Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4325

1 Tuesday, 4 July 2000

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.43 a.m.

5 JUDGE MUMBA: Will the registrar please call the case.

6 THE REGISTRAR: [Interpretation] Case number IT-96-23-T,

7 IT-96-23/1-T, the Prosecutor versus Dragoljub Kunarac, Radomir Kovac, and

8 Zoran Vukovic.

9 JUDGE MUMBA: Yes. Good morning. We're opening the Defence this

10 morning, and may I hear from Mr. Prodanovic, please. You can go ahead.

11 MR. PRODANOVIC: [Interpretation] Your Honour, my colleague

12 Ms. Pilipovic will be the first to speak this morning.

13 JUDGE MUMBA: Thank you. Ms. Pilipovic, please.

14 MS. PILIPOVIC: [Interpretation] Good morning, Your Honours. The

15 Defence will begin its introductory statement. The interpreters have

16 copies in the original language, so I shall start.

17 Your Honours, at this point in time the Defence of the accused

18 Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic, in keeping with Rule

19 84 of the Rules of Procedure and Evidence, is starting its case. On

20 behalf of my colleagues and in my own name, I have the honour of

21 presenting to the Trial Chamber the Defence views on all questions which

22 we deem important so that in this case a judgement would be passed which

23 would be based on established facts, which will make it possible for the

24 Trial Chamber to decide beyond all reasonable doubt on the innocence of

25 the accused or on the guilt of the accused who expect a fair and just

Page 4326

1 judgement from you. Thank you.

2 In order to avoid repetition in our statements, the Defence teams

3 agreed, as we have been doing so far as well, that in relation to

4 questions relevant to general allegations from the indictment and as

5 regards legal questions to which we wish to draw your attention, we

6 present our concerted joint views. Therefore, I shall present our joint

7 and concerted views with regard to these questions and then I shall draw

8 your attention to questions related to the accused Kunarac, while

9 Mr. Kolesar and Mr. Jovanovic will also speak about some of our joint

10 views, notably questions related to the accused Mr. Kovac that is, and the

11 accused Mr. Vukovic.

12 The Defence is already in a position now, even without a detailed

13 analysis of proceedings carried out to date, to present their own views

14 regarding the Prosecution case. So that will be referred to as well.

15 The Prosecution and Defence have agreed on quite a few admitted

16 facts, and the Chamber has been informed of this. Regardless of the

17 admitted facts, the view and assessment of these within the context of

18 overall developments on the territory of the municipality of Foca in the

19 relevant period of time can certainly be interpreted from different points

20 of view.

21 Because of this possibility of different interpretations of

22 certain facts -- the Defence has seen this from some of the positions

23 taken by the Prosecution in this case -- the Defence believes that it is

24 indispensable to present briefly the situation and events that preceded

25 the armed conflict on the territory of the municipality of Foca.

Page 4327

1 A brief survey of historical facts. The past of

2 Bosnia-Herzegovina and, therefore, of Foca itself, is very complex, and

3 the Defence has, through documents that were provided by experts in their

4 findings, the Defence wishes to point to some important facts that will

5 throw more light on this area from 1363 when, for the first time,

6 historical documents mention a settlement in the territory of present-day

7 Foca, which was established when the Slavs, the Serbs, came to this area.

8 JUDGE HUNT: Ms. Pilipovic, I thought it had been made abundantly

9 clear we are not here to consider historical facts. We are here to

10 consider whether there were war crimes committed during the course of the

11 armed conflict.

12 Now, you must have seen the decision which was delivered yesterday

13 which repeated, merely repeated, what has been said throughout the whole

14 of the Prosecution case. We are not concerned with what happened in the

15 14th Century.

16 Now, could you proceed to deal with the facts with which we are

17 concerned, and that is what happened during the armed conflict.

18 MS. PILIPOVIC: [Interpretation] Your Honour, I absolutely accept

19 your point of view; however, the Defence wished very briefly through this

20 introductory statement to help the Trial Chamber and to cast more light on

21 the situation in the territory of the municipality of Foca and the town of

22 Foca. Our presentation is a joint one.

23 JUDGE HUNT: That does not include the 14th century history. Now,

24 do you understand that? You are entitled to open only what is admissible

25 in evidence. You are not entitled during the course of an opening address

Page 4328

1 to tell us things which you will not be allowed to prove in evidence.

2 MS. PILIPOVIC: [Interpretation] Your Honour, since this opening

3 statement is a joint one, I would kindly ask the Trial Chamber to give me

4 a few minutes to consult with my colleagues. At my initiative, I cannot

5 deviate from our joint opening statement. Could I please have a minute to

6 consult with my colleagues to see where I could continue with the opening

7 statement?

8 JUDGE MUMBA: Yes, please, you can consult.

9 MS. PILIPOVIC: [Interpretation] Thank you.

10 [Defence counsel confer]

11 MS. PILIPOVIC: Thank you, Your Honour. I shall continue from

12 page 5, the establishment of political parties in the territory of Foca.

13 As conditions were created to introduce a multiparty system in the

14 former Yugoslavia, and these conditions came about due to social changes

15 that were due to the changes that took place in Eastern Europe after the

16 Soviet Union disintegrated, the early nineties, many political parties

17 were created.

18 In the territory of the former Bosnia-Herzegovina, several

19 political parties were created as well. The first allegedly democratic

20 party was established in Sarajevo in the month of May 1990 by Mr. Alija

21 Izetbegovic. It was named the "Party of Democratic Action," and according

22 to the speeches made by the leaders of that party, it was presented in the

23 public as a party protecting the interests of Muslims.

24 After the Party of Democratic Action was established, a party

25 called the "Serb Democratic Party" was established as well. It was mostly

Page 4329

1 Serbs who joined this party. And also a party called the "Croat

2 Democratic Union" was established, including most of the Croats in the

3 former Bosnia-Herzegovina.

4 In addition to the mentioned three parties which became the

5 leading parties in the political life of Bosnia and Herzegovina, there

6 were also some smaller parties such as, for example, the "Party of

7 Reformists" whose activity at that time practically lost all political

8 weight due to the dominant role of the SDA, the SDS, and the HDZ.

9 In the month of August 1990, the Party of Democratic Action

10 organised a rally in Foca which was not conceived, as the evidence will

11 show, only as a founding meeting for the local organisation of the SDA for

12 Foca, but simply as a show of force of this party because the rally was

13 attended by the top leaders of the party and members and supporters of the

14 party from the territory of the former Yugoslavia. So as the organisers

15 of the rally emphasised themselves, the rally was attended between 150.000

16 to 200.000 persons. At the mentioned rally, all who spoke did so as

17 Muslims, clearly underlining that affiliation of theirs, not mentioning at

18 all the Bosniak people, as was said later.

19 We wish to remind the Chamber of the part of the speech made by

20 Semse Tankovica which was introduced on a video cassette, D2.

21 While this rally was held, there were only green flags with the

22 star and crescent, the traditional insignia of the Muslims, that were

23 shown; and it became quite clear that this party was advocating

24 nationalist ideas that were contained in the Islamic declaration of Mr.

25 Alija Izetbegovic because there was not a single flag of the state, a coat

Page 4330

1 of arms, or anything like that.

2 The Defence would kindly ask the technical service to play tape

3 number 5. On that tape, we are going to see in one second --

4 JUDGE HUNT: We are not here to determine who was at fault in

5 starting the armed conflict, and there has been a ruling made that the

6 television videos are not admissible. It has also been said, again, that

7 you are not entitled to open material which is not admissible in evidence.

8 MS. PILIPOVIC: [Interpretation] Your Honour, before today's

9 hearing, the Defence was familiarised with the decision of the Trial

10 Chamber but only five minutes before we entered the courtroom. Had the

11 Defence known about this position of the Trial Chamber, we certainly would

12 not have proposed to view videotapes. However, we received this decision

13 only five minutes before we started our opening statement. However, if

14 the Trial Chamber abides by this --

15 JUDGE HUNT: That is a very unfortunate fact, and I don't know

16 where the fault lay, because the decision was filed yesterday afternoon

17 with specific instructions that the Defence be made aware of it for this

18 very reason. I understand your problem, but, nevertheless, you now know

19 what we think about what is and what is not relevant of the material which

20 was put forward. So would you please comply with the ruling.

21 Now, if you need time in order to edit your opening, I'm sure that

22 it would be granted, but we are not here to hear material which is

23 irrelevant to the issues which we have to determine.

24 MS. PILIPOVIC: [Interpretation] Our evidence will show that what

25 is predominant in the programme of the SDA party that was established by

Page 4331

1 Mr. Izetbegovic on the basis of his Islamic declaration is the dominant

2 idea of creating a Muslim state, a state in which people would live by the

3 Koran. These ideas brought about a conflict in an inter-party sense, and

4 they were the case, as our evidence will prove, of the creation of a rift

5 and even of an armed conflict in the territory of the municipality of Foca

6 during which many Serb civilians were killed as well.

7 Serb villages and houses and towns were burned down, which shows

8 that during the armed conflict there were events in which Serbs and

9 Muslims suffered identically. It is not, as the Prosecutor put it, that

10 it was only the Muslims who had suffered under the policy of creating

11 Greater Serbia which was allegedly implemented by the SDS through ethnic

12 cleansing. More will be said about this later.

13 I'm saying this for the interpreters: Now I'm going to move on to

14 page 8, the arming of Muslims in Bosnia-Herzegovina.

15 Considerably before the war, in keeping with the ideas and

16 objectives proclaimed in the Islamic declaration on the takeover of power

17 and the establishment of a Muslim state, a Patriotic League was

18 established whose members were exclusively Muslims, most of them

19 intellectuals, who had a clear aim of preparing the armament of Muslims

20 thus carrying out preparations for starting a holy war, jihad.

21 The top leaders of the Party of Democratic Action were in charge

22 of the procurement of weapons, as will be shown through the statement of

23 Senaid Memica, which clearly shows that there was a plan whose

24 implementation was well organised.

25 Weapons were procured from foreign countries and brought in

Page 4332

1 through the mediation of the former Yugoslav republics and also by being

2 seized from the barracks of the former JNA.

3 Our evidence will show that considerably before the conflict broke

4 out, the Muslims were armed by modern weapons and in large numbers at

5 that. So the claims made by Witness FWS-33 and Safeta Abdic, who spoke

6 about how the Muslims were armed and how the Serbs were armed, are false.

7 These incompetent witnesses cannot be admitted as a basis for drawing the

8 conclusion that the Muslims were unarmed and ill-equipped. On the

9 contrary; Foca was a centre of procurement and distribution of weapons for

10 the entire territory of Bosnia-Herzegovina.

11 The importance of the Focatrans case for the ethnic stratification

12 in the municipality of Foca. In the early 1990s, the economic and social

13 crisis in the territory of the former Yugoslavia was increasingly

14 deepening. Many successful companies were facing difficulties in their

15 operations. In Foca, one of the major companies, Focatrans, which was

16 involved in the transport of passengers and goods, also faced a crisis.

17 Two hundred ninety-six employees, out of which 166 Muslims and 130 Serbs,

18 went on strike asking for an increase in their salaries and for the

19 general manager to be replaced. A strike committee was established, and

20 it included four Muslims and four Serbs respectively. The workers put

21 forth only economic demands, without putting forth any political demands.

22 The evidence of the Defence will show that the members of the SDA

23 local organisation in Foca exercised their influence over the Muslims, the

24 workers of Focatrans, and they wanted them to break up with the Serbs who

25 were on strike.

Page 4333

1 The case of Focatrans assumed the proportions of a large-scale

2 affair, and it is not only the municipality but also the top authorities

3 of Bosnia and Herzegovina and even courts of law took part in the

4 resolution of this problem. These divisions, as further evidence will

5 show, were part of an overall plan of the SDA on armament, because the

6 vehicles of Focatrans were used for transporting weapons, and that is why

7 Focatrans was supposed to be turned into a purely Muslim company.

8 Already at the time of these problems related to Focatrans, within

9 Focatrans an armed unit had been formed with mortars, in the words of

10 Halid Cengic, about which the Defence has already presented evidence by

11 tendering his interview, Defence Exhibit D12. This armed detachment

12 played an important role at the beginning of the armed conflict in Foca.

13 The beginning of the conflict in Bosnia-Herzegovina. Already in

14 his famous Islamic declaration, Mr. Alija Izetbegovic wrote the following,

15 I quote:

16 "The first most important conclusion is certainly the one stating

17 that Islam and non-Islamic systems do not mix. There is no peace or

18 co-existence between the Islamic faith and non-Islamic social and

19 political institutions.

20 "Giving itself the right to organise its own world, Islam clearly

21 precludes the right and possibility of action of any other foreign

22 ideology and its territory. The Islamic order can only be established in

23 those countries where the Muslims are a majority of the population."

24 JUDGE MUMBA: Ms. Pilipovic, please stick to the guidance of the

25 Trial Chamber. Again, these details are not relevant either. You have

Page 4334

1 been given sufficient guidance on what is relevant and what isn't. So

2 please do bear in mind the guidance of the Chamber.

3 MS. PILIPOVIC: [Interpretation] Yes, Your Honour. I shall -- as

4 far as this part of my statement concerning the outbreak of the conflict

5 in Bosnia-Herzegovina is concerned, I'm going to skip it, and I shall

6 continue from page 13, the conflict in Foca.

7 The Defence, in brief response to the Prosecutor's opening

8 statement as to how the conflict broke out and also having heard all the

9 witnesses so far, the Defence tried to present its own point of view.

10 After the 6th of April, 1992 and after general mobilisation was

11 concerned, the Serbs in all parts of the former Bosnia-Herzegovina

12 realised that the policy of Mr. Izetbegovic brought into question their

13 own national interest. So there was self-organisation en masse, and

14 attempts were made to resist the implementation of this policy.

15 The events in Foca, viewed in a complex manner and through the

16 evidence that the Defence will show, will clearly demonstrate that first

17 it was houses of Serbs in Foca that were burned, and that barricades were

18 put on both sides, and that the conflict broke out spontaneously. Our

19 evidence will prove that it was not the Serbs who attacked Foca, and that

20 one cannot speak about an attack on Foca but only about a mutual conflict

21 between Serbs and Muslims who live in the same town.

22 On the 8th of April, 1992, the first fighting in town began as

23 well. The Muslims held their positions around the health centre. They

24 also placed roadblocks around the gasoline station and in Zubovicima and

25 Tabacima, and they tried to take over the local radio station as well.

Page 4335

1 Through a coordinated actions, the Muslims, since they had

2 well-organised region units in the region of Tjentiste, they gave support

3 and tried during the next few days to take over the town itself, including

4 its centre, but they did not succeed in this effort. That is how the

5 armed conflict started that was waged between the Muslims, who were around

6 the town at Sistet, Sukovac, and Kamen, while the Serbs were spontaneously

7 organised in the village of Prevrac where they blocked the weapons depot

8 of the territorial defence in Livade, keeping outside the reach of Muslims

9 the hill of Dub as well, which was a strategically important point.

10 The Prosecutor makes an unfounded claim that the Muslims were not

11 well armed and that they had been attacked. That this is not true is

12 proved by the fact that during the fighting, they used sniper nests that

13 were placed on Sahat Kuli, the mosque near the bus station and the mosque

14 by Han, and that they also received mortar support, as our evidence will

15 show.

16 Thanks to self-organised arms groups of Serbs from Zavajit,

17 Celebici, Mestrevac, and Miljevina, the Muslim forces were dispersed in

18 Donje Polje, Sist, and Sukovac. After the fighting ceased in the

19 metropolitan area of Foca on the 17th of April, 1992, the local radio said

20 that the inhabitants of Foca could return and continue to live peacefully

21 by the Serbs who were returning en masse, and Muslims also returned and

22 continued to live normally and without any problems in town.

23 Later the armed conflict continued between fully organised

24 military forces which constitute the army of Bosnia-Herzegovina and the

25 army of Republika Srpska, and the fighting mostly took place outside the

Page 4336

1 territory of the town of Foca itself. In addition to this, we wish to

2 point out that the Prosecutor did not prove the existence of an attack

3 against Foca and the surrounding villages because simply there had been no

4 attack. The conflict broke out in the area of the town of Foca itself, as

5 we already mentioned, by the first burning of Serb houses and the first

6 killing of Serbs in Foca.

7 On the basis of all of this, one may clearly conclude that the

8 conflict took place on religious grounds between Muslims and Orthodox

9 Christians, and that no mention can be made of the organisation of Serb

10 forces because until the armed -- the weapons depots of the territorial

11 defence were taken over they were unarmed, as opposed to the Muslims who

12 already at that time were very well armed since Foca was a centre of

13 armament as our evidence will show.

14 Personal responsibility. The Defence -- the personal

15 responsibility of Mr. Kunarac, that is. The Defence has agreed with the

16 Prosecutor on admitted facts, that is, that the accused Kunarac could be

17 responsible for actions which may be proven in keeping with the provisions

18 of Article 7(1) of the Statute. The Defence therefore at this point in

19 time is not going to analyse the Prosecutor's evidence which aims to prove

20 the guilt of the accused Kunarac according to this provision of the

21 Statute, although you, as the Trial Chamber as well, I hope, see it quite

22 clearly that the evidence is actually reduced to that presented by the

23 allegedly harmed [sic] parties, and it is so contradictory, vague, and

24 unclear, that upon it, a verdict of guilty cannot be based, one that

25 would, beyond any reasonable doubt, establish the guilt of the accused

Page 4337

1 Kunarac. The Defence will, of course, speak about this in its closing

2 argument towards the end of this case.

