1 Tuesday, 6 March 2001

2 [Ruling]

3 [Open session]

4 --- Upon commencing at 10.37 a.m.

5 [The accused entered court]

6 JUDGE RODRIGUES: [Interpretation] Please be seated. You may be

7 seated.

8 Good morning, ladies and gentlemen; good morning to the technical

9 booth. I think that everything is in order now. Good morning to the

10 interpreters and the Prosecution and Defence counsel.

11 We're going to take up the case where we left off. After this

12 delay in starting, I have already asked the registrar, spoken to the

13 registrar, for a memo explaining the reasons for which we started late.

14 On behalf of the Trial Chamber, I should like to offer our excuses. I

15 myself still am not aware of the actual reasons for which we had to start

16 late, so I would like to have a written answer setting these reasons out

17 by the registrar so that we can share these reasons together.

18 We have certain preliminary decisions to make. I am turning to

19 the Prosecution to ask them what their position is with respect to the

20 protective measures requested by the Radic Defence counsel, and it is the

21 request made on the 1st of March.

22 Ms. Susan Somers, do you have any objections to the request made

23 by the Defence? You told us that you were not in opposition with respect

24 to the 19th and 21st of February. But now we have a third request, so may

25 we hear your views on that, please. Ms. Susan Somers, you have the

1 floor.

2 MS. SOMERS: Thank you, Your Honours. If, in fact, the request is

3 voice, facial, and pseudonym, the Prosecution has no objection at all.

4 JUDGE RODRIGUES: [Interpretation] Very well. Thank you.

5 With respect to the 19th and 21st of February requests, and the

6 one of the 1st of March as well with respect to the Mladjo Radic Defence,

7 in view of the fact that the Defence team is asking the Trial Chamber to

8 allow certain persons named in the request to testify and that they should

9 be protected by a pseudonym, and in view of the fact that the Defence has

10 also asked the Trial Chamber to grant protective measures with respect to

11 facial distortion and voice distortion, and in view of the fact that there

12 has been no objection by the Prosecution to that request, and in view of

13 the fact that it is up to the Trial Chamber to ensure the security of

14 witnesses giving evidence and fully respecting the principles of the

15 public character of the hearings, and applying Articles 20, 21, and 22 of

16 the Statute of the Tribunal and Rule 75 of the Rules of Procedure and

17 Evidence, the Chamber accords the right to protective measures as

18 requested in the requests mentioned.

19 That is the ruling of the Chamber with respect to the protective

20 measures asked for.

21 There are other matters that we should give our consideration to,

22 but we shall do that after the break. With respect to expert witnesses,

23 we shall go into that matter after the break.

24 We now have Mr. Fila, to whom I am going to give the floor for his

25 opening statement. Please go ahead.

1 [Radic Defence Opening Statement]

2 MR. FILA: [Interpretation] Before I go ahead with my opening

3 statement, I should like to ask you to bear in mind that the expert

4 witness Ana Najman has been asked to stand at the disposal of the Court

5 today because she is returning to Yugoslavia tomorrow. If possible, could

6 she get through her testimony today.

7 Your Honours, the accused Mladjo Radic stands before this Tribunal

8 charged with crimes committed in the Investigative Centre of Omarska, in

9 the period between the 24th of May, 1992 and the 30th of August, 1992. He

10 is not alone but is one of a group of accused. So far we have heard the

11 defence cases of Miroslav Kvocka and Milojica Kos.

12 The Prosecution has tried to represent this trial as the trial of

13 a policy of persecution and ethnic cleansing; as a person taking part in a

14 well-organised and planned campaign towards the non-Serb population in the

15 attempt to have the puppet regime of the Republic of Serbia turning its

16 police forces and military forces against part of its own people in its

17 search towards the great achievement of creating an ethnically pure

18 Greater Serbia. I refer to the introductory statement by Mr. Niemann on

19 page 6.

20 In its opening statement, the Defence wishes to present its own

21 standpoint in all the elements that are relevant to a determination of the

22 possible criminal liability of the accused and by presenting its

23 viewpoints in the following order: A, the historical context; the

24 creation and disintegration of the Yugoslav state; the causes and

25 development of the conflict in Bosnia-Herzegovina; the area of the

1 municipality of Prijedor. B, the accused Mladjo Radic, his biography; the

2 Investigation Centre of Omarska; an analysis of Article 1 of the Statute

3 of the Tribunal; Articles 3 and 5 of the Statute of the Tribunal;

4 accountability in the sense of Article 7 of the Statute, applicable law;

5 the crime of rape; and finally, the conclusions.

6 We begin with the historical context under A, the creation and

7 disintegration of the Yugoslav state. The Yugoslav state was created

8 after the First World War in 1918, with the unification of two

9 then-independent states, the Kingdom of Serbia and the Kingdom of

10 Montenegro, and the territory of the former Austro-Hungarian monarchy

11 which is where the south Slav people lived; that is to say, the Serbs, the

12 Croats, and the Slovenes. These territories, by decision of the National

13 Council of the State of the Slovenes, Croats and Serbs, were conjoined to

14 the new Yugoslav state which was called the Kingdom of the Serbs, Croats,

15 and Slovenes at the beginning and later came to be known as the Kingdom of

16 Yugoslavia. This state was a unitarian state based on the state thesis of

17 one nation having three entities, the Serbs, the Croats, and the

18 Slovenes.

19 It was territorially divided into provinces known as the banovina

20 which were not divided on an ethnical basis but on an administrative

21 principle. In that state, the Serbs felt themselves to be nationally

22 united. They were all living in one and the same state. So that they

23 accepted the idea of a trinomial Yugoslav nation, consciously sacrificing

24 their national and state individuality created throughout the nineteenth

25 century. A decision of this kind was made by the Serbs already in the

1 First World War when the government and the National Assembly of the

2 Kingdom of Serbia opted for a joint state of the Yugoslav peoples.

3 The thesis put forward by the Prosecution of a Yugoslav state as

4 the realisation of the idea of a Greater Serbia has no foundation in

5 historical fact. The first Yugoslav state brought to the Croatian and

6 Slovenian people for the first time in their history a national and social

7 emancipation for them. The offer made by the allies and voiced in 1915 in

8 the London Agreement for the creation of a Greater Serbia was rejected by

9 the Serbian government and opted for unification with the other south Slav

10 peoples. Therefore the syntagma referred to as Greater Serbia for the

11 first and only time was to appear then in international law and never

12 again.

13 The Kingdom of Serbs, Croats, and Slovenes, from its inception,

14 was burdened by serious antagonisms. This was the result of the different

15 and mutually exclusive state and national programmes of the Yugoslav

16 peoples. Intolerance and latent separatism was expressed through the

17 Croatian parliamentary boycott and forceful antipropaganda for the

18 creation of a joint democratic united state. The Croats and Slovenes

19 consciously abused the ideal of the Yugoslav idea.

20 From the First World War, the Slovenes moved from the realm of the

21 vanquished into the realm of the victors, and the Croats did the same

22 after World War II. They moved into the realm of the victors and

23 therefore sidestepped their responsibilities for wartime compensation and

24 war damage claims. The representatives of Italy at the Congress of

25 Versailles in 1919 for almost one year failed to agree with the beginning

1 of the work of the commission for demarcation. It rejected to sit at the

2 same negotiating table with the representatives of the vanquished powers

3 because in the delegation of the new state of Yugoslavia, there was the

4 representative of the Croats, Dr. Trumbic. The Croatian and political --

5 and Slovenian political elite looked upon the Yugoslav state as a period

6 of transition in the process of state and national independence and

7 autonomy. The Slovene, Anton Korosec, who was a minister in all the

8 governments of the Kingdom of Yugoslavia from 1918 to 1941 explained the

9 reasons for entering Yugoslavia, joining Yugoslavia, and this is what he

10 said: "We have ridden a good horse and bled it dry."

11 For the Serbs, the Kingdom of Serbs, Croats, and Slovenes

12 according to the ideals and idea of King Alexander I on the creation of

13 the Yugoslav nation, which would emerge through barracks and schools,

14 represented the age-long dream about a free life and a life together, of a

15 unique Yugoslav nation, a united Yugoslav nation into a united Yugoslav

16 state. In the 1930s, the Ustasha terrorist organisation was formed and

17 its ultimate goal was the creation of an independent state of Croatia and

18 the annihilation of the Serb population. The German invasion in 1941

19 represented the end of the first Yugoslavia and the beginning of the

20 terrible suffering of the Serb people in the independent state of

21 Croatia. Once the Ustasha powers established, an unprecedented

22 persecution of the Serb population began, which turned into a genocide of

23 the greatest magnitude. The Serbs were forced to defend themselves, to

24 raise uprisings and organise resistance to the German and Ustasha fascist

25 terror. With the allied victory in World War II, the Yugoslav state was

1 formed once again, this time on a federal basis with six republics,

2 Serbia, Croatia, Slovenia, Macedonia, Bosnia-Herzegovina, and Montenegro.

3 As was differentiated from the other four republics, the Republic

4 of Croatia and the Republic of Bosnia-Herzegovina were proclaimed

5 republics with several constituent nations; the Republic of Croatia, as a

6 state of the Croatian and Serbian people; the Republic of

7 Bosnia-Herzegovina was set up as a state of the Serb, Muslim, and Croatian

8 people.

9 The rule of the communists established in 1945 strongly suppressed

10 national hatred, myths, and stereotypes, but the crimes from World War II

11 remained unpunished. The victims and their executioners were reconciled

12 under the slogan of brotherhood and unity, a universal formula for the

13 solving of the national question of socialist Yugoslavia. Evil was

14 encapsulated, shut up in Pandora's box.

15 The leadership of the Communist Party of Yugoslavia, arbitrarily

16 ignoring the political and ethnic realities, drew administrative borders

17 between the republics, which several decades later became state borders.

18 With the unresolved national question, those borders became the second

19 major reason for the civil war.

20 Chapter 2: The Causes and Development of the Conflict in

21 Bosnia-Herzegovina.

22 The Defence wishes to explain the genesis of the conflict in

23 Bosnia-Herzegovina closer, and in that sense, the Defence has proposed the

24 adoption of the expert report by Professor Nenad Kecmanovic. In the

25 opening statement, I wish to stress the basic premises with respect to the

1 general assertions contained in the amended indictment.

2 From the sixteenth century right up until the Berlin Congress in

3 1878, Bosnia-Herzegovina was frequently the scene of battles between

4 Turkey and Austria. The Ottoman Empire brutally stifled liberation

5 movements and local rebellions. The local domestic Islamitised population

6 was given the task of disciplining the rebels and their families which,

7 for centuries, had fanned the flames and widened the divide between the

8 converts to Islam and their neighbours.

9 Hatred led to a reaction on the other side and this led to a

10 vicious circle. The new occupiers who replaced themselves cyclically in

11 these areas fanned the flames of hatred to a tremendous degree.

12 By decision of the Berlin Congress in 1878, the state of affairs

13 was sanctioned, in fact. And Turkey, after more than four centuries of

14 occupation, was forced to finally withdraw from these parts.

15 A system of relationships broke down which enabled many

16 generations to have great privileges. Privileges were discontinued one by

17 one, and the Bosnia-Herzegovina Muslims ascribed this disenfranchisement

18 to the Serbs and their resistance to the Ottoman Empire.

19 For their part, the Austro-Hungarian occupiers skillfully and

20 systematically fanned the flames of intolerance amongst Serbs and the

21 Muslims, as they did amongst the Croatians and Serbs so as to incite the

22 already rebellious population.

23 The repercussions were to follow in 1914, after the attempt made

24 by Gavrilo Princip, who was of Serb nationality, on the life of Archduke

25 Franz Ferdinand. This wave of violence against the Serb population and

1 their property, which was taken spontaneously by the Croatian and Muslim

2 neighbours, was to continue with the Austro-Hungarian declaration of war

3 on Serbia and throughout the First World War.

4 The fall of the Austro-Hungarian Empire in 1918, the breakthrough

5 of Serb troops in the victorious march to the west, and the formation of a

6 new state of the kingdom of Serbs, Croats, and Slovenes, under the

7 leadership of the Serbian people, was viewed by the majority of local

8 Muslims as being something far more difficult to bear than even the

9 Austro-Hungarian occupation. This was the reason for the hatred of the

10 disenfranchised beys and their attitude towards the new state and towards

11 the Karadjordjevic dynasty, but also to their neighbours the Serbs as

12 their old foes. The period between the First and Second World War, during

13 that period, hatred festered.

14 When, in 1941, we saw the breakdown of the occupation and command

15 of the Kingdom of Yugoslavia and the formation of the Quisling NDH

16 government, most of the Muslims experienced this as their liberation and

17 welcomed manifestations of exhilaration in the hope that they might be

18 given back their rights and feudal privileges. The Muslims en masse

19 joined up to the Croatian patriotic army. Many of them put on Ustasha

20 uniforms, so that together with the Croatian fascists, they should prepare

21 themselves for a final settling of accounts with the Serb bastards, which,

22 according to the Budak formula, would mean to convert a third, to expel a

23 third, and to liquidate a third of the Serb population.

24 With the end of the war and the reconstitution of Yugoslavia,

25 Bosnia-Herzegovina was constituted as a federal unit. In the first

1 postwar population census, which took place in 1948 --

2 JUDGE RODRIGUES: [Interpretation] I apologise. I see Ms. Susan

3 Somers on her feet. You have the floor.

4 MS. SOMERS: Your Honours, I apologise to both the Chamber and to

5 my learned counsel opposite, but I must object to this type of information

6 being presented in an opening statement.

7 This is the subject -- what we are hearing is the subject of

8 expert reports or testimony. This is not a road map to the case. The

9 Prosecution strenuously objects to this type of information if it's

10 only -- if this is -- certainly this is a judgement call on the part of

11 the Defence, but this is not evidence. This is simply supposed to be used

12 as an introductory overview to the case. As such, I think that it is an

13 abuse to try to interject this much -- it is an abuse to try to interject

14 this type of historical background without certainly giving the

15 Prosecution to counter, because I think this is not, as I've indicated,

16 the subject of an opening statement.

17 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila.

