The International Criminal Tribunal for the Former Yugoslavia

Case No.IT-96-21

  1. 1 Thursday, 30th October 1997

    2 (10.05 am)

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

    4 Could we have the appearances, please.

    5 MR. NIEMANN: May it please your Honours, my name is Grant

    6 Niemann, I appear on behalf of the Prosecution with my

    7 colleagues Ms. McHenry, Mr. Turone and Mr. Khan. And may

    8 I take this opportunity to request that I may be excused

    9 from court for the balance of this cross-examination so

    10 that I may speak with our next witness?

    11 JUDGE KARIBI-WHYTE: You may. Can we have the appearances

    12 for the defence, please?

    13 MS. RESIDOVIC: Good morning, your Honours. My name is

    14 Edina Residovic, attorney from Sarajevo. I am Defence

    15 counsel for Zejnil Delalic, together with my co-counsel,

    16 Eugene O'Sullivan, professor from Canada.

    17 MR. OLUJIC: Good morning, your Honours. My name is Zeljko

    18 Olujic, I appear on behalf of Zdravko Mucic, together

    19 with my colleague, Michael Greaves, attorney from Great

    20 Britain and Northern Ireland.

    21 MR. KARABDIC: Good morning, your Honours. My name is Salih

    22 Karabdic. I appear on behalf of Hazim Delic, together

    23 with my co-counsel, Tom Moran, attorney from Houston,

    24 Texas.

    25 (Witness enters court)

  2. 1 GENERAL JOVAN DIVJAK (continued)

    2 Cross-examination by MS. RESIDOVIC (continued)

    3 JUDGE KARIBI-WHYTE: Please remind the witness he is still

    4 on oath.

    5 THE REGISTRAR: I remind you, you are still on oath.

    6 MR. ACKERMAN: My name is John Ackerman, I appear with

    7 Cynthia McMurrey on behalf of Esad Landzo. May

    8 I inquire who the next witness of the Prosecution is?

    9 We are not certain, there are two possibilities at

    10 least.

    11 MS. McHENRY: The next witness is the professor whose last

    12 name I would prefer to try not to pronounce.

    13 JUDGE KARIBI-WHYTE: Let me have some clarification Mr. Delic

    14 had his medical examination this morning.

    15 MR. KARABDIC: I have been informed that he has. That is

    16 what they told me.

    17 JUDGE KARIBI-WHYTE: Thank you very much.

    18 Ms. Residovic, can you conclude your

    19 cross-examination?

    20 MS. RESIDOVIC: May it please the court.

    21 JUDGE KARIBI-WHYTE: Yes, you may proceed, yes.

    22 MS. RESIDOVIC: Good morning, General.

    23 A. Good morning, Ms. Residovic.

    24 Q. We ended the working day yesterday by my asking you to

    25 be shown three documents dated 3rd June, 1992. Since

  3. 1 I was informed by the Registry that one of those

    2 documents has not been marked, could this document with

    3 the same date please be marked, and be shown to the

    4 court and the Prosecutor. If it has not been shown to

    5 the witness, then to the witness as well.

    6 THE REGISTRAR: The document is marked Defence document

    7 130/1.

    8 MS. McHENRY: Could we have a copy of that document,

    9 please?

    10 MS. RESIDOVIC: We submitted a sufficient number of copies

    11 yesterday for the court and the Prosecution. Could a

    12 copy be given to the Prosecution, please? These are the

    13 three documents that were given to the Prosecution

    14 together with the others that we discussed yesterday.

    15 MS. McHENRY: If I may just clarify so my Lords are

    16 correct. I have two documents, 129 and 130, both are

    17 dated June 3rd. I do not have any other June 3rd

    18 documents, is that correct?

    19 MS. RESIDOVIC: No, there should be three documents dated

    20 3rd June, two are decisions and one is an order.

    21 THE REGISTRAR: Documents 128, 129 and 130.

    22 MS. RESIDOVIC: Is it all right now?

    23 A. I only have the document 130/1.

    24 JUDGE KARIBI-WHYTE: Where are the two earlier documents,

    25 128 and 129?

  4. 1 (Handed to the witness).

    2 MS. RESIDOVIC: Have you looked at the documents, General?

    3 A. I have.

    4 Q. Let us please look at the document dated 3rd June, 1992,

    5 which by name is an order. Do you have that document

    6 before you?

    7 A. Yes.

    8 Q. General, in the upper left corner of this document, does

    9 it say that it is issued by the municipality of Konjic,

    10 the War Presidency? The number is given and the date of

    11 issuance in Konjic, 3rd June, 1992?

    12 A. I would like not to express an opinion about documents

    13 which are not military documents. These are not

    14 military documents.

    15 Q. I should like to remind you, General, that I do not

    16 expect you to give an expert opinion about this

    17 document. I am not asking you to identify this

    18 document. I am simply asking you to answer questions

    19 which are quite obvious in terms of the format of this

    20 document. So if you can, would you please answer my

    21 questions?

    22 MS. McHENRY: If I just may object. If it is merely a

    23 matter of reading the document, the Prosecution does not

    24 see why the witness should have to do it. We certainly

    25 have no objection if Ms. Residovic wants to read the

  5. 1 document out loud for the court or if the court can read

    2 it itself.

    3 JUDGE KARIBI-WHYTE: Actually I agree with this objection.

    4 If you think it is obvious I do not see why you want him

    5 to say anything about an obvious thing.

    6 MS. RESIDOVIC: After these questions if you feel it is

    7 quite sufficient for me to read it or for you to read

    8 it, I only have a couple of questions in connection with

    9 this document.

    10 JUDGE KARIBI-WHYTE: If they are questions he can give

    11 answers to he would, but not questions for which his

    12 opinion he thinks might not be necessary. And in fact

    13 it is not in the ordinary course of his business as a

    14 General -- it is not in his course of business, so he

    15 might not even have to answer any things.

    16 MS. RESIDOVIC: Yes. The witness has certain expert and

    17 personal knowledge, so I will not ask questions which

    18 I think that the General cannot answer. But of course

    19 he can always say that he does not know. In view of

    20 what you have said, General, but the court has allowed

    21 me to put the question to you, my question is: judging

    22 by what you see in this document, is this document

    23 addressed to the co-ordinator?

    24 A. Will you please accept my position that I do not wish to

    25 comment in any way on a document which does not come

  6. 1 under the general framework of combat documents.

    2 Q. Acknowledging such a position, because the court has

    3 allowed you the possibility not to answer such

    4 questions, in view of your wish to speak only about

    5 things related to military documents, will you please

    6 look at the document and tell me whether it has been

    7 addressed to the command, and a logistic body of the

    8 command. That will be my only question. Is it stated

    9 that it is addressed to the command and the logistics

    10 command?

    11 A. You said it was obvious, and it is indeed obvious it is

    12 to the command, to the logistics body, the Presidency,

    13 says one document; the other one, the Red Cross, the

    14 civil defence; and the third document says that it has

    15 been addressed to the health centre in Konjic, the head

    16 of the medical corps, the command, the logistics body,

    17 the secretariat of national defence, the Presidency.

    18 That is what it says here and I simply read it.

    19 Q. Thank you, General. In connection with these documents

    20 that have been marked as Defence exhibits, I have no

    21 further questions to the General, thank you.

    22 Before you came to Konjic, General, you confirmed

    23 that you had no knowledge about any prisons in Konjic?

    24 A. I said that I was not familiar with the situation in the

    25 territory of the municipalities of Konjic, Jablanica,

  7. 1 Prozor, Mostar and particularly -- and therefore I had

    2 no information about any prisons, because I had no

    3 information at all. I had no personal knowledge about

    4 the situation in those areas at all.

    5 Q. Therefore with reference to your testimony regarding

    6 your knowledge about the situation in Konjic, is it

    7 correct -- would I be right in saying that you had no

    8 personal knowledge as to who and when may have set up

    9 prisons in Konjic, including the Celebici prison; who,

    10 when and under what conditions stationed guards and

    11 other personnel in that prison, is that correct?

    12 A. I knew nothing about these things that you are talking

    13 about, about prisons, the way they were secured and any

    14 of those other things that you have listed, in concrete

    15 terms.

    16 Q. Thank you, General. I would now like the General to be

    17 shown a document which we received from the Prosecution,

    18 who again explained that they received it from the

    19 Bosnian government. We have sufficient copies for the

    20 Prosecution and the Trial Chamber. Could the document

    21 be marked as Defence exhibit and shown to the witness,

    22 please?

    23 THE REGISTRAR: Defence exhibit number D131/1.

    24 MS. RESIDOVIC: Have you looked at it, General?

    25 A. I have.

  8. 1 Q. General, is it true that judging by the form and content

    2 of this document it is a document issued by the staff of

    3 the Supreme Command of the armed forces in Sarajevo on

    4 27th September, 1992, as indicated in the top left-hand

    5 corner of the document?

    6 A. That is what is stated in the heading of this document.

    7 Q. Is it true that this document was signed by the Chief of

    8 Staff of the Supreme Command?

    9 A. Yes.

    10 Q. Is it true that also at the bottom of this document we

    11 see a stamp of the Republic of Bosnia-Herzegovina, the

    12 army of Bosnia-Herzegovina, or rather the Ministry of

    13 the Interior of the army of Bosnia-Herzegovina?

    14 MS. McHENRY: Your Honour, just in the issue of -- in the

    15 interest of speeding things up the Prosecution would

    16 object to the Defence counsel having this witness read

    17 what is on the document. Certainly we have no objection

    18 to the court reading it, we in fact have no objection if

    19 the Defence counsel wants to get this into evidence.

    20 Certainly in closing arguments or written submissions

    21 she can point out certain things about the document.

    22 But I think it is of no evidentiary value to have this

    23 witness read out loud what is on a document that he has

    24 not seen before.

    25 JUDGE JAN: Actually you yourself have been doing the same,

  9. 1 the letter by the Red Cross, he had not seen it before

    2 you read it to him.

    3 MS. McHENRY: I do not object to her admitting it. I do

    4 not object to her asking questions about it. If your

    5 Honours think it is helpful to have this witness read it

    6 out loud I do not object to that either. I thought it

    7 might speed things along rather than have this witness

    8 read it out loud. I do not have any objection to her

    9 putting questions.

    10 JUDGE KARIBI-WHYTE: I do not think that is the request, for

    11 him to read it out loud. She can put questions to him

    12 based on the document.

    13 MS. RESIDOVIC: I wish to thank my learned colleague for

    14 trying to help me to do my job, but I am doing my best

    15 to act as I should, and I think I am doing so in

    16 accordance with the rules of this Tribunal. Having put

    17 the question to the witness, I am not sure whether he

    18 confirmed that there was a stamp at the bottom of the

    19 page?

    20 A. Yes, there is a stamp that says the Republic of

    21 Bosnia-Herzegovina, the Ministry of Defence, the army of

    22 Bosnia-Herzegovina, and what is rather interesting and

    23 charming and which confirms that we respected

    24 multi-ethnicity in the army, there was -- it is in both

    25 Cyrillic and Latin script.

  10. 1 Q. General, is it true that this document was addressed to

    2 the municipal staff of Konjic?

    3 A. Yes.

    4 Q. Is it true that this document does not say that the same

    5 has been submitted to Tactical Group 1, nor is Tactical

    6 Group 1 mentioned in this document?

    7 A. I see that it says to the municipal staff of Konjic.

    8 I see nothing else.

    9 Q. Is it true that this document makes no mention of the

    10 name of Zejnil Delalic?

    11 A. It does not mention the name of Zejnil Delalic.

    12 Q. Thank you. Since the witness has answered the questions

    13 put by the Defence and since there are no objections to

    14 the admission of this document, I tender it into

    15 evidence.

    16 A. I propose that both the Prosecution and the Defence find

    17 the document 01543/1, dated 25th September, to see whose

    18 document it is and what it speaks of, because the way in

    19 which this document has been given one does not know

    20 what was the reason why the Chief of Staff issued such

    21 an order. This is not really an order, it is just an

    22 approval, agreement with a proposal given by somebody

    23 and one does not see by whom.

    24 Q. Thank you. Is this document admitted?

    25 JUDGE KARIBI-WHYTE: Well, it is admitted. It is admitted.

  11. 1 MS. RESIDOVIC: Could the General now be shown the next

    2 document which the Defence received from the

    3 Prosecution, which again obtained it from the government

    4 of Bosnia-Herzegovina. We have copies for your

    5 Honours.

    6 THE REGISTRAR: Defence document D132/1.

    7 MS. RESIDOVIC: Have you looked at the document, General?

    8 A. Yes.

    9 Q. Is it true that this document also is a document of the

    10 staff of the Supreme Command of the armed forces of the

    11 25th September, 1992?

    12 A. Like the previous document addressed to the municipal

    13 staff of Konjic.

    14 Q. Is it true, General this document is also signed by the

    15 Chief of Staff of the Supreme Command and that it is

    16 addressed to the district staff of the armed forces?

    17 A. Correct.

    18 Q. Is it true, General, that this document makes no mention

    19 of Tactical Group 1, nor the name of Zejnil Delalic?

    20 A. Yes.

    21 Q. Is it also true to say that this document is not an

    22 order but an information and a suggestion with respect

    23 to the way in which to deal with the particular problem?

    24 A. Correct.

    25 Q. Is it also true to say that from this document, as from

  12. 1 previous ones, it is clear that already in September

    2 certain bodies sought to take steps to create the best

    3 possible conditions for the accommodation of prisoners?

    4 A. I cannot draw such a conclusion from this.

    5 Q. Is it true that it follows from this document that the

    6 person issuing the document believes that the most

    7 suitable thing would be to accommodate the prisoners in

    8 Zenica, where the prisoners from your territory have

    9 been accommodated.

    10 A. That is what it says.

    11 MS. RESIDOVIC: Thank you. I should like this document

    12 also to be admitted into evidence.

    13 MS. McHENRY: No objection.

    14 JUDGE KARIBI-WHYTE: It is admitted. Actually, I do not

    15 know why you ask questions about somebody's opinion

    16 about why a thing was done. You are asking him about

    17 the writer's opinion of that. He might not be able to

    18 give you any account of that. If he wrote it perhaps it

    19 might be more sensible to ask such questions. The

    20 exhibit has been admitted, as I said.

    21 MS. RESIDOVIC: Your Honours, sometimes we too may be wrong

    22 in phrasing our questions. I agree that I should not

    23 ask the witness for his opinion, though he has already

    24 provided an answer. Thank you, anyway.

    25 A. May I just say that in the information which the Chief

  13. 1 of Staff of the Supreme Command has issued and says that

    2 prisoners should be moved from the Celebici barracks in

    3 Konjic, so that this barracks may be used for the

    4 accommodation of the units in Konjic.

    5 Q. Yes. Thank you. That is exactly what it says in the

    6 document.

    7 General, you knew that Zejnil Delalic was a man

    8 who had no military training?

    9 A. I did not know.

    10 Q. You know now that he is not a man with any military

    11 training?

    12 A. He acquired it in the defence of Konjic and the defence

    13 of Bosnia-Herzegovina.

    14 Q. But General, when you met him you probably learned that

    15 he was a man dealing in business, a businessman, and who

    16 had -- who was knowledgeable with respect to purchasing

    17 goods in the area of logistics and in communication with

    18 the business world?

    19 A. I met him as a resolute man who is capable of carrying

    20 out any task assigned to him by a Superior Command.

    21 I did not know, nor in the 37 or 38 days I was with him

    22 did I know, that he was a businessman and that he dealt

    23 in logistics before, and also, in contact with other

    24 people, I learned that he had contributed financially to

    25 the defence of Konjic.

  14. 1 Q. Thank you. General, do you perhaps know today's

    2 Colonel, Pilica Sucro, formerly a Major in the JNA?

    3 A. Yes.

    4 Q. Do you know that the Colonel, formerly a Major, Pilica

    5 Sucro, was Chief of Staff of Tactical Group 1, when the

    6 Commander was Mustafa Polutak, and at the time you met

    7 Zejnil Delalic as Commander of the Tactical Group?

    8 A. No. I did not know that that was the position he held.

    9 Q. Thank you. General, you just gave us some of your

    10 personal impressions on Zejnil Delalic. During the time

    11 you were in Konjic you probably came to know him at

    12 least a little bit as a person. General, can you tell

    13 me, was Zejnil Delalic as a person a kind of a person

    14 who could have agreed to something that would be

    15 impermissible, which is what you have said here? But to

    16 put it more precisely, did you experience Zejnil Delalic

    17 as a person who regardless of the duty that he held, in

    18 other words as a person, how would he react if he knew

    19 that somebody was engaged in something illegal? You

    20 spoke of this in the media and I read about it, so can

    21 you confirm this before this Trial Chamber?

    22 MS. McHENRY: Your Honours, I am not objecting, I am just

    23 noting for the record that the Defence counsel is

    24 putting the accused's character in issue and the

    25 Prosecution will be entitled to introduce evidence in

  15. 1 rebuttal concerning that. If she wishes to do that, we

    2 do not object.

    3 JUDGE KARIBI-WHYTE: I hope you understood the nature of the

    4 objection, not that you might not put the questions that

    5 you want to put.

    6 JUDGE JAN: You see, if you bring up evidence of good

    7 character the opposition can always bring in evidence to

    8 the contrary. Normally the reputation of an accused is

    9 not relevant, but if an effort is made to bring in

    10 evidence of his good character then the other side has a

    11 right to say that -- that his character was not good.

    12 MS. RESIDOVIC: Your Honours, the issues of the legal

    13 culture is something that is a continuing educational

    14 process. I think that my client has nothing to fear by

    15 opening such issues, but taking into account the entire

    16 proceedings I think that it is not necessary to open

    17 this issue now. I know how he feels and I do not wish

    18 the witness to actually answer this question at this

    19 time. So, thank you.

    20 JUDGE KARIBI-WHYTE: Actually are you saying that you are

    21 withdrawing the question?

    22 MS. RESIDOVIC: Yes.

    23 JUDGE KARIBI-WHYTE: Thank you.

    24 MS. RESIDOVIC: So in conclusion, General, you know, or you

    25 may not know, but maybe you can confirm my own

  16. 1 knowledge. None of the soldiers under the command of

    2 Zejnil Delalic as Commander of the Tactical Group during

    3 the combat operations for the lifting of the blockade of

    4 Sarajevo did not commit any criminal act and has no

    5 connection with the Celebici prison; if I said this,

    6 could you confirm this?

