in Johovac village in

2 the vicinity of Doboj.

3 It was only after three days that the president of the Executive

4 Committee was actually released. Quite simply, they were stopped, there

5 was a checkpoint on the road, and to make a long story short, Muslims and

6 Croats in Prnjavor were fearful because they were in the minority and they

7 feared any conflict, and Serbs were afraid because of all these events

8 taking place in the past, and of course they also had in mind everything

9 they learnt at school about the events in the First and the Second World

10 War and the sufferings and the genocide suffered by the Serbs. So there

11 was this generalised fear, but I would particularly like to point out that

12 this funeral at the Sijekovac village, it was attended by about 2.000

13 people.

14 Q. We are going to turn to that funeral almost immediately. I think

15 it would help to orientate ourselves with the documents, because if we

16 turn to tab 6, so -- there's a -- it's up to you Mr. Vasic. You can

17 either use the bundle or you can use the documents that you've brought

18 with you, because they do correspond.

19 JUDGE ORIE: Mr. Josse, you are assuming that the -- your

20 assumption was right, Mr. Josse.

21 MR. JOSSE: That's because of the efficiency of Your Honour's

22 usher, I'm bound to say. Nothing to do with me.

23 Q. In tab 6, I don't think we need in fact to put these on the ELMO

24 because they really speak for themselves. There are the various death

25 certificates, are there not, of the family that were killed in the

Page 17381

1 incident you've just described. If I'm --

2 A. Can I ask a question? I think it would be a good idea for this

3 two-minute speech to be interpreted, the one that we're going to hear.

4 Q. Don't worry, Mr. Vasic, that's the next stage. I'm trying to take

5 it in stages. I'm simply showing the death certificate briefly because I

6 don't think they take matters very much further, and then I'm going to

7 move on almost immediately to the funeral and the eulogy that you have

8 brought with you.

9 JUDGE ORIE: I take it, but I'm just seeking confirmation from the

10 interpreters, that "Prnjava o Smrti" means "death certificate"?


12 JUDGE ORIE: That has been clarified.

13 MR. TIEGER: In the interests of clarification, I note there seem

14 to be two different types of documents. I'm just wondering if the

15 distinction is relevant in some way. So there's a document to which the

16 Court just referred and there's a document --

17 MR. JOSSE: The other is a birth certificate for the people who

18 were being buried.

19 JUDGE ORIE: Could one of these latter documents be put on the

20 ELMO. Could the -- no, one of the other documents. We have dealt with

21 this. The last four of tab 6.

22 We have now in front of us a document concerning Jovan Zecevic.

23 Could the interpreters confirm that in the title of this document it

24 starts with Republika Srpska, from what I see, but then that in Cyrillic

25 there is any reference to a birth certificate. Perhaps if you could read

Page 17382

1 the part which says what kind of a document it is, because I see it's the

2 opstina of Srpski Brod, and then seems to be a line which gives the title

3 of the document.

4 THE INTERPRETER: It's a document that comes from the birth

5 register.

6 JUDGE ORIE: Yes. Well, that has been identified as well.

7 Please proceed, Mr. Josse.


9 Q. I think perhaps -- I think perhaps out of an abundance of caution,

10 the last document, which is not altogether clear, should be put on the

11 ELMO. The one in the top written corner has, transcribed on it,

12 Prodanovic Mirko.

13 JUDGE ORIE: Where do we find this, Mr. Josse, in the bundle?

14 MR. JOSSE: It's the last document in tab 6.

15 JUDGE ORIE: Not with me, as a matter of fact. The last one seems

16 to be a same document as also a kind of birth certificate in relation to a

17 certain Petar Zecevic, and the title being "Izvod iz maticna knjige." I

18 can't -- but that seems to be similar language as we just heard for birth

19 certificates, or at least birth registers.

20 MR. JOSSE: In Mr. Krajisnik's bundle he tells me, through

21 Mr. Krganovic, it's the penultimate document.

22 JUDGE ORIE: The penultimate document is about also Sijekovac --

23 no, that's not the same. It's not the same. It seems to be the -- it

24 says what is the -- oh. The penultimate gives it in all languages, so

25 there is no need for a translation. There is an international document.