18 MR. FILA: [Interpretation] Ms. Somers is new to the case. I don't

19 know if she has read the opening statement made by Mr. Niemann. He

20 mentions a Greater Serbia and the so-called Republika Srpska, and this is

21 my response to Mr. Niemann's opening statement. So the opportunity that I

22 have had to respond to Mr. Niemann, I shall give to Ms. Somers to respond

23 to my own opening statement.

24 JUDGE RODRIGUES: [Interpretation] It took me a little time to hear

25 the end of the interpretation. First of all, I would like to ask you all

1 to speak more slowly.

2 Ms. Susan Somers, what is your response? Have you had occasion to

3 acquaint yourself with Mr. Niemann's opening statement? Can you give us

4 your views?

5 MS. SOMERS: Your Honour, I have. In fact, the factual or

6 historical references that are made are peculiar to this particular case,

7 the facts of the case, and what is being presented to the Chamber, as I

8 recognise it, is an historical overview which is properly within the realm

9 of experts. I would not want to belabour it. I don't want to waste the

10 Chamber's time, but I think it's important that this point be made. We

11 strenuously object to this line. Thank you.

12 JUDGE RODRIGUES: [Interpretation] I shall confer with my

13 colleagues.

14 [Trial Chamber confers]

15 JUDGE RODRIGUES: [Interpretation] Mr. Fila, you may continue. If

16 possible, you could abridge what you have to say perhaps; but if not,

17 carry on as you have been doing. But please try and speak more slowly,

18 and keep the interpreters in mind.

19 MR. FILA: [Interpretation] In the first postwar population census

20 in 1948, 44.3 per cent, a confirmation was made of the majority Serb

21 population. Subsequent population censuses showed that the structure was

22 undergoing change. The Serb majority was slowly disappearing, and in the

23 postwar period, the Serbs lost this numerical superiority. There were a

24 number of changes, the colonisation of Vojvodina province being one of

25 them, and the suffering of Serbs wherever war found them.

1 Along with the changes in intensity, the Serbs felt that they were

2 jeopardised, and migrations began when the federal constitution of 1974

3 was enacted. The republics were constituted by having all the

4 prerogatives of a state, national ones, and republics constituted in this

5 way cut across the Serb territorial and ethnic continuity.

6 The time when the Republic of Yugoslavia, the SFRY, was defined,

7 somewhat before the enactment of the constitution in 1974, the Muslim

8 nation was constituted by members of this religious group. It is an

9 incontestable historical fact that many Muslims, as members of a religious

10 group, declared themselves and felt themselves as Serbs, to be Serbs,

11 thanks to their recollections of their Serb origins and forebearers,

12 which, at one point in time, under pressure from the Turkish occupier, had

13 to convert to Islam.

14 With the establishment of the Muslim nation, the Serbs who were

15 Orthodox saw this as an intention to reduce the number of Serbs by an

16 imposed political decision and not through the will of the Muslims

17 themselves. At all events, those who, in the population census of 1944,

18 declared themselves as Serb Muslims or Croat Muslims now became a new

19 nation.

20 They also suffered from the complex they had in the Second World

21 War and the fact that they were termed a genocide nation by the procedures

22 of the NDH. The NDH had its own way of dealing with the Serbs, to make

23 them leave the territory where they had been until then.

24 All these antagonisms in the postwar period had to be stopped, so

25 that in Bosnia-Herzegovina, in the sense of Tito's proclaimed policy, we

1 should see the reign of brotherhood and unity in these parts. However,

2 instead of the democratisation of relations, the powers and authorities

3 resorted to recession, and all open national expression was seen as a

4 crime and punishable by law. Religious customs and rites were looked upon

5 in a negative form and as being a burden to anyone moving up the

6 professional ladder in their careers.

7 Unitarianism was not retained in the SFRY, and when the process of

8 disintegration began, it necessarily expanded to the republics. The

9 authorities tried to divide up public opinion, applying the system of

10 divide and rule, divide et impera. Due to this, there was further

11 distrust amongst the nations. Once characterised as nationalists and

12 persecuted, the people began to turn towards their own matrix; that is to

13 say, these Croatians turned towards Zagreb and the Serbs turned toward

14 Belgrade.

15 In the last period of peace, from 1945 to 1990, which is to say 55

16 years of peace, there were no conflicts amongst the three nations. And so

17 the fact that they began to enter into conflict was ascribed to somebody

18 from outside. However, that assumption is not correct. The process of

19 the disintegration of SFRY began with Slovenia. The secession of Slovenia

20 was accompanied with very few casualties but the casualties increased when

21 the independence of Croatia was established and it got worse with the

22 establishment of Bosnia-Herzegovina. Bosnia-Herzegovina experienced a

23 tragedy because it was a nationally-mixed population under the long-term

24 pressure of the communist powers, and this was different to Slovenia,

25 which was an ethnically pure area. The pressure exerted by the communists

1 in the period between 1945 and 1990 was a way of maintaining peace for

2 these three -- amongst these three nations.

3 In 1990, we saw all negative and destructive powers burgeoning,

4 all of these protagonists having the feeling of being jeopardised.

5 Emotions came to a head with respect to these nations' futures. Slovenia

6 and Croatia said they would step down from Yugoslavia and the political

7 leaders in the federal organ stressed that Bosnia-Herzegovina would not be

8 anything more or anything less than the other republics. The Serbs, on

9 the other hand, were realistically interested in maintaining and retaining

10 Yugoslavia because their populations lived in all their parts and

11 Bosnia-Herzegovina represented a constituent nation.

12 In an atmosphere of this kind, and bearing in mind the fact that

13 on the political arena of Bosnia-Herzegovina there was no democratic

14 replacement to communism, the first multi-party elections were held. The

15 results of the elections was that all the nations voted for their own

16 nationalist parties. All three constituents nations in Bosnia-Herzegovina

17 had their own visions of the future. The Serbs wanted to retain

18 Yugoslavia. The Croats wanted Bosnia-Herzegovina to be conjoined with

19 Croatia, and then to step down from the SFRY and to have the borders at

20 the Drina River. The Muslims wanted Bosnia-Herzegovina to remain as it

21 was, united and independent.

22 The problem therefore lay in the fact that all three nations in

23 Bosnia-Herzegovina were mixed up, so that it was impossible to have these

24 enclaves form territorial wholes without moving the population.

25 In Sarajevo, the organs of power and authority functioned in the

1 form of the presidency, the parliament, and the government, composed

2 exclusively of the representatives of the SDA, SDS and HDZ parties, which

3 means the nationalist parties and their activities were of a purely

4 technical nature. Important decisions were adopted -- it was very

5 difficult to adopt decisions because there was majorisation by the two

6 nations. And in the presidency, this was seen. In the government, in

7 line with the electoral results, there were -- most of the ministers came

8 from the SDA party and the decisions that were made were mostly decisions

9 of the SDA party and Alija Izetbegovic.

10 Fearing that the other two nations would realise their visions on

11 the future of Bosnia-Herzegovina, the Serbs within BH, wherever they

12 represented a local majority, began to link themselves up in what was

13 known as Serbian autonomous regions and not to follow the decisions

14 reached in Sarajevo. The parliament in Bosnia-Herzegovina had one

15 chamber, and it allowed for the possibility of majorisation, whether it

16 was a constitutional substitute in the form of a council for the

17 protection of internationality equality. At the request of 25 delegates,

18 this proposal could have been outvoted and sent to that body for final

19 definition. And at that assembly body, the decision was made by

20 consensus. And so the proposal, which would be to the detriment of one

21 nation, could have been stopped.

22 In the night between the 14th and 15th of October, 1991, the

23 Muslim delegation made the proposal that a decision be made on the

24 proclamation of sovereignty for the Republic of Bosnia-Herzegovina, to

25 follow the example of Slovenia and Croatia. It was -- the Serbs were well

1 aware of the SDA and HDZ's intentions, which was to secede, to have BH

2 secede and separate from the Serb matrix.

3 The delegates of the SDS party acted in line with their

4 constitutional competencies, and 25 delegates of that party asked the

5 request to be sent to the Council for International Equality. The Muslims

6 and Croats failed to respond to that request and therefore drastically

7 violated the constitution. In this way, all efforts made to solve

8 relations in Bosnia-Herzegovina democratically fell through. And what was

9 worse, the Serbs were told how decisions would be made in the future and

10 the position they would find themselves in as a result.

11 The Serbs therefore left parliament, and the most important

12 decisions on the independence of any state was made in a half-filled hall

13 without the participation of one nation. The Serbs went on to found a

14 parallel parliament. They did not take part in the referendum on the

15 sovereignty of Bosnia-Herzegovina, whereas the Muslims and Croats did

16 participate and in that way the conditions were fulfilled for

17 international recognition which were established by the Badinter

18 Commission.

19 An indicator of further events in Bosnia-Herzegovina was an

20 incident that occurred in Sarajevo at the time of the referendum, when,

21 during a wedding ceremony near an orthodox religious building, the father

22 of the groom was killed. This was a tragedy which led to reaction. The

23 Serbs in parts of Sarajevo set up barricades and closed off portions of

24 the town.

25 The army prevented an escalation to this incident. Some mixed

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1 military and police patrols were set up, but evil began to spread through

2 Bosnia-Herzegovina: In Foca, Bijeljina, Bosanski Brod, and so on and so

3 forth.

4 An attempt to prevent a civil war, which was imminent, was seen in

5 Lisbon on the 18th of March, 1992, when all three national leaders were

6 ready to compromise, and they signed a compromise agreement. But upon

7 returning to Yugoslavia, Alija Izetbegovic withdrew that compromise and

8 the civil war was unleashed.

9 The Area of the Prijedor Municipality.

10 The area of the Prijedor municipality was known under the Turks as

11 an area referred to as Knez Polje. The historical events in this area are

12 practically identical to the rest of the territory of Bosnia-Herzegovina.

13 On the 31st of July and the 1st and 2nd of August of 1941 in the Prijedor

14 municipality, the local Muslims and Croat Ustashas killed over 750 Serbs

15 from Prijedor. Another 750 were captured during the night, taken to

16 Prijedor, and liquidated once again.

17 In Kozarac, there was a terrible execution of Serbs. Over 400

18 Serb peasants from Kozarac and Omarska were killed, and about 10.000 Serbs

19 in the regions of Sanski Most, Bosanski Novi, Kljuc, Bosanska Krupa,

20 Bosanska Petrovac, et cetera. In those periods of war, on the Prijedor

21 territory, 5.000 Prijedor civilians were killed and 2.000 others lost

22 their lives in the battles against the occupiers. In Prijedor, the

23 Ustashas killed all the Jews as well.

24 Since 1945, Tito's settling of accounts with nationalism, there

25 was a peaceful period until the Croatian mass movement started. In that

1 period, the Serb population in Prijedor worked as a component part of the

2 state of Yugoslavia. Confirmation of this was that the last prime

3 minister of the federal government, Ante Markovic, founded his party

4 precisely at Kozara. At the meeting which was held on the 26th of July,

5 1990, 100.000 Krajina inhabitants rallied, most of them Serbs, and about

6 5.000 Prijedor Serbs, at the population census, declared themselves to be

7 Yugoslavs. Prime Minister Ante Markovic, of course, was a Croat and the

8 Serbs sided with him.

9 Serious political confrontation on a national basis was the result

10 because the local Serb population demanded that the cadres' organs be

11 constituted on the basis of the realistic ethnic structure. That was

12 fanning the flames of the fire because the Muslims and Croats joined

13 forces, held meetings, flew their national flags with the chequerboard and

14 crescent moon, and this reminded the Serbs of the mass personal sufferings

15 during the war.

16 Arms were procured from Croatia; people were arming themselves.

17 The Muslims, where they lived, installed military polygons, camps, and so

18 forth, dugouts. The elderly members of the Muslim families were leaving

19 Prijedor, leaving just the young folk, the military-able men and the

20 representatives of the SDA party. The representatives of [indiscernible],

21 without the presence of the Serbs, decided on mobilising the TO, the

22 malitia, and civil defence. Several days later, that is to say, on the

23 6th of April, 1992, the International Community recognised the sovereignty

24 and independence of Bosnia-Herzegovina.

25 The organs of power and authority in Prijedor, the Ministry of

1 Internal Affairs of Muslim Bosnia-Herzegovina, sent an order to block and

2 attack the military units. On the 29th of April, 1992, the Serb delegates

3 in the Municipal Assembly of Prijedor took over power from the

4 representatives of the SDA and Mayor Cehajic and prevented this order from

5 being carried out.

6 In the first days of May, armed members of the SDA and HDZ parties

7 took over the Public Security Station of Ljubija and took the Serb

8 policemen prisoner. In Kozarac, a military unit was formed numbering

9 3.500 Muslims.

10 On the 19th of May, 1992, the Muslims blocked 10 kilometres of the

11 Prijedor-Banja Luka road. On the 22nd of May, 1992, in the Muslim village

12 of Hambarine, fire was opened from automatic weapons, attacking a military

13 and police patrol, and two Serb soldiers were killed on the occasion

14 during that ambush.

15 In the town of Prijedor itself, in the early morning of the 24th

16 or 25th of May, a strong group of armed Muslims, which had infiltrated the

17 town the previous night, stormed the town with the aim of taking control.

18 It received support from the numerous local population. In the street

19 fighting, which went on for several hours, the rebels were destroyed and

20 16 Serb soldiers or, rather, policemen were killed.

21 On the 25th of May, 1992, the Muslims attacked the JNA barracks in

22 Prijedor, and on the 30th of May, 1992, they attacked the town of Prijedor

23 itself. The way in which this attack was executed, it was obvious that it

24 had been planned because it was precise and of a strong intensity, and

25 there were many civilian casualties.

1 A civil war broke out which was to have unforeseeable consequences

2 on all three nations. This august Tribunal has been dealing,

3 unfortunately, with these conflicts and individuals who found themselves

4 in the midst of this conflict without their own volition. One of the

5 accused was Mladjo Radic, and this period changed his life and he has

6 become a victim.

7 B. I should now like to talk about who Mladjo Radic is. I refer

8 to his biography.