    7 MS. McHENRY: Your Honour, I am going to object to that

    8 question also.

    9 JUDGE KARIBI-WHYTE: I suppose if he has any knowledge about

    10 it he could say so. If he has none, he says he knows

    11 nothing about that. So he is not in a position to

    12 answer either way.

    13 A. I have no knowledge about the question as asked by Madam

    14 Residovic.

    15 MS. RESIDOVIC: Thank you, General.

    16 Your Honours, this concludes my

    17 cross-examination.

    18 JUDGE KARIBI-WHYTE: Thank you. So ...

    19 MS. RESIDOVIC: General, I would like to particularly thank

    20 the General. I think he understood that the rules here

    21 are very strict, but I know that he and I will have

    22 numerous other occasions to talk.

    23 A. I only have been learning for three days now, and you

    24 said that you have been at it for 19 months, so I will

    25 need more time to catch up.

  17. 1 JUDGE KARIBI-WHYTE: Yes, you may proceed Ms. McMurrey.

    2 Cross-examination by MS. MCMURREY

    3 MS. McMURREY: Thank you very much, your Honour.

    4 Good morning, General.

    5 A. (Not translated).

    6 Q. I do not speak French. I think it was nice. I want to

    7 thank you for such an esteemed gentleman and an officer

    8 from the army of Bosnia-Herzegovina for being here. I

    9 have a few questions that are not really that specific

    10 but some things I would like to cover with you. The

    11 court knows that you did have an opportunity to visit

    12 with all of us back here with the Victim and Witnesses

    13 Unit I believe last week one day. We visited briefly at

    14 that time, did we not?

    15 A. Yes. You promised that we would have coffee too, but

    16 I am waiting for that.

    17 Q. That will have to be after you testify. You had

    18 mentioned, and I think that you represent something to

    19 this court that is very important in the whole

    20 understanding of what happened in the former Yugoslavia,

    21 and that is the idea that you are a Bosniak. You were a

    22 Bosniak, you are a Bosnian citizen, and underneath that,

    23 something much less important to you than that, is your

    24 religious affiliations, or the religious affiliations of

    25 your friends, your neighbours, and the people you live

  18. 1 with in Sarajevo, is that right?

    2 A. You are right, but I only had one problem. Because

    3 I was being called Alija Serb, but I was fine with

    4 that. Your Honours, Alija is the President of

    5 Bosnia-Herzegovina, but they call me Alija Serbs because

    6 I stayed in Sarajevo.

    7 Q. Of course the court knows that you are not the only

    8 person of other ethnic background besides Muslim that

    9 stayed and fought in the BiH army, right? There were

    10 others too, there were Croats and there were Serbs,

    11 there were people of other ethnic religions that really

    12 are not represented in this argument right now?

    13 A. Of course. Besides the Bosniaks and Serbs and Croats

    14 there were others. I mentioned that the other day, and

    15 I would like to restate there were Jews, Albanians,

    16 gypsies -- and when we are done I will tell in private a

    17 joke about the gypsies and how they experienced this

    18 war.

    19 Q. Well, I look forward to having some jokes told, because

    20 none of us have laughed enough through this, I know

    21 that.

    22 I have a few statements that I want you to tell me

    23 if in your mind these statements are true, because

    24 I believe you will be able to confirm in the mind of a

    25 true Bosnian citizen these statements would be true. To

  19. 1 call the Bosnian warfare "ethnic" demeans the Bosnian

    2 cause by making it seem as if the Bosnians too were just

    3 one more narrow ethnic group. That is demeaning to a

    4 Bosnian to have this called the "Muslim war", the

    5 "Muslim forces", is it not?

    6 MS. McHENRY: Your Honour, if I may, I object as to

    7 relevance. I think that this trial should as much as

    8 possible stay focused on the issues and not venture into

    9 political arenas. So without indicating any

    10 disagreement with what Defence counsel is or is not

    11 saying, I would ask that we focus on relevant issues.

    12 MS. McMURREY: Your Honour, if I might respond, the

    13 indictment clearly calls these forces "Muslim forces"

    14 and it also refers to the whole situation involved in

    15 this which is part of the proof of the Prosecution. So

    16 I believe that the opinion of this General about what

    17 was stated in the indictment by the Prosecution is very

    18 relevant at this point.

    19 JUDGE JAN: It would be -- the opinion would be irrelevant,

    20 but can you ask him is that factually what is true. Do

    21 not ask him his opinion. He is not an expert on those

    22 matters.

    23 JUDGE KARIBI-WHYTE: Well, read the portion to him, is that

    24 true.

    25 JUDGE JAN: You ask the first question, that Bosnia was not

  20. 1 really one ethnic group. It consisted of so many

    2 different groups and there were so many different groups

    3 in the army. You have asked him that question already.

    4 Do not ask him his opinion about something somebody else

    5 has said.

    6 MS. McMURREY: I am going to try to re-phrase it to

    7 something I may think be acceptable of what I am really

    8 trying to say. What I am trying to say is that to a

    9 true Bosniak the fact that this war has been split into

    10 ethnic rivalry is offensive, is it not?

    11 A. Yes, if you permit a comment -- am I permitted to

    12 comment, your Honours?

    13 JUDGE KARIBI-WHYTE: Well, you may.

    14 A. Last night I had an opportunity to give a lecture in

    15 Leiden on the war in Bosnia-Herzegovina and I was very

    16 happy to be in such an environment at the university

    17 that dates from the 17th century. As I was being

    18 introduced by a young man who is a student of political

    19 science and diplomacy he said that I would be speaking

    20 about the ethnic war in Bosnia-Herzegovina. It was

    21 about the civil war, and I said that had it -- had that

    22 been the case I would not have been here now, and as

    23 I said the other day I could have been in California or

    24 in Alaska.

    25 In June 1992 the Presidency of Bosnia-Herzegovina

  21. 1 adopted a platform on the defence of

    2 Bosnia-Herzegovina. In this platform it is clearly

    3 spelt out that there was an aggression on

    4 Bosnia-Herzegovina, and it is clearly stated that all

    5 patriotic forces should join in the struggle, in the

    6 defence of Bosnia-Herzegovina. At that time there was

    7 still this forced name. It was from the

    8 Austro-Hungarian times where it stated Muslims and Serbs

    9 and Croats. The platform spoke about the defence of the

    10 multinational, multi-ethnic, multi-cultural

    11 Bosnia-Herzegovina and in the army of

    12 Bosnia-Herzegovina, in the armed forces, this platform

    13 was implemented and it was the leading light for the

    14 young men who were dying for Bosnia-Herzegovina.

    15 The other sides, the other two sides, always spoke

    16 of it as a Muslim army, that these are the balijas, and

    17 yesterday I was asked what language was being used to

    18 describe the aggressor on our side, and we issued

    19 instructions, and you could see from the document that

    20 the Commander sometimes did not use the words that the

    21 Presidency enjoined. The Bosnia-Herzegovina would not

    22 have survived the aggression of the fourth largest force

    23 in Europe had it not based it on multinationality.

    24 And I would just like to give you another specific

    25 example. As a member of a delegation of the army of

  22. 1 Bosnia-Herzegovina, I took part in the negotiations with

    2 the representatives of the army of the Republika Srpska

    3 and also at the beginning of a meeting, whether it was

    4 General Mladic, General Gvero or somebody else, some

    5 other Commander of the army of Republika Srpska, they

    6 made a condition that no traitor of the Serbian people

    7 may take part in a Muslim delegation. So it was not a

    8 Muslim army, it was Bosnian army, and its main idea was,

    9 and it remains to be, the unified Bosnia-Herzegovina,

    10 such as it was recognised by the United Nations as its

    11 177th member state. Thank you.

    12 Q. Thank you very much. And the people fighting inside

    13 Sarajevo, the Territorial Defence inside Sarajevo, one

    14 third of those people fighting to protect Sarajevo were

    15 Serbs, were they not?

    16 A. Not a third, but yesterday I tried to give the specific

    17 data. In the main headquarters there were 12 per cent

    18 Serbs and 18 per cent Croats. There were units --

    19 I remember a battalion who was defending part of

    20 Sarajevo which is called the Heros' Square were 25 per

    21 cent of Serbs in that unit. Where this unit had been

    22 formed there were not that many Serbs living either.

    23 I think that in two or three units there may not have

    24 been any Serbs, but in most units it was a nice

    25 combination. And if you will permit me the army of

  23. 1 Bosnia-Herzegovina from the Serbian population, there

    2 were people from the Serbian population and from the HVO

    3 as well, and I mention two names, Cedo Domuz and Major

    4 Petrovic, whom I mentioned yesterday.

    5 Q. Thank you very much. I am not going to get into all

    6 these military details that my colleagues have covered

    7 specifically for a long time. A recap on something; if

    8 I could have Defence Exhibit 74/1, the map, put back up

    9 here for a moment, I would like to ask the General a

    10 question dealing with the map, please Mr. Usher.

    11 Now, before having you stand up and look at the

    12 map again, I just want to go over something that you

    13 said in your testimony yesterday -- or maybe it was the

    14 day before, I am losing track now -- but number one you

    15 referred to the Konjic area of Herzegovina as the pearl

    16 -- you referred to the Konjic area of

    17 Bosnia-Herzegovina as the pearl of Bosnia-Herzegovina;

    18 and that has two meanings to you, I believe. One would

    19 be because of its beauty, but number two would be

    20 because of its strategic importance in defending the

    21 country from foreign invaders. You talked about how

    22 Tito's partisans defended the whole country just from

    23 this area, is that not true? (Pause). I am sorry,

    24 I did not hear any interpretation.

    25 THE INTERPRETER: We cannot hear him.

  24. 1 A. Besides what you said, that it is both a beautiful place

    2 and a strategically important place for me, the most

    3 important part is the people there; and I am convinced,

    4 and I know, that for decades Croats and Serbs and

    5 Bosniaks lived there together. And I know that the

    6 experiences from this war -- none of the ethnic groups

    7 will ever forget, but they have to forgive. So what

    8 I would like to add is the people, and that is an

    9 additional quality of Bosnia-Herzegovina, during World

    10 War Two the area through the Neretva River valley up

    11 towards Sarajevo were battlefields where Yugoslavia was

    12 created. I do not know how the world views this, but

    13 for us, for us it was a very special battle, when with

    14 fierce fighting a hospital with some 3500 wounded was

    15 saved in the struggle against the fascist formations of

    16 Italy and Germany, and this was precisely in the area of

    17 the Jablanica and Konjic, and in this war it again

    18 manifested itself that these were strategic areas for

    19 the defence of Sarajevo and the defence of

    20 Bosnia-Herzegovina.

    21 Q. I believe that two really important battles were in the

    22 Konjic area, the one you talked about was the hospital,

    23 it is also known as the Battle of the Wounded People, or

    24 bitka za ranjenike, is that correct?

    25 A. Right.

  25. 1 Q. And the second battle, the battle in Sutjeska?

    2 A. That was in another area but it was also within

    3 Herzegovina.

    4 Q. Thank you. And of course another ideal of the army of

    5 Bosnia-Herzegovina that came from Tito directly also was

    6 the idea of brotherhood and unity. You talked about

    7 that all the time as the most important thing that kept

    8 the BiH army together, was it not?

    9 A. This touches a raw nerve, if you have lived for a long

    10 time by respecting everyone and everybody had a chance.

    11 New relationships have been created in the 90s. This

    12 idea of brotherhood and unity has faded. But among my

    13 generation, the older generation, including the

    14 commissioned officers, the principles which had to do

    15 with brotherhood and unity were still there at the

    16 beginning of the war.

    17 However, since the different political party

    18 leaders, and now I am giving you my own personal

    19 experience, since this principle was in the way of these

    20 political leaders, and I am not going to give you any

    21 names, but they publicly told their people that the

    22 Serbs could no longer live with the Bosniaks, the

    23 extremist parts of Croats that the Croatians could no

    24 longer live with the Bosniaks, and some who accepted

    25 these ideas of the other two sides said now why should

  26. 1 we insist that we should all live together, that we

    2 should live together with the other two groups.

    3 Of course these are the extremists whose ideas

    4 still survive, but I am convinced that in the coming

    5 years when democracy is re-established in the

    6 neighbouring countries -- I am thinking of Serbia

    7 Montenegro and Croatia -- the rapprochement will follow

    8 as it happened in the war 41 to 45 and in the communal

    9 life between 1945 and 1990. I apologise to the Trial

    10 Chamber, this is not a political arena, but in order to

    11 answer fully I am just simply unable to say a simple yes

    12 or no to issues that are so fateful for us in

    13 Bosnia-Herzegovina.

    14 Q. Thank you. I am going to have you turn now to the map

    15 only for one little clarification and to point out,

    16 which I am sure the court is aware of, the strategic

    17 importance. Can you point on the map to where Bradina

    18 is on M17 between Sarajevo and Konjic?

    19 A. (Indicates).

    20 Q. At Bradina there is a tunnel and it is right next to

    21 that Ivan Pass that you talked about that is so

    22 important for getting equipment through, is that

    23 correct?

    24 JUDGE JAN: The General did say yesterday if you do not go

    25 through this pass you have to cross twelve different

  27. 1 passes. That is what the General said yesterday.

    2 MS. McMURREY: I have never seen a man with such a vivid

    3 memory. My memory is not as good.

    4 JUDGE JAN: He did say that.

    5 MS. McMURREY: He did say that.

    6 You talked about the fact former members of the

    7 JNA, who are citizens of Bosnia, who left the JNA and

    8 were there, they had this training in guerrilla warfare,

    9 it was part of the training, right?

    10 A. Yes, all formations of the Yugoslav People's Army had in

    11 their training programmes partisan warfare, as had

    12 members of the Territorial Defence. When every two or

    13 three years they would go for training, we would

    14 practice procedures from the partisan form of warfare.

    15 Q. And it is my understanding, and tell me if I am wrong,

    16 that you knew a person in the Bradina, a person named

    17 Rajko Dordic. Did you know that name?

    18 A. I have not said that so far, but I did know that man.

    19 Q. Thank you. Mr. Dordic was an educated, trained man,

    20 especially in the art of sabotage, was he not?

    21 A. He was one of the best trained in the Territorial

    22 Defence in that area, at that time.

    23 Q. And he was a known leader of the local Serb resistance

    24 in Bradina, was he not?

    25 A. That I do not know.

  28. 1 Q. Did you know he facilitated the arming of the persons in

    2 Bradina to fight and secure -- their goal was to secure

    3 that area Bradina M17 and cut off transportation between

    4 Sarajevo and Konjic?

    5 A. I have solemnly declared to tell the truth, so I know

    6 nothing about what you have just asked me, but yesterday

    7 and the day before I spoke to you about documents which

    8 we had seized on the 3rd May, 1992, from the second

    9 military district, which show that the Yugoslav People's

    10 Army in the barracks around and in Sarajevo, in 1991 and

    11 1992, had armed members of units, the citizens of

    12 Sarajevo, of Serb ethnicity. And in the first months of

    13 the war in Sarajevo, in many apartments of members of

    14 the SDS, arms were found, as well as ammunition and

    15 means of sabotage. I repeat I know nothing about the

    16 actual engagement and operations of Mr. Dzordic.

    17 Q. Thank you. I want to go on, you did when you were there

    18 in October and November 1992, you had made a semi-tour

    19 of the area to understand the situation in Konjic, did

    20 you not?

    21 A. Yes.

    22 Q. And was part of that tour, did you go to the front-line,

    23 and you will have to excuse my pronunciation of the

    24 Serbo-Croatian names at Glavaticevo?

    25 A. Yes, you pronounced it excellently in Bosnian.

  29. 1 Q. Well, thank you very much. And at the front-line when

    2 you were there, what kind of different forces did you

    3 see represented there, as far as TO, Croatian, MUP,

    4 military police, whatever? Who was present there? Were

    5 they all present on that front-line fighting?

    6 A. Those were units of the army of Bosnia-Herzegovina.

    7 They were no longer the Territorial Defence because this

    8 was October 1992. And I saw police, police belonging to

    9 the Ministry of the Interior, which was quite rare,

    10 actually. But believe me, I do not remember whether

    11 there was a unit of the HVO.

    12 Q. Thank you very much. I am going to go on to another

    13 subject. I believe that of course the Prosecution had

    14 asked you what your former occupation was. I would like

    15 for you to tell us now what your current occupation is,

    16 as a retired General?

    17 A. I am just a pensioner. No, I am joking. It gives me

    18 satisfaction to say that I am now working on a project

    19 which, thanks to the Tribunal -- though it did not quash

    20 the subpoena, I was told today that a UN representative

    21 denied that the subpoena had been lifted -- we are

    22 helping children who have been orphaned in the war. A

    23 foundation was set up already in 1994 and I will have

    24 today the opportunity to thank people in the Rotary Club

    25 who have provided funds for scholarships for 10

  30. 1 children, for 10 orphans.

    2 I should like you to tell you that 32,000 children

    3 in the federation are without one parent, and more than

    4 3,000 without both. 1,800 children have been disabled

    5 and will suffer the consequences until the end of their

    6 days.

    7 JUDGE KARIBI-WHYTE: Thank you very much, General.

    8 MS. McMURREY: I have one more question, that will be it.

    9 Yesterday you stated the single most important factor

    10 that contributed to the survival of the

    11 Bosnia-Herzegovina army in April, May, June, July and

    12 August of 1992 was the patriotism of the citizens and

    13 soldiers that defended her. This is the same kind of

    14 patriotism that supported the partisans under Tito in

    15 1940 where they were the only European country that

    16 expelled the Germans and the Italians and the Croatian

    17 Ustasha. What you are saying is the only thing that

    18 supported that country at that time, when nobody came in

    19 to support it with arms, was an extreme sense of

    20 patriotism, is that not correct, and especially the

    21 young people?

    22 JUDGE KARIBI-WHYTE: You may answer, I think it is nothing

    23 -- you are not getting the question.

    24 A. I did not quite understand. Could it be repeated,

    25 please?

  31. 1 JUDGE JAN: He did make a statement to that effect

    2 yesterday, that it was the patriotism of the people,

    3 particularly the young people.

