Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10085

1 Monday, 30 March, 1998

2 (Motion Hearing) (Open session)

3 --- Upon commencing at 10.15 a.m.

4 JUDGE KARIBI-WHYTE: Good morning, ladies

5 and gentlemen. We are back here now today and we are

6 starting with the Defence in earnest. We have before

7 us a motion -- I see Ms. Residovic is not getting the

8 translation.

9 MS. RESIDOVIC: I am sorry, we did not have

10 the translation straight away, but it is all right now.

11 JUDGE KARIBI-WHYTE: Can we have the

12 appearances, first, for the Prosecution?

13 MR. NIEMANN: If your Honours please, my

14 name is Niemann and I appear with my colleagues

15 Ms. McHenry and Mr. Turone. We have a new case manager

16 to assist us at the bar table now, Ms. Udo, if your

17 Honours please.

18 JUDGE KARIBI-WHYTE: Could we have the

19 appearances on the Defence?

20 MS. RESIDOVIC: Good morning, your Honour.

21 My name is Edina Residovic, attorney from Sarajevo,

22 appearing on behalf of Mr. Zejnil Delalic, along with my

23 colleague, Mr. Eugene O'Sullivan, professor from

24 Canada.

25 MR. OLUJIC: Good morning, your Honours. My

Page 10086

1 name is Zeljko Olujic attorney from Croatia appearing

2 on behalf of Mr. Zdravko Mucic along with Mr. Michael

3 Greaves, attorney from the United Kingdom of Great

4 Britain and Northern Ireland.

5 JUDGE KARIBI-WHYTE: You are still having a problem?

6 MS. RESIDOVIC: Yes. We are hearing a

7 terrible noise in our headphones and all the languages

8 are mixing in together.

9 MR. KARABDIC: Good morning, your Honours.

10 My name is Salih Karabdic, attorney from Sarajevo,

11 appearing on behalf of Hazim Delic, along with

12 Mr. Thomas Moran, attorney from Houston, Texas.

13 MS. McMURREY: Good morning, your Honours.

14 My name is Cynthia McMurrey and I represent Esad

15 Landzo. It is my pleasure to introduce to you new

16 co-counsel, Nancy Boler, who will also be representing

17 Mr. Landzo.

18 JUDGE KARIBI-WHYTE: Thank you very much.

19 I am sorry, I might have anticipated things much

20 earlier when I started talking on the question of the

21 motion which we have before us. We have a motion

22 before us brought by the Prosecution seeking an order

23 for appearance of Defence witnesses and the order of

24 cross-examination by the Prosecution and counsel for

25 the accused. We have already had reactions to this

Page 10087

1 motion by the Defence. The Trial Chamber has tried to

2 accommodate it and we find that we do not intend to

3 call on the Defence in respect of the first part, that

4 is, an order of appearance of the first witnesses. We

5 think it will not be necessary for the Defence to argue

6 that issue.

7 We would call on the Prosecution to move the

8 second part, which is the order for cross-examination

9 and we would now like to hear Mr. Niemann argue that.

10 MR. NIEMANN: Your Honours, may I just seek

11 a point of clarification; did you say you did not wish

12 to hear us in relation to the first part?

13 JUDGE KARIBI-WHYTE: Yes, because we do not

14 think it is really necessary in relation to the first

15 part.

16 MR. NIEMANN: Your Honours, in relation to

17 the second part, we, in large measure, rely on our

18 written submission of the matter. Your Honours, the

19 submission that we make in relation to this is that it

20 is more a common-sense issue than anything else, because

21 we submit that the role of cross-examination of the

22 Prosecution is something that can be quite distinct and

23 separate from that of the accused. I do not suggest

24 anything sinister or wrong in this, but what I am

25 saying is that there are often many issues which the

Page 10088

1 Defence have in common and those issues can be --

2 because cross-examination is at large and not

3 restricted to merely that which arose in the course of

4 evidence-in-chief, there is a considerable opportunity

5 available to the Defence to introduce new material in

6 the course of cross-examination.

7 When I say "new material", it does not have

8 to be in the form of written exhibits or anything of

9 that nature; it could be new material elicited through

10 the process of questioning.

11 In our respectful submission, this has an

12 unfair advantage on the Prosecution, because what can

13 happen is that the Prosecution, if it has to go first,

14 cross-examines on the material that has been raised in

15 evidence-in-chief and deals with that and it may deal

16 with other wider issues as well, because, as I said,

17 cross-examination is at large, but it deals with the

18 ambit of matters that primarily are raised in

19 evidence-in-chief.

20 If then what happens is that a series of

21 co-accused counsel then proceed to cross-examination,

22 the potential to raise a whole lot of new matters is

23 very considerable. If that happens, the Prosecution is

24 left in a position where it either must apply to your

25 Honours to further cross-examine, because of this new

Page 10089

1 material, or, alternatively, it is left in a situation

2 where it is unable to address matters which have been

3 raised. If it is left in a situation where it cannot

4 address them, it has to do it in a process either by

5 way of a rebuttal case -- and that in itself may be

6 difficult because it has not had a chance to confront

7 the witness and, indeed, it may even be unfair to the

8 witness, because in a situation where the Prosecution

9 is not able to confront the witness with an issue

10 because it cannot cross-examine, it then has to deal

11 with it in rebuttal, and we have never heard the

12 witness's view of the matter, which may resolve it and

13 may preclude it.

14 It is really just a practical common-sense

15 question, in my respectful submission, because we do

16 not share the same interests that the accused do. I am

17 not saying that they are totally ad idem on all points

18 -- that is obviously not the case -- but they have a

19 much greater potential to do that. This is the reason

20 why your Honours are in a situation to say to them,

21 during the course of the Prosecution case, "Counsel

22 will determine the order that they are going to take

23 cross-examination" and they go off, and have very

24 successfully and with great cooperation been able to

25 determine the order of cross-examination, and come back

Page 10090

1 and present that to your Honours -- I think, in all

2 cases -- I do not recall one instance where there was

3 in fact a dispute that was left to your Honours to

4 resolve. But it potentially existed, that your Honours

5 may have had to decide that issue where the Defence

6 come back and say, "We cannot resolve this and we must

7 call upon your Honours to assist us by making a

8 decision on that." That in itself, in my respectful

9 submission, demonstrates clearly your Honours' capacity

10 to do this, because, if the co-accused could not agree

11 amongst themselves, obviously you would have to decide

12 it.