9 Mladjo Radic was born in 1952, in the village of Lamovita, near

10 Prijedor. Father, Rade and mother, Zorka. He had nine brothers and

11 sisters. It is a patriarchal family, farmers who have respect for the

12 customs and the traditions in the area where they live. The father of the

13 accused Radic was a figure of authority for his family. The members of

14 the family were and remain closely knit together by their belonging to the

15 area, the customs, and the family.

16 The accused Radic finished elementary school, and after school, as

17 a child of seven or eight years, he worked in other families. The

18 material means of his parents were very modest. That is why he only

19 graduated from the elementary school and could not go on to further his

20 education. He worked as a manual labourer and, after completing a

21 six-month course, found a job as a policeman on the 1st of December,

22 1972. He was a simple policeman in Ljubija. Beginning with the 17th of

23 June, 1992, he was again a regular policeman, the lowest level possible in

24 the Police Station Department of Omarska. In 1993, he was assigned to the

25 same duties in Prijedor, in the Police Station Prijedor 2.

1 On the 1st of September, 1994, he was assigned to the job of shift

2 leader in the Police Station Department of Omarska at the Public Security

3 Centre of Prijedor. On the 20th of October, 1995, he was given the rank

4 of sergeant first class. On the 1st of November, 1996, his employment was

5 consensually terminated.

6 In his 24 years of service as a regular policeman, Mladjo Radic

7 worked as a foot policeman and was in charge of maintaining law and order

8 in the street, securing buildings and people, and controlling traffic. In

9 all his years of service, Mladjo Radic never once applied force in

10 resolving conflicts.

11 While working as a policeman, Mladjo Radic made his rounds and met

12 a great number of people of all ethnic groups, and with many of them

13 became friends. He visited them on religious holidays. He became close

14 to some of them and became a godfather to some. It is important to note

15 that in the area where he lived and worked, it was rare for such

16 relationships to be established between members of different ethnic

17 groups.

18 Mladjo Radic is married and father of three. His eldest son,

19 Drazenko, works in the police and is now the only member of the family

20 making a livelihood. The relations in the family of the accused Radic

21 follow the same model of the family in which he grew up; that is, they

22 are patriarchal, and the only difference is in the changed image of the

23 wife who does not conform to the patriarchal model. The relations in the

24 family are marked by mutual trust, understanding, and respect. Mladjo

25 Radic is to his sons a figure of authority whom they respect in every

1 way.

2 The events in Prijedor, the takeover by Serbs and the

3 establishment of the Investigative Centre of Omarska, found Mladjo Radic

4 as a policeman working in the Police Station Department of Omarska. He

5 was told that the investigative centre was established for purposes of

6 investigations and his duties would practically be the same as before, the

7 only difference being that he was being assigned to the newly established

8 investigations centre. His job was to secure buildings and people.

9 In the given situation, he did not look for answers to questions

10 regarding reasons for the existence of the investigations centre, nor did

11 he display any curiosity regarding the work and functioning of the

12 investigative centre. He simply took his duties as part of his job.

13 JUDGE RODRIGUES: [Interpretation] Yes, Ms. Somers.

14 MS. SOMERS: Your Honour, again, I repeat the same apologies to

15 both the Chamber and to my learned counsel opposite. However, what is

16 happening is the expert reports, or significant portions thereof, are

17 simply being read to the Chamber under the rubric of opening statement,

18 and I must object.

19 JUDGE RODRIGUES: [Interpretation] Yes, Ms. Somers. Of course, the

20 relevance of what the counsel has just said can't be denied. As you know,

21 we have set a time limit for counsel to have the floor; he's going to use

22 this time. This means that what Mr. Fila is now saying is his own opening

23 statement.

24 You can go on, Mr. Fila.

25 MR. FILA: [Interpretation] He accepted his assignment at the

1 Investigative Centre of Omarska and his obligation to work as security and

2 to provide guards as something which was ordered him by his superiors, in

3 view of the existing hierarchy and subordination in the police.

4 The Investigative Centre of Omarska was established based on the

5 order of the Chief of the Public Security Station in Prijedor, dated the

6 31st of May, 1992. A document dated the 31st of May, 1992, that is, the

7 order of the Chief of the Public Security Station in Prijedor, points out

8 the real nature of the role which the accused could have had in the events

9 in Prijedor and the environs in mid-1992. The document, which is evidence

10 before this trial, shows who ordered the establishment of the centre, why,

11 and what kind of organisation existed there. In other words, Omarska was

12 designated as a temporary collection centre for persons who were captured

13 in fighting or detained based on operative information at the disposal of

14 security services.

15 The totality of the work and the selection of detained persons is

16 continued by a mixed group of investigators of national, public, and

17 military security, point 3, and the persons in charge of these duties are

18 named one by one.

19 In point 4 of this document, the obligation of round-the-clock

20 engagement of these persons is specified, with continuous presence of

21 investigators in the collection centre.

22 In item 5 of the same document, the further fate of the detained

23 persons is clearly specified and it is exclusively linked to investigators

24 as described in items 4 and 5 of the document.

25 The line of command is established in the provision of item 11,

1 which prescribes the obligation of the coordinator of security services to

2 submit as required on a daily basis reports on their work. The control of

3 the execution of this order is envisaged and entrusted to specified

4 persons in accordance with item 17 of the document.

5 This document dated 31st of May, 1992 is very important for

6 establishing the role of the accused Radic within the framework of the

7 Omarska centre. Namely, item 6 of the document regulates the service of

8 security of the collection centre and entrusts it to the Police Station

9 Department of Omarska. That is, the order which establishes the centre

10 makes a clear and absolutely obvious distinction between persons who

11 organise, investigate, conduct selection, and to make a long story short,

12 decide on the fate of detained persons, and police officers who received

13 orders in their capacity of police officers of the Police Station

14 Department of Omarska to secure the collection centre as part of their

15 normal duties. Other obligations, rights, or duties did not feature in

16 the document. They were not envisaged, nor did they exist in reality.

17 Professional and authorised persons - that is investigators of

18 public, national, and military security services - ran the collection

19 centre, while police officers, in keeping with their job and their

20 educational level, provided security without being able in any way to

21 influence the essence of the centre.

22 All arguments made by the Prosecution to qualify Mladjo Radic as a

23 person of superior authority who, and I quote, "participated in the abuse

24 of the detainees in detention camps located in the Prijedor municipality"

25 are arbitrary, inaccurate, and illogical. To accuse a village policeman

1 who just served as a guard in a collection centre for the ethnic cleansing

2 of the region of Prijedor and to establish his role in the pursuit of

3 Serbian state strategy on the territory of Bosnia-Herzegovina is

4 groundless in every respect and borders on the absurd. The principles of

5 fair trial and justice would not be satisfied and could be seriously

6 compromised if the Prosecution continues to claim that Mladjo Radic is

7 responsible only because he is available to the Tribunal.

8 The Prosecution must not take the line of least resistance and

9 abandon the prosecution of people who are really guilty while assigning

10 responsibility to a man who was in Omarska, but only reluctantly and only

11 out of fear for his family.

12 Therefore, the document I have mentioned defines in no unclear

13 terms the nature of the investigative centre which was established on the

14 territory of the Omarska village. The same document indubitably points to

15 the persons who ordered the establishment of that centre, formed and

16 divided the duties in the centre, and also defines the place and the role

17 of the Police Station Department of Omarska and the police officers who

18 were employed there.

19 This document points to the changes -- the temporary character of

20 the investigative centre, whose existence was only linked to

21 investigations which continuously took place. After the end of the

22 investigations, the investigation centre ceases to exist. That is why you

23 should look at the definition, the definition of a concentration camp, and

24 why it is inappropriate to call Omarska a concentration camp.

25 However, this document goes a step further. It clarifies also who

1 is not guilty, pointing precisely to the persons who really had authority

2 within the framework of the investigation centre. It also clarifies the

3 role of the accused Radic and it says clearly that his role is only to

4 provide security. It clarifies therefore that what we have here is a

5 manipulation aimed at painting Keraterm, Omarska, and Trnopolje as death

6 camps the likes of Auschwitz, Majdanek or Treblinka.

7 Article 1 of the Statute of the Tribunal.

8 The Defence of Mladjo Radic, in its motion on the form of the

9 indictment, indicated and explained in detail why it believed there were

10 no reasons to try the accused as a person guilty of grave violations of

11 international humanitarian law for the purposes of Article 1 of the

12 Statute of the International Criminal Tribunal. I will not repeat them

13 here.

14 As regards Articles 3 and 5 of the Statute, the Defence believes

15 that no serious objections can be made to the arguments presented by the

16 Prosecution when explaining the possible application of Articles 3 and 5

17 of the Statute of the Tribunal primarily in light of the decision of the

18 Appeals Chamber in the Tadic case, that is the decision on interlocutory

19 appeal, as well as the position of this Chamber expressed in the decision

20 on the motion on the form of the indictment dated 12th April, 1999. The

21 Defence wishes to stress on this occasion as well that it does not agree

22 with the arguments presented in the said decisions but it understands the

23 principle of stare decisis and, in that sense, considers that there is no

24 reason for further discussion.

25 From the evidence presented against the accused Mladjo Radic, we

1 can see that one of the principal conditions for applying Article 5 of the

2 Statute is the grave, systematic, and widespread nature of the act. And

3 that has not been met. A separate question is the question of the armed

4 conflict on the territory of the Prijedor municipality in the period

5 relevant to the indictment.

6 It is not unimportant that the armed conflict lasted only two

7 days, and at the time which is relevant to the indictment, it has been

8 over for quite a while. This claim removes any grounds for the

9 application of Article 3 of the Statute. The Defence of the accused Radic

10 does not contest the legal premises which the Prosecution established for

11 the application of this article based on the previous practice of this

12 Tribunal. It simply points out that in this specific case, there are no

13 facts which would justify the application of this right as established.

14 Responsibility under Article 7 of the Statute.

15 In this trial so far, we have heard various claims regarding

16 Mladjo Radic aimed at presenting the accused Radic as a person responsible

17 for the events in Prijedor and primarily in the Omarska camp in the summer

18 of 1992. In its Pre-Trial briefs and in the opening statement of the

19 Prosecutor, Niemann, the Prosecution has elaborated on this in detail.

20 The Defence will now deal with the theory of command responsibility under

21 Article 7(3) of the Statute.

22 The Defence of the accused Radic believes that we can only speak

23 of command responsibility if the following elements were to be proved: 1,

24 the status of the accused as commander or as civilian who violated

25 international humanitarian law and had power consistent with military or,

1 in this case, police command; 2, that there has indeed been a violation of

2 the international humanitarian law; 3, that the accused was indeed a

3 commander or knew of committed violations of international humanitarian

4 law or that he had information from which he could conclude, could have

5 concluded that this law had been violated; 4, that in his capacity of a

6 superior, he omitted to undertake reasonable measures to control

7 violations of international humanitarian law by investigating complaints,

8 punishing perpetrators, or taking steps to prevent further violations; and

9 5, that omissions of the commander, that is a person possessing the

10 prerogatives of a commander, was the cause of a grave violation of

11 international humanitarian law which indeed took place.

12 The Defence further emphasises that the command position is a

13 necessary prerequisite for imposing command responsibility. The Defence

14 stresses that a factor which affects this type of command responsibility

15 is primarily actual power and control in the behaviour in the acts of the

16 accused -- of the underlings, sorry. The said commander cannot be deemed

17 personally responsible for failing to prevent the execution of an illegal

18 order carried out by his subordinates unless the conditions I have

19 mentioned had been satisfied. These conditions, which I have read out,

20 are set out cumulatively and, in the case of the accused Radic, have not

21 been met, have not been fulfilled.

22 The accused Mladjo Radic had no function at all in the

23 Investigative Centre of Omarska, either de facto or de jure. The charges

24 of the Prosecutor from the opening statement on page 64 to the effect that

25 the accused Radic exerted power in the Omarska camp are groundless in

1 every respect. The Defence has already presented evidence through the

2 testimony of the accused Radic that Radic was appointed shift leader

3 within the Police Station Department of Omarska only in 1994. One cannot

4 accept the claim that Radic had already been shift leader because why

5 would a decision then - and that decision is already on file - make him --

6 appoint him to that duty again?

7 Meakic, as a commander, had no authority to appoint, discharge, or

8 promote anyone, the accused Radic included. The investigation centre in

9 question was controlled by the -- at the time by Simo Drljaca and people

10 from the Crisis Staff. The Defence will prove that we cannot speak of him

11 being a de facto shift commander either. Mladjo Radic was a guard, a

12 police officer who served his entire years of service in village police

13 stations in Ljubija and Omarska.

14 It seems natural and normal to the Defence that commander Meakic,

15 when the organisation of security of the investigation centre required it,

16 ordered the accused Radic to also serve as officer on duty in the room on

17 the first floor of the administrative building and to handle communication

18 by telephone and by radio during his shift, which is one of the duties of

19 a regular policeman.

20 This fact, which the Defence claims to have been sporadic and

21 exceptional and which could have appeared to detained persons as some

22 superior function to that of a simple guard, and which the Prosecution

23 wishes to present as a command function, entailing command responsibility

24 under Article 7(3), this function of the officer on duty is in fact a

25 logical situation because, among the guards which provided security, the

1 accused Radic was the eldest in terms of his age. He was the only

2 professional policeman on that shift, and he was the only one who could

3 operate a radio and telephone equipment in the station where he worked.

4 The Defence has already referred several times to the document by

5 which Simo Drljaca established the investigations centre, which was signed

6 by him, and we will do so now again, pointing out the fact that this

7 document indicates all structures involved in the work of the centre.

8 The army secured a broader area around the centre in a circle of a

9 couple of kilometres. There were, and they are noteworthy ^, members of

10 special units from the area of Banja Luka, about whom one report of Simo

11 Drljaca himself says that they were out of control, that they beat and

12 stole from people. At the entrance to the mine, there was the regular

13 security of the mine. Within the security service of the camp, there were

14 19 soldiers attached to the security which were not under the command of

15 Meakic. They had their own separate command.

16 Only in the end can we talk about the policemen from the Police

17 Station Department of Omarska with a great number of attached reservists.

18 These reservists are people whom active-duty policemen do not know, as a

19 rule. They ignore police procedures, and they joined the reserve force of

20 the police usually to avoid going to the front. Their behaviour was

21 marked by wilfulness, lack of discipline, and lack of responsibility for

22 their own acts.