Page 17383

1 Even in Dutch I can read it, which gives the date of birth of the person

2 deceased as being 18 or 16th of July, 1953 or 8. And family name is

3 Zecevic, and the place of death is Sijekovac, but not the document as we

4 have in front us now.

5 MR. JOSSE: Your Honour --

6 JUDGE ORIE: Could we proceed. Perhaps you'd sort this out.

7 MR. JOSSE: Absolutely. I was only asking the witness to refer to

8 it, again simply out of completeness. I'm actually happy to leave the

9 document out and move on to what he has been referring to, namely the CD.

10 JUDGE ORIE: Yes. If you want to reintroduce it in whatever way,

11 then we'll hear from you, but at this moment --.

12 MR. JOSSE: I'm quite happy with that, thank you.

13 Q. Now, you've referred to the CD that we're about to play,

14 Mr. Vasic. You brought it with you; is that correct?

15 A. Yes.

16 Q. Firstly, the actual CD, how did you obtain that?

17 A. This was an ad on local TV. The local TV had it on its archives

18 and I got it from the reporter who recorded it. I asked him to give it to

19 me and he made a copy for me and gave it to me.

20 Q. And as is going to be apparent, it's a short extract from the

21 funeral of the people you've just referred to and a speech by a priest.

22 Were you present at this funeral?

23 A. Yes, I was present, together with the leadership of the

24 municipality, and there were about 2.000 people there. It's very

25 difficult to give you an exact figure, but in any case there were a lot of

Page 17384

1 people. You'll see it on -- in the video clip.

2 Q. And the CD bears the date the 30th of March, 1992. Can you

3 confirm that that was the date of the funeral?

4 A. I think so. As a matter of fact, that is the date.

5 MR. JOSSE: We're going to play this extract now, Your Honour. I

6 hope the speed won't be too fast for the interpreters. The interpretation

7 is important.

8 THE INTERPRETER: The interpreters do not have the script of this

9 video and do not feel obliged to interpret.

10 MR. JOSSE: I had no -- there is no script in existence. That I

11 can confirm. If the interpreters don't feel obliged to do it, there's no

12 point playing the extract. It's all about the speech the priest makes

13 that is important.

14 JUDGE ORIE: Yes, but if we do not have any translation of the

15 speech made by the priest, then --

16 MR. JOSSE: Well, there's very little the Defence can do about it.

17 We'll --

18 JUDGE ORIE: Yes, apart from perhaps preparing in B/C/S, perhaps

19 through the assistance at least a written text in B/C/S, so that the

20 interpreters have at least a written text in front of them, because they

21 might not be able to follow unless the priest speaks extremely slow.

22 Let's first look at the video, and the interpreters are invited,

23 to the extent it can be done without serious problems, to translate into

24 English. I do understand the speech of the priest is the important part.

25 And if you feel that you can't do it, then the Defence is invited to have

Page 17385

1 this speech transcribed overnight.

2 MR. JOSSE: Yes, Your Honour. That's as far, as the Defence are

3 concerned, a perfectly acceptable compromise and I can only apologise to

4 the interpreters for the situation arising.

5 JUDGE ORIE: Yes. Let's see. Yes. We -- since it's a CD, it's

6 not video evidence but computer evidence.

7 [Videotape played]

8 THE INTERPRETER: "[Voiceover] God help us. God listen to our

9 cries. God bring some sense to our enemies so as to make them understand

10 that there is room for everybody under the sun and that if we don't want

11 to live together, we can live alongside each other. If we don't want to

12 be human beings, at least we should not be inhuman beings. Brethren and

13 sisters, we don't have the right to forgive anybody because these young

14 lives, their father Jovo, the brothers Balcic, and others who perished in

15 Sijekovac, we have been asked by them to forgive our enemies. There are

16 no Catholic priests here. Maybe there are some Catholic followers here

17 amongst the crowd. They should have all been here to experience the

18 tragedy that the entire Serbian church and the entire Serbian people are

19 experiencing.