13 Likewise, it is no different to your capacity

14 to order the order of cross-examination vis-à-vis the

15 co-accused Defence counsel and the Prosecution.

16 Clearly, your Honours can do that -- you can do it in

17 the interests of a fair trial, you can do it in the

18 interests of an orderly trial. In my respectful

19 submission, it does touch very much upon the issues of

20 a fair trial, because if the Prosecution is unable to

21 address these additional issues, which I do expect to

22 arise, then they are going to be left dangling, as it

23 were, and can only be resolved by rebuttal and that may

24 not be a fair way of dealing with it, because, as your

25 Honours are aware, one of the objects of

Page 10091

1 cross-examination is to confront the witness with the

2 issues that are raised.

3 For that reason, it is our submission that

4 the most effective resolution of this problem is to

5 allow the Defence to determine amongst themselves the

6 order of cross-examination in the way that they did it

7 during the Prosecution case, and I am very optimistic

8 they will be able to reach agreement on that, and then,

9 finally, to allow the Prosecution to cross-examine at

10 the end of all their cross-examinations.

11 I genuinely submit to your Honour that this

12 would be a much more efficient process and will avoid

13 multiple applications for reopening cross-examination

14 by the Prosecution.

15 JUDGE JAN: May I say a few things? I am

16 sure you have seen the Defence response and the

17 argument which you just presented has been offered in

18 just the opposite way. This is a paragraph in the

19 Defence response. Supposing the cross-examination by

20 the Prosecution a witness makes a statement which is

21 damaging to the other co-accused who, if your prayer is

22 accepted, have already exhausted their right to

23 cross-examination. Should that statement remain

24 unchallenged? It is your argument, but just put the

25 other way.

Page 10092

1 MR. NIEMANN: There is some truth in that,

2 but the potential for it to happen in relation to the

3 Prosecution is far greater. My emphasis and the

4 difference that distinguishes us from the Defence is

5 that it is obvious they have many more things in common

6 than we have with them, so the potential is much

7 greater for differences between what the Prosecution

8 has to deal with than what the co-accused do. So, it

9 is my submission that it is really a balancing act --

10 it is a question of looking at it and saying, from a

11 common-sense perspective, what is more likely to create

12 a situation where a party seeks to further

13 cross-examine because an issue has arisen.

14 For example, if you have evidence-in-chief

15 which commences, and then the first cross-examination

16 by a Defence counsel raises a new issue, there is no

17 reason why that cannot be dealt with by the next

18 counsel and so on down the line until you get to the

19 end.

20 It is possible, and I am not denying that,

21 I see that it can work both ways, but it is a question

22 of balance. It is a question of saying: where is it

23 most likely to create difficulty? I am saying that it

24 is on the Prosecution side, because there is no

25 commonality of interest.

Page 10093

1 JUDGE JAN: If such a situation arises,

2 maybe the accused, who has so suffered on account of

3 new material being brought by the witness against him,

4 should be given the right to further cross-examination.

5 MR. NIEMANN: That may happen. I think we

6 have to be sensible. I can imagine if it is a

7 sensibly-based request on a totally new issue that has

8 come up and the Defence says: look, we want to

9 re-cross-examine on this, because it has taken us by

10 surprise, I would be hard pressed to turn around and

11 say no, they should not be given that right. I can

12 imagine, in those circumstances, that it would be an

13 exceptional case, I think, for us to be opposing that.

14 What I can see is that it is less likely for

15 them to be doing it, because of their commonality

16 interest, than we. It may happen in almost every case,

17 because I anticipate genuinely to see a whole lot of

18 new issues raised through the process of

19 cross-examination, and we are just going to be

20 confronted with it, so it is a practical, common-sense

21 thing.

22 JUDGE JAN: If your motion is allowed, it

23 will have to be subject to this reservation?

24 MR. NIEMANN: Yes.

25 JUDGE KARIBI-WHYTE: Before you sit down,

Page 10094

1 I think the misapprehension is that there can be no

2 right to further examination by counsel -- there is

3 such a right. There is such a right where any new

4 material has been raised in cross-examination, the

5 person who could be prejudiced by leaving such a matter

6 at large, would be entitled to further

7 cross-examination on that matter.

8 MR. NIEMANN: I perceive that from the

9 response from the Defence that somehow or other it was

10 suggested that we were denying that, in any

11 circumstances, there is no right of

12 re-cross-examination. That is not our position. I say

13 that -- our position clearly is that, if new matters

14 arise and it would otherwise cause prejudice, clearly

15 there is a right of re-cross-examination, in our

16 respectful submission, subject to the order of the

17 court, obviously, in all cases.

18 But, we are not trying to deny that. All we

19 are saying is that, if the Defence go first, our

20 applications are going to be much more restricted and

21 it is going to be much easier to argue that, if we did

22 not deal with it, we should have. The other way

23 around, I suspect it will just prolong the process.

24 Unless there are any other matters?

25 JUDGE KARIBI-WHYTE: Thank you very much.

Page 10095

1 Any reaction?

2 MR. O'SULLIVAN: If your Honours please,

3 I will make my submissions from here and not from the

4 podium.

5 Your Honours, I wish to address you on behalf

6 of Mr. Delalic in response to this matter and my

7 submissions will be brief and in support of the jointly

8 filed motion by Delalic and Delic. We invite your

9 Honours to reject the request by the Prosecution and to

10 order that, after examination-in-chief of a witness is

11 completed, the Prosecution should complete its

12 cross-examination before co-counsel for the co-accused

13 examine the witness.