23 The chaos of war in that summer of 1992 engulfed the whole of

24 Bosnia-Herzegovina and therefore encompassed the region of Prijedor

25 municipality, and a state of anarchy, lawlessness, and arbitrariness of

1 all kinds was projected on the situation in the investigations centre as

2 well.

3 The lines of subordination or chain of command had not been

4 established. A firm command structure in the civilian and military

5 segment did not exist. A higher structure of command contributed to the

6 state of chaos and anarchy. You have heard that there were many victims

7 and all of them said that everybody acted as they pleased, that nobody was

8 responsible for their actions to anybody, and that there was general

9 chaos.

10 The situation in the Investigations Centre of Omarska was an

11 expression of the anarchy that swept over Bosnia-Herzegovina. Mladjo

12 Radic quite simply turned up to work one day and was given the order of

13 going to the investigations centre instead of going about his regular

14 duties. He was told that in Omarska, as an active policeman, he would

15 serve for only several days, temporarily assigned to Omarska, and that

16 afterwards he would return to his regular duties as a policeman.

17 This temporary character and the anarchy that reigned throughout

18 is an explanation of why a structure was never established within the

19 centre itself, a firm structure, and why deputies and heads of shifts were

20 not assigned despite the burgeoning work; but that the organisation was

21 taken over as had existed in the police department.

22 During the existence of the Investigations Centre of Omarska,

23 Radic kept saying that it was temporary and that he would -- Meakic told

24 Radic that it was temporary and that he would go back to his own work

25 post. The Defence will show that Mladjo Radic was an ordinary guard to

1 whom, from time to time, Commander Meakic assigned shift duty. The Trial

2 Chamber has already had occasion to see on the television tape, to see the

3 accused Radic at his guard post in the oval glass section of the

4 administrative building, with a rifle over his shoulder.

5 If you remember, in his opening statement, Prosecutor Niemann, on

6 pages 23 and 24, said that there were interrogators/inspectors in the

7 centre from Prijedor and Banja Luka, as well as the military investigation

8 organs. They decided on the fate of the detainees, and it is upon their

9 orders that they were sent to the various premises and investigated.

10 The Defence will show beyond reasonable doubt that Mladjo Radic

11 had nothing to do with any of this because he was in the centre as an

12 ordinary policeman, a village policeman, reluctantly, against his own

13 will, and temporarily assigned there. Throughout the duration of the war,

14 as well as the Omarska camp, Mladjo Radic remained what he had been before

15 the war, an ordinary patrol policeman on the beat.

16 The Defence wishes to stress at this point that the Prosecution

17 has not offered even two witnesses who would give identical and consistent

18 testimony to confirmation of the fact that the accused Radic did anything

19 that could be punishable by law within the frameworks of his work in the

20 investigations centre. The Defence will show that Mladjo Radic, in fact,

21 saved more than 35 people, at least 30 of them from Ljubija, and that

22 through his own authority -- and that he did so on the basis of his own

23 authority, because he was not able to issue orders to anybody.

24 When we speak about the authority of Mladjo Radic, this can only

25 be the authority of a good man, a man who has had a lot of experience and

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1 who is respected by one and all.

2 In the opening statement, on page 17, the Prosecutor accuses Radic

3 of being responsible for the conditions that prevailed in the

4 investigations centre. Mr. Niemann states that the water that the

5 detainees received was not pure and that many of them fell ill as a result

6 of drinking it. The Defence will show that as regards accommodation,

7 food, water, that Mladjo Radic had nothing to do with any of this. He was

8 not able to influence the situation in which the detainees found

9 themselves. The only thing that he could do and that he did do was to

10 bring food, personal hygiene items, a letter or money to some of the

11 detainees secretly, without anybody else knowing. As I say, he brought

12 food when he could and as much as he could. He jeopardised the safety of

13 his own family and his own personal safety in doing so.

14 The water that was drunk by the detainees was water from the

15 waterworks system, and it was the same water that was used by everybody.

16 The same water was used before the war, during the war, and is used to the

17 present day, that same water.

18 He was not able to decide on whether detainees would receive

19 visits or not; that was not up to him. The entrance gate was several

20 kilometres away from the detention area.

21 Finally, it is important to mention that many times during this

22 trial we have heard people say that Krkan's shift was the worst. What

23 does that mean? Did the Prosecution offer any witness who said that

24 Mladjo Radic ever hit anybody or ordered beatings of any kind? Did Mladjo

25 Radic kill anybody or order the killing of anybody, or was he even present

1 while a killing took place?

2 When the Prosecution witnesses refer to Krkan's shift, the

3 witnesses say this because they know Krkan. And even if his shift was the

4 worst, then there were only three men, three guards. Paspalj, Predojevic,

5 and Popovic, those were the only perpetrators. But the composition of the

6 shifts was determined on the first day by Meakic, and that is how it

7 remained until the end.

8 Let me repeat: The Prosecutor in this case has not even brought

9 two witnesses, at least two witnesses who would describe the same event in

10 the same way when it comes to Mladjo Radic.

11 Finally, I am going to speak of applicable law. The Defence

12 wishes to present its views on the legal character of command

13 responsibility.

14 For military or police commanders or other persons in superior

15 authority to be considered criminally responsible, it is necessary for a

16 norm of international customary law to exist prescribing that type of

17 responsibility. The Defence wishes to emphasise that at the time relevant

18 to the indictment, command responsibility as a form of criminal

19 responsibility did not exist.

20 After trials for crimes committed in the Second World War, not a

21 single court at any time in the future has applied the rule of command

22 responsibility as a form of criminal responsibility, nor has a single

23 state introduced this rule in their criminal law. Many theoreticians

24 claim that the rule of international customary law, which not a single

25 state observes or enforces for a prolonged period of time, ceases to apply

1 as a rule of international customary law.

2 In Article 38 of the statute of the International Court of

3 Justice, international customary law is defined as general practice

4 accepted as the law. This means that this practice has to be general and

5 continuous. The fact that after the Nuremberg and Tokyo trials, states

6 have not made a single act which would manifest their observation of

7 enforcement of international customary law on command responsibility as a

8 form of criminal responsibility. In the meantime, a great number of armed

9 conflicts have happened involving a myriad of horrible war crimes, and not

10 a single court has applied the rule of command responsibility as a form of

11 criminal responsibility.

12 The practice of the International Criminal Tribunal in the cases

13 of Delalic, Blaskic, and others quotes the Military Field Manual on

14 Military Law of the United States and the British manual of military law

15 as evidence of existence of command responsibility as criminal

16 responsibility in the form of a rule of international customary law.

17 However, the said military regulations -- however, all these military

18 regulations prove is that states have accepted command responsibility as

19 an important legal instruction for the conducting of military armed

20 operations. These regulations prove that states have not accepted this

21 institution as part of their criminal law, because if that were so, it

22 would appear in their criminal laws. And that is not so, especially not

23 in Yugoslavia.

24 The Defence emphasises that Captain Ernest Medina was not tried

25 for the massacre in My Lai committed in Vietnam by the United States,

1 committed specifically by his subordinates, based on the rule of command

2 responsibility contained in the Military Field Manual on Military Law of

3 the United States, but he was tried on the basis of the uniform code of

4 military justice which does not incorporate the rule of command

5 responsibility.

6 The same is true of Articles 86 and 87 of Protocol I to the Geneva

7 Conventions of 1949. These legal rules, even after the ratification of

8 these protocols, do not in themselves become norms of criminal law which

9 could as such be applied to a judicial or disciplinary proceeding.

10 Let us be clear. The norms of this protocol are elaborated in an

11 operative way in manuals on the conduct of military armed operations, that

12 is, in the form of military disciplinary responsibility. They do not

13 appear in criminal laws as a form of criminal responsibility.

14 I am saying this because I want to show the variety of

15 interpretations in legal theory concerning command responsibility; whereas

16 Mladjo Radic, a simple policeman, was expected, back in 1992, during his

17 two and a half months of guard service, which was actually done only one

18 day out of three, to know these norms of international humanitarian law

19 and to follow them.

20 The last part of my opening statement has to do with mens rea.

21 The Defence wishes to also deal with the existence of mens rea as required

22 by Article 7(3) which says "knew or had reason to know."

23 The Defence emphasis that Article 7(3), with its formulation "knew

24 or had reason to know," provides an ambiguous and unclear standard for

25 mens rea which is not known from the criterion contained in Article 86 of

1 Additional Protocol I, which stresses that the commander had to actually

2 possess information based on which he could conclude that his subordinates

3 committed violations of military law.

4 The standards set by the Additional Protocol seems to be more

5 acceptable to the Defence. Therefore, the Defence suggests that Article

6 7(3) be interpreted in such a way that a commander is deemed to have

7 reason to know only when he actually has information enabling him to

8 conclude that a violation of international customary law had taken place.

9 In addition, the Defence believes that an evaluation must be made

10 of the type and volume of information which a person, acting as a

11 superior, may acquire in order to establish whether he had information

12 enabling him to conclude that war crimes were committed. He must -- the

13 Defence believes that it must be proved that the commander instigated

14 criminal behaviour on the part of his underlings by failing to expose them

15 and to intervene. Such knowledge cannot be presumed in the absence of

16 direct evidence that the commander knew of his subordinates' crimes. The

17 Defence asserts that we can speak of responsibility only when the person

18 concerned took active part in the planning, instigation, ordering, aiding

19 or any other form of participation in the execution.

20 Regarding the accused Radic, the Defence claims that the physical

21 membership in a police unit in itself does not prove that a crime has been

22 committed. We can speak of guilt only if the condition has been met of

23 the existence of intent, including awareness of the act of participation,

24 together with a conscious decision to take part in the act by planning,

25 instigating, ordering, or otherwise aiding or participating in the

1 execution of a crime -- in the commission of a crime.

2 In addition, the Defence stresses that the Prosecutor omitted to

3 prove -- failed to prove any behaviour on the part of the accused which

4 contributed to the commission of a crime. The Defence believes that in

5 order to establish criminal responsibility on the part of the accused, in

6 the sense of Article 7(1), it would be necessary to prove that the accused

7 had specific intent to commit an act which would facilitate the commission

8 of a crime and to prove the causal link between the action taken and the

9 crime committed. Not a single piece of evidence presented by the

10 Prosecution against the accused Radic has the Prosecution succeeded in

11 meeting the necessary legal and theoretical standards which could be

12 sufficient for finding the accused guilty on any charge of the

13 indictment.

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1 (redacted)

2 (redacted)

3 JUDGE RODRIGUES: [Interpretation] (redacted)

4 MS. SOMERS: (redacted)

5 (redacted)

6 (redacted)

7 JUDGE RODRIGUES: [Interpretation]. (redacted)

8 MR. FILA: [Interpretation]. (redacted)

9 JUDGE RODRIGUES: [Interpretation] (redacted)

10 (redacted)

11 MS. SOMERS: (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 MR. FILA: [Interpretation] (redacted)

18 (redacted)

19 (redacted)

20 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila. I think it would

21 be better to redact that part of the transcript. If you wish to continue,

22 we can move into private session for a few moments, Mr. Fila, if you

23 require and if you need that.

24 MR. FILA: [Interpretation] No, thank you. I have finished.

25 JUDGE RODRIGUES: [Interpretation] Mr. Fila, how long -- how much

1 more time do you need to complete your opening statement?

2 Very well, go ahead.

3 MR. FILA: [Interpretation] In the original indictment against

4 Mladjo Radic, there was only this witness and that remained unchanged for

5 a number of years. Other witnesses were found after five or more years,

6 mainly last year. The Defence does not conclude that we have -- what we

7 have here are professional victims, but they did give statements which

8 they later abandoned, such as testimony that children were thrown on to

9 bayonettes, et cetera. The Defence will show through expert testimony of

10 Professor Beatovic how important elements of the criminal act of rape are

11 proved in the Yugoslav criminal law and present statistical data

12 concerning sentencing.

13 In conclusion, the Defence would like to emphasise that the

14 Prosecutor has failed to prove before this Trial Chamber the existence of

15 conditions which would lead to possible individual criminal responsibility

16 on the part of the accused Radic, either in terms of Article 7(1) or

17 Article 7(3) of the Statute of the Tribunal. The Defence will present

18 evidence to show that Mladjo Radic was not in a position of a superior or

19 could in any way lead to the conclusion that events in the Investigations

20 Centre of Omarska were a consequence of acts or omissions by the accused

21 Radic. The accused will present evidence through witness testimony.

22 Persons who were detained in the Investigations Centre of Omarska will

23 testify the position of the accused and his treatment of detained

24 persons. Also the Defence will, through witnesses who will be heard

25 directly before the Trial Chamber and whose testimony will be corroborated

1 by affidavits, show what the position of guards was in the investigation

2 centre, what the system of security was, and especially what the role of

3 the accused Radic was in that system.

4 A special group of witnesses will testify to the credibility of

5 Witness A. The personal character of the accused will be the subject of

6 testimony of a special group of witnesses. The Defence will prove that

7 the victims of the unfortunate conflict on the territory of ex-Yugoslavia

8 are all who found themselves in the vortex of a century-long intolerance

9 which ran amok, of irrational chauvinist hatred and inflamed nationalist

10 passions, and that includes Mladjo Radic.

11 The Defence will, Your Honours, prove that Mladjo Radic is not

12 guilty on all counts of the indictment.

13 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila. We shall now

14 take a break, a well-deserved break, of 50 minutes. We shall resume at

15 approximately 1.10, ten minutes past 1.00.

16 --- Recess taken at 12.20 p.m.

17 --- On resuming at 1.13 p.m.

18 JUDGE RODRIGUES: [Interpretation] Please be seated.

19 Mr. Fila, if I understood you correctly, you have at your disposal

20 now one or two expert witnesses. Which was it?