20 "This is just the beginning of our ordeals, but we firmly believe

21 that God our Lord who has saved the Jews ..."

22 MR. JOSSE: Yes, that's the extract, Your Honour. I again thank

23 the interpreter.

24 JUDGE ORIE: Yes. I strongly join in your thanks for the

25 interpreters. Please proceed, Mr. Josse.

Page 17386

1 MR. JOSSE: Yes.

2 Q. You've begun to describe, Mr. Vasic, how Serbs were feeling after

3 this incident. How did people actually behave and react to what had

4 happened?

5 A. I just wanted to say that it is not true that only Croats and

6 Muslims were afraid. Those events instilled a lot of fear in the Serbian

7 people as well. So everybody in Prnjavor municipality was scared.

8 Q. My question is: How did you go about maintaining control of the

9 situation as president of the Municipal Assembly?

10 A. At the time, the situation was not so tense, and there was still

11 no war going on in Bosnia, and therefore, there were no major problems.

12 When we had a meeting and when decisions were made in the Municipal

13 Assembly that were to help us, for example, the support of the JNA, we did

14 not have any problems. Everybody was in favour of that because they

15 believed that the JNA was the force that could help everybody. And when

16 this decision was put on the agenda, it was voted on unanimously, and many

17 other decisions that were put on the agenda in order to prevent conflicts

18 and to restore order to Prnjavor municipality, we found it easy to make

19 such decision, to pass them, because everybody was equally afraid.

20 Q. That leads on conveniently to the issue of weapons, distribution

21 and control, in the municipality. What decisions did the Municipal

22 Assembly make about weapons?

23 A. Already at the -- at that time some people were illegally armed,

24 against the law. Everybody wanted to obtain weapons in order to protect

25 themselves in case their houses were attacked. And we received

Page 17387

1 information from various sources. For example, from the Serbian newspaper

2 Glas - in January this was published - that weapons for Muslim in Lisnja

3 and Mravica in the municipality of Prnjavor were brought from Sarajevo and

4 that Mesud Rizvanovic was arrested for that. In Banja Luka he was

5 arrested.

6 MR. TIEGER: Your Honour, it's --

7 THE WITNESS: [Interpretation] On the 27th of January, 1992 --

8 JUDGE ORIE: Mr. Tieger.

9 MR. TIEGER: It seems quite apparent to me the witness is not only

10 referring to but apparently reading from his notes. Again, I would ask

11 that that, first, be made clear that the witness or counsel seek, of

12 course, leave for that purpose, and of course we'd like an opportunity to

13 know what the document actually says.


15 Mr. Vasic, I invited you to tell us when you would feel any need

16 to consult any of your notes. And perhaps, Mr. Josse, you could assist

17 the witness in reminding him on that matter, because from here I can't see

18 it.

19 MR. JOSSE: Your Honour, absolutely. I'm in the Court's hands.

20 The witness has explained that he prepared these notes very recently in

21 relation to the testimony. They're quite extensive. We're happy to copy

22 them and provide them for the Prosecution.

23 JUDGE ORIE: That would be a good idea.

24 MR. JOSSE: Realistically, the situation has either got to be that

25 he's allowed to refer to them when he wants, or alternatively, he can't

Page 17388












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13 English transcripts.













Page 17389

1 use them, because they are relatively extensive and I think it would be

2 somewhat impractical for him to keep saying to the Chamber, "I'd like to

3 use my notes now, please."

4 JUDGE ORIE: I do understand. Would you mind to have copies made

5 of your notes? If these were my notes it would not help anyone to

6 understand what I was reading, but because it's -- has the witness

7 handwriting which is such that it can be read by others? Because

8 otherwise, it wouldn't help anybody.

9 MR. JOSSE: I think so. We were looking at one entry shortly

10 before he gave evidence, that's myself and an interpreter, and

11 the interpreter was able to.

12 JUDGE ORIE: Then with the help of the Registry, Mr. Vasic, since

13 you're supposed not to have any further contacts with the Defence, you'll

14 be invited to give these notes to someone from the Registry so they can be

15 copied and then the original will be returned to you later today.