    4 MS. McMURREY: He did say that yesterday, I was just

    5 re-interposing that important point of this war on the

    6 Tribunal. If you believe that he will say, "yes, that

    7 is exactly right", then I will pass.

    8 Okay. One more time, I want to thank you very

    9 much, General, for being here and letting us have this

    10 honour of questioning you.

    11 JUDGE KARIBI-WHYTE: I think that is it.

    12 A. I apologise, I would like to hear your question, if

    13 possible.

    14 JUDGE KARIBI-WHYTE: That is the end of her

    15 cross-examination. I think we were satisfied. That

    16 ends the session.

    17 Do you have any re-examination?

    18 MS. McHENRY: Yes, your Honour, it should only take a few

    19 minutes but I do have some re-examination

    20 Re-examination by MS. MCHENRY

    21 MS. McHENRY: If I could have the assistance of the usher.

    22 I am showing the General a document dated 18th July. It

    23 has been previously provided to Defence counsel. I have

    24 extra copies for Defence counsel and the court.

    25 THE REGISTRAR: Prosecutor Exhibit 193.

  32. 1 MS. RESIDOVIC: Your Honours, I have an objection.

    2 JUDGE KARIBI-WHYTE: To re-examination?

    3 MS. RESIDOVIC: No, on the basis of the arguments of the

    4 Prosecution. When I wanted to show the witness certain

    5 documents, the objection was that the documents were

    6 being shown to the witness for the first time, and that

    7 they relate to a period that the witness had said he

    8 knew nothing about the events in Konjic.

    9 JUDGE KARIBI-WHYTE: Let him see it and say he knew nothing

    10 about the period.

    11 MR. GREAVES: Your Honour, I have an objection, which is

    12 this. This appears to be a new document. How can that

    13 be said, a new document being introduced at this stage

    14 to arise out of cross-examination? It is not a question

    15 for re-examination, in my respectful submission.

    16 JUDGE KARIBI-WHYTE: Let the Prosecution start the

    17 re-examination. If this document is relevant to the

    18 question, then we will know. You may proceed.

    19 MS. McHENRY: Thank you sir.

    20 Sir, does this appear to be a normal document for

    21 a head of a Tactical Group, and does it provide any

    22 indication of the size of the Tactical Group?

    23 MS. RESIDOVIC: Objection, your Honour. This question does

    24 not follow from any question put during the

    25 cross-examination.

  33. 1 JUDGE KARIBI-WHYTE: It definitely does, because much of

    2 your question was to show about the nature of a Tactical

    3 Group and whether certain persons were involved in the

    4 Tactical Group. I do not see how this does not follow.

    5 Please, you can put the question. It is a simple

    6 straightforward one.

    7 A. We cannot see from this the composition of the Tactical

    8 Group, but the Commander who signed it, Zejnil Delalic,

    9 appointed persons who would hold duties in Tactical

    10 Group 1. It does not indicate the units and the

    11 equipment, but it does indicate the command staff, the

    12 officers who would be members of Tactical Group 1.

    13 MS. McHENRY: Sir, does the size of the staff give you any

    14 indication whatsoever as to the size of the Tactical

    15 Group? I am not asking for an exact number, but can you

    16 say anything about whether or not --

    17 JUDGE JAN: Just a minute, are you talking the staff or the

    18 persons? He is actually saying "the following

    19 persons". He is not talking about the formations but

    20 persons.

    21 MS. McHENRY: Maybe I worded my question incorrectly.

    22 JUDGE JAN: "Performed the duties in the TG1 in Konjic";

    23 "the following persons", not "the following formations

    24 of the staff" or anything.

    25 MS. McHENRY: Does the appointment of these persons and

  34. 1 their titles give you any indication as to the size or

    2 responsibility of the Tactical Group?

    3 JUDGE JAN: The translation again is incomplete. It does

    4 not list numbers, it does not say what they have to do

    5 to perform the duties. There must be some sentence at

    6 the end of this enumeration. Perhaps something is

    7 missing. Read it yourself and have a look of it; "to

    8 perform the duties of the TG1 in Konjic the following

    9 persons". What did they do? There is nothing there at

    10 the end.

    11 MS. McHENRY: My copy indicates with respect to each person

    12 there is a particular duty assigned.

    13 JUDGE JAN: Have a look at it, I do not think any duty is

    14 assigned.

    15 MS. McHENRY: Let me ask the witness.

    16 JUDGE KARIBI-WHYTE: You will be asking him things outside

    17 the document.

    18 MS. McHENRY: Your Honour, I would ask as in his military

    19 experience if he can say anything about whether or not

    20 these persons are given certain tasks by these

    21 documents. I will only ask him about this document.

    22 JUDGE JAN: Maybe he has called a meeting of these persons

    23 to assist him in the task. It does not say anything at

    24 all. It does not say to what person what duty is

    25 matched. As I say, maybe the translation is

  35. 1 incomplete.

    2 MS. McHENRY: Since the witness has the relevant military

    3 experience I will ask the question to the witness.

    4 Can you say whether or not the persons mentioned

    5 are given certain appointments pursuant to this

    6 document?

    7 A. Yes. For each individual person his duties and

    8 obligations are indicated within the framework of the

    9 Tactical Group. The first one, Cerovac, he says he is

    10 assistant Chief of Staff for operational and training

    11 affairs. He should be a person who unites the

    12 activities of the staff, or co-ordinates the activities

    13 of the staff in making assessments of one's own forces,

    14 the terrain, prepare with others proposals for the use

    15 of units; and that person participates in the drafting

    16 of combat documents. For instance, here it says, "the

    17 chief of engineering units".

    18 JUDGE KARIBI-WHYTE: If you had read it very carefully and

    19 within the context all it is saying is these persons are

    20 to perform the duties in the Tactical Group 1 in

    21 Konjic. That is all it is saying, and it is complete.

    22 The duties in Tactical Group 1 in Konjic; then you have

    23 to go back to the Konjic to tell you exactly what are

    24 the duties of the Tactical Group 1. That is all it

    25 shows.

  36. 1 MS. McHENRY: Thank you. Sir, are you able to say anything

    2 about the size of the Tactical Group based on the

    3 appointments made in this document?

    4 A. As I have already stated, I do not know the composition,

    5 the organisation and the formations coming under the

    6 Tactical Group. The number of persons listed here could

    7 mean that it is a unit which has jurisdiction in the

    8 territory for which the Tactical Group has been

    9 assigned, recalling the orders of the 16th July when it

    10 was stated that it was responsible for the line

    11 Jablanica, Konjic, Tarcin, I think it was, something

    12 like that.

    13 Q. Thank you. If I could have the usher's assistance again

    14 and ask the Registrar also for Prosecution Exhibit 127.

    15 I have extra copies. I would like one document marked,

    16 and 127 shown to the witness. I have extra copies.

    17 JUDGE JAN: Ms. McHenry, does it refer to any appointment

    18 made in respect of military prisons? That is what

    19 I want to find out.

    20 MS. McHENRY: Your Honour, I do not see any --

    21 JUDGE JAN: It is a very detailed order.

    22 MS. McHENRY: If the witness could be shown the documents

    23 at the same time. They are very similar, so that my

    24 question is the same for both documents.

    25 MR. O'SULLIVAN: Could the Defence be given copies too,

  37. 1 please?

    2 THE REGISTRAR: The Prosecutor exhibit number 194.

    3 MS. McHENRY: I provided extra copies for Defence counsel.

    4 It has been previously provided to them, but there are

    5 extra copies.

    6 Sir, you were shown several documents yesterday by

    7 Ms. Residovic, signed by the head of the TO and the

    8 head of the HVO. Sir, is it correct that these

    9 documents, which are also, in addition to being signed

    10 by those people, signed by Mr. Delalic as co-ordinator, do

    11 these documents also indicate that during this time

    12 Mr. Delalic had an official position as co-ordinator

    13 within the municipality?

    14 A. Could you please be more precise? Because you are

    15 mentioning yesterday's documents, signed by the

    16 Commander of the municipal staff, Boric, and the HVO

    17 Commander. Are you linking those to these two orders?

    18 Could you be more precise, please?

    19 Q. I am not necessarily linking them, sir. Because they

    20 are similar -- do these documents indicate that during

    21 this period of time Mr. Delalic had an official position

    22 signing orders as co-ordinator?

    23 A. In these two documents it is indicated that the

    24 co-ordinator was Zejnil Delalic. However, if I may be

    25 allowed to say, in theory at least, I do not know what

  38. 1 the practice was, a co-ordinator is not a person that may

    2 issue orders. He may only participate in the

    3 co-ordination of views between civilian and military

    4 authorities. I do not know what the practice was

    5 actually, but that is the theory.

    6 Q. Thank you.

    7 Sir, I would like now to have you watch two very,

    8 very brief -- one is approximately 30 seconds, one is

    9 approximately 1 minute -- excerpts from video. These

    10 are from I25 and I46.

    11 JUDGE KARIBI-WHYTE: Are they videos we have already

    12 viewed?

    13 MS. McHENRY: Your Honour, with respect to -- you have

    14 certainly -- I do not know whether or not these

    15 particular excerpts have been viewed before. They are

    16 directly relevant to re-examination. The videos are in

    17 evidence, but whether or not these particular very brief

    18 excerpts have been shown ...

    19 JUDGE KARIBI-WHYTE: They ought to be associated with the

    20 questions which were questioned and answered and perhaps

    21 because of the answers.

    22 MS. McHENRY: This is directly relevant to Ms. Residovic's

    23 questions where she showed several videos and asked

    24 whether this was normal for this time period. She also

    25 asked the witness a number of questions about the time

  39. 1 period during which the Mr. Delalic was a co-ordinator.

    2 The Prosecution had not asked in direct questions about

    3 when Mr. Delalic was a co-ordinator since this witness was

    4 not in Konjic at this time. Since Ms. Residovic raised

    5 that issue at length in cross-examination and showed a

    6 number of videos, I would like to show this minute and a

    7 half excerpt of video, after which I will have one

    8 question for the General concerning those, and that will

    9 be the -- then I will have one final question and that

    10 will be the end of my re-examination.

    11 JUDGE JAN: Fresh examination-in-chief.

    12 JUDGE KARIBI-WHYTE: We will go for a break and return at 12

    13 o'clock.

    14 MS. McHENRY: Thank you.

    15 (11.30 am)

    16 (Short break)

    17 (12.00 pm)

    18 JUDGE KARIBI-WHYTE: Let us clear this. Mr. Karabdic, I have

    19 instructions, information that the doctor has seen your

    20 client and he is fit to attend the court for the next

    21 session. He is fit to be here, except there are good

    22 reasons why he should not be here, and if the doctor so

    23 certifies then I see cede to the doctor's views. As

    24 long as the doctor thinks he is fit I think there are no

    25 reasons why he should not be here. I think I should

  40. 1 mention that to you.

    2 MR. KARABDIC: Thank you for your information, your Honours.

    3 But my client was unwell, and he thought that the same

    4 symptoms were reappearing and that is why he asked to be

    5 examined by a doctor. Certainly he wants to attend the

    6 hearings, and this medical check-up should have no

    7 affect on the proceedings or on his presence at the

    8 hearings. So that I will take care that he should come,

    9 if not today then tomorrow morning for sure. Thank

    10 you.

    11 JUDGE KARIBI-WHYTE: What I am saying is he has to be here

    12 during the trial, except if there are medical reasons

    13 certified by the doctor that he should not be here.

    14 MR. KARABDIC: Certainly. I apologise, your Honours. He

    15 asked for this examination, thinking that he would need

    16 treatment and not in order to be excused from the

    17 hearings. That was his intention; and of course I fully

    18 accept what you have told me.

    19 JUDGE KARIBI-WHYTE: Thank you.

    20 MR. ACKERMAN: Your Honour, I would just like to express my

    21 concern that we are not creating what I would see as a

    22 dangerous precedent. I think the Rules are very clear,

    23 that a defendant should be here at least during any part

    24 of the trial that might affect his interests. We have

    25 on occasion asked Mr. Landzo to be excused when the

  41. 1 evidence had absolutely nothing to do with his case.

    2 But when the evidence has something to do with Mr.

    3 Landzo's case, if he is ill, it would be my position

    4 that the trial should not go forward without his

    5 presence. I hope we are not creating by the Hazim Delic

    6 matter some kind of exception to the rules that would be

    7 applied against the rest of us. I think it is not fair

    8 for a trial to proceed in the absence of a defendant

    9 when matters are going on in the trial which affect his

    10 trial.

    11 JUDGE KARIBI-WHYTE: We have orders for this comment. I

    12 have made it clear any accused persons in this Trial

    13 Chamber who would be affected by the proceedings ought

    14 to be here, except if there are medical reasons for him

    15 not being here, and in that case the counsel should be

    16 here. The whole party should not be absent from the

    17 proceedings.

    18 Mr. Niemann, have you anything?

    19 MR. NIEMANN: I wish to announce the appearance of Mr. Dixon

    20 at the bar table.

    21 JUDGE KARIBI-WHYTE: Nice to meet you.

    22 Can we have the witness now?

    23 (Witness enters court)

    24 JUDGE KARIBI-WHYTE: Yes, you may proceed, please.

    25 MS. McHENRY: Thank you. Thank you, your Honour. If

  42. 1 I just may have the two very brief excerpts shown to the

    2 witness.

    3 MS. RESIDOVIC: Before that, your Honours, I have an

    4 objection. Ms. McHenry said that she was showing these

    5 videos because the Defence, in the course of the

    6 cross-examination, showed the witness video films from

    7 the period when my client was a co-ordinator. I showed

    8 the witness films only from the period when he was

    9 Commander of Tactical Group 1, that is August, September

    10 and October. Therefore there are no grounds in view of

    11 the cross-examination to show these videos. Therefore,

    12 I showed only videos from August, September and October,

    13 the period when Mr. Zejnil Delalic was Commander of

    14 Tactical Group 1.

    15 JUDGE KARIBI-WHYTE: Now, are you not sure that the video

    16 that she is now trying to show arises from your own

    17 cross-examination? Because if it does, then she can

    18 still show it, and then correct whatever gaps are still

    19 outstanding from your cross-examination.

    20 MS. RESIDOVIC: Yes, your Honours, that is just what I am

    21 saying, because Ms. McHenry, the learned representative

    22 of the Prosecution, explained that they did not want to

    23 show videos from the time that my client was a

    24 co-ordinator. But since I did that, they are using that

    25 -- those grounds to show these videos. But I insist

  43. 1 that I only showed videos from the period when my client

    2 was Commander of Tactical Group 1, August, September and

    3 October. Therefore, there are no grounds for the

    4 Prosecution to show any videos from another period.

    5 Thank you.

    6 MS. McHENRY: If it would help clarify, I am happy to

    7 respond. Maybe I did not -- if your Honours would like

    8 me to respond?

    9 JUDGE KARIBI-WHYTE: Let me hear you, because I think you

    10 are only entitled to re-examine on issues which arise

    11 from the cross-examination.

    12 MS. McHENRY: That is correct, your Honour, I am in entire

    13 agreement with you. Either I was not sufficiently clear

    14 or there was somehow an interpretation issue. I had

    15 certainly -- I am not saying that Ms. Residovic showed

    16 videos from the time period during which he was a

    17 co-ordinator. I certainly I am saying, though, that she

    18 asked a number of questions and showed the witness a

    19 number of documents regarding the period during which he

    20 was co-ordinator. So if there is relevant evidence

    21 concerning that period of time in the videos, I am

    22 certainly entitled to show it, whether or not it is a

    23 document or a video. There is no rule that says nor --

    24 I think it would be against common sense to say because

    25 she did not show a particular videotape about that area

  44. 1 I cannot. She certainly raised the issue and showed

    2 documents about that. I believe these videos, which are

    3 less than a minute and a half, are directly relevant to

    4 the period during which the accused was co-ordinator.

    5 JUDGE KARIBI-WHYTE: I agree with you, the question is

    6 whether there is an issue which has arisen from the

    7 cross-examination. If it does then you are entitled to

    8 correct it.

    9 MS. McHENRY: Thank you. I do not think there is any

    10 dispute that an issue arose during cross-examination

    11 about the period during which he was a co-ordinator.

    12 I would ask the video people to show just the two brief

    13 excerpts, please.

    14 MS. RESIDOVIC: Your Honours, I did not ask a single

    15 question with reference to the period, but I referred to

    16 a specific document. If this is linked to my questions,

    17 then of course I have no objection. But I will object

    18 if this video does not refer to my questions.

    19 JUDGE KARIBI-WHYTE: If it does not refer to your

    20 cross-examination or relate to it in any manner it is

    21 completely out of the issue, it should not be

    22 admissible.

    23 MS. McHENRY: If we may please have the video now.

    24 THE INTERPRETER: (Translating videotape)

    25 "Our guest tonight is Mr. Zejnil Delalic,

  45. 1 Commander of the Konjic Territorial Defence. Good

    2 evening.

    3 "Good evening.

    4 "What brings you to Zagreb?

    5 "There are many reasons. First of all, because

    6 the club of the Konjic people which has been formed in

    7 the last few days following the aggression against the

    8 town of Konjic and its surroundings, and I am also here

    9 to sort out some assignments for the Republican TO

    10 headquarters regarding the communication system, since

    11 as is well known the lines were brutally cut in

    12 Bosnia-Herzegovina in the last week or so."

    13 MS. RESIDOVIC: The Defence did not ask a single question

    14 relating to this.

    15 (Video played)

    16 THE INTERPRETER: (Translating videotape).

    17 "Everything is ready. Padalovic reporting, sir.

    18 Soldiers, Selam Alakom, Alakom Selam. At ease. Do you

    19 know who is imprisoned in Sarajevo? Babo? What do you

    20 have to do to liberate Babo? Where will you take him?

    21 To Konjic. That is it. Are you the same soldiers who

    22 have liberated the area from our enemy. We are.

    23 Captain, take over the command. Yes, sir."

    24 MS. McHENRY: Sir, in these excerpts you have seen is Mr.

    25 Delalic acting --

  46. 1 MS. RESIDOVIC: Your Honours, I object, because none of

    2 these subjects does not follow from the

    3 cross-examination of the Defence. There were no

    4 questions from this period, nor from these -- about

    5 these events.