21 MR. FILA: [Interpretation] Mrs. Ana Najman. She is testifying in

22 the Krnojelac Foca case. She was to have left for Belgrade today, but she

23 will be leaving tomorrow to cut expenses, which would save her going back

24 today and coming back a week later. So she's here, she is ready and

25 waiting, and if you decide to cross-examine her, she is in the

1 antechamber. Mr. Saxon has agreed that we hear the witness straight away,

2 now.

3 JUDGE RODRIGUES: [Interpretation] Do you have any other

4 witnesses?

5 MR. FILA: [Interpretation] Yes, I have two more witnesses.

6 JUDGE RODRIGUES: [Interpretation] For this week?

7 MR. FILA: [Interpretation] Nine for this week.

8 JUDGE RODRIGUES: [Interpretation] Very well. Nine witnesses.

9 I should like to ask the Prosecution something, whether Ms. Somers

10 or Mr. Saxon are going to answer. How much time do you need, Ms. Susan

11 Somers, for the cross-examination of this witness?

12 MS. SOMERS: Your Honour, I had indicated earlier to one of your

13 assistants that we would ask for maximally one and a half hours.

14 Mr. Saxon will handle the cross-examination. Thank you.

15 JUDGE RODRIGUES: [Interpretation] Thank you, Ms. Susan Somers.

16 That was for the benefit of the transcript.

17 We should finish today, which means that if we hold the

18 cross-examination, there will be additional questioning time for

19 Mr. Fila. Would an hour and a quarter be sufficient for the Prosecution,

20 and a further 15 minutes for the Defence? For Mr. Fila, would that be

21 agreeable?

22 Madam Susan Somers.

23 MS. SOMERS: Thank you, Your Honour. If Mr. Fila does not require

24 the additional 15 minutes, we would gratefully accept it. However, if

25 Mr. Fila indicates he would like to do redirect, then we would appreciate

1 the one hour and 15 minutes.

2 JUDGE RODRIGUES: [Interpretation] Mr. Fila.

3 MR. FILA: [Interpretation] Mr. President, I have agreed, in

4 agreement with Ms. Somers, that instead of the examination-in-chief, you

5 hear the expert findings. So I won't be holding the

6 examination-in-chief. We can move on to the cross-examination, and in the

7 redirect, I will need 15 minutes at the most, if at all. I have taken up

8 a considerable amount of time for my opening statement so I shall do my

9 best to shorten the time now and use as little as possible.

10 JUDGE RODRIGUES: [Interpretation] I think that the situation is

11 clear now and equitable. You will have one hour, 15 minutes at your

12 disposal for the cross-examination, after which we shall give Mr. Fila the

13 opportunity of redirect for 15 minutes, if he needs to ask anything of

14 course. If not, never mind. So you have an hour and 15 minutes for the

15 cross-examination.

16 Can we have the witness brought in, please.

17 MR. FILA: [Interpretation] Your Honours, the Defence calls witness

18 Dr. Ana Najman, psychologist, to the stand. Thank you.

19 [The witness entered court]

20 JUDGE RODRIGUES: [Interpretation] Good afternoon, Dr. Najman. Can

21 you hear me properly?

22 THE WITNESS: [Interpretation] Good afternoon. Yes, I can.

23 JUDGE RODRIGUES: [Interpretation] For the moment, would you remain

24 standing. You are now going to read the solemn declaration that you have

25 before you. Please go ahead.

1 THE WITNESS: [Interpretation] I solemnly declare that I will speak

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

3 WITNESS: ANA NAJMAN

4 [Witness answered through interpreter]

5 JUDGE RODRIGUES: [Interpretation] Thank you. You may be seated.

6 Take a seat, please.

7 THE WITNESS: [Interpretation] Thank you.

8 JUDGE RODRIGUES: Tom, can you lower the mics.

9 [Interpretation] Thank you very much for coming. You are now

10 going to be answering questions put to you. We assume that what you have

11 to say is written down in your report, and the Prosecutor will now be

12 asking you questions on your opinion set out in that report.

13 Mr. Saxon, the floor is yours for the cross-examination. Your

14 witness.

15 MR. SAXON: Thank you, Your Honour.

16 Cross-examined by Mr. Saxon:

17 Q. Mrs. Najman, where do you reside?

18 A. I live in Belgrade, Yugoslavia.

19 Q. And what is your ethnicity?

20 A. I am not a Serb by ethnicity. I come from a mixed marriage, a

21 mixed Catholic and, how shall I put it, Jewish -- Catholic-Jewish mixed

22 marriage. My mother is a Catholic, if that is at all important.

23 Q. Is your mother a Croat by ethnicity?

24 A. Yes, in view of the fact that she was christened in the Catholic

25 church that would make her a Croat by ethnicity, although I don't think

1 she declares herself as such, in view of the fact that it is a smaller

2 ethnic affiliation, not directly Croatian. Her origins are from the

3 Vojvodina province so that I think she has always declared herself as a

4 Bujevac, if you know what that means.

5 Q. Dr. Najman, apart from your examination of Mladjo Radic in May of

6 the year 2000, have you provided similar services to Defence counsel for

7 other persons who have been indicted by this Tribunal?

8 A. I was before this International Tribunal, I think, in 1998 - I

9 apologise if I haven't given the exact date - and it was linked to the

10 Dokmanovic trial. They were comments on the expert findings and I sat

11 before this Tribunal, I handed in my written findings, and answered

12 questions put to me. I think that it was in 1998.

13 Q. What ethnicity was Mr. Dokmanovic?

14 A. Well, I think he was a Serb, although I don't really know, to be

15 quite frank. That was not important, but I think he was, yes.

16 Q. Are you presently being retained -- your services being utilised

17 by Defence counsel for another accused who is presently being prosecuted

18 by this Tribunal?

19 A. Yes. Together with Professor Folnegovic-Schmaltz who comes from

20 Croatia, I have spent the last three days testing Mr. Krnojelac in the

21 Scheveningen prison and we completed that testing yesterday as regards the

22 testing itself. We have not gone into our expert findings yet but we

23 completed all that was possible in the space of time given us.

24 Q. Do you know the ethnicity of Mr. Krnojelac?

25 A. Through force of circumstance, yes, I do, because I think it was

1 the day before yesterday that he told us. He said that he came from the

2 surrounds of Foca, that he is a Serb, and we asked him some other

3 particulars, so he went on to talk about his wife and in connection to

4 this, Mrs. Folnegovic-Schmaltz and myself learnt of that particular fact.

5 Q. Dr. Najman, have you ever been retained to evaluate Muslims or

6 Croats who have been prosecuted by this Tribunal?

7 A. The requests I received so far, I responded to them. There were

8 no requests for any other cases so I was not called upon. I don't know

9 about anybody from the Muslim or Croat ethnicity who was asked to be

10 tested.

11 Q. So can we take your answer as a no?

12 A. That's right. I was not called upon to testify for any other

13 persons, and to conduct an expert analysis and examination of them.

14 Q. Dr. Najman, when you evaluated Mr. Radic in May of 2000, were you

15 aware that if he is convicted of the charges alleged against him, he could

16 be sentenced to a substantial term of imprisonment?

17 A. I don't know. How I could know about that exactly, as to his

18 conviction and prison sentence? I don't recall having discussed that with

19 Mr. Radic at all.

20 Q. Were you aware that if he -- if Mr. Radic is convicted, he could

21 be sentenced to a term of imprisonment? Were you aware of that?

22 A. Of course. Of course I was, yes.

23 Q. Would you agree, therefore, that Mr. Radic has an interest in the

24 contents of the report that you produced?

25 A. I don't know how you mean. Could you explain what you mean by

1 that question? Have an interest? How do you mean?

2 Q. Well, depending on what a professional like you writes in a report

3 about Mladjo Radic, might affect a finding of guilt or innocence or might

4 mitigate a sentence if guilt is eventually found. That's what I meant by

5 an interest in the contents.

6 A. I did not gain the impression as a professional interviewing

7 Mr. Radic that he was cooperating with us in any other way apart from

8 doing his utmost to answer our questions and what we required of him, and

9 I think that we wrote this down in our expert report.

10 Q. Did Mladjo Radic bring any food or drink for you and your

11 colleague when you commenced your examination of him?

12 A. To be quite frank, that, as that was my first visit to the

13 Scheveningen prison, that it seems to be a custom there, or perhaps a

14 regulation. I don't wish to enter into assessment of what it was, but it

15 was customary to offer a cup of coffee or a fruit juice or anything else,

16 as he explained to us that he could procure in the canteen. And as the

17 examination and testing lasted several hours each day, we were there for a

18 long time and took a cup of coffee and I think a fruit juice on an

19 occasion or something similar, but that was something that they -- that

20 was accessible to them in the prison canteen, nothing more than that, if

21 that's what you mean.

22 Q. My question was -- it's a very simple question: Did Mladjo Radic

23 provide you -- bring you any food or drink when you did your examination?

24 Is that a yes?

25 A. Yes. That was the -- well, not the food. It was just coffee and

1 juice, no food. Coffee and fruit juice, no food at all.

2 JUDGE RODRIGUES: [Interpretation] I apologise for interrupting,

3 Mr. Saxon, but what is the objective of those questions? Could you

4 explain that to us, please?

5 MR. SAXON: The objective, Your Honour, is to show that this

6 accused may have had an interest in the outcome of the report that this

7 witness could have compiled, and was currying favour with the person who

8 was making the evaluation of him.

9 I'll move on, Your Honour. I don't --

10 JUDGE RODRIGUES: [Interpretation] Go ahead. We are here to

11 understand as best as possible, so go ahead.

12 MR. SAXON:

13 Q. During the course of your evaluation of Mr. Radic in May of 2000,

14 were you made aware that Mr. Radic provided an extensive videotaped

15 interview to members of the Office of the Prosecutor in March of 1999?

16 A. No, no.

17 Q. Would the contents of such an interview, statements that Mr. Radic

18 made about the events in question of 1992, about which he is charged by

19 this Tribunal, have been relevant? Would they have been relevant to your

20 psychological evaluation of Mr. Radic?

21 A. Well, you've put me in a difficult position. First of all, I

22 don't know the contents of that conversation so I don't know what the

23 contents of the interview are, and you're now asking me to state my views

24 as to whether that would influence the outcome of a psychological test on

25 my part as an expert. So at this point in time, I don't know what to

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1 answer. I don't know. I'm not acquainted with the contents of the

2 interview and yet you're asking me whether it would have an effect,

3 whether it would be of influence or not.

4 Q. You completed your report on the 17th of May, 2000, and by that

5 date, several Prosecution witnesses had provided testimony in this trial.

6 Prior to completing your report, did you review any of this witness

7 testimony in order to see if any of those witnesses described Mladjo Radic

8 and his conduct in 1992?

9 A. No.

10 Q. Is it possible that the contents of such testimony concerning

11 Mr. Radic might have been relevant to your psychological evaluation of

12 Mr. Radic?

13 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila.

14 MR. FILA: [Interpretation] Mr. President, I don't know where all

15 this is leading us. We just seem to be losing a great deal of time.

16 Nobody, apart from this Honourable Trial Chamber, can allow the witness to

17 look at a list with protected witnesses. That is the first point.

18 Secondly, how can an expert witness state her views as to which

19 statements would be of worth to her or not, the contents of which she does

20 not know? She said she does not know about them; she has already answered

21 that. So how, then, can she say whether something is valid or not if she

22 doesn't know its contents?

23 If the intention of the Prosecutor is to show the witness the

24 collected works from this trial, I have nothing against it. We have five

25 or six more years. I have three years until I retire. I'll wait, I'm

1 happy to wait that time, if that is what is needed.

2 JUDGE RODRIGUES: [Interpretation] Mr. Saxon.

3 MR. SAXON: Thank you, Your Honour. The purpose of my question is

4 simply to ascertain whether this witness used all of the information that

5 was accessible to her at the time in performing the psychological

6 evaluation of Mr. Radic, and the reason I asked this last question was

7 because there was public testimony given by Prosecution witnesses prior to

8 the 17th of May of last year. I simply wanted to know if she had an

9 opportunity to review that or not.

10 JUDGE RODRIGUES: [Interpretation] Mr. Fila, is there a problem?

11 MR. FILA: [Interpretation] Yes, Your Honour, the transcript

12 doesn't seem to be working, the English transcript.

13 JUDGE RODRIGUES: [Interpretation] Yes, I can see that the LiveNote

14 has not been functioning, that it ceased functioning after what Mr. Fila

15 said. We have not received a recorded answer of what the Prosecutor

16 said.

17 MR. FILA: [Interpretation] And another point, Mr. President.

18 JUDGE RODRIGUES: [Interpretation] Let us wait a moment, please. I

19 think that the LiveNote is working again.

20 Mr. Fila, did you wish to add anything?

21 MR. FILA: [Interpretation] By decision of this Trial Chamber,

22 expert witness Ana Najman was requested to undertake an investigation, and

23 there was a Dutch expert as well whom I haven't seen to the present day,

24 nor do I know whether he had something to drink and eat in the Detention

25 Centre. But that's not why I'm saying it. We can see from these

1 assignments what Ana Najman, as an expert witness, and the gentleman from

2 Holland were able to see. And it did not state that it was their duty to

3 read the transcripts from this trial. That is the point I wish to make.

4 Thank you.

5 JUDGE RODRIGUES: [Interpretation] We are now entering into the

6 realm of allegations. I think that what Mr. Saxon is saying supposes a

7 schematic of expertise. So before going ahead with your questions, ask

8 the expert witness what the framework of the assignment given to her was,

9 what duty and assignment did the expert witness have to carry out, without

10 going into a discussion of what model it was. I think that the best thing

11 would be to go directly to the matter at heart. Ask the witness direct

12 questions and afterwards we shall be able to see where we stand.

13 Mr. Saxon, please proceed.

14 MR. SAXON:

15 Q. What were you asked to do, Dr. Najman, with respect to Mladjo

16 Radic?

17 A. Dr. van den Bussche, who was the designated forensic psychiatrist,

18 together with me for this expertise, we jointly received three questions

19 to which we were to give together our opinion and answers.

20 The first question had to do with the past and present

21 intellectual and mental state of the accused Mr. Radic. The second

22 question concerned the provision of all the relevant information for

23 evaluating the mental state of the accused in connection with the crimes

24 allegedly committed. The third task was to provide information on the

25 present state of the accused and his potential for rehabilitation and

1 reintegration, and any psychiatric or psychological recommendation that we

2 could give.

