Tribunal Criminal Tribunal for the Former Yugoslavia

Page 72

1 11th March 1997

2 (10.00 am)

3 JUDGE KARIBI WHYTE: Good morning, ladies and gentlemen. Do

4 we have the appearances now, first, the prosecution?

5 MR OSTBERG: Thank you, your Honour. I am Eric Ostberg. I

6 appear at this trial with my learned friends, Mrs Teresa

7 McHenry, Mr Giuliano Turone and our case manager and

8 legal assistant, Miss Elles van Dusschoten.

9 JUDGE KARIBI WHYTE: Do we have the appearances for the

10 defence, please, with the first counsel for the first

11 defendant?

12 MS RESIDOVIC (in interpretation): Edina Residovic, defence

13 counsel for the accused, Zejnil Delalic, with

14 co-counsel, Professor O'Sullivan and Ekrem Galijatovic,

15 attorney.

16 JUDGE KARIBI WHYTE: Counsel for the second defendant?

17 MR TAPUSKOVIC (in interpretation): Your Honours, I am

18 Branislav Tapuskovic, attorney from Belgrade, with my

19 co-counsel, Mira Tapuskovic, also attorney from

20 Belgrade.

21 JUDGE KARIBI WHYTE: May we have the appearances for the

22 third defendant?

23 MR KARABDIC (in interpretation): Salih Karabdic, attorney

24 from Sarajevo, with co-counsel, Mr Tom Moran, attorney

25 from Houston, Texas.

Page 73

1 JUDGE KARIBI WHYTE: Finally, but not the least, may we have

2 the appearances for the fourth defendant?

3 MR BRACKOVIC (in interpretation): Attorney Mustafa

4 Brackovic from Sarajevo with co-counsel Miss Cynthia

5 McMurrey, attorney from the United States, from

6 Houston.

7 JUDGE KARIBI WHYTE: This morning, we have the opening

8 speech by counsel for the second defendant, Tapuskovic.

9 Can we hear you, Mr Tapuskovic, your opening speech?

10 Opening statement by MR TAPUSKOVIC

11 MR TAPUSKOVIC (in interpretation): Thank you, your Honour

12 of the Trial Chamber of the International Criminal

13 Tribunal in The Hague. I wish to greet you on my behalf

14 and on behalf of my co-counsel, and what I am about to

15 present in the next minutes is something that is a

16 product of our joint effort and we will try to present

17 the issues before you today.

18 I had requested a little time yesterday, and I

19 want to thank you for giving me this extra time. I am

20 mentioning this because I wanted to double check on

21 certain things, including the order of witnesses, and

22 this is the new order of witnesses which was provided to

23 us yesterday, and it included some new names, because in

24 late December, it had been presented in a different

25 way. There were fewer witnesses then, and there was

Page 74

1 very little time for me to see of what significance this

2 may be for my opening statement, which I am about to

3 present before you, and I believe that what I have

4 gotten from the prosecution does not interfere with what

5 I have to say today, but I had not been sure, but having

6 been given enough time from you, I was able to

7 double-check.

8 In the former Yugoslavia, if we look at the

9 history and the sociological issues, we can go on for a

10 very long time. However, I am defending one single

11 individual, and I will address the evidence and also his

12 personal state in the circumstances in which he found

13 himself and for which he has been charged in the

14 indictment before you.

15 I may be interested only in the defence of

16 Mr Mucic. I never lent on the other accused, and so I

17 am only focusing on the personal story of Mr Mucic, but

18 the obvious facts I cannot bring into question, because

19 I never defended in different situations without not

20 taking into account the facts which I had to grapple.

21 Some of the most general things that are here

22 before you, and will be in the coming months, I would

23 like to see presented as fast as possible, because it is

24 our interest, and also that of the defendant himself,

25 who has been in detention, that this trial be as

Page 75

1 expeditious as possible.

2 In the beginning, I will say a few things. I have

3 been an attorney for thirty years. I do not know how

4 many final arguments I have given, but this is the first

5 time that I am giving an opening statement. This is the

6 first time, as I say, that I am giving an opening

7 statement, and I think that I am the first attorney from

8 the former Yugoslavia who is going to give it. We had a

9 different case in the Erdemovic case, because he had

10 admitted his guilt, and so there was no opening

11 statement there, and I believe that my colleague will

12 have an easier job of it later, when it comes their

13 turn.

14 Whether this opening statement is going to be in

15 the spirit of the common law, because I have never given

16 one before, and I probably would not have done so had it

17 not been this case here in The Hague, and thanks to my

18 colleagues from the US and Canada, when I spoke to them

19 about how I should proceed, they said that this is

20 indeed in the spirit of what a defence attorney is

21 supposed to do, and I want to thank them for it. I also

22 have heard Mr Ostberg, and I can see that my opening

23 statement also is going along the lines of what he has

24 said.

25 What is my purpose of this opening statement? I

Page 76

1 would like to assist you to be able to enter into the

2 issues as soon as possible, and to start paying

3 attention to the issues that will be presented through

4 the witness statements and the written documents

5 presented by the prosecution, and also through the

6 ability that you have to question witnesses yourselves,

7 and even present certain evidence, and this is where the

8 difference is between the common law legal system,

9 because some of the authority that you have also is not

10 part of that system either.

11 In my pre-trial brief, I have given a framework

12 for my theory of defence, and now I would first like to

13 point to the evidence offered by the prosecution, which

14 also corroborates my theory, which was presented in my

15 pre-trial brief. So, in my opening statement, I will

16 not present any of the evidence that I may be presenting

17 here, before this chamber, but I will only point to all

18 the exculpatory evidence that the prosecution has had in

19 its possession, with respect to Mr Mucic, and how it

20 completely disregarded it.

21 This is why I am giving this opening statement

22 now, right after the Prosecutor's opening statement, and

23 not waiting for the prosecution case in chief to be

24 completed. This is a strategy, and I have to point this

25 out right away. Mr Mucic, the defendant, has been

Page 77

1 waiting a full year for this trial to start. On March

2 18th, it will be one full year since he has been

3 detained.

4 My colleague, McHenry, at one of the status

5 conferences, mentioned a case, I do not know where it

6 was, but she said that this was not a long period of

7 time, and that we had not been waiting long, because

8 somewhere there was a case where people waited seven

9 years for the start of a trial. Such comparisons in

10 cases -- and I am not talking about this case; I am

11 talking about the protection of human rights -- detained

12 persons have some basic rights, and then, again, I can

13 call on Article 12 of the Statute of this Tribunal,

14 where it calls for a fair, but also an expeditious

15 trial.

16 If we have trials going on for several years here,

17 these trials will not fulfil their purpose, and they

18 will affect adversely people who are waiting in

19 detention to be tried. I know what a single day in a

20 prison means, and so I feel obliged to mention this

21 before this chamber.

22 In the transcripts from the previous status

23 conference, you know that the trial had been set for

24 October 1st 1996. You asked me how much time I needed

25 for my opening statement presentation if I had been

Page 78

1 preparing it for one year. I have not been preparing it

2 a full year. I only needed one month, because I saw the

3 evidence that the prosecution had at the time of the

4 indictment, and I spent most of that time just verifying

5 certain things that the accused offered themselves, and,

6 when I first came here, I already had what I am talking

7 about today, and so I was able to address all these

8 issues, even in October, and I would not have needed

9 more than fifteen days, indeed.

10 Then the trial had been set for 12th December,

11 28th January and then finally we reached this day,

12 practically a full year from the moment when he was

13 detained, and when, in Vienna, he was told to come here

14 as soon as possible, and he agreed to that, because he

15 believed that his trial was going to start very soon.

16 In the meantime -- and this is something I need to

17 mention too -- he found a very inappropriate way to

18 express his dissatisfaction with this. He went on a

19 hunger strike, and I was cautioned by the Tribunal as if

20 I had inspired him to that. I know that this was

21 absurd, but it was the only way that he knew how to

22 express his dissatisfaction, and this is why I am using

23 this opportunity to give this opening statement now, but

24 also in order for you to be able to start understanding

25 the issues right away, and obviously it is up to me to

Page 79

1 try to present it as well as I can.

2 So here we are at the beginning of this trial.

3 This opening statement could maybe be more convincing

4 after the presentation of the prosecution case, but I

5 decided to do it now, and it was not easy. You know

6 that the Rules of the evidence are not complete, and you

7 invited us to participate in overcoming the issues, and

8 both myself and my co-counsel will act in this spirit of

9 that. In many ways, we have not been in an equal

10 position with respect to the prosecution. We only got

11 the full conditions for work a few days ago, but I am

12 not going to dwell on it.

13 If you look around, we have the state of the art

14 computer technology, but what I am looking for, I just

15 need a little space to jot things down. This is not

16 what I am used to, and I do not have it here, but trust

17 me, I would like that the justice before this Tribunal

18 be at the level of the computer equipment that we have.

19 Also, if you allow me, I will have a digression.

20 Mr Wladimiroff, the defence attorney of Mr Tadic, he

21 gave an interview to the only Yugoslav newspaper that

22 has been following the trial. I think the journalist

23 from there may be present here. It is the Nasa Borba.

24 He said this, and I quote:

25 "People in authority in the former Yugoslavia

Page 80

1 have a very strange attitude towards the truth, towards

2 the possibility that people speak freely what they know,

3 and what they think. This is one of the reasons why I

4 truly feel sorry for my colleagues from the former

5 Yugoslavia who will be involved in future cases. I can

6 say whatever I want, but they have problems, because

7 back at home they will be asked, 'Why did you say

8 that?'."

9 Is that really true? We could turn this around.

10 Even if you were able to say everything, by not knowing

11 the language of the accused, is it possible to have a

12 full communication with him to find all the relevant

13 information, and can all the exculpatory elements in the

14 defence be known without knowing the environment in

15 which these events took place and the mentality of

16 people that took part in them?

17 Mr Wladimiroff may have a point. You may know the

18 position of my colleague, Galijatovic, who, at one of

19 the status conferences, in the transcript I was given a

20 lot of compliments there, but then it was said that for

21 people in Sarajevo, it is an act of provocation to have

22 an attorney from Serbia that is from Yugoslavia, from

23 Belgrade, who is defending one of the accused here. But

24 why not, I am asking you? Have we not had a peace

25 agreement signed? Must we not continue to communicate

Page 81

1 about the events that took place in that region? Do we

2 need not provide services in hospitals as well as in

3 courtrooms? That is just one of the aspects.

4 Another aspect is I also had very unpleasant

5 moments in Belgrade for my own extended family. Some of

6 them said that they would change their names if I came

7 to The Hague. How can I, an ethnic Serb, defend an

8 ethnic Croat? That is absurd, when I gave my oath, as

9 an attorney, I never dreamt that this time would come

10 that, if somebody approached me and asked me to defend

11 them, that I first asked him, "You are a Croat, so if

12 you are a Croat I cannot defend you because I am a

13 Serb". But we will continue to live there. There will

14 be traffic accidents. People will have to be defended.

15 So I do not want to belabour that point.

16 Then the press, the media. They attacked me.

17 They said, "Tapuskovic is defending the beast of

18 Celebici". You see the indictment, you saw what he is

19 charged with. I had a colleague, a judge on the Supreme

20 Court in Serbia, and he said, "You will just ruin your

21 own career, you will get your own Serb now". I am not

22 sure if that is what Mr Wladimiroff had in mind. He may

23 have had something else in mind.

24 There is belief back in the past in Yugoslavia we

25 could never speak freely, we could never think freely,

Page 82

1 but we will see here in this country whether we can say

2 things openly, but I can tell you at all times in that

3 region there were people who dared speak the truth, even

4 at the price of their freedom or life, even among

5 lawyers. This is what I felt I needed to say, and in

6 the following months, we will address the war in the

7 former Yugoslavia, the victims that it produced, in one

8 of the places where horrible things went on.

9 However we call this war, it was a senseless and

10 unnecessary suffering of people. There are people who

11 are more or less guilty. That whole region in the whole

12 of its history never had 50 years of continuous peace,

13 as they had between 1945 and that war. That is the only

14 period when there was no suffering, and in all these

15 places -- and I can speak of Belgrade, which was not

16 swept into the war, that there is post-Vietnam syndrome

17 present because of the terrible things that had happened

18 in different front lines in that region.

19 Many of us knew about different problems in

20 various areas of that country, and we all believed that

21 a war would not come and I believe all of us present

22 here never believed in it. I will not dwell on the

23 causes and the characteristics of this war, and I

24 probably will not have many questions for the expert

25 witnesses, with that respect, and I will not enter into

Page 83

1 any polemics with the prosecution on that issue.

2 There is one cause of that war that has not been

3 mentioned by the prosecutor, and that is the basic

4 thing, which is why all of it happened. It was a

5 product of people who were thirsty for power. That

6 reason was not mentioned by the prosecutor, and you may

7 or may not know it is one of the worst motivations, and

8 its name is power. Now they can all sit nicely in their

9 chairs, and we had this tradition of people who, once

10 they got the power, that they would never leave it.

11 They do not care about what is going on, but let us not

12 dwell on that either. I am here to defend Mr Mucic, and

13 I state that, given the abundance of the evidence from

14 the prosecutor's arsenal, had there been more people

15 like Mucic, there had never been the war, and, if it was

16 up to him, there would not be a single victim there, and

17 I will try to demonstrate that, based exclusively on the

18 evidence offered by the prosecution.

19 Among their evidence, you have a statement by Mira

20 Golubovic, and you will hear that. He will be one of

21 the first witnesses here. He said to the investigators

22 of this Tribunal, had there been 20 per cent of the

23 people in Bosnia and he was one of the victims, like

24 Mucic, there would not have been war. Unfortunately,

25 the investigators who were questioning Mucic stopped

Page 84

1 questioning at that time, stopped at this point,

2 obviously not satisfied with this kind of statement, and

3 also when they were questioning his father, Slavoljub,

4 it is also there. So at this point, we do not have it

5 on the prosecution witness list, but we have it in the

6 witness statements, and he literally said, "He saved my

7 life".

8 I need to depart again from this case and go to

9 something that is linked to this. It is something that

10 the prosecution wants to use in order to control the

11 situation here regarding Mr Mucic. There is something

12 in the case file of Mr Mucic that makes all these

13 charges absurd, and I have been pointing to this in the

14 various status conferences, and we debated this, and

15 I was expounding my position, and I even filed a motion,

16 and I think it was an awkward motion, because I asked

17 something of the Trial Chamber, even though it actually

18 should have been directed to the prosecution.

19 There is a document from Konjic, and it is in

20 possession of the prosecution, and I am sure they will

21 use it, but you will see in what way. There is a

22 verdict sentencing Mucic to 15 years in prison. He was

23 convicted of Esad Bubalo in abstentia. He was sentenced

24 to that.

25 In the verdict, this murder took place on 27th

Page 85

1 June 1992, and the victim was Esad Bubalo. Mucic was

2 convicted not for committing the murder, and the point

3 is that it is the same here, because he was also

4 sentenced for something that he had not done there, but

5 that he had ordered it, and that he was also the camp

6 commander at that time. In other words, that murder

7 coincides with the time period from this indictment.

8 Also the place of the time is the same, and Bubalo was a

9 prisoner. He was the only ethnic Muslim who was a

10 prisoner in this camp, and I need to point this out to

11 the Trial Chamber, and I think that it should be part of

12 your very serious consideration, because the prosecution

13 will do everything to convince you that he was a

14 commander, and so that we have nothing to discuss about

15 that case here.

16 As soon as I saw this verdict, as soon as I saw

17 it, without the full case file, and after reviewing the

18 file, it was clear to me that this was nothing but a

19 framer, and these kind of fabrications I have seen a lot

20 in the past. I even wrote a book about it. But there

21 was no cause of death. There were different times of

22 the commission of this murder cited and only a

23 photograph of the grave where he was buried, and the

24 only proof was a statement of a co-defendant, who was

25 also not a direct perpetrator.

Page 86

1 In August of 1996, I filed a motion pursuant to

2 Rule 9 of the rules of evidence regarding deferral of

3 competence, saying that this was not a common crime, but

4 a crime against humanity. If we have some 50 counts on

5 the indictment, we could have included one more, because

6 at that time the proceeding was not conducted with due

7 diligence, and this case also involves significant

8 factual and legal issues relevant for this proceeding as

9 well.

10 From Mr Ostberg I got a reply that he was a fellow

11 soldier, and it was a common crime, so my motion should

12 be understood properly. It may look paradoxical, but,

13 if you look at it this way, then please note it in that

14 respect, and you will see that the prosecution dwells on

15 this, you will see from their presentation.

16 Mr Ostberg told me that they will not do that,

17 that it was a common crime, and that he was a fellow

18 soldier. The verdict was passed in abstentia, and he

19 said that it was going to be retried, but the case could

20 have come here. Now, we could debate that. We could

21 discuss it, to what extent it would be in the spirit of

22 the Rules of this Tribunal. But, in the files, there is

23 a piece of evidence that the prosecution will use, and

24 I will give you one statement. This is a quote from a

25 statement that will be presented by the prosecution, and

Page 87

1 I quote:

2 "Look, I was under an impression throughout the

3 trial against me that it was in everyone's interest to

4 prove that Pavo Mucic was responsible only because he

5 was a Croat, and to demonstrate that Mucic ordered the

6 killings of Muslims, and so forth, because this trial

7 took place during the worst conflict between the Muslims

8 and Croats. This has been haunting me all this time",

9 it says in the statement.

10 "I lied with respect to this man. A man can be

11 accused even though he is completely innocent. In other

12 words, it was in the interests of the people who put us

13 on this trial. Please, the entire trial was a matter of

14 a deal. After a lot of persuasion, I finally agreed to

15 tell them what suited them, so that they would reduce

16 the charges against me. Behind all of this, behind the

17 Bubalo murder are some people who are still in the

18 positions of power. For instance, it was easier to

19 blame it all on Pavo Mucic so that in no way I would be

20 at risk for any retaliation.

21 "Pavo Mucic was not the prison commander at that

22 time of Bubalo's murder."

23 This is a quote. The prosecution has it among its

24 evidence material, and I want them to present it to you.

25 That kind of verdict in abstentia against Mucic,

Page 88

1 based exclusively on a statement at variance with the

2 one that you just heard by the same person, is what the

3 prosecution will try to introduce. The authorities of

4 Bosnia and Herzegovina have this document, that the

5 commander of the camp was Mr Mucic, even though, in the

6 case file, there is no proof, written proof that he was

7 a camp commander. In other words, he was only sentenced

8 because somebody said that he was a commander. In other

9 words, now we have a verdict, a sentence, treating him

10 as camp commander, a Croat belonging to the HVO, and now

11 he is guilty for everything that went on there.

12 So I need to point to you at this time that I will

13 certainly not agree, when the time comes, that the

14 Bubalo file, which is pretty thick, be presented here as

15 any kind of evidence. Maybe it can. We will see when

16 the time comes. If the entire file is translated, so

17 that you can read it and, as experienced judges, make a

18 decision on it, then we can go and see who fabricated

19 the whole case.

20 I will also need to warn you of another thing.

21 This trial was first conducted in Mostar, before the

22 Croatian Community, Herceg-Bosna, within Bosnia and

23 Herzegovina, and then it was stopped, and then that was

24 the end of the case. Once the case was closed, it is

25 over. So the Croatian Community of Herceg-Bosna had

Page 89

1 filed the case, and I will show you one more thing about

2 how certain cases can be fabricated.

3 Everything I am saying here, I am not talking

4 based on the evidence that I collected. I am only

5 talking about the evidence offered by the prosecution.

6 So I am not making anything up. I am not construing

7 anything. This is all evidence of materials from the

8 prosecution. There is no criminal charge against Pavo

9 Mucic from the Republika Srpska. However, it exists,

10 but it is against another person. How shall we explain

11 that?

12 At the same time on 22nd December 1992, and then

13 again on 12th February 1994, they filed charges for war

14 crimes, but now against Pavo Mucic, and another citizen,

15 I do not know if it was in Bosnia or Croatia, but of

16 Croatian ethnic background, and that refers to the

17 Celebici camp.

18 That is the same matter, that is the same system,

19 that you have just heard, when I quoted that witness

20 statement, and it is not something that I construed.

21 Again, I have to ask this question: why the

22 prosecution does not treat a closed legal case in the

23 same way as the verdict from Konjic. And why did it

24 pursue this event? You will see later when we go to the

25 indictment. Why?

Page 90

1 I think for now I only request, and you will see

2 more when we start hearing the evidence, I do not know

3 if the prosecution is going to change their position.

4 Whoever has been questioned by the prosecution in half

5 of their statements, they had to explain these facts:

6 What was with respect to that? When did who become camp

7 commander? But they were not pursuing the event itself,

8 the crime against humanity. Here we can debate forever,

9 and I do not mean just the situation of this trial.

10 When in the world shall we -- I am sorry, maybe I am

11 belabouring this point. Maybe you do not have enough

12 will to listen to all of this.

13 I think that it is an issue that should be

14 addressed at this time. There are three issues of a

15 more general nature that need to be taken into account

16 here: the first issue is what are the witnesses that

17 may be of interest to the Pavo Mucic defence, only

18 those? I think that they are appropriate witnesses for

19 his situation, and again I remind you, what I am

20 addressing here is his situation, and his position

21 here. So it is the people who were working in the camp,

22 and he would like nothing more than to bring all those

23 whom he helped during their stay in Celebici. He is not

24 interested in any other witness from Sarajevo, or from

25 Zagreb, who was in some position of authority, but never

Page 91

1 set a foot in that camp. So he is interested in that,

2 and I am interested in these witnesses, and he is not

3 afraid to face all witnesses and discuss all the issues

4 before this chamber.