14 Let me begin by responding briefly to

15 Mr. Niemann. With all due respect to my learned friend,

16 who was not here at the beginning of this trial, we

17 know if order of cross-examination by the Defence was

18 not agreed upon, we followed the indictment order and

19 that is why it worked smoothly, I think. I reject the

20 fact that he claims that there is commonality between

21 the co-accused necessarily -- that is obviously a

22 supposition which cannot be founded in any kind of a

23 joint trial.

24 We rely on Article 21(4)(e) of the Statute,

25 which guarantees the right of cross-examination to the

Page 10096

1 accused person. Your Honours, it is only after the

2 examination-in-chief and the cross-examination by the

3 Prosecution that a co-accused will know whether the

4 witness has become adverse to him or has implicated

5 him. It is at that point that the co-accused's right

6 under Article 21(4)(e) is triggered. The co-accused

7 must not be precluded of that right. Our request is

8 grounded in Article 21(4)(e). The way to ensure the

9 full protection of the right to cross-examine of the

10 co-accused is to hear examination-in-chief and then the

11 cross-examination by the Prosecution.

12 So, we say that, contrary to the Prosecution,

13 who is not relying on any Rule whatsoever, the Statute

14 clearly contemplates our position, examination-in-chief

15 followed by the Prosecution and then the co-accused

16 should know whether or not they have an interest in

17 cross-examining that witness.

18 There is discretion there if the Prosecution

19 thinks they have to reopen, but we say our request is

20 grounded in Article 21(4)(e). There is nothing more to

21 add. We have stated our position in our response to

22 the Prosecution. Unless you have any further questions

23 of me, I have no further submissions.

24 JUDGE KARIBI-WHYTE: I am assuming here that

25 you have taken the position that the accused person,

Page 10097

1 apart from giving evidence, also calls witnesses.

2 There are two situations -- either he is the only

3 witness, or, in addition to him, there could be other

4 witnesses. It depends on the position you are taking

5 -- whether, in any event, he is the only witness, the

6 position you are taking was to be the same.

7 MR. O'SULLIVAN: Correct; I am addressing you

8 on the order of cross-examination.

9 JUDGE KARIBI-WHYTE: Yes, I agree; it

10 depends on what type of case you present, whether he is

11 the only witness, or he also calls witnesses in

12 addition to his own evidence.

13 MR. O'SULLIVAN: I do not see two situations

14 where the order of cross-examination would change, your

15 Honour.

16 JUDGE KARIBI-WHYTE: It could always be the

17 same, whether he calls witnesses in addition to his

18 evidence, or whether he alone gives evidence, or even

19 if he decides not to say anything?

20 MR. O'SULLIVAN: We say the Prosecution should

21 go first in cross-examination, yes.

22 JUDGE KARIBI-WHYTE: I am only giving you

23 the different alternatives open to an accused person.

24 He may not even give evidence if he does not want to.

25 He may alone give evidence, or in addition he may call

Page 10098

1 other witnesses.

2 MR. O'SULLIVAN: Yes, your Honour.

3 MR. MORAN: A couple of thoughts and I will

4 sit down. I think Judge Jan hit it right on the head

5 -- any argument I make will be the same argument

6 Mr. Niemann makes. Let me suggest this: the first

7 thing is that Rule 82(A) provides essentially that we

8 are not having one trial here -- we have four separate

9 trials at the same time at the same place. We are all

10 guaranteed, as defendants, the same rights we would

11 have in an individual trial.

12 The procedure I am used to is that, in a

13 multiple defendant trial, first the Prosecutor

14 cross-examines, then the defendants cross-examine, and

15 then the Prosecutor is allowed to re-examine on new

16 issues -- limited to those new issues.

17 As a practical matter, because the arguments

18 are the same, I think that adopting that kind of

19 procedure would probably be just as efficient as any

20 other way around.

21 The other thought I have is that the Statute

22 is full of rights of the accused and the most important

23 right for the accused, aside from the right to counsel,

24 I think is the right to confront and cross-examine the

25 witnesses against him. Frankly, picking a witness off

Page 10099

1 the witness list that was filed today, I have no idea

2 what a lot of those witnesses are going to say and

3 I have absolutely no idea whether Mr. Niemann has a file

4 folder full of statements those people made that would

5 incriminate my client. I cannot know whether he is a

6 witness against my client --

7 JUDGE JAN: He is talking about the

8 reservation, if during the cross-examination by the

9 Prosecutor, a witness says something that is damaging

10 to another accused, he should have the right to further

11 cross-examine him. That will be of greater advantage

12 to you coming at the end -- with the further right to

13 cross-examine.

14 MR. MORAN: One thing the court has to

15 remember is that, presumably, the lawyers know their

16 cases better than the court does at this point.

17 JUDGE JAN: You know your case much better

18 than I do.

19 MR. MORAN: At this point, I sincerely hope

20 so.

21 What I may think may be incriminatory of my

22 client, Mr. Niemann may disagree with, or you may

23 disagree with, because I may know something that is

24 coming later. That is the problem I can see

25 developing, that there may be some question about

Page 10100

1 whether or not this witness, Witness A, is a witness

2 against my client. My client's name may never come up,

3 but it may be something that is, in my opinion, knowing

4 more about the case, inculpatory of my client.

5 With those few thoughts, unless the court has

6 any questions, I am going to sit down.

7 JUDGE KARIBI-WHYTE: Thank you very much.

8 MR. OLUJIC: Your Honours, I shall be very

9 brief in presenting my arguments in response to what we

10 have heard from the Prosecution. In our written

11 response, we opposed the motion and we abide by that,

12 that we request that both be rejected, but my learned

13 colleague, Mr. Niemann, conscious in the absence of a

14 precedent in terms of Rules of Procedure, in order to

15 support his thesis, he uses logic and common-sense.