3 After completion of this psychiatric and psychological examination

4 and psychodiagnostic tests, and after summing up the results,

5 Dr. van den Bussche and I drafted our joint answers to the questions posed

6 by the Tribunal.

7 Q. You mentioned the second question concerning --

8 JUDGE RODRIGUES: [Interpretation] Excuse me, but there is again a

9 problem with the transcript.

10 Registrar, is there a problem or not?

11 THE REGISTRAR: Yes, Mr. President, there seems to be a problem,

12 and I will have it sorted.

13 THE COURT REPORTER: It seems to be working now, Your Honour.

14 THE REGISTRAR: Testing.

15 JUDGE RODRIGUES: [Interpretation] Yes, I think we are now able to

16 continue.

17 Mr. Saxon, did you get the answer of the witness in the

18 transcript? I hope you have. If it is in the transcript, you can carry

19 on. Thank you.

20 MR. SAXON: Thank you, Your Honour. I did receive it. Thank

21 you.

22 Q. You mentioned the second question or task concerned the provision

23 of all the relevant evaluation for evaluating the mental state of the

24 accused in connection with the crimes allegedly committed.

25 My question for you is: Might it have been relevant to your

1 examination if you had reviewed available public testimony regarding the

2 conduct of Mr. Radic in 1992?

3 A. Well, I must repeat to you again what I have already said: I

4 cannot declare anything in this respect because I'm not familiar with the

5 content of this public testimony, and I cannot say whether it could affect

6 positively or negatively my psychiatrist's impression of the accused

7 Mr. Radic.

8 Q. The transcript, as I'm looking at it, quotes you as saying, "my

9 psychiatrist's impression." Did you actually say "psychiatrist" or

10 "psychologist"?

11 A. Psychological. I'm sorry.

12 Q. So was the only source of information that you used regarding the

13 mental state of Mr. Radic, in connection with the crimes allegedly

14 committed, the information that Mr. Radic gave to you himself during the

15 interview?

16 A. Yes.

17 Q. I'd like to talk to you a bit about the report that you produced.

18 MR. SAXON: Your Honour, I believe the Registry has copies of this

19 report. I misspoke; I'm wrong. The Registry is about to receive copies

20 of this report which could be marked as -- if it could be marked only for

21 identification as Prosecution Exhibit 3/214.

22 Q. Did you bring a copy of your report with you, Dr. Najman? I have

23 some questions to ask you about it.

24 A. [No audible response]

25 MR. SAXON: Perhaps if the usher could assist me by placing on the

1 ELMO the copy.

2 Q. Turn to page 2 of the report, which has the words "case history"

3 in English at the bottom of the page.

4 A. That is page 3 as marked here, if we understand each other.

5 Q. Ah, it may be different on your version. That's possible.

6 A. Right. I'll bear that in mind.

7 Q. The section of your report that's called "case history," pages 2

8 to 3, at least of the English version, contains information about Mr.

9 Radic's childhood and his family life and his work history. Is it

10 correct, then, to say that this information was provided to you by

11 Mr. Radic?

12 A. Yes.

13 Q. Would you agree that it's possible that the version of Mr. Radic's

14 life that Mr. Radic provided to you could have contained a certain amount

15 of bias?

16 A. I apologise, I cannot hear the translation. I'm sorry, the

17 microphone wasn't working. In fact, the headphones weren't working for

18 some of the time and I didn't hear all of your sentence.

19 Q. Can you hear me now?

20 A. Yes, I can hear you now. Yes.

21 Q. I'll repeat the question. Would you agree that it's possible that

22 the version of Mr. Radic's life that Mr. Radic provided to you could have

23 contained a certain amount of bias?

24 A. The anamnestic version given by every subject that I examine as a

25 forensic expert, and that I have examined for the past 15 years, is always

1 biased. During my examination, I never look for personal documents,

2 certificates of birth, diplomas, or any other certificates, nor does any

3 other expert do it, because our professional ethics, the requirements of

4 our occupation, require us to proceed that way. All the anamnestic

5 information we get from the subject always come from the subject in his

6 own words, and that is how it was with Mr. Radic as well.

7 Q. What steps did you take to confirm the accuracy of the information

8 that Mr. Radic gave to you?

9 A. During our interview, we analyse what the subject has said and we

10 always make a link, both by psychodiagnostic evaluation and thanks to the

11 results of the tests conducted. I will now give you an example. For

12 instance, if somebody says that somebody has a higher education, a

13 university diploma, and during my examination and the interview I see that

14 he has difficulty expressing his thoughts, that his vocabulary is very

15 poor, that his handwriting is one of a man who is not used to writing and

16 that he has difficulty completing tests, of course I will doubt his

17 claim. That was just an example, which I used in order to try to

18 illustrate to you how we proceed, how we professionally examine anything

19 that the subject says.

20 Q. You did not interview other members of Mr. Radic's family?

21 A. No. I only interviewed Mr. Radic.

22 Q. And how can you be sure of the accuracy of the information that

23 Mr. Radic gave to you and which you put into your report?

24 A. I thought that my previous answer actually answered this question

25 as well. However, I'll try again. The procedure in any forensic

1 examination confirms what I have just explained. We do not require any

2 documentation, we do not require any certificates. We accept anamnestic

3 data as given to us by the subject. That is why the subtitle says from

4 the anamnestist. The subtitle itself tells us that this is anamnestic

5 information, information which originates from the subject himself. It's

6 not data from a computer. It's anamnestic data, something that the

7 subject says about himself.

8 Q. Where in your report does it say that all information was provided

9 by Mr. Radic?

10 A. Well, it probably doesn't say so in any particular sentence but

11 the very fact that the title says from the anamnestist implies this.

12 Q. That word "anamnestist," where does that appear, Dr. Najman?

13 A. In my report, on page 3, and I can see it here as well.

14 Q. When you say you can see it here, can you see it in the English

15 version?

16 A. No. I see it in the Serbo-Croatian version.

17 Q. I'll move on. Let's take a look at the section entitled "Analysis

18 of the Results for Intelligence Quotient Evaluation Tests."

19 A. That is page 4 in my text.

20 Q. Actually, I'd like to go a bit slower. On page 3 of my version,

21 there is a section entitled "Radic's Attitude Towards the War and Related

22 Wartime Events." It's on page 3 of the English version at the bottom of

23 the page. Do you have that?

24 A. Yes, yes.

25 Q. At the bottom of page 3 of the English version, under that

1 heading, you write the following:

2 "He was told that an investigation centre was being established

3 for investigations, which would be conducted by others. His duty was to

4 provide security for the centre. He did not inquire about its purpose or

5 why it was set up, nor did he exhibit any curiosity about the

6 investigations centre."

7 There has been a lot of testimony given in this trial that a

8 number of the former friends and colleagues of Mr. Radic were confined in

9 the Omarska centre, or, if you will, the Omarska camp. Given that a

10 number of Mr. Radic's friends and colleagues were detained at Omarska, did

11 you find Mr. Radic's lack of curiosity a bit strange?

12 A. His lack of curiosity, as I have already said a couple of minutes

13 ago, did not appear to me to be strange, because his general global

14 intellectual functioning is of the specific type. This implies a lack of

15 curiosity or diminished curiosity, capacity for exploration, desire for

16 finding explanations, and general inclination to exploration. To me, as a

17 psychologist, this seemed to fit in the picture that he presented to me,

18 and that was consistent also with the results of the tests. He is simply

19 not a curious man.

20 Q. Let's turn, then, to the section entitled "Analysis of the Results

21 for Intelligence Quotient Evaluation Tests." That's how it's been

22 translated into English. It's on page 4 of the English version of the

23 report.

24 A. Yes. It's on page 4 in my version too.

25 Q. Just waiting for the usher to be able to put it on the ELMO so

1 that everyone can see. Thank you.

2 At the beginning of this section of your report on page 4, you

3 state that Mr. Radic's IQ is 90. To your knowledge, is there any margin

4 of error to these measurements of IQ, intelligence quotient?

5 A. If I understood you correctly, you are asking me whether there is

6 a possibility that I have made a mistake in measuring the intellectual

7 capacities of this person. Is that what you meant?

8 Q. I'm asking statistically, in your knowledge as a professional, is

9 there a statistical margin of error to measurements of IQ, to your

10 knowledge?

11 A. Of course there is. Measuring intelligence is a very subtle job

12 and a very difficult job for any practising psychologist. The result

13 itself, in certain situations, depending on the state of the subject, the

14 conditions of the examination, of the motivation of the subject to

15 cooperate, it depends on all these factors.

16 In the case of Mr. Radic, I had no difficulty with his

17 cooperativeness. He cooperated to the maximum, as his capacities allowed

18 him. We did not interrupt the process of testing, I mean this

19 intelligence test; we did it all in one go. I was not able to determine

20 that there could be other factors which could affect the results we got.

21 I just stated here, if I can remember correctly, that there is an

22 increased anxiety in him. I just mentioned it, but I didn't believe it

23 mattered to the interpretation of results. In any case, that cannot

24 significantly change the results. It's just the picture of the situation

25 as it's developed.

1 Q. The statistical margin of error, would it be five points, more

2 than five points, less than five points?

3 A. Less than five. Well, if you are looking for a precise figure,

4 because we turn the results we get into the so-called weighed results, if

5 there was an error in weighed terms, a mistake of five points would be

6 equivalent to one or two weighed points.

7 Q. Why didn't you explain that in your report?

8 A. I simply did not deem it necessary. I didn't know that it could

9 be important, and I could always mention it in my oral testimony. I could

10 clarify anything if you ask me the specific question, and you did.

11 Q. Yes, I'm going to get to that in a minute. At the bottom of the

12 same page, at least in the English page 4, you say the following about

13 Mr. Radic: "His current intellectual functioning is influenced to a

14 certain extent by increased anxiety and a depressed sluggishness." Do you

15 see that?

16 A. Yes, I see it. It's on page 5 in the Serbo-Croatian version.

17 Q. How did you measure Mr. Radic's anxiety?

18 A. Anxiety is measured by clinical evaluation, and when I say

19 "clinical evaluation," I mean it has to do with the experience of the

20 doctor who is doing the examination. There is also a test which is a part

21 of my expertise, that is, the Pluchick Emotions Index Test. It is

22 mentioned in my report. Among other things, it contains a segment which

23 relates to numerical expression of the existence or absence of anxiety.

24 When I say "numerical," I mean that this is a measurable thing. It can be

25 measured and expressed in numeric values.

1 Q. Dr. Najman, how could you be sure that Mr. Radic's level of

2 anxiety was, in fact, higher than it was before your evaluation?

3 A. I have said that what we have here is an intermittent expression

4 of communication anxiety. It says in my report, "a low level of education

5 as a result of low stimulus in development and communications anxiety." I

6 didn't see that this anxiety was high or low. I said it was intermittent,

7 sporadic. As a forensic psychologist, it was my duty to write that.

8 Q. What you wrote, on page 4 of my version, was "His current

9 intellectual functioning is influenced to a certain extent by increased

10 anxiety." That was what you wrote. So I'm asking you, how could you be

11 sure that Mr. Radic's anxiety level was lower prior to your evaluation?

12 A. I'm sorry, I still haven't found this part. Oh, yes. Well, you

13 see, this sentence relates -- in fact, it concerns the last part of the

14 sentence. "His result on the verbal scale was 93, and on the non-verbal

15 section of the scale, it was 90." Therefore, I reported that this

16 difference between the verbal and non-verbal sections is partly a result

17 of this increased anxiety and sluggishness, and I linked this with the

18 result, which is 90, on the non-verbal section of the scale.

19 Q. You said that Mr. Radic manifested a depressive sluggishness. How

20 did you measure this sluggishness?

21 A. Depressive sluggishness is something that permeated -- in fact, I

22 would rather call it subdepressive, subdepressive sluggishness -- that

23 permeated our entire examination. Among other things, the Servexil B

24 [phoen] scale measures it in the following way: The subject takes more

25 time than the average person to complete some of the tasks. I measured

1 the time, of course, because those are the rules of the test, of

2 administering the test.

3 Q. So are you saying now that Mr. Radic's sluggishness was not

4 depressive, it was subdepressive?

5 A. Let me put it this way: They are nuances. They are very, very

6 slight differences, refined differences, fine points which enable the

7 investigator to make an assessment with respect to the course of the

8 examination and testing itself. The psychomotor sluggishness or slowness

9 in situations is always encountered when there is the quality of

10 depression present.

11 Q. You didn't mention these nuances or explain these nuances in your

12 report, did you?

13 A. That's right.

14 Q. That's right, you did not explain these nuances?

15 A. Yes.

16 Q. Would you agree that the presence of anxiety and depression can

17 make a person's measured IQ appear to be lower than it actually is?

18 A. Yes, I would agree with that.

19 Q. So if --

20 A. Generally speaking, of course, just as a general rule.

21 Q. So if Mr. Radic was feeling anxious and depressed when you

22 examined him, those psychological symptoms could have resulted in a lower

23 IQ score?

24 A. His level of depression and anxiety was not so marked or was not

25 of a degree which would have an essential effect on the results of his

1 test on an intellectual level. And I support this by the second test. It

2 was Raven's Test of Progressive Matrixes and the results he obtained there

3 were very similar. So that if this test was a test which was under the

4 effects of this depression or anxiety, which might have been raised, then

5 the results with Raven's test would give off -- would be quite different.

6 I'm not sure if you have understood me.

7 Q. I'm not sure that I've understood you completely, but if I'm

8 confused I'm certainly confused at a higher level, so I'm going to ask you

9 another question. Please try to help me understand something. You say

10 that Mr. Radic's level of depression and anxiety was not so marked or was

11 not of a degree which would have an essential effect on the results of his

12 test on an intellectual level. Can you turn to your conclusion, please,

13 which is on page 5 of the English version.