5 We have a situation which is not allowed in many

6 other prisons in the world. Pavo Mucic is in a position

7 to speak to some of the persons who are not in the

8 prosecution list on the telephone, and he never

9 requested anything of them, and we never asked anything

10 from anybody, had we been given an opportunity to

11 contact the witnesses and just request of them to say

12 everything that they know, without any persuasion.

13 Yesterday, we talked about that, and there is this

14 presumption that the defence would sort of exercise

15 pressure, but we are only interested in one thing: to

16 talk to them, to gain an impression about these persons,

17 and to maybe request them not to be shy and to speak

18 everything that they know, but speak truthfully. But we

19 have not been given this opportunity, and we find that

20 discriminatory to think that we would be blackmailing

21 them, or we would be pressuring them into this or that.

22 We think that that position is wrong, the position

23 taken yesterday, that we cannot have any contact with

24 witnesses, and, after these telephone conversations that

25 Mr Mucic had with people who lived in Germany and Serbia

Page 92

1 and Bosnia, this is what he got as a typical answer.

2 They said, "Pavo, but you do not need this, where are

3 you calling from?" And they were surprised when they

4 found out he was in jail, and they said, "But please do

5 not, I am in an awkward position". So you will hear

6 witnesses who are going to testify before you who said

7 of one of the persons in this camp, "Several years later

8 he told the story that he will keep Pavo Mucic's

9 photograph next to his patron saint". When we called

10 him, because he read something about how Mucic was

11 setting people on fire, he said, "No, I will not do

12 it". So you have to take that into account as well,

13 that people will come here with preconceptions, and it

14 is something that is very much part of this trial, and

15 this will be the end of my introductory part of my

16 statement. I would now request five minutes to prepare

17 for the next portion of my statement.

18 I do not know whether the translating unit will be

19 able to translate this, but people were saying that

20 hearsay it was that Pavo Mucic was taking money in order

21 to release people, but nobody actually said -- the

22 prosecution never actually said who those people are by

23 name, or what amounts of money they brought, he took.

24 Even the Sarajevo press said he released 200 to 300

25 people and that he collected money for that. But I will

Page 93

1 only quote two witnesses, Mira Golubovic and Grozdana

2 Cecez, and I think she will be testifying in the next

3 couple of days.

4 Is she a protected witness?

5 MS McHENRY: No. Excuse me, your Honour, excuse me for

6 interrupting. She is not protected, but there are some

7 other witnesses who we have not yet filed for protection

8 yet, but we believe may want it, so we would just ask

9 counsel to please not speak of the names of possible

10 witnesses, until they come and we know for sure whether

11 or not they request protection. Sorry for the

12 interruption.

13 MR TAPUSKOVIC (in interpretation): Yes, no problem. I will

14 quote other witnesses, because I know that they are

15 protected, but I am sorry if I mentioned this name,

16 because that name was not among the protected ones. So

17 please, my apologies. It is not my point to tell of

18 name and last name of witness F. There will be

19 witness F in the next few days coming, and you will hear

20 from him, your Honours, that Pavo received money, that

21 she received money from Pavo, that Pavo helped her in

22 order to cross to the Serb territory.

23 JUDGE KARIBI WHYTE: Actually, I thought you were making an

24 opening speech. Try to keep it as an opening speech,

25 and let us not get into this.

Page 94

1 MR TAPUSKOVIC (in interpretation): Yes, it is an opening

2 statement. Again, I already said that everything that I

3 am going to address is only for the benefit of your

4 entering into the case as soon as possible, but I do not

5 think that I can be forbidden presentation of certain

6 things in order to demonstrate the prosecutor's evidence

7 as something that could have been used in a very

8 different way. If I cannot do that, then my opening

9 statement does not make much sense. I am not saying

10 anything that has not been offered by the prosecution

11 already.

12 So that is the purpose of my opening statement at

13 this time. Can I have a five minute break, please, at

14 this point? I only need about five minutes, I am a bit

15 exhausted. I would like to --

16 JUDGE KARIBI WHYTE: Actually, I have the intention of not

17 breaking until you conclude. When you conclude your

18 opening speech, we will break for lunch. So you can

19 carry on.

20 MR TAPUSKOVIC (in interpretation): I can certainly carry

21 on, like Mr Ostberg did yesterday, but I must admit that

22 I will proceed in the manner I have started, because

23 that was allowed to the prosecution, and I have already

24 said that I will not talk about evidence that I may

25 intend to present, but I am doing this because my aim is

Page 95

1 for you to be familiarised with these problems from the

2 outset, so that it may be easier to accomplish your

3 task, and I have read a little, and I know from before

4 that such an opening statement has this very purpose,

5 and, following trials in American courtrooms, I remember

6 that statements were always in this sense. From

7 tomorrow such and such will happen, and that is what I

8 wanted to do, but I appeal to you once again, please

9 have a little understanding for our background, that

10 this is the first time that we are involved in a trial

11 of this kind, but I will do my best to respect all the

12 Rules, and I am not going beyond the frameworks of the

13 competence of an opening statement.

14 If you interrupt me, as I go along, then there is

15 probably no purpose in this opening statement.

16 In the indictment, it says that Pavo Mucic was

17 commander of Celebici camp approximately from May 1992

18 to November 1992. Is such a definition of the time of

19 the beginning of his competencies, the word

20 "approximately" and then "up to November", is that

21 permissible? In my pre-trial brief, I indicated that in

22 its pre-trial brief the prosecution deviated from the

23 indictment. This deviation is such that I may perhaps

24 have asked the prosecution to state in writing whether

25 this is an amendment to the indictment, which is subject

Page 96

1 to sub-rule 50A of the Rules of Procedure and Evidence,

2 where it says that the prosecution may amend an

3 indictment without leave at any time before its

4 confirmation, but thereafter only with leave of the

5 judge.

6 This is an amendment that applies to Pavo Mucic

7 only.

8 In the pre-trial brief of the prosecution, which I

9 hope you have read, on page 5 it says:

10 "Mucic, camp commander, at least from beginning

11 of June."

12 If that is so, then in the indictment, instead of

13 the words "approximately from May 1992", it should have

14 said, "At least from beginning of June of that same

15 year". For a slip of this kind, last year the

16 prosecution was allowed the right to amend the

17 indictment, and this amendment is of a substantive

18 nature. The prosecution may again say that it is a

19 slip, an error. Maybe it is indeed, and, when the time

20 comes, I would like the prosecution to tell us something

21 about this.

22 I could have asked for an explanation and a ruling

23 on this request from the court. I did not do that, and

24 I will not, because it is not in Pavo Mucic's interests

25 to have the trial postponed further, and it is very

Page 97

1 important for us that the trial begin as soon as

2 possible. I am saying all of this because, by such a

3 statement, the indictment itself has been compromised

4 with respect to Mucic, and the events that took place in

5 May 1992.

6 Almost all the detainees reached the camp before

7 May 31st, 1992, and a very small number arrived after

8 that date. To this, we should add another fact, which

9 the prosecution, in its pre-trial brief, mentions for

10 the first time. The prisoners were beaten up by the

11 soldiers who brought them to prison.

12 From the prosecutor's evidence, it emerges that

13 there was not a single person confirming that Mucic was

14 present in bringing the detainees, transporting them to

15 the camp. Nor did he ever participate in their

16 admission to the camp. Why am I mentioning this?

17 Because three of the tragic outcomes described in

18 paragraph 22 of the indictment, points 13 and 14, the

19 death of Vujicic, Mrkajic and Gligorevic occurred at the

20 entrance to the camp as a result of such a behaviour of

21 the soldiers on 27th May 1992. This is confirmed by the

22 following witnesses: (redacted)

23 (redated)

24 (redacted)

25 MS McHENRY: Your Honour, I am very sorry, but I thought

Page 98

1 counsel was not going to mention the names of people who

2 may or may not be witnesses, because some of them may or

3 may not later ask for protection or choose not to be

4 witnesses, so I am very sorry for interrupting, but I

5 must ask again that counsel not do that, and that any

6 names of possible witnesses be taken out of the

7 transcript. Thank you.

8 MR TAPUSKOVIC (in interpretation): I will not mention a

9 single name any longer.

10 JUDGE KARIBI WHYTE: Thank you very much. As I indicated,

11 try to make it an opening speech, and not a detailed

12 criticism. It is an opening speech. Make it as general

13 as you can.

14 MR TAPUSKOVIC (in interpretation): I was going to add

15 witnesses E and F, because these that I mentioned were

16 not on the protected list. I am trying to be as general

17 as possible, but, in order to present the basic thesis

18 of my defence, and the question of extreme necessity

19 that the defendant was in, and in order to explain,

20 while this is of interest to you, I cannot do that

21 unless I draw attention to certain things. I will not

22 mention a single name of any more witnesses, but I will

23 tell you what can be concluded from the evidence of the

24 prosecution, and how this affects my general position,

25 and that is my position regarding the position of

Page 99

1 Mr Mucic at the time.

2 How am I going to explain this to you and explain

3 my general theory of defence without indicating again

4 any of the evidence of the prosecution? I told you I

5 needed two hours, and that will be roughly the amount of

6 time this will take, and, within that timeframe, I will

7 present this statement, because, if Mucic was commander

8 of the camp, at least from beginning of June 1992, then

9 Pavo Mucic, with the acts indicated in the indictment as

10 occurring in May, has nothing to do with those three

11 tragic events which occurred before 27th May, and

12 especially he has nothing to do with the admission of

13 prisoners, because, as I said, 99 per cent of them

14 reached Celebici before the end of May, and there is not

15 a single witness who said that Pavo Mucic was ever at

16 the entrance to the camp, nor involved in the

17 transportation of prisoners, nor in their arrest, and

18 that is the reason, precisely because the prosecution

19 has no such evidence, that is the reason why the

20 prosecution suddenly, illogically, and without any

21 understandable reason, and I said that in my pre-trial

22 brief too, but I wish to explain this to you now, it is

23 changing this wording not "from approximately May", but

24 "at least from the beginning of June".

25 From this wavering on the part of the prosecution,

Page 100

1 which may affect the substance of the matter, one may

2 raise the question of the correctness of the indictment

3 at least in relation to Mucic if, at one point, it can

4 be said "approximately May" and then "at least the

5 beginning of June"; is that not something that calls in

6 question the entire indictment?

7 Now, one may ask, in that period, as the

8 prosecution defines it, "at least from the beginning of

9 June until the month of November", what is the basis for

10 charging Mucic? The prosecution feels that he was in a

11 position of -- in a superior position as commander of

12 the camp, and that, as such, he is responsible for all

13 the events in the camp.

14 From the first status conference, I wish to draw

15 attention to the prosecution and the Trial Chamber that

16 I am not denying that Pavo Mucic was named commander of

17 the camp on 27th July 1992, and that there must have

18 been a decision on such an appointment. He has never

19 denied this from the very first statement he made in

20 Vienna to the police and the court, when he did not even

21 know the timeframe of his responsibility as defined by

22 the prosecution, and so that, in his single statement

23 made between 19th and 23rd March 1996 before the

24 investigating Judges of the International Tribunal in

25 The Hague, he is consistent in claiming that he was

Page 101

1 appointed commander of the camp on 27th July 1992, and I

2 must tell you that not on any of those occasions -- and

3 he has never made any further deposition since then --

4 not on one occasion was he told that he was being

5 charged for this and that, for this and that act. Nor

6 was he told what is the timeframe for those events.

7 We heard yesterday from my distinguished learned

8 colleague that he made up this date, or, to put it in

9 simpler terms, that he lied. Such consistency on the

10 part of a defendant is possible only if he is repeating

11 the only thing that he can say, and that he knows of

12 nothing else, and even then, in addition to this fact...

13 (Interruption)

14 As I was saying, in all those three statements, in

15 the police, in the court, and the prosecution to this

16 day has not submitted to us a deposition that we asked

17 for. He only submitted one of them, that he made in the

18 court in Vienna, and we received it only a few days

19 ago. We asked for a second, which Pavo asked to be sent

20 to The Hague as soon as possible. Neither then, nor

21 before the investigating judge, did he change anything.

22 He could have said only the truth, and that is that he

23 was commander of the camp when he was appointed from the

24 27th July. He never denied that, before that date, he

25 did come to the camp occasionally, but, if we are

Page 102

1 talking about command responsibility, then this fact,

2 the fact of when he became commander, is important

3 indeed for some things to be resolved here, and, in that

4 respect, he was consistent.

5 If he made this up, did he make up also what can

6 be found in all those statements, and that is that he

7 helped people? This is not something that I am saying,

8 but the witnesses of the prosecution are saying. Does

9 that mean that Mr Ostberg thinks that, in addition to

10 making up the fact that he had been appointed commander

11 on 27th July, that he is also lying when he is saying

12 that he helped people, and that he wanted to come to The

13 Hague as soon as possible, only to wait for a year

14 before this trial began? All efforts to reach that

15 document on his appointment have been in vain, and you

16 yourself, your Honour, after a status conference, asked

17 from the Ministry of Justice and the general

18 administration of Bosnia-Herzegovina that they convey

19 the document on the appointment of Pavo Mucic of

20 commander of Celebici. You received from them the

21 following report, which is evidence that will be used by

22 the prosecution, and I quote:

23 "Such a document has not been found, nor is there

24 any information to show that such a document existed."

25 That document will never be found, and no person

Page 103

1 of authority will ever say that it existed, and, among

2 the prosecution witnesses, there are statements by

3 witnesses who claim that such a document must have been

4 signed by at least several people, and that is why that

5 document will not appear before this court, but there is

6 no doubt that such a document exists. I must raise a

7 question here: is it possible to operate and perform

8 the functions of commander under conditions of war of a

9 camp of this kind without a clear decision on

10 authorisations and duties? It is not possible to come

11 to such a post without an appropriate decision. Such a

12 person must have clear competencies and duties defined

13 for him. There are no greater competencies than having

14 authority over people in prison, and I am watching here

15 three people bring him into the courtroom. Such things

16 cannot be done without somebody being authorised to do

17 it, and it is, therefore, quite logical that Pavo Mucic

18 could not have had any authority if such authority had

19 not been assigned to him.

20 How is the prosecution dealing with this problem?

21 It simply says, without any supporting evidence, he was

22 camp commander, on the basis of what? Only on the basis

23 of vague statements by witnesses that he was the

24 commander, in the way in which the witnesses put it;

25 they are their impressions and their own unreliable

Page 104

1 assessments.

2 Anyway, you yourself, you will be able to hear

3 from them in person what they say, and how -- on the

4 basis of what they claim that he was commander.

5 At the same time, these witnesses do not say that

6 Mucic ever addressed them, or gave them any orders or

7 passed any decision in relation to him, or anyone else,

8 in that period up to 27th July, and that is why the

9 prosecution is using the Bubalo case, and which I

10 insisted on a little bit and tired yourself and myself

11 with it. The prosecution is not interested in that

12 case, because of the tragic death of that individual,

13 but simply in order to use such a frame-up as proof that

14 he was commander of the camp, because, in the sentence

15 it says "Pavo Mucic, member of HVO, commander of

16 Celebici", without again saying anything else, except

17 this oral allegation that he was camp commander.

18 Not only is there no decision on appointment among

19 the prosecutor's evidence, but there is not a single

20 decision or order signed by Pavo Mucic before 27th July

21 1992. There is not a single detainee who said that Pavo

22 Mucic ordered anything in that period preceding 27th

23 July 1992. There is not a single order of any of his

24 superiors, until 27th July, regarding his duties. There

25 is not a single decision on the release of prisoners

Page 105

1 with his signature. We have witness D.

2 Finally, I managed to do as the prosecution

3 request -- who said that Pavo Mucic had no authority

4 to -- that he had no authority to sign documents on the

5 release of prisoners in that period. What kind of a

6 camp commander would he be if he has no such authority,

7 and who still very conscientiously does this after 27th

8 July? Was there ever such a commander anywhere? Let

9 the prosecution provide us with a single document

10 testifying to his command responsibilities, be it an

11 order or a decision that he took before 27th July 1992,

12 so that we can then discuss the problem as a whole.

13 It cannot find such a document, because it does

14 not exist. Nor will it ever be found. That is evidence

15 that he signed or ordered anything before 27th July. I

16 am sure that the prosecution will not be able to find

17 it. If it does, then we can discuss any solution

18 regarding command responsibility of Pavo Mucic before

19 27th July.

20 After 27th July, there is an enormous amount of

21 such evidence in the prosecution file. There are

22 release papers for prisoners, signed by him, but before

23 27th not a single one. There are witnesses testifying

24 that he released entire groups of people with discharge

25 papers. There is a tape of film recording Pavo driving

Page 106

1 twelve people with his van to their homes, and leaving

2 them there in the period after 27th July -- I do not

3 remember the exact date, but we will see it on the

4 film -- there are witnesses saying that, in that period

5 of time, he recategorised the prisoners. This means

6 really releasing the prisoners. So he is transferred

7 from the first category to the last category, upon which

8 he is immediately released. There is plenty of evidence

9 in that sense.

10 Then again, there is testimony of a witness,

11 without mentioning any names -- you will be hearing him

12 here -- he is among the prosecutor's witnesses, who said

13 on 20th August 1992, Pavo interrogated him.

14 "I was together with another possible witness",

15 who is not on the prosecutor's list, "who was called up

16 for interrogation before me. It lasted five to ten

17 minutes, and at the end Pavo told the typist 'This man

18 is not guilty, why are we holding him here?' This

19 interrogation occurred at 1.00 pm on 29th August, and on

20 30th August at 2100 he was out."

21 There is evidence that the prosecution used to

22 show that there was an order for Mucic to hand over his

23 duties between 15th and 18th November. How, then, could

24 he have taken up his duties without an order if a

25 written order was required for him to hand over his

Page 107

1 duties?

2 My colleague, Brackovic, said at one point in

3 public here it is easy for Mucic's defence when the most

4 important thing is whether there is a decision on

5 appointment dating before 27th July. It is an important

6 question, particularly in the light of Pavo's

7 depositions from Vienna to this point, because, if he

8 was appointed camp commander on 27th July, as he claims,

9 then not only has he nothing to do with events from May,

10 but he has nothing to do with all the events that

11 occurred up to his appointment on 27th July 1992, on

12 condition that all the charges are proven here, so that,

13 according to command responsibility, it would be

14 superfluous to enter into anything prior to 27th July,

15 at least as far as Mr Pavo Mucic is concerned.

16 Of course, a defence that would insist on this

17 alone would be out of place, because, in that time,

18 after 27th July, according to the indictment, certain

19 acts and omissions occurred, described as "grave

20 breaches of the Geneva Conventions, which are punishable

21 according to the Statute of the Tribunal". This is only

22 the introductory segment of the defence, and I am yet to

23 explain why I consider this not to be decisive, and that

24 there are other legal elements which can also exclude

25 the responsibility of the accused for the entire period

Page 108

1 covered by the indictment.

2 Therefore, this defence is not based exclusively

3 on the problem of the appointment of Pavo Mucic as camp

4 commander, because, if that were so, then we would not

5 have much to do here, because he certainly was commander

6 for a certain period of time. Then we could have long

7 ago separated the trial of Mucic and dealt with it very

8 quickly, if that was the only thing of importance.

9 The next issue has to do with the legal point,

10 which is, in my view, indubitable, in spite of the fact

11 that colleagues defending other defendants have a

12 different view. The detainees in the Celebici camp were

13 protected persons according to the Geneva Conventions,

14 and the accused were duty bound to respect the law and

15 customs of war, including the General Article of the

16 Geneva Conventions of 1949.

17 Of course, one might spend months discussing the

18 characteristics of the war in the territory of the

19 former Yugoslavia. Was it an international armed

20 conflict? Did it have characteristics of different

21 conflicts, and believe me it did, although it was a

22 combination of all these things, but I will not dispute

23 these matters. I will not dwell on them at length,

24 because, as I said, I agree that the detainees were

25 protected persons.

Page 109

1 It is a fact, it is a fact, though I am not

2 disputing this characteristic, nor the competence of

3 this Tribunal, but it is a fact that, in many places,

4 not only in Celebici, but in other places, which are

5 still within the control of Republika Srpska,

6 yesterday's neighbours and friends, suddenly -- it is

7 very difficult to understand this, and this is something

8 you must try to grasp, overnight, or within a week --

9 one becomes a prisoner, and another one becomes a

10 guard. That is a fact that cannot be denied by anyone.

11 I cannot present Mucic's defence here without going into

12 these problems, and without asking you to bear this

13 phenomenon in mind all the time.

14 We can find all kinds of statutory rules and deal

15 with this case here if our only concern will be the

16 question of his post as camp commander. There was a

17 war, and one might say that it had the characteristics

18 of all kinds of conflicts, to a greater or lesser

19 extent, and that is enough reason for us to discuss it.

20 It was, as I have already said, one of the most

21 senseless wars in the history of civilisation. Military

22 doctrine hardly knows of any such wars in the past.