16 So please proceed.

17 MR. JOSSE: In those circumstances, may the witness refer to the

18 notes as he pleases?


20 MR. JOSSE: Thank you.

21 Q. Mr. Vasic, you were telling us about concerns about weapons, and

22 who had them, and what the Municipal Assembly did about that. Go on,

23 please.

24 A. I referred to my note because the date is precise in my notes, the

25 27th of January. I wanted to be sure when this was published in the

Page 17390

1 newspaper. The 27th of January was the date. I can't remember all the

2 dates, I can't keep them in my memory. That's when --

3 JUDGE ORIE: I also invite you to slow down a bit because the

4 interpreters have to translate every word you say. So if you speak a

5 little bit slower, that would certainly assist. Please proceed.

6 THE WITNESS: [Interpretation] In addition to this information, the

7 public security station in Prnjavor arrested five Serbs who had sold their

8 weapons to the Muslims in Lisnja, over a hundred rifles and machine-guns.

9 Further on, on the decision of the Territorial Defence Staff, the

10 Territorial Defence weapons were distributed amongst the units of local

11 communes indiscriminately. To the unit composed of Muslims only, they

12 gave 42 rifles. The commander, Pekic, and the unit in Konjuhovci received

13 22 rifles. Its commander was Jusuf.

14 And another piece of information that we received was that old

15 hunting rifles that the population had at the time was abundant in

16 numbers. There was information about a large number of hunting rifles

17 among the people, so some measures had to be taken for these weapons to be

18 taken in order to avoid a possible conflict and a diminished level of fear

19 among the people.

20 Q. So let's deal with that specifically, if we may. An order was

21 passed in relation to hunting weapons?

22 A. To be more specific then.

23 Q. Thank you.

24 A. Yes. It was under my authority to issue an order to withdraw

25 hunting rifles. This was within the authority of the municipality. I was

Page 17391

1 the one who signed the order or the decision.

2 According to the then prevailing law of Bosnia and Herzegovina,

3 hunting rifles were to be taken from all those who had them. The command

4 of the Territorial Defence also decided that the Territorial Defence

5 weapons that had been distributed should also be withdrawn from everybody

6 across the board. And the public security station of Prnjavor issued an

7 order that all illegally weapons -- illegally obtained weapons had to be

8 surrendered.

9 In all the villages this was done peacefully, except in the

10 village of Lisnja.

11 Q. Okay. We'll come to that in a moment. What was the date of the

12 order that you're talking about, please?

13 A. You have it in documents. I don't know.

14 Q. Okay. Turn, if you would, to tab 4 of the binder. Yes. Perhaps

15 it's best if I hand -- this could be put on the ELMO, please.

16 Would you have a look at the screen, please, Mr. Vasic, and would

17 you confirm that that's the relevant order. Yes or no to begin with,

18 please.

19 A. Yes.

20 Q. Okay. Could you slowly read it out, please.

21 A. "Decision on temporary seizure of hunting rifles which are

22 privately owned.

23 "1. Hunting rifles are temporarily seized and handed over for

24 safekeeping at the public security station of Prnjavor pursuant to a list

25 that was compiled by the public security station of Prnjavor. If

Page 17392

1 necessary, military conscripts might be issued with these weapons.

2 "2. For those people who have carbine rifles, a personal

3 notification will be issued indicating the place and the time when the

4 weapons will be taken over. The public security station will issue a

5 certificate on all those weapons taken over. If the owner of the weapon

6 is absent, a member of the family who is of age can bring the weapons to

7 the public security station.

8 "3. The owners of hunting rifles who do not respond to the call

9 to hand over the weapons at the given time and place will be forcibly

10 disarmed by the public security station and they will be deprived of the

11 right to possess hunting rifles.

12 "4. This decision will become valid on the date of its issuance,

13 and the public security station of Prnjavor will look after its

14 implementation.

15 "15 May 1992," and my signature.

16 Q. You had begun to tell us that this order was followed throughout

17 the municipality save in one place; is that right?