14 MR. SAXON: Can Mr. Usher please assist us by turning the page.

15 Q. Dr. Najman, do you see the heading there that says "conclusion"?

16 A. Yes, I can see that.

17 Q. In the second paragraph, this is what you wrote:

18 "This somewhat increased anxiety, depressive mood, and general

19 dissatisfaction with the situation in which he finds himself occasionally

20 reduce his attention span and ability to concentrate and slow down his

21 psychomotor reactions. All this together leads to the impression that his

22 intellectual abilities are lower than his actual existing abilities."

23 Isn't that different from what you've just told us?

24 A. No. Let me explain. In this paragraph I wanted to say just one

25 thing, and that is that Mr. Radic - and if we look at the last sentence,

1 he is an individual with lower intellectual capabilities than they

2 actually are as manifest, but in the first sentence I speak about primary

3 intellectual potentials, because that was one of our tasks. Primary

4 intellectual potentials represent potential which one has in life and with

5 which a person functions, so it is not linked to the moment of measurement

6 and they imply a certain capacity, which, put in simple terms, the

7 capacities that we have when we enter the world, when we come into the

8 world as human beings, and I assess that his primary intellectual

9 potentials were also within the frameworks of this same particular

10 category, and that when he was tested - and let us not forget that it was

11 under conditions of detention, in a prison, and having spent many months

12 in those conditions, in detention, that the communication and situation

13 anxieties in detention was something that is to be expected, with

14 practically all the detainees or any detainee.

15 Q. So if I understand you correctly, the situation in which Mr. Radic

16 found himself in or was in when you spoke with him might have affected the

17 impression that he gave to you and his responses during your examination?

18 Is that correct?

19 A. I don't think you understood me.

20 Q. Okay. Please explain, then.

21 A. What I said was that primary intellectual potentials are the

22 potentials you're born with, you come into the world with. And now the

23 measured intellectual potential is something that we measured at a given

24 moment, and it is a fact or a number or category which we express via IQ

25 units, units of IQ, and the moment in which this examination is conducted

1 is something that we describe and it is our duty to describe this as

2 professionals, and we say that it is accompanied by such and such a state

3 or such and such a mood. And let me say here, if I may, that the process

4 of testing the intellectual capabilities of a person is a highly refined

5 task and a very difficult task for every examiner, and the subject, the

6 person being questioned, notices this straight away and there is this

7 malaise that appears very frequently. And I'm not only saying that in

8 relation to Mr. Radic but generally when testing somebody's intellectual

9 potential. It is a reaction that we come across very frequently because

10 people don't like being -- having their intelligence tested. They don't

11 like somebody seeing how clever they are.

12 Q. In your conclusion concerning Mr. Radic's intelligence, on page 5

13 of your report, at least page 5 of the English version, you say:

14 "Mladjo Radic's present intellectual abilities are at a level of

15 normal, below average intelligence, that is one level below the average."

16 On the previous page, at two places, you describe Mr. Radic's

17 intelligence as in the category of below average intelligence within

18 normal limits. Following your narrative report, you include copies of the

19 results of a series of tests which you administered to Mr. Radic. The

20 first test is called W-BI. Do you see that?

21 A. Yes, I do. I know that.

22 Q. On the first page of the test called W-BI, under the category

23 diagnosis, you wrote, "Intellectual ability at the level of normal."

24 Isn't this a very different diagnosis of Mr. Radic's intelligence level

25 than you're putting in your narrative report?

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1 A. I assumed that you might have a question regarding this, and I did

2 so for the following reasons. It is understandable that you should ask

3 that because the scale of average, the lower level, begins with 91. The

4 level of normal obtuseness ends with 90, normal obtuseness, and I think

5 that you will understand this level of difference. The level of normal

6 obtuseness goes -- ranges between 80 and 90. And the level, the lower

7 level which we call lower level, begins with 91. In standard

8 psychological terminology, this level of normal obtuseness is not

9 expressed in that way. We say that that is intellectual ability below

10 average. But in an official version of this kind, with a -- with binding

11 categories related to psychology, I had to call this as it is termed, and

12 the term is level of normal obtuseness, and there is no difference there.

13 Perhaps there is a linguistic lack of coordination but what I say is level

14 of normal obtuseness. But at any rate, it is a slightly lower level than

15 the average. That's true.

16 Q. You don't explain this in your report, do you?

17 A. I don't think that I explained it as explicitly as that, but on

18 page 5, at the top of page 5, I did say that the level of category of

19 normal obtuseness, 80, 90, is lower in respect to the average, which is

20 91, 110, and so on and so forth. I think that that is precisely what we

21 have just been talking about.

22 Q. Let's talk about the section that's entitled "Description of

23 Personality," if we can. And in the English version of the report, that

24 begins in the middle of page 5.

25 A. Yes, yes.

1 Q. Do you see that heading?

2 A. I can see the heading, yes.

3 Q. On page 5 of the English version in the second paragraph from the

4 bottom of the page, you describe Mr. Radic like this:

5 "The subject appears to be an individual with reduced

6 self-esteem, increased low spirits, a sense of hopelessness and

7 frustration which is most probably a reflection of the situation in which

8 he finds himself, and has depressive quality. In quality and level, this

9 represents reactive depression. There is increased insecurity, anxiety,

10 and distrust toward new situations and persons."

11 If I understand what you're saying there correctly, you're saying

12 in your report that Mr. Radic's condition of being incarcerated and

13 prosecuted for very serious crimes affected, at least temporarily, his

14 personality. Is that correct?

15 A. I just want to ask you whether that is "The profile of Mladjo

16 Radic has the following characteristics: This personality is

17 characterised by the following traits," and then I go on to enumerate

18 them. Is that what you have been talking about?

19 Q. No. I'm actually referring to the paragraph above that.

20 A. "This personality is characterised by the following traits," that

21 one?

22 Q. No, Dr. Najman. I'm referring to the paragraph above that

23 paragraph, that begins with "The subject appears to be --"

24 A. Yes, yes, I found it. I apologise.

25 Q. Are you saying in that paragraph that Mr. Radic's condition of

1 being incarcerated and prosecuted for very serious crimes affected, at

2 least temporarily, his personality? Is that what you're saying there?

3 A. I am saying that this depression that I noted during the tests and

4 which I set out as the result of the MMPI test, I qualify it as reactive

5 depression; that is to say, it does not have a psychotic quality and does

6 not have the characteristic of a disease. It is not depression in the

7 disease/sick sense.

8 Q. Is it possible, then, if you examined Mr. Radic in 1997 prior to

9 his arrest and detention, that Mr. Radic might have exhibited different

10 personality traits than those characteristics which you saw and reported

11 in May of 2000?

12 A. Mr. Radic, just like anybody else, would not have different

13 character traits, because character traits are of a lasting nature,

14 quality, in any individual; but their configuration, most probably, would

15 take on a different aspect. So a different dimension would, most

16 probably - and I say this only conditionally - would be more expressed. I

17 am not sure whether then that depression would come first or whether it

18 would only be slightly increased and marked.

19 But in any event, characteristic traits and the ones I enumerate

20 would have existed then too, because they are the lasting traits --

21 character traits are lasting traits of a personality, anybody.

22 Q. Let me use the vocabulary that you use. The configuration of

23 Mr. Radic's character traits, isn't it also possible that if you had

24 examined Mr. Radic in 1992 before he was formally accused of war crimes

25 and crimes against humanity, that Mr. Radic might have exhibited a

1 different configuration of his character traits than that configuration

2 which you saw and reported in May 2000? Is that possible?

3 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila.

4 MR. FILA: [Interpretation] This is mistreatment of the witness.

5 The witness has already said that character traits do not change. The

6 configuration can be different but character traits do not change. If she

7 has to answer that five or six more times, well, let's hear it seven or

8 eight times more and then be done with it.

9 JUDGE RODRIGUES: [Interpretation] I don't think that the witness

10 saw herself to be mistreated, and I'm sure she'll answer the question. So

11 continue. The witness is a psychologist so she is quite capable of

12 answering the questions put to her.

13 Please proceed, Mr. Saxon.

14 MR. SAXON:

15 Q. Have you understood the question that I asked you, Dr. Najman?

16 A. Yes, I have understood the question, and let me repeat: Character

17 traits are the lasting characteristics of an individual, but in certain

18 situations, they are manifested in one way or another. They can be linked

19 to certain external events, internal events, or feelings, and that is what

20 a person expresses. In certain situations, they may be expressed

21 differently.

22 If somebody is a well-balanced individual, if they are emotionally

23 stable, if they are in full mastery of their capacity and are able to

24 strike a balance in every situation, for example, during the death of his

25 parents or something, then a situation of this kind, whether it's death or

1 anything similar, will result in a certain amount of depression due to the

2 loss the individual has suffered. This will depend on a situation, but it

3 has nothing to do with lasting characteristics, which we call character

4 traits.

5 Q. In the last paragraph on page 5, you say: "Mr. Radic's

6 personality is characterised by the following traits: Loyalty, modesty

7 passivity, servility, sensitivity, dependence, and a high degree of

8 conformism." Aren't these personality traits which could be a consequence

9 of being arrested and a prisoner in a strange country, or impressions

10 which could be a consequence of being arrested and a prisoner in a strange

11 country?

12 A. I don't think the page numbers coincide once more.

13 Q. It was the paragraph that you pointed out -- that you asked me

14 about a few minutes ago, and I told you no, I was referring --

15 A. Yes, I have it. I've found it, yes. "The subject appears to be,"

16 and so forth. "The profile obtained from Mladjo Radic has the following

17 characteristics: This personality is characterised ..."

18 Q. Aren't those personality characteristics or impressions,

19 impressions or characteristics which could be a consequence of being

20 arrested and a prisoner in a strange country?

21 A. Generally speaking, they could be. I discussed his results here,

22 the results of the P test, the PIE, the Pluchick Index of Emotions, and

23 the results I obtained I discuss in this report.

24 Of course, it is certain that this feeling of depression that we

25 have already talked about and the loss of --

1 JUDGE RODRIGUES: [Interpretation] I apologise for interrupting,

2 but Mr. Fila is on his feet.

3 MR. FILA: [Interpretation] They seem to be discussing two

4 different paragraphs, Your Honours, and that's where the problem lies. So

5 I am just trying to be of assistance, if I may. Mr. Saxon is talking

6 about the following paragraph, it begins: "This personality is

7 characterised by the following traits: Loyalty, modesty, passivity ..."

8 and you are talking about something else. You've gone up a bit.

9 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Saxon, I think this

10 issue of communication crops up very often. When you deal with two

11 different documents, you have that problem. You mentioned the page you

12 have in your English version, whilst the witness has a B/C/S version. So

13 make sure, please, that the witness is with you, is looking at the same

14 paragraph. And please mind the time as well.

15 MR. SAXON: Thank you, Your Honour, I will.

16 Q. Ms. Najman -- Dr. Najman, I'm sorry, the personality traits of

17 Mr. Radic that you described in your report, anxiety, frustration,

18 melancholy, indecisiveness, passivity, et cetera, could those personality

19 traits be consistent with Mr. Radic's realisation of his actions in the

20 past and the likely consequences of his prior conduct?

21 A. In what sense do you mean "consistent with"? Consistent with his

22 personality as it was previously, or what?

23 Q. No. I'm asking whether the fact that Mr. Radic may have felt

24 anxious, frustrated, melancholy, indecisive, would those impressions or

25 traits be consistent with a person with Mr. Radic's realisation of his

1 prior conduct and the possible consequences of his prior conduct?

2 A. As I said a moment ago, character traits are something which are

3 the lasting characteristic and the lasting characteristic trait of every

4 individual. In certain past events, we can carry out a reconstruction.

5 That is very arbitrary, and I would not like to enter into the realm of

6 arbitrariness at this particular moment.

7 Q. Well, if I may enter into it, isn't it fair to say, Dr. Najman,

8 that the entire concept of personality is a rather abstract concept?

9 A. How do you mean abstract?

10 Q. It's a subject that lends itself more to discussion and

11 interpretation rather than precise measurement? Would you agree with

12 that?

13 A. I agree absolutely. You know, psychology is not atomic physics in

14 any way and it never aspired to be. Neutrons have their nucleus and

15 physicists know all about that, but - there is a great "but" - psychology

16 has existed and has psychodiagnostic techniques which it resorts to and

17 which it uses to measure certain characteristics of subjects, such as

18 intellectual ability, character traits, and also what the subject himself

19 does not wish to say about himself, something that belongs to his inner

20 world. That, of course, is subject to discussion, can always be the

21 subject of discussion.

22 Q. And the fact that these concepts and subjects are always subject

23 to discussion, doesn't that make it very difficult to achieve scientific

24 certainty with respect to the characteristics and changes of a person's

25 personality?

1 A. Generally speaking, it is difficult, yes. However, a psychologist

2 or a psychiatrist who is very close to -- and psychiatry is linked to our

3 profession, and if you undertake the examination of a subject, in addition

4 to psychological tests and discussions you have with the subject, and the

5 assessments, psychodiagnostical ones, on the basis of all the knowledge

6 that he has as an expert, and the field has, is able to arrive at certain

7 conclusions.

8 Q. In your section entitled --

9 JUDGE RODRIGUES: [Interpretation] Mr. Saxon, do you have any idea

10 of the time you still have or do you want me to call your attention to

11 it?

12 MR. SAXON: It was my understanding I had an hour and 15 minutes,

13 and I understood that we began at 2.30 which means I would have --

14 JUDGE RODRIGUES: [Interpretation] No. You started at 2.20.

15 MR. SAXON: Very well, Your Honour. May I ask one more question?

16 JUDGE RODRIGUES: [Interpretation] Yes. [English] Go on.

17 MR. SAXON:

18 Q. You mentioned in your report under the heading "Psychological

19 Analysis and Interpretation" -- could you find that heading, please?

20 Could the usher please help us again?

21 You see that section, Dr. Najman?

22 A. Yes, I do.

23 Q. At the very last sentence of the first paragraph, you wrote

24 regarding Mr. Radic: "He was not impulsive or aggressive in his life and

25 professional career." Do you see that?