23 I will not tire you with this now, and particularly not

24 during the proceedings themselves. I will not go into

25 these things. I will just focus on facts linked to my

Page 110

1 client, and, regardless of all of that, in the name of

2 the defence of humanity, the moment somebody is

3 captured, or disarmed, especially if he is a civilian,

4 whether he was a civilian or not, whether he was an

5 armed person or not, we will go into this, but in my

6 view, that is not essential, not just in this case, but

7 in any other case. It is quite immaterial. He must

8 have been protected. No one has the right. Once I am

9 arrested to be beaten, our civilisation knows what the

10 punishment is for a murderer.

11 All of you yesterday, the day before, you have

12 heard and seen on TV these past few days the picture of

13 the young Albanian who was tied to a pole and at one

14 point you just see a big boot hitting his face. The

15 question now is whether that person will ever be

16 punished by national courts, and whether anyone will try

17 to find out who he was, but the moment that man was tied

18 to the pole, he must be protected. If the national

19 court does not protect him, somebody must protect him,

20 and one day this must be settled on an international

21 level. I am talking now about something that has

22 nothing to do with this, but the Geneva Conventions, if

23 they intend to protect humanity, then these things have

24 to be covered.

25 I am not -- what I am trying to say is that I

Page 111

1 cannot deny that these persons were protected.

2 Otherwise what would my role be here, if I were not to

3 admit this and recognise this? That is not only my

4 personal position; it is my profound conviction.

5 I apologise, I really do think that this is all

6 material to the problem that we are discussing, and I am

7 sorry that, after almost an hour and a half, I am coming

8 to the counts in the indictment. I will try to limit

9 these remarks within the half hour left to me.

10 As I am making the opening statement, I am

11 referring only to the prosecutor's evidence, and only to

12 matters related to Mucic's defence, but regarding Mucic

13 and his responsibility in the way that I intend to

14 present my case, it seems to me that we can talk about

15 it only, and that is why I wanted to make these

16 references in the opening statement, when all this has

17 been proven in relation to any of the victims, and only

18 then can we know, can we find out what he knew, or might

19 have known, as the prosecution says. Those are the

20 legal matters that we must focus on here, because, if

21 I was able to influence the prosecution in any way, then

22 I would proceed on the evidence proposed by the

23 prosecution for the beginning, and you will be hearing

24 tomorrow, the day after already, that one witness says

25 that he saw Mucic only once, and another witness will

Page 112

1 tell you, this other witness also in a couple of days

2 when he addresses you here, that Mucic one day, when he

3 saw some women there, said, "They beat you up and

4 brought you here", and he put them in his van and took

5 them home. Among them was a 13 year old girl, a 13 year

6 old, the same age as his daughter at the time, and let

7 me tell you what he told me. If he had saved that

8 little girl alone, then there was meaning to his life.

9 He saved five women that day, and, when he took out

10 these women too, there was a total of seven women that

11 he took out of the camp and took back home.

12 Therefore, from Count 1 to Count 45 of the

13 indictment, the counts have to do with murder, torture,

14 rape, grave suffering, and injuries and inhumane

15 behaviour. The prosecution is not claiming that any one

16 of these acts was committed by Pavo himself directly,

17 personally, and you will see how many witnesses have

18 been interrogated. There is one witness who said

19 something out of 100 of them, and so you will assess

20 this one against the 100, but you have also witnesses

21 who we will be hearing as of tomorrow who say that the

22 guards did not dare beat people in Pavo's presence, or,

23 "I never saw Pavo when prisoners were being beaten",

24 or, "Pavo Mucic defended the prisoners to a certain

25 extent. Nobody was beating when he was present. The

Page 113

1 beatings started when he left. I was not beaten while

2 I was in Celebici, because Pavo protected me." All the

3 guards hid, concealed from Mucic what they were doing.

4 You will be hearing this from the prosecution witnesses

5 who will be testifying as of tomorrow.

6 Even among the depositions of many other witnesses

7 that are not on the list of the prosecution is there

8 anything that would incriminate Mucic.

9 Therefore, the prosecution defines Mucic's

10 responsibility on the basis that the principal knew or

11 had reason to know that his subordinates would commit

12 such acts or committed them without taking necessary and

13 reasonable steps to prevent such acts or punish the

14 perpetrators.

15 Among all the witnesses, there is only one -- it

16 does not matter what his name is -- which the

17 prosecution proposes that we hear who said, "I know the

18 case when my brother, Rajko, was taken out to be

19 beaten. Then Pavo's car passed by and the guards who

20 were beating my brother hid from Pavo, together with my

21 brother". You will hear this witness, and this is also

22 in the evidence that will be presented by the

23 prosecution.

24 So you see there will be some 100 witnesses, but I

25 have in mind primarily those who were in the camp

Page 114

1 itself, some 50 of them. Not one of them said that they

2 ever could complain about what happened to them as a

3 result of Pavo Mucic's actions. "Pavo asked me", and

4 they would not complain to Pavo. "Pavo told us to inform

5 him if they were being beaten." Then a doctor says that

6 women would not admit they had been raped, even to him,

7 and, when Mucic was in the camp, these things did not

8 happen, or another witness, "I knew Mucic from before.

9 He looked angry, and he asked me who had beaten me up.

10 I was afraid to tell him. I kept silent, and then he

11 said that he would try to find out." Those are also the

12 prosecution witnesses who you will be listening to as of

13 tomorrow. There is not a single guard who said that he

14 ever told Pavo what had been going on. Of course, on

15 condition that we first prove what happened, that this

16 is proven.

17 I apologise, your Honour. If you are tired, I am

18 not tired, I can go on, if you agree.

19 Now to sort of blow this up a little, if we have

20 one statement against 100, then we have reasonable doubt

21 in all the issues that we are discussing here, because

22 only in that way can we discover the truth of a person's

23 guilt.

24 We should not forget that in the camp, according

25 to the indictment, there were 500 detainees, and here I

Page 115

1 think that about only 10 per cent were questioned, and

2 Pavo Mucic is not afraid of truth, not afraid for

3 himself, even if all 500 of them came here and told how

4 he behaved towards them.

5 So that was the problem of his knowledge, what he

6 knew. Now we have the issue of what he could have

7 known, and that is something that will be a part of this

8 trial as well, and here we have to assess what was the

9 condition of the prisoners, of several hundred

10 prisoners. According to their own statements, only a

11 few had not been beaten at the moment of entering the

12 camp, and this is also the position of the prosecutor as

13 well. Even in the indictment now the prosecution is

14 trying to also charge Pavo Mucic with some military

15 authorities, but at this point, at this time it is not

16 the relevant point.

17 So all of these people had been beaten, and,

18 again, we also had those three tragic cases at the very

19 entrance gate of the prison. That will be really a

20 matter of your judgment, whether somebody had not

21 followed that directly, and, if nobody told him about

22 these things, was he in position on a day-to-day basis

23 to see whether there was an additional injury on

24 somebody's face, on somebody's body, after they had

25 entered the camp? That is for you to judge.

Page 116

1 Then, again, is the problem of whether it had

2 happened before or after 27th July, and then it is only

3 in the end that we can determine what Pavo could have

4 known, or should have known of the events going on

5 there.

6 I will present now why he knew or had reason to

7 know that his subordinates would commit such acts or had

8 committed such acts, and had not taken appropriate and

9 reasonable measures to prevent such acts or punish the

10 perpetrators, because that, in itself, is not enough to

11 ascertain his criminal responsibility, and there is a

12 legal ground to exclude it altogether.

13 There are three kinds of charges here. One is the

14 unlawful confinement of civilians, Count 48, plunder of

15 private property, Count 49, and inhumane conditions,

16 Counts 46 and 47. Pavo Mucic never arrested anybody,

17 never brought anybody to prison, never issued an order

18 to bring somebody to prison. There is not a single

19 piece of evidence, literally, and you can peruse the

20 file offered by the prosecution. There is not a single

21 piece of evidence that confirms that Pavo took part in

22 detaining anybody.

23 Of course, nobody can come to the prison without

24 having been taken into custody, but, if that is proof,

25 then I have no issue with the prosecution here, and the

Page 117

1 detention of civilians is an active thing. If the

2 prosecution is also claiming that he is responsible for

3 the arrest of the people, that is also something that

4 needs to be proven.

5 Further, there is another truly absurd charge

6 here, and that is that Pavo Mucic was taking property

7 from people. First he arrests them, and then proof of

8 that, and then he takes their valuables. There is not a

9 single witness who had not said that all their

10 belongings, all their valuables had been taken away from

11 them before they entered the camp, and why did we need

12 to charge Pavo Mucic with that? It has nothing to do

13 with him. He never even said that to anyone, to do

14 things like that. It is so logical, based on the

15 witness statements. I was looking through them again.

16 There is not a single witness who does not say that

17 their belongings, their property, had not been taken

18 away from them before entering the camp, but here it is,

19 the charge is still there, against Pavo Mucic, as if he

20 was just taking away jewellery and watches, and, of

21 course, he is dismayed when he reads that, and, if the

22 prosecution is trying to charge him for that, let them

23 present any kind of evidence to that.

24 Regarding inhumane conditions, I will point to one

25 thing. I will not belabour that point. It is a very

Page 118

1 wide subject, and I am not going to elaborate it during

2 my opening statement. I could spend hours speaking to

3 that point, but I will just address a couple of issues.

4 The conditions in the camp were not a product of a

5 pre-planned activity. They were not part of a decision

6 to create such circumstances to put people in where they

7 would be -- where they would lose their lives. These

8 were all extraordinary circumstances. There was no food

9 for anyone at that time. Houses were sold for a few

10 pieces of bread at that time.

11 In their opening statement, the prosecution says

12 that the situation improved after the ICRC visit, but

13 they only came several times, and that happened in the

14 period after Pavo Mucic took over the post of the camp

15 commander, and why is this situation improving? Is it

16 because of the visit of the ICRC, or maybe was it

17 another thing? We requested, and we offered that in

18 evidence, from defence counsel for Mucic, we sent a

19 letter to the ICRC, and they said this was

20 confidential. Then we sent an additional two letters

21 and asked whether these deliveries that were sent to

22 Celebici actually arrived in Celebici, or were diverted

23 elsewhere. In the prosecution evidence, you will see

24 that Pavo Mucic went to pharmacies armed with weapons to

25 get medicine for the prisoners of the camp.

Page 119

1 I am not going to be reading these witness names.

2 It is even better, it will save some time. But one of

3 the witnesses says, he says:

4 "For three days we did not receive food, and we

5 were told that the baker was not working, and then Pavo

6 said 'Tell the baker to bring something to eat, or

7 I will release all the prisoners'". This is a witness

8 and he has a name and it is a prosecution witness. I

9 already quoted one who spoke to that.

10 There is an additional witness:

11 "I remember that Pavo was angry because the

12 prisoners were not receiving food for four days. He

13 turned to the Major and he said 'It would be better to

14 kill them than let them suffer this much", and in

15 another statement, he says, it is the same witness:

16 "I remember when Pavo called this ex-major of the

17 JNA and urged him to get some food for the prisoners.

18 He said, 'I cannot watch them suffer that much. They

19 have not eaten for four days. It is better that we kill

20 them, or let them go, rather than watch them suffer like

21 this'. So I assume that this person did not receive any

22 orders from his superiors, but I heard Mucic", this is

23 again the prosecution witness speaking, "'Forget it,

24 commander, forget it, I do not want to be responsible

25 for this', and the food arrived the next day", and this

Page 120

1 is confirmed by this witness.

2 This is pretty much what I wanted to say, and this

3 is within two hours, and this is all I have to say as

4 regards the indictment offered by the prosecution.

5 However, I need to point to one thing. Yes, Pavo

6 was involved in one thing, but what was it? He did

7 everything so that the prisoners could leave the camp as

8 soon as possible, and I will tell you one thing that he

9 told me in confidence. He said, "I did not want to see

10 them be there when the winter comes. There were

11 difficult conditions there in that camp", and again

12 there are a number of witnesses speaking to this.

13 As I said, I mentioned that one witness, he

14 confirmed that Pavo brought seven women out of the

15 prison, and one says, "I want to tell you that Pavo

16 never allowed anyone to be beaten in the camp, and that

17 he saved my life". Said the witness, "He arranged for

18 me and my family to be released. Whenever Pavo was in

19 the camp, there were no serious beatings. The

20 conditions in the camp were different, depending on

21 whether he was present or not. Pavo arranged for many

22 detainees to be freed from the camp in any way possible

23 and helped them leave Konjic." This you will hear in a

24 few days.

25 "Pavo helped me and my family. He arranged that

Page 121

1 I be released from Celebici and that my mother and my

2 father be released from the Musala camp in Konjic.

3 After he helped me and my family out of the camp, he

4 visited us several times. He then told me that he had

5 to leave because he feared for his life. Pavo also" --

6 and I point to this especially, because he feared for

7 his life -- "Pavo also organised that a guide, and then

8 a name, a taxi driver, help us escape and find a way

9 across the mountains to the Serb held territory." So we

10 will hear from this witness as well, and I think that it

11 is one of the first twenty witnesses.

12 There is another witness: "I saw Pavo only when

13 releasing or transferring prisoners", and from him we

14 will hear how many prisoners it was.

15 There was one witness who says that, in a van,

16 twenty prisoners were transferred to another place, and

17 another witness, a very important witness, who says like

18 this, a physician, and it is a very important

19 prosecution witness:

20 "In August, Mucic had told me to set up a list of

21 the prisoners in the worst state of health and the

22 elderly for release. I set up the list according to

23 medical criteria. I gave the list to Mucic, and the

24 people who figured on the list were actually released

25 about a day or two later", and we will hear the number

Page 122

1 of those people, and maybe I will withhold the longest

2 of them, that has the most impact, maybe, to show how

3 many people he has released, but I am just trying to

4 make it short. I think it is clear what I am trying to

5 say.

6 So from the statements of these six or seven

7 witnesses, and these are prosecution witnesses,

8 witnesses that will be called by the prosecution, the

9 accused, Pavo Mucic, according to their statements, that

10 is before our witnesses take the stand, he released

11 about seven women, about 100 persons, and those are all

12 exculpatory, it is all exculpatory evidence within the

13 legal system, and the framework that I have already set

14 up, and to which I am going to come back in closing.

15 But I have to point to another thing, also brought

16 up by the prosecution. Here we are, the 18th March

17 anniversary is approaching, and the investigation

18 continues. Three days ago, I received two additional

19 pieces of evidence, and one of them is a letter. There

20 is a rule of disclosure, of the exculpatory evidence,

21 and I think that they have a statement by a Serb living,

22 I do not know where, saying that Pavo Mucic rescued a

23 lot of Serbs. Then there is a statement by a different

24 person -- I almost said his name again. For him, the

25 prosecution is only just requesting permission for

Page 123

1 questioning. He stated that he, meaning Pavo, was there

2 only, meaning Celebici, in order to protect the

3 prisoners to the extent that he could.

4 I do not know if there is any additional

5 exculpatory evidence in the possession of the

6 prosecution, but I am just pointing to the amount of

7 this exculpatory evidence in this case, and whether

8 there is more of that, whether we will be able to find

9 more of that. We have our investigative team; we do not

10 have the team like the prosecution has. We are working

11 on it, and we do not know whether the prosecution has

12 additional things that it has not disclosed to us, and

13 which would further corroborate what I have been

14 speaking to.

15 My basic position is, I think, also becoming

16 clear, and I want to point to it now. That is the

17 mental state of Mucic at the time when he was in the

18 camp. In other words, if there was a state of extreme

19 necessity -- that is a very delicate category in the

20 legal theory, and I am aware of the problems that it

21 involves. I will not repeat -- I will not quote from a

22 recent judgment by this trial, by this Tribunal, but we

23 have been talking about precedents here, and I think

24 that Pavo Mucic's case could be, I do not know that I

25 would have been involved in this kind of work if I did

Page 124

1 not believe that maybe some day I would also make a

2 contribution, be involved in maybe creating a precedent,

3 because -- and I only have about six or seven sentences

4 to devote to that -- it is clear that Pavo Mucic did not

5 commit any crimes of murder, rape, beating. Looking in

6 the evidence offered by the prosecution, and it is not

7 clear whether we have seen everything because also it

8 should be said that the investigators of the prosecution

9 tried to find that kind of evidence. They were just

10 rushing to find what worked for them, and you will see

11 that, that they will have problems because of that kind

12 of approach of the investigators.

13 So no protected person ever complained to him. He

14 could not have imagined what was going on. So none of

15 his subordinates ever admitted to having done this and

16 that. Provided they had done it, because Mucic himself

17 was in such a position, he never imprisoned anybody, he

18 never took any property away from anyone, he grappled

19 with the problems of daily life there in the war time

20 circumstances. But he did something that is crucial,

21 and, if he were only a commander and he does not dispute

22 that, between 27th July and November, if that is the

23 only thing that we could have dealt with a long time

24 ago, and if that were the only problem, I would have

25 told you a long time ago all this is indisputable, let

Page 125

1 us just find an appropriate sentence. But that is not

2 the case we have here.

3 If the prosecution in this situation, apart from

4 the process of reaching a judgment on what kind of

5 sentence will be passed here, if we have a trial here

6 where we have a case, the Tadic case, and we have been

7 waiting for four months for the judgment, so if in the

8 theory of the prosecution they also need a judgment to

9 lean on in order to find what would be an appropriate

10 sentence for the superior authority, then what are we

11 waiting for?

12 So now we have the question of what could Pavo

13 Mucic have done, whether he should have engaged in

14 investigations. I will be done in about three minutes.

15 It is 12.00. So should he have investigated, so that he

16 would find out who did what there, and then punish the

17 perpetrators? Or else should he, isolated as he was,

18 try to help people as best he could, release them, drive

19 them home, feed them, help them get to safety?

20 We have been involved in this case now for almost

21 three years. Imagine if Pavo Mucic tried to get

22 involved in things in the same way. He was the only

23 hope of those people who were elderly, who were sick, of

24 whom he thought that they were imprisoned without

25 reason, and he released them in large numbers.

Page 126

1 So here we need to weigh, provided that the acts

2 from the indictment are proved, what would have been

3 more useful? To investigate and punish his

4 subordinates, you know what an investigation is, he has

5 determined what actually happened, or to try within the

6 limits of his own ability in the war time conditions,

7 and in the situation which was dangerous to both him and

8 his family, to help these people?

9 You will see that a rocket destroyed his house

10 four days after he was appointed a camp commander. So

11 who lobbed -- it is a difficult expression -- but who

12 lobbed this shell into his house at this time?

13 I will not try to second guess what would have

14 happened had he left the camp, or if he acted as quoted

15 in the indictment. So his position is very specific,

16 and we cannot make any comparisons with General

17 Yamashita. You cannot. You cannot base Mucic's

18 judgment on the sentence of General Yamashita. I would

19 be very interested in seeing this. We should do as was

20 done in the Yamashita case.

21 It is obviously your authority to valuate that. I

22 am not going to repeat myself, I have one minute left.

23 This is just to wrap up my argument, and, with the

24 purpose of showing you the way of -- you may follow it

25 or not. I do not pretend to be the smartest one here,

Page 127

1 but it is in the prosecution evidence that the theory

2 that I have presented here becomes viable.

3 That necessity that I mentioned -- and we will see

4 how it turns out -- that necessity is the result of his

5 moral position which existed even before he came into

6 the post that he occupied, regardless of what and how

7 things happened.

8 There was a real impossibility of a different

9 choice within the parameters of his moral attitude.

10 Would there have been a better solution, given the

11 circumstances, than letting people go home? I wish that

12 the prosecution had also taken that into account, given

13 all the evidence that they had. This is the heart of

14 the indictment. Should we neglect what he actually did,

15 and should we hold him to some standards that were not

16 possible then?

17 At the end of the existence of this camp, some 120

18 people were left. What happened to 300 or 400 who were

19 saved? If he only saved that one girl, if he only saved

20 100 people -- and what if we look at those 300 or more

21 people that he saved, and if that is confirmed, what

22 shall we do with that?

23 There were 30 people who remained in the camp, and

24 they went through other prisons and remained in

25 different prisons for an additional two years, and these

Page 128

1 people went through all kinds of things, and heard all

2 kinds of things, and this is what most of the

3 prosecution evidence is based on. The basis is not the

4 evidence of all the people that were released by Pavo

5 Mucic. Maybe we will finally get the document. Maybe

6 somebody will finally need this document to appear, that

7 he did it because he was ordered to do so. In front of

8 this Tribunal, you had a case, and maybe we will need to

9 use it before this Trial Chamber.

10 This is the end. I am really rushing to finish.

11 This is the Erdemovic case. In that case, he admitted

12 his guilt, but he also mentioned necessity, but he

13 confessed to his guilt, and so this necessity was not

14 addressed very much, because morally and physically he

15 was controlled by other persons, and was forced to do

16 certain things, and what did he do? He killed tens of

17 people.

18 Now what did Pavo do in that similar situation?

19 He saved tens and hundreds of people, and I do not think

20 that it is necessary for me to go any further, and, as

21 unusual as it may seem, I know what extreme necessity

22 is, but, in criminal acts, there are never two identical

23 cases. Each one has to be judged by its own merits,

24 based on the circumstances that were there at the time.

25 We can debate legal theories, but I am only

Page 129

1 interested in this man, and his situation, and his

2 position.

3 My final word, believe me, Pavo Mucic does not

4 fear any judgments. He already has a fifteen year

5 sentence to which he has been convicted for a crime he

6 never committed, and he is absolutely not afraid of any

7 judgment that you may pass. If Erdemovic got ten years,

8 for what he admitted doing, then what can he expect?