    6 JUDGE KARIBI-WHYTE: There are no questions indicating that

    7 he is Commander of the territorial group? If that is

    8 your suggestion, then no questions indicating, or any

    9 documents indicating, that he has any relationship with

    10 the territorial group 1.

    11 MS. RESIDOVIC: In connection with Tactical Group 1 there

    12 were many questions. Yes.

    13 JUDGE KARIBI-WHYTE: I suppose that is what this is all

    14 about.

    15 MS. RESIDOVIC: Not a single question. This is the period

    16 when he was co-ordinator. I did not ask a single

    17 question whether Zejnil Delalic was Commander or

    18 co-ordinator in that period. I did not ask any question

    19 to that effect to the witness.

    20 JUDGE KARIBI-WHYTE: Yes, Ms. McHenry.

    21 MS. McHENRY: Ms. Residovic certainly asked questions

    22 about Mr. Delalic's command responsibility, or lack

    23 thereof, during the period.

    24 JUDGE KARIBI-WHYTE: Seriously speaking, is this an issue

    25 now which has been doubted? Is anybody challenging that

  47. 1 he is Commander of the Tactical Group 1? Is anybody

    2 denying that?

    3 MS. McHENRY: No, your Honour. I believe that is not in

    4 dispute. These videos I think were taken during the

    5 period that Mr. Delalic was co-ordinator, before he became

    6 Commander of the Tactical Group. As is stated in the

    7 indictment, Mr. Delalic was first co-ordinator and then

    8 Commander of Tactical Group 1. He is charged with

    9 having command responsibility for both periods.

    10 Ms. Residovic in her cross-examination introduced

    11 documents from that period, before he was Commander of

    12 Tactical Group 1, and suggested that the documents, both

    13 with the documents and her questions, suggested that

    14 those documents establish that Mr. Delalic never had

    15 official or de facto authority. I believe these videos

    16 are directly relevant to Mr. Delalic's de facto

    17 authority.

    18 This witness, as a military man, can give his

    19 opinion as to what he saw in these videos. If

    20 Ms. Residovic wants to agree that Mr. Delalic had de

    21 facto command authority during the time period he was

    22 co-ordinator then the issue is not in dispute then

    23 I would withdraw the questions. Ms. Residovic can

    24 correct me if I am wrong, I believe that is an issue

    25 that she does dispute.

  48. 1 MS. RESIDOVIC: Your Honours, the response of the

    2 Prosecution may be made if I introduced questions

    3 regarding Zejnil Delalic as a co-ordinator or Commander

    4 of the Territorial Defence in the cross-examination or

    5 if the answer that the witness gave me was imprecise.

    6 But I think that the witness gave me very precise

    7 answers, and I see no grounds for asking additional

    8 questions in the re-examination.

    9 JUDGE KARIBI-WHYTE: Thank you. I do not think you need

    10 bother. I think I sustain the objection. It is not

    11 necessary, the issues here.

    12 MS. McHENRY: Thank you, your Honours.

    13 JUDGE KARIBI-WHYTE: Do you have any other questions?

    14 MS. McHENRY: I have one question, please, my objection is

    15 noted.. Sir, is it the case that even as late as the

    16 end of November 1992 the Red Cross was trying to have

    17 Celebici closed down as a prison camp?

    18 A. I can repeat what I saw, and I do not know whether the

    19 Red Cross requested that it be closed down. I said that

    20 at the end of October and the beginning of November when

    21 members of the International Red Cross were being seen

    22 off Mr. Zejnil Delalic said that they had toured the

    23 facility and that he had no suggestions or instructions

    24 as to any special measures that need to be taken.

    25 Q. Yes, sir, I understand your answer. My question is: at

  49. 1 the end of November did you receive any other

    2 information about what the Red Cross and what it wished,

    3 what it was trying to do regarding Celebici?

    4 A. I think my answer was that on the basis of orders

    5 transmitted by the Chief of Staff of the armed forces of

    6 Bosnia-Herzegovina the military prison in Celebici was

    7 to be disbanded, and that I participated in drafting

    8 that order.

    9 Q. And sir, during that time did you receive any

    10 information about any request by the Red Cross that the

    11 prison be closed down?

    12 JUDGE JAN: Be more specific. Information from what

    13 source?

    14 MS. McHENRY: Sir, were you specifically told by people,

    15 including from the Supreme Command, that the Red Cross

    16 wanted Celebici closed down as a prison camp?

    17 A. I said that we had received orders that measures be

    18 taken for the camp to be closed down. In the meantime,

    19 I have been offered documents here from which I now see

    20 that at the request of the municipal staff of the armed

    21 forces of Konjic, that at the request of the Chief of

    22 Staff of the armed forces, there were suggestions for

    23 this prison, or rather the detainees, to be transferred

    24 to the prison in Zenica.

    25 Q. Sir, I am not asking you about your documents now. I am

  50. 1 asking you, at the end of November did you receive any

    2 information that the Red Cross had asked the Bosnian

    3 authorities to close the camp down? Did you receive any

    4 information regarding that or not?

    5 A. No, I did not, no.

    6 Q. Thank you. The Prosecution has no further questions.

    7 JUDGE KARIBI-WHYTE: General, let me find out one simple

    8 fact from you. I am sure you might know. Under whose

    9 authority was the Celebici camp at the time you went

    10 there?

    11 A. I do not know, but in view of the communications I had

    12 with the municipal headquarters, and in view of the fact

    13 that it is regulated by our legislation that military

    14 prisons should be formed at that time, at the level of

    15 the municipal headquarters of the armed forces, it

    16 should have been under the command of the municipal

    17 staff of the armed forces of Konjic. And how it

    18 actually was at that time, I do not know.

    19 JUDGE KARIBI-WHYTE: I am still not too sure about who has

    20 responsibility for what is happening in that camp.

    21 A. Those who were in the camp are responsible for what was

    22 happening in the camp and those who were superior to

    23 them. And in view of all that I have insight into, it

    24 should have been the Commander of the municipal

    25 headquarters of the armed forces in Konjic.

  51. 1 JUDGE KARIBI-WHYTE: Okay. Who is the Commander who was --

    2 at least at the time you went there, who was the

    3 Commander?

    4 A. At that time the Commander of the municipal headquarters

    5 of the armed forces of Konjic was Mirsad Catic, as far

    6 as I can recall. I know that I co-ordinated with him

    7 most when dealing with the municipal headquarters.

    8 JUDGE KARIBI-WHYTE: And is he directly responsible to the

    9 supreme chief of the army, Halilovic, or he is

    10 responsible to someone else before that?

    11 A. At that time he was the most senior in that area. In

    12 these past three days in our discussions we have not

    13 established whether the municipal staffs of the armed

    14 forces were within the Tactical Group 1. If they were a

    15 part of Tactical Group 1, if these municipal staffs were

    16 a part of the Tactical Group, then the Commander of the

    17 municipal headquarters is responsible for combat

    18 readiness, for the situation in the armed forces to the

    19 Commander of Tactical Group 1. I do not know whether

    20 the municipal headquarters was under the command of

    21 Tactical Group 1, nor whether the same can be said of

    22 the municipal headquarters of Prozor, Jablanica and

    23 Hadzici, which were also in that area.

    24 JUDGE KARIBI-WHYTE: Thank you very much. This is all we

    25 have for this witness.

  52. 1 I do not know how to thank you sincerely on behalf

    2 of everyone here. We have been grateful you have

    3 patiently taken all the questions in humour and we

    4 appreciate your assistance. I think you are discharged

    5 now, thank you.

    6 A. Thank you. May I say just one sentence?

    7 JUDGE KARIBI-WHYTE: Yes, you can.

    8 A. I should like to thank you for the attitude taken

    9 towards me by your Honours as a witness; but I should

    10 like to take advantage of the opportunity when I return

    11 to Bosnia-Herzegovina to convey a very important

    12 conclusion. Even though we in Bosnia-Herzegovina may

    13 believe that with respect to the war crimes, committed

    14 mostly against Bosniaks, and that the work to deal with

    15 it is rather slow and that all the culprits will not be

    16 tried, I know the motto of lawyers that justice is slow

    17 but it comes eventually. I know that all the war crimes

    18 committed in the territory of the former Yugoslavia will

    19 be punished and that will be supported and welcomed by

    20 all those who hold peace dear. Thank you.

    21 JUDGE KARIBI-WHYTE: Thank you very much.

    22 (The witness withdrew).

    23 JUDGE KARIBI-WHYTE: May we have your next witness?

    24 MR. NIEMANN: Your Honours, I call Constantine Economides.

    25 MS. RESIDOVIC: (Not translated).


    2 MR. ACKERMAN: Your Honour, while we are waiting, right after

    3 we returned from the last break we were handed a

    4 document of 54 pages that is an English translation of a

    5 document that was provided to us two or three days ago

    6 in French. In addition we were handed an eight page CV

    7 for Professor Economides. Before that all the

    8 Prosecution have provided us with was that very short,

    9 two paragraph description of Mr. Economides that I showed

    10 the court the other day. I think it is in violation of

    11 all of the obligations of the Prosecutor under the Rules

    12 of this court, and under the interpretation of those

    13 Rules by the Court in the Blaskic case, to be providing

    14 us with this material in effect five minutes before the

    15 witness is to take the stand. This makes it absolutely

    16 impossible, and if not impossible certainly unlikely

    17 that Defence counsel have any opportunity to prepare for

    18 a comprehensive and efficient cross-examination of this

    19 witness.

    20 I have no idea, and I will not suggest that this

    21 was done intentionally by the Office of the Prosecutor

    22 so as to prevent us having information. I do know this:

    23 that the Prosecutor's office notified this court,

    24 I think well over a month ago, of their intention to

    25 call this man. It is very difficult for me to accept

  54. 1 that this material could not have been provided to us

    2 until five minutes before he is to take the stand.

    3 I think there are a number of remedies available

    4 to the court. One of those is to totally refuse to

    5 permit him to testify, because of the Prosecutor's

    6 violation of their obligations under the rules. A

    7 second is to adjourn the court for a reasonable period

    8 of time to permit us to assimilate and explore the new

    9 information provided to us this morning. There is a

    10 wealth of information about this witness contained on

    11 these eight pages that we received literally after the

    12 last break, as we came back in from the last break.

    13 I think it extremely unfair for this matter to go

    14 forward at this point without us having the opportunity

    15 even to read, let alone explore, the additional

    16 information that was provided to us literally five

    17 minutes ago.

    18 MR. NIEMANN: Your Honours, the information, the large

    19 document referred to was provided to the Defence in an

    20 official language of the Tribunal. The English

    21 translation of it was provided to -- we received it

    22 today, and the same with the CV. A CV was provided in

    23 the language of the Tribunal, and an English version of

    24 the CV was also just provided to us this morning. The

    25 bundle of documents that I have in front of me was

  55. 1 provided to the Defence as soon as we were able to put

    2 them together, which was on Friday, I understand, your

    3 Honour. So to suggest that we gave a one page document

    4 and that is all that we gave was incorrect.

    5 Further, your Honours, the Defence have had the

    6 telephone number of Professor Economides and Professor

    7 Economides is certainly an expert witness and I would be

    8 extremely surprised if he had refused to provide the

    9 Defence with any information they would have sought from

    10 him. In my submissions, your Honours, the Defence have

    11 had the information. Certainly, the decision to call

    12 this witness and the decision to call this witness was

    13 made belatedly by us and so the information was not

    14 available to us, and certainly not available to us in

    15 one piece; but as we received it we provided it in a

    16 timely fashion, and in my submission, your Honours, the

    17 Prosecution has done all that it can do in order to

    18 provide this information.

    19 As I say, and I confirm, the large document, the

    20 Venice Commission document, was provided in a language

    21 of the Tribunal.

    22 MR. MORAN: Your Honour, one slight possible correction.

    23 I believe Mr. Niemann said that this notebook was

    24 provided to us on Friday. In fact, Friday was a

    25 holiday; although I was around the Tribunal I sure did

  56. 1 not see him or anyone from the Prosecutor's Office

    2 here. Secondly, our records show we received it on the

    3 27th (which is a day I am very familiar with because it

    4 is my daughter's 18th birthday), that was Monday. The

    5 court has been in session pretty much continually since

    6 Monday. We have had sessions Monday, Tuesday,

    7 Wednesday, and although I took part of yesterday

    8 afternoon off to go through this, this is a fairly

    9 massive document, just one document in specific is a

    10 document from the International Law Commission, and it

    11 appears to have 160 pages. That is one of several

    12 documents in here. That is a lot of material to try to

    13 go through to disseminate, to just digest it, just read

    14 it, let alone -- you get heartburn trying to digest that

    15 much.

    16 MR. ACKERMAN: Your Honour, I must say that before I said

    17 that I was unwilling to -- let me just say it this way:

    18 Mr. Niemann has now I think deliberately sought to

    19 mislead this court. He has told you that this CV that

    20 I complained about was provided to us several days ago

    21 in the French language, which is one of the languages of

    22 the Tribunal. Let me show you. This is a two-page

    23 document which is the French CV, that is what was

    24 provided to us. (Indicates). So to the extent you were

    25 being told by Mr. Niemann all the new one is is a

  57. 1 translation of this document, that is extremely

    2 misleading. We got a two-page French CV two or three

    3 days ago. This one is eight pages long in English. It

    4 has a wealth of information that is not contained in

    5 that French one.

    6 The second thing, lest you think that the delay in

    7 giving us this document had something to do with needs

    8 of translation in the Office of the Prosecutor, this

    9 document comes from the European Commission for

    10 Democracy Through Law and was originally published in

    11 English and French. The other thing you need to know is

    12 the Registry has not provided our offices with a French

    13 translator and we have a very difficult time getting

    14 documents translated from French because we do not have

    15 anyone to do that for us. Whether or not we should have

    16 known about certain things is really kind of beside the

    17 point. We did not. If we had translated this two-page

    18 document so that we all could have read it, this

    19 two-page French CV, it still would not have given us

    20 this eight page document that they gave us just a few

    21 minutes ago. I am now beginning to think it may be

    22 deliberate. Thank you.

    23 MR. MORAN: Your Honour, to add something else, we were told

    24 this document given in English in Strasbourg is the same

    25 as the document given to us in this notebook; this is

  58. 1 somewhat incorrect. This is that is a 30-page document,

    2 this is a 95 page; the one we were just given is a

    3 95-page document.

    4 JUDGE KARIBI-WHYTE: Actually, Mr. Moran, do you not think we

    5 should find a way to ameliorate the situation instead of

    6 grumbling about what has happened?

    7 MR. MORAN: I concur completely with your Honour.

    8 JUDGE KARIBI-WHYTE: Yes, Mr. Greaves?

    9 MR. GREAVES: In that case, I will sit down.

    10 JUDGE KARIBI-WHYTE: I thought so, because we have discussed

    11 it for the past 10 minutes and that is not what we think

    12 might help. I think there might be a violation of the

    13 procedure for doing these things but that is a spilt

    14 milk now, we cannot talk about it. There are ways of

    15 saving it. Possibly we hear the witness and then

    16 postpone his cross-examination to a time perhaps you

    17 might be able to digest whatever preparation you may

    18 have made. I know you cannot gobble down all these

    19 things as you want to. I think that might be a way to

    20 save the situation.

    21 MR. ACKERMAN: Your Honour, at least for -- on behalf of Mr.

    22 Landzo I am in fundamental agreement with your Honour.

    23 I agree with what you just said. Let me just, so that

    24 we do not have this same spilt milk problem as we go

    25 down the road in this case, advise your Honours that the

  59. 1 Prosecution has not provided us, and we have made more

    2 than one request and finally have made a request through

    3 the Office of the Registrar, for all of those published

    4 writings of Dr. Gow that are contained in the CV that the

    5 Prosecution presented to us. We believe under the

    6 language of the Rules and the ruling in the Blaskic case

    7 that previous writings of witnesses relevant to their

    8 testimony are to be turned over by the Prosecutor, in

    9 accordance with the Rules.

    10 Our plea to the Office of the Registrar was that

    11 from an economic standpoint it would cost this Tribunal

    12 a great deal less for the Prosecutor to make copies of

    13 those writings and turn them over to us than for us to

    14 go through the more and sometimes prohibitively

    15 expensive job of trying to gather them all up ourselves

    16 from sources all over the world. It may be the

    17 Prosecutor will represent to you they do not have them,

    18 then that is not any longer a matter of concern,

    19 although I suspect that they do. I just want to

    20 forestall this same kind of problem coming up perhaps

    21 Monday, when Dr. Gow arrives.

    22 JUDGE KARIBI-WHYTE: Now can we have your witness?

    23 MR. NIEMANN: I call Professor Economides. I would just like

    24 to indicate that the material was provided on the 27th.

    25 We received it on the Friday. It was copied then

  60. 1 provided on the 27th.

    2 JUDGE KARIBI-WHYTE: Possibly, therefore, the effort to get

    3 them was not made much earlier than that or was not

    4 actively pursued. If you knew there was an obligation

    5 to serve the Defence with it at least --

    6 MR. NIEMANN: As I understand, the obligation does not arise

    7 until we receive it; if we did not have it in the

    8 possession we did not have any obligations.

    9 JUDGE KARIBI-WHYTE: When you made the obligations, you make

    10 quite serious efforts to get it.

    11 MR. NIEMANN: We did not have it, your Honour.

    12 (Witness enters court)

    13 JUDGE KARIBI-WHYTE: Swear the witness.

    14 PROFESSOR Constantine ECONOMIDES, (sworn).

    15 JUDGE KARIBI-WHYTE: Yes, you may take your seat now.

    16 Examination-in-chief by Mr. Niemann

    17 MR. NIEMANN: Would you please state your full name?

    18 A. My name is Constantine Economides. I am a Greek

    19 national. I am a Professor of international law in

    20 Athens at the University of Pantion in Athens. I have

    21 spent my career completely in legal service for the

    22 Ministry of Foreign Affairs, for which I was the head

    23 for about 17 years. I am a member of the Venice

    24 Commission, which is an organ which is subsidiary of the

    25 Council of Europe and which deals with issues dealing

  61. 1 with development of democratic institutions. The exact

    2 commission is the European Commission for Democracy

    3 Through Law.

    4 Q. Are you a graduate of the Faculty of Law and Political

    5 Sciences of the University of Strasbourg?

    6 A. Yes I am.

    7 Q. Do you hold the Diploma of the Centre for Higher

    8 European Studies of Strasbourg, which you received in

    9 1995?