16 This thesis cannot be acceptable for the

17 simple reason that it proceeds from the presumption of

18 the accused's guilt, which is impermissible. This

19 Tribunal is both competent and qualified to judge

20 itself the course that the proceedings are taking.

21 Therefore, we would like to abide by our motion. We

22 consider that the Prosecution's motion is unacceptable,

23 and that both the proposals should be rejected. Thank

24 you.

25 MS. McMURREY: Your Honour, we also would

Page 10101

1 like to join in Mr. O'Sullivan's arguments on the point

2 about cross-examination. Furthermore, Mr. Moran had

3 explained that we know a little bit more about what to

4 expect in the witnesses, as the four cases are

5 developed, as we go along. It might not be perceived

6 by the court or the Prosecution that we would need to

7 re-cross-examine, which would force us all to recall

8 these witnesses at a later time, because of the

9 misunderstanding about what was inculpatory at that

10 time. I think, in the interest of the proceedings and

11 the expeditious procession of this case, that we should

12 be able to cross-examine after the Prosecution.

13 Furthermore, under Article 21, when we are

14 arguing the flip side of what Mr. Niemann is arguing, of

15 course he has the equal right, if new material is

16 presented to re-cross-examine, if the court so deems

17 that it is proper at that point. When there is a tie

18 as far as whose rights might be affected, Article 21

19 and all the presumptions under the Statute would say

20 that the tie should go to the defendant and the

21 accused. At that point, we believe that, since it is

22 almost equal right now, that the presumption should go

23 to the accused and we should be allowed to

24 cross-examine after the Prosecution.

25 JUDGE KARIBI-WHYTE: So you are tossing a

Page 10102

1 coin, are you?

2 MS. McMURREY: When you toss the coin, it

3 should fall on the side of the Defence.

4 JUDGE JAN: In respect of each of the four

5 accused, the main opposite party is the Prosecution.

6 The Prosecution should have the right to last

7 cross-examination then in respect of each of the four

8 accused. If a witness makes a statement which is

9 detrimental to the interests of any of the other

10 accused, you said they would be given the right to

11 further cross-examination.

12 MS. McMURREY: Your statement that the main

13 opponent in this trial is the Prosecution --

14 JUDGE JAN: In respect of each of the four

15 accused.

16 MS. McMURREY: We filed a motion for

17 severance early on in January --

18 JUDGE JAN: In respect of each of the four

19 accused -- not collectively -- in respect of each of

20 the four accused the main opposing party is the

21 Prosecution.

22 MS. McMURREY: That should be the fact, but

23 because it appears we will have inconsistent defences

24 as we go along, it is not only the opposition party

25 that is the Prosecution, but it could possibly be the

Page 10103

1 other testimony of the other witnesses, so therefore I

2 believe that during these adversarial proceedings that

3 the defendant should have the right to cross-examine

4 after the Prosecution, because we may not have

5 consistent Defences during the rest of the case. Thank

6 you.

7 JUDGE KARIBI-WHYTE: The Trial Chamber will

8 adjourn and come back at 12 o'clock and give our

9 ruling.

10 (10.53am)

11 (A short break)

12 (12 noon)

13 JUDGE KARIBI-WHYTE: We have a short

14 ruling. We rely entirely on all you have said here and

15 our consideration of the case as a whole. The motion

16 filed on 18 March 1998 has sought leave for an order of

17 (a) appearance of the Defence witnesses; and (b) the

18 order of cross-examination by the Prosecution and

19 counsel for the accused.

20 All counsel for the accused have opposed the

21 motion in writing. The motion has come up for argument

22 this morning, but, when it came up, the Trial Chamber

23 considered it unnecessary to hear argument on the first

24 part of the motion, namely, calling on the Trial

25 Chamber to determine the order of appearance of the

Page 10104

1 Defence witnesses. We considered that it was

2 reasonably self-evident.

3 The Prosecution has considered, and we agree,

4 that the matter is not directly governed by the Statute

5 of the Tribunal or the Rules of Procedure and

6 Evidence. However, reliance on the practice of some

7 common law jurisdictions, such as England and Wales,

8 Nigeria, South Africa and Canada informs that the

9 better practice is that where the accused gives

10 evidence and calls witnesses, he should first give his

11 testimony before calling his own witnesses.

12 We agree with the view of the Defence that

13 the proposition relied upon by the Prosecution will

14 offend against the provisions of Article 20, which

15 enjoins us with issues of trial and 21(4)(d), which

16 entrenches a quality of arms in the conduct of the case

17 between the Prosecution and the Defence.

18 The strong implication in Rule 85(A), which

19 enables an accused to give evidence and to call

20 witnesses, is that the accused, by Rule 85(C), is not

21 compellable and cannot be compelled to appear as a

22 witness in his own Defence. Accordingly, the order in

23 which the Defence gives evidence and calls evidence is

24 entirely an arrangement between him and his counsel, if

25 any.

Page 10105

1 The Trial Chamber cannot interfere. In the

2 opinion of the Trial Chamber, this is consistent with

3 the provisions of Article 21(4)(d) and accords with the

4 justice and fairness of a trial. It will be against

5 the interests of justice for the Trial Chamber to

6 determine an order when a witness is to testify and

7 probably who the witness is. The accused is obliged to

8 answer the charges against him to the best of his

9 ability in his own way.

10 I will come to the second part. The

11 Prosecution seeks an order to cross-examine the witness

12 of the Defence after the Defence has examined in chief,

13 and the co-accused have cross-examined the witnesses.

14 The Defence object to this arrangement on the ground

15 that the Prosecution's cross-examination may reveal

16 circumstances in the case of an accused which may

17 affect their case. Again, facts may arise from

18 cross-examination which may require further

19 cross-examination. This may be lost to accused persons

20 if the order were to be granted.

21 It is elementary to appreciate that the case

22 now being presented is part of the case of the

23 Defence. The question of joint Defence apart, the

24 Prosecutor is facing the case of the Defence. It is

25 therefore understandable that each accused is first to

Page 10106

1 examine the accused person who testifies. At the end

2 of the cross-examination of the accused persons, the

3 Prosecution may cross-examine. The Prosecution is

4 entitled to speak last.