1 A. I see that, yes.

2 Q. Suppose hypothetically you were asked to evaluate the personality

3 of a policeman; you received a report that one day this policeman and some

4 of his colleagues were guarding prisoners as they came for a meal;

5 according to this report, this policeman and his colleagues beat prisoners

6 as they entered a restaurant area to take their meal; furthermore,

7 according to the report, this policeman gave a sign to his colleagues for

8 the beatings to begin. What observations would you make about the

9 personality of that policeman?

10 A. Well, you see, our positions are obviously different. I am a

11 forensic psychologist, and I distinguish between various types of

12 aggression. Aggressiveness can be a potential of a person, a personality,

13 and it usually belongs with disorders, personality disorders, and it's

14 called psychopathy. Aggressiveness can be displayed occasionally. It can

15 be shifted aggressiveness, and it does -- it is not necessarily a part of

16 a personality. It can be displayed only in some situations. And that

17 does not mean that the person in question has an aggressive potential

18 within themselves.

19 Q. Were there two different methodologies used in the examination of

20 Mr. Radic?

21 JUDGE RODRIGUES: [Interpretation] Mr. Fila?

22 MR. FILA: [Interpretation] Can I just ask one question? How many

23 last questions does this Prosecution have? One, 2, 3, 23? Mr. Saxon said

24 he only had one question. He is wasting my time mercilessly. I'm sorry,

25 but I object.

1 JUDGE RODRIGUES: [Interpretation] Mr. Saxon?

2 MR. SAXON: Your Honour, I apologise that I have gone overtime and

3 I will withdraw the question and sit down.

4 JUDGE RODRIGUES: [Interpretation] So you finished. It is also for

5 the purposes of the transcript, you know we mentioned 2.30, 2.20. We were

6 wrong because if you had started at 2.20 or 2.30, you would have had half

7 an hour left over. So that's clear. Often you require to be entitled to

8 raise another question which encapsulates in itself another question, but

9 here you moved on to another field of investigation or questioning so I

10 think you have concluded the cross-examination.

11 Mr. Fila, do you have any additional questions?

12 MR. FILA: [Interpretation] Very briefly, I'd like to find one

13 thing.

14 Re-examined by Mr. Fila:

15 Q. The gentleman who did the expertise with you is a Dutch

16 psychologist?

17 A. Yes.

18 Q. Does he examine Dutch people or other people?

19 THE INTERPRETER: Excuse me. This is going -- it's going too

20 fast. Will you please ask counsel not to overlap?

21 MR. FILA: [Interpretation]

22 Q. Have there been any differences between you and the Dutch

23 gentleman during your examination?

24 A. Diagnostically, there were no differences. As far as the approach

25 to the subject is concerned, there were also no differences, and we had a

1 very good professional cooperation.

2 Q. Although you examined Serbs and he examines Dutch people?

3 A. Yes.

4 Q. And you had coffee and drinks together?

5 A. Yes.

6 JUDGE RODRIGUES: [Interpretation] Thank you very much.

7 Judge Riad, do you have any questions?

8 Questioned by the Court:

9 JUDGE RIAD: I think I can say good afternoon, doctor, now it's

10 afternoon. Can you hear me?

11 A. Yes, I can hear you. Good afternoon.

12 JUDGE RIAD: -- profession which I didn't have the great advantage

13 of being acquainted thoroughly with -- but just for my knowledge, you were

14 just mentioning that you take in many elements in your examination and you

15 include in it what the subject does not want to say about himself. I

16 think you have another dimension. What about the subject giving you

17 inaccurate information? How do you handle that?

18 A. First of all, if the information is incorrect - I must say we

19 always presume that anamnestic data is always correct, especially in

20 situations when the subject is in a prison or under investigation. As far

21 as other inaccurate information is concerned, if it concerns his personal

22 traits, for instance, there are techniques to indicate this. One of these

23 techniques is the MPI test which shows when somebody is lying, to put it

24 simply, and there are other techniques such as the Rorschach test which

25 gives a picture of the inner world of the subject which he does display in

1 a way indirectly and which we are able to interpret. So these are very

2 important indicators for us, and based on them we make our conclusions.

3 JUDGE RIAD: So you trust your indicators, that being in the hands

4 of your patient, who perhaps can convey to you information which he thinks

5 is right, is not lying?

6 A. Yes.

7 JUDGE RIAD: -- which is not at all the truth except in his mind?

8 A. Yes.

9 JUDGE RIAD: How do you handle this? I'm just wondering --

10 professionally, I mean, that's a problem. I don't expect you to answer

11 it.

12 And the other thing, you were just saying that aggressiveness can

13 be displayed occasionally and not be inherent to the -- as I understand

14 it -- to the real character of the person. In that case, then, in your

15 analysis -- the end of the analysis, you cannot affirm that this person is

16 not able to commit something. He can still do the thing even if the

17 analysis does not lead to that, the conclusion does not lead to that. Is

18 that a fair assessment?

19 A. That would be one of the conclusions, but I must say that if a

20 person does not have aggressive potential in the structure of his

21 personality, then even his situational - if I can call it that - display

22 of aggressiveness cannot be of a high level. It can be occasional rage or

23 anger, dissatisfaction, but it cannot cross over into a level of

24 aggression which is expected of a person who has aggressiveness within

25 their personality structure.

1 JUDGE RIAD: Thank you very much.

2 JUDGE RODRIGUES: [Interpretation] Thank you very much, Judge

3 Riad.

4 Judge Wald?

5 JUDGE WALD: Doctor, I have two short questions.

6 On page 6 of the English version, I'm just going to read two

7 sentences and I don't have the Serbo-Croatian version so I can't tell you,

8 but they come just above something called "Projective Material Results."

9 Can you find where the topic heading is "Projective Material Results"?

10 Okay. The two sentences just above say:

11 "The dimensions of obedience, gullibility, dependence, and

12 suggestibility are pronounced. Such a personality lacks a critical

13 ability and independence as a result of which he constantly seeks

14 support. In new situations, he demonstrates a greater degree of

15 stereotypical behaviour and less flexibility."

16 Now, on the following page - these will come together - on the

17 following page, under "Psychological Analysis and Interpretation," in the

18 third paragraph, you talk about Mr. Milgram and you say, describing an

19 obedient person, that sometimes if he's carrying out acts under orders,

20 you say, "in this way, ordinary people who are simply doing their jobs may

21 become actors in a destructive process," and you go on to give the example

22 of the soldier dropping the bomb.

23 My question is the following: Taking the personality

24 characteristics that were described in the first paragraph, not Mr. Radic,

25 just such a personality, would you say that such a personality, when he or

1 she is put into a new situation in which people around him are behaving

2 very badly, very aggressively, in ways that normally this person would

3 never behave in, that that personality is likely to begin to act that way

4 too or not? Or to retreat or to object to the way that other people are

5 acting? In a new situation that's quite new, as I say, when normally that

6 person would not behave that way but he's in a situation where there are

7 other people behaving that way, what would be the most predictable

8 reaction? Not Mr. Radic, but of a person with these personality

9 characteristics. That's my question.

10 A. I understood your question. The most predictable reaction would

11 not go towards opposing, especially not opposing a group or people

12 surrounding that person. I have referred here to Milgram's exploration of

13 the subject because it mentions execution of orders which come from

14 authorities. Many researchers have dealt with this, trying to clarify

15 what you are interested in.

16 The authority in this situation would have to be something --

17 someone who is seen by the subject as a figure of authority, either in

18 terms of hierarchy, business relationships or family relationships. Also,

19 since the order is coming from this figure of authority, it is this figure

20 who is responsible for the act. The subject himself - I'm underlining

21 this as a psychological interpretation, not a forensic or judicial one -

22 the subject does not have the impression that he is responsible and that

23 his own motivations and decisions have anything to do with it. This is

24 the image that the subject has of his own act.

25 JUDGE WALD: Just one short follow-up on that. Now, I understand

1 your answer with regard to an authority figure giving an order. But the

2 earlier quote talked about suggestibility and constantly seeking support.

3 What if that person, that personality, doesn't have an order to do

4 something but everybody around him, his colleagues, are behaving in a

5 certain way that he would not normally behave, is it likely that he is

6 going to, in order to curry their favour, behave that way or not?

7 A. Well, what we lack here is initiative. Such a person does not

8 have enough initiative to undertake something of their own.

9 JUDGE WALD: Okay. Thank you.

10 JUDGE RODRIGUES: [Interpretation] Thank you very much, Judge

11 Wald. I have only one question for you because we could, of course,

12 discuss this report for hours and days.

13 Just this question: What was your training in this very specific

14 field of forensic psychology, also called judicial psychology?

15 A. You mean my educational attainment? I graduated from the Faculty

16 of Philosophy of Belgrade University, the group for psychology. I had

17 three years of internship, specialist training, and I had also

18 specialisation training. I worked in the prison hospital in Belgrade. I

19 have been a forensic expert since 1985 or 1986. I can't remember

20 exactly.

21 JUDGE RODRIGUES: [Interpretation] Very good. I think we have put

22 all the questions that we wanted to raise. Thank you very much for coming

23 to the Tribunal, for cooperating with the Tribunal, and we wish you a very

24 good journey back home. I shall ask the usher to accompany you.

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

1 [The witness withdrew]

2 JUDGE RODRIGUES: [Interpretation] Mr. Fila.

3 MR. FILA: [Interpretation] I would like -- Your Honour, I don't

4 know whether Mr. Saxon wishes to tender into evidence the written report

5 and the opinion of the forensic expert, Mrs. Ana Najman, or shall I do

6 that? In any case, I believe it should be tendered into evidence. The

7 Prosecution presented this so I'm not really clear on this.

8 JUDGE RODRIGUES: [Interpretation] Mr. Saxon.

9 MR. SAXON: Your Honour, I had merely marked it for identification

10 purposes. It is the report, obviously, of Mr. Radic so we will leave it

11 to them to offer it into evidence.

12 MR. FILA: [Interpretation] In that case, we tender it into

13 evidence.

14 JUDGE RODRIGUES: [Interpretation] Madam Registrar, what is the

15 number for this exhibit?

16 THE REGISTRAR: The number is 3/214 -- oh, I'm sorry, that's the

17 Prosecutor's ID number. Just a second. It would be D30/4.

18 THE INTERPRETER: Microphone for the counsel.

19 THE REGISTRAR: That's what I have.

20 JUDGE RODRIGUES: [Interpretation] Madam Registrar, what's the

21 logic of it? What's the "4" for? What is it for? You said "/4." Why do

22 we have "/4"?

23 THE REGISTRAR: Because the previous number was D30/3.

24 JUDGE RODRIGUES: [Interpretation] We're not going to waste any

25 time on this right now. We've got the document; it was identified. We've

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1 got to keep the same method of marking and identifying the documents. For

2 the Defence, we've got documents that are identified according to the

3 order in which the accused are stated in the indictment. That has to be

4 taken into account. Anyway, we'll see about it tomorrow. You're going to

5 have time in the meantime to think it over.

6 Mr. Saxon, do you have any objection with regard to the tendering

7 into evidence of this document?

8 MR. SAXON: The Prosecution does object to the admission of this

9 document, Your Honour, based on questions related to its reliability. The

10 Prosecution does not believe that the findings or the conclusions of

11 Dr. Najman's report are valid, and therefore we would object to its

12 admission.

13 MR. FILA: [Interpretation] I would like to make one

14 clarification. Both reports constitute a joint report. Mrs. Najman

15 examined Serb persons and the Dutch gentleman examined Dutch subjects. I

16 don't know if Mr. Saxon objects to both Serb and Dutch subjects, or is it

17 only one group that he has a problem with?

18 JUDGE RODRIGUES: [Interpretation] Mr. Saxon.

19 MR. SAXON: The Prosecution objects to the admission of

20 Dr. Najman's report and the report that was presented by Dr. van den

21 Bussche. So if we want to refer to them as one joint report, the

22 Prosecution would object to the admission of both reports, or as a single

23 joint report based on questions as to the reliability of the findings of

24 these reports, how these examinations were performed, and the conclusions

25 therein.

1 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila.

2 MR. FILA: [Interpretation] Three things.

3 First, in the case of Mr. Kvocka, you admitted such a report.

4 This Trial Chamber admitted this report.

5 Second, that psychiatrist was designated by this Trial Chamber not

6 myself. So I would like an understanding to be reached between the Trial

7 Chamber and the Prosecutor's Office who is being accused of incompetence,

8 I mean this gentleman from the Netherlands.

9 The report is a single report. To cross-examine for an hour and a

10 half and then say that the person is incompetent, I really don't see the

11 point. I therefore insist that this document be admitted as a single

12 report.

13 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila, but that's why

14 the Trial Chamber is there, to make decisions.

15 Madam Registrar, do we have a number now or are you thinking about

16 it?

17 THE REGISTRAR: D31/3.

18 MR. SAXON: Your Honour?

19 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Saxon, we have to come

20 to an end.

21 MR. SAXON: Just as a suggestion, it might be worthwhile, before

22 making a final decision then, to allow the cross-examination of the

23 other -- it might be possible, before the Trial Chamber rules on the

24 admission of this joint report, to allow for the cross-examination of

25 Dr. van den Bussche, who was the psychiatrist who examined Mr. Radic, and

1 then a decision could be made.

2 JUDGE WALD: Excuse me, Mr. Saxon. Did you ask to cross-examine

3 Dr. van den Bussche as well as Dr. Najman?

4 MR. SAXON: Yes, Your Honour, we did.

5 JUDGE RODRIGUES: [Interpretation] You know that we have problems

6 with time, and I'm starting to have some doubts as to whether we'll be

7 able to conclude at all. I know that the Trial Chamber issued the order

8 for this expert witness. We've had the reports for a long time. We're

9 trying to make headway but we are meeting with a lot of problems.

10 We're not going to make a decision today. The Trial Chamber will

11 ponder the matter. What we now have is a request for admission of the

12 report. You have an objection by the Prosecutor. We are aware of your

13 reasons. We're going to analyse the whole thing and make a decision, but

14 we're going to leave it at that today, because we've been working for

15 awhile.

16 Tomorrow we'll be in court at 9.20. See you tomorrow.

17 --- Whereupon the hearing adjourned at 3.13 p.m.,

18 to be reconvened on Tuesday, the 7^th day of

19 March, 2001, at 9.20 a.m.

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