9 Nowhere near the fifteen years that he has already been

10 sentenced to by the Bosnian court, and he is really in a

11 nonsensical situation for something that he absolutely

12 has nothing to do with. I think that we must stop

13 talking about various parties, but, anyway, such a man

14 did not suit any of those parties. He is the only one

15 that diplomatic representatives of his country do not

16 come and visit.

17 The Serb side, to use that term, is not suited by

18 somebody saying that there was a man who assisted the

19 Serbs in that camp. You have seen that the authorities

20 of the Republic of Bosnia-Herzegovina have condemned

21 him, and sentenced him to fifteen years in abstentia,

22 and I pray to God that one day somebody would look

23 through this file, and see what it is about.

24 As for the Croatian state, or let me be careful of

25 the terms I use, again its interests are not served by

Page 130

1 talk of the responsibility of a Croat in a Bosnian camp

2 for the Serbs, and thus this man, that all three sides

3 could take pride in, has a fifteen year sentence, and he

4 knows that trials lie ahead for him here too.

5 I feel honoured to be defending such a person.

6 Thank you.

7 JUDGE KARIBI WHYTE: Thank you very much, Mr Tapuskovic for

8 your marathon opening address.

9 I think we will close for this session and

10 reassemble at 2.30 pm for the afternoon session.

11 MR OSTBERG: Your Honour, just a suggestion. We propose to

12 bring our first witnesses directly after lunch, and that

13 will take some one hour, I think, to present the

14 facilities of the camp, and then we present our witness

15 number 2. So, if we could save one half hour or so off

16 our lunch recess, I would be very grateful.

17 JUDGE KARIBI WHYTE: I wish I understood your suggestion.

18 You mean during the lunch break you could use that time

19 to assemble your facilities? You cannot assemble your

20 facilities within that period?

21 MR OSTBERG: I can indeed.

22 JUDGE KARIBI WHYTE: I suppose from now, which is about

23 12.10 to 2.30 pm, I am sure you should be able to.

24 MR OSTBERG: So 2.00, should it not be fitting for your

25 Honours to commence again?

Page 131

1 JUDGE KARIBI WHYTE: I think 2.30 should be all right.

2 MR OSTBERG: Thank you.

3 JUDGE KARIBI WHYTE: Thank you very much. I think we will

4 break off and come back at 2.30 pm.

5 (12.10 pm)

6 (Luncheon adjournment)

7 (2.30 pm)

8 JUDGE KARIBI WHYTE: Good afternoon. Before we start the

9 proceedings of this afternoon, we want to dispose of two

10 pending motions.

11 We will start with the first one, which has just

12 come in, and that is the motion to allow the

13 investigators to follow the trial during testimonies of

14 the witnesses.

15 There are a few difficulties with the instruments

16 here. I do not know which of the counsel is getting

17 through. I know the English one is working. The

18 translation in English is working. Which other

19 translation is -- it is working?

20 MS McMURREY: Mine is not on.

21 JUDGE KARIBI WHYTE: Yours is working too?

22 MR KARABDIC (in interpretation): I can hear very well.

23 JUDGE KARIBI WHYTE: Which is not working? I think so far

24 everyone on that row is working. How about in the

25 accused section? Is everyone working there?

Page 132

1 So we can now proceed with the instruments all

2 functioning properly. I was telling you about how we

3 are proceeding this afternoon. Before we start on the

4 proceedings, we have to dispose of two motions which are

5 before us. The first one relates to the motion to allow

6 investigators to follow the trial during the testimonies

7 of the witnesses and the second one has been announced,

8 which has been argued, but which decision we just want

9 to hand down orally, and that is the question of the

10 identity of witnesses sought for defence counsel.

11 I am sure the counsel for the defendants will be

12 interested in the motion to allow investigators to

13 follow the trial during the testimonies of the

14 witnesses. What are the views on it? Let the first

15 defendant answer.

16 MS RESIDOVIC (in interpretation): The position of defence

17 counsel of Mr Zejnil Delalic is that the investigators

18 should not be allowed to hear the testimony of other

19 witnesses, the main reason being that the prosecution

20 has proposed several investigators as witnesses before

21 this court, and in accordance with the Rules of the

22 Tribunal, a witness is not allowed to follow the course

23 of the trial of the proceedings.

24 On the other hand, in conformity with the Rules of

25 the Tribunal, the prosecutor is continuing his

Page 133

1 investigations, and new evidence may be discovered.

2 Fully representing the principles of a fair trial, I

3 think, while fully representing the ethics of the

4 investigators, they should not be placed in a position

5 to learn of the facts that will be presented before this

6 Trial Chamber.

7 JUDGE KARIBI WHYTE: The second? If there are any other

8 views on the defendants, then we will see.

9 MR MORAN: Your Honour, attorney Moran for Hazim Delic.

10 Your Honour, it is our view that, if the investigator is

11 going to be a fairly routine witness, for instance,

12 proving up documents, then we have no problem with him

13 following the trial, but, if he is going to be a fact

14 witness, the reason we keep the witnesses from hearing

15 the testimony is so that they do not essentially know

16 what the other witnesses have testified to, and so I

17 think that the court might want to split the

18 investigators into the two different -- actually three

19 different, if there is going to be an investigator who

20 is also an expert, he can probably hear the testimony,

21 or one who is going to be a routine witness proving up a

22 chain of custody, or something like that, as opposed to

23 the third type, which would be a fact witness, and it

24 would be the fact witnesses that we would object to

25 appearing here, of being in the Tribunal, following the

Page 134

1 evidence.

2 JUDGE KARIBI WHYTE: Any other views?

3 MR TAPUSKOVIC (in interpretation): Your Honours, I think

4 there is no need for me to repeat what Madam Edina

5 Residovic has said. I think this could be admitted on

6 one condition only, and that is, if the investigators of

7 the defence could be in the courtroom all the time, and

8 then we could reach agreement on this together. Thank

9 you.

10 JUDGE KARIBI WHYTE: Yes, Mr Brackovic?

11 MR BRACKOVIC (in interpretation): Esad Landzo's defence

12 counsel would like to support what has been said by

13 attorney Edina Residovic, Thomas Moran. We feel that

14 the presence of investigators during testimony of

15 witnesses would be contrary to the interests of justice,

16 and, in other words, we are opposed to their presence.

17 JUDGE KARIBI WHYTE: Yes, Mrs McHenry?

18 MS McHENRY: Good afternoon, your Honours. It is the case

19 that, with respect to the investigators that the

20 prosecution seeks to be allowed to be present in the

21 public gallery of the courtroom, absolutely none of them

22 are fact witnesses. There is one investigator analyst

23 who may be called as a kind of expert witness with

24 respect to analysis of documents, and then, with respect

25 to all the other potential investigators, the only

Page 135

1 possible reason that the prosecution is now aware of

2 that they would be called would be for authentication or

3 chain of custody of documents.

4 So they are not at all fact witnesses and

5 therefore, as Mr Moran has correctly pointed out, the

6 purpose of the Rule 90 does not apply to them, and, in

7 fact, given that, as Mrs Residovic has pointed out,

8 there may be other investigation, other issues that come

9 up that need to be followed, it, in fact, would be

10 necessary for the investigators to know something about

11 what is going on, so they can then go do whatever

12 investigative work. But we emphasise that at this point

13 there is no -- we have no belief whatsoever and do not

14 know the circumstances under which it could happen that

15 we would call any of the prosecution investigators, or

16 analysts, as fact witnesses. Thank you.

17 JUDGE KARIBI WHYTE: Actually, the main argument is that

18 they are, strictly speaking, not ordinary witnesses?

19 MS McHENRY: Yes, your Honour. Our argument is that, in

20 fact, Rule 90, I believe it is (d), does not really

21 apply. In an excess of caution, we believe it

22 appropriate to alert the court and the defence counsel

23 to the issue.

24 JUDGE KARIBI WHYTE: 90(d) has actually excluded only expert

25 witnesses. Those are the only witnesses excluded from

Page 136

1 being out of court and out of hearing during the

2 testimony of other witnesses.

3 MS McHENRY: Yes, your Honour. There is no discussion in

4 here about the fact that there may be other witnesses,

5 such as authentication witnesses, and I would also note,

6 with respect to this, that not only do I believe that

7 there is no reason that prosecution investigators would

8 be under this Rule, in fact, the fact that they may have

9 to do additional investigation, or analyse certain

10 things means it is necessary that they be here, that,

11 with respect to all the possible chain of custody or

12 authentication documents, it is not even known now that

13 they will be called.

14 There are, I believe, approximately eight of them

15 that we put down in our possible witness list, just in

16 an excess of caution, in case there are issues that come

17 up later. But I think the fact that it is not even now

18 necessarily foreseen that they will have to be witnesses

19 is another reason to allow them to be present, because

20 otherwise it is possible that there would be none of the

21 investigators who would be permitted to be present, and

22 I believe that would be a severe hindrance to the

23 efficient proceedings in this trial, as well as to any

24 potential investigation work that needs to be done,

25 either during this part of the case, or even during the

Page 137

1 defence case, in case the witnesses were needed in

2 rebuttal.

3 JUDGE KARIBI WHYTE: Are you now prepared to strike them out

4 of your list of witnesses to make them readily available

5 to sit in here? Because as long as they remain in your

6 list of witnesses, it would normally depend upon what

7 you want them to say, for then to determine whether they

8 would be fact witnesses or merely identifying

9 documents.

10 MS McHENRY: Your Honour, given, as far as we know, that

11 they were not present during Celebici at all during 1992

12 I cannot imagine that they would be fact witnesses.

13 In terms of whether or not we would be prepared to

14 strike them, we would be prepared to strike them as long

15 as everyone understands that, if the defence counsel

16 later objects to certain documents, and then it becomes

17 necessary for us to call one of the witnesses, we cannot

18 anticipate exactly what the defence is going to raise

19 with respect to chain of custody or authentication. At

20 this point, none of the witnesses are on a definite

21 list, but, in an effort to be totally forthcoming with

22 the defence, we chose to be very inclusive as to our

23 possible witness list. But, if it was necessary, we

24 could take them off the list, but it would have to be

25 with the idea that, if something unforeseen comes

Page 138

1 forward, we may have to call one of those with respect

2 to chain of custody or authentication.

3 JUDGE KARIBI WHYTE: Because it seems to me the fears of the

4 defence are still not allayed by your present

5 suggestion. They are still having fears about the role

6 these witnesses will be playing.

7 MS McHENRY: Your Honour, with respect to our witness list,

8 when we filed it we, in fact, filed why we might call

9 the witnesses, and with respect to the prosecution

10 investigators on the possible list, it says, with

11 respect to all of them, if necessary on chain of custody

12 issues, or explanations on how given evidence was

13 obtained. So, to the extent that Mr Moran brought up

14 the point that, if they are expert witnesses or document

15 witnesses, he agrees that the reason does not apply, I

16 think we have allayed that.

17 To the extent that there is some other reason, I

18 have not heard the defence articulate it, and I will

19 certainly point out in this case, for instance, all the

20 investigators have had access to all the witness

21 statements of all the defence, because they have been

22 working on this case.

23 So the normal reasons that you would not have one

24 witness hear another witness, which are so that they

25 know what the other witness is going to say and possibly

Page 139

1 tailor their testimony, are not even applicable. One,

2 these witnesses, there is no possibility that they are

3 going to testify about, in fact, what happened in 1992,

4 and, two, to the extent that there was some sort of fear

5 that they might do something improper, as a result of

6 their knowledge, I must say, given that they have

7 already had access and, in fact, have read, because it

8 is part of their job, all the other witness statements,

9 the reasoning would not apply in that case either.

10 I do not know if I am making myself clear.

11 JUDGE KARIBI WHYTE: Can I hear Mrs Residovic?

12 MS RESIDOVIC (in interpretation): Your Honour, on the list

13 of prosecution witnesses that we are talking about,

14 there are at least three witnesses who could affect the

15 defence of Mr Delalic. You may recall that, before the

16 beginning of proceedings, we proposed the exclusion of

17 one piece of evidence. The investigators, therefore, in

18 my view, should not be present in the courtroom, though

19 we are not opposed to the prosecution calling them up to

20 testify about other events, because it is not always

21 events in Celebici, but there may be events elsewhere.

22 Therefore, if the prosecution wants the

23 investigators to be present in the courtroom, they must

24 tell us exactly the names of those investigators, and

25 then they cannot be interrogated for other

Page 140

1 circumstances, and, if that is their intent, then in my

2 view, our view, they cannot be present.

3 JUDGE KARIBI WHYTE: Yes, Mr Tapuskovic?

4 MR TAPUSKOVIC (in interpretation): I do not agree that the

5 investigators working on the case should be in the

6 courtroom. I think that the prosecution has its own

7 investigators that can follow in various ways what is

8 happening here, and then to use that for whatever

9 purpose they need.

10 I would agree that our investigators could also be

11 present here somewhere, not necessarily in the

12 courtroom, let them be in the same position as the

13 prosecutors' investigators, because they too, when they

14 hear the witnesses before you, may, in those statements,

15 find something that may serve to help them trace

16 something that may be in the interest of defence.

17 MS McHENRY: Your Honour, just if I can briefly respond,

18 with respect to Mrs Residovic, we have given the names

19 of all the potential witnesses, and noted that they may

20 testify, if necessary, on chain of custody issues, or

21 explanation on how given evidence was obtained. I am

22 still not sure if I understand how watching other

23 witnesses might affect that.

24 To the extent that Mr Tapuskovic is suggesting

25 that the same rule apply to the defence investigators,

Page 141

1 we are not suggesting that there should be a different

2 rule. If the defence wishes to request that

3 investigators, who will not be fact witnesses, be

4 allowed also to be in the public gallery, we would not

5 object to that. We are not suggesting that there should

6 be a different standard for the prosecution. We are

7 suggesting, as Mr Tapuskovic has pointed out, that it is

8 going to be necessary for the investigators to follow in

9 one way or another the course of the proceedings, and

10 the most efficient and really the most sure way is to

11 allow them to, on occasion, hear other witnesses

12 testify, and so that is what we would be requesting.

13 Thank you.

14 MR BRACKOVIC (in interpretation): Your Honours, may I just

15 add that one of the main reasons for the opposition of

16 defence counsel is that the presence of investigators

17 during proceedings, and during testimony of witnesses,

18 may develop negative prejudice among the investigators

19 who may later be heard as witnesses, negative bias about

20 the accused, as well as about what they may be called up

21 to testify about. So that is one of the main reasons

22 for our opposition.

23 JUDGE KARIBI WHYTE: Thank you very much. We have heard the

24 arguments on both sides. I think we sustain the

25 objections. We will give our reasons later. We sustain

Page 142

1 the objections of the defence.

2 The next is the question of the identity of

3 witnesses, and I think my brother Jan will kindly hand

4 down our decision.

5 JUDGE JAN: Thank you, Mr President.

6 There are two rules which have a bearing on this

7 subject. There is Rule 61(a)(i), which obliges the

8 prosecution to give the name of the witnesses, which it

9 intends to produce in proof of the guilt of the accused,

10 or in rebuttal of the defence plea, and then there is

11 Rule 69(c), which says the identity of the victim or

12 witness shall be disclosed in sufficient time prior to

13 the trial, to allow adequate time for preparation of the

14 defence.

15 Rule 69(c) is, of course, subject to Rule 75, but

16 then Rule 75 also takes care that the rights of the

17 accused are not prejudiced.

18 Merely giving of names is not sufficient, because

19 there may be persons of the same name, many persons

20 bearing the same name. The identity means much more

21 than that. You have to give enough particulars so that

22 the witness, or the victim, can be identified. It need

23 not necessarily include the present address, but you can

24 give the age, the sex, or any profession of the witness

25 or the victim was following, or the area from which it

Page 143

1 comes from, so that the defence knows who exactly is the

2 person appearing against him. So the prosecution should

3 provide sufficient particulars, not necessarily the

4 present address, to the defence, in respect of the

5 witnesses. Thank you.

6 JUDGE KARIBI WHYTE: I think that concludes the first

7 stage. We can now proceed with the prosecution's case.

8 MS McMURREY: Your Honour, if I may be heard for a second,

9 we have one matter that we would like to be heard before

10 the presentation of the evidence in this case. If you

11 do not mind, after the opening statement by

12 Mr Tapuskovic on behalf of Zdravko Mucic this morning,

13 the defence would like to reurge their consideration for

14 an application for separate trial, and the reasons being

15 there is a motion on file on behalf of defendant Esad

16 Landzo asking the court to do this previously, but

17 before it was only speculation that there would be

18 definite conflicts of interest in the camp of the

19 defence over here.

20 After the opening statement this morning, it has

21 come to fruition there are not perceived differences,

22 but an actual conflict of interest is now visible in the

23 fact that certain admissions by Pavo Mucic now are

24 totally inconsistent with the defence of at least Esad

25 Landzo and I believe a few of the other defendants.

Page 144

1 At this point, we would like to reurge the motion

2 for a separate trial, based on the fact that there

3 definitely is a conflict of interest. I understand the

4 court's consideration of judicial economy, and we

5 believe that it would not prejudice this court at all,

6 and we could continue with the case, if only Mr Mucic

7 was severed out of the case, so that we could continue

8 with consistent defences.

9 If we are forced to go to trial now with Mr Mucic

10 in here, with totally inconsistent defences from ours,

11 then we are not only countering the evidence of the

12 prosecution, we have one of the co-accused who now is

13 basically only interested in mitigation of punishment at

14 this point, and has basically given testimony contrary

15 to what our defence would be.

16 JUDGE JAN: Excuse me, I have heard the speech of defence

17 counsel. I do not find any inconsistency between the

18 stance he has taken and your defence. He has merely

19 said that he was not a commandant until 27th July, that

20 his client was, in fact, helping the persons who were

21 being detained here. Where is the inconsistency? The

22 charge against your client is that he has beaten up,

23 killed persons. How is his defence inconsistent with

24 your defence? I would like to be enlightened on that.

25 MS McMURREY: Yes, your Honour, I will do my best.

Page 145

1 JUDGE KARIBI WHYTE: Excuse me, my understanding is that

2 this motion has been moved before and decided upon. Am

3 I correct?

4 MS McHENRY: Yes, your Honour, on more than one occasion.

5 JUDGE KARIBI WHYTE: I do not think we can go over it

6 again.

7 MS McMURREY: My only issue was that obvious conflicts

8 have --

9 JUDGE KARIBI WHYTE: We now hear what you have said.

10 MS McMURREY: Thank you, your Honours.

11 JUDGE KARIBI WHYTE: Now you can carry on.

12 MR OSTBERG: Thank you, your Honour. The prosecution now

13 wants to call its first witness, and that is Mr Antonius

14 Beelen.

15 JUDGE JAN: Will it be possible for you to give me a

16 photograph of this model, so that I can carry it to my

17 office, a photograph?

18 MR OSTBERG: Yes, of course. That will be done, your

19 Honour.


21 Examination-in-chief by MR OSTBERG

22 JUDGE KARIBI WHYTE: Can you make the announcement for all

23 witnesses to be out of court and out of hearing,

24 please? All witnesses in this case should be out of the

25 Trial Chamber and out of hearing. They should all move

Page 146

1 out in accordance with our Rule 90(d).

2 MR OSTBERG: As far as I can see, your Honour, everybody has

3 left the room, of our investigators. May I proceed?

4 JUDGE KARIBI WHYTE: Yes, you can.

5 MR OSTBERG: Will you please state your name, your full

6 name?

7 A. My name is Antonius Gerardus Franciscus Beelen.

8 Q. And what is your present occupation?

9 A. I am a forensic investigator of the Dutch police.

10 Q. And where are you serving?

11 A. I am serving in the police of Kennemerland, Haarlem.

12 Q. Thank you. Will you tell us about how you happened to

13 be given an assignment to do some work for the Tribunal?

14 A. We had a request of the chief of the investigation

15 section of the International Criminal Tribunal to

16 conduct an investigation in the former camp, Celebici.

17 The part of the investigation was to make video films,

18 take photographs pertaining to the investigation, take

19 measurements to create a model, and eventually conduct a

20 forensic investigation within the framework of the

21 investigation.

22 Q. Thank you. Were you acquainted before you got that

23 assignment with the country, or this place, of Celebici?

24 A. No, sir, I never heard of it before. I only -- I know

25 only about the war what I read in the papers, and there

Page 147

1 was nothing about Celebici.

2 Q. Did they brief you before you left on what had happened

3 in Celebici?

4 A. They told something, that there were kept prisoners, and

5 that is all.

6 Q. Did you prepare a report or a booklet, or something?

7 A. We made an official report, and we made it in Sarajevo

8 shortly after we did our investigations.

9 Q. And brought it back to The Hague?

10 A. And we brought it back to The Hague.

11 Q. Now, your Honour, we are going to introduce Exhibit

12 number 1, and that is the book prepared by the witness

13 during his stay in Celebici.

14 JUDGE KARIBI WHYTE: Will you kindly pass it round to the

15 defence so they can look?

16 MR OSTBERG: The defence is already in possession of it.

17 There is a copy for each one of you, your Honours.

18 MS McMURREY: Your Honours, before the Judges receive a copy

19 of this, we would like to express our objections to this

20 document, because there are plenty of inaccuracies in

21 there, and there is prejudicial language that is being

22 used in this document which is inflammatory and would

23 violate Rule 70(d) at this point, as far as highly

24 prejudicial, outweighing its probative value.