18 A. Yes.

19 Q. And the place was Lisnja; is that right?

20 A. Yes. Yes.

21 Q. Now, I think you should tell the Chamber a little bit about

22 Lisnja. It's right that it was the largest Muslim village in the

23 municipality?

24 A. Yes. This is the largest Muslim village in the Prnjavor

25 municipality, and this is where the SDA was most active in the period

Page 17393

1 following up to the war.

2 Q. And so --

3 A. And if you want me to say something more about Lisnja, since

4 you've asked me, I would like to say that the Territorial Defence weapons

5 were not returned there. The president of the village, Ramo Seperovic,

6 two members of the Executive Board of the municipality of Prnjavor from

7 the SDA party, the president of the Islamic religious community, Sakib

8 Curan, tried to talk to the people and persuade them to return the

9 weapons.

10 Some 20 rifles were brought to the culture hall in the village.

11 However, there was an extremist group there who had obtained weapons in

12 other ways, broke into the culture hall and took everything away. So that

13 it was inevitable for the forcible seizure of weapons to follow. The

14 order was given to the public security station from their superiors, and

15 the Territorial Defence also participated in that operation because they

16 also wanted to reclaim their own weapons that had not been returned to

17 them.

18 At the end of this action, one could see that there was a large

19 number of weapons present there. A lot of trenches were found, and one

20 could tell that people were preparing for a possible armed conflict. As a

21 result of that, there were many convictions that you have amongst your

22 documentation.

23 Q. Just pause there, Mr. Vasic, because you can help us in a number

24 of regards.

25 JUDGE ORIE: Perhaps first, Judge Hanoteau has a question for the

Page 17394

1 witness.

2 JUDGE HANOTEAU: [Interpretation] Yes. It is rather -- it is a

3 clarification rather than a question as such.

4 With regard to this decision on weapons, I don't quite understand

5 the difference, the distinction that was made between hunting rifles and

6 other types of rifles. As to the hunting rifles, the reference is to the

7 fact that they would be temporarily taken and had to be taken to the

8 public security station. But as to all the other rifles, probably combat

9 weapons, it is being said that they will only be taken following a

10 personal notification that will have been sent to the persons in question

11 by the public security station.

12 Now, why is there distinction? Why this difference of treatment

13 of two different types of weapons?

14 THE WITNESS: [Interpretation] Carbines are the type of weapons

15 that are used by the military. This is more dangerous weapons that is

16 used by the army. And also ammunition is being taken over, as you can

17 tell by item 2, whereas hunting rifles are the type of weapons for which

18 ammunition is made by the owners. The gunpowder is purchased in a special

19 shop, and the casings are filled, and -- I don't know what else to call

20 this. This is a special mould which is filled by gunpowder. Carbines are

21 more dangerous, bigger weapons that exist in the military and are used by

22 the troops. And the fact that there is a distinction made here is

23 accounted for by the fact that these two types of weapons are accounted

24 for in different places in the public security station. That's why this

25 distinction was made.

Page 17395

1 All the decisions that I signed were prepared for me by legal

2 experts who knew the law. I myself am an economist, and I cannot be sure

3 why the distinction was made, but I know that we're talking about two

4 different types of weapons here.

5 JUDGE ORIE: I would have one additional questions as well. Was

6 this decision spontaneously adopted in Prnjavor or were you acting on any

7 other decision or any other instructions by whomever?

8 THE WITNESS: [Interpretation] I can't remember whether this was

9 based on the estimates of the political and security situation in Prnjavor

10 or whether we had received an order from our superiors. I believe that

11 the decision concerning the hunting rifles were made by ourselves pursuant

12 to an instruction issued by the leadership of the Autonomous Region of

13 Krajina to whom we communicated at the time because we did not have any

14 communication with the Republican leadership. And the Territorial Defence

15 had its own line of command, and they only have an office in Prnjavor, and

16 they were not subordinated to the municipal authorities. So I believe

17 that they issued their order pursuant to the order that was passed down to

18 them.

19 I believe that in the preamble of this decision you can see how

20 this decision was made. I can't remember at the moment.