    10 A. (Nods).

    11 Q. Do you hold a Doctor of Laws of the Faculty of Law of

    12 the University of Strasbourg?

    13 A. Yes.

    14 Q. And of the Athens University?

    15 A. Yes.

    16 Q. Are you a lecturer of Public International Law at the

    17 Faculty of Law of the Athens University?

    18 A. Yes, I am.

    19 Q. Are you an Associate Professor of International Law at

    20 the Pantion University of Social and Political Sciences

    21 -- I am sorry, were you an Associate Professor, then

    22 becoming a Professor in 1991?

    23 A. I was, yes. Now I am a full Professor.

    24 Q. And have you been a Member of the European Committee for

    25 the Prevention of Torture and Inhuman and degrading

  62. 1 treatment or punishment since 1991?

    2 A. Yes, and I still am.

    3 Q. Are you a Member since 1990 and were you formerly Vice

    4 President of the Venice Commission for Democracy through

    5 Law?

    6 A. Yes.

    7 Q. And are you a Member of the International Law Commission

    8 since 1st January this year?

    9 A. Yes, I am a Member of the International Law Commission

    10 since the date you have just mentioned.

    11 Q. Now, during the course of your career, have you

    12 participated in bilateral negotiations on behalf of the

    13 Greek government?

    14 A. Yes, many bilateral negotiations.

    15 Q. With respect to Czechoslovakia in 1964?

    16 A. Yes.

    17 Q. Romania in 1966, Yugoslavia in 1974 to 1975?

    18 A. Yes.

    19 Q. USA in 1975 to 1976?

    20 A. Yes.

    21 Q. Turkey in 1976 to 1979?

    22 A. Yes.

    23 Q. And Italy in 1988?

    24 A. Yes.

    25 Q. Bulgaria in 1973?

  63. 1 A. Yes.

    2 Q. And again in Yugoslavia in 1973, in relation to a

    3 Consular Agreement?

    4 A. Yes, that is correct.

    5 Q. Were you head of the Greek delegation in negotiations

    6 with Poland in 1976, Hungary in 1977 and the Soviet

    7 Union in 1978?

    8 A. Yes.

    9 Q. Czechoslovakia in 1980?

    10 A. Yes.

    11 Q. The German Democratic Republic in 1982?

    12 A. Yes.

    13 Q. And Tunisia in 1995?

    14 A. Yes.

    15 Q. And were you head of delegations in negotiations with

    16 Egypt in 1986?

    17 A. Yes.

    18 Q. Hungary in 1987, and Morocco in 1988?

    19 A. Yes, that is correct.

    20 Q. Are you head of the Greek delegation in negotiations

    21 with Germany in 1992?

    22 A. Yes.

    23 Q. Croatia in 1993, Slovenia in 1994, the Czech Republic in

    24 1996?

    25 A. Yes, that is correct.

  64. 1 Q. The Russian Federation in 1994?

    2 A. Yes.

    3 Q. Slovakia in 1995, on the Convention of Status between

    4 Greece and the above mentioned countries, as a result of

    5 state succession?

    6 A. Yes, I confirm everything that you have just said.

    7 Q. Have you participated in international conferences and

    8 meetings; in particular, were you a Member since 1962 of

    9 the various Committees of Experts of the Council of

    10 Europe?

    11 A. Yes.

    12 Q. The 20th Extraordinary Session in Rome 1973, of the ICAO

    13 on International Aviation?

    14 A. Yes.

    15 Q. Were you Chairman of the Committee of Experts of the

    16 Council of Europe for the Examination of the Draft of

    17 the International Law Commission on the Most-Favoured

    18 Nation Clause in 1979?

    19 A. (Nods). Yes. Yes.

    20 Q. Representative of Greece to the Special Committee of the

    21 Charter of the United Nations and the Strengthening of

    22 the Role of the Organisation, 1979 to 1981?

    23 A. Yes.

    24 Q. A member of the Greek delegation at the Third Conference

    25 of the United Nations Conference on the Law of the Sea,

  65. 1 1980?

    2 A. Yes.

    3 Q. A representative of Greece in the United Nations

    4 conferences on succession of --

    5 JUDGE KARIBI-WHYTE: It is all right, Mr. Niemann, I was only

    6 thinking that it looks like a citation, so you might as

    7 well -- I think they all have it.

    8 MR. NIEMANN: I assumed they would object, because they just

    9 received it this morning.

    10 JUDGE KARIBI-WHYTE: You have not read it before because if

    11 you did perhaps you know the areas to emphasise.

    12 MR. NIEMANN: Were you representative of Greece in the United

    13 Nations Conferences on Succession of States in Respect

    14 of Treaties in 1978?

    15 A. Yes.

    16 Q. Succession of States in respect of credits debts and

    17 archives in 1983, and the Law of Treaties Between States

    18 and International Organisations, or Between

    19 International Organisations, in 1986?

    20 A. Yes, that as well.

    21 Q. Were you Chairman of the Committee of Experts of the

    22 Council of Europe for Public International Law in 1982?

    23 A. Yes.

    24 Q. Greece's representative on the 6th Committee of the

    25 United Nations General Assembly in 1977?

  66. 1 A. Yes, that is correct.

    2 Q. Executive Secretary of the European Conference on

    3 Security and Co-operation, meeting on peaceful settlement

    4 of international disputes, in Athens in 1984?

    5 A. Yes.

    6 Q. Chairman of the Steering Committee for Legal Co-operation

    7 of the Council of Europe in 1985?

    8 A. Yes.

    9 Q. A member of the Greek delegation in the mediation

    10 procedure of the auspices of the United Nations for the

    11 settlement of the dispute concerning the name of forum

    12 in 1994?

    13 A. Yes.

    14 Q. Have you appeared as a member of the Greek delegation

    15 before the International Court of Justice in the

    16 Continental Shelf of the Aegean Sea case, in 1976?

    17 A. Yes.

    18 Q. Are you a member of the Permanent Court of Arbitration

    19 since 1979?

    20 A. Yes.

    21 Q. Are you a member of the UNESCO Commission for

    22 Conventions and Recommendations -- were you a member,

    23 from 1985 to 1986?

    24 A. Yes, I was.

    25 Q. Are you an agent of the Greek government before the

  67. 1 Commission and the Court of Human Rights of the Council

    2 of Europe from 1989 to 1991?

    3 A. I was that too.

    4 Q. Have you published books on the Cyprus Question and the

    5 Right of Self Determination?

    6 A. Yes.

    7 Q. The Decision-making Power of European International

    8 Organisations?

    9 A. Yes.

    10 Q. Public International Law?

    11 A. Yes.

    12 Q. The Legal Status of the Greek Islands of the Aegean?

    13 A. Yes.

    14 Q. Have you authored numerous articles and essays dealing

    15 with such matters as the international status of

    16 Antarctica?

    17 A. Yes.

    18 Q. The Legal Nature of Acts of International Organisations

    19 and their effects on Domestic Law?

    20 A. Yes.

    21 Q. The Greek/Yugoslav Agreement of 1975?

    22 A. This is correct.

    23 Q. Revision of the United Nations Charter?

    24 A. Also.

    25 Q. The Manila Declaration on Pacific Settlements of the

  68. 1 International Disputes?

    2 A. Yes.

    3 Q. Consulate Relations and Treaties in the Encyclopaedia of

    4 Public and International Law?

    5 A. Yes, that is correct.

    6 Q. International Institution Acts and Sources of

    7 International Law?

    8 A. Yes.

    9 Q. Relations between International and Domestic law

    10 Collection Science in Europe, 1993?

    11 A. Yes.

    12 Q. And are you finally a member of the Greek branch of the

    13 International Law Association?

    14 A. Yes.

    15 Q. A Member of the American Society of International Law --

    16 MS. McMURREY: Excuse me, I wanted to state that Mr. Landzo

    17 and I believe all the other defendants, even though we

    18 hear the English and the French translation, they are

    19 hearing the Serbo-Croatian all together. There is no gap

    20 between them. If you can ask them to slow down on the

    21 question and answering, your Honour.

    22 MR. NIEMANN: I will slow down, your Honour. American

    23 Society of International Law?

    24 A. Yes.

    25 Q. Member of the Hellenic Committee of Private Law?

  69. 1 A. Yes.

    2 Q. And a Member of the Hellenic Association of

    3 International Law and International Relations?

    4 A. Yes.

    5 MR. NIEMANN: Does your Honour wish to ...

    6 JUDGE KARIBI-WHYTE: We have had the citation now, so we

    7 will break now for lunch and come back at 2.30.

    8 (1.00 pm)

    9 (Luncheon Adjournment)

















  70. 1 (2.30 pm)

    2 MR. MORAN: Your Honour, while they are bringing the witness

    3 in, my client asked me first to thank the Trial Chamber

    4 very much for allowing him to be missing this morning.

    5 Secondly, he asked he to report to the Trial

    6 Chamber what he had been told by the doctor, which is

    7 that at some point he is going to have to go into the

    8 hospital for some physiotherapy on his back for

    9 approximately ten days. We are hoping he can do it in

    10 the break between next Friday and the end of November.

    11 He also said if that is not effective the doctor may

    12 recommend surgery on his back. We wanted to thank the

    13 Trial Chamber for allowing him to see the physician this

    14 morning.

    15 JUDGE KARIBI-WHYTE: Thank you. When will we see the

    16 physician report?

    17 MR. MORAN: I will endeavour to get in touch with the

    18 detention centre either today or tomorrow.

    19 MR. NIEMANN: Before the witness comes in, I would like to

    20 raise this issue of whether or not the witness will

    21 proceed through to cross-examination. The witness has

    22 told me that he has commitments in Strasbourg next week,

    23 so he is most anxious to proceed through his evidence

    24 and into cross-examination. On the issue of the

    25 questions raised in terms of material provided, I would

  71. 1 just like to address a few matters to the Chamber in

    2 case there is any misunderstanding here. The bulky

    3 material given to the Defence is not intended to be

    4 evidence, is not intended to be matters we would seek to

    5 tender. It was merely background information which we

    6 thought would assist them. There is no provision in the

    7 Rules that I know of, or any orders of the Chamber, that

    8 specifically require us to provide this type of

    9 information.

    10 Your Honours did make an order on the 25th January

    11 of this year and in that order you required us to

    12 produce the CV, the name of the witness and a statement

    13 of the area about which the witness will testify. That

    14 had to be done in our application to seek leave to call

    15 the witness. We did that and so that issue and that

    16 requirement and obligation is disposed of in the making

    17 of the application which we did make and which your

    18 Honours granted. So any obligation arising beyond that

    19 does not arise under the Rules or any order of the

    20 court. It certainly does not arise under the Blaskic

    21 case, if it is tried to be suggested that case in any

    22 way assists them.

    23 The information was given to them so they may be

    24 assisted in having material in relation to the Vienna

    25 Convention and the ILC work that this witness was

  72. 1 involved in and was provided by way of assistance and in

    2 the spirit of a collegiate approach to these matters.

    3 If we are going to be met with this sort of response in

    4 the future then we will not even go that far. We were

    5 trying to provide assistance and this is the sort of

    6 response that we are met with.

    7 I should also indicate that the issue that was

    8 raised obliquely by Mr. Moran -- sorry, by Mr. Ackerman --

    9 in relation to Dr. Gow -- I do not want to take your

    10 Honours through it, but I just say because it has been

    11 raised that they have it wrong again and I will be

    12 writing to the Registrar setting out the position in

    13 relation to that.

    14 In my submission there is no basis upon which they

    15 can seek an adjournment of the matter. It is

    16 appropriate for this witness to proceed from his

    17 evidence-in-chief to cross-examination. If your Honours

    18 are minded to proceed tomorrow, which is our

    19 application, that your Honours sit tomorrow, then this

    20 witness, I should say, will be well and truly finished

    21 with his evidence and he can proceed on his way.

    22 Otherwise I do envisage there are going to be

    23 difficulties in trying to persuade him to come back

    24 again at some time in the future. I raise those matters

    25 now.

  73. 1 JUDGE KARIBI-WHYTE: Thank you very much, but I do not see

    2 the need for these arguments. I agree there is no

    3 obligation to provide the articles or documents which

    4 the experts will rely upon, I think, but the CV is

    5 necessary to enable the Defence to study the extent of

    6 the witness' competence. One is not necessarily relying

    7 on the expert's evidence. It depends on what view the

    8 Trial Chamber takes.

    9 MR. NIEMANN: Absolutely, your Honour.

    10 JUDGE KARIBI-WHYTE: This is a matter of law.

    11 MR. NIEMANN: Of course.

    12 JUDGE KARIBI-WHYTE: He might have an impressive CV; that

    13 does not mean that we too do not know what succession in

    14 international law means.

    15 MR. NIEMANN: Quite right, your Honours. I was not touching

    16 on that matter.


    18 MR. NIEMANN: I think that we did provide a resume of his

    19 background and that was done in compliance with the

    20 order of your Honours. But that matter is now disposed

    21 of. The more detailed CV was something that came into

    22 our possession and we thought may be useful to them and

    23 it obviously was not.

    24 JUDGE JAN: If I recall correctly, Defence was referring to

    25 some views expressed in Blaskic case. I am not aware of

  74. 1 what those views were. The Defence had referred to that

    2 case.

    3 MR. NIEMANN: The Defence are referring to, as I understand

    4 it, a statement in the Blaskic case that witness

    5 statements need to be provided. I find it an

    6 extraordinary stretch to go from witness statement to

    7 articles published by an expert.

    8 MR. MORAN: Your Honour, I think what we were referring to is

    9 this that clearly, in our opinion, an article that

    10 I publish or that Mr. Niemann publishes on a subject that

    11 is relevant to something I am going to testify to is my

    12 statement and that our position would be if that article

    13 is in the possession of the Prosecutor, the Office of

    14 the Prosecutor, it should be given to us.

    15 In the Blaskic case, as I understand it, my

    16 reading of the decision was that the Prosecutor took a

    17 very narrow reading of the word "statement". The OTP

    18 took that to mean of those statements we have seen so

    19 many of given to an investigator in the OTP that the

    20 Blaskic Trial Chamber took a much broader view of what

    21 is a statement; anything else that the witness has said,

    22 written, that no matter how or where it comes from, as

    23 long as it is in the possession of the OTP.

    24 JUDGE KARIBI-WHYTE: Surely if an expert is testifying and

    25 you have sources on which you rely for cross-examining

  75. 1 you can do so. But what I am saying I do not think

    2 there is an obligation on the Prosecution to provide you

    3 with the articles or books written by an expert. He is

    4 basing his opinion on what the court wants him to look

    5 into, not necessarily on what he as written. A lot of

    6 them might not be connected to what he is testifying

    7 on.

    8 MR. MORAN: As to Professor Economides, I am not really sure,

    9 from looking at his resume. I am not even sure what he

    10 is going to say today, to tell you the truth. If

    11 someone has published at great length on the dissolution

    12 -- you go to the former Yugoslavia and then gets on a

    13 witness stand and testifies as an expert about that. If

    14 the Prosecutor is in possession of nose prior writings,

    15 it sure would save everybody a lot of time, trouble and

    16 effort if they made copies of them, rather than us

    17 having to pay hundreds of dollars to run them down and

    18 get them off computers and things like that.

    19 JUDGE KARIBI-WHYTE: An academic writer can take opposite

    20 views of topic. In this article he might take one view

    21 in another article, a direct opposite view, depending on

    22 his view and the materials at his disposition at that

    23 time.

    24 MR. MORAN: Of course, your Honour, if witness X were to take

    25 -- were to say A in an article and B on the witness

  76. 1 stand then at that point that article would come

    2 exculpatory material they would have to produce.

    3 JUDGE KARIBI-WHYTE: Not necessary, because it is not a

    4 decision and it is not based on any particular facts on

    5 which you rely. An article is an article sometimes even

    6 thought up by the academic writer himself from what he

    7 thinks it ought to be, not necessarily from any

    8 particular facts.

    9 MR. MORAN: That is true, your Honour.

    10 JUDGE KARIBI-WHYTE: So what does it have to worry so much

    11 about it. When a matter comes before the court with

    12 particular facts that is what is relevant. The opinion

    13 of an academic writer might be relevant; I say might be,

    14 because it can easily be ignored.

    15 MR. MORAN: I agree as to a third party writer. It is when

    16 they appear as an expert and their opinion here differs

    17 from their opinion some place else.

    18 JUDGE KARIBI-WHYTE: Can we have the witness now?

    19 MR. NIEMANN: Yes, your Honour.

    20 MR. ACKERMAN: Your Honour, I want to respond to Judge Jan's

    21 question about Blaskic. I am working from memory of

    22 having read this episode some time back, but my

    23 recollection is on, I think, around 24th June, in the

    24 Blaskic case, the Prosecution sought to call an expert

    25 by the name of Robert Donia. At the time they sought to

  77. 1 call him, Mr. Hayman, on behalf of Blaskic, complained

    2 they had not been provided with a CV, or a complete CV,

    3 in time to gather up all of the materials that that CV

    4 indicated that that witness had written and therefore

    5 had not had time to prepare the cross-examination.

    6 Judge Jorda then went into consultation with the other

    7 two judges on that panel and found that the late or

    8 improper disclosure of CV by the Office of the

    9 Prosecutor was, and I do not want to misquote Judge

    10 Jorda, an egregious error, I think were his words, or a

    11 serious mistake, and as a result that the Defence would

    12 not be required to conduct the cross-examination for a

    13 period of time until they had an opportunity to review

    14 all of the writings.

    15 It is also my recollection that Mr. Donia was not

    16 then cross-examined until about 30 days later, I think

    17 around the 22nd July. We find ourselves in exactly that

    18 position. Only this morning at the break were we given

    19 a CV which lists all the writings of this witness. We

    20 did not have such a CV prior to that time. Therefore,

    21 zero opportunity to find and gather up all of his

    22 writings. We did make independent efforts. We made

    23 searches on the Internet and found nothing about this

    24 man, except one small reference that he was on a

    25 particular commission.