5 There is no statutory provision in our Rules,

6 but, fortunately, we have Section 190 of Nigerian

7 Evidence Law, which makes such a provision in purely

8 identical terms and I quote:

9 "Where more than one accused is charged at

10 the same time, a witness called by one accused may be

11 cross-examined by the other accused and, if

12 cross-examined by the other accused, such

13 cross-examination shall take place before

14 cross-examination by the Prosecution."

15 There is considerable common sense in the

16 arrangement. The consideration that the

17 cross-examination by the Prosecution of the accused is

18 part of an accused's case is not lost on an accused who

19 still has a right of further cross-examination and to

20 give evidence on his own behalf. The objection of the

21 Defence to the second part of the motion is therefore

22 refused.

23 The Trial Chamber therefore rejects the

24 motion for an order of appearance of the Defence

25 witnesses, but grants the motion for the order of

Page 10107

1 cross-examination. This is our ruling.

2 We received an application for the Bajram

3 holidays, which is indicated to be how many days

4 between the 7th and 8th --

5 MR. KARABDIC: Your Honours, I have submitted

6 for 7 and 8 April, even though Bajram lasts for four

7 days. However, I have only asked for the first two

8 days and I think this is fully justified -- the two

9 major Muslim holidays are the two Bajrams and I think

10 that it falls well within the rights of both the

11 accused and their Defence counsel.

12 JUDGE JAN: Has the month of the Haj started

13 -- I think it is starting today or tomorrow. Is it

14 today or is it tomorrow?

15 MR. KARABDIC: Your Honour, it is neither

16 today nor tomorrow -- it is on 7 April.

17 JUDGE JAN: That is what I asked you; has

18 the month of the Haj started?

19 MR. KARABDIC: In our calendar, it says that

20 it is really the 7th and the 8th, and here in The Hague

21 the Turkish community has also issued a calendar which

22 starts on 7 April, and lasts for four days. I am not

23 aware of any other dates and I think that this year

24 this calendar is not controversial in any way. As far

25 as I know, the Hajis have already embarked on their

Page 10108

1 trip and, as far as I know, it is 7 and 8 April.

2 JUDGE KARIBI-WHYTE: Do you not think the

3 7th alone should be sufficient, instead of stretching

4 it too far? You can have the 7th. Do you understand

5 me?

6 MS. RESIDOVIC: Your Honours, may I make

7 several comments? Mr. Karabdic filed a request on

8 behalf of all the accused and Defence counsel who

9 celebrate this holiday, and I believe that it is

10 reasonable that, out of four days, which constitute

11 this holy festival, only two days are being requested,

12 and I think that Mr. Karabdic has fully taken into

13 account the wishes and feelings of all the accused and

14 Defence counsel, as well as trying to balance it

15 against the needs of the court.

16 MR. KARABDIC: Your Honours, we also would

17 like to know whether you can rule on it now so that we

18 could proceed with making arrangements regarding the

19 witness testimonies and order of witnesses and such,

20 thank you.

21 JUDGE KARIBI-WHYTE: I suppose if you have

22 both the 7th and the 8th, then you are expected to be

23 here on the 9th. You will be here on the 9th?

24 MR. KARABDIC: Thank you, your Honours.

25 JUDGE KARIBI-WHYTE: We will have the 7th

Page 10109

1 and the 8th and then you appear for your matters on

2 9 April.

3 We should continue with the proceedings after

4 lunch. Then we will hear what your opposition is,

5 Mr.s Residovic. We will start at 2 o'clock. We will

6 come back at 2 o'clock and continue with the Defence.

7 (12.14pm).

8 (Luncheon adjournment)


















Page 10110

1 (2.00pm)

2 JUDGE KARIBI-WHYTE: Good afternoon, ladies

3 and gentlemen. We are back now and we will start with

4 the Defence. Yes, Mr.s Residovic, I hear that you are

5 starting with an opening statement.

6 MS. RESIDOVIC: Thank you, your Honours.

7 Before calling the first Defence witness, I should like

8 to avail myself of the right, according to Rule 84 of

9 the Rules of Procedure, to make a brief opening

10 statement.

11 Pursuant to Rule 84 of the Rules of Procedure

12 and Evidence, the Defence counsel of Mr. Zejnil Delalic

13 will begin with an opening statement in which we shall

14 briefly indicate the method and aims of the

15 presentation of evidence in this part of the criminal

16 proceedings. Article 21 of the Statute of the

17 International Criminal Tribunal establishes the right

18 of the accused to examine, or have examined, the

19 witnesses against him under the same conditions as

20 witnesses against him. This is Article 21(4)(e) of the

21 Tribunal's Statute.

22 Upon the completion of the part of the

23 Prosecution case, the Defence counsel of Mr. Delalic has

24 prepared evidence in Defence of the accused as the

25 first among the four accused in this case. Evidence in

Page 10111

1 favour of Mr. Zejnil Delalic's Defence begins precisely

2 after Mr. Delalic has spent two years and 12 days in

3 detention.

4 Your Honours, this very fact is a clear

5 indicator that Mr. Delalic has not been afforded the

6 right to an expeditious trial. The rejection of his

7 request for a separate trial, which is today already a

8 Rule in proceedings in relation to other superior

9 persons in cases before this Tribunal, Zejnil Delalic

10 is in a position to participate in a trial which is far

11 longer than would be necessary to establish his

12 possible personal responsibility or to acquit him.