3 Therefore the Defence at this point in time believe that the guilt

4 of the accused Kunarac can only be established on the basis of his own

5 presentation of events and within his own admissions, vis-à-vis Witness

6 DB. And in this case, one may well foundedly put the question of his

7 responsibility before this Court, and also one can look into whether this

8 act can be considered an incrimination of grave violation of international

9 humanitarian law, and within this context, individual responsibility has

10 to be looked into. However, my colleagues are going to speak about this,

11 and also the Defence of the accused Kunarac. We are not going to

12 elaborate on these points any more. We do not want to enter any

13 repetition because the Defence now, as so far, with regard to general

14 allegations, has a common view.

15 Command responsibility. The existence of command responsibility

16 is one of the most contested issues in proceedings before this Tribunal,

17 in the submission of the Defence counsel of the accused Kunarac, who is

18 the only accused to be indicted under Article 7(3) of the Statute, among

19 other articles, regardless of the fact that this issue has been

20 extensively debated both in theory and in practice.

21 The Defence of the accused Kunarac submits that legal concepts,

22 according to which the question of command responsibility is dealt with by

23 establishing the facts as regards/subordinate relation cannot be accepted

24 as the exclusive method of establishing this relationship. This is so

25 because such an approach contains the danger of possible punishment of

Page 4338

1 those soldiers who, in the actual hierarchy of command, had, according to

2 the existing military rules, practically no command authority. Therefore,

3 this question cannot be considered only on the basis of a

4 subordinate/superior relation, but at the same time, it must be seen in

5 the context of the superior authority and the position and authority of

6 the superior in the chain of command according to the rules established in

7 military doctrine and in practice.

8 Therefore, the Defence of Kunarac will point only to the

9 foundations of its understanding of the possible responsibility of

10 Kunarac, and the provisions of this article of the Statute. And to avoid

11 any misunderstanding, we shall say at once that we maintain that the

12 accused Kunarac cannot be held responsible under this rule.

13 Performing his regulatory military service, Mr. Kunarac acquired

14 the rank of lance corporal. This is the lowest military rank which is not

15 found in the system of the hierarchy of command responsibility.

16 Mr. Kunarac's military training was as an explosives expert, which means

17 that he was trained to lay individual mines and minefields, but also to

18 deactivate individual explosive obstacles, mines, all kinds of minefields,

19 and booby traps. Therefore, he was trained to clear the terrain of

20 explosive devices. He was also trained, as we will show in our evidence

21 and by the testimony of our military expert, he was trained to perform the

22 most complex reconnaissance tasks.

23 With this kind of military training, Mr. Kunarac volunteered to

24 join a military unit which was just being created, because on the

25 territory of Foca, as has already been said, before the outbreak of the

Page 4339

1 conflict there was not a single military unit of the former JNA.

2 After the conflict broke out, the Serbs organised themselves and a

3 military unit was gradually formed.

4 Immediately after he joined the unit on the 6th of June, 1992, he

5 was given tasks in accordance with his military training. However, it

6 must be mentioned that he was immediately given very complex tasks both in

7 the reconnaissance sector and in the sector of deactivating mines and

8 explosive devices and minefields which the Muslim forces laid in large

9 numbers and which caused many casualties amongst civilians and soldiers.

10 Because he was very well trained and was familiar with the

11 terrain, it was quite normal that the command should appoint him the

12 leader of the group or the Komandir, which means the leader of a

13 reconnaissance group, as he himself said.

14 To avoid any misunderstanding, I must mention that the word

15 "Komandir," leader of the company level, should not be associated with a

16 command role. The position of leader of a reconnaissance group cannot

17 imply any responsibility either in the military or in the legal sense on

18 the part of Mr. Kunarac under Article 7(3) of the Statute.

19 The position of leader of a reconnaissance group is a functional

20 and not a command duty. To convince you of this, we will enable you to

21 hear very authoritative explanations by the Defence military expert who

22 will explain to you all the facts about the real hierarchy and chain of

23 command. For now, we just wish to draw the Trial Chamber's attention to

24 the later testimony of our military expert. And his testimony will be

25 very useful, especially in the part where he will explain the purpose of a

Page 4340

1 reconnaissance group not as per establishment but as according to its

2 function.

3 Therefore, a reconnaissance group is not a military unit in which

4 there is a hierarchy of command. A reconnaissance group is a group which

5 is established ad hoc to perform a certain task which is needed at that

6 moment.

7 Since Mr. Kunarac was the best trained of the men, it was normal

8 that the command entrusted to him the performance of such complex tasks

9 and that he was the leader of the reconnaissance group on every occasion,

10 choosing the men who would go with him to carry out the task.

11 While performing the tasks, the accused Kunarac determined on the

12 ground the task of every member of the group so that the group could

13 function without hindrance. So it is quite clear that this is a

14 functional command duty and not command as such.

15 The task was given by the command, and Mr. Kunarac and his group

16 had to perform the task, but the immediate job of every particular member

17 of the group in the field was determined by Mr. Kunarac. When the task

18 was over and a report submitted to the command, the role of Mr. Kunarac

19 was ended. Mr. Kunarac, on his return after performing the task, had no

20 control, nor did he have any obligation towards the members of the group

21 he led during the performance of the task.

22 In the free time of other soldiers who were, from time to time,

23 members of the reconnaissance group, Mr. Kunarac had no control over them

24 or their behaviour. Not only did he have no establishment authority over

25 them after the completion of the task, because soldiers were under the

Page 4341

1 constant command of a superior officer within the framework of the unit,

2 but he also had no control or duty to control them factually.

3 When a reconnaissance group is not performing a certain task, the

4 soldiers are no longer under any kind of obligation toward Kunarac. The

5 soldiers could leave the unit with the approval of the command but not

6 with the approval of Mr. Kunarac. Mr. Kunarac could not influence their

7 behaviour in any way or to control them, nor did he have an obligation to

8 do so after the task was completed, as the Prosecution stated

9 erroneously. And the witnesses of the Prosecution were not competent to

10 express an opinion on this.

11 As the Defence will show, the accused Dragoljub Kunarac was only a

12 soldier who, within the framework of his training for military service in

13 peace and war, was only given certain tasks by a superior command and with

14 a group of soldiers whom he led into action, he developed those tasks and

15 assigned certain jobs on the field, leading the operation, which means

16 that in no way after the end of the task did he command any unit or even

17 the group that was mentioned.

18 This opinion of the Defence does not cast doubt and is not cast

19 into doubt either by the testimony of Mr. Nogo or Mr. Alic, because we do

20 not consider them to be experts, nor do we consider that their military

21 experience and training is sufficient for their opinion to be considered

22 an expert opinion, because by accepting their exception, even an ordinary

23 soldier could be put in a situation to be held responsible according to

24 command responsibility.

25 From everything that has been said so far, it is clear that the

Page 4342

1 Defence submits that Mr. Kunarac had no command authority toward any

2 member of the military unit to which he himself belonged as a soldier,

3 and, therefore, the conditions required for responsibility under

4 Article 7(3) have not been met. Mr. Kunarac had no de jure or de facto

5 control of the other soldiers who were his equals in the military

6 hierarchy, and did he not have the authority to punish them in any way.

7 Since the Defence considers that the Prosecutor has not proved the

8 superior position of Mr. Kunarac over anybody else in the military, it is

9 quite clear that the Defence submits that there is no responsibility under

10 any of the counts of the indictment with which Kunarac is charged for

11 committing criminal offences on the basis of command responsibility.

12 From the testimony of Prosecution witnesses, it follows that the

13 witnesses did not tell anyone what was happening to them, and they did not

14 even discuss it among themselves. So even if we can believe that what

15 they allege actually happened to them, Mr. Kunarac had no knowledge that

16 rapes were being committed, nor did he have reason to know, and since he

17 did not know, he could not have done anything to prevent this or to punish

18 the perpetrators.

19 The fact that he came to the Partizan hall to take girls outside

20 so that they could meet the journalist or some of the soldiers is not an

21 action which he performed on the basis of superior authority. It was

22 simply his wish to protect himself as a human being who did not take girls

23 outside to satisfy sexual needs, either his own or those of others,

24 because he had heard of those rumours, and he had no authority to

25 investigate these cases or to punish. Therefore, this element, which is

Page 4343

1 one of the three that are required for someone to be held responsible

2 under Article 7(3) of the Statute is lacking.

3 These elements are the following: The existence of a

4 superior/subordinate relationship; the superior knew or had reason to know

5 that a criminal act was about to be committed or had been committed; the

6 superior failed to take the necessary and reasonable measures to present

7 such acts or to punish the perpetrators thereof.

8 If only one of these three elements which are required for

9 responsibility to exist is lacking, this excludes the application of

10 Article 7(3) of the Statute.

11 As the Defence submits, the Prosecutor, in the case of

12 Mr. Kunarac, has not proved the existence of military superiority of

13 Mr. Dragoljub Kunarac over anyone, nor has the Prosecution proved the

14 accused Kunarac knew or had reason to know that a criminal offence was

15 about to be or had been committed. The third element has also not been

16 proved, and that is the failure to take the necessary and reasonable

17 measures to prevent such acts or to punish the perpetrators thereof.

18 Therefore, the Defence concludes that Mr. Kunarac is not responsible under

19 any of the counts of the indictment.

20 The individual criminal responsibility of Dragoljub Kunarac. With

21 regard to the individual criminal responsibility of Dragoljub Kunarac, who

22 is charged with the crimes of rape, enslavement, outrages upon personal

23 dignity, torture, plunder of private property, in addition to the joint

24 submission of the Defence that the Prosecutor has not proved the criminal

25 act of torture against any of the accused, and, therefore, against

Page 4344

1 Kunarac, the Defence of the accused Dragoljub Kunarac submits that apart

2 from what the accused admitted in his testimony, it has not been proved

3 that he committed a criminal act of rape with which he's charged in the

4 amended indictment, regardless of whether his actions are described at

5 falling under Article 5(G) or Article 3 of the Statute.

6 As the Defence will show, in the period from the 13th of July to

7 the 3rd of August, 1992, Mr. Kunarac was not in Foca at all, so that all

8 the actions with which he is charged in that period, you, as a Trial

9 Chamber, will not be able to consider as actions whereby he committed the

10 crime because the Defence will show that Dragoljub Kunarac's alibi can be

11 proved.

12 In the submission of the Defence, the Prosecution has not shown

13 the existence of the element of the criminal act of enslavement in the

14 actions of the accused Kunarac for the simple reason that the Prosecution

15 has not proved any of the elements of enslavement as a criminal act and

16 especially not in relation to Dragoljub Kunarac, for whom there is not a

17 single piece of evidence that he transported or detained a person so that

18 that person could be detained for the performance of sexual acts.

19 In accordance with the above, the Defence of the accused Dragoljub

20 Kunarac, concluding its part of the opening statement, considers that

21 neither the individual responsibility of the accused Dragoljub Kunarac for

22 the criminal acts of torture, enslavement has been proved, and this will

23 be -- this will be explained in detail in the concluding argument,

24 especially with relation to the count of rape.

25 Thank you.

Page 4345

1 JUDGE MUMBA: Mr. Kolesar.

2 MR. KOLESAR: [Interpretation] Your Honours, now that I'm taking

3 the floor as Defence counsel of the accused Dragomir Kovac to present in

4 brief the submissions of the Defence on the questions we have discussed so

5 far after the presentation of the Prosecution case, I wish to tell the

6 Trial Chamber that the Defence counsel have agreed that we will not repeat

7 what other Defence counsel have said so that each of us will deal with an

8 issue that refers to all three accused.

9 The Defence of Mr. Kovac will, therefore, on behalf of all the

10 Defence counsel, put forward the joint submission of the Defence on the

11 counts of rape as a war crime and the existence or non-existence of the

12 conditions for all three to be held responsible for rape on the basis of

13 the provisions of the Statute of this Tribunal.

14 Of course I, as the Defence counsel of Mr. Kovac, will, after

15 this, put forward the submissions of the Defence of Mr. Kovac on his

16 personal responsibility or innocence seen through the evaluation of the

17 evidence. Therefore, I will begin.

18 The first fact put forward by the Defence is the indubitable fact

19 that the accused Kunarac, Kovac, and Vukovic, although they are jointly

20 accused, have nothing at all in common. The Prosecution, in the

21 submission of the Defence, has not proved any connection nor is there any

22 connection among these three accused. All that they have in common is the

23 time and place of the alleged events described in the indictment.

24 The evidence that has been put forward does not show the existence

25 of any connection between the accused either when they were performing

Page 4346

1 military tasks or when they were on leave. The accused know each other

2 only by sight, and they did not socialise or visit each other either

3 before or during the conflict. Each of them had their own lives. The

4 accused Kovac was in Sarajevo; Kunarac lived and worked in Tivat, in

5 another federal unit; and the accused Vukovic lived and worked in Foca

6 with his family.

7 The Prosecutor has not presented any evidence that would lead to a

8 different conclusion, and the Defence, therefore, submits that it has not

9 been proved that the accused had a common purpose or, as international law

10 understands, undertook a joint action.

11 None of the accused knew about the others, what they were doing

12 when they were not on the same military mission. None of them knew that

13 someone in Foca was raping someone. The witnesses for the Prosecution who

14 testified to this say that this was not talked about. The accused were

15 not together in their free time; they did not talk, and so they could not

16 have had a common purpose or undertaken a joint action.

17 For there to exist an action with a common purpose, what is needed

18 is a personal knowledge that an action is planned or that a value

19 protected by law is about to be violated; or there must be awareness that

20 this is taking place, and the individual must willingly agree with this

21 and aid and abet or participate in it. This personal relation must be

22 clearly established for there to be individual responsibility because

23 every perpetrator of a crime is responsible for his own intentions.

24 As the Prosecutor has not shown the existence of any plan to carry

25 out the rape of Muslim women, as it has not been proved that the accused

Page 4347

1 knew that rapes were being committed, there is no actus reus and no mens

2 rea. If we could perhaps conditionally talk about actus reus as an

3 element present for each of the accused as an act of participation in a

4 system of repression, then in no way can we talk about the existence of

5 mens rea in any of the accused because none of the accused knew anything

6 about the existence of a plan of repression, nor did any of them have the

7 intention of carrying out a joint plan. Therefore, the only correct

8 conclusion is that throughout all the time relevant for the indictment,

9 the accused lived and acted each on his own, and that there was no

10 consciousness of joint action to cause a certain consequence.

11 I will now say something about the submissions of the Defence

12 about rape as a war crime. If we leave aside that part of the opening

13 statement of the Prosecution which, with all due respect, described the

14 events in an inappropriate way, even though these were serious crimes, we

15 cannot refer to them as atrocities. The Defence will mention that this is

16 the first case in which several people stand accused of rape, enslavement,

17 torture, outrages upon personal dignity, and this is meant to indicate

18 that there was a systematic and widespread action in relation to Muslim

19 victims, and this is the basis upon which rape is treated as a war crime,

20 whether under Article 5 or Article 3 of the Statute, about which we will

21 say more later on.

22 Let us now draw a parallel with case IT-95-17/1, the Prosecutor

23 versus Anto Furundzija. In that case, the accused Furundzija was accused

24 and found guilty of torture as a violation of the laws and customs of war

25 and outrages upon personal dignity, which includes rape as a violation of

Page 4348

1 customs and laws of war, all according to Article 3 of the Statute. Now,

2 it is immediately evident that there is no count of rape in that case, but

3 rape is subsumed under outrages upon personal dignity.

4 Also, the Defence would like to show that there is lack of

5 correspondence between this indictment and the judgement that was handed

6 down in the case Prosecutor versus Anto Furundzija. In that judgement,

7 Anto Furundzija was found guilty of violating the laws and customs of war

8 under Article 3 of the Statute, including torture, outrages upon personal

9 dignity, including rape; but in this indictment, the accused are indicted

10 at the same time for violating, violating the laws and customs of war

11 under Article 3 of the Statute, and crimes against humanity under Article

12 5 of the Statute. The question arises, how it is possible that these two

13 indictments can be so different?

14 Bearing in mind that in the Furundzija case there was practically

15 only one case of rape, we might come to the conclusion that individual

16 acts of sexual relations under threat or coercion or other kind of sexual

17 harassment does not represent rape under Article 3 or Article 5 of the

18 Statute as a separate crime against humanity or as a violation of the laws

19 and customs of war. This approach we believe would perhaps be acceptable

20 for the Defence of the accused Kunarac, Kovac, and Vukovic.

21 And truly, for rape to be subsumed under regulations regulating

22 crimes against humanity or violations of the laws and customs of war, it

23 is necessary for certain conditions to be met as defined by law and

24 international custom or common-law. These conditions would be sexual

25 penetration, regardless of whether it was only started or completed, of

Page 4349

1 the vagina or anus with the penis of the perpetrator or with any other

2 object that the perpetrator used, or penetrating the mouth of the victim

3 with the penis, or using force or coercion toward the victim, or a third

4 person. It seems that modern law is going in the direction of seeing rape

5 as all kinds of sexual acts committed against the will of the victim under

6 coercion, although the national law of the former Yugoslavia understood

7 only vaginal penetration as rape, while other kinds of sexual harassment

8 were described as unnatural acts. However, when we talk about rape which

9 is something done by force and, of course, under threat, we might also see

10 other acts, unnatural acts between a man and a woman as rape.

11 The question arises about the unwillingness of the victim. The

12 Defence submits that this unwillingness cannot be expressed only verbally.

13 The opposition must be real and permanent, and it must be clearly

14 expressed to the perpetrator throughout the commission of the sexual act.

15 The Defence must now draw attention to the elements of force and

16 coercion. According to the Defence, force and threats must be constantly

17 presented to the victim and must be real and serious, either toward the

18 victim or a third person who is closely connected to the victim, so that

19 the victim has no choice or any other way of protecting either herself or

20 a person who is close to her except by agreeing to the sexual act.