25 JUDGE KARIBI WHYTE: Actually, which is the ground of your

Page 148

1 objection? Is it the inflammatory language or the

2 inaccuracies? Let us have one?

3 MS McMURREY: It is twofold. Number one, the renderings in

4 the book itself are not accurate and not to scale. And

5 number 2, the use of language such as "concentration

6 camp", "former Serbian concentration camp" on the

7 documents itself is highly inflammatory and highly

8 prejudicial against the case.

9 MR OSTBERG: Your Honour, these words have been eradicated

10 from the text already.

11 MS McMURREY: Not in my copy, your Honour.

12 MR OSTBERG: I do not know how that has been done, but we

13 have been going through it, and there is no mention of

14 any concentration camp, or anything like that.

15 JUDGE KARIBI WHYTE: Actually the word "concentration camp"

16 by itself is not offensive. I think it is very well

17 used all through the world. It is well-known.

18 MS McMURREY: Your Honour, the proof of the facility as a

19 former concentration camp is highly prejudicial. They

20 have offered no proof to that whatsoever.

21 JUDGE KARIBI WHYTE: That is a point of objection I agree

22 with, but one understands that language. It is not

23 new.

24 MS McMURREY: As far as being admitted to the people who are

25 deciding the fact issues in this case, it is highly

Page 149

1 prejudicial, and we admit to its admission to the fact

2 finders of this case as highly prejudicial, unless

3 proven up, and they have not offered any evidence to

4 prove it up and if it has been removed, I believe we

5 have a right to see the document as it will be admitted

6 to the Tribunal.

7 JUDGE KARIBI WHYTE: Let us hear Ostberg on the objections.

8 MR OSTBERG: Thank you. I cannot accept any objection of

9 the content of the report. That is the witness we are

10 going to examine in this moment and in this court, and he

11 is going to tell the court what he did, what kind of

12 maps, sketches, et cetera, et cetera, he did, and that

13 is the fact of his mission to Celebici, and that is what

14 I am going to bring to this court, to inform it what

15 these premises are like.

16 As to language, I have heard your objections

17 before, and I have taken the initiative to have this

18 word you just referred to being eradicated from the

19 text.

20 MS McMURREY: Your Honour, we certainly have no objections

21 to the witness testifying to the drawings and his

22 investigation of the Celebici facility at all, and, if

23 the document has been altered from what the prosecution

24 has given us to examine, then we would like the

25 opportunity to examine the document as it will be

Page 150

1 presented to the Tribunal.

2 MR OSTBERG: Your Honour, I will have one minute to discuss

3 with my colleagues what measures they have taken, and

4 what it looks like for the moment. Just a moment.

5 Your Honour, when we were informed about this

6 objection, we took it out of the documents to lead to it

7 being introduced as an exhibit, but we have supported

8 the defence beforehand with the these documents in

9 Serbo-Croat and in English, if I remember correctly, and

10 there these now objected to words are still there, but

11 these words are taken out of the copies now given to the

12 court as an exhibit.

13 MS McMURREY: Your Honour, we appreciate the fact that they

14 are accommodating our request, but we would like the

15 opportunity now to inspect the documents that will be

16 distributed to the Tribunal. We have not had a chance

17 to see the modified documents.

18 JUDGE KARIBI WHYTE: Actually, you are not objecting to the

19 expertise of the witness and what has been produced as a

20 competent document, you are not objecting to that?

21 MS McMURREY: We have not heard anything to prove that he is

22 an expert at this point, your Honour.

23 JUDGE KARIBI WHYTE: I thought you would have started from

24 that, instead of objecting to areas which perhaps could

25 easily be cleared.

Page 151

1 MS McMURREY: Your Honour, Mr Ostberg has just requested

2 that a document be distributed to the Tribunal for its

3 inspection, and, before the Tribunal receives this

4 document --

5 JUDGE KARIBI WHYTE: You have gone on to talk about the

6 content of the document, without even referring to the

7 expertise of the person who produced it.

8 MS McMURREY: It is highly prejudicial and has nothing to do

9 with the investigation of the camp itself. The label on

10 there has nothing to do with what the dimensions are of

11 the camp whatsoever. It has nothing to do with this

12 so-called non-fact witness that they have put on, and

13 the introduction of the language that he has put in here

14 is highly flammable and has nothing to do with his

15 examination as an unbiased investigator of the camp.

16 JUDGE JAN: You will have the right to cross-examine him and

17 you can ask him about these terms, you can ask him about

18 his lack of knowledge. You can ask him about -- you

19 have the right to cross-examine him, and you can bring

20 out evidence from his own mouth showing that he is not

21 an expert, he has used expressions he ought not to have

22 used and that there are inaccuracies in his report. So

23 at this stage your objection has not been well-founded.

24 MS McMURREY: We are voicing our objections to the Tribunal

25 being able to view this inflammatory statement and the

Page 152

1 ruling is overruled?

2 JUDGE JAN: We have noted your objection.

3 MS McMURREY: Thank you.

4 JUDGE KARIBI WHYTE: We are really not a jury. We can

5 discriminate between what ought to be taken into account

6 and what should not.

7 MS McMURREY: I guess you can see that I have tried too many

8 jury trials. Thank you.

9 JUDGE KARIBI WHYTE: Yes, you can go ahead.

10 MR OSTBERG: On the other hand, I have never tried a jury

11 case.

12 May I proceed to examine my witness?

13 JUDGE KARIBI WHYTE: Yes, go on.

14 MR OSTBERG: Thank you, your Honour.

15 Then will you tell us in summary how you produced

16 this document? Did you make some kind of a summary in

17 your document?

18 A. Yes, sir, we did.

19 Q. Will you briefly, briefly summarise your summary, just

20 to tell the court what it led up to -- your findings --

21 before we go into photos and sketches, and things like

22 that?

23 A. I made a description of the situation we saw out there

24 in Celebici. When we were there in October last year,

25 we first had an impression of the total camp, and then,

Page 153

1 after that, we took photographs, made video films, made

2 measurements. During the night of the same day, we all

3 put our material in the computer and worked it out as an

4 official report, as you see before you.

5 Q. And you say "we". That means that you were not alone

6 there?

7 A. No, I was there with a colleague, Hendrik Post.

8 Q. And does that name appear on the proces-verbal you have

9 in here, on page 1 in our Exhibit number 1?

10 A. Yes, that is correct.

11 Q. And you did this together?

12 A. We did this together.

13 Q. Will you go on with your summary, or is that enough?

14 A. Pardon?

15 Q. Will you go on with your summary, or this is enough?

16 A. No, it is enough.

17 Q. It is enough. And you said you made sketches, and may I

18 now turn to page 4 -- no, I start with page 3. This is

19 a sketched overview of the camp. Did you make that

20 sketch?

21 A. That is correct.

22 Q. If you look at this, there are letters and numbers of --

23 JUDGE JAN: We do not have these books.

24 JUDGE KARIBI WHYTE: Let us have them for identification

25 first.

Page 154

1 MR OSTBERG: I beg your pardon, your Honour. You have the

2 original of your booklet there?

3 A. Yes, I do, yes.

4 Q. That is the one you did?

5 A. It is one of the ones, yes.

6 Q. Look at the book as the whole that you have in your hand

7 now. Is that the one you prepared?

8 A. Yes, we did.

9 Q. Thank you.

10 JUDGE KARIBI WHYTE: Tender it for identification purposes.

11 MR OSTBERG: So now I tender this as our Exhibit number 1,

12 your Honour.

13 JUDGE KARIBI WHYTE: For identification at the moment.

14 MR OSTBERG: As far as I understood, the witness has now

15 identified it.

16 JUDGE KARIBI WHYTE: Yes. You have now identified this book

17 as the one you produced?

18 A. Yes, your Honour.

19 MR OSTBERG: After this --

20 JUDGE JAN: I do not need a photograph now with these

21 detailed sketches, thank you.

22 MR OSTBERG: Thank you very much, your Honour.

23 Now I will direct you, Mr Beelen, to page 3 in

24 this booklet, and I will ask your Honours also to get to

25 page 3, which is the same -- 3A is a bigger sketch and

Page 155

1 the smaller one to make it more feasible is on page 3.

2 Did you make that sketch?

3 A. Yes, I did.

4 Q. Did you put these numbers and letters on the sketch?

5 A. Yes. To give all the buildings a name, we put a letter

6 on it, and it is from A to N, and we also made some

7 measure points on the map, 1 to 4.

8 Q. Did you have a key to your measuring of the facilities,

9 of the buildings in the camp?

10 A. I am sorry, I do not understand you.

11 Q. Do you have a key or a list of --

12 A. Yes, sir, that is on page 9.

13 Q. Page 9. Will you describe for us what we can find on

14 page 9, when the court has reached page 9?

15 A. On page 9, there is the letter we gave to the building,

16 A, the name of the building, what it was at the moment

17 we were there, and the measurements of the buildings.

18 Q. I notify the video people, so we can also see all these

19 things on the screen before us.

20 MR O'SULLIVAN: Excuse me, your Honour, but the pages you

21 are referring to do not seem to match. When you say

22 page 9 and page 3, they do not match in our booklets.

23 JUDGE KARIBI WHYTE: You do not have page 9?

24 MR O'SULLIVAN: This foldout map is page 1 in our booklet.

25 JUDGE JAN: It is 3A.

Page 156

1 MR O'SULLIVAN: It is page 1 in ours. That is the problem.

2 MR OSTBERG: Then of course to get over that hurdle, we put

3 the thing on the ELMO, so we can all see what we are

4 talking about. This was given to the defence beforehand

5 and after that there had been, for technical reasons,

6 some kind of a renumbering. We will see to it, but you

7 have exactly the same thing. There must be some

8 confusion about the pages, which I was not aware of.

9 May I just explain to the court, the defence has

10 exactly the same copy. The only thing that differs due

11 to some technical things is the numbering of the pages,

12 and there is the confusion. But we will soon have it in

13 the computer system, so we can all see the same thing

14 when we speak about it.

15 Your Honours, this is now all in the computer

16 system, so I will now ask the computer people to bring

17 us to page 3. There we all see the map, which also is

18 in the book. Again, I will ask Mr Beelen to tell us

19 something about what he did to make it possible for the

20 court to identify the different buildings and things in

21 the Celebici facility.

22 A. One point of our mission was to make a sketch of the

23 total camp, because they wanted to make a model of it.

24 As you see, it is a fairly large camp, so we pointed

25 four points on the camp, 1 to 4, from where we took our

Page 157

1 measurements.

2 So you can see the total length of the camp, from

3 point 2 to point 3, is 485 metres.

4 Q. Yes, and then you numbered or named the buildings?

5 A. Yes, then we gave all the buildings a letter, from A to

6 N, letter A to N, because the buildings were numbered by

7 the users, but there were several buildings with the

8 same number on it. There were three number 6s, and it

9 is very disturbing, so we made them a letter A, B, D,

10 and so on.

11 Q. We also see that, apart from numbers, and letters, some

12 of the buildings also have names?

13 A. Yes.

14 Q. Where did you get these names?

15 A. They were names given us by the local users of the camp.

16 Q. And that takes me to the question, what was this

17 facility used for when you visited there in October

18 1996?

19 A. The camp was used as an oil storage, a liquid store, a

20 gas oil station, and it was, how do you say it, a

21 storage for oil products.

22 Q. That was by no means any longer some kind of a prison or

23 a detention, or something like that?

24 A. Not at all.

25 Q. Who was running this facility when you visited it?

Page 158

1 A. Military people.

2 Q. What kind of military people? What army?

3 A. I think it was the Bosnian army.

4 Q. You came up with numbers from, as you said, from A to O?

5 A. N -- O, I am sorry.

6 Q. I think it is O?

7 A. Yes, the last one is O.

8 Q. A to O. Then, if we turn, and I ask now also the

9 computer people to go to page 4, did you make sketches

10 even of the different buildings?

11 A. Yes.

12 Q. How many of them?

13 A. We made sketches of the buildings A, B, C, and E, a

14 hangar.

15 Q. On page 4, which is now on our computer system, is there

16 a letter attached to that?

17 A. Yes, that is building A. It is the guard house.

18 Q. You made also a sketch, if we go now over to page 5?

19 A. Page 5 is --

20 Q. Just a moment. We will ask the computer people to

21 follow us. Thank you. What is on page 5?

22 A. Page 5 is the administration building, named as B.

23 Q. And your sketch, does it show all the rooms that were in

24 it?

25 A. These are rooms which were there at the moment we were

Page 159

1 in the camp.

2 Q. And these names, technician, commander, toilet, room

3 with bed, et cetera, is that exactly how it was when you

4 visited?

5 A. That is when we visited there.

6 Q. So that has nothing to do with its former capacity?

7 A. No, no, sir.

8 Q. That is just as it was when you were there?

9 A. Yes.

10 Q. May I ask the computer assistant to give us page 6?

11 What is that?

12 A. Page 6 is building C, and it is a store house for water

13 pumps.

14 Q. And you have the size on it also here?

15 A. Yes, we have the size on it.

16 Q. Were they as empty as they appear on the page?

17 A. No, there were some pumps in it, and a bed.

18 Q. May I ask you to go to page 7, and also the computer? I

19 hope the defence can follow us without difficulties.

20 You can find these things without difficulties? Very

21 good.

22 What is this?

23 A. This is building A, hangar number 6, as the military

24 call it.

25 JUDGE JAN: I beg your pardon?

Page 160

1 MR OSTBERG: Hangar, the answer was hangar.

2 Why the name hangar? Is there any explanation to

3 that fact?

4 A. It is a warehouse, and at the moment we were there,

5 there were fuel barrels inside of it.

6 Q. And did you have any explanation why they used the word

7 "hangar"?

8 A. It is how they called it, the local people, hangar

9 number 6.

10 Q. Without any special explanation?

11 A. No, no explanation.

12 JUDGE JAN: Not for aeroplanes?

13 A. No.

14 MR OSTBERG: No, there was no aeroplane in it, I suppose?

15 A. No.

16 Q. You said there were some oil barrels?

17 A. Yes, that is correct.

18 Q. May I ask the computer to go to page 8? What is this?

19 A. Page 8 is building number O, and the local people called

20 it tunnel number 9. It is a very long tunnel, 30 metres

21 long, and it was partly underground, and in it was an

22 operation room and a pump room for the oil storage.

23 Q. And again we can see the length and the width and the

24 height of it?

25 A. Yes, that is correct.

Page 161

1 Q. So as far as I can read here, it was 30 --

2 A. 30 metres long.

3 Q. And then?

4 A. The width was 1 metre 50 and height 2 metres 50.

5 Q. Have you any idea what this tunnel was used for?

6 A. It was part of a distribution station of the oil

7 storage.

8 Q. Other than oil?

9 A. Fuel tanks underground.

10 Q. And these were the buildings of which you made special

11 sketches?

12 A. Yes, sir.

13 Q. How come you made sketches of just these buildings?

14 A. They told me there were explanations about these

15 specific buildings.

16 Q. So you were asked to make sketches of these buildings?

17 A. That is correct.

18 Q. By the people who tasked you to go there?

19 A. That is correct.

20 Q. Thank you. And, Mr Beelen, you also took photos?

21 A. We took photographs of the total camp, and especially

22 from the buildings which you saw the drawings from.

23 Q. And now will you please take us through these photos,

24 and I will now ask the computer assistants to help us

25 and go to photo -- the first photo, page 10?

Page 162

1 A. It is photo 1. You see a total view of the camp.

2 Q. Can you name one of the buildings for us, so we get

3 acquainted with it?

4 A. The building you see in the middle is building A, I

5 think, building F and building G, from left to right.

6 Q. Is this taken from the direction from the entrance?

7 A. No, it is to the entrance.

8 Q. From the end of the camp, but I should not use that word

9 now, because it is not a camp any more, from the

10 entrance of this facility?

11 A. Yes.

12 Q. From the bottom of it to the entrance, is that so?

13 A. That is correct.

14 Q. Next picture, please.

15 A. The next picture is taken from the same place, but a

16 little bit more to the right. So you see building G,

17 building H, and a part of building F.

18 Q. And the next picture, please?

19 A. The next picture is taken from the same place, and it is

20 the last building on the camp, building G.

21 Q. As far as I can see, there is a railway going in the

22 middle of the picture?

23 A. Yes, between --

24 Q. Is the rail inside or outside the camp?

25 A. On the photograph, you see the rail is outside, and

Page 163

1 between building F and building G, it is coming into the

2 camp.

3 Q. Thank you. Next picture, please. What is this?

4 A. This is the main gate of the camp.

5 Q. Taken from inside?

6 A. Taken from inside to the outside, yes. At the right you

7 see the guard house.

8 Q. Next picture, please.

9 A. The next picture is another shot of the guard house.

10 Q. Thank you. Next, please.

11 A. It is a view of the guard house opposite to the

12 administration building.

13 Q. Thank you. Could we have photo number 7?

14 A. This is the administration building. To the left, at

15 the end, is a hangar which they do not use any more. It

16 was kind of in repair for motor cars.

17 Q. Also called hangar?

18 A. Yes, sir.

19 Q. And to the right you see?

20 A. And right you see building C.

21 Q. And what is the letter of this building, or number?

22 A. The building to the right?

23 Q. Yes.

24 A. That is building C, the store house for water pumps.

25 Q. If you remember the sketch, can you remember which

Page 164

1 number this building, the small building to the right,

2 had for the local people there?

3 A. No, sir, I do not.

4 Q. If you have a look on the first sketch on page 3, if we

5 can have page 3 again, please?

6 A. It is building C, but I do not know which number the

7 local people gave it.

8 Q. It is just -- for you, it is just building C?

9 A. Yes. I cannot remember if there was a number on it.

10 Q. Thank you very much. Then we go on, please, with

11 picture number 8.

12 A. This is the main entrance of the administration

13 building, building B.

14 Q. Thank you. And let us have a look at picture number 9.

15 A. It is the administration building again.

16 Q. And number 10?

17 A. And it is the administration building.

18 Q. From another angle?

19 A. Yes, seen from building D.

20 Q. And number 11?

21 A. It is the back side of the administration building.

22 Q. Thank you. Now we come to number 12.

23 A. Number 12 is the inside of the administration building.

24 Just from the main door, looking inside to the toilets.

25 Q. And let us go to number 13.

Page 165

1 A. Number 13 is the toilet room.

2 Q. And number 14?

3 A. Number 14 is a view from the, how do you call it?

4 Q. Corridor?

5 A. Corridor.

6 JUDGE JAN: Is it the administration building?

7 A. All photographs are from the administration building.

8 MR OSTBERG: We go now to number 15?

9 A. This is a room which is under repair. They were

10 painting it, and it is not a specific room.

11 Q. And number 16?

12 A. Number 16 is the room of the commander in the

13 administration building.

14 Q. Thank you. And number 17?

15 A. This is the room of the technician, the technolog, as

16 they call it.

17 Q. And that was on the outside of the door, the word

18 "technolog"?

19 A. That was on the outside, that is correct.

20 Q. And we are still in the administration building?

21 A. Yes.

22 Q. And number 18?

23 A. Number 18 was kind of a radio room opposite the room of

24 the technician.

25 Q. Thank you. 19?

Page 166

1 A. 19 was a room with a bed in it.

2 Q. And 20?

3 A. 20 was the same.

4 JUDGE JAN: You are still talking about the administration

5 building?

6 A. Still in the administration building. It is another

7 room with a bed in it.

8 MR OSTBERG: And 21?

9 A. 21 is a view of the cantina in the administration

10 building.

11 Q. Thank you. 22?

12 A. And 22 is a look at the kitchen, which is just between

13 the cantina.

14 Q. And also in the same building?

15 A. In the same building.

16 Q. Thank you, and that way we leave the administration

17 building and look at picture number 23.

18 A. This is what we call building C. It is the store house

19 for the water pumps.

20 Q. In your list of the pictures on page 10 -- can we have

21 page 10, please?

22 JUDGE JAN: 10 or 10A?

23 MR OSTBERG: 10. That is an index of the photographs?

24 A. Yes.

25 Q. For this building, called building C, is that the same

Page 167

1 as on picture 23?

2 A. Yes.

3 Q. And you call it in your index "dispensary"?

4 A. Yes.

5 Q. Why do you call it "dispensary"?

6 A. When we get our mission, they told us this building was

7 used as a dispensary.

8 Q. And your people in the investigation office, in the

9 prosecutor's office, who sent you out --

10 A. That is correct.

11 Q. -- told you something, and said that this was the

12 dispensary?

13 A. Yes.

14 Q. Okay. Thank you. So therefrom you have the name. You

15 do not have it from people now running this facility?

16 A. No, that is correct. The local people called it just a

17 store house.

18 Q. And we go back, please, to 23, picture 23, please.

19 There we are again. Now we have the clarification of

20 its name in this index. Please, number 24. Is that the

21 same building?

22 A. That is the same building, but the backside of it.

23 Q. Thank you. Now we go to number 25.

24 A. 25 is the same building, but then the inside.

25 Q. And 26?

Page 168

1 A. That is another part of the inside from the same

2 building.

3 Q. Thank you. 27?

4 A. 27 is a view of two holes opposite a little hill, a

5 small hill, along the road.