13 There are other characteristics which we wish

14 to draw the court's attention to with respect to

15 Mr. Delalic. Only two persons have been arrested in

16 accordance with Rule 40 of the Rules of Procedure and

17 Evidence in this Tribunal, that is, before an

18 indictment was issued and confirmed against them --

19 Zejnil Delalic is one of those two persons.

20 The arrest of Zejnil Delalic was carried out

21 at the request of the Prosecutor, even though, as we

22 have heard from the Prosecution witnesses during the

23 time of arrest, there were no criminal charges made

24 against him, nor was a warrant for his arrest issued by

25 any country, nor by any domestic or international

Page 10112

1 institutions. Zejnil Delalic was immediately --

2 JUDGE KARIBI-WHYTE: Would you please excuse

3 me. I thought your opening speech relates to the

4 evidence that you are leading in support of the case of

5 the Defence. You do not go on to make comments or

6 criticisms of matters which have already been done.

7 What you are now to do is to tell the Trial Chamber the

8 evidence you are leading. This is what an opening

9 speech is made for. You should have had enough time to

10 criticise the Prosecution's case and whatever has been

11 time and you have sufficient time. You are still in

12 charge of your case. Nothing stops you doing that

13 subsequently. Outline before the Trial Chamber the

14 evidence you are leading. If you do not think that is

15 necessary, then call the accused person to give his

16 evidence. It just does not make any sense going

17 through what you might say later or subsequently.

18 MS. RESIDOVIC: Your Honours, it is my

19 intention to say how and why the Defence will present

20 the evidence it intends to call, but the volume,

21 quantity and quality of evidence is based on a prior

22 period, which has put us in a certain position

23 regarding the presentation of evidence. I have only

24 two more facts to refer to regarding Mr. Delalic's

25 position so far, and then I intend to go on to what we

Page 10113

1 intend to present by way of evidence.

2 I did not consider a short comment on the

3 procedural position of my defendant would not be

4 acceptable as the introduction to the presentation of

5 its evidence. I therefore appeal to you to allow me to

6 refer to these two additional facts and then to proceed

7 as you have suggested. May I?

8 JUDGE KARIBI-WHYTE: You may do so. I do

9 not think it is really necessary as part of your case.

10 This is what I am saying. It has nothing to do with

11 your case.

12 MS. RESIDOVIC: Thank you. As I just said,

13 Zejnil Delalic was interrogated immediately after his

14 arrest without the presence of an attorney, though it

15 was assumed that the acts for which he was charged

16 under Article 21 should entitle him to legal assistance

17 -- in any case where the interests of justice so

18 require, and this is a right that the accused could not

19 waive. Availing himself of the right according to

20 89(C) of the Rules of Procedure and Evidence, the trial

21 has accepted much of the evidence requested by the

22 Prosecutor and, finally, the Prosecutor submitted to

23 the Defence on 25 March this year 11 documents

24 indicating that it intends to use it as evidence, which

25 means only five days before the beginning of the

Page 10114

1 Defence case new evidence has been presented, which

2 clearly shows that the Prosecutor is continuing the

3 investigation, even after the completion of his case.

4 All the above mentioned places the Defence of

5 Mr. Delalic in a position that, even today, at the

6 beginning of the presentation of the Defence case, it

7 cannot determine completely neither the quantity of the

8 evidence nor the time it will require to present it.

9 The Defence of Mr. Delalic will present as

10 much evidence as is necessary for Mr. Delalic to present

11 a full Defence and to ensure a fair trial, fully

12 convinced that this Trial Chamber will devote full

13 attention to the right of the accused and ensure a fair

14 trial as it is obliged to do under Article 20 of this

15 Tribunal's Statute.

16 Your Honours, the Defence will present

17 evidence before this Trial Chamber which will show that

18 Zejnil Delalic is innocent. The Prosecutor charges

19 Zejnil Delalic of coordinating the activities of forces

20 in the area of Konjic somewhere from April 1992 until

21 September 1992, and that he was the commander of the

22 first Tactical Group of the Bosnian forces, and that,

23 in that period, and in those capacities, he was

24 responsible for the work of a prison and held a

25 position of superiority in relation to all guards in

Page 10115

1 the camp and other individuals who entered the camp and

2 mistreated the prisoners.

3 Establishing the position of Zejnil Delalic

4 as a person with superior responsibility over the

5 prison, the Prosecution goes on to allege that Zejnil

6 Delalic knew, or had reason to know, that his

7 subordinates were committing criminal acts without

8 taking the necessary and reasonable measures to prevent

9 such acts and punish the perpetrators.

10 The Prosecutor cannot succeed, for the simple

11 reason that Zejnil Delalic does not have the status of

12 a superior. For these reasons, it is understandable

13 that the Prosecutor should, in the opening statement,

14 say that there was a great deal of discussion as to the

15 authorisations Delalic had in paper in his opening

16 statement. This is no wonder, because a coordinator is

17 a new function that was established due to the

18 complicated situation in Konjic at the time and there

19 is no particular body that established competence over

20 Celebici. Similarly, in his opening statement the

21 Prosecutor alleged that others may share this

22 competence, but that this cannot be a Defence for

23 Zejnil Delalic.

24 By this position, before presenting its own

25 case, the Defence has a rather dangerous thesis before

Page 10116

1 it for a criminal procedure. If we do not know who is

2 responsible, then it is Zejnil Delalic. If we do not

3 know which organ is responsible, then it is Zejnil

4 Delalic. If others are responsible, then Zejnil

5 Delalic is certainly as well. I am quite confident

6 that this Trial Chamber will resolutely resist such an

7 approach, and confirm here the supreme principle of any

8 criminal proceedings in dubio pro reo, which means that

9 in case of doubt, one must always take the side of the

10 accused.

11 The Defence will assist the Trial Chamber in

12 establishing that Zejnil Delalic was never, in the time

13 indicated in the indictment, responsible over the

14 prison, nor its personnel. The Defence will present

15 the following evidence before this Trial Chamber.

16 First, it will invite and hear expert

17 witnesses in the areas of history and military

18 doctrine. It will call and hear witnesses who are

19 familiar with the events in Bosnia-Herzegovina and

20 Konjic. It will call and hear evidence who are

21 familiar with the activities of Zejnil Delalic. It

22 will tender a large number of documents for admission.