21 Now we must evaluate the possible behaviour of the victim under

22 conditions when the victim is from an entity which in general is in a

23 conflict with the entity to which the perpetrator belongs. Is it

24 sufficient for the victim, because there is an armed conflict, to be

25 frightened, even if there is no force or coercion, that she's afraid that

Page 4350

1 something might happen to her, that she could be killed or hurt, if she

2 did not agree to a demand for sexual relations, and to agree to sexual

3 acts to which she would not otherwise agree only because of that fear, for

4 there to be rape? The Defence submits that this question should be

5 approached with much greater caution than the Prosecutor has done because

6 it seems that the Prosecutor thinks that it is enough to start from the

7 fact that there is an armed conflict going on at the time, and that this

8 fact alone is sufficient for a victim not to be able to resist a demand

9 for sexual acts. And this is also influenced by the testimony of a

10 witness who is allegedly a victim of rape who clearly said that she agreed

11 to go to a house with one of the soldiers, that she was not raped, because

12 he promised her protection and that no one would touch her. And it is

13 possible that in this case, the existence of an armed conflict led to this

14 decision, but it was a free decision on the part of this witness when the

15 matter is viewed from the standpoint of the soldier with whom she agreed

16 to go and to stay with him.

17 Several witnesses say that they knew --

18 JUDGE HUNT: Mr. Kolesar, all of this is of very great importance

19 for you to address, in your findings. Your opening address is here to tell

20 us what evidence you propose to call in your defence case, and comments

21 upon the Prosecution witnesses should [microphone not activated].

22 May I suggest you tell us what evidence you're going to call for

23 your Defence case and leave these criticisms of the Prosecution case to

24 later when it's appropriate for you to give those criticisms.

25 MR. KOLESAR: [Interpretation] Your Honour, I am only commenting in

Page 4351

1 passing what the Prosecution has put forward. I am trying to illuminate

2 on the basis of the evidence presented so far, and what we plan to present

3 as evidence. The existence of the basis for the indictment, that is how I

4 understood the opening statement, and I am a little surprised that the

5 Defence is not allowed to present its submissions, but -- without

6 hindrance. But I will respect the rulings of the Trial Chamber, and my

7 further presentation is based on throwing light on the count of

8 enslavement. However, if you think that that is superfluous, I will only

9 say a few sentences about the personal responsibility of Mr. Kovac, and

10 then I will conclude.

11 JUDGE HUNT: Mr. Kolesar, I don't want there to be any

12 misunderstanding. What you have been speaking about is of significant

13 importance in the case generally, but it is part of a closing address, not

14 part of an opening address. Those very phrases should give you some

15 indication that an opening address is to tell us about the case you

16 propose to present here, the evidence you propose to call, and that is the

17 purpose of an opening address.

18 You may give us all of these criticisms later when we will listen

19 to them with great interest, but they are of interest to us only at the

20 end of all of the evidence.

21 MR. KOLESAR: [Interpretation] Your Honour, with our submission on

22 the basis of Rule 65 ter, we presented the evidence that we wished to

23 present to the Tribunal, and I think that there is no need to comment; but

24 if that is so, I will pass over my exposition of rape as a war crime, and

25 in a few sentences I will say something about the personal responsibility

Page 4352

1 of the accused Radomir Kovac.

2 I had two tables here which I was about to show that the claim by

3 the Prosecution that there was widespread and systematic rape of the

4 territory of Foca does not stand; however, considering the instructions I

5 have just received, I will leave this out, but --

6 JUDGE MUMBA: Mr. Kolesar, I think it's a question of

7 misunderstanding here. The table you are discussing may be important if

8 you show that the Defence will call evidence to support what you think

9 actually happened in relation to whether or not there was a widespread or

10 systematic attack.

11 The guidance of the Chamber is that you are supposed to indicate

12 what type of evidence you are going to call to support the defence of your

13 clients.

14 MR. KOLESAR: [Interpretation] I will say again that what we

15 planned to propose and what we will propose in our defence has been

16 presented to the Tribunal in our submission under Article 65 --

17 Rule 65 ter. However, you will allow me to conclude my opening

18 statement. Please do not misunderstand me. I rarely take the floor, and

19 I do not take up much of the Tribunal's time. I was interrupted when the

20 key Prosecution witness against Mr. Kovac was testifying. This is

21 Witness FWS-75, and I am being interrupted again, but --

22 JUDGE MUMBA: Mr. Kolesar, it is not the intention of the Trial

23 Chamber to interrupt. The role of the Trial Chamber is to give guidance.

24 So you may proceed as you please.

25 Since we have only two minutes, maybe we can break up early to

Page 4353

1 give you time to recover and consider the guidance of the Trial Chamber.

2 We will rise and continue at 1130 hours, and you will continue

3 with your address as you please.

4 --- Recess taken at 10.58 a.m.

5 --- On resuming at 11.30 a.m.

6 JUDGE MUMBA: We're proceeding with the opening statements. Yes,

7 Mr. Kolesar.

8 MR. KOLESAR: [Interpretation] Your Honours, I shall continue my

9 presentation.

10 The Prosecutor did not prove that the events took place as has

11 been described in the indictment. If we look at some of the tables

12 prepared by the Defence, it will become crystal clear that the number of

13 victims of alleged rape on the territory of Foca cannot confirm the

14 existence of systematic and all-embracing rape as well as the fact that in

15 the case of rapes, the Prosecution has not proved that any plan existed

16 for rape to be implemented as a method of the policy of ethnic cleansing.

17 Of the 42 rapes, including the town of Foca and other places,

18 Miljevina, Patkovina, Josanica and other larger towns which are provided

19 in the tables to show the ethnic composition of the population in the Foca

20 municipality, and it is Prosecution Exhibit 19, it states that this

21 encompasses only settlements with more than 200 inhabitants who were

22 allegedly -- the alleged rapes were performed only on women from Mjesaja,

23 and the composition of the population was 50 per cent Muslim and 50 per

24 cent Serb, this according to the table taken from 1991 on the population

25 census showing that in the village there were 161 Muslim and 166 Serbs.

Page 4354

1 This absolute number, with respect to the 161 Muslims, when we

2 look at the 20.898 Muslims who lived on the territory of Foca, and when

3 you look at the totality of the Muslim population, bearing in mind that

4 some of the males had left the village, cannot represent a basis which

5 would allow them to conclude that this was an all-embracing and systematic

6 form of rape.

7 As the Prosecution maintains, in the tables they have provided,

8 that the rapes took place in several locations but the alleged rapes were

9 always undertaken allegedly towards the same victim whose number is below

10 20, if we were to accept this, this cannot be proof of systematicness

11 [sic] and the all-embracing quality of these rapes.

12 In the alleged number of rapes, three were from Gacko, one was

13 from Kalinovik. And this number of victims, in comparison to the number

14 of inhabitants in the Kalinovik municipality and Gacko, does not give

15 proof and allow the Prosecution to say that systematic rape and widespread

16 rape existed according to a plan because this was not a widespread

17 activity that took place on the territory of the Foca municipality and in

18 its borders.

19 Furthermore, the Prosecution has not -- the Defence claims that

20 only one witness claimed to be raped after the conflict had been completed

21 in Foca. And if we were to accept the fact that this witness was raped,

22 then it was an individual case not linked to the war conflict and cannot

23 be the subject of widespread and systematic rape as is claimed by the

24 Prosecution.

25 The Prosecutor, in his introductory statement, states that the

Page 4355

1 Muslims in the Foca municipality had a predominant position. However, the

2 Defence is of the opinion that that is unacceptable and that it is based

3 on the wrong premise.

4 We have prepared two tables. However, in view of the fact that --

5 following the ruling we shall not be presenting those tables, I should

6 just like to comment them.

7 From one of the tables we can see that in the Foca municipality,

8 there were 20.898 inhabitants who were Muslims and 18.339 inhabitants who

9 were Serbs. Therefore, on the whole territory of the Foca municipality

10 with respect to the Serbian population, there were 2.559 more Muslims.

11 However, in the town of Foca proper, there were 5.554 Muslims and 7.957

12 Serbs, which testifies to the fact that the ratio in the town of Foca was

13 that there were more Muslims, and there were 2.403 more Muslims than

14 Serbs.

15 JUDGE MUMBA: Mr. Kolesar, you are too fast for the interpreters,

16 please.

17 MR. KOLESAR: [Interpretation] I apologise. I got carried away.

18 The Prosecutor in Exhibit 19 showed 42 places in the Foca

19 municipality which had a population of over 200. The Defence would like

20 to indicate that on the basis of this same exhibit, that there were in

21 fact 120 inhabited places, as can be seen from this particular table, and

22 that the victims of alleged rape were only from one particular place, that

23 is, from Mjesaja. If we add to this the facts of land property rights,

24 there is no question that the Muslims were dominant, and that the fact

25 that the alleged victims were from one place, from the village of Mjesaja,

Page 4356

1 we cannot therefore speak of widespread and systematic rape.

2 In the Foca municipality the overall surface area is 126,636

3 hectares, and a large portion is socially owned or state owned, and a

4 portion of that land is privately owned. In fact, 44,727 hectares or 35

5 per cent of the overall land was privately owned, and the Serbs owned

6 24,156 hectares of that sum, and the Muslims owned 20,571 hectares. And

7 on the basis of these two tables, they clearly indicate that the

8 allegations made by the Prosecution do not hold, or, that is to say, that

9 in the Foca municipality, the Muslims had the dominant position and role,

10 and that we cannot speak of widespread and systematic rape in the area.

11 The Defence does not contest the existence of individual cases

12 when some women, whether they be elderly or younger, had sexual

13 intercourse with certain soldiers, but this cannot be brought into

14 connection with the armed conflict itself, and the Prosecution has not

15 proved that any of the acts of rape, even if they were proved, were

16 undertaken in such a way that they could be linked to the armed conflict;

17 and therefore, the Defence considers that the Prosecution has not

18 succeeded in proving the second important element, and that is to say, the

19 link between the act of rape itself and armed conflict.

20 Thus in keeping with this view and in the case of Furundzija where

21 rape was accompanied by torture and where rape was considered an outrage

22 against human dignity, the Defence considers that the Prosecution has not

23 been able to prove rape. And as to the existence of outrage against human

24 dignity, each individual case must be analysed and the question of

25 responsibility raised with respect to each of the accused within the

Page 4357

1 frameworks of the crime committed contrary to the will of the individual

2 and including sexual harassment but with the intention of infringing upon

3 personal dignity. The Prosecution has not proved the existence of acts of

4 this kind, and even if we can characterise certain of these acts as rape

5 under Article 5 of the Statute, there cannot be responsibility according

6 to Article 3 of the Statute.

7 Pursuant to Article 5(C), the Tribunal shall have the power to

8 prosecute persons inter alia for crimes of enslavement. This same

9 provision stipulates that this enslavement must be towards the civilian

10 population and in armed conflicts, whether it is of international armed

11 conflict or an internal armed conflicted. Of course, the questions of the

12 elements of this crime are not further elaborated by the Statute, and

13 there can be both theoretical and practical questions raised in that

14 regard. Of course, the elements that go to make up this crime are not

15 further elaborated by the Statute, and we must say at the outset that both

16 theoretical and practical questions can be raised with respect to the

17 application of these incriminating factors in the case under

18 consideration.

19 In the first place, the Defence considers that enslavement must be

20 looked at within the concept of enslavement itself and not deprivation of

21 freedom, which is generally accepted. According to certain definitions,

22 as, for example, according to the Bassiouni, enslavement as a crime can

23 occur if there are several forms that it takes. Under 1(1), enslavement

24 is a status or state of a person to which enslavement is being forced, and

25 if it includes the right of ownership and demonstrates the right of

Page 4358

1 ownership over an individual.

2 Let me mention at the outset that sexual enslavement, in order to

3 be treated as a war crime in the sense of Article 5 of the Statute, would

4 also have to meet certain conditions. In the first place, we consider

5 that there must be intent for somebody to be transferred or detained for

6 sexual acts to be perpetrated; but once again, this must include detention

7 in one place for duration of time. Therefore, the Defence considers that

8 the first element of this crime must be proved on the part of the

9 Prosecution, that is to say, the intent of the transference of an

10 individual for purposes of sexual assault; that the detention must be

11 ongoing for a continued period of time; and that the individual must be

12 considered the property of the perpetrator of the sexual act. This is

13 something that the Prosecution has failed to prove.

14 None of the witnesses showed opposition to being detained in

15 certain houses over a certain period of time; nor did the witnesses

16 confirm that they were not allowed to move around freely. All the

17 witnesses said that they were allowed to move around freely, and the

18 Defence is going to prove that, and they will prove this by providing

19 evidence through exhibits and that the desire existed that if they had the

20 desire to give opposition, they could have asked help from the neighbours

21 or tried in some other way to bring an end to this state of affairs and

22 their own status.

23 The third element that the Prosecution will have to prove for the

24 accused to be charge of the crimes in the indictment is that the period of

25 time must have lasted and that there should be no time limitation, because

Page 4359

1 if there is a time limit, then the question arises of whether we can talk

2 about the crime of enslavement at all. It is the view of the Defence that

3 for enslavement to exist, the victim must be held for a longer period of

4 time, which in practice must be a period of time which would indicate

5 intent; that is to say, the intention of detaining the victim in that same

6 status. Any shorter period of time would not provide the groundworks for

7 us to conclude that the individual was enslaved.

8 Finally, the fourth element must be proved as well, that is to

9 say, the person enslaving the individual behaves toward that individual as

10 his own private property. The Prosecutor has not managed to prove that

11 any of the accused acted in that way towards the victims and the

12 witnesses.

13 Your Honours, it was my intention to speak at far greater length

14 and in greater detail on all these matters, although this is an

15 introductory address, and that is the view taken by the whole of the

16 Defence teams because we consider it important for the trial. But

17 following the Chamber's ruling, I have abridged it as far as possible, and

18 that is why I apologise for skipping portions and for giving it a

19 different aspect to my intended introductory address.

20 As far as the responsibility of Radomir Kovac is concerned, I have

21 the following to say: As the Defence counsel for the accused Radomir

22 Kovac, I should like to move to his individual responsibility. Rape,

23 according to Article 5(G) of the Statute and Article 3 of the Statute and

24 the crime of enslavement and Article 5 of the Statute and the crime

25 against personal dignity, I should like to indicate the uniform stand of

Page 4360

1 the Defence that I presented in the previous part of the introductory

2 address, and I do not consider that the Prosecution has proved that the

3 conduct of the accused was such to have committed these crimes, because

4 the elements for that criminal act to exist have not been proved and do

5 not exist.

6 As the Defence counsel, let me indicate at the outset that some of

7 the general premises from the amended indictment have not been proved

8 either with respect to the accused Radomir Kovac. As, for example, his

9 capacity as deputy komandir or unit commander of the military police and

10 the paramilitary units in Foca, the accused Radomir Kovac was neither the

11 deputy leader of the military police, nor was he a leader of the

12 paramilitary units in Foca. The accused Radomir Kovac was not a member of

13 the military police at all, and the Prosecution has not succeeded in

14 proving that he was. He was not the leader of paramilitary units either,

15 because there were no paramilitary units in Foca.

16 What did exist in Foca were units formed from the Territorial

17 Defence and volunteer units who were under one command and which later

18 became part and parcel of the army of Republika Srpska once it was

19 formed. The accused Radomir Kovac was never a leader of any military

20 unit. And this is a fact that the Prosecution has not succeeded in

21 proving.

22 He did not take part in the attack on Foca because as a volunteer,

23 he joined his unit on the 17th of April, 1992 when the fighting in Foca

24 was over, and this is something the Defence will prove by presenting

25 evidence in due course.

Page 4361

1 The accused did not take part in the attacks on the surrounding

2 villages when civilians were allegedly arrested. The Prosecution has

3 failed to prove that too.

4 In conclusion of my introductory address, the Defence of Mr. Kovac

5 stresses that with respect to whether the individual is guilty or not with

6 respect to outrage on personal dignity and in view of the complexity of

7 the defence, the Defence team will be analysing after the

8 examination-in-chief and the main trial and after all the evidence has

9 been presented, because these acts are also brought into question on the

10 basis of the existing evidence.

11 But let me now give the floor to Mr. Jovanovic. Before I do so, I

12 should like to state following: The Defence finds it to be a matter of

13 concern, that is to say, the ruling that was made orally this morning and

14 presented to us orally this morning with respect to the guidelines for our

15 introductory remarks, which made our task more difficult. I think we made

16 a mistake by not asking for extended time to prepare our introductory

17 address, because the Court's decision and ruling we received last night

18 at 9.00. So this morning -- it was not there at 9.00 p.m. last night. So

19 this is a newly-arisen situation which I would like to point out to you.

20 Thank you, Your Honours.

21 JUDGE MUMBA: Yes, Mr. Kolesar. The Trial Chamber can say that

22 regardless of what has happened, in your closing address, you will be able

23 to re-emphasise the points you see as weaknesses in the Prosecution case

24 and the points you see as strengths of the Defence case, because at that

25 stage, all the evidence will be on record, including evidence in rebuttal

Page 4362

1 or rejoinder, if we go to that extent. So it is actually a better stage

2 for you to really analyse the Prosecution case as you see it, because all

3 the evidence will have been completed, and analyse the Defence case as you

4 see it, factually as well as the legal issues that you may wish to

5 address.

6 So you do have time, during the closing arguments, to deal fully

7 with the case as you please.

8 MR. KOLESAR: [Interpretation] Your Honours, I sincerely hope that

9 that will be the case.