6 Q. And did you have a letter for that building in the

7 foreground?

8 A. There is no letter on it. On our map we called it

9 "checkpoints".

10 Q. I see. Let us go to 26, and you will tell us what that

11 is.

12 A. 28?

13 Q. 28, I beg your pardon. I misread the number. 28, of

14 course.

15 A. 28 is what we thought was a checkpoint too. It is a

16 kind of guard post, or an observation post, and all the

17 wood was maybe from a kind of a shelter.

18 Q. Thank you. And number 29?

19 A. Number 29 is the first hangar, building E.

20 Q. And the word "hangar", again, was that used by the local

21 people you met there?

22 A. Yes, that is correct.

23 Q. Thank you. Can you remember if this hangar on picture

24 29 had some local number?

25 A. Yes, it was number 6.

Page 169

1 Q. Number 6?

2 A. Hangar number 6, building E.

3 Q. Was there a plate on it, or something saying it?

4 A. There was a sign number 6.

5 Q. On this building?

6 A. On this building.

7 Q. We cannot see it from the picture, can we?

8 A. That is correct, the yellow one.

9 Q. Yes, but we cannot see the number 6 somewhere. Was it

10 put on the other side of the house, or where did you see

11 it?

12 A. It was -- the yellow sign you see in the middle of the

13 building, on that is --

14 Q. Orange colour?

15 A. Orange colour, that is correct. And that was number 6.

16 Q. Thank you. We go now to number 30, please?

17 A. Number 30 is the same building, with the inside of it.

18 You can see the oil barrels.

19 Q. Thank you very much. We go to 31.

20 A. 31 is the same building, and the photo shows five bullet

21 holes in the door.

22 Q. I see a small door, and this is a part of a bigger door?

23 A. Yes, it is part of a bigger door, which they can open.

24 Q. You can see some brown spots on the picture. Did you

25 examine these holes yourself?

Page 170

1 A. Yes, we did.

2 Q. Could you, as a police officer, say that these were

3 bullet holes?

4 A. Yes, that is correct, these were bullet holes, but they

5 were there a long time, because they were all rusty.

6 Q. But you are certain that it was bullet holes?

7 A. We were certain.

8 Q. Thank you. Number 32 does not exist, I suppose, so we

9 go to 33.

10 A. That is correct. 33.

11 Q. 33, please.

12 A. 33 is a view of building F and building G.

13 Q. And the one we just looked upon?

14 A. Yes.

15 Q. And we also see this orange sign in the middle of it?

16 A. That is correct.

17 Q. Which bore the number 6?

18 A. No, no.

19 Q. No?

20 JUDGE JAN: Yes, it would be.

21 A. We see -- I am sorry, I said it wrong. We see building

22 G and building H.

23 MR OSTBERG: Building G is the --

24 A. At the front you see the railway.

25 Q. Yes. The railway is crossing in the middle of the

Page 171

1 picture?

2 A. Yes.

3 Q. And the buildings are again?

4 A. Building G and building H, and building G was also

5 called hangar number 6, 6B.

6 Q. Thank you. Can we have 34, please?

7 A. 34 is the railway.

8 Q. Inside the compound?

9 A. Inside, and it is passing behind building F.

10 Q. Thank you. And 35?

11 A. 35 is another view of the railway, inside the camp. The

12 building you see is building A.

13 Q. Is that the small one in the centre of the --

14 A. No, the large one.

15 Q. The small one, does it have a number, or something?

16 A. No, we did not put it on the map. Along the small one

17 are the checkpoints, or the shelters we saw before, just

18 above it.

19 Q. On the grass?

20 A. On the grass.

21 Q. I see. 36, please. Are we still inside the --

22 A. You are still inside in the area, and this is the end of

23 the railway looking to the direction of the main gate.

24 Q. Thank you. 37?

25 A. This is the last building on the area, building G,

Page 172

1 hangar number 11.

2 Q. And these yellow or orange signs we have seen on some

3 pictures, you did not put them there?

4 A. No, they were there. They pointed number 11.

5 Q. Thank you. On picture number 38, what is this?

6 A. This is a concrete structure, building K we called it,

7 and there is a cover on the top, from which you can go

8 inside.

9 Q. And if you go inside, where do you get then?

10 A. Then you come down to a small area, with a very strong

11 smell of fuel, and in it there were steps and fuel

12 pipes.

13 Q. Is this connected with something else, or it just goes

14 down in the ground?

15 A. It was just in the ground.

16 Q. Thank you.

17 A. And there were pipes going to a storage tank, I think.

18 Q. And these -- are these -- I see two pipes on it?

19 A. Two pipes were for fresh air.

20 Q. Thank you. Picture number 39, please.

21 A. 39 is the cover of that structure building.

22 Q. On that we just saw?

23 A. On that we just saw.

24 Q. On the concrete one, the top of it.

25 A. Yes.

Page 173

1 Q. And number 40?

2 A. It is the same building, now the cover opened.

3 Q. And it takes you just down, so you cannot go

4 underground --

5 A. You can go, it is about two metres in depth.

6 Q. Thank you. Then we have two pictures. Is it from the

7 inside, both of them?

8 A. It is from -- we were standing on the top of it and

9 taking down. It is photo number 41.

10 Q. Can we have photo 41, please?

11 A. That is it.

12 Q. Taken from --

13 A. From the upside to downside.

14 Q. And number 42?

15 A. That is the same.

16 Q. Also taking from?

17 A. Taken from up to down.

18 Q. Thank you. Now we go to 43.

19 A. 43 shows us particularly underground store rooms.

20 Q. So are these the entrances?

21 A. These are the entrances of two buildings, yes.

22 Q. Underground buildings?

23 A. Underground buildings. We call them both building L.

24 Q. They have the same letter?

25 A. We call them the same letter, that is correct.

Page 174

1 Q. Are they connected these two, underground?

2 A. No, they were not.

3 Q. Did they have a name?

4 A. They were called hangar number 7, both of them.

5 Q. Hangar number 7?

6 A. Yes.

7 Q. Remember, still talking about picture number 43?

8 A. Yes.

9 Q. Number 44, then?

10 A. Number 44 is a picture of a large fuel station. We

11 called it building N. It is a gas oil station.

12 Q. Along the rail, is there a rail passing behind it?

13 A. The rail is to the right of the road. There is the

14 railway.

15 Q. To the right of the road is the railway?

16 A. Yes.

17 Q. Number 45?

18 A. This is the entrance of tunnel 9.

19 Q. And the word "tunnel 9", were you given that by the

20 local people when you were there?

21 A. That was given by the local people. You can see the

22 sign number 9 on it, and we called it building O.

23 Q. And we can all read this sign number 9 on the door.

24 This door is leading where?

25 A. This door is leading to a tunnel, 30 metres long, and it

Page 175

1 is underground.

2 Q. And then we turn to 46. Can you explain what you see on

3 46?

4 A. 46 you can see the tunnel.

5 Q. And this is --

6 A. It is a view to the entrance of the tunnel.

7 Q. Is it taken from the --

8 A. It is from the inside to the outside, to the door with

9 the sign number 9 on it.

10 Q. So what we see in the centre of the picture is the door

11 that we just saw from the outside?

12 A. That is correct.

13 Q. Very good. Number 47?

14 A. Number 47 is taken from the same place as the photograph

15 before, but now to the inside. This is the door leading

16 to a large -- not a large, a little room at the end of

17 the tunnel.

18 Q. Thank you, and 48?

19 A. 48 is the entrance of the little room down in the

20 tunnel.

21 Q. And we go to 49.

22 A. 49 is inside, at the end of the tunnel. It is a large

23 room with pumps from --

24 Q. It is the inside of the room to which we saw the doors

25 on the foregoing picture?

Page 176

1 A. Yes, it was a room between it. You can see it on

2 page 8. You can see the tunnel.

3 Q. If we go to page 8, please, if our computer assistants

4 can take us to 8 again, that is a sketch of the tunnel?

5 A. It is the sketch of the tunnel. You can see the

6 operation room, and the pump room as we saw before.

7 Q. The pump room is on picture --

8 A. It is photo picture 49, that is correct.

9 Q. Thank you. Now, please, to picture number 50.

10 A. Number 50 is at the outside of the tunnel, just above

11 the pump room.

12 Q. And the pump room, is this the concrete building in the

13 centre of the picture?

14 A. That is correct, it is a kind of a manhole, which leads

15 down to the pump room.

16 Q. So you can get into the tunnel through stairs down from

17 this entrance --

18 A. That is correct.

19 Q. -- on the concrete building. The other things on the

20 picture, what shall I call it, pipes or whatever?

21 A. All kinds of pipe, for air for the oil storage.

22 Q. And you have not numbered them and given them letters or

23 something like that?

24 A. No, we did not.

25 Q. But this concrete building, you give that a letter?

Page 177

1 A. No, no, it was all a part of tunnel 9.

2 Q. It is a part of tunnel 9, thank you. And now we go to

3 photo number 51. What is this?

4 A. 51 is the end of the railway at the right, and to the

5 left you can see a wall, which was the opposite side of

6 the whole area.

7 Q. And what we see is that the --

8 A. The main gate of the --

9 Q. We see the gate and we see also the gatehouse?

10 A. Yes, that is correct.

11 Q. And the rail -- the rail went all the way up there, this

12 tank thing is standing on rails?

13 A. It is on a rail, and it was the last part of the

14 railway.

15 Q. Thank you. And then we come to the last picture, number

16 52, please. What is this, and why do we have it?

17 A. It was a view of the wall, and there was damage on the

18 wall which had been repaired with new cement, and the

19 damage could be caused by projectiles, I think.

20 Q. That is something you believe, or suppose, or something

21 you know?

22 A. Now we know it was used for -- they were damaged by

23 bullets.

24 Q. You could establish that?

25 A. That is correct.

Page 178

1 Q. Thank you very much. That has taken us through this

2 booklet, with its sketches, its photos and its lists of

3 buildings. Do you have more to add concerning this

4 booklet, or whatever I could call it? Do you have any

5 comments to add to what you have said so far?

6 A. No, I do not.

7 Q. Then I thank you very much for that.

8 That, your Honours, takes us to have a look at the

9 model standing in the centre of this courtroom. Having

10 looked at the pictures you have already an idea of what

11 it looks through a camera lens, and now you will have to

12 look at it as a model. The first question is, however,

13 to you, Mr Beelen: did you prepare this model?

14 A. I did not prepare it myself.

15 Q. Who did it?

16 A. It was prepared by the Centrale Werkplaats

17 Instructiemiddelen. It is a part of the Dutch army, and

18 they made it by our measurements and our photos and

19 video film.

20 Q. So you supervised its production?

21 A. Yes, that is correct.

22 Q. And controlled it and measured it, and it was done after

23 your instructions?

24 A. It was done after all my instructions, and when we were

25 back in Holland.

Page 179

1 Q. And where is it made?

2 A. It was made at Breda in Holland.

3 Q. By the Dutch army?

4 A. That is right.

5 Q. Now I will ask you to -- I do not know how we make this

6 from the point of view of recording what you say. Can

7 you, from the place where you are, maybe, describe the

8 model for us? Is that possible?

9 A. That is possible.

10 Q. Do you need something to point with? Maybe somebody

11 could support you with that. Could we have some support

12 from anybody, the usher, or somebody, to give us a

13 pointer?

14 A. I will do it with this pen.

15 Q. I think a pen is a rather short instrument. This may be

16 better.

17 Just before you start, I would like now, your

18 Honours, to tender this model as an evidence in the

19 trial, and I call it Exhibit number 2.

20 MS McMURREY: Your Honour, we would object to this being

21 offered and accepted into evidence at this time. We

22 have not had a chance to prove up that it is not

23 authentic and it is not to scale, and it is not

24 appropriate to be used as evidence. I know that right

25 now they are using it just for demonstrative purposes,

Page 180

1 but as a piece of evidence in this case, and we have the

2 right to at least take him on voir dire and find out how

3 accurate this is. So we object to it being admitted

4 into evidence at this point.

5 MR OSTBERG: And I object to the objection. I would ask

6 Mr Beelen to show his model.

7 JUDGE KARIBI WHYTE: You are being asked to justify your

8 tendering it. That is all the objection is. How do you

9 justify your tendering it through this witness?

10 MR OSTBERG: I tender it through this witness, because it is

11 made up under his instructions by personnel of the Dutch

12 army, and he is responsible for it.

13 JUDGE KARIBI WHYTE: He is not the maker.

14 MR OSTBERG: He is not the maker, but it is made under his

15 supervision, after his photos, after his measurements,

16 and he has supervised its production, so I am prepared,

17 your Honour, to submit to you that he is the person

18 responsible for the production of this model we see

19 before us.

20 JUDGE KARIBI WHYTE: He has not said so.

21 MR OSTBERG: He has not said so?

22 JUDGE KARIBI WHYTE: No, he said it was not made by him.

23 MR OSTBERG: It was not made by him, but I think I expressly

24 asked him if it was made under his supervision. That

25 is, in my submission, enough to make him responsible for

Page 181

1 the production. Even if he did not do it by his own

2 hand, he had it done after his instructions, and how

3 could it else be done? I do not know what I can do,

4 your Honour.

5 MS McMURREY: Your Honour, if I may respond, before its

6 acceptance into evidence, the defence would like an

7 opportunity to challenge his specifications, the

8 authenticity of the measurements here and at least have

9 the right to challenge it before it is accepted into

10 evidence. We have no objection to it being used for

11 demonstrative purposes, until we get a chance to

12 challenge it.

13 JUDGE KARIBI WHYTE: Well, challenge, then. Ask him your

14 questions, and let him see whether he cannot answer

15 them.

16 MS McMURREY: I was waiting for cross-examination, but if

17 you would like for me to take --

18 JUDGE KARIBI WHYTE: In respect of it being tendered, if you

19 want it not tendered, you have to put to him the

20 objections why it should not be tendered.

21 MS McMURREY: We know for a fact that, based on our

22 photographs and video tapes that we have also, that

23 there are inaccuracies about the train tracks going

24 toward the front of the building, that there are

25 inaccuracies on the elevation of the hill between

Page 182

1 building known as number 22, the dispensary and hangar

2 number 6, and we would like to at least have the

3 opportunity to prove up those inaccuracies before it is

4 admitted into evidence.

5 JUDGE KARIBI WHYTE: Actually, I am not too sure, I am not

6 an expert on this, but you have two measurements you are

7 not taking on the same scale, is it? Your own

8 photographs and his own are not on the same scale?

9 MS McMURREY: Yes, it will prove that their scale is wrong.

10 JUDGE KARIBI WHYTE: Everyone has his own scale which he

11 takes.

12 JUDGE JAN: Maybe we can mark it as number 2 for the time

13 being and after the examination is over, let us put it

14 as Exhibit 2.

15 MR OSTBERG: I would like to ask one question to the witness

16 before doing so, which might clarify the position.

17 JUDGE KARIBI WHYTE: Let us clear that.

18 MR OSTBERG: Thank you very much, your Honour.

19 Then I will ask you, Mr Beelen, can you testify

20 before this court that this is a fair and accurate

21 description, this model, and that it answers up to the

22 facts that you gave the people who manufactured it?

23 A. Yes, I can. I gave them all my original materials, all

24 my measurements, all my original video tapes, all my

25 original photographs, and they have instruments to make

Page 183

1 a model from all those things.

2 Q. To you, Mr Beelen, is that, this model, a true picture

3 for you of what it looked like in this compound?

4 A. That is correct. It is a real, true picture of what I

5 saw when I was there.

6 Q. Thank you, your Honour. Now I ask to tender this as an

7 exhibit.

8 JUDGE JAN: Just a minute. Let us mark it as Exhibit 2

9 because of the objection and after the cross-examination

10 is over, we can exhibit it as Exhibit 2.

11 MR OSTBERG: Absolutely. It suits me perfectly, thank you,

12 your Honour.

13 JUDGE KARIBI WHYTE: I think the Trial Chamber will rise for

14 fifteen minutes, and when we come back, we can continue.

15 MR OSTBERG: Thank you.

16 (4.05 pm)

17 (A short break)

18 (4.30 pm)

19 JUDGE KARIBI WHYTE: You can continue, Mr Ostberg.

20 MR OSTBERG: Thank you very much. May I ask the usher to

21 bring in the witness again?

22 JUDGE KARIBI WHYTE: You are still on your oath, as you

23 swore when you started.

24 A. Yes, your Honour.

25 JUDGE KARIBI WHYTE: Yes, you can continue.

Page 184

1 MR OSTBERG: Thank you. Before I put any questions to

2 Mr Beelen, I would like to explain to the court and

3 to the defendants and to the defence counsel, and to

4 Mr Beelen, that this camera standing beside the model

5 has the facility or possibility to move from building to

6 building to building, so, instead of a pointer, which we

7 had a problem to find, in this court, it is possible for

8 Mr Beelen to just name the letter, and then the camera

9 will go to the different things, and I do not know if we

10 need somebody to operate this camera from inside the

11 courtroom, or from the box, I do not know which.

12 Someone is coming, I believe. Thank you.

13 Please, Mr Beelen, will you please just briefly

14 again explain how this model was manufactured?

15 A. The model was manufactured by a specialist from the

16 Dutch army and they made it by our measurements, or

17 photographs, and our video films, all unedited, so they

18 have every material we took down there in Celebici.

19 Q. Thank you. Now added to the model is two other pieces,

20 one to your right side, and one to your left side. Will

21 you just explain to the court what that is?

22 A. These are larger buildings, building A and building B.

23 Building A is the guard house, and building B is the

24 administration building.

25 Q. That is just an enlargement of two of the buildings on

Page 185

1 the model?

2 A. That is correct.

3 Q. Made at the scale of -- how much bigger are they? 5, 6,

4 7?

5 A. Yes, I think so.

6 Q. That is not important.

7 A. I did not make them by myself, so I do not know.

8 Q. These are just bigger models of two of the buildings?

9 A. Of the buildings on the model.

10 Q. Very good indeed. Now we will see if the camera is

11 ready to -- does it work now? Fine. Then I will ask

12 you, Mr Beelen, having in mind that we have shown the

13 sketches, having in mind that we have looked at the

14 pictures, now describe the model for us again, tell us

15 what is what on the model?

16 A. The model shows us the complete military camp, as we saw

17 it down in Celebici. Every building which we saw is on

18 it, every hill we saw is on it, every hole we saw is on

19 it.

20 Q. And will you now, starting from the entrance, go through

21 the different buildings?

22 JUDGE KARIBI WHYTE: Excuse me, it is not appearing on the

23 screens, is it?

24 MR OSTBERG: Is it there?

25 JUDGE KARIBI WHYTE: Everyone is using the video monitor,

Page 186

1 are they?

2 MR OSTBERG: Now we all have it on our screens? Thank you.

3 Then I will ask you to proceed in this way, that you

4 start from the entrance gate and go through the

5 building. When you do it, I would be glad if you also

6 give the names you have given them beforehand and the

7 numbers that appeared on these different buildings.

8 Will you please do that for us?

9 A. Yes, I will.

10 Q. And then you can just use the camera and the camera

11 operators as your pointer, thank you.

12 A. I will. At the right on your monitor you see the main

13 gate, and --

14 Q. Up in the right corner?

15 A. Yes, there it is. When you enter the gate, then you see

16 the guard house on your left, marked as building A, and,

17 when we turn to the left, we come to building B, and on

18 site of it, building C.

19 Q. Can you name them now from how they were named when you

20 were there also?

21 A. Building B was the administration building. Building C

22 was what they first called dispensary, but what was a

23 store house for pumps.

24 Q. Thank you.

25 A. At the other side of the monitor you see building D.

Page 187

1 Building D was just a hangar for repair of motor

2 vehicles.

3 Q. Yes?

4 A. Then we go to the left, to the long road, and then you

5 go up.

6 Q. That follows the fence? Does it go along the fence?

7 A. No, it just goes here.

8 Q. But this road you just said we were following, is that

9 also going along the fence?

10 A. That is correct.

11 Q. Thank you.

12 A. We see a large grey hole in the hill. It is an oil

13 filtering installation, where all the rainwater is

14 coming together and they filtered oil out of it, so that

15 the water is fresh again.

16 Just above it you can see two holes in the hill.

17 They were the guard posts, the shelters, which we saw

18 before on photo.

19 Then the first building you see is hangar 6,

20 building A.

21 Q. Building E?

22 A. Building E, I am sorry.

23 Q. Building E?

24 A. Building E.

25 Q. And that was number?

Page 188

1 A. Hangar number 6. Behind it is building F, hangar number

2 21, and along it, it is the railway from the entrance of

3 the camp to the oil storage, gas oil station.

4 Higher up, you can see building G and building H.

5 Q. And we have it focused so we can read the G, fine.

6 A. Building G.

7 Q. That is G, yes. Did that have another number also,

8 building G?

9 A. Building G was also hangar number 6, 6B. Above it you

10 can see building H, hangar number 20, as the local men

11 called them. Then you can go further. At the end of

12 the total military camp you can see building J, hangar

13 number 11.

14 Q. Now we have gone all the way, all the 485 metres from

15 the entrance gate to the end of the facilities?

16 A. Yes, from exactly 485 metres from point 2 till point 3,

17 and point 3 was a point given by us just in the left

18 corner of your monitor. It is not on the model.

19 Q. Can we focus on this grey thing?

20 A. The grey thing is building K. It is the --

21 Q. Concrete?

22 A. The concrete massif with the cover on it and oil, the

23 air pipes.