  78. 1 We went to the International Court of Justice and

    2 found I think four or five articles that were written by

    3 him that were in their library. We only discovered,

    4 after the break this morning, the full extent of his

    5 writings, one of them which seems to be extremely

    6 relevant. We do not have them, and the Prosecution has

    7 not given us, and it may take some time to get our hands

    8 on it. I think Mr. Greaves may have more to say about

    9 that particular document.

    10 JUDGE KARIBI-WHYTE: Actually, if counsel had taken

    11 seriously the suggestion of the Trial Chamber these

    12 arguments would no longer arise. We have adverted to

    13 the fact that perhaps you are handicapped in your

    14 preparation for the cross-examination and we felt

    15 perhaps it might be necessary to take some other

    16 measure, some arrangement might be made. That is what

    17 was said at the beginning. I do not see any need.

    18 MR. GREAVES: With respect, the Prosecution is opposing any

    19 suggestion for an adjournment. The matter is now for

    20 your Honour to decide, you being --

    21 JUDGE KARIBI-WHYTE: You have not even started. You do not

    22 know if there would be a need for adjournment.

    23 MR. GREAVES: It may well be this gentlemen says nothing to

    24 cause us to cross-examine him. I think it is right your

    25 Honour should know if he does say something of

  79. 1 significance we will plainly want to advance the

    2 suggestion of an adjournment. So it should not be

    3 thought that any silence on our part indicates our

    4 acceptance of what my learned friend Mr. Niemann has to

    5 say on that subject.

    6 JUDGE KARIBI-WHYTE: Thank you.

    7 (Witness enters court).

    8 MR. NIEMANN: May I just correct something for the record?

    9 The issue in the Blaskic case which primarily occupied

    10 Judge Jorda is that the Prosecution had given the wrong

    11 spelling of the name of the expert witness.

    12 JUDGE KARIBI-WHYTE: Kindly inform the witness that he is

    13 still on his oath.

    14 THE REGISTRAR: You are still under oath, sir.

    15 MR. NIEMANN: Professor, could you explain to the Chamber the

    16 nature of the work which you conducted when you were a

    17 member of the Venice Commission.

    18 JUDGE JAN: Apparently the earphones are not working.

    19 JUDGE KARIBI-WHYTE: Is it working, are you hearing

    20 anything?

    21 A. Yes, I do.

    22 JUDGE KARIBI-WHYTE: Then will you answer the question?

    23 A. The Venice Commission, as I said this morning, was an

    24 organ of the Council of Europe. It was established from

    25 eastern and central Europe to assist those countries to

  80. 1 move forward towards democracy. Its essential purpose

    2 was to study the constitutions and draft constitutions,

    3 to study constitutional courts, the major internal law

    4 drafts. But issues also of international law, which

    5 would be of more general interest for that specific

    6 country. As part of the study of the international

    7 issues the Venice Commission indicated what relation

    8 there was between international law and internal law, as

    9 was pointed out this morning, and the Venice Commission

    10 also reviewed the issue of those cases of state

    11 succession and the repercussion of state succession on

    12 physical persons.

    13 I had the honour of being one of the reporters of

    14 the Venice Commission, doing its work. The Venice

    15 Commission, in order to come up with a text which

    16 represented its declaration, set up a complete

    17 questionnaire which was distributed to all the members

    18 and to those members -- all the States that were the

    19 members of the Council of Europe. The States answered

    20 the questions and on the basis of the answers we drafted

    21 a draft statement, which I have with me. This work was

    22 done with a great deal of care after an investigation

    23 which was very detailed, on the part of all the states

    24 which answered the questionnaire and on the basis of

    25 those questions, that is the practice of the states,

  81. 1 allowed us to set up a draft declaration, having to do

    2 with state succession and the nationality of physical

    3 persons.

    4 Q. Professor, can I just, before I go to my next question,

    5 may I ask you to speak as slowly as possible because the

    6 -- what you say must be translated into a number of

    7 languages, and there are -- it is a very difficult

    8 process if you speak very quickly. Can I ask you if you

    9 could speak slowly, please?

    10 A. Okay.

    11 Q. What was the nature of your work then with the

    12 International Law Commission, Professor, what did you do

    13 there?

    14 A. The International Law Commission began that year to

    15 review the same questions, except that its purpose --

    16 the title was a little different. The title of the

    17 International Law Commission was Nationality of Physical

    18 Persons as Relates to State Succession. But in fact the

    19 issue was the same. This year the International Law

    20 Commission was able to adopt at the first reading a

    21 draft article on the issue.

    22 The Commission's work was done as follows: the

    23 reporter of -- the special reporter, that is -- he would

    24 present a very, very detailed volume and a draft article

    25 and then the other members of the Commission reviewed

  82. 1 it, article by article, that is the entire draft, and at

    2 the end would reach adoption of draft order -- a draft

    3 which was accepted the first reading. It was not a

    4 definitive draft, it was still a draft which still has a

    5 great deal of work it requires before it can be adopted

    6 definitively.

    7 It must first be reviewed by the Legal Commission

    8 of the United Nations, which is being done right now,

    9 during the General Assembly session. Afterwards, next

    10 year, the various states will make their comments on the

    11 draft articles. Then, based on the observations of the

    12 6th UN Committee and the observations of other states,

    13 the International Law Commission will review once again

    14 the same question so that it may be adopted during the

    15 second reading. This will be done in about two or three

    16 years, perhaps even longer. Once this draft has been

    17 adopted in the second reading it will be sent to the

    18 United Nations General Assembly which will convene an

    19 international conference to adopt a convention on the

    20 question. Therefore, this procedure has been launched

    21 and the fact that a draft at the first meeting was

    22 already adopted, a draft which has a certain weight, and

    23 the International Court of Justice even has cited the

    24 work of the International Law Commission, which is at a

    25 prior stage than the one reached during the first

  83. 1 reading.

    2 As far as I am concerned, I was involved in this

    3 review, and I must say that I was an active participant.

    4 Q. Professor, did there emerge, from your work in both the

    5 Venice Commission and the International Law Commission,

    6 a general consensus of what was understood by the word

    7 or term "nationality"?

    8 A. Yes. I think that as regards the concept of nationality

    9 there would no -- there were no differences of opinion.

    10 There was a total agreement, a general consensus.

    11 Nationality, according to all definitions which carry

    12 weight, is a legal condition which links an individual

    13 to a state, that is the link of nationality. Of course,

    14 nationality as a matter, as a question falls under the

    15 jurisdiction of states, state jurisdiction. Several

    16 years ago it was thought that it was an exclusively

    17 national issue. Now the issue has been looked at again

    18 and the question of nationality is part of state, but

    19 under the limits that have been set by international

    20 law. A specific case which illustrates this. Therefore

    21 there are states, or states are the ones who are those

    22 who have jurisdiction over nationality, and they are the

    23 ones who can say, through their laws, who their

    24 nationals are, who their citizens are, each state. This

    25 was a sovereign right of each state, that it designates

  84. 1 who its nationals are.

    2 But the designation must be done according to

    3 international law, and there we find very well known

    4 criteria. There is the question of territory, there is

    5 the question of soil, there are the criteria of jus

    6 soli, jus sanguis. The child of somebody can have his

    7 father's nationality and therefore can be Greek or

    8 Italian, if his father is Greek or Italian. It is even

    9 the naturalisation process that there are certain people

    10 who are not nationals but foreigners, but are connected

    11 to a specific territory and can, under those conditions,

    12 obtain the nationality of the state through the

    13 naturalisation process. This is a process which is very

    14 well known and I do not think there were any

    15 discrepancies in this concept as far as nationality

    16 goes.

    17 Q. Did the International Law Commission or the Venice

    18 Commission of which you were part determine what

    19 obligations in particular applied to states when it

    20 comes to the issue of nationality and nationality laws?

    21 A. Yes. I would say that there were three essential

    22 obligations which existed in international practice and

    23 have existed almost for ever, at least since the last

    24 century, and these obligations were indicated by the

    25 Venice Convention and by the International Law

  85. 1 Commission; perhaps not always in the same terms, but

    2 there were three obligations which are very fundamental

    3 and they are: each individual who is involved in a state

    4 succession has the right to have a nationality. It has

    5 been considered that the rights to nationality are

    6 rights of the person, of human rights proclaimed by the

    7 Universal Declaration of Human Rights and recently as

    8 well by the Council of Europe.

    9 As far as nationality is concerned, this was

    10 specifically proclaimed and nobody would challenge the

    11 legal basis of that, as this person would have the right

    12 to nationality. And the principles specifically apply

    13 in state succession. These great principles, when there

    14 is state succession, are cases in which states as far as

    15 possible must try to avoid statelessness. Statelessness

    16 would be considered as an undesirable condition which in

    17 some way is rejected, so that people do not become

    18 stateless after a state succession. That is the first

    19 principle.

    20 And the second one is very intricately connected,

    21 because one would have normal nationality, no longer be

    22 statelessness, but these two principles exist in the law

    23 of state succession.

    24 The third principle is that the state which grants

    25 its nationality to a person or group of persons must

  86. 1 respect the will of those persons. Respect for will is

    2 also an essential rule which has been gaining more and

    3 more ground in international law, and this is the third

    4 rule, I could say, of the right of the law of state

    5 succession, which has been codified, if I could express

    6 myself that way, by the Venice Commission and by the

    7 International Law Commission in their work. And the

    8 clarification of the International Law Commission, that

    9 the purpose of the International Law Commission was the

    10 codification and the progressive development of

    11 international law.

    12 So these are the three obligations which are

    13 absolutely fundamental to state succession.

    14 Q. Has the issue of nationality gained prominence in recent

    15 times in the international community, and if so, why has

    16 that happened?

    17 A. The issue of nationality always is a very basic one, for

    18 the international community and for international law as

    19 well, and primarily so for international law, in as much

    20 as international law is based on states, it is state --

    21 the law between states. The state rests on its

    22 population and the population is mainly consisting of

    23 nationals for each state. Therefore, the nationality

    24 designated nationals of one state is, as it were, at the

    25 basis of internal law, but also of international law.

  87. 1 It is therefore of very high relevance.

    2 Nationality also is important in international

    3 law, with regard to humanitarian law. For instance, the

    4 nationality of a person will determine the rights that

    5 can be applied. Recently, with the emergence of

    6 conflicts across ethnical groups, ethnic groups, various

    7 groups, there are increasing problems in determining the

    8 nationality of a group of people, persons belonging to

    9 this or that group, and this gives even more importance

    10 to this question, makes it even more difficult to deal

    11 with. But these are recent events, relating to recent

    12 historical developments.

    13 Nevertheless, in this respect we often come across

    14 very tough problems when it comes to nationality.

    15 International law is more and more at loggerheads and is

    16 trying to find solutions to the problems. The present

    17 codification might help and assist in sorting the

    18 problems.

    19 Q. Professor, during the course of your involvement with

    20 the International Law Commission and the Venice

    21 Commission, did you look at the issue of state

    22 succession in the context of the former Yugoslavia as

    23 one of the examples that you considered?

    24 A. The case of the former Yugoslavia was mentioned, for

    25 instance by the special reporter, who mentioned it

  88. 1 several times. But the members of the commission,

    2 myself included, did not look into it particularly. It

    3 was quoted, cited as an example but it was not surveyed

    4 by the members of the commission, but special reporter

    5 took account of that example, of that case, when it

    6 stated the examples, because it really listed all the

    7 recent examples, including those concerned by the former

    8 Yugoslavia.

    9 Q. Professor, during the course of a state succession what

    10 nationality do the residents of the territory of the

    11 successor state who were nationals of the predecessor

    12 state assume?

    13 MR. MORAN: Excuse me, your Honour, I am going to object to

    14 this. I believe they are collaterally estopped from

    15 getting into this issue because the appellate decision

    16 in the Tadic decision -- I believe it is paragraph 77,

    17 but do not hold me to that number specifically -- held

    18 that Bosnian Serbs are citizens of the Republic of

    19 Bosnia-Herzegovina.

    20 JUDGE KARIBI-WHYTE: What is the meaning of your objection?

    21 MR. MORAN: Your Honour, they are trying to relitigate an

    22 issue which has already been authoritatively decided by

    23 the appellate Chamber. It is essentially a collateral

    24 estoppel issue.

    25 JUDGE KARIBI-WHYTE: That is not necessarily the issue. All

  89. 1 the expert is giving is his knowledge of the subject

    2 matter from every authority and the Lord above. If this

    3 is one of the authorities he is using that is a

    4 different matter. He is not bound to ignore an

    5 authority because it is still in dispute.

    6 MR. MORAN: I do not think that in this court that is in

    7 dispute. I think the Appeal Chamber has ruled it is

    8 binding on all of us here.

    9 JUDGE KARIBI-WHYTE: He is not giving evidence of matters

    10 which are in dispute. He is giving evidence of matters

    11 on which his expert knowledge is relevant.

    12 MR. MORAN: My objection is overruled, your Honour. Thank

    13 you very much.


    15 MR. NIEMANN: Professor, do you need me to repeat the

    16 questions?

    17 JUDGE KARIBI-WHYTE: Yes, remind him of the question.

    18 MR. NIEMANN: My question is, during the course of a state

    19 succession, what nationality do the residents of the

    20 territory of a successor state who were nationals of the

    21 predecessor state assume?

    22 A. I can give you a very categorical answer, and I am

    23 talking about a rule, a legal standard, which, according

    24 to the prevailing opinion, has the value of rule of

    25 international customary law and this is the rule. The

  90. 1 successor state must grant its nationality to all

    2 nationals of the predecessor state habitually residing

    3 in the territory of the successor state. Therefore,

    4 there is an obligation to grant the nationality without

    5 any discrimination whatsoever to all nationals of the

    6 predecessor state, those nationals being attached,

    7 linked to the territory, having their permanent habitual

    8 residence in the territory of the successor state. That

    9 is the more stable, the most solid rule in state

    10 succession.

    11 Q. How significant is the issue of avoiding statelessness

    12 in this consideration?

    13 A. Statelessness is a second element in succession law.

    14 The Venice Commission and the ILC have established rules

    15 that enable us to face the problem and to cope with the

    16 problem of statelessness. There is that one rule that I

    17 have just spelled out, that the successor state is

    18 entitled to grant nationality to anybody residing in its

    19 territory. That is a rule that is against

    20 statelessness, a rule that is such as to rule out the

    21 problem of statelessness. But there are other cases and

    22 rules for statelessness. The most important rule is

    23 that, in spite of the fact that the state granted its

    24 nationality to all residents in its territory, should

    25 there be other people who become stateless due to the

  91. 1 succession of states, the successor state has to grant

    2 the nationality, its nationality, to those people who

    3 became stateless because of the state succession.

    4 These are very specific cases, but the rule is as

    5 I stated, and it is to be found in the declaration of

    6 the Venice Commission and more generally to be found in

    7 the draft articles of the ILC.

    8 Therefore, the state must simultaneously grant its

    9 nationality to everybody but also fight statelessness,

    10 but grants its nationality to those who become stateless

    11 because of the state succession.

    12 Q. In addition to that, is there a right of option to

    13 nationality in the context of state succession?

    14 A. Certainly. According to traditional practice the right

    15 of option has been established for a long time. It was

    16 anchored in international treaties concluded after state

    17 succession, or running parallel to the succession of

    18 states. But this right of option is becoming

    19 increasingly more important due to the development of

    20 the various theories regarding human rights. The

    21 European Convention on Nationality, which I have quoted

    22 already, stated expressly in Article 18 that the

    23 successor state must grant its nationality, and criteria

    24 have to be fulfilled, including that of the will of the

    25 person.

  92. 1 In other words, each state must endeavour not to

    2 grant its nationality against the will of the people

    3 concerned.

    4 Now, when it comes to the right of option, there

    5 used to be a mechanism which probably remains the

    6 prevailing mechanism -- this is my personal view, others

    7 might not be of this view -- by which the state which is

    8 the successor state is entitled to grant its nationality

    9 to everybody, regardless of the question of the will of

    10 the person. But should the state after a certain time

    11 realise that there are indeed groups of people who do

    12 not want of that nationality for one reason or another,

    13 then the state must, within a reasonable period of time,

    14 grant a right of option for those people to express

    15 themselves for keeping the nationality of the successor

    16 state or for the acquisition of the nationality of the

    17 predecessor state, for instance, or of a new state

    18 should the predecessor state cease to exist.

    19 So, according to this scenario, the right of

    20 option applies, but it applies only after a certain

    21 period of time has elapsed. The International Law

    22 Commission on this issue wants to be a bit stricter. It

    23 wants that right of option, and the work is not

    24 completed yet, but the ILC wants the right of option to

    25 be more immediate; if possible, it wants it to be

  93. 1 applicable as of the succession of states, within or

    2 without undue delay. This is a trend that comes on top

    3 of a very constant and solid practice which I have just

    4 sketched out. So after a reasonable period of time

    5 there can be this right of option, but the trend is for

    6 that right of option to be exercised as soon as

    7 possible.

    8 Q. Professor, how important is the will of persons

    9 concerned in deciding whether to grant a right of

    10 option?

    11 A. The will of persons is a criterion that is gradually

    12 gaining ground. It is quoted by the Council of Europe

    13 as one of the decisive criteria when it comes to

    14 granting nationality. This criterion sort of is issued

    15 from the human rights, is under the human rights. There

    16 are two principles. You may not deprive somebody

    17 arbitrarily of his or her nationality. This has been

    18 anchored in the Universal Declaration of Human Rights.

    19 The second principle is that you can not grant somebody

    20 a nationality against that person's will. It can be

    21 done, but only for a short or relatively short period of

    22 time until matters are settled by the right of option,

    23 as I have just said.

    24 In the last century the right of option was

    25 already an important concept, but remained secondary.

  94. 1 But it is gradually and presently becoming a very

    2 relevant issue.

    3 Q. Professor, are you able to give us some examples of

    4 where this right of option has been granted, instances

    5 where it has occurred?

    6 A. All the peace treaties signed after the First World War,

    7 be it the Treaty of Versailles, Trianon, The Hague

    8 Convention; all treaties signed after the First World

    9 War had the right of option for population that followed

    10 the territory that was attached to another state whilst

    11 those populations belonged ethnically to another state.