10 JUDGE MUMBA: Mr. Jovanovic.

11 MR. JOVANOVIC: [Interpretation] Your Honours, dear colleagues, as

12 Defence counsel for Zoran Vukovic, in my opening statement I should like

13 briefly to deal with certain questions which I consider to be important

14 and so do the other Defence teams.

15 It is the intention of the Defence to present written evidence and

16 witness testimony, the testimony of investigators and experts, and thereby

17 to discuss the question of collective accommodation. We are going to be

18 hear witnesses, and dealing with the problem of torture as presented in

19 the indictment, but we are also going to be dealing with the individual

20 responsibility of Mr. Zoran Vukovic.

21 With respect to collective accommodation or detention, the Defence

22 and the Prosecution hold differing views at the outset. It is the

23 intention of the Defence to present its evidence and to prove thereby that

24 the facilities and buildings serving for the accommodation of the

25 population and the individuals whom we have heard in this courtroom are

Page 4363

1 not what they are purported to be by the Prosecution. It is our intention

2 to prove this by presenting evidence, by listening to the testimony of

3 witnesses who lived in the area and who were the direct participants of

4 those events at the critical period of time incorporated by the

5 indictment, that is to say, from July until the month of August -- no,

6 June until August 1992.

7 It is the intention of the Defence to present the evidence it has

8 collected and thereby to open up the question of the widespread quality

9 and systematic nature of the rapes as alleged in the indictment.

10 Therefore, we are going to use the evidence and proof we have arrived at

11 and collected together, and to indicate and prevail upon the Trial Chamber

12 to see that in the municipalities which border on the Foca municipality,

13 that the kind of things did not take place as the Prosecution would have

14 us believe. Towards that end, we have prepared a series of tables and

15 visual material, statistical data on the number of inhabitants, et

16 cetera. I do not wish to tire the Trial Chamber with going into an

17 enumeration of the evidence because it will be put forward when the time

18 comes. By listening to our expert witnesses, we're going to hear

19 information on legal matters and the qualifications of torture.

20 It is the view of the Defence that that, in concise terms, would

21 be a definition contained in the convention against torture adopted on the

22 10th of December, 1994. And it is our intention to hear expert testimony

23 and thereby to contest and clarify the question of torture with particular

24 reference to the charges and counts made against our clients.

25 I do not wish to go into an analysis of the role and tasks of our

Page 4364

1 expert witnesses and investigators and witnesses in general, expert

2 witnesses, but I should like briefly to refer now to what the Defence of

3 Mr. Zoran Vukovic wishes to say and to prove in its part of the trial and

4 the alleged claims by the Prosecution that the role of Mr. Zoran Vukovic

5 has taken two parallel courses. One is his role with respect to the

6 events throughout the entire period of time and his capacity therein; and

7 secondly, his concrete conduct and responsibility in concrete situations.

8 It is the intent of the Defence to prove, under number one, on the basis

9 documents, the documents that it has in its possession, that Zoran Vukovic

10 was not the deputy unit commander of the military police, nor was he the

11 leader of the paramilitary troops in Foca at the time of the conflict.

12 His role was quite different. He was an ordinary rank-and-file soldier

13 and he was a driver.

14 On the other hand, bearing in mind the role of Zoran Vukovic and

15 his conduct in concrete situations and the ones -- the acts he is charged

16 for in the indictment, the Prosecution -- that is to say, the Prosecution

17 has shown him in a light that does not correspond to the actual state of

18 affairs both with respect to the facts as they stand and with respect to

19 the character and nature of my client himself.

20 So I thank the Trial Chamber for giving us the opportunity of

21 going into this and calling the witnesses, and we should like to show that

22 Zoran Vukovic is not the kind of man that the Prosecution has painted him

23 to be. By doing so, the Defence will also go into any other matters,

24 vital matters, in deciding upon guilt or innocence or the sentenced passed

25 and judgement passed.

Page 4365

1 As I have already said, the Defence will be calling expert

2 witnesses and opening up questions which will be of vital importance in

3 decision-making, the question of identification and recognition,

4 especially with respect to the identification and recognition during the

5 trial itself and in the pre-trial proceedings.

6 Your Honours, in this way, the Defence is now concluding its

7 opening statement. And I don't think my colleagues have anything else to

8 add, so I shall end there. Thank you.

9 JUDGE MUMBA: Thank you, Mr. Jovanovic.

10 [Trial Chamber confers]

11 JUDGE MUMBA: Yes. Now that the opening statements have been

12 concluded, the Trial Chamber wishes to proceed with the Defence case and

13 the first witness may be called, please.

14 MR. PRODANOVIC: [Interpretation] Your Honour, as we have heralded,

15 we will start our case today by calling the accused Dragoljub Kunarac. He

16 is here, so --

17 JUDGE MUMBA: Yes, please. He may move into the witness box.

18 Yes, please. Let the accused make the solemn declaration.

19 THE WITNESS: I solemnly declare that I will speak the truth, the

20 whole truth, and nothing but the truth.


22 [Witness answered through interpreter]

23 JUDGE MUMBA: Thank you. Please be seated.

24 MR. PRODANOVIC: [Interpretation] I would kindly ask to have the

25 easel put up, because there will be questions put that will have to deal

Page 4366

1 with maps. We expected this to start only after the other break, so that

2 is why we didn't have it put up during the break.

3 This is a map of Foca where the accused Kunarac moved. That is

4 where the villages and the elevations that he was at are, and I believe

5 that we will find this useful.

6 JUDGE MUMBA: Mr. Usher, please.

7 While we are waiting for the usher to make the arrangements, you

8 intend to produce that map, present it? You intend to produce it?

9 MR. PRODANOVIC: [Interpretation] Yes, Your Honour.

10 JUDGE MUMBA: Madam Registrar, can we have the number, please?

11 THE REGISTRAR: [Interpretation] This document will be D75, Defence

12 exhibit.

13 JUDGE MUMBA: Maybe the Prosecution would like to look at it

14 before it is actually used so they can make whatever comments they wish to

15 make. No objection?

16 MR. RYNEVELD: No objection, Your Honour.

17 JUDGE MUMBA: Thank you. Yes, you can go ahead and put it up.

18 Can we have the formal numbering as an exhibit for the Defence,

19 please?

20 THE REGISTRAR: [Interpretation] This map will be D75 of the

21 Defence, Defence Exhibit D75.

22 JUDGE MUMBA: And looking ahead, the accused will be referring to

23 that map. We need the equipment, the long pointer and perhaps the

24 appropriate microphone.

25 MR. RYNEVELD: And I wonder again with the placement of that, I

Page 4367

1 don't know whether the Prosecution table will be able to see it as it's

2 being referred to as the way it's --

3 JUDGE HUNT: You must have very much better eyes than I have. I

4 can see it, but I don't see anything on it.

5 MR. RYNEVELD: I understand, but it would be nice to at least see

6 the area.

7 JUDGE MUMBA: And then when the accused has to use it, he'll have

8 to move over so that we can all see where he is pointing at.

9 Yes, you may proceed, please.

10 Examined by Mr. Prodanovic:

11 MR. PRODANOVIC: [Interpretation] Yes, Your Honour.

12 Q. Would you please introduce yourself to us?

13 A. My name is Dragoljub Kunarac.

14 Q. Also, please, when I finish my question, could you wait for a

15 second because of the interpreters, and then when the interpretation is

16 over, could you then give your answer, please.

17 Do you have a nickname?

18 A. Yes. Practically since I was born I was called Zaga, and that is

19 the nickname by which people know me.

20 Q. When did you get this nickname?

21 A. I don't remember. For as long as I've known of myself, that is

22 what I was called by my neighbours, friends, and also most of my family,

23 too.

24 Q. How did it happen that you got this nickname?

25 A. My father is a craftsman, and he is a carpenter, and when I was a

Page 4368

1 child, I used to drag tools around and play with them, saws, et cetera,

2 even with the children, so that is how I got this nickname.

3 Q. Please tell us when you were born?

4 A. I was born on the 15th of May, 1960.

5 Q. Where were you born?

6 A. I was born in Foca.

7 Q. Please tell us your father's name and your mother's name.

8 A. My father's name is Aleksa. Later during his life he officially

9 changed his name to Lekso. And my mother's name is Stojka, and Pericic is

10 her maiden name.

11 Q. Are you married?

12 A. Yes.

13 Q. What is your wife's name?

14 A. My wife's name is Jovanka. Her maiden name is Banicevic.

15 Q. Do you have any children?

16 A. Yes.

17 Q. How many children do you have?

18 A. I have three children.

19 Q. How old are your children?

20 A. My oldest daughter was born on the 1st of May, 1991, so she's

21 nine. On the 1st of May she turned nine. My son Vladimir was born on the

22 23rd of September, 1992; and my daughter Dragana was born on the 11th of

23 June, 1996.

24 Q. Where does your wife live with the children?

25 A. Right now my wife lives in Foca with the children, in a rented

Page 4369

1 apartment as a sublessee.

2 Q. What did you do before the arrest? I mean, what is your

3 profession? Were you employed at all?

4 A. Are you asking me about the moment of my surrender here in 1998?

5 Q. Yes, yes.

6 A. At that moment I was not employed because during the war I lost

7 the elbow of my right arm, so I have a permanent disability. Therefore, I

8 did not have a job then.

9 Q. Before the arrest and after the end of the armed conflict, you

10 said that you did not work. Can you tell us whether you had been employed

11 before the outbreak of the war in the territory of the former Yugoslavia?

12 A. Before the war, yes, I was employed. I worked in Montenegro in

13 the municipality of Tivat in the company Han Klivera, and I worked as a

14 chemical technician in that company.

15 Q. What kind of education do you have? What kind of school have you

16 completed?

17 A. In Foca I completed elementary school, and after that in Gorazde I

18 completed a secondary technical school, and that is where I was trained as

19 a chemical technician, and that is the degree I have.

20 Q. While you attended secondary school, did you live in Foca or

21 Gorazde?

22 A. No. While I was in secondary school, during those four years I

23 lived in Gorazde all the time. Only from time to time over the weekend I

24 would come to Foca and spend time with my family.

25 Q. How old were you when you completed your secondary school?

Page 4370

1 A. I completed secondary school in 1981, that is to say, that I was

2 21 years old.

3 Q. When did you go to Montenegro?

4 A. To Montenegro? I went to Montenegro in 1986, but I got a job in

5 1988 and that is when I started working in Han Klivera. From time to time

6 I would leave Foca -- I mean, after I completed secondary school, I did

7 not spend much time in Foca. I spent most of the time outside the

8 municipality of Foca.

9 Q. When did you get married?

10 A. I got married in 1990. On the 11th of August, I married my wife.

11 Q. After that, did you live in Tivat or in Foca?

12 A. Before that and after that I lived in Tivat until I came to Foca,

13 which is what happened later.

14 Q. So you permanently resided in Tivat. However, I'm interested in

15 hearing whether you came to Foca from time to time?

16 A. Well, I said before that I was employed in this company in Tivat,

17 and I would come to Foca when I had time off. When I would be on

18 vacation, I would come to visit my mother, father, brother. They lived in

19 Foca. I would go to visit them, but all of these visits were short,

20 sometimes only the weekend or possibly perhaps during my annual leave for

21 a maximum of seven to ten days.

22 Q. Since you were absent from Foca, did you have any friends in Foca?

23 A. Since I went to secondary school when I was 15 years old, and then

24 I lived in Gorazde for four years, after that I was in Foca seldom. So I

25 mostly had friends in the neighbourhood, from the neighbourhood, but I

Page 4371

1 didn't have a wide circle of friends and acquaintances because as I

2 already said, I did not live in Foca for quite some time.

3 Q. Where did you happen to be when the armed conflict broke out in

4 Foca?

5 A. When the armed conflicts broke out in Foca, that is to say on the

6 8th of April, the date that is mentioned here, at that point in time I was

7 in Tivat. On that day I was mobilised for the second time. I was called

8 to the reserve force of the Yugoslav national army, but I was not in the

9 area of Foca but in another area.

10 Q. How did you find out and from whom that an armed conflict broke

11 out in Foca?

12 A. During those days I intensively followed both television and radio

13 because the conflicts in Sarajevo had already started, so there was wide

14 coverage of this on TV. I also talked to my father on the phone that day,

15 on the 8th of April, and I then came to realise that there was an armed

16 conflict within the town of Foca itself.

17 Q. So after that date, after the conflict broke out in Foca, can you

18 tell us when you first came to Foca?

19 A. When the armed conflicts broke out in the territory of Foca, I

20 first came to Foca two days after my father was wounded. My father was

21 wounded towards the end of May. I think it was the 29th of May. At the

22 moment when he was wounded, he was in a vehicle that happened to come

23 across a mine, and there were people who were killed and wounded who were

24 in this vehicle, and my father was among them.

25 I came to Foca for the first time on the 31st of May. I know that

Page 4372

1 it was not a working day, that it was a Sunday, and I knew that I had to

2 report back to work already on the next day.

3 Q. When you returned to Tivat, that is to say, after having visited

4 your father, did you decide to go back to Foca after that?

5 A. Yes, because when I came to Foca, I found my father at home. He

6 had sustained light, physical injuries, and I tried to persuade him that

7 he should come to Tivat as well. At that moment, my mother and my

8 sister's daughter were in Tivat at my place. He refused to do so, but I

9 had to go back to Tivat because I had to report back to work the next

10 day.

11 After that my mother insisted on going back to Foca, and a friend

12 of mine took her there. I thought about this later, and I decided to go

13 back and to join the army of Republika Srpska. Actually, at that time

14 there was still the Territorial Defence, and I decided to go back and to

15 help in this armed conflict as much as I could.

16 Q. When you returned, when you returned to Tivat, did you see someone

17 in Tivat?

18 A. Yes. A few days later -- I think I returned on Sunday, that same

19 day, the 31st of May. A few days later, that is to say, on Tuesday or

20 Wednesday, I saw Aleksander Kunarac. He was six or seven years younger

21 than I was, but I knew him from the days when we were children because we

22 also had family ties. He was also going to school then, the navy academy,

23 and he came to Tivat, and I told him that I had been to Foca, and I told

24 him that I intended to go back to Foca and to volunteer in the army of

25 Republika Srpska.

Page 4373

1 Q. Did you tell him when you intended to return to Foca?

2 A. In that conversation, when I told him I wanted to go there and

3 that I would go there in any case very soon, he told me that his school

4 year was almost over and that he intended to go too. Then we agreed to go

5 on Saturday, the 6th of June, to Foca.

6 Q. Did you really go to Foca on the day you agreed to go?

7 A. In the remaining two or three days in my company, I regulated my

8 relations with them. I took unpaid leave. On Saturday, Aleksandar came

9 to Tivat with Ljubisa Markovic, who was also from Foca, and we took a bus

10 in the morning at 7.00 and set out from Tivat in the direction of Foca.

11 We went from Foca to Niksic by bus.

12 Q. When did you leave Tivat?

13 A. We left Tivat by the morning bus which goes at 7.00.

14 Q. Tell me, why did you go to Niksic? Was there a regular bus line

15 between Tivat and Foca?

16 A. No. At that time, there were no regular lines for Foca, and we

17 went to Niksic because there were no regular bus lines running from Tivat

18 any further than Niksic. So we came to Niksic and there we took another

19 bus and continued on our way to the border of Montenegro and Bosnia.

20 Q. Can you tell us how it came about that Ljubisa Markovic went with

21 you? Who is Ljubisa Markovic?

22 A. Ljubisa Markovic is also a native of Foca, and he was on the

23 second year of the military naval academy, and Milivoj was in the third

24 year. And since they were in the same residence, Aco told him that he was

25 going and that we were going together on Saturday, and Ljubisa joined us

Page 4374

1 so as not to travel alone.

2 Q. Can you tell us, when you arrived in Niksic, what time could it

3 have been?

4 A. We arrived in Niksic at about 9.30 or 10.00 at the latest, because

5 the bus stopped at every local station. So it would have been 9.30 or

6 10.00 at the latest.

7 Q. Did you have a bus from Niksic immediately? Was there a

8 connection between Niksic and Foca, a bus line, rather?

9 A. Before the outbreak of the conflict, there were regular bus lines

10 like that but not at that time. And we did not have a direct connection

11 from Scepan Polje. There were daily lines, only two bus lines a day. One

12 started at 8.00 a.m. and came back from Scepan Polje, and one started at

13 1400 hours from Niksic to Scepan Polje. And Scepan Polje is at the border

14 between Montenegro and Bosnia-Herzegovina.

15 Q. Since you had some time in Niksic, how did you spend that time?

16 A. We sat at the bus station where there is a cafe, and we spent our

17 time there. We did not go away from the bus station.

18 Q. Can you tell us what the distance is between Scepan Polje, that

19 is, the border with Montenegro, to Foca?

20 A. I'm not sure, but it's about 20 kilometres, 20 to 25 kilometres at

21 the most via Scepan Polje along the right bank of the River Drina.

22 Q. Throughout this time until the bus left, were the three of you

23 alone?

24 A. No. At a certain moment, after about a half an hour or an hour,

25 two men approached our table. I knew them from my previous time in the

Page 4375

1 JNA. They sat down with us and we started a conversation with them. In

2 that conversation, Aleksander, Ljubisa, and I told them we were on our way

3 to Foca, and that's what we talked about.

4 Q. Can you tell us their names?

5 A. Unfortunately, because of my family, I can tell you just one name

6 but not the other.