24 Q. And in the background we see the fence at the end of the

25 facility?

Page 189

1 A. That is correct.

2 Q. Thank you.

3 A. Then along a wall, a stone wall, we go down --

4 Q. I saw something at G, a letter in the corner, if you can

5 go back a little bit, and more, there, up now in the

6 centre of the --

7 A. That is of no importance.

8 Q. It is nothing, nothing of importance?

9 A. It is the north arrow.

10 Q. The north?

11 A. Arrow.

12 Q. Okay. Go on, please.

13 A. Then we go down, and there is an entrance to two

14 buildings, building L, hangar number 7, which are

15 partially in the hill.

16 Q. And this is number L, and both are L?

17 A. Both are L.

18 Q. So that is an open square in the middle, and there are

19 two hangars, both with the name of L?

20 A. Yes.

21 Q. Thank you.

22 A. And there is building M, the locals also called it

23 hangar number 6, so there were three of them.

24 Q. Three hangar number 6, and this is the M, thank you.

25 A. That was just a house of no importance. Here was an

Page 190

1 underground shelter, a cellar with a very massive door

2 in it, I think kind of atomic shelter, and then you come

3 to building N. That is the gas oil station. It is the

4 end of the railway, and then building O, tunnel 9.

5 Q. This is tunnel 9?

6 A. Yes.

7 Q. And the letter O on it?

8 A. Yes.

9 Q. And can you also move us to where this tunnel ends?

10 A. If you go up, you see there the little grey square on

11 it, and that is the end of the tunnel. Then alongside

12 the wall, back to the entrance of the --

13 Q. Then we have made a tour of these premises?

14 A. Yes, that is correct.

15 Q. I have just a few more questions. Can we also have a

16 look at the inside of some of these buildings?

17 A. Yes.

18 Q. Which ones?

19 A. We can have a look on the inside of building A, building

20 B --

21 Q. We had better start with building A, then. Building A?

22 A. Building A.

23 Q. So we can take off the roof?

24 A. You can take off the roof. Not building A, building B,

25 sorry.

Page 191

1 Q. You lift it, and let us have a look with the camera into

2 it. That we do now.

3 A. You can look inside the administration building.

4 Q. Other buildings also where we can have a look into them?

5 A. I think building C.

6 Q. If the camera can find building C. That is what you

7 were told was called the infirmary?

8 A. The infirmary, that is correct.

9 Q. Good. Are there other buildings also to look into?

10 A. Building E and building O.

11 Q. Building E, please, if we start with building E, then.

12 And the last one?

13 A. And the last one, building O, the tunnel down there.

14 Q. Thank you. Now we have a look into the tunnel?

15 A. That is correct.

16 Q. And if you can move it a bit, the camera a bit, so we

17 see the ending of the tunnel also, thank you. There we

18 see it with the soil taken away, and look into the

19 tunnel?

20 A. And the little square at the right is the manhole which

21 goes up to the top of the hill.

22 Q. Yes. Is that it with the model?

23 A. That is it with the model.

24 Q. I thank you very much. We have also these two other

25 things, the big ones, as you just said, also was made

Page 192

1 by -- made also by the Dutch military?

2 A. I do not know. I did not see them before.

3 Q. You have never seen the big ones before?

4 A. No.

5 Q. So you have nothing to do with them at all?

6 A. No, sir.

7 Q. Then I will have no questions to you concerning these

8 bigger models. That concludes my questions to you

9 concerning the model.

10 Now we have one thing left to do, to ask you to

11 do, and that is to enter and have you authenticating, to

12 start with, a video tape. Did you take a video during

13 your visit there?

14 A. We made a video tape during our visit, and actually it

15 belongs in two parts. One is the outside of the total

16 military camp, and the other part of the video shows all

17 the buildings from the inside.

18 Q. Did you take it you yourself?

19 A. I took it myself.

20 Q. Could we ask the computer assistants to just show a

21 piece of it so you can tell us if it is the correct

22 one?

23 A. That is the one.

24 Q. You have just seen the title so far.

25 A. I recognise it.

Page 193

1 Q. You do, and let us have another few seconds, so you are

2 dead certain that it is the right one.

3 A. Yes.

4 Q. No problems?

5 A. No problems.

6 Q. That is the one you took?

7 A. That is the one I took.

8 Q. Thank you.

9 A. It is the same round as we made with the photos.

10 Q. Just a minute. Will you please stop the video so we can

11 have it from the beginning? I will ask now to -- you

12 have authenticated it, and I will ask to enter this

13 video?

14 JUDGE KARIBI WHYTE: Before we get to that stage, I remember

15 you were talking about the fencing of the building,

16 anything like the fencing?

17 MR OSTBERG: There are fences around it, and I think I have

18 asked a question about the fence, and we have seen the

19 fence around the facility. We see it on the model, and

20 I asked sometimes if that is the fence in the

21 background. Now I will ask you, was there an all-around

22 fence around this facility?

23 A. On the other side, you can see a gate, and here was the

24 hill, and there was a fence alongside of it.

25 Q. And was this fence going all around the facility?

Page 194

1 A. Just to the entrance of the camp and at the back side.

2 Q. And it was not when you were there surrounding the whole

3 facility? Was it surrounding the whole facility, this

4 fence? Did it go the whole way around the compound?

5 A. No, it was not. The gate was all around.

6 Q. The gate is where we have the entrance?

7 A. It is the main gate.

8 Q. Then we have the fence?

9 A. The fence, yes, it was all around the camp.

10 Q. Was this also scale-wise made on the model?

11 A. That is correct.

12 Q. Can you estimate the height of the fence? Can you tell

13 us how high the fence was?

14 A. I think about 2 metres.

15 Q. 2 metres?

16 A. Yes.

17 Q. Were there some barbed wire on the top?

18 A. No, there was not.

19 Q. Just a fence around 2 metres high, all around the

20 compound?

21 A. All around.

22 Q. Thank you very much.

23 Now, your Honours, I would like finally with

24 Mr Beelen to show the video, and if we can ask for the

25 dimming of the lights and we can roll the video. Before

Page 195

1 you start, I will ask Mr Beelen, there is no sound on

2 this video, so I will ask Mr Beelen to comment on it,

3 when the video camera is going around the compound. Can

4 I ask the computer people to help us with that, or do we

5 first have to mark this for identification as number 3?

6 Thank you.

7 A. This is the main gate of the camp and at the right you

8 can see the guard house. From the guard house on, we go

9 to building B, the administration. At the end you can

10 see building D, at the right building C. That is

11 building D again, and this is a general view at the end

12 of the camp, building C. That is the main road from

13 point 2 to point 3 at the end of the camp.

14 Q. Speak up a bit, a bit louder, Mr Beelen, please?

15 A. This is a view of the gas oil station, taken from the

16 road, the train on the railway and building C again.

17 Here on your right you can see the water filter

18 installation halfway up the road and on the top of the

19 hills are two holes which were used. That is the water

20 filter installation again. That is a view of the

21 outside of the camp, two hangars, A, F and G. These are

22 the two checkpoints at the top of the hill. One is

23 nothing more than just a hole in the ground, and in this

24 one are remains of a kind of a shelter.

25 This is building E, hangar number 6. From there,

Page 196

1 building F, hangar number 21. This is the entrance of

2 the railway on the camp, and it goes on behind building

3 F. It is building G, hangar number 6B, and building H,

4 hangar number 20.

5 That is checkpoint number 3 you can see. The

6 house was outside the camp and had nothing to do with

7 it. That is hangar number 11, and building K with the

8 air pipes on it.

9 This is a view to the entrance of the camp, and

10 the direction of it, a little bit higher up, and also a

11 view to the direction of the gate. The village downside

12 the camp, and a view to building 11, building G. These

13 are building L, the underground warehouses, called as

14 building 7. Then we can see building M, another hangar

15 number 6. And the entrance of an underground cellar.

16 This is the gas oil station and the railway to the

17 end of the camp. The gatehouse and the administration

18 building to the right. The gas oil station again.

19 These are the air pipes in the manhole above tunnel 9.

20 That is the manhole.

21 Here in the wall is the entrance of tunnel 9.

22 There is a little stair downstairs and then it goes

23 underground.

24 And the wall which leads to the main gate. Here

25 you can see the new cement with which they repaired the

Page 197

1 wall, and the main gate again.

2 Now we are going inside the buildings. First, the

3 reception, the guard house. This is the entrance, and

4 then directly a toilet room. A door with an iron gate

5 which leads to a weapons store room, and the room from

6 the guard, where he sits and can see the gate.

7 Behind was a room, another door, which leads to

8 the weapon room in the guard house. It is the outside

9 of building A.

10 Building B, the administration. That is the main

11 entrance, and a back-door. You go in. To the right is

12 the cantina. This door leads to showers. There were

13 actually two showers in the other room. The first one

14 here to the left, and the second behind it.

15 Then the first room to our right is a toilet, and

16 the other one is a toilet too.

17 This is a room which they were painting, and there

18 was no specific name on it. This is the room of the

19 commander, and there is a desk and some chairs, and the

20 last room to the right is the room of the technician.

21 This is a door which gives you a view to the guard

22 house. Then opposite the room of the technician is the

23 radio room, and then, at the right, two rooms with a bed

24 in it. This is the first one, and here is the second

25 one.

Page 198

1 The main entrance and at the right, the cantina,

2 and behind it was a little kitchen.

3 Building C, the dispensary, the storage for water

4 pumps.

5 Q. Could you see what number that was on that building? I

6 could read a sign there?

7 A. I could not read it. There we go.

8 Q. Can you focus? Okay, leave it. Please go on.

9 A. It is the inside. All materials for the fire brigade,

10 or something, I think, and a bed.

11 Building E, hangar number 6, storage of oil and

12 fuel barrels.

13 Building F, there is some materials in it for

14 transportation of oil.

15 Building G, they were not specifically meant, so

16 there were no shots from the inside.

17 Building J at the end, and then building K, the

18 manhole. There is the metal cover on it, and the stair

19 downstairs with the steps and the oil pipes.

20 Hangar number 7 and another hangar number 6,

21 building M.

22 The atomic cellar, underground in the hill.

23 And the gas oil station, building N.

24 And then we will go inside tunnel 9, building O, a

25 little stair downstairs, and then the entrance of the

Page 199

1 tunnel.

2 At the end of the tunnel was a little bend to the

3 left, and then the door to the operation room and to the

4 right, to the pump rooms, very heavy metal doors in it.

5 This is the operation room. Behind it was an empty room

6 with nothing in it.

7 There is the door to the pump room. Here at the

8 end you have to climb over some pumps, and then there is

9 a little hole which gives you entrance to the manhole,

10 which leads up to the hill above the tunnel. There is a

11 staircase in it, and it stops at the upside of it.

12 That was the video.

13 Q. Thank you very much, Mr Beelen. Just a few questions.

14 How long did you -- how much time did you spend in

15 Celebici, this compound, to make this video and measure

16 and make sketches, et cetera?

17 A. We were two days in the camp. The first day we were

18 there to take our photographs and make other

19 measurements, and the second day we were there, we made

20 the photographs and the video tapes from the inside of

21 all the buildings.

22 Q. Were you guided around by the military personnel now in

23 this compound?

24 A. There was constantly military walking with us. They

25 were not very happy, but they were willing to

Page 200

1 co-operate.

2 Q. Did they give you any information as to what this

3 compound had been used for before they arrived?

4 A. No, they did not.

5 Q. So what they gave you were their names or letters or

6 descriptions of the buildings?

7 A. Sometimes, when we asked for it, but there was an

8 enormous problem with the language.

9 Q. I can understand that.

10 A. We only had an interpreter only one day, and the second

11 day we were just by ourselves, and we speak with hands

12 or feet.

13 Q. So you spent two days there?

14 A. Two days in the camp.

15 Q. I thank you for this. Is there something else you would

16 like to comment on your own, something I have forgotten

17 to ask you about, that you would convey to the court?

18 A. No, sir, I do not.

19 Q. Then I finish my examination of Mr Beelen. Thank you

20 very much, your Honour.

21 JUDGE KARIBI WHYTE: Any questions from the defence?

22 Mrs Residovic, any questions?

23 MS McMURREY: Your Honour, I believe we had decided that, as

24 we discussed yesterday, I would begin cross-examination

25 of this witness, but, as we confirmed yesterday, that

Page 201

1 does not mean that the other defendants waive their

2 right to cross-examine, if that is acceptable.

3 JUDGE KARIBI WHYTE: Yes, you are free.

4 MS McMURREY: Thank you.

5 MR TAPUSKOVIC (in interpretation): That is not how I

6 understood it.

7 JUDGE KARIBI WHYTE: You opt out from the arrangement? You

8 are not within the arrangement?

9 MR TAPUSKOVIC (in interpretation): I do not know about this

10 agreement.

11 MS McMURREY: I am sorry, I mis-spoke, your Honour. I am

12 speaking for three defendants, and Mr Tapuskovic is

13 certainly free to go before me, if he wishes. That is

14 fine. Thank you.

15 JUDGE KARIBI WHYTE: Yes, Mr Tapuskovic, you can

16 cross-examine.

17 Cross-examined by MR TAPUSKOVIC

18 MR TAPUSKOVIC (in interpretation): I am only interested in

19 two things, only two things: whether the witness had a

20 mission, what was his mission, whether to take

21 pictures -- no, whether he got a mission, that is a job

22 what to do there on the ground.

23 A. My job was just to make video film, just to take

24 photographs, and take measurements from everything on

25 the camp, from which we can create a model, and, if

Page 202

1 there were some signs, do some forensic investigation

2 within the framework.

3 Q. Were you given instructions which specific buildings to

4 record where these people who were imprisoned in the

5 camp were housed?

6 A. They gave me a list of some specific buildings, building

7 A, building B, hangar number 6, which was building E,

8 and tunnel 9, were specific buildings to which we had to

9 pay very much attention, and there were two manholes,

10 building K and one above tunnel 9.

11 Q. Thank you. Who gave you this assignment?

12 A. The assignment was given by the Chief of Investigation

13 of the section of the ICTY.

14 Q. I would like for you to show, to indicate the buildings

15 that you were told may be the most interesting for this

16 case, so that we could see them. Do you know in which

17 buildings these people were imprisoned in?

18 A. They told me the people were kept in hangar number 6,

19 which is building A. In building A there was a guard

20 room, there was a prisoner kept in what was now the

21 weapon room, and in tunnel 9.

22 He further told me there was a statement of

23 someone, of a witness, who said, "We were kept in the

24 manholes".

25 Q. We saw all this, so now I would request if we can now

Page 203

1 see those buildings again, so that, if you could point

2 out where these people were kept. Maybe we would have

3 additional questions after viewing these images again.

4 And also I would like to know exactly who told him that

5 people were imprisoned in those specific places.

6 A. I was told by the Chief of the Investigation, and they

7 had statements of some witnesses, and they made for

8 myself a sketch with all the buildings on it, and he

9 said, "We were kept there, we were kept there and we

10 were kept there", and they pointed to the buildings as

11 we see down there.

12 Q. I would respectfully request to go back to the video

13 tape and view it again, if the technician can go back to

14 those places where all the people were kept.

15 JUDGE KARIBI WHYTE: Actually, are you disputing his

16 instruction that that was what he was told?

17 MR TAPUSKOVIC (in interpretation): What I am disputing is

18 this, that he was sent there and should not have been

19 told to go to specific places, in other words, not to

20 pay any special attention to any specific buildings. In

21 other words, I think that an expert should be directed

22 not to focus on any specific things, particularly, I

23 think --

24 JUDGE KARIBI WHYTE: Actually, you asked him specific

25 questions about what he was asked to do, and he has told

Page 204

1 you what he was asked to do. I do not see how you

2 follow that up any longer.

3 A. I understand his question, your Honour. We had an

4 investigation in every building on the camp, but, when

5 there was nothing to see in the other buildings, we did

6 not mention them in our report. So we just mentioned

7 the specific buildings from which we heard there were

8 statements about it.

9 MR TAPUSKOVIC (in interpretation): For now, this is

10 satisfactory for me as an answer. Thank you.

11 JUDGE KARIBI WHYTE: Thank you very much. Miss McMurrey?

12 Cross-examination by MS McMURREY

13 MS McMURREY: Yes, your Honour, may I proceed? Mr Beelen,

14 we have never met before, have we?

15 A. No, we did not.

16 Q. And you claimed -- you did sign a sworn statement for

17 the prosecution to be included into evidence that they

18 present against Mr Landzo, did you not?

19 A. I do not know who is Mr Landzo.

20 Q. Mr Landzo is defendant number 4.

21 A. Okay.

22 Q. You signed a sworn statement for the prosecution, did

23 you not?

24 A. I do not understand your question.

25 Q. You have a signed statement here, sworn --

Page 205

1 A. Yes, that is correct.

2 Q. -- for us by the prosecution against Mr Landzo, is that

3 right?

4 A. Okay, that is right.

5 Q. And, in fact, when you said in your sworn statement that

6 you were requested by the Chief of the Investigation

7 Section of the International Criminal Tribunal, what you

8 really meant was that you were hired by the prosecution,

9 did you not?

10 A. No, I was not. I was hired by an investigation team.

11 Q. But the investigation team for the prosecutor, right?

12 A. Yes, for the prosecutor.

13 Q. So you were actually hired by the prosecution, then?

14 A. Okay, if you want to say so.

15 Q. So you are not an independent body going out there to do

16 an independent investigation of this; you were directed

17 by the prosecution as to what to do, were you not?

18 A. They told me to look at everything and to investigate

19 the whole area and see what we can find.

20 Q. In truth, you went over there with prosecutors, did you

21 not?

22 A. There were some of us.

23 Q. In fact, which prosecutors travelled with you?

24 A. Miss Teresa McHenry.

25 Q. Was there another prosecutor with you?

Page 206

1 A. No, ma'am.

2 Q. When Miss McHenry was with you at Celebici, she directed

3 you as to what photographs they wanted and needed for

4 this case, did she not?

5 A. No, she did not. She told us just what were in the

6 statements about it, and then we did our job all by

7 ourselves.

8 Q. But she had given you a written statement as far as what

9 they needed?

10 A. No, we did not get a written statement. They only tell

11 us "This building and that building is particularly

12 important, because we have statements about it".

13 Q. So then she did direct you, she told you those buildings

14 were most important to support our statements, did she

15 not?

16 A. That is correct.

17 Q. So then, what you said before that, that she did not

18 direct you, was not right, was it?

19 A. Okay.

20 Q. You stated in your rendering that the camp has a total

21 area of about 50,000 square metres; is that right?

22 A. That is right.

23 Q. Maybe even 55, more than 50,000 square metres, right?

24 A. Yes.

25 Q. Of that, you took the dimensions of just a few of the

Page 207

1 buildings, right?

2 A. Yes.

3 Q. In fact, if you took the dimensions of hangar 6, and

4 building number 22, and tunnel 9, the ones you focused

5 on, the combination of all of those dimensions are

6 really less than 5 per cent of the whole camp, are they

7 not?

8 A. That is correct.

9 Q. So the rest of the camp was really used as a storage

10 facility, was it not?

11 A. Yes.

12 Q. Even if you could agree that maybe some people were kept

13 in the buildings that they have statements for, right?

14 A. That is correct.

15 Q. In fact, you went there and you know that in 1996, when

16 you were there, it was used for a storage facility,

17 right?

18 A. I think so, I did know.

19 Q. I think you stated in your statement that it was used

20 for a warehousing storage facility?

21 A. Yes, at the moment we were there, yes.

22 Q. And you were also told that in 1992 the main purpose of

23 this facility was a storage facility, was it not?

24 A. That is correct.

25 Q. I want to go to your little booklet that you prepared as

Page 208

1 evidence to introduce to this Tribunal. You did prepare

2 this, did you not?

3 A. Yes, I did.

4 Q. In fact, you prepared it based on the direction of the

5 prosecution, did you not?

6 A. Correct.

7 Q. And did you work hand in hand with the prosecution in

8 creating this book?

9 A. No, we did not.

10 Q. You mean you knew what building was called what, and

11 what to label what areas, without their assistance?

12 A. That is correct.

13 Q. You did this totally independently?

14 A. With my colleague.

15 Q. I notice that, on six of the pages, and six of your

16 drawings, you, yourself, responsible for creating this

17 document, referred to this as the "Celebici Bosnia

18 former concentration camp", did you not?

19 A. That is correct.

20 Q. That is not very independent, is it?

21 A. It was what they told me the first time we met here.

22 Q. And when you say "they", you mean the prosecutor told

23 you those words?

24 A. No, not the prosecutor, the Chief of Investigation.

25 Q. The Chief of Investigation for the prosecutor's office,

Page 209

1 right?

2 A. Okay.

3 Q. So, therefore, it was the prosecution's office who told

4 you that this was a former concentration camp?

5 A. They told us it was a camp, military camp, where they

6 kept prisoners.

7 Q. And you came up with that term all by yourself?

8 A. No, and the prison took form as a concentration camp.

9 That is what they told me.

10 Q. So you used the terms that the Prosecutor gave you to

11 use, right?

12 A. I do not know if the prosecutor exactly gave the name.

13 Q. One more time, you did not come up with it by yourself,

14 did you?