    12 So such rights were granted quite broadly to all such

    13 populations in Germany, Poland, in many instances to

    14 grant the right of option within reasonable period of

    15 time. It was a very common practice, well established

    16 practice after the First World War.

    17 Such practice was also adopted by my country.

    18 Greece had five successions of states. There was first

    19 the creation of the Greek state, and then there were

    20 territories added to Greece, transfer of territories on

    21 which there were still Muslims. That was the case three

    22 times, and then there was the case of the Dodecanese in

    23 1947, where there were people who spoke Italian. In all

    24 such cases, Greece organised a right of option for

    25 Muslims, for Bulgarians as well and also for Italians,

  95. 1 so they could express themselves, to decide whether they

    2 wanted to have Greek nationality or Turkish, Bulgarian

    3 or Italian nationalities. So these are historical

    4 cases.

    5 But presently, recently I should say, as new

    6 events emerge in history, there is a new type of right

    7 of option. It is organised by the domestic law of

    8 states on an individual basis. In other words, the

    9 state puts the question to a specific group of persons,

    10 asking whether they want to adopt the nationality of the

    11 state, which they can do if they so wish.

    12 I quote the example of a recent Slovenian law,

    13 which granted such right to all nationals of the former

    14 Yugoslavia who were not Slovenes but came from other

    15 parts of the former Yugoslavia. Those people lived in

    16 or resided in the territory of Slovenia, so such right

    17 was granted to Bosnians, to Croats, and there was the

    18 possibility of becoming Slovenes. So it was based on

    19 internal law. It was the option for one nationality

    20 only, for the Slovenian nationality. It is not a pure

    21 case of option, but it remains that it is an option that

    22 is granted through domestic law.

    23 That can be found just about everywhere in

    24 the Czech Republic, in Slovakia and also in the former USSR,

    25 I believe, which granted the right to specific groups of

  96. 1 peoples to opt for a given nationality. There is a very

    2 rich practice when it comes to the option of

    3 nationality, be it on the basis of an international

    4 treaty or on internal law.

    5 Q. I think another instance may be the separation of

    6 Bangladesh from Pakistan, is that correct Professor?

    7 A. Indeed. That is another example. It can be found also

    8 in Surinam, in the world over. But in respect of

    9 Bangladesh and Pakistan, there was a right of option

    10 organised by Bangladesh, which attributed its

    11 nationality to all those deemed by the state to belong

    12 to Bangladesh, but Bangladesh said to those who were

    13 probably from Pakistan but residing in Bangladesh, said

    14 to those that they had the right to opt for the

    15 Pakistani nationality within a time period of nine

    16 months after the succession, so there is granting of

    17 nationality to people who are not nationals of

    18 Bangladesh but who live in the territory, who ethnically

    19 had common denominators with the state of Pakistan,

    20 while those people had the right to opt for the

    21 nationality of Pakistan.

    22 Q. Professor, do you have any view on the situation in the

    23 former Yugoslavia, where in particular

    24 Bosnia-Herzegovina, in terms of the particular groups

    25 there, in relation to the right of option in the context

  97. 1 of the dissolution?

    2 A. Yes. Indeed. In Yugoslavia, each state or each part

    3 which became a state after the dissolution of

    4 Yugoslavia, settled this matter by way of its internal

    5 law. There was no international agreement. I mentioned

    6 the case of Slovenia earlier on, which granted the right

    7 of option to all residents or non-Slovenian residents

    8 living in territory of Slovenia, and the same holds true

    9 for Croatia, although I believe there were some stronger

    10 conditions. Croatia said that people had to be present

    11 in the territory. Those belonging to the Croatian

    12 people but who were not Croats had to have a presence in

    13 the territory for I believe ten years. I do not know

    14 whether this was carried out by the former Republic of

    15 Macedonia, I am not that aware of that.

    16 As far as Bosnia-Herzegovina is concerned, I do

    17 not think that there was a right of option, as far as

    18 I could gather from the examples I read. There was no

    19 such right of option. There is law that was passed,

    20 I believe, in 1992 and 1993 on nationality, but as far

    21 as I can remember there was no right of option granted

    22 to specific categories of people.

    23 Q. From your understanding of the position in

    24 Bosnia-Herzegovina, are any of the conditions arising

    25 there -- would any of the conditions that arose there

  98. 1 justify the granting of such an option, in your opinion?

    2 A. Certainly, yes, I think that this right of option is

    3 justified whenever you have population, or population

    4 residing in the territory of the successor state, such

    5 population being only religiously -- belonging,

    6 religiously or ethnically speaking, to a different

    7 community. Whenever there is a different community the

    8 right of option must be granted, and in the case in

    9 point, there was the Serb community, but you know that

    10 the right of option is ruled by two criteria, that is to

    11 be found in law. Everywhere the corpus and the animus.

    12 The corpus are the objective elements. You have a

    13 population which is different from the rest of the

    14 population, though it is a population that has a

    15 different religion or different ethnic origins or other

    16 beliefs. Therefore, this population has features,

    17 characteristics that are essentially different from

    18 those of the rest of the population, so there we are in

    19 the domain of the right of option.

    20 But you have to look into the animus of the

    21 population. Does the population want to have the right

    22 of option or not. As far as I could gather, from what

    23 I know as well, I believe that Serbs would have wished

    24 to have the right of option to be able to express

    25 themselves responsibly for the nationality of

  99. 1 Bosnia-Herzegovina or for the nationality of Serbia.

    2 So in any case, and that is the rule whenever you

    3 can legitimately assume that a group of persons -- not

    4 every individual in the group, but parts or major parts

    5 of the groups -- do not want to have ex lege the

    6 nationality granted by authority, by the successor

    7 state, while, respecting the will of the person and of

    8 the group, the right of option must be granted. So

    9 I say yes to your question that all the conditions were

    10 fulfilled for the right of option to exist for the Serb

    11 population in Bosnia-Herzegovina.

    12 Q. Professor, how important is the perception maintained by

    13 one particular group to another group, in one community

    14 to another community, in the determination of the issue

    15 of nationality on state succession?

    16 A. As you know, nationality is a human right. Therefore,

    17 it is the person concerned who must have the last word.

    18 Nobody else can decide instead of that one person. In

    19 situations of state succession you can, for a given

    20 period of time, grant or the nationality ex lege, but

    21 after that period has elapsed the right of option must

    22 be granted. Nationality is something absolutely

    23 relevant and major. There is an immediate link between

    24 nationality and the person, and each person, each group,

    25 will have its own perception of nationality.

  100. 1 I know of people in Greece, for instance, who

    2 would never envisage changing nationalities, that would

    3 be really quite an issue for such people. So basically

    4 it is a subjective element, and each person, with their

    5 sensitivity, their history, will have their own views of

    6 nationality. But we have a guiding principle in this

    7 issue; that is that each individual is free to express

    8 their views for or against a given nationality; thus, we

    9 are talking about an individual right.

    10 Q. No further questions, your Honour.

    11 JUDGE JAN: I want to ask a question of the Professor. You

    12 are probably right that everyone should be given the

    13 option to exercise whenever there is a case of

    14 succession, but until that option is exercised, how

    15 would the individual be treated? As a citizen of the

    16 new state, or of the parent state? Some time must

    17 elapse before the option can be exercised. How would he

    18 be treated before that option is exercised, a citizen of

    19 the successor state or the parent state?

    20 A. The rule is that the citizen who acquires the

    21 nationality after the state succession and attains the

    22 nationality of the successor state is a national of the

    23 successor state in all sense of the words, without any

    24 discrimination. They are on equal footing with the

    25 other nationals. There must not be any discrimination

  101. 1 between nationals. All must be on the same footing. Of

    2 course the question also depends on the assumptions of

    3 whether or not the predecessor state continues to exist

    4 or whether it has ceased to exist. Such a case -- the

    5 right of options, if there are rights of options -- can

    6 be played on the level of the successors, and not the

    7 predecessor state. In the first case, if the

    8 predecessor state does exist the right of option must be

    9 offered, either for the predecessor or the successor

    10 state. I do not know if I understood absolutely your

    11 question.

    12 JUDGE JAN: I repeat; the right of option on succession --

    13 some time must elapse before the option can be

    14 exercised; during the interregnum, an individual living

    15 in the succeeding state, would he be treated as a

    16 citizen of the succeeding state, or the parent state,

    17 during the interregnum before he exercised his option?

    18 A. This also depends on internal law of the state.

    19 According to international practice that I have cited,

    20 everybody became a national of the successor state at

    21 the very moment of the succession, all at once and

    22 automatically. Everybody acquired the nationality of

    23 the successor state at the time succession occurred.

    24 But a state could then say, "no, you will hold on to

    25 your pre -- your successor nationality. Then we will

  102. 1 organise right of option so that we can then say that

    2 you wanted to have the predecessor state or if you want

    3 to acquire the nationality of the successor state".

    4 Each state can regulate this and organise it as it

    5 wants, that is in relation to the right of option.

    6 JUDGE JAN: Thank you.

    7 JUDGE ODIO-BENITO: Professor, do you know what is the

    8 legislation in Bosnia on nationality at present?

    9 A. I will tell you what I know. I hope that I am not going

    10 to make a mistake. I did not read the Bosnian

    11 legislation, the laws, not themselves. I have looked

    12 through examples in Mr. Mikulka's report in the

    13 International Law Commission's work and I can give you

    14 the following impressions that I will explain to you.

    15 Bosnia-Herzegovina, and first, let us say, in 1992,

    16 passed a law and gave its nationality to all those

    17 persons who previously had Bosnian citizenship as part

    18 of the former Yugoslavia. All Bosnian citizens became

    19 nationals of the Bosnian state.

    20 But here we see already a gap, because the

    21 non-Bosnian residents remained unaccounted for. The

    22 non-resident Bosnians, according to the rule that I have

    23 just given you, that each of the successor states is

    24 obliged to give its nationality to all nationals of the

    25 predecessor state that are on its territory, in this

  103. 1 case the rule was not applied. But this was remedied a

    2 year later by a new law or a decree, I am not sure, at

    3 least in some kind of internal Act in 1993, which gave

    4 to everybody the right to be a Bosnian national at the

    5 very point, so long as that person, or from the point

    6 that that person was residing on Bosnian territory. So

    7 I think there was a year that evolved between the two,

    8 but there was a remedy for it. I do not think there was

    9 a right of option in Bosnia-Herzegovina, not in 1992 or

    10 in 1993 or even later, at least according to what

    11 I know.

    12 Let me repeat once more, I did not read the actual

    13 Bosnian laws, I did not study this issue and my

    14 knowledge comes from reports which I read here and there

    15 and might not in fact completely match the facts, which

    16 is why I am saying that subject to certain conditions.

    17 JUDGE ODIO-BENITO: Thank you. It is possible, Professor,

    18 to have different legal concepts of nationality in the

    19 international arena. I am wondering about the usage of

    20 the word "nationality" in the Geneva Conventions, for

    21 instance.

    22 A. You know, that nationality is a legal concept, that is

    23 nationality. But often when, for example, there are two

    24 or even three states which claim that they are the

    25 national state of the person, or a group of persons; in

  104. 1 that case there is another notion which comes into play,

    2 which was put forth for the first time by the

    3 International Court of Justice in the Notebon case, that

    4 is the effectiveness, the idea of effectiveness.

    5 There was Liechtenstein, which claimed that Notebon

    6 was a national of Liechtenstein. On the other side was

    7 Uruguay, saying Notebon was Uruguayan and linked to

    8 Uruguay. The court settled the dispute by applying the

    9 principle of effective nationality, by stating the issue

    10 of what was the country with which he had the closer

    11 detachment, what was his real nationality, where did he

    12 work, where was his business, where did he have his

    13 career. In that case, they tried to find the

    14 connections -- not the legal connections, because there

    15 were already on both side legal connections, he had both

    16 nationalities at the same time -- what was his real, his

    17 genuine one. In the end, the court settled the issue by

    18 using effectiveness as an example and saying that it was

    19 Uruguay because he had many more daily and substantive

    20 and real connections with Uruguay than he had with

    21 Liechtenstein. Therefore I think, even when there are

    22 armed conflicts, the notion of effectiveness that is the

    23 belonging, the connection, this is a notion of sovereign

    24 law and this is something which can settle ambiguous

    25 questions by reviewing things and looking at, seeing at

  105. 1 what side the people really were in every day life.

    2 I think that this was a guiding principle which is

    3 extremely significant.

    4 JUDGE ODIO-BENITO: Thank you. No further questions.

    5 JUDGE KARIBI-WHYTE: Have you any further questions. Any

    6 cross-examination so far?

    7 MR. MORAN: Your Honour, can we mull over it? I think we

    8 have asked for the adjournment based on the late notice

    9 of his CV. We ask, at a minimum, to start tomorrow

    10 morning.

    11 JUDGE KARIBI-WHYTE: There are so many questions which could

    12 be asked without even his CV. These are ordinary,

    13 simple questions on the nature of the succession itself

    14 and the effect of the persons. Unless you are not

    15 really keen on any questions? If you are ...

    16 MR. MORAN: Can I confer with my colleagues for a second,

    17 within the courtroom?


    19 MR. ACKERMAN: Let me suggest we might take our break now

    20 instead of later, so that we can have a conference.

    21 JUDGE KARIBI-WHYTE: We will come back at 4.30. You will

    22 have sufficient consultation. 4.15.

    23 (3.40 pm)

    24 (Short break)

    25 (4.15 pm)

  106. 1 JUDGE KARIBI-WHYTE: You can invite the witness back,

    2 please.

    3 (Witness enters court)

    4 JUDGE KARIBI-WHYTE: Will you kindly tell the witness that

    5 he is still under oath?

    6 THE REGISTRAR: I would like to remind you that you are

    7 still under oath, sir.

    8 MR. GREAVES: Your Honours very kindly gave us an opportunity

    9 for us to discuss the matter we were discussing before

    10 the break amongst ourselves. Although I know each of my

    11 friends wants to say something in relation to this

    12 matter, the position is this: none of us feels that we

    13 are in a proper position properly to cross-examine this

    14 witness today.

    15 I am going to, if your Honours will indulge me,

    16 please, for a moment, just remind you of the history of

    17 this matter. Your Honours, the first CV of this

    18 gentlemen was supplied to us, as it was indicated by

    19 Mr. Turone last week, that was supplied to us on the 1st

    20 October. As your Honours will recall, my learned friend

    21 Mr. Ackerman told you and it is the case that that CV was

    22 two paragraphs long, and by two paragraphs I mean two

    23 short paragraphs. It was, in my respectful submission,

    24 hopelessly inadequate as a CV of a kind that your

    25 Honours were plainly contemplating when you made the

  107. 1 order on 27th January, 25th January of this year.

    2 I will return to your Honours' order in due course, if

    3 I may.

    4 The second CV was supplied last week, along with a

    5 number of other documents which are pertinent to this

    6 matter. That is a document which of course my learned

    7 friend Mr. Niemann is right in saying is in one of the

    8 official languages of the Tribunal. However, and it may

    9 well be that they were not aware of this, in the light

    10 of the third CV which has been supplied, that document

    11 too can be seen to be hopelessly inadequate. I do not

    12 blame them for the second CV in any way at all. That is

    13 plainly, it seems to me, the fault of the witness in not

    14 providing an adequate CV. However, the first CV that

    15 was supplied, as I have indicated, was plainly

    16 inadequate, and they most have known that and must have

    17 realised it was inadequate.

    18 The third CV was supplied this morning, as your

    19 Honours know. That document has revealed that it is now

    20 probably a proper compliance with your Honours' orders,

    21 save as to the question of time. Contained within it,

    22 instead of the nine documents, or publications, rather,

    23 that the second CV mentioned, this witness has created,

    24 mentioned a number of other completely new publications

    25 of which we had not heard. I refer to them in

  108. 1 particular, which may or may not be of interest to us,

    2 depending on what is contained within them.

    3 One is said to be an article on the reasons for

    4 the conclusion in 1977 of two additional protocols to

    5 the international humanitarian law in new international

    6 humanitarian law in armed conflicts. That is published

    7 in Athens and in Greek. It is a long time since I did

    8 any Greek and that was of the ancient variety. Your

    9 Honours will see that is a document which is pertinent

    10 to this matter and secondly, one we should be entitled

    11 to have a look at if we can and secondly to have

    12 translated. That will take time.

    13 The second document that may interest us, although

    14 I do not know at this stage, is the book he wrote in

    15 1956 on the Cyprus question and the right of self

    16 determination. Again, your Honours may see that may

    17 well be pertinent to the question of will raised by this

    18 witness. That was another book not mentioned in the

    19 second CV at all.

    20 Your Honours, the issue of nationality is an

    21 important one. It is plain, in my respectful

    22 submission, from the pre-trial brief filed by the

    23 Prosecution, from pre-trial briefs filed by Defence

    24 counsel, and from the reply that was filed by the

    25 Prosecution to those pre-trial briefs, that the issue of

  109. 1 nationality is one which you are going to have to deal

    2 with in due course.

    3 I managed to avoid doing international law at

    4 university and in present weeks I have spent some time

    5 reading and trying to learn as much as I possibly can

    6 about it. It is not a straightforward subject.

    7 I expect my detractors would say, "that is because you

    8 are not very bright and you do not understand it". The

    9 reality is it is not a straightforward subject and one

    10 which takes a little time to grasp.

    11 This comes to the nub of it. It is an important

    12 matter. This witness has, probably through his own

    13 fault, failed to provide an adequate CV in the terms of

    14 your Honours' order. I remind you of the order. It is

    15 to timely notice of the expert witnesses, the name of

    16 the witness, the witness' CV and a statement of the

    17 areas about which the witness will testify. I return to

    18 that last phrase, because looking at the application

    19 made by my learned friend Mr. Turone, he tells us what

    20 the subject was going to be in a total of four words

    21 "state succession and nationality". That is about as

    22 uninformative as it possibly could be. So it is not

    23 until today that we have any idea at all first of all

    24 what the text of the evidence is going to be and what

    25 the import of it is going to be.

  110. 1 Your Honour, none of us feel that we are in a

    2 properly prepared position or that we have had adequate

    3 time to prepare to cross-examine this witness. I rely

    4 in particular, but not exclusively, upon those two

    5 articles that I have mentioned to you as being those

    6 about which we have only found about today, both of

    7 which are both plainly pertinent to this subject.