7 Q. What is the name of the person whose name you can tell us?

8 A. One of those two was Miroslav Kontic. Kontic was his last name.

9 He was nicknamed Konta or Meca.

10 Q. What did you talk about among yourselves?

11 A. As I said, I said that we were on our way up there, and we

12 reminisced about the time we had spent together as reservists. I told

13 them that I had been in Foca, that my father was wounded, that there was

14 heavy fighting going on in the surroundings of Foca with a lot of

15 casualties, that I wanted to go there. Then one of those two said that

16 they had a lot of friends and family in Foca. The other one even went to

17 school in Foca for a time when he was little because his mother came from

18 Foca. Then they said that they would like to join us.

19 Then they left. They knew the bus left at 1400 hours, and they

20 came back at 1400 hours. So we set out together by bus in the direction

21 of Scepan Polje.

22 Q. Can you tell us what the distance is between Foca and Niksic?

23 A. I'm not sure, but Foca-Niksic is about 80 kilometres, something

24 like that.

25 Q. When you arrived in Scepan Polje, what happened next? Before you

Page 4376













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14 French and English transcripts.












Page 4377

1 say that, can you tell us whether those two went from Niksic to Scepan

2 Polje by bus with you?

3 A. Yes. I said that when I was going there, that people were being

4 killed, that the situation was difficult, both of them said that they

5 wanted to go too, that they also wanted to volunteer. They went to their

6 homes to tell their families they were leaving. They came back before the

7 bus started, and they were both in the bus with us as far as Scepan

8 Polje.

9 Q. What happened next when you arrived in Scepan Polje?

10 A. Scepan Polje is the border between Montenegro and Bosnia and

11 Herzegovina. It's a very small village, and it's between the rivers Piva,

12 and Tara at the mouth of the River Drina.

13 When we came to Scepan Polje, we got off the bus, only five of

14 us. No one else was going as far as Scepan Polje.

15 There we found large numbers of civilians, women, children,

16 elderly, who had somehow managed to come to Scepan Polje and who wished to

17 go in the direction of Montenegro or to Serbia further on, but they were

18 all coming from the direction of Foca. We --

19 Q. Did you ask them what was going on in Foca?

20 A. We did talk to them. I talked to a few people, although I didn't

21 know any of them personally from before. I didn't know their names.

22 There was a woman whom I knew by sight. I approached her. I knew

23 she was from Foca. I asked her what was happening in Foca, what the

24 situation was, how they had reached Scepan Polje. She told me that in the

25 town itself there were no military operations going on, that it was

Page 4378

1 relatively peaceful in town, but that in the surroundings of Foca and the

2 surrounding villages there was fighting every day and that the heaviest

3 fighting was around Ustikolina and Miljevina. Then she told me that the

4 Foca-Scepan Polje road was very risky, and that anyone taking that road

5 would have to do so at his own responsibility because very often there

6 were ambushes along those roads, mines were laid, and that there were

7 casualties among civilians between Foca and Scepan Polje. They all got on

8 the bus and went on in the direction of Niksic and then they went on their

9 way.

10 We reported to the border police. We showed them our documents.

11 In a conversation with them -- we talked with them for about five to ten

12 minutes and then we decided to set out for Foca on foot because there was

13 no other transport.

14 Q. You said that in Scepan Polje you saw refugees from Foca. Were

15 these Serbs or were there refugees from both entities?

16 A. They were civilians, and in conversation, we found out that there

17 were both Muslim and Serb families. We talked to them for about 15,

18 20 minutes, which is the time that the bus was parked there before going

19 back again. I know that there were families from both entities, both

20 Serbs and Muslims there, and they all wanted to leave the area because, as

21 they themselves said, the situation was very difficult. There was not

22 enough food, there were power cuts every day, and the women, the elderly,

23 the children were leaving the territory of Foca of their own accord and

24 going in the direction of Montenegro or Serbia where they had friends or

25 family or to refugee camps in Montenegro, Serbia, or Macedonia.

Page 4379

1 Q. You mentioned Miljevina. Can you tell us what Miljevina is?

2 A. Miljevina is a small village, a mining settlement, which is

3 12 kilometres away from Foca on the Foca-Sarajevo road.

4 Q. You said that you set out on foot from Scepan Polje in the

5 direction of Foca. Can you tell us what happened next?

6 A. I said that there was no transport. We waited around for 20,

7 25 minutes, until the bus started back, because we hoped that maybe a car

8 would arrive from Foca bringing a family to the border and would give us a

9 lift back perhaps. But this did not happen, so we set out on foot. We

10 thought we could get to Foca in four or five hours. That was before

11 nightfall. So we set out on foot.

12 We walked for about an hour or an hour and a half, and we were

13 near Kosman when behind us, from the direction of Montenegro, from Scepan

14 Polje, a truck came by with -- a 5-tonne truck, and we asked for a lift to

15 Foca. There was not enough room in the driver's part for all of us, so we

16 asked to sit in the back, and he gave us a lift. When we got in the back,

17 I know that it was humanitarian aid. There was food being taken to Foca.

18 We arrived in Foca in that vehicle.

19 Q. What happened when you arrived in Foca?

20 A. We arrived in Foca just before nightfall. It was 5.00 or 6.00. I

21 went to my family. Aleksander went to his family. Ljubisa went to stay

22 with some friends because his family lived 20 kilometres away from Foca in

23 a village called Zavait. We parted, and we agreed that on Monday, which

24 was a working day, we would go to the military department and volunteer

25 and wait to be assigned to the army of Republika Srpska, to a unit, but it

Page 4380

1 was still the Territorial Defence and we were going to volunteer at the

2 Territorial Defence headquarters.

3 Q. Kontic and the other person, where did they go when they arrived

4 in Foca?

5 A. I said when we were talking in Niksic, Kontic and the other man

6 said that they had a lot of friends in Foca, that they had family, and

7 when we arrived in Foca, they said they would go to their friends and that

8 they would come on Monday. We agreed to meet on Monday at 8.00 a.m. in

9 front of the military department and that's what we did.

10 Q. What happened then? Did you meet up on Monday morning?

11 A. I went home to my parents' house and I spent that night there.

12 The next day there was again an accident in which a close relative of mine

13 was killed, and I went to condole with his family, and I talked to many

14 members of his battalion, because he was the commander of a battalion at

15 that time, Lazar Kunarac, and I talked to people then.

16 They said that a lot of people were being killed, that there were

17 lots of mines there. This confirmed me in my decision to volunteer, to

18 volunteer on Monday, and gave me the idea and the will to ask work on the

19 mining because that was my military training.

20 Q. We will come to that.

21 A. Well, on Monday morning at 8.00, I went to the military department

22 and signed up.

23 Q. Can you tell us where the building of the military department is?

24 Is it a freestanding building or is it a department within a building?

25 A. The military department is in the SUP building. It's in the SUP

Page 4381

1 building. I think it was on the first floor. There were four or five

2 rooms used by the military department and the rest were used by SUP.

3 JUDGE MUMBA: Counsel, could we also have the detail of to whom he

4 reported for signing up?

5 MR. PRODANOVIC: [Interpretation] We have just arrived at that

6 question, Your Honour.

7 JUDGE MUMBA: Thank you.

8 MR. PRODANOVIC: [Interpretation]

9 Q. When you came to the building, what happened there? Who did you

10 report to and were you assigned somewhere?

11 A. When I arrived in those rooms, the offices of the military

12 department, I went to the office containing the files of the Territorial

13 Defence of the municipality of Foca, which before that had been the files

14 of the whole Territorial Defence of Foca. I reported to the official in

15 the military department. I showed him my military ID containing all my

16 details about my military training. At that moment, I told him I wanted

17 to volunteer, and he opened a new card into which he entered my details,

18 and he told me I had to go to Livade, which is a village in the

19 municipality of Foca where the Territorial Defence depots were before the

20 war to be issued with military equipment and weapons, because we had all

21 arrived in civilian clothing and we did not have uniforms or weapons.

22 Q. On that particular day, were you issued military equipment,

23 uniforms and weapons?

24 A. Yes. On that day, that is to say when I came to the department in

25 the morning, the military department, Aleksandar Krnojelac was already

Page 4382

1 there; the others hadn't arrived yet. So I waited for him to sign up

2 voluntarily, that is to say, for them to register him in the military

3 department, and then the two of us went off to the depot at Livade. And

4 in one of the warehouses, we were issued with military materiel and

5 equipment or parts of it, that would be better to say, because we just

6 received shirts and trousers, a belt, and boots. The other parts of the

7 standard military equipment they didn't have in the warehouse.

8 Q. What weapons did you receive?

9 A. When we were issued equipment, they sent us to another depot,

10 another warehouse, which was the Territorial Defence warehouse before the

11 conflict, and I was issued an automatic rifle of the 7.62 millimetre rifle

12 of Yugoslav production of the Kalashnikov type.

13 Q. What kind of uniform did you receive, and did you put the uniform

14 on straight away? Was it a camouflage uniform or a SMB olive-green/grey

15 uniform?

16 A. Well, the first uniform I was issued was, as I say, a pair of

17 trousers and shirt. It was the SMB type, the olive-green/grey type of

18 uniform. Some ten days later we were issued camouflage uniforms.

19 Q. You said that weapons and materiel was issued in some other

20 place. Could you describe the warehouses, the depots?

21 A. Yes. At this place, which was called Livade, up to 1966 or 1967

22 they were military warehouses because in Foca at the time there was a

23 barracks, an army barracks, and in 1967 or 1968, regular army units moved

24 from Foca. And these particular warehouses, of which there were four or

25 five, I'm not quite sure how many, but they were taken over by the

Page 4383

1 Territorial Defence, and a portion of them was used for equipment and

2 armaments of the Territorial Defence for the municipality of Foca. And in

3 one or two other warehouses, there was food storage from the Perucica

4 company.

5 Q. So if I understood you correctly, there were several warehouses

6 containing weapons and military materiel?

7 A. Yes. As I say, we were issued equipment in one warehouse, and

8 that was military materiel mostly, and the second warehouse contained

9 weapons, and other types of military materiel, that is to say,

10 explosives. And then there was a third warehouse used by the Territorial

11 Defence which contained the logistics unit and all the other logistics

12 equipment that was distributed to the battalions in the field.

13 Q. When you say Territorial Defence, when you use that term, was that

14 the joint Territorial Defence, that is to say, with weapons and military

15 materiel stored in the warehouses? Is that what you mean? So weapons and

16 materiel both of the Serbs and of the Muslims living in Foca, is that what

17 you mean?

18 A. Before the war, that is to say before the conflicts broke out,

19 every able-bodied man, male, was a member of the Territorial Defence, and

20 people of all ethnic groups served the army and were within the

21 composition of the Territorial Defence. And this was true of the Foca

22 municipality as well where you had the Territorial Defence staff which

23 incorporated all the male population, not -- up until the age of 60 they

24 were conscripts and deemed military-fit and able-bodied men. And before

25 the war, all the materiel was housed there for that unified, uniform

Page 4384

1 Territorial Defence of Serbs, Muslims, and all the other ethnic groups

2 living in Foca before the war.

3 Q. When you came to the Defence Ministry in Foca and its offices and

4 premises as a volunteer, before you were issued uniforms and weapons, were

5 you asked whether you had done your military service and whether you had

6 undergone military training and which branch of the army you belonged to?

7 A. When I arrived at the military department and signed up, as I

8 said, I handed in my military ID card which contained all the necessary

9 information, which said that in the course of 1991 and in a part of 1992,

10 that I was called up to form the reserve formation of the Yugoslav

11 People's Army. And the military ID card also indicated that I had trained

12 as a mine expert, mines expert, and all this data was recorded in my

13 military ID, in my army booklet. And I stressed that while I was a member

14 of the reserve formation and when I was mobilised twice beforehand in 1991

15 or 1992, that I had done considerable work with mines and the demounting

16 of mines, and that I had gained considerable experience, and that I would

17 like to continue working in the field because, as far as I was able to

18 see, there were quite a lot of problems in that area.

19 Q. You said that you had served your regular military service. Could

20 you tell us where?

21 A. After I graduated from secondary school in 1981, I did my regular

22 military service. I was trained, which lasted -- a three-month training

23 period in Kalinovik, and the rest of my military service up to the 12

24 months I spent in Mostar.

25 Q. You said that you told them that you were a mines expert and an

Page 4385

1 expert for ammunition and explosive devices. Could you explain to us in

2 greater detail what you mean and what branch of the army this is, in fact?

3 A. Well, when I underwent my three months of training, both -- I

4 gained theoretical and practical knowledge with all types of ammunition,

5 all types of explosives and mines and mine devices, fuses, and other

6 explosive devices. And this particular section or branch of the army

7 belongs to the engineer's unit, the engineering unit, and it is the

8 pioneer engineering unit, which in peacetime implies a branch of the army

9 working with maintenance and destroying ammunition that has served its

10 time on the territory of the former Yugoslav, in peacetime as I say.

11 But in time of war, it is the job of the pioneer engineering unit

12 to deal with mines and explosive devices, that is, to detect minefields

13 and to dismount all the explosive devices and to destroy them; or in the

14 defence area, to lay down minefields and thus defend the territory in this

15 way, by using mines and explosive devices, and preventing the enemy from

16 taking control of the area being defended.

17 Q. Before you signed up as a volunteer, did you have a rank of any

18 kind?

19 A. When I did my regular military service, after my training period I

20 was dispatched to Mostar for nine months, and I worked in the repair shop

21 for mines and explosive devices, and I underwent an additional one-month

22 training course there for the handling of such devices, mines and

23 explosive devices. And after I completed that training, I became a lance

24 corporal; I acquired the rank of lance corporal.

25 Q. Could you explain what is meant by the rank of lance corporal?

Page 4386

1 You said it was an army rank, but what competencies did the rank involve?

2 A. Well, the rank of lance corporal in translation meant that I was

3 head of the work done, that is to say, when we were assigned -- given an

4 assignment in peacetime to control mines or weapons or devices, I would be

5 the person in charge of control of these devices. And I would have four

6 or five people working with me who would open the cases, but I would

7 control the ammunition, check it, examine it, and make a record of the

8 ammunition in the -- these boxes, cases that we opened, and so that was

9 mostly my job as a lance corporal during that time.

10 I had no greater competencies than anybody else. I was just

11 responsible for the work I did, that is to say, the cases that were

12 opened; and by signing my name to the records, I was merely stating that I

13 had checked and examined the contents of the cases so if there was

14 anything amiss, then they could call upon me, and I could be upbraided for

15 not having done my work properly. But the other soldiers working with me,

16 each of them had his own work and his own assignments. So I had no

17 concrete, direct competencies over them. I was not able to issue them

18 orders of any kind or anything like that.

19 Q. When you say that you had no specific competency or

20 authorisations, does that mean that you had no right to discipline any of

21 the soldiers who were working with you when you were examining the

22 contents of the cases?

23 A. No, neither in peacetime nor later on during the war did I as a

24 lance corporal, or the leader of a group, have any competencies of that

25 kind in units of that kind. There was no right to either commend or

Page 4387

1 discipline any soldiers because we were all part of a larger unit and

2 subject to the commands of other units, the smallest being the platoon.

3 Q. So when you were on an assignment, when you were given an

4 assignment, how many soldiers did you have in your group as a lance

5 corporal? And I'm talking about the time you did your military service

6 and when you were given the rank of lance corporal.

7 A. In peacetime, a soldier having the rank of lance corporal could

8 have a maximum of ten people with him, and that is why the term "desetar"

9 includes the word "deset" meaning ten. So ten people were the maximum

10 number of men that the lance corporal could have working with him in

11 performing his assignment.

12 Q. This group of ten men, can it be considered a military unit in any

13 way?

14 A. That group of ten men was what we referred to as a working group,

15 and according to military hierarchy, it cannot be considered a unit proper

16 in the military sense because in military hierarchy, the smallest military

17 unit is a unit which is commanded by an individual with the rank of a

18 lower officer and a platoon, and a platoon is composed of three or four of

19 these smaller units. So 30 to 40 persons, perhaps, to a platoon, and that

20 hierarchically speaking is the smallest structure which could be termed a

21 unit.

22 Q. So do I take it that a platoon was the smallest structural unit?

23 You said that the platoon was commanded by a platoon commander and a

24 sergeant. Could you explain to us what a "vodnik" or sergeant is?

25 A. A platoon is the smallest unit with a commander who is duty-bound

Page 4388

1 to have a military secondary school degree, and by completing this, he

2 receives the rank of non-commissioned officer; or if he has completed his

3 secondary level military training and has gone on to higher training, he

4 then undergoes additional military training which lasts six months, and

5 having completed this training, he can gain the rank of staff sergeant

6 and/or junior sergeant. So that is the lowest rank in the hierarchy of

7 military structure, junior non-commissioned officer.

8 Q. You said that the platoon was the smallest unit, the basic unit.

9 How many squads has a platoon got?

10 A. Usually the system was that one platoon had three squads or

11 sections, depending on the structure of the platoon itself. There were

12 special purposes units, for example, with a number of these working groups

13 because we said it was a working group. But a platoon had between 30 and

14 40 persons, and these persons were commanded by the sergeant, that is to

15 say, a trained, educated, non-commissioned officer capacitated in the work

16 of command for this level of command.

17 Q. Can you tell us what the competencies and authorisations of the

18 sergeants were?

19 A. The sergeant himself in practical terms was there to convoy orders

20 by a higher command to the leaders of these squads or working units. He

21 is the person who conveys orders given to him down the line to people on

22 the ground entrusted with an assignment, and he has the right to issue

23 orders to each of those 30 or 40 men in his platoon.

24 Q. During the wartime operations in the Foca municipality as a member

25 of the army of the Republika Srpska, that is to say, from the day it was

Page 4389

1 formed, did you in practical terms or theoretically have the rank of lance

2 corporal?