15 A. I do not think so.

16 Q. I just got this out of my briefcase at the break. I do

17 not know if the court will allow me to use this. This

18 is a laser pointer. I think I can make a mark on

19 there. Can the court see that, the little red dot? Can

20 you see it?


22 MS McMURREY: It is a laser pointer. Now I have lost it. I

23 am pointing to tunnel 9 right now. Can the court see

24 that?


Page 210

1 MS McMURREY: I want to ask some questions of accuracy,

2 number one, on -- see the building that is marked -- it

3 is number 22, the dispensary or infirmary, that you

4 labelled it?

5 A. Yes.

6 Q. Now you did not take any photographs from the back of

7 number 22, did you, toward hangar number 6, did you?

8 A. No, I did not.

9 Q. And the prosecutor -- in fact, you were very careful

10 when you were making your video tape and taking your

11 photographs that you did not get a direct photograph

12 from number 22 to number 6, were you not?

13 A. When you are in number 22, building C, you cannot see

14 hangar number 6. There is a hill.

15 Q. Thank you very much, but that elevation of that hill,

16 between 22 and 6, does not reflect the actual height of

17 that hill, does it? The hill is actually higher than

18 that, is it not?

19 A. No, the hill is not higher. The model is real good.

20 Q. But you do testify before this court that you cannot see

21 from building 22 to hangar 6, can you?

22 A. Building C and hangar 6 is down there.

23 Q. And you cannot see -- if you were standing in the back

24 of building number 22 and you wanted to see hangar 6,

25 you could not see it, could you?

Page 211

1 A. There are several buildings number 6. There is one

2 here, there are two down there. From there on, you can

3 see this one, but not that one.

4 Q. Not the hangar number 6A?

5 A. No, that is correct.

6 Q. Thank you very much. You also drew your photograph, or

7 your rendering as -- I think you have it as page 3. We

8 have it as page 1. You have the railroad tracks, and if

9 we could refer to that, I do not remember what the

10 prosecutor called it. I would pull up his photograph,

11 but on page 3, the whole rendering of the camp on

12 building C, which is the infirmary, and tunnel 9, this

13 drawing and that model do not show that the railroad

14 tracks run between there, do they? The tracks stop. In

15 fact, you have it where you would be able to see from

16 tunnel 9 to infirmary number 22, do you not?

17 A. I am sorry, I do not understand your question.

18 Q. Your Honour, may I approach the model?

19 JUDGE KARIBI WHYTE: Yes, you are free.

20 MS McMURREY: Thank you. In the actual camp -- and I have

21 video tape to show you, and photographs also -- the

22 tracks actually run further down here, do they not,

23 because, when you are at building number 22, the tracks

24 are in between you and tunnel 9, are they not?

25 A. I do not think so.

Page 212

1 Q. Do you remember that there were tank cars here?

2 A. Yes, there were.

3 Q. When we were at Celebici?

4 A. Yes.

5 Q. And that, if you tried to look from here to tunnel 9,

6 you could not see tunnel 9, could you, because of the

7 tank cars?

8 A. No, tunnel 9 is a little bit in the wall.

9 Q. Yes, but these tracks were between building number 22

10 and tunnel 9, were they not?

11 A. I do not remember. It is possible. I do not think so.

12 Q. So you are testifying that this is accurate, and, if I

13 show you a video tape, then you might change your mind?

14 A. I do not know. I did not see the video tape.

15 JUDGE KARIBI WHYTE: Any more questions?

16 MS McMURREY: Yes, your Honour, I do have a few more

17 questions.

18 You stated in your direct examination that the

19 situation you saw in October 1996 -- no, you said "the

20 situation we saw". When you are talking about "we", you

21 are talking about you as part of the prosecution at that

22 time, right?

23 A. No. When I am talking about "we", it is about me and

24 about Mr Post, my colleague.

25 Q. But you were there with the prosecution?

Page 213

1 A. Yes, but Mr Post and me made the report, and no one

2 else.

3 Q. You also have a photograph, I believe it is the last

4 photograph in your book, I do not remember the number of

5 it.

6 A. Number 52.

7 Q. Photograph number 52. In your direct examination, you

8 stated that: "I took this photograph because it showed

9 repairs on the wall from damage on the wall, which could

10 have been caused by projectiles", but you have no

11 earthly idea what caused that damage on the wall, do

12 you?

13 A. Well, most probably it is that they were made by

14 bullets.

15 Q. Your Honour, I object to speculation. Do you have any

16 personal knowledge of what caused that damage on the

17 wall?

18 A. Yes, it was a bullet.

19 Q. It was a bullet. Do you know whether it was in 1992 or

20 1993 when the Croats were --

21 A. No, I do not.

22 Q. So you have no idea when that bullet occurred. It could

23 have occurred in 1996, could it not?

24 A. It could be.

25 Q. If it was a bullet at all?

Page 214

1 A. It is a bullet.

2 Q. Your Honours, right now I would like permission to show

3 part of our video tape just to show inaccuracy of the

4 model, and it is not very long, if you would allow me --

5 JUDGE KARIBI WHYTE: No, I do not think that is right. I do

6 not think so. When you introduce it in evidence, you

7 can do that.

8 MS McMURREY: We are using it for impeachment purposes for

9 the model itself. It is not going to be used for

10 evidence.

11 JUDGE KARIBI WHYTE: I think that is not correct.

12 MS McMURREY: I would like to --

13 JUDGE KARIBI WHYTE: You can fault him on his own model, if

14 you can. I think that would be correct.

15 MS McMURREY: I can describe it all day long, but the best

16 evidence to show that it is inaccurate would be video

17 tape or photographs.

18 JUDGE KARIBI WHYTE: It depends on the scale on which this

19 model is based. He has based his model on a particular

20 scale, and I think the accuracy of that scale depends on

21 what it was used upon. So, if you are able to fault it

22 on that, you do not bring a video. He also has his own

23 video. So I do not think that is the basis for faulting

24 it.

25 MS McMURREY: I would like to go back to another

Page 215

1 photograph. I believe you have a photograph of hangar

2 6, where you claim there were -- I think it is number

3 31, photograph number 31. You claim that those were old

4 bullet holes in the side of hangar number 6, do you not?

5 A. Yes, that is correct.

6 Q. But in truth those bullet holes do not go all the way

7 through, do they?

8 A. The three in the door did not go through. The other one

9 will.

10 Q. You said that it did go through?

11 A. Some of them went through, but there were only three in

12 the door, and they did not go through.

13 Q. On hangar 6, are you claiming that any of the bullet

14 holes went all the way through?

15 A. Five bullet holes are outside the door, and you can see

16 them in photograph 31. Three bullet holes in the door,

17 however, did not perforate the door.

18 Q. So none of the bullet holes perforated the door all the

19 way through, did they?

20 A. Some did.

21 Q. You are claiming that some did?

22 A. Yes.

23 Q. Your Honour, at this time I would like to play just the

24 video tape that shows, from both sides of the door, that

25 there are no holes going all the way through, and the

Page 216

1 relevancy of this is that some of the witness statements

2 claim that they could see out, and it is very relevant

3 to our case to prove that these holes were not there,

4 and that they did not go all the way through, as he is

5 claiming.

6 A. The three bullet holes in the small entrance did not

7 perforate the door on that place, but there were other

8 holes in the larger door, and they did go through.

9 Q. You are claiming they went all the way through?

10 A. Yes.

11 MS McMURREY: Would your Honour allow to us play the video

12 tape, or would you rather us wait until we present the

13 defence case? It is used for impeachment purposes. He

14 is claiming that his report is correct. We are claiming

15 it is not correct, and it is the basis for the creation

16 of this model.

17 MR OSTBERG: I object, your Honour. The model has no bullet

18 holes at all. The defence counsel likes to impeach the

19 model, but I claim that there are no bullet holes to be

20 seen in the model at all.

21 MS McMURREY: We are attacking the --

22 JUDGE KARIBI WHYTE: The photographs?

23 MS McMURREY: The photographs and the quality of the

24 investigation, the accuracy of the investigation.

25 JUDGE KARIBI WHYTE: I think there are two creations here.

Page 217

1 There is the model, and then there are the photographs.

2 MS McMURREY: We are also attacking --

3 JUDGE KARIBI WHYTE: Which of them are you actually

4 challenging?

5 MS McMURREY: We are challenging the photographs first.

6 JUDGE KARIBI WHYTE: His photographs?

7 MS McMURREY: Yes, secondly, we are challenging his

8 testimony. Thirdly, we are challenging the model which

9 is based on his investigation. If his investigation is

10 not accurate, then it is derivative of his testimony,

11 and his investigation.

12 JUDGE JAN: The model may be correct, but his opinion may

13 not be correct, so it has nothing to do with the model.

14 MS McMURREY: Your Honour, I will ask one more question, and

15 then I will pass it to my colleagues, if you do not

16 mind.

17 Mr Beelen, you have never testified for the

18 defence before, have you?

19 A. No, I did not.

20 Q. In fact, you have always testified for the prosecution,

21 whether it is Dutch or International Tribunal; is that

22 correct?

23 A. No, I did not.

24 Q. Is this your first time to testify?

25 A. It is my first time.

Page 218

1 MS McMURREY: I pass the witness, your Honour.

2 Cross-examination by MR MORAN

3 MR MORAN: May it please the court, Officer Beelen, my name

4 is Tom Moran, and I represent Mr Delic. Since you are

5 testifying in English, which I understand is not your

6 native language, if you say something I do not

7 understand, will you stop me?

8 A. I will.

9 Q. Thank you very much. At the beginning I would like to

10 direct your attention to the model. Specifically I

11 would like to direct your attention to the very end of

12 the railroad tracks, near building C. Does that model

13 show at the end of the tracks there is a barrier of some

14 kind, it looks like it is made out of a couple of pieces

15 of steel to stop trains from going through?

16 A. There was just -- as you can see on the model such a

17 thing -- I do not know how you call it in English.

18 Q. What does the model show?

19 A. A stop for the train.

20 Q. How is that stop constructed on the model?

21 A. How was it constructed?

22 Q. On the model, what does it look like?

23 A. Like some wood thing.

24 JUDGE KARIBI WHYTE: Actually in your interests, in what

25 language do you speak most accurately?

Page 219

1 A. Actually in Dutch.

2 JUDGE KARIBI WHYTE: So you can speak in Dutch and it could

3 be translated, when you are in difficulty, as I discover

4 you have a lot of difficulty expressing yourself.

5 MR MORAN: May I continue, your Honour?

6 JUDGE KARIBI WHYTE: Carry on. Let us see how far we can

7 go.

8 MR MORAN: Let us see how we can do, your Honour. In fact,

9 at the end those are massive concrete blocks well over a

10 metre tall, is that correct?

11 A. Could be, we did not pay very much attention on it.

12 Q. Let us take a look at some of your pictures. Let us

13 take a look at picture 18, for example, your picture, if

14 we could put it up on the screens. If you look at that

15 picture, that is taken on the interior of a building,

16 correct?

17 A. That is correct.

18 Q. And, if you look out the window, you can see a massive

19 concrete structure of some kind, can you not?

20 A. Yes, I can.

21 Q. And on the other side you can see a railroad car?

22 A. Yes.

23 Q. Would that not lead you to believe that, instead of

24 having just a few pieces of wood there, that you would

25 have a large concrete structure of some type?

Page 220

1 A. I think that is.

2 Q. Let us look at your picture number 51, second from the

3 end. Do you see right of the end of that railroad car,

4 the other side of that massive concrete block?

5 A. Yes, it is.

6 Q. That is about, what, a metre and a half, a metre and

7 three-quarters high?

8 A. Yes, something like that, 1 metre 50, I think.

9 Q. And you could not see through that, could you?

10 A. I cannot.

11 Q. The same area of the model between building C and

12 tunnel 9, I believe you have it labelled O on the model,

13 there is no rise in the ground there, is there, no

14 significant rise in the ground between the two, is

15 there; is that correct?

16 A. Yes, it is a difference of about one or two metres in

17 height.

18 Q. In fact, in the real world it is a fairly significant

19 height, rise in height; is that correct?

20 A. Yes.

21 Q. But that is not reflected on that model, is it?

22 A. Not particularly, no.

23 Q. So that model is not accurate there, is it?

24 A. That is up to you.

25 Q. I am asking you, sir.

Page 221

1 A. I think it is a real good model, made from the

2 measurements we took.

3 Q. Let us talk about the measurements you took.

4 A. How we took --

5 Q. Let us talk about them for a second. You are a forensic

6 investigator for the Dutch police department; is that

7 correct?

8 A. That is correct.

9 Q. You are not a surveyor?

10 A. Pardon?

11 Q. You are not a surveyor?

12 JUDGE KARIBI WHYTE: You are not a surveyor?

13 MR MORAN: You do not, for a living, measure ground?

14 A. No.

15 Q. And determine how high in elevation?

16 A. No.

17 Q. And you did not do that?

18 A. I just make measurements for a drawing.

19 Q. And you make them so many feet that way and so many feet

20 that way?

21 A. And from building to building, and from point to point.

22 Q. And it does not make any difference to you whether the

23 ground is going up or whether the ground is going down,

24 does it?

25 A. That is why we made the video tapes, and the specialist

Page 222

1 from the Dutch army said we had enough from that, and by

2 that we can make a model.

3 Q. And you did not show in that video tape that was given

4 to the Dutch army the areas between what you labelled as

5 building C and what you labelled as building O, did you?

6 A. Yes, but they had drawings too, so they could see what

7 we meant with building O and what we meant with building

8 L.

9 Q. But did you give them something where they could tell

10 whether the ground went up or down?

11 A. No, just a video tape, and photographs.

12 Q. On direct examination, you testified, did you not, that

13 the camp was completely surrounded by a fence; is that

14 correct?

15 A. That is correct.

16 Q. And you testified further that it was not topped by

17 barbed wire, is that correct?

18 A. By?

19 Q. That it did not have barbed wire on top of it?

20 A. No.

21 Q. Is that correct?

22 A. That is correct.

23 Q. Have you looked at Prosecution Exhibit 3? Prosecution

24 Exhibit 3 is the video tape that you took.

25 A. Yes.

Page 223

1 Q. Is it not true that Prosecution Exhibit 3 shows on the

2 top of that fence a V, something like this, going up

3 both ways with barbed wire?

4 A. Could be, I do not know.

5 Q. Would you like us to run it for you so you can take a

6 look?

7 A. Okay.

8 Q. If we could. I want to fast forward it from the

9 beginning of Prosecution Exhibit 3. Could you back up

10 just a few frames? Stop, forward a little bit, a few

11 frames at a time, a little bit more. Keep going. Stop

12 there a second. Stop right there.

13 Officer, do you see the rise between the back of

14 that building there, and where the railroad tracks are,

15 the rise in the ground?

16 A. Yes, I do.

17 Q. That is a fairly substantial rise, is it not?

18 A. That is the wall you can see at the end.

19 Q. No, officer, directly behind the building?

20 A. Yes, but it is outside the camp.

21 Q. 2 feet behind the building, a metre behind the building,

22 2 metres. Take a look at the building, the right

23 building?

24 A. Yes, I see.

25 Q. Directly behind that, there is a rise in the ground. Is

Page 224

1 that correct?

2 A. Yes, that is correct.

3 Q. That is a fairly substantial rise, is it not?

4 A. Yes, a little bit.

5 Q. And is that reflected on your model?

6 A. It is.

7 Q. To that extent?

8 A. You can see it on the model, a little bit up.

9 Q. And since we are at the angle, that white building is

10 the back of building C in your model, is it not?

11 A. That is it.

12 Q. You testified to Miss McMurrey that the entrance to

13 tunnel 9, what you labelled building O, was not behind

14 the railroad track. Is that not correct?

15 A. When you are on this side of the building, you cannot

16 see the entrance of tunnel 9.

17 Q. You can? Where is it? Point it out to us.

18 A. I say you cannot see it. When you are on the other

19 side, you can see it.

20 Q. If you would roll the tape again, please. Forward the

21 tape. Stop. Back up a little bit. Stop. Officer

22 Beelen -- by the way, is "officer" a correct title for

23 you? Are you a police officer?

24 A. Yes, I am.

25 Q. So "officer" would be a correct thing to call you?

Page 225

1 A. Yes.

2 Q. Okay. Do you see the fence off on the far left of that

3 picture?

4 A. Yes, I do.

5 Q. Do you see those Vs?

6 A. Yes.

7 Q. On the top of the fence?

8 A. Yes.

9 Q. Do you see barbed wire going along there?

10 A. I think it is just a little part of the total fence

11 which has a little V on it.

12 Q. Okay. Thank you for the tape.

13 In building B there were some showers. Is that

14 correct?

15 A. That is correct.

16 Q. And in the room where there are the showers, there are

17 some windows in that room, are there not?

18 A. There are windows in it, yes.

19 Q. But they are very far off the floor, are they not?

20 A. Yes, they are up.

21 Q. For example, if I were standing there, I could not look

22 out the window, could I?

23 A. I think you can. When you look at photo 11 on page 15,

24 you can see the windows, and I think you can look

25 outside of them. They are a little bit higher up, but

Page 226

1 you can look.

2 Q. How about photo 13? That is the same room, that is the

3 inside of the room, is it not?

4 A. Photo 13?

5 Q. I believe it is photo 13.

6 A. Yes, that is correct.

7 Q. About how far off the floor is the bottom of that

8 window?

9 A. I think it is about 1.50, 1.80.

10 Q. So if someone, say, Miss McMurrey's height, if

11 Miss McMurrey could just stand up, if she were standing

12 by that wall, could she see out of the window, do you

13 think?

14 A. Just a little bit, I think.

15 Q. It would be difficult, though, would it not?

16 A. It could be difficult.

17 Q. Let us go back to what you call, what is it, building

18 C?


20 MR MORAN: Yes, your Honour?

21 JUDGE KARIBI WHYTE: I think we will have to adjourn and

22 continue tomorrow morning.

23 MR MORAN: Your Honour, if I could have two or three more

24 minutes, I think I could finish up.

25 JUDGE KARIBI WHYTE: I grant you just that.

Page 227

1 MR MORAN: Thank you, your Honour, I appreciate it.

2 In building C, the windows in the back, take a

3 look at picture 26, for example, and picture 25?

4 A. Yes.

5 Q. Some of those windows you can see through and some you

6 cannot see through, right?

7 A. That is correct.

8 Q. And, in fact, the windows you can see through look like

9 they have been installed after the building was built,

10 do they not?

11 A. Please say it again.

12 Q. The windows that you can see through appear to have been

13 installed after the building was built, do they not, as

14 a replacement for some other windows, perhaps?

15 A. I cannot answer that question, I do not know.

16 Q. You also said that the military were constantly present

17 while you were going through the camp?

18 A. That is true.

19 Q. The Bosnia-Herzegovina military?

20 A. That is true.

21 Q. You said that they were not happy you were there. Is

22 that not right?

23 A. That is true.

24 Q. Are you familiar with the Dutch military?

25 A. I served in the army when I was a younger man, and that

Page 228

1 is all.

2 Q. Do you know if the Dutch military would be happy if a

3 police officer from, say, New York City, was going

4 through one of your important military installations?

5 A. I do not think so.

6 Q. So it is not unusual?

7 A. No, it is not, and we accepted it. They were very

8 curious what we did.

9 Q. I pass the witness, your Honour.

10 MR OSTBERG: Please, your Honour, grant me two questions in

11 rebuttal, just two questions.


13 Re-examination by MR OSTBERG

14 MR OSTBERG: Thank you. Did, Mr Beelen, anyone from the

15 prosecution, Mrs McHenry, or somebody else, ask you

16 specifically not to take any particular pictures?

17 A. No, they did not.

18 Q. Was anybody from the prosecution's office, Mr Teresa

19 McHenry, or somebody else, present day number 2 when you

20 took photos from the inside?

21 A. When we took the photos from the inside, there was just

22 two of us, Mr Post and myself.

23 MR OSTBERG: Thank you very much.

24 MS RESIDOVIC (in interpretation): I have an objection, your

25 Honour. Defence counsel has not completed its

Page 229

1 cross-examination, and you gave the floor to the

2 prosecution, so I beg that we be allowed to continue the

3 cross-examination tomorrow.

4 JUDGE KARIBI WHYTE: Listen, please, I expected some

5 decorum. When I started, I made it very clear that the

6 cross-examination should start from the first accused

7 counsel, the second, the third, and the fourth. That

8 was what I said. I soon discovered that you had also

9 all surrendered your rights to start to accused counsel

10 number 4. After that Mr Moran came. Then I did not

11 expect anyone should pop up again to start

12 cross-examining.

13 I expect in any disciplined organisation, which

14 a legal firm is, people adhere to simple strict

15 instructions, and you do not go about blaming people for

16 your own errors. If you want to continue

17 cross-examination, after an earlier submission has been

18 made, I think that is a most irregular way of going

19 about things. If you had any intention of

20 cross-examining, you had your right from the beginning

21 to have done so, having known what I said at the

22 beginning.

23 MS McMURREY: Your Honour, if I might, I misunderstood

24 also. I thought that nobody --

25 JUDGE KARIBI WHYTE: No one misunderstood. I made it very

Page 230

1 clear. I did not say it only once. I repeated it. If

2 there is anyone who wants to cross-examine tomorrow

3 morning, we will grant you that.

4 MS McMURREY: Thank you very much.

5 JUDGE KARIBI WHYTE: This session is closing for today.

6 (6.00 pm)

7 (Tribunal adjourned)