    8 Your Honour, if this means the witness has to come

    9 back next week and it is inconvenient to him, then he

    10 only has himself to blame for failing to provide a

    11 proper CV to the Prosecution. If he cavils at the

    12 suggestion he has to come back this week, your Honours,

    13 of course, as has been made plain in the court, have

    14 powers to make him come back next week if so required.

    15 In our respectful submission, this is an issue

    16 which goes fundamentally to the question of whether or

    17 not the defendant is going to be given a fair trial on a

    18 matter of considerable importance. We respectfully

    19 submit that it would on this occasion be a proper way in

    20 which to deal with this matter to grant an adjournment

    21 so that the Defence can have an adequate time properly

    22 to prepare to cross-examine this witness. We have in

    23 mind that this case should be adjourned until Wednesday

    24 of next week to enable us to secure these documents and

    25 have them translated from Greek. Your Honour, that is

  111. 1 our application.

    2 JUDGE KARIBI-WHYTE: Are you really suggesting that from the

    3 expert evidence we have here so far you have been so

    4 startled that you can do nothing to it?

    5 MR. GREAVES: It is not a question of doing nothing, it is

    6 doing it properly and in one go. One would hate to

    7 discover next week that the articles this gentlemen has

    8 written contain a number of either completely contrary

    9 statements compared with his evidence, or that there was

    10 something extremely helpful in them and that we have

    11 been deprived of the opportunity to put those in proper

    12 context.

    13 MS. McMURREY: Your Honour, I am sorry.

    14 JUDGE KARIBI-WHYTE: Yes, you can go on.

    15 MS. McMURREY: Counsel and Mr. Landzo support our colleague

    16 Michael Greaves in his submission that we believe we

    17 could be ready by next Wednesday. I would like to add

    18 also that it is unfortunate that it would be

    19 inconvenient for Professor Economides to have to return

    20 next week, but so that due process might be seen, as was

    21 evident with General Pasalic, who was here under

    22 subpoena at violation of his religious beliefs, that

    23 sometimes those things become necessary when there is a

    24 scheme this large going on that affects so many

    25 different people. We ask also that so that due process

  112. 1 can be had for our accused I am sure you know that if

    2 one of these documents shows up that he said something

    3 contrary. It is not important that we do not understand

    4 what he is saying today but it might be important for

    5 impeachment purposes if he has contradicted himself. We

    6 ask this court to please allow us a few days to

    7 prepare. Thank you.

    8 MR. MORAN: Your Honour, joining with my friends, I might add

    9 one thing, that the short synopsis of what we were given

    10 that he was going to talk about was trying to guess what

    11 he was going to say was similar to reading tea leaves.

    12 In thinking about his testimony, I related it to a

    13 response to a pre-trial memo that Mr. Dixon filed back in

    14 April and thought that it might be prepared back in

    15 April that his testimony would be along those lines,

    16 which is something different from what he has testified

    17 to, a different subject area, completely different.

    18 MR. O'SULLIVAN: Your Honours, on behalf of Mr. Delalic, we

    19 would adopt the submissions by our learned friend

    20 Mr. Greaves on this matter.

    21 JUDGE KARIBI-WHYTE: You are saying that you are unable to

    22 cross-examine today, until some time next week. That is

    23 all you are saying.

    24 Yes, let us hear you.

    25 MR. NIEMANN: Your Honours, firstly it is regrettable that it

  113. 1 is necessary to attack the witness for the alleged

    2 shortcomings in the CV. The CV that was supplied -- as

    3 I said earlier, the name was given. If anything else

    4 was required it was incumbent upon counsel, if they

    5 needed this information, to at least go to the extent of

    6 trying to make telephone contact. As I understand it,

    7 the witness says he is not available next week. What

    8 that entails I do not know your Honours, but it seems to

    9 me that the examination-in-chief was relatively short.

    10 It covered an area which I would have thought counsel

    11 would have had to have been appraised of for the

    12 purposes of defending this case in any event, such were

    13 the issues of importance. I would not have thought that

    14 cross-examination was impossible in these

    15 circumstances. It seems to me that if the research was

    16 carried out by counsel and something was subsequently

    17 discovered which would necessitate further

    18 cross-examination at some later date then the

    19 appropriate course would be for them to proceed with

    20 their cross-examination now and if they discover other

    21 matters which would necessitate this witness being

    22 brought back, then those matters could be raised at the

    23 appropriate time. This witness need not be discharged

    24 at the end of cross-examination. The witness could be

    25 informed that should matters arise which would require

  114. 1 him to be recalled then that can happen and those

    2 matters can be put to him.

    3 I just think, your Honours, that it is impossible

    4 to -- not impossible, I am not saying it is not

    5 impossible to proceed with cross-examination now. They

    6 can do so. The concerns they have can be remedied by

    7 this course.

    8 JUDGE KARIBI-WHYTE: When next are you sure you might be

    9 able to get the witness?

    10 MR. NIEMANN: Your Honour, during the course of the break

    11 I had someone speak to the witness because he was --

    12 I did not speak to him myself, but I was told he could

    13 come back if necessary in the first week of December

    14 when there is a week set aside for this case, if it was

    15 to go that long.

    16 JUDGE KARIBI-WHYTE: I suppose in the interest of justice,

    17 and at least to enable counsel to prepare, we might

    18 adjourn the witness' cross-examination until that time;

    19 except you want to start now and conclude at that time.

    20 But if you do not want to then it might be then. I hope

    21 we do not have the same problems with Dr. Gow.

    22 MR. NIEMANN: If we are to have the same problems with

    23 Dr. Gow, your Honour, I think it be appropriate they be

    24 raised and discussed now.

    25 MR. MORAN: Your Honour, just to appraise the Trial Chamber,

  115. 1 we have talked somewhat about some publications in

    2 Jayne's publications by Mr. Gow. Over the lunch-break

    3 I finally managed to get into my e-mail and determine

    4 that Jayne's is being slow about sending them to me, for

    5 reasons known only to Jayne's publications. We have not

    6 received them yet. I do not know when we will receive

    7 them. I believe it is nine separate publications by

    8 Mr. Gow that are relevant to the competence of the

    9 Tribunal. I do not know how long they are. I can tell

    10 you that they are œ15 each, is basically what I can tell

    11 you.

    12 MR. ACKERMAN: Your Honour knows I have raised this matter on

    13 two prior occasions. Let me tell you the current

    14 status. On the day that this Tribunal granted the

    15 Prosecutor's request to call Mr. Gow we immediately

    16 transmitted a list, his CV with his list of

    17 publications, to a representative of the librarian of

    18 this Tribunal and asked that those articles be acquired

    19 and made available to us. That process is going on.

    20 I have received -- without having it in front of me

    21 I cannot give you numbers -- I have received maybe five

    22 of fifteen. None of the Jayne's publications that Tom

    23 talks about have been received and those may be the most

    24 relevant. The last word that we had from the library of

    25 this court was that we could expect the balance of the

  116. 1 documents next week. Whether or not they will arrive in

    2 a manner that is sufficiently in advance of the need to

    3 cross-examine Dr. Gow to allow us to get them through

    4 them all or not is right now an open question.

    5 I wish I could say that we had all the documents

    6 and we have three or four days and we will be ready.

    7 I cannot say that. I cannot say that I will not be

    8 raising this issue next week if I have not got all those

    9 documents. I know that the librarian of this court is

    10 working diligently to try to get them to me and that has

    11 been going on for some time and is ongoing. That is the

    12 best I can tell you.

    13 MR. OLUJIC: Your Honours, as far as Professor Gow is

    14 concerned, the position is somewhat better than in the

    15 case of Professor Economides, because Dr. Gow has already

    16 appeared before this Tribunal and we have access to his

    17 literature, and I am referring to the past two or three

    18 months during which time I have been studying the

    19 problem. But to ask us at this point whether we will be

    20 entirely ready ... I must say that I cannot answer that

    21 question. We have to be cautious, but in the interest

    22 of justice and economy and, of course, the possibilities

    23 of Dr. Gow to come before the Tribunal again, we will be

    24 ready to cross-examine him.

    25 As far as the indulgence of the court is

  117. 1 concerned, and your agreement to call the Professor back

    2 in December, we should like to express our appreciation

    3 to your Honours for your indulgence.

    4 JUDGE KARIBI-WHYTE: I asked the question because I felt

    5 both the Prosecution and the Defence both together have

    6 a duty towards the Trial Chamber to make sure that

    7 things work properly and efficiently in the interest of

    8 justice. That is why, instead of one trying to take

    9 advantage of it. That is why I ask that question.

    10 MR. ACKERMAN: I totally and completely agree with what you

    11 just said. Many of these problems, with the efforts of

    12 the librarian to get these documents, would be easily

    13 solved if the Prosecution have them and would copy them

    14 and give them to us. I think they may well have them.

    15 The man has testified here on at least three prior

    16 occasions; on all those three occasions he has been led

    17 by Mr. Niemann. I would be very surprised if Mr. Niemann

    18 does not have in his possession all of those writings.

    19 All this could be solved if they could copy them and

    20 give them to us, rather than going through this round

    21 about, time-consuming procedure of getting them. If

    22 they do not have them -- I agree with you, co-operation

    23 would solve a lot of these problems.

    24 JUDGE KARIBI-WHYTE: Thank you. I suppose since nothing is

    25 happening we terminate this witness' questioning till a

  118. 1 more convenient date when perhaps you are sure both of

    2 these things will be provided.

    3 MR. NIEMANN: If your Honours please.

    4 MR. O'SULLIVAN: Your Honour, for the sake of trying to

    5 resolve this, do we understand that we will be

    6 responsible for finding Dr. Gow's publications, or is the

    7 Prosecution in a position to provide them with us?

    8 JUDGE KARIBI-WHYTE: The Tribunal is not involved in the

    9 financial aspect of your case. You know how to do it.

    10 We do not discuss that. You know who to go to for your

    11 assistance.

    12 MR. NIEMANN: The basis upon which it is alleged I have them

    13 is predicated on a false premise. I will be telling

    14 them that in a letter that I am writing to the

    15 Registrar.

    16 JUDGE KARIBI-WHYTE: Well, what do we have tomorrow, let us

    17 assess that.

    18 MR. NIEMANN: Your Honours seeing as we adjourn at 5.30,

    19 I could try to make efforts to get the custodian of

    20 records here now. It may be -- he has got to get from

    21 his hotel to here. We could go on this afternoon with

    22 the custodian of records. It may take about 10 minutes.

    23 JUDGE KARIBI-WHYTE: To get him here.

    24 MR. NIEMANN: I am told the Victims and Witnesses Unit

    25 apparently need half an hour.

  119. 1 JUDGE KARIBI-WHYTE: It will not be necessary to make that

    2 effort. We can start with him tomorrow morning.

    3 MR. NIEMANN: Your Honours, are we to call Dr. Gow next week?

    4 If I can make some inquiries and see if I can get this

    5 material which yes, I did have at one stage and I looked

    6 for at lunch time and do not have at the moment. If we

    7 get it and do give it to the Defence tomorrow, is it

    8 going to be sufficient? Because Dr. Gow is due to fly in

    9 on Saturday morning, his ticket is booked and everything

    10 arranged. If the Defence are going to stand up on

    11 Monday or Tuesday after the evidence-in-chief and say

    12 they are not ready to cross-examine, then I suggest that

    13 Dr. Gow go over to the 1st December as well. They must

    14 know how long it is going to take them to read this

    15 material. They know the extent of it.

    16 JUDGE KARIBI-WHYTE: I think that will not be quite right.

    17 If he is coming at all let him come also and give his

    18 evidence and might still postpone the cross-examination

    19 until December.

    20 MR. NIEMANN: Your Honour, that makes it very difficult for

    21 us to -- the normal course is for cross-examination to

    22 follow immediately after evidence-in-chief.

    23 JUDGE KARIBI-WHYTE: Yes, I agree, that is where it is

    24 facilitating even the evidence itself; when in fact it

    25 makes it more complex I do not think it is wise to do

  120. 1 that now, if he comes in and his cross-examination

    2 continues, or the parties are unable to cross-examine at

    3 all, as we have now seen in this case.

    4 MR. NIEMANN: My understanding is they have said they are not

    5 ready to cross-examine. That being the case, if they

    6 are simply not ready now, are they going to be ready

    7 over the weekend? If they are not going to be ready ...

    8 JUDGE KARIBI-WHYTE: Let us hear from them.

    9 MR. ACKERMAN: Your Honour, I want to answer Mr. Niemann's

    10 question. If in fact Mr. Niemann has the materials and

    11 gets them to me tomorrow I think there is enough time

    12 between now and perhaps next Tuesday for me to digest

    13 the balance of those materials. I have already spent a

    14 significant amount of time working on this matter. It

    15 is the absence of somewhat, I consider, important

    16 materials that is the issue right now. If they are

    17 available to me tomorrow then I suspect that I can be

    18 prepared by Tuesday of next week to do a

    19 cross-examination.

    20 JUDGE KARIBI-WHYTE: So this is an assurance that the Gow

    21 situation might not be the same as in this present

    22 case?

    23 MR. ACKERMAN: It may not be the same because it is question

    24 of when the materials are available. I am only speaking

    25 for myself, I am not speaking for any other counsel

  121. 1 here. For my own purposes, if Mr. Niemann can make those

    2 materials available to me tomorrow, I think I will have

    3 time to digest them.

    4 MR. MORAN: As it applies at least to Jayne's materials,

    5 I again, over the lunch hour, sent an e-mail back to

    6 Jayne's, saying, "please send them, please fax them

    7 immediately, do it". It is possible, it is possible we

    8 can go back in the Defence room and they will be coming

    9 off the fax machine now, it is possible they will be

    10 here at 10 o'clock tomorrow morning. We are doing

    11 everything we can independently to obtain access to

    12 those materials, your Honours.

    13 JUDGE KARIBI-WHYTE: We take it that Gow's evidence will go

    14 on as indicated, until something changes.

    15 MR. GREAVES: May I make a suggestion as well, please? In

    16 relation to this witness Professor Economides, it may

    17 well be that he is the person who is best in the

    18 position to provide us a copy of the 1989 article that

    19 was published in Greek which concerns the two additional

    20 protocols to the Geneva Conventions. He may be able to

    21 assist us all by providing us with a copy quicker than

    22 almost in any way in which we could obtain it.

    23 JUDGE KARIBI-WHYTE: Perhaps all you need is the

    24 publications and you might be able to trace how to get

    25 it. He does not keep copies of his articles. I do not

  122. 1 know that so many people do.

    2 MR. GREAVES: I suspect, your Honour, that most academics do,

    3 your Honour, but that is by the by.

    4 JUDGE KARIBI-WHYTE: Very well.

    5 MS. RESIDOVIC: Your Honours, in connection with Professor

    6 Gow, we are in the same position as my colleagues; but

    7 if we are talking about the timetable for next week,

    8 could the Prosecution please tell us whether, in

    9 addition to Dr. Gow, there will be other witnesses and

    10 who they are, because we do not have that list.

    11 JUDGE KARIBI-WHYTE: Yes, Mr. Niemann, are you able to assist

    12 here, so that they will know what to do?

    13 MR. NIEMANN: Excuse me, your Honour. Your Honours, there is

    14 some uncertainty as to, at this stage, whether or not

    15 there be additional witnesses to Professor Gow, or

    16 Dr. Gow, and I will hopefully be in a position tomorrow

    17 morning to announce those witnesses. It pertains to a

    18 matter related to the proceedings but not directly

    19 connected to eyewitness testimony as such. But I will

    20 be in a position tomorrow morning to provide that

    21 information. I just wish to emphasise that the material

    22 that we have on Dr. Gow may not include -- may or may not

    23 include -- all the Jayne's material that Mr. Moran looks

    24 for. So I really do have to emphasise that whatever --

    25 if we are able to put material together to give to them,

  123. 1 it may not be what they want. I need to say that now,

    2 because I am not confident that we have everything that

    3 they think that we do have.

    4 JUDGE KARIBI-WHYTE: They might have indicated what they are

    5 looking for, have they not?

    6 MR. NIEMANN: They have indicated they want publications from

    7 Jayne's Military Journal. I am not sure we have all

    8 that. A lot of it, I am not sure it is relevant. It is

    9 material I may have read in London when I did my initial

    10 research into Dr. Gow and his publications. I did a lot

    11 of it in London and did not bring it back here. I am

    12 not sure I had a lot of here in The Hague.

    13 MR. MORAN: If the Prosecution is not a position -- we cannot

    14 expect them to create it. They would have the same

    15 problem getting it as we would, under the rule of

    16 reasonableness. One thing I would ask, the first

    17 question I intend to ask Professor Economides on

    18 cross-examination is if he sent any reports or synopsis

    19 of what he believes international law is to the Office

    20 of the Prosecutor related to his testimony. If he were

    21 to say yes to that, I would immediately ask for a copy

    22 of it. So, if such a thing exists it might be

    23 appropriate that some time this week next week to have

    24 it delivered. I am not saying it exists.

    25 JUDGE KARIBI-WHYTE: You started from a position in which

  124. 1 you are so handicapped that you can say nothing. It is

    2 difficult for one to say anything now. If we started

    3 anywhere and you found out you were unable to go forward

    4 at some stage then I would have now understood this

    5 position that you are now taking.

    6 MR. MORAN: What I am saying is if it turns out in the first

    7 week of December Professor Economides says yes, I wrote

    8 a 15-page report to the Prosecutor's Office about

    9 nationality and the former Yugoslavia, at that point

    10 someone might be asking for another adjournment while

    11 they read that. I am not saying it exists, because I

    12 have no idea one way or another, but if such a thing

    13 like that exists it might be appropriate to consider the

    14 statement under Rule 66A and have it produced in the

    15 next few days.

    16 MR. NIEMANN: I can confirm that there is no such report.

    17 MR. MORAN: That is fine.

    18 JUDGE KARIBI-WHYTE: The Trial Chamber will now rise and

    19 will assemble at 10 o'clock tomorrow.

    20 (4.55 pm)

    21 (Adjourned until 10.00 am

    22 on Friday 31st October 1997)