3 A. No. In actual fact, I never bore rank of any kind, nor did I have

4 any insignia or stripes on my uniform indicating to others that I held a

5 rank of any kind, the rank of lance corporal. As I said, this was, in

6 inverted commas, a rank. It did not actually represent anything which to

7 others could indicate my right to command anybody on the basis of that

8 rank, because I was a rank-and-file soldier like all the other soldiers,

9 but I was soldier who was capacitated for performing a given function, and

10 it was on the basis of my expert knowledge that I gained this so-called

11 rank. But actually, in actual fact, I had no rank in terms of command

12 throughout the conflict in the territory of Foca, in the Foca

13 municipality, and since I arrived there.

14 MR. PRODANOVIC: [Interpretation] Perhaps, Your Honours, this is a

15 good moment to pause. I see from the clock that it is 1.00.

16 JUDGE MUMBA: Yes, Mr. Prodanovic. Thank you.

17 We shall rise and continue in the afternoon at 1430 hours.

18 --- Luncheon recess taken at 1.00 p.m.








Page 4390

1 --- On resuming at 2.30 p.m.

2 JUDGE MUMBA: Examination of the accused continues.

3 Mr. Prodanovic.

4 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour.

5 Q. I wish to remind you that you said that while you were in the army

6 of Republika Srpska, that is to say until the war ended in 1995, that you

7 did not get any rank. Can you tell us, nevertheless, whether you got any

8 rank?

9 A. While the conflict was still on, that is to say, before the Dayton

10 Accords were signed, while I was in the army of Republika Srpska, I never

11 got any rank nor was I ever promoted. However, after I was wounded and

12 after the Dayton Accords were signed, I remained disabled, and then an

13 offer was made to me that as a disabled person, I remain in the army of

14 Republika Srpska after all and that I work in Signals Corps, and then I

15 was promoted to the rank of sergeant. However, because of my disability,

16 I could not get medical clearance and I could not sign this contract for

17 the job that had been offered to me; that is to say, in 1997 when, my

18 prosthesis was put in place, I got the lowest rank of non-commissioned

19 officer or sergeant.

20 MR. PRODANOVIC: [Interpretation] Your Honours, the Defence has a

21 certificate stating that the accused Kunarac did not have a rank during

22 the war conflict and that he got a rank on the 6th of February, 1997. He

23 became a sergeant. We would like to tender this into evidence. We would

24 like it to become a Defence Exhibit. You have all received this set of

25 papers that we wish to be admitted into evidence eventually. This is

Page 4391

1 number 72.

2 JUDGE MUMBA: Yes. Could we have a formal number, please.

3 THE REGISTRAR: [Interpretation] Can we please get a copy of this

4 document? We do not have a copy of this document. Is this a new

5 document?

6 MR. PRODANOVIC: [Interpretation] No.

7 JUDGE MUMBA: Can the usher please get the document and show it to

8 the registrar? Maybe --

9 MR. PRODANOVIC: [Interpretation] In order to facilitate matters,

10 we put this into these binders or files, and we provided a sufficient

11 number of copies to the Chamber, to the Registry, and to the Office of the

12 Prosecutor. We thought that it was easier this way and that it was easier

13 to be handled in this way. Of course, we can --

14 JUDGE MUMBA: Could I have an explanation from the Prosecution,

15 please?

16 MR. RYNEVELD: Sorry, Your Honour. I didn't hear you.

17 JUDGE MUMBA: Do you have the documents?

18 MR. RYNEVELD: We do. Yes, we do.

19 JUDGE MUMBA: Yes. We do also. I don't know --

20 JUDGE HUNT: Has it got a page on it, a page number?

21 MR. PRODANOVIC: [Interpretation] Your Honour, it is number 72

22 according to the filing system that we used. We did not put any

23 pagination on it because these are different documents altogether.

24 So may I repeat, it is obvious, on the basis of this document,

25 that on the 6th of February, 1997, the accused got the rank of sergeant,

Page 4392

1 that is to say, after the Dayton Agreement was signed.

2 JUDGE MUMBA: Yes. Mr. Prodanovic, because the registrar says she

3 hasn't seen the document, I just wanted the usher to show her for purposes

4 of her formally numbering it.

5 Madam Registrar, is there a problem?

6 THE REGISTRAR: [Interpretation] Could this document -- well, yes,

7 we do have a problem. All these documents were submitted to all the

8 parties concerned before the documents were being produced in court;

9 however, unfortunately, the Registry did not receive this document.

10 Therefore, I would ask kindly, if possible, every time when a document is

11 tendered could one copy of this document please be provided to the

12 Registry, because the Chamber has to decide whether the document will be

13 admitted or not. It is only then that we can give this document an

14 official number.

15 So I hope, since obviously there has been a small problem, I hope,

16 I repeat, the Registry doesn't have a copy of this document and, please,

17 could a copy of the document concerned be provided every time.

18 JUDGE MUMBA: For purposes -- so that we can continue --

19 Mr. Usher, please -- all I want to do is make sure that the Registry can

20 see what the document is all about so that when they have a corresponding

21 copy, then she'll be able to know that that is exactly the same document.

22 In the meantime, any objection to its admission, from Prosecution,

23 please?

24 MR. RYNEVELD: We do not object. Thank you.

25 JUDGE MUMBA: Can we have the formal number, please? It's

Page 4393

1 admitted into evidence.

2 THE REGISTRAR: [Interpretation] Yes. This certificate dated the

3 6th of February, 1997, will be number D72 [sic]. It will be a Defence

4 Exhibit.

5 JUDGE MUMBA: Thank you.

6 MR. PRODANOVIC: [Interpretation] Let me just clarify matters. If

7 necessary, after court, we will photocopy everything that has been

8 admitted, and we will submit these copies to the Registry, because we

9 would like to tender five or six documents today.

10 MR. RYNEVELD: If I just may, and for the purposes of

11 clarification, and I do not wish to make any difficulties for the

12 registrar who was assigning D72, but I think we already have a D72 in the

13 list that we have, and that was Witness 105's statement dated the 15th of

14 August, 1992. Now, I could be incorrect, but the last number we have on

15 our list is D74/A.

16 JUDGE MUMBA: Yes. Thank you.

17 THE REGISTRAR: [Interpretation] I'm afraid that there has been an

18 interpretation problem. This is document D76.

19 MR. RYNEVELD: Fine. Then I don't have a problem.

20 JUDGE MUMBA: It's quite scary to have such a problem with

21 interpretation.

22 MR. PRODANOVIC: [Interpretation] Perhaps the mistake is because we

23 marked it as 72 over here. So in order to have better insight into this.

24 JUDGE MUMBA: Yes. I think we will be correcting that. Because

25 it's easier for you when you call your number and then the Registry, since

Page 4394

1 they will have their own list, they will be able to give us the formal

2 number for purposes of the evidence. Thank you.

3 MR. PRODANOVIC: [Interpretation]

4 Q. Let us go back to your arrival in Foca, which was on the 6th of

5 June, 1992. You said that on the 8th of June, 1992, you reported to the

6 Ministry of Defence as a volunteer.

7 What did you do on the 7th of June and what happened on that day?

8 A. After arriving on the 6th of June in Foca, I went to my parents'

9 house. That night I told my father and my mother that I wanted to

10 volunteer. My father tried to persuade me not to do so because my wife

11 and my 13-month old child were back in Tivat and my wife was pregnant,

12 five months pregnant, as well at the time. I talked to them on Sunday

13 too, and I even started wondering whether I should give up on the whole

14 idea altogether.

15 In the afternoon, at 5.00 or 6.00, a relative of ours called and

16 said that Lazar Kunarac, a close relative of mine, was killed, that he was

17 killed by a mine. Then my father and I went to express our condolences to

18 his family, which is customary, and we sat there and we talked at their

19 house. There were quite a few relatives present. And the fact that Lazar

20 was killed by a mine and that three other people were killed on that same

21 day and on the same occasion, I went to the hospital and I saw these

22 corpses and all the corpses were dismembered. Also on the 28th of May my

23 father was also wounded by a mine. I decided firmly that moment that I

24 would go to the military department in the morning and I would volunteer.

25 Q. Very well. You are trying to say that that was a turning point

Page 4395

1 which only reinforced your conviction to stay in Foca?

2 A. Yes. Yes. This second mine that killed these four other persons

3 confirmed this decision of mine and nothing could make me change my mind.

4 I remained, and on Monday I volunteered to the military as a volunteer.

5 Q. Can you give us the names of the other three men who were killed

6 when your relative Lazar Kunarac was killed?

7 A. Yes. I know that Lazar Kunarac was killed then, and also his

8 wife's brother Fundup, and together with him were two other men whose

9 names I cannot remember right now, but all four of them were killed on the

10 spot. They were in a civilian vehicle.

11 Q. Very well. Can you explain how it happened that they were

12 killed?

13 A. A few days later, after five or six days, I was there on the

14 actual scene, and I saw that they were on a forest road, a macadam road,

15 that went by the Serb defence lines, and they stepped on an anti-tank

16 mine. They were actually in a civilian vehicle, and their vehicle was

17 blown up by this mine, and also their bodies were dismembered, and all the

18 remains of their bodies were lying on a cloth.

19 Q. You said that this place is called Nekopi. Can you tell us where

20 this is exactly if we look at the Drina River, whether it's on the left or

21 on the right bank?

22 A. Nekopi? Nekopi? This place Nekopi where they stepped on a mine

23 is on the left bank of the Drina River after Ustikolina towards Osanice on

24 the northwest, some ten or 12 kilometres towards Stolac. Later on when I

25 show these things on the map, I can show you also exactly where this

Page 4396

1 particular incident occurred. So this is on the left bank of the Drina.

2 That is where the first and the second battalion were, and that is where

3 the defence lines were held.

4 Q. Do you know who placed these mines? Whose mine was it that they

5 came across?

6 A. The persons who had placed that mine were not caught, but it is

7 evident on the basis of facts that this was done by men who were on the

8 Muslim side, that is to say, on the other side in the conflict. Other

9 people spoke of what had happened there, and they said that they had

10 reached the end of the defence lines. They spent an hour, an hour and a

11 half there, and then on their way back as they were taking the same road,

12 they stepped on a mine.

13 It was also a fact that in the military department, in fact, the

14 Territorial Defence of Foca, it so happened, or intentionally, there was

15 not a single person who was a specialist for fireworks and for this kind

16 of thing. All of them were Muslims. And quite a few mines were placed in

17 the territory of Foca at that time, especially on the left bank of the

18 Drina, Ustikolina, Miljevina, Tjentiste, Staline, and further on.

19 Q. On the 8th of June when you reported to the military department,

20 who did you find there?

21 A. I said that in the evening I went to express my condolences, and

22 in the morning immediately at 7.00 I went to report to the military

23 department immediately at 7.00. I took care of the administrative matters

24 concerned in the military department, and Aleksandar Krnojelac came also

25 to the military department. Until then there were no other persons in the

Page 4397

1 military department, that is to say, in the department -- in the building

2 of the Ministry of the Interior.

3 Then we got a certificate from the military department saying that

4 we had volunteered, and this certificate said that we had volunteered, and

5 together with that we were sent to Livade to get military equipment and

6 weapons.

7 Q. Tell us, please, what were you told in the military department?

8 Were you immediately assigned to military units according to the arms and

9 services that you were in while you did your military service?

10 A. In the military department I was told that a complete brigade had

11 not been set up according to the military structure prescribed and

12 according to the military specialities of all persons concerned, and that

13 for the time being, we would be assigned to battalions because until -- at

14 that moment, that is, we practically became soldiers of the Serb entity of

15 the town of Foca.

16 Q. So from the military department you went to Livade and to the

17 depots of the Territorial Defence in order to be issued weapons and

18 equipment. Did you see any other persons there?

19 A. Aleksandar and I arrived in Livade the first. No one was there

20 before us at that moment. We were issued with equipment, that is to say,

21 uniforms and weapons, and then in the meantime another group of men

22 arrived. These four or five men arrived after us, that is, and I knew two

23 of them from before. Amongst them I knew Uros Radovic and Mileta

24 Kovacevic. They were also from Foca by origin, and they had not been

25 mobilised before that, that is to say, they were not members of the army

Page 4398

1 until then.

2 Q. You said that you were issued equipment, that is to say, uniforms

3 and weapons. Do you know what others were issued with at that time?

4 A. I said that I was issued an automatic rifle. Aleksandar Krnojelac

5 was also issued an automatic rifle. Later after all of this was over, I

6 saw that Mileta and Uros Radovic were also issued automatic weapons. The

7 two or three men who were there with them I know that one of them got an

8 old-type rifle, M-48, with five bullets; and another one of them got 7.6

9 millimetre calibre -- 7.62 calibre rifle, semi-automatic.

10 Q. What weapons were there, and according to what principle were the

11 weapons distributed?

12 A. Usually the younger men who were healthier and more fit were given

13 automatic or semi-automatic weapons. Older people who are over 40 and who

14 are also liable for military service were issued with semi-automatic

15 weapons or M-48 rifles, which were the oldest type of rifle used in the

16 former JNA.

17 Q. Did you notice the condition the weapons were in?

18 A. Well, yes. A rifle that I was issued with I had to clean at once

19 because it had been reserved, and I saw that it had been used before that,

20 and it was already quite damaged. It was obviously a weapon that had been

21 used when the old -- the former Territorial Defence was mobilised while we

22 had a unified Territorial Defence. So it was not a new weapon, it had

23 already been used, and we were issued with it.

24 Q. Tell us how it came about that you were issued with weapons and

25 equipment by the Foca Territorial Defence? Did those weapons remain in

Page 4399

1 Serb hands?

2 A. When the conflict broke out in Foca in the period from the 7th to

3 the 17th as mentioned in the indictment, I was not on the territory of the

4 municipality of Foca, and I was not a witness to these events; but

5 according to what my father and other people told me, I heard that there

6 were clashes in those days, and one of the first armed conflicts was

7 around Livade, around the Territorial Defence depots.

8 Since these warehouses were very near the Serb village of Prevrac

9 which is inhabited exclusively by Serbs, and they had village patrols

10 because they were afraid, they managed to take those depots by military

11 means and to keep the ammunition and use it later on to arm the Serbian

12 people, the Serbian part of the territory of the Foca municipality.

13 Q. At that time did you hear how the Muslims were arming and where

14 they got weapons from?

15 A. As I have said, I was not on the territory of the municipality of

16 Foca, but I can say according to what I heard and also read in the press,

17 I heard that ever since 1990, even before the war broke out there, was a

18 very strong Muslim organisation dealing in military weapons, and I heard

19 that one of the chief organisers of all this was Sahinpasic, also known as

20 Saja, whom I knew from before. He was a merchant before the war. He had

21 his own trucks, and he dealt in weapons, and he armed his own side.

22 Q. When you were issued with equipment and weapons, where were you

23 sent?

24 A. On that day, that is the 8th of June when I was issued with

25 weapons, I did not go to perform any tasks because that was the day of the

Page 4400

1 funeral of my cousin Kunarac, but then I was sent to the neighbouring

2 building where I was assigned, and I said that I had to go to a funeral,

3 so they told me to come the following morning, and I would be assigned to

4 a certain battalion and assigned a certain task.

5 Q. So on the 8th while you were at Livade, did you meet anyone there,

6 and did you talk to anyone?

7 A. After being issued with weapons, I was sent to a third building

8 that was there, and there was an office in that building. In that office

9 they were assigning all the new arrivals regardless whether they were

10 volunteers or had been conscripted, and they were assigned to the units

11 that existed on the territory of the municipality of Foca. I talked to

12 the person assigning men, and we talked between half an hour and

13 three-quarters of an hour.

14 Q. Did you express a wish to that person as to what you wanted to do

15 and what branch of the army you wanted to serve in?

16 A. Yes. I said at that time that I had been trained, and that I was

17 a reservist for a few months in the army of Yugoslavia, and that I had

18 quite a lost experience with mines; and all the incidents involving mines

19 in the municipality of Foca made me insist on being assigned to a unit

20 that would have to find mines and clear the terrain of mines. I wanted to

21 do what I was specialised in, in my military training.

22 Q. Tell us, had battalions being formed at that time, and can you

23 tell us what a battalion is if they were?

24 A. Yes. On the 8th of June, there was already a military line held

25 by the Serbian side in the conflict. According to the establishment,

Page 4401

1 there were battalions even though it was still actually the Territorial

2 Defence, because the entire chain of command in the battalions had not yet

3 been established. But a battalion is a military unit consisting of at

4 least three companies, and the company consists of at least three

5 platoons, so a battalion is a group of 300 to 450 men.

6 Q. You said that you had some experience before your arrival. Can

7 you tell us what you meant when you said that, that you had experience?

8 A. As I have already said, in 1991, when there was a conflict around

9 Tivat, along the border between Montenegro and Croatia, I was mobilised.

10 Then I was in an engineer's unit, and I have to clear the area of land

11 mines.

12 Also, I was mobilised for a second time in 1992, and again, I was

13 in a unit that had to remove minefields laid by the army of Yugoslavia.

14 And the army of Yugoslavia was already withdrawing to the territory of the

15 federal state of Yugoslavia, and I was in a unit that cleared all the

16 territory of mines, and we withdrew from the former Yugoslav republics on

17 the 15th of May.

18 So when I say I have experience, I meant I had experience in

19 finding mines, removing mines, and that is what I meant.

20 Q. Can you tell us, was your experience important in your

21 assignment? Were you assigned on that day?

22 A. As I said just a moment ago, when I expressed my wish to join a

23 unit of that kind, the person I talked to said that they had not yet set

24 up an engineer's unit that would do the tasks of pioneer engineers, tasks

25 to do with mines. So he said that in the Territorial Defence, they did

Page 4402

1 not have anyone who had training in handling mines or explosive devices

2 because, as I said, whether it was by chance, I don't know, but the entire

3 Territorial Defence before the war did not have a single Serb in that part

4 of the army, and it was very rare all over the former Yugoslavia. Travnik

5 was the only place where there was this kind of specialised training, and

6 there were only 30 men a year that went through this training. There were

7 three mobilisations of ten men. So very few people were trained for such

8 activities in peacetime.