23 It will show a number of videotapes and present other

24 evidence in order to establish that Zejnil Delalic is

25 not responsible for the charges brought against him.

Page 10117

1 Though, in conformity with the Statute of the

2 International Tribunal, individual responsibility is

3 being tried, it is impossible to establish that

4 individual responsibility without a broader

5 understanding of the context of the conflict in

6 Bosnia-Herzegovina and in Konjic itself, so that the

7 Prosecutor, rightly, invited three expert witnesses,

8 with the help of whom he tried to establish matters of

9 significance for this case.

10 The Prosecutor acted similarly in the Tadic

11 case and other cases that are being tried before this

12 Tribunal. In order to facilitate understanding of the

13 overall situation and the actual events in Konjic in

14 1992, when allegedly the acts described in the

15 indictment occurred, the Defence will call at least two

16 expert witnesses -- Professor Iljas Hadzibegovic, an

17 expert on the history of Bosnia-Herzegovina and

18 Brigadier General Mohamed Vejzajic, a military expert,

19 regarding the behaviour of the former JNA and the

20 development of the BiH army after the proclamation of

21 its independence.

22 Both experts will present an overview of the

23 general and military situation in Konjic in 1992 on the

24 basis of their expertise and their own research on the

25 ground. With the help of this and other evidence, the

Page 10118

1 Defence will show that Bosnia and Herzegovina sought to

2 establish its statehood over the centuries, that

3 nurturing its way of life at a cross-roads between

4 different civilisations Bosnia-Herzegovina has

5 preserved its multi-ethnic, multi-religious and

6 multi-cultural character as an essential characteristic,

7 that it is impossible to divide Bosnia-Herzegovina

8 according to ethnic criteria, without terrible

9 violence; that the aspirations of neighbours to

10 appropriate parts of Bosnia-Herzegovina or in its

11 entirety have been present in history; that Bosnia and

12 Herzegovina was attacked on the day that it proclaimed

13 its independence; that the towns of Bosnia-Herzegovina,

14 including Konjic, were exposed to horrendous

15 destruction and killing, that the legal organs of

16 Bosnia-Herzegovina waged a battle and created their own

17 army, that the legal authorities in Konjic invested a

18 maximum of effort to avoid a conflict and, when the

19 town was surrounded and attacked, they exerted maximum,

20 one might say, superhuman efforts to ensure minimum

21 conditions for the survival of the population, for the

22 accommodation and nutrition and treatment of refugees

23 from other parts of Bosnia-Herzegovina, to extend

24 minimum medical assistance to numerous casualties and

25 to ensure fairness, as much as possible, to people who

Page 10119

1 were in detention.

2 The evidence will show that the persons

3 detained in Celebici were nationals of

4 Bosnia-Herzegovina, residents and, in most cases, of

5 many years standing in Konjic, that at the time of the

6 proclamation of an immediate threat of war they

7 purchased and owned armaments, blocked roads, or

8 participated in attacks against their own legal

9 authorities, whereby there were reasonable grounds to

10 suspect that they committed serious criminal offences

11 under the criminal code of Bosnia-Herzegovina, that is,

12 that they were rebels; that criminal proceedings were

13 instituted against at least 100 such persons; and that

14 the persons detained in Celebici were not persons

15 enjoying protection under the Geneva Conventions.

16 With respect to Zejnil Delalic, the evidence

17 which the Defence will present will show that as of

18 April until at least 27 July he had absolutely no

19 functions which would be a function of military or

20 civilian superiority; namely, the evidence will show

21 that Zejnil Delalic, until he took over the function of

22 commander of Tactical Group number 1 after 27 July

23 1992, engaged only in logistical affairs and, as of

24 18 May 1992, he was also a coordinator as a

25 predominantly civilian duty to which he was appointed

Page 10120

1 by a civilian body, that is, the war presidency of the

2 Konjic municipality.

3 As a regular soldier, evidence will show that

4 Zejnil Delalic spent the whole month of July 1992 in

5 remote mountainous regions in combat activities without

6 having any functions in the military sense and with a

7 very concrete combat assignment.

8 Throughout his stay in Konjic from April

9 until the end of November 1992, the evidence will show

10 that Zejnil Delalic was not a member of any political

11 Party in Konjic and Bosnia-Herzegovina; that he was not

12 elected or appointed to any State or any other body;

13 that he was not a member of the war presidency, nor was

14 he a member of bodies of political Parties or other

15 institutions.

16 The evidence will show that, in 1992, he was

17 not a commander or a member of the municipal staff of

18 Territorial Defence, which later became the army of

19 Bosnia-Herzegovina, or a member of the joint command of

20 the TO and the HVO in any period of time that year.

21 The Defence evidence will also show that,

22 after 27 July, Zejnil Delalic was appointed to a

23 military function, that is, the commander of Tactical

24 Group 1, with the military assignment to participate in

25 lifting the blockade around Sarajevo under siege. In

Page 10121

1 that capacity, he had forces and resources subordinated

2 to him in the border area from Dreznica to Igman.

3 However, the evidence of the Defence will show that,

4 holding this military function, he did not have any

5 superiority over the region, nor did he have any

6 jurisdiction over the district staff or corps, nor did

7 he have any jurisdiction over staffs and institutions

8 in that area.

9 All the evidence that the Defence will

10 present before this Trial Chamber will show that Zejnil

11 Delalic was at no time a person with superior command

12 over the Celebici prison and its staff. Through the

13 presentation of evidence we will also show the true

14 Serbs who were subordinated to him while he was

15 commander of Tactical Group 1 were not guards, nor

16 Celebici prison staff, nor did any of his subordinate

17 soldiers commit any of the alleged criminal offences

18 according to the indictment.

19 The evidence will also show that, as of April

20 1992, the defensive forces that were active in Konjic

21 were the Territorial Defence, the Croatian Defence

22 Council and the Ministry of the Interior, and that

23 Zejnil Delalic never had a command position in relation

24 to these bodies.