21 JUDGE ORIE: It's not on our screen. Perhaps you could move the

22 document a little bit so that we can see the --

23 THE WITNESS: [Interpretation] Yes, if it can be moved a little,

24 I'm sure you'll see it.

25 MR. JOSSE: Your Honour and the witness were saying exactly the

Page 17396

1 same thing at the same time.

2 JUDGE ORIE: Yes. Could we -- could we move it a little bit down,

3 the document, so we can see the -- no? A little bit up, perhaps I should

4 say. Yes.

5 Could you please read the first part, starting from 38.

6 THE WITNESS: [Interpretation] "Pursuant to the decision of the

7 government of the AR Krajina, number 01-1/92, dated 4th May 1992, item 5.

8 And in keeping with the assessment of the political and security situation

9 in the territory of the municipality of Prnjavor, as well as in keeping

10 with the information that illegally obtained weapons had not been returned

11 to the Municipal Staff of the Territorial Defence or to the public

12 security station, the Crisis Staff of the municipality of Prnjavor hereby

13 issues the following decision ..."

14 So as you can see here, we quoted the decision of the government

15 and our own information.

16 JUDGE ORIE: Please proceed, Mr. Josse. Well, it's quarter to

17 two. It was not my intention to claim the last question of this morning,

18 but it is a quarter to two. Would this be a suitable moment?

19 MR. JOSSE: It would, Your Honour. I can tell everyone that we're

20 going on to tab 7, and the various photographs there are matters that the

21 witness has just referred to. So I'm going to invite him to take us

22 through those tomorrow morning, with Your Honour's leave.

23 JUDGE ORIE: Yes. One other matter. The -- it seems that the --

24 that the CD with the images of the funeral were not only translated but

25 translated up to a level that the speed of the speech of the priest was

Page 17397

1 not such that it created major problems. I see this confirmed by the

2 interpreters. So under those circumstances, Mr. Tieger, unless we have

3 now text of the speech in the record, do we need still it to be

4 transcribed and then having translated again also in view of the content

5 of the speech?

6 MR. TIEGER: No, Your Honour. I understand, based on the

7 information the Court was able to get visually from the interpreters, that

8 that would not be necessary.

9 JUDGE ORIE: Then we'll leave it as it is. There's no need to

10 transcribe it.

11 MR. JOSSE: I'm very grateful for that. Mr. Tieger was very

12 helpful when we talked yesterday about translation in general. It's a

13 matter that I may wish to return to with the Chamber because clearly we

14 have to consider which of these documents should be translated officially,

15 because there are an awful lot here, and some of them are, frankly,

16 repetitive. So perhaps we can return to that subject later and I'll

17 perhaps talk to my learned friends over the adjournment on that matter.

18 JUDGE ORIE: Yes, and sometimes we can reach a very practical

19 solution, such as birth certificates, death certificates. If there is no

20 disagreement between the parties that the one document is a birth

21 certificate, the other one is a death certificate, then I think we can

22 find our way through it and we might exceptionally exclude them from the

23 general rule that no untranslated documents should be entered into

24 evidence.

25 Mr. Vasic, we'll conclude for the day. We'd like to see you back

Page 17398

1 tomorrow morning, 9.00. You should not speak, and I instruct you not to

2 speak with anyone about the testimony that you have given until now and

3 you're still about to give in the days to come. And I also, since you

4 agreed with that, I invite you to give your notes to a representative of

5 the Registrar so that they can be copied, and the original will be

6 returned to you and then the copies will be made available.

7 Mr. Josse, I take it that you would like to have one as well.

8 MR. JOSSE: Yes, thank you. That's very kind.

9 JUDGE ORIE: To the parties. And the Chamber at the moment is not

10 interested to receive a copy of it. At this moment it doesn't seem

11 relevant for us.

12 We will adjourn until tomorrow morning 9.00, same courtroom.

13 --- Whereupon the hearing adjourned at 1.48 p.m.,

14 to be reconvened on Tuesday, the 11th day

15 of October, 2005, at 9.00 a.m.