9 Q. You did not respond to the question of whether you were given your

10 assignment on that day.

11 A. On that day when we talked, I was told that they would think about

12 my suggestion. And because I had to attend my relative's funeral, I was

13 told to come back the following day; and in the meantime, they would tell

14 the superior command about my request, and that they would give me my

15 military assignment on the following day, and assign me to a unit that the

16 command of the Territorial Defence would determine, and later that became

17 a brigade.

18 Q. Can you tell us what happened next after that conversation in that

19 building?

20 A. When I finish the conversation, I left that office, and I saw a

21 person who was introduced by the others as the commander of the

22 Territorial Defence. Later he was the commander of a tactical group or

23 brigade of the Serbian army, of the Foca Brigade.

24 Q. Did you have any contact with that commander on that day?

25 A. He went into the office, and after that I went to the funeral.

Page 4403

1 During the funeral of Lazar, my relative, I had an opportunity to talk to

2 the commander, and I did tell him what I thought, and he asked me about my

3 experience; and then he told me that I should report to Livade on the

4 following day, and that I would be given an assignment and sent to perform

5 that assignment.

6 Q. Did you suggest anything to him about your wishes?

7 A. In our conversation at the funeral, we talked about mines and what

8 was happening. I told him I had experience with mines and that that was

9 what I would like to do in the military, and that I would like to be

10 assigned to such tasks.

11 Q. How did the commander respond to this?

12 A. Well, at the funeral he said that he would think about it and that

13 most probably he would accept my proposal, although, in our conversation

14 he mentioned that he was thinking of sending a number of men, up to ten

15 men, to Bjelica to be trained for 10 to 15 days to carry out demining

16 tasks, and he asked me whether I wanted to go. I told him that I had

17 already done that training and it would be a waste of time. Later I

18 learned that he had sent ten other men there and that they had completed

19 that training.

20 Q. The task, was it something you could do on your own?

21 A. Well, practically the first task I was assigned was on the

22 following morning when I came to Livade and when I was told to go in the

23 direction of Ustikolina. On that day they sent six or seven men with me

24 because it was not a job I could do on my own. I could -- and my duty was

25 to find a mine and to dismount it, but while I was doing this, I had to

Page 4404

1 have a certain number of men with me to make sure that a vehicle did not

2 pass by while I was working, to secure the area around the place where I

3 was removing a mine so that I could concentrate exclusively on my job and

4 not to have to pay attention to other things going on around me.

5 Q. Would you tell us in what direction you went or, rather, what area

6 you were supposed to work in?

7 A. I came to Livade, and I was told to go to Ustikolina and that I

8 should report to the commander of the 1st Battalion in Ustikolina, and I

9 was told what I would have to do, and that would be to control all the

10 communications from Ustikolina in the direction of Osanice in our rear,

11 all communications used to transport food and ammunition in the area from

12 Ustikolina to Pljevlja, which was the end of our military line.

13 Q. I would like to ask you now to show, first of all, Foca, the town

14 of Foca, and the direction in which you set out to perform your first

15 task.

16 THE INTERPRETER: Microphone, please.

17 JUDGE MUMBA: Can the usher please assist?

18 THE INTERPRETER: Microphone, please.

19 JUDGE MUMBA: Mr. Usher, please assist.

20 A. Let me repeat. Foca is approximately in the centre of this map,

21 and at the very bottom on the south, this is the town of Foca. Ustikolina

22 is downstream, down the River Drina north-north-west on the 12th kilometre

23 from Foca in the direction of Gorazde at the mouth of the river Kolina.

24 This is the village of Ustikolina.

25 MR. PRODANOVIC: [Interpretation]

Page 4405

1 Q. The village of Nekopi?

2 A. The village of Nekopi is to the north-west, in the direction of --

3 in the direction of a feature 115, and 1.902. This is west, the village

4 of Nekopi is to the west of that.

5 Q. Was there a demarcation line at that time between the Serbian and

6 the Muslim military units?

7 A. At the time I arrived there, on the Serbian side there was not a

8 real complete military line with trenches and everything else that is

9 needed because this is mountainous terrain. They were mostly on

10 elevations from which they could see better, so they were located at

11 certain points near Dajva, Zebina Suma. This was the front line along the

12 River Drina. Then it went via Okolista, 923, and then to Nekopi. This

13 was the defence line of the Serb army, and the Muslim army was in front of

14 those positions, depending on the terrain, somewhere between 200 and 500

15 metres away in the direction of Osanica.

16 Q. Could you please sit down now. Since you are going to look for

17 mines, did you have any technical equipment available?

18 A. I knew very well what I needed to find mines successfully, to

19 detect it, which is the hardest part of the job; however, when I arrived

20 in Ustikolina and reported to the commander of the 1st Battalion whose own

21 responsibility it was, he already knew I was coming, and he told me

22 literally I could go out. I said, "What should I go with?" He said, "We

23 have nothing." We did not have metal detectors or anything like that.

24 What I had to do was simply visually look at the road, and I had a rod, a

25 probe, a metal probe to push into the ground to find where the mine was in

Page 4406

1 order to disable it and remove it, deactivate it. We did not have any

2 other kind of technical equipment to detect mines with.

3 Q. You said that you reported to the commander of the 1st Battalion

4 and that the commander of the 1st Battalion was there. Were you given a

5 specific task by the commander of the 1st Battalion?

6 A. Yes. When I reported to the commander of the battalion, there

7 were six of us, as I have said. We were transported there in a truck as

8 far as Ustikolina, and then he told me to go from the kitchen of the

9 1st Battalion, which was behind Ustikolina where the company Ljekobilje

10 was before the war, to check all the roads from there to the front line

11 held by the Serbs, as they'd been [indiscernible] in the direction of

12 Nekopi and further on in the zone of his responsibility.

13 Q. When you reported to the commander, under whose control were you

14 yourself?

15 A. At the time when I came there, when I was sent there, I was in --

16 within the composition of his battalion, his area of responsibility, and

17 thereby under his command. He was the person who issued concrete tasks

18 that I was to do. He ensured the rear. He was responsible for me and the

19 other men, and he was my superior commander.

20 Q. Did you receive food from that unit?

21 A. During the time from Ustikolina to Nekopi, I stayed there until

22 the 19th or 20th, that is to say some ten days, and all our daily

23 activities boiled down to the fact that we controlled the roads from

24 morning to night. They were all forest roads because the area under the

25 control of the 1st Battalion, there was no proper road. They were all

Page 4407

1 forest paths or roads, and it was my job to control them. At the end of

2 the day when I came up to the line, I would spend the night there at one

3 of the positions, and we would receive our meals there like all the other

4 members of the army up at the front line.

5 Q. You said that you stayed there until the 20th of June or

6 thereabouts, did you not? Tell us why you needed so many days.

7 A. That particular area stretching from Ustikolina to Pljevlja, in

8 fact, which was the line held, as the crow flies that, is about 10 to 13

9 kilometres. The terrain is hilly, and there are a lot of approaches.

10 There are a lot of forest roads as well. It was my task to check out all

11 the communications that were used because, as I say, for the 1st Battalion

12 there was no main communication line from which you could take food to all

13 the other positions, but we had to use these forest roads or paths.

14 On this stretch of road, that was precisely the place where my

15 father was wounded, around the Zebina Suma area. They were taking food to

16 the front line and returning, and they came across a mortar on May the

17 5th, and from that day onwards, to all intents and purposes, at least once

18 a week one or two mines were placed in the area, and lots of people were

19 killed as a result of those mines.

20 Q. Were you ever told why this assignment was important? Was that

21 the reason?

22 A. Well, I realised why I had to do this work, because food had to be

23 taken up to the front lines and all the other materiel that was necessary,

24 so we had to use those roads and paths for these people. The men up at

25 the front line had to be fed and to receive the equipment they needed.

Page 4408

1 In addition to that, I was given the task of trying out some of

2 these roads; that is to say, my assignment was, the seven of us there,

3 that if we were to encounter any other groups of this kind, that we should

4 fight them and make it impossible for them to lay down the mines. But

5 luckily this did not happen, and we did not have any contact with the

6 opposite side, the enemy side.

7 So in the course of those ten days, I was on the spot, the place

8 where my father was hit by a mine and where another person was killed and

9 three other people were wounded, were injured.

10 Q. Yes, I'll come to that in just a moment, but can you tell us about

11 that particular month, that is to say, from May onwards to the end of the

12 month of June, how many people died? How many people were killed by mines

13 in the Foca municipality? Could you give us a rough estimate or tell us

14 the exact number?

15 A. Well, I do that before the engineer's unit took up their positions

16 from the 29th of May, that is the day when my father encountered a mine

17 and when another person was killed and another one was injured, up to the

18 30th of June, 32 people had lost their lives, both civilians and

19 soldiers. Eighteen individuals were injured exclusively by the mines, and

20 all those mines were laid, for the most part, in this area, Zebina Suma,

21 Nekopi, Miljevina. One, a young girl, stepped on a mine there towards the

22 end of the month and she was killed. She was going along this road by

23 car. Then at Tjentiste on the 22nd, eight or nine people were killed when

24 they came across a mine. At Tjentiste, the beginning of June, some more.

25 So 23 people were killed, individuals, soldiers and civilians, and

Page 4409

1 18 were injured. Of those 18, they are all serious invalids, missing an

2 arm or a leg or things of that kind.

3 MR. PRODANOVIC: [Interpretation] Your Honours, the Defence has a

4 document which shows how many people were killed as a result of land mines

5 in that one month, and we should like to tender this into evidence. We

6 feel that the document is relevant also because the witnesses, for the

7 most part the Prosecution witnesses, said that they only had hunting

8 rifles, and only some of them had hunting rifles. So the Defence would

9 like to tender this document into evidence.

10 JUDGE MUMBA: We'd just like to find out, what is the official

11 title of the document?

12 MR. PRODANOVIC: [Interpretation] Your Honour, I asked the command

13 to tell me how many people were killed in this period and how many were

14 injured, and the command -- this is the command's response. "With respect

15 to your request with respect to the members of our brigade," et cetera, et

16 cetera, "we send you the information of the fighters that were killed and

17 injured in May and June 1992 and the others killed by enemy mines." And

18 this document states the names and surnames of individuals who were

19 injured, where they were injured, and where they were killed; but this

20 document does not record the superficial injuries, just the serious

21 injuries and the persons killed.

22 JUDGE MUMBA: The Prosecution --

23 MR. PRODANOVIC: [Interpretation] And we have the document numbered

24 as document 78.

25 MR. RYNEVELD: That answers the question I was about to rise.

Page 4410

1 Thank you. That will help us to identify it.

2 JUDGE MUMBA: Any objections?

3 MR. RYNEVELD: Might I just double-check? I had to find out what

4 document I was looking at first. Now that I see which one it is, we have

5 no objections. Thank you.

6 JUDGE MUMBA: Yes, can we have the formal numbering by the

7 registry, please.

8 THE REGISTRAR: [Interpretation] This document will be marked D77,

9 and it is Defence exhibit, a document dated the 19th of August, 1999.

10 JUDGE MUMBA: Yes, you can proceed.

11 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour.

12 Q. Can you tell us whether you ever went on assignment towards

13 Tjentiste to examine the mines?

14 A. As I said, I was on this assignment from the 9th or the 19th or

15 20th of June, which means 10 or 11 days. I'm not quite sure of the exact

16 date, but I do know that on that occasion, that is to say on that day, I

17 was sent to Tjentiste. That is to say, the command called me, and they

18 told me that I should go to Tjentiste with three or four other men because

19 there was a car with two individuals which came across an ambush, and the

20 two individuals were wounded in the ambush. And Milica Kovacevic,

21 Krnojelac, as well as myself, as well as Uros Radovic went to Tjentiste

22 and examined the area where the ambush had been set up because we thought

23 there might have been a mine laying there. So we checked out the main

24 road from Foca to Tjentiste, the Foca-Tjentiste main road.

25 Q. You said that on one occasion in June, nine individuals lost their

Page 4411

1 lives during one day at Tjentiste.

2 A. Yes, that was after I had left for Tjentiste, after I got there.

3 I think the first ambush occurred on the 19th or 20th of June, and when I

4 said that nine people were killed, and I think that an equal number was

5 injured, that was on the 22nd of June. I know that for sure because on

6 that day several of my relations were victims, and Aleksandar Krnojelac as

7 well. Two close relatives of mine, they were maimed. One of them had

8 both his legs blown off, the other had one leg blown off, and they were in

9 a minibus going along that road, and on that day eight or nine people were

10 killed as a result of that explosion.

11 Q. Tell us, please, the locality where these eight or nine

12 individuals lost their lives, was that in the direction of the village of

13 Trosanj? Is that -- the road to Tjentiste, does it pass through the

14 village of Trosanj? What is the distance as the crow flies from Trosanj?

15 A. The place where that mine, that particular mine was laid was below

16 Zebina Suma, that is to say, above Tjentiste itself. But to reach

17 Tjentiste, you had to go on the main road from Foca via Brod below Trosanj

18 through the village of Mjesaja to reach Tjentiste. So from Tjentiste to

19 Mjesaja, the distance there, Tjentiste-Foca is 20 kilometres, this means

20 that would be about 14 to 15 kilometres by road from Trosanj to the place

21 where the mine was laid.

22 And the ambush itself was set up before that locality after

23 Previla, after the turning towards Tjentiste. And there were frequent

24 ambushes there. The cars were shot at, and a number of people were killed

25 in those ambushes. This was effected by small groups of Muslims coming

Page 4412

1 from Trebova, and we were able to see that on the basis of their traces,

2 the tracks they left, and we saw that they were coming from Mount -- going

3 towards Mount Zelengora towards Trebova. But as there were only four of

4 us, they opened fire on us near the village of Kusava and we returned from

5 that assignment. So in fact we were in the Tjentiste area for just one

6 day, Aleksandar Krnojelac, Vuk Kovacevic, and the other man on that one

7 particular day.

8 Q. Bearing in mind the indictment against you, I should like to focus

9 your attention on the month of July 1992. Let's focus on that for a

10 moment.

11 You have had occasion to hear the order of the 7th of July, 1992,

12 brought up here several times. Now, are you acquainted with that

13 document? Let me remind you. It is the document which mentions your

14 name.

15 A. That particular order, that is to say, that particular document I

16 saw for the first time when it was shown as evidence by the Prosecution.

17 I did not have occasion to see the document before that, but I did read

18 the order.

19 JUDGE MUMBA: Before the interpretation continues, can we have the

20 formal number of this document? Was it produced in evidence? Can we just

21 have the formal number given by the registry so we all know what document

22 the accused is discussing.

23 MR. PRODANOVIC: [Interpretation] Yes, Your Honour. The order was

24 presented by the Prosecution. I can't tell you the number now. I think

25 it might have been Prosecution Exhibit 5 perhaps.

Page 4413

1 MR. RYNEVELD: I believe it's two, Exhibit 2, the battle order.

2 That's what he's talking about.

3 MR. PRODANOVIC: [Interpretation] Yes, yes.

4 MR. RYNEVELD: Exhibit 2.

5 JUDGE MUMBA: So it was Prosecution's Exhibit 2. Okay, you may

6 proceed.

7 MR. PRODANOVIC: [Interpretation]

8 Q. You said that you saw the battle order for the first time then.

9 Do you know the contents of it?

10 A. I said that I saw the document in detention when the Prosecution

11 put forward the battle order as evidence against me. Then I had occasion

12 to read the battle order, its contents, and when I turned my memory back

13 to those times, I remembered what was being ordered in -- during that

14 period and what I did during that time, so that some of the sections

15 issued -- of the order issued to the commanders of battalions and the

16 Drina group who was there at the time, it was already formed, the army of

17 Republika Srpska had already been established, the military battalions had

18 been established, and the command of those battalions had been

19 established. And then at that time I was within the composition of the

20 5th Battalion on assignment following that particular order.

21 Q. Am I reading you correctly, you had an oral order, is that it, the

22 contents of which were transferred -- the oral order derived from the

23 written order?

24 A. Well, on the 22nd I know for sure, a day before that we were in

25 Tjentiste reconnoitering, and we came to Foca, and on the 22nd we were to

Page 4414

1 go out to do reconnaissance work and control the 5th Battalion road area

2 upstream from Buhotina, upstream from the Cehotina area towards Godjine

3 and further on towards Slatine. That is on the right banks of the river

4 Drina in the area of responsibility of the 5th Battalion.

5 So I spent time in the area from the 23rd of June right up until

6 the 5th or 6th of July when I was transferred to another access, another

7 locality to do reconnaissance work, control of roads, et cetera, and

8 detecting land mines and explosive devices; and if I came across these, I

9 was to deactivate them.

10 Q. Did you receive oral orders as to where you were to go?

11 A. On the 6th of June, that is to say up until then, I was in the

12 Godjine region, and on the 6th of June a car came with a driver, and he

13 said that the command of the battalion had ordered all of us -- there were

14 six of us or seven of us at that time on that assignment -- that we should

15 get in the car and go to Preljuca where the command of the battalion was

16 located. So we went to Preljuca, we arrived there at about noon -- before

17 noon, and the battalion commander, I talked to him, and from Preljuca,

18 from Goli Vrh, he showed me the area running down towards the Drina River

19 and said that that was the area I was to be dispatched to, to do

20 reconnaissance work along the river Drina, to uncover enemy lines, to

21 detect the mines and their explosive devices, and to control the roads

22 that could be used as communication in the area, and priority was to be

23 given to the Cvilin-Bavcic-Sotolok road leading to Dragova Kos towards

24 Cerova Ravan. That is to say, on the 6th of June I received an oral order

25 from the battalion commander dispatching me to my assignment from Cvilin

Page 4415

1 downstream along the river Drina.

2 Q. I understand. So that was your assignment. What was the

3 assignment given to the entire Tactical Group? Were you aware of the

4 contents? Did you know why this was done?

5 A. When I went out on the 6th of June, when I talked to the commander

6 on that day, I did not have any more extensive knowledge as to why I was

7 doing that. It was said, true, that it should be established where the

8 line is and that it happened that Muslims got into the Serb villages of

9 Josanica through there, that they were carrying out incursions and that

10 they were afraid that mines could be placed there and that civilians could

11 get hurt or killed, and there were quite a few in that area.

12 Later I went out to reconnoiter, but already the next day and the

13 day after that, activities started. When I look at this order, I see that

14 this reconnaissance of mine was a preparation for carrying out that order

15 which was written on the 7th of June, and the date when there should be

16 combat readiness vis-à-vis the Muslim lines was the 9th of June. That's

17 what it says.

18 Q. When did you find out that the objective was to take Cerova Ravan,

19 this being a dominant feature?

20 A. Immediately on the 6th, I went to the area of Cvilin. Before I

21 left, the commander of the battalion did tell me that down there there was

22 a group of men who had village guards around the village of Cvilin, and

23 that the commander would meet me there at this so-called Josanica company,

24 a man who commanded this particular unit which consisted of these villages

25 of Cvilin, Josanica, and all the way down there.

Page 4416

1 I went there and met him. I was placed directly under his command

2 practically at that time. He gave me priority. He told me to take the

3 road from Cvilin via Gojacice, Batici to Koba, and to see exactly where

4 the Muslim lines were placed in that area. On that same day, I went to

5 carry out this assignment.

6 Q. All right. We'll get to that. Could you explain to us why it was

7 important to take Cerova Ravan, that particular feature?

8 A. Well, if one just glances at the map, you can see --

9 Q. Perhaps you can show it to us at the same time. Cerova Ravan,

10 Preljuca, Cvilin, so that we could follow all of this, and also these

11 dominant features, elevations that are there.

12 A. Cerova Ravan, Cervo Ravan is here. It is on the right side of the

13 Drina River, about two kilometres from the Drina River as the crow flies

14 and also from the Muslim lines. So it went from Cerova Ravan via Kosa,

15 which can be seen here, behind the village of Zubovici, which we call

16 Zubovic Kosa, and it went down practically to the Drina River, to Gradina

17 in this area of Cerova Ravan, which is marked as 923, that Cerova Ravan,

18 not the Cerova Ravan that is in another area but that is on this map.

19 There was a well-entrenched Muslim line there that extended to the Drina

20 River.

21 At that moment, when I was at Preljuca, that is to say, on the 6th

22 of June and Preljuca and on Goli Vrh, there was elevation 1306 via

23 Preljuca. That is where the military reinforced semicircular defence was

24 held by the Serb forces, and at Preljuca there were from 100 to 120 men

25 altogether. The remaining personnel from that battalion -- I said that

Page 4417

1 battalion has 350 to 400 men. Well, the rest were in Josanica, that is

2 the broader area below Preljuca behind Cerova Ravan between Cvilin and

3 over here, this is where village guards were. That is to say,

4 military-age men were at home and every village guarded itself so to

5 speak.

6 Q. Please, you made a slip of the tongue. You said in June. You

7 said in June.

8 A. Oh, I said the 6th or the 7th -- no, it's the 6th of July.

9 Q. Very well. Just show us the lines of delineation. Where were the

10 Serb military formations and where were the Muslim military formations?

11 A. I went to reconnoiter from Cvilin. Cvilin is on the right bank

12 the Drina River opposite Ustikolina, and I took a road. This is an

13 interrupted line on the map. I went through the village of Radojevici,

14 then up here via the village of Bavcici, and up the hill of Koba. And

15 then there is the hill of -- near the village of Sorlaci, and in this

16 entire area there are six or seven smaller villages. There was a maximum

17 of 10 or 15 houses in each and every one of them with the ancillary

18 facilities. All of these villages were deserted. There were no people

19 there at that time.

20 Q. Could you please take a seat now once again, and if there are

21 other questions, we are going to ask you to stand up again.

22 Can you tell us how you came to these positions?

23 A. Already on the 6th of July, when I came to the area of Cvilin and

24 when I practically got direct tasks from the commander of the Josanica

25 company, I was assigned to reconnoiter from Cvilin downhill towards the

Page 4418

1 Drina River to see whether there were any enemy forces there, whether

2 there were any mines, any explosives, anything of that nature, and to see

3 the -- whether I could find the exact place where the military line was

4 placed that was held by the Muslims. As the crow flies, that is perhaps

5 500 metres.

6 One could see the bunkers at Cerova Ravan, and it was known that

7 there was a line there. However, from that area up there, one could not

8 see how it continued towards the Drina where the line actually ended.

9 So I left, and I reached the hill of Koba by the early evening. I

10 passed the village of Bavcici and I arrived at the hill of Koba. There

11 were no signs of life up to there. This was the month of July, and all

12 the traces showed that no one had been there since the outbreak of the

13 war.

14 Q. Tell me, please, do you know what assignments other units had at

15 that time? We are still talking about the 6th of July.

16 A. No, no. On that date, no, not yet. When I finished my

17 reconnaissance, when I said that there was no one until Koba, I returned

18 directly there down the road that led up from -- down from the hill of

19 Koba by the village of Bavcic Cvilin. This is a village road, quite

20 narrow. It's a forest path that was used for delivering food to these

21 villages, and a larger vehicle could not even pass down this road. Only a

22 smaller vehicle up to two or two and a half tonnes could pass on that

23 road.

24 Visually I could not observe any mines that were placed on that

25 road or anything of that nature, and I returned to the village of Cvilin

Page 4419

1 where I had set out from originally. I told the commander of that company

2 that I didn't find anyone in that area. He told me then that on the next

3 day he would carry out a mobilisation.

4 Q. I have to interrupt you. We are going to get to that question

5 later. Does that mean that you always went in front of the other units?

6 A. Well, I can say that that is the way it was until the very end of

7 the war, until I was wounded. During that first month, I concentrated on

8 mines and mining explosive devices. After that, this group of men came

9 who had been trained, and they took over this part of the job, and I was,

10 after that, primarily used for reconnaissance. I had this experience with

11 mines, and there were very many mines in that area, so I and a smaller

12 group of men could pass safely through an area that had been mined, too.

13 So after that I was primarily involved in reconnaissance. That is to say

14 that I went as a pioneer group for our forces, and we would go all the way

15 up to the enemy lines, and we could try to see what their troop movements

16 were and what their numbers were, anything that could be of use in terms

17 of retaining the areas that we kept.

18 Q. While you were carrying out this task that we mentioned, under

19 whose command were you?

20 A. Practically from the 23rd of June, after having returned from the

21 tasks engaging the 1st and 2nd Battalion near Ustikolina, then I belonged

22 to the 5th Battalion. I worked in the zone of responsibility of that

23 battalion, and I was under the command of the 5th Battalion, that is to

24 say, the commander of the 5th battalion. And in this particular period

25 that this order refers to, I was directly under the command of the

Page 4420

1 commander of the Osanice company and, therefore, within the

2 5th Battalion. So my commander, in terms of the zone of responsibility

3 was, the commander of the 5th Battalion because the Osanice company was

4 within this battalion.

5 Q. Can you tell us how that particular day ended, that is, the 6th of

6 July, and what happened during the next days?

7 A. I said already that on the 6th I went to Koba. I carried out pure

8 reconnaissance of this terrain, and then -- these were six or seven

9 kilometres of this particular terrain. I saw that there were no people

10 there. The population was not there, and I also saw that there weren't

11 any mines placed. I saw that there weren't any lines. I saw that there

12 were no traces of any kind of movement there, that is to say, of enemy

13 soldiers.

14 I returned and I reported that to the commander of the company as

15 far as that particular day was concerned. I spent the night in Cvilin,

16 and in the morning I was entrusted with the task of going to take a look

17 at communications, to check the entire road to Koba behind the village of

18 Bavcici, and to go back along that same road. And he said that he would

19 carry out mobilisation of personnel on that day, and that he would take

20 the military line from that part, that is to say from Koba to Drina, and

21 that I should continue reconnaissance further on down the Drina River

22 until I detected exactly where the enemy lines were, until I located them.

23 I had already noticed that day that they were below Cerova Ravan,

24 below Jubovic Kosa.

25 Q. Did you find out on that day about the intention to take Cerova

Page 4421

1 Ravan?

2 A. On that day, that is to say on the 7th when I checked that road in

3 detail and when I established with certainty that there were no mines

4 there, in the afternoon I returned to Cvilin and reported to the commander

5 saying that I was sure that there were no mines in that area.

6 Mobilisation had already been cared out by then, at least of part

7 of the personnel, that is to say, some 30 to 40 men were already there.

8 And he told me that the next assignment given was to take this line, to go

9 further, and that the ultimate objective of this military engagement of

10 ours there was to take Cerova Ravan and that line which existed, this

11 Muslim line from Cerova Ravan to Drina; that is to say that the objective

12 was to establish our line via Jubovic Kosa, Cerova Ravan, Rudace, Goli

13 Vrh, and to bring it together to the line that was at Preljuca.

14 Q. Can you explain the following to us: You said that on the evening

15 of the 6th in July, you spent the night in Cvilin. Can you explain what

16 happened the next day, on the 7th of July, and what your tasks were on

17 that day?

18 A. I said on the 7th in the morning, the commander of the company

19 said that he wanted to carry out all-out mobilisation in the village of

20 Josanica, and he told all the messengers that all the younger

21 military-aged men from the ages of 27 to 40 should respond straight away

22 and come to Cvilin.

23 He also issued an order to me. He gave me a task saying that I

24 should check out the road in detail to see whether that part until Koba

25 was free, and that is what I did that day.

Page 4422

1 In the afternoon, I returned to Cvilin, and I told him that I was

2 sure that the road was clear, and that there were some rocks on the road,

3 but that this could be repaired manually and that a small vehicle could

4 pass there at the time.

5 At the time we had a smaller vehicle, a TAM of two and a half

6 tonnes, and this was the vehicle where our materiel and technical

7 equipment was, that is to say, that which was supposed to follow this

8 company which later had 80 men and which moved in that particular area.

9 Also, there was a vehicle that was supposed to be used as an ambulance if

10 need be, if anybody got wound or killed or whatever.

11 When I reached Cvilin, people were already there ready to leave.

12 Two men who were out reconnoitering with me took the rest of the men to

13 Koba because they knew where they could pass. I said that a vehicle could

14 be taken freely to Koba. The driver who drove the TAM at the time, well,

15 he was afraid of mines, in all fairness, because I said a month before

16 that there were lots of mines on roads and many people were hurt by mines

17 and people were very careful. And then he said to me, "All right. If you

18 are sure that there are no mines, then you go ahead and you be the first

19 to drive that section of the road, and then I can follow." So I did

20 indeed enter this vehicle, and I drove it to Bavcici and to Koba.

21 That night we spent the night at Koba. In the early evening

22 hours, that is where the line was placed, near Koba, and I went further to

23 reconnoiter towards --

24 Q. I have to interrupt you. So that was the 7th of July?

25 A. Yes. That was the afternoon of the 7th, and that is where a line

Page 4423

1 had already been set from Koba to Drina.

2 MR. PRODANOVIC: [Interpretation] Your Honour, we shall go into

3 more detail here because this is the period for which the accused is

4 defending himself by alibi, so please bear this in mind.

5 Q. You mentioned another vehicle. What was the other vehicle?

6 A. The other vehicle was an older vehicle. The make was Polonez, and

7 I know that the back seats had been taken out, and it had a stretcher

8 inside, and it was supposed to be used as an ambulance in case of need.

9 It had a boot that was longer than usual, so it was used as a first-aid

10 vehicle because we didn't have enough ambulances at that time. So the

11 make was Polonez. It was light orange in colour, and it was in the

12 company, and it was used as an ambulance for the unit that moved along

13 that road.

14 Q. Was that vehicle technically in good order?

15 A. Well, as regards the motor, it was all right, but it did have some

16 deficiencies because the exhaust pipe was quite badly damaged. It had

17 holes in it in several places, and we had to drive over rough terrain, and

18 I will explain this: So the exhaust pipe fell off altogether. So the

19 vehicle was completely without an exhaust pipe and made a terrible

20 noise when it was being driven along. Otherwise, it was technically all

21 right as far as driving it is concerned.

22 Q. Could you tell us, on the 7th of July, where did you spend the

23 night after reconnoitering?

24 A. On the 7th of July, I said that the men reached Koba in the

25 afternoon, and I went further afield to reconnoiter because I did not see

Page 4424

1 an enemy line or anyone, actually, in that area. And just before

2 nightfall, I arrived at the next elevation, which is 700 to 800 metres

3 away from Koba. It's called Zubovic Kosa, and there is an elevation

4 called Gradina there, and Gabelic Kosa is there. And there were no enemy

5 lines there, but somewhere I was able to see the enemy line which was on

6 the next elevation, on Cerova Ravan, which goes down Vukovic Kosa toward

7 the River Drina. So there were 40 or 50 well-fortified dugouts there, and

8 you could see quite clearly that the entire front line was fortified with

9 dugouts and that it was a real well-fortified military defence line of the

10 Muslim side.

11 Q. Can you tell us what the weather conditions were like on that day

12 and the following days?

13 A. On the 7th of July, as I said, I arrived at Jubovic Kosa just

14 before nightfall, and on the opposite side, on the left bank the River

15 Drina, in the zone of responsibility of the 1st Battalion from Zebina Suma

16 on toward Osanica, they were also reconnoitering. This was already a

17 preparation for the battle order which was issued practically on the

18 7th of July, which I did not know about at the time, and I did not have an

19 opportunity to see it, but everything that was happening was actually a

20 preparation for the execution of that battle order.

21 And I know that on the 7th in the evening, because the main

22 Foca-Gorazde road was controlled by the other side, that's an asphalt road

23 and they could move much faster than we could, they controlled that

24 communication, and just before nightfall on the 7th, fire was opened on

25 them and a man was killed.

Page 4425

1 And we saw that there was no one on Gabelic Kosa. I came back,

2 and I suggested to the leader of the Osanica company that we should move

3 to Gabelic Kosa, and that was a contact line with the enemy, and he

4 agreed. A small group of men went there, and again, there was a problem

5 about driving along that part of the road from Koba by the village of

6 Sorlaci to Gabelic Kosa. The drivers of both vehicles said, "Well, if you

7 say there's no one there, why don't you drive?" And there was a drizzle

8 already at about 1.00 p.m., and I -- I got into the Polonez vehicle, the

9 one I said was used as an ambulance, and I drove that vehicle to the

10 village of Gojacice, which is on Gabelic Kosa, and we left that vehicle

11 there and went to establish a line on Gabelic Kosa.

12 In the afternoon the rain got heavier and heavier, and as night

13 was falling, at about 2000 hours there was a real downpour, and most of

14 the men there did not have any kind of equipment to protect themselves

15 from the rain. They were wearing blouses -- shirts and trousers. They

16 were all wet. It was summertime. The company leader suggested that most

17 men should go back to the village of Sorlaci, which is about two

18 kilometres back from Gabelic Kosa, and spend the night in the village of

19 Sorlaci, and that some groups should spend the night there to keep the

20 line we had reached.

21 The others went back and spent the night there. I started back,

22 and I got into the same vehicle to go back. I couldn't go back to the

23 village of Sorlaci because between the village of Sorlaci and the village

24 of Gojacice on Gabelic Kosa, as you can see on the map itself, there are

25 two or three places where the terrain is very steep, and there are two

Page 4426

1 streams, and there was a flood because it was raining very heavily. It

2 was summertime, but the stream had swelled up and damaged part of the road

3 so that I could not take the vehicle to the village of Sorlaci.

4 I left the vehicle there and walked to the village of Sorlaci

5 where, with the commander of the Osanice company, I talked to him and he

6 said that in his view, the Gradina elevation was the highest priority. It

7 is on the bank of the River Drina, and he said that --

8 Q. Let me interrupt you. For the sake of continuity, would you tell

9 me -- as I was able to understand, you could not go back to Sorlaci by

10 car. Where did you spend the night?

11 A. That's correct. I couldn't go to the village because the road

12 that had been washed away by the torrent is about 600 or 700 metres away

13 from the village of Sorlaci. So I went to the village of Sorlaci on foot

14 over that stretch of 600 or 700 metres, and I dried myself, and then it

15 was suggested to me that I should go and spend the night with a man on

16 Gradina.

17 Gradina was the lowest elevation closest to the river Drina and

18 Subarika and Gabelic Kosa narrow as they come closer to the river Drina,

19 so there was a hundred or a hundred and fifty metres between the river and

20 the first dugout there. So I went there, and the following morning I

21 turned up at Gradina with a group of six or seven men.

22 Q. That was the night of the 7th and the morning of the 8th.

23 MR. PRODANOVIC: [Interpretation] Very well. Your Honours, this

24 may be the moment to conclude for today since we will begin tomorrow with

25 a new day where the story was interrupted, and that is the 8th.

Page 4427

1 JUDGE MUMBA: Yes, very well. It's almost 1600 hours. We will

2 rise, and we'll continue tomorrow at 0930 hours.

3 --- Whereupon the hearing adjourned at 4 p.m., to

4 be reconvened on Wednesday, the 5th day of July,

5 2000, at 9.30 a.m.





















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