25 We shall also show that the legal authorities

Page 10122

1 from April 1992 organised the defence, and that there

2 were no private armies or groups operating in this

3 area.

4 The Defence will establish all the above

5 mentioned facts by calling witnesses, presenting

6 documents, and showing videotapes of relevance in

7 support of the Defence of the accused, Zejnil Delalic.

8 In this stage, the Defence will not request protective

9 measures for its witnesses, but if this should be in

10 the interests of the protection of witnesses, such a

11 request will be submitted to the Trial Chamber in due

12 time.

13 I do not wish to argue the particular points

14 of the indictment, because Mr. Delalic's Defence already

15 referred to those points in its motion for no case, and

16 the same will be referred to during the presentation of

17 evidence. Therefore, in concluding my opening

18 statement, your Honours, the Defence will, availing

19 itself of its rights under Article 21 and other

20 provisions of the Statute, and the Rules of Procedure

21 and Evidence, present its evidence and thereby show

22 that the accusations against Zejnil Delalic are

23 unfounded. Thank you, your Honours.

24 JUDGE KARIBI-WHYTE: Thank you very much.

25 I think you are leading evidence, not putting up

Page 10123

1 arguments at this stage. You are entitled to lead

2 whatever evidence you can in support of what subsequent

3 arguments you want to put up.

4 What else? Who is your first witness?

5 MS. RESIDOVIC: I should now like to call the

6 first Defence witness, an expert witness in history.

7 Could the witness be brought into the courtroom,

8 please?

9 MR. NIEMANN: May I raise a matter at this

10 stage, please?

11 JUDGE KARIBI-WHYTE: Yes, let us hear what

12 you want to say.

13 MR. NIEMANN: Your Honours, last Thursday at

14 2.45pm the Defence served upon us all this material

15 that your Honours see on the table here behind me -- an

16 extensive amount of material which relates to the two

17 expert witnesses that Madam Residovic has indicated she

18 wishes to call, and, according to her order of list of

19 witnesses, will be the next two witnesses in order.

20 It has been impossible for the Prosecution to

21 absorb all of this material. It is highly complex;

22 there is large amounts of it which we will have to make

23 decisions on in respect of whether or not it is

24 material that we will object to or whether we consent

25 to. There were three videotapes provided at 5pm on

Page 10124

1 Friday by the Defence, for the first time. I have not

2 seen them. As I understand, one of them could go for

3 as long as two hours. One of them I have no idea what

4 is contained in it -- I have not seen them, as I said.

5 Your Honours, you will recall that we were in

6 a similar position; we called two expert witnesses, and

7 Mr. Ackerman addressed the court in relation to what he

8 saw or said were our misdeeds concerning this issue of

9 notice. In that case, what the Defence were

10 complaining about was the fact that a CV had been given

11 late, and a document had been given late, which was not

12 intended to be tendered by the Prosecution and we never

13 said it was intended to be tendered by the Prosecution,

14 but it was merely made available for their assistance.

15 Notwithstanding that, Mr. Ackerman said -- and I might

16 just quote, because I think it is instrumentive to see

17 what they said to us in situations which were far less

18 grievous than what we are now confronting. He said:

19 "I think it is a violation of all the

20 obligations of the Prosecutor under the Rules of this

21 court, and under the interpretation of those Rules by

22 the court in the Blaskic case, to be providing us with

23 us with this material in effect five minutes before the

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

25 impossible, and if not impossible certainly unlikely,

Page 10125

1 that the Defence counsel have had any opportunity to

2 prepare for a comprehensive and efficient

3 cross-examination of this witness. I have no idea, and

4 I will not suggest, that this was done intentionally by

5 the Office of the Prosecutor so as to prevent us having

6 information. I do not know this. But the Prosecutor's

7 Office notified this court I think well over a month

8 ago of their intentions to call this man."

9 Your Honours, we have understood that this

10 expert witness was going to be called by the Defence

11 and they knew that they were going to call their expert

12 witness much longer than a month ago. He goes on:

13 "It is very difficult for me to accept that

14 this material could not have been provided to us until

15 five minutes before he is to take the stand. I think

16 there is a number of remedies available to the court.

17 One of those is to totally refuse to permit

18 him to testify, because of the Prosecutor's violations

19 of their obligations under the Rules, a second is to

20 adjourn the court for a reasonable period of time to

21 permit us to assimilate and explore the new information

22 provided to us this morning. There is a wealth of

23 information about this witness contained on the eight

24 pages that we received."

25 He is referring here to a CV. So, your

Page 10126

1 Honours, in relation to a document that we had no

2 intentions of tendering, and in relation to a

3 curriculum vitae, Mr. Ackerman had that to say. As a

4 consequence of that, your Honours gave the Defence

5 relief in terms of the time that the Defence had to

6 prepare for their cross-examination.

7 We are in a much worse position. We are not

8 dealing with the curriculum vitae, we are not dealing

9 with a document which is merely background material --

10 we are dealing with material which, from the opening

11 address, Madam Residovic has made clear she intends to

12 tender. We are dealing with complicated issues, and we

13 were given them in such an impossibly short period of

14 time that there is no way that we could get ready, in

15 that short time, to prepare an effective and efficient

16 cross-examination.

17 However, we are not seeking to delay these

18 proceedings; we are not seeking to delay the calling of

19 this witness. Our position is this: we submit that,

20 if the Defence were entitled to an extensive period of

21 time -- I can go into them, because your Honours know

22 both Professor Economides, and Professor Gow, a

23 considerable lapse of time passed between when they

24 gave their evidence-in-chief and when they were

25 ultimately finally cross-examined -- we are not asking

Page 10127

1 the witness not be called, we are asking for the same

2 indulgence in terms of the postponement of our

3 cross-examination. We are not seeking anything

4 extensive, we are merely asking that the

5 cross-examination take place at the conclusion of the

6 witnesses that have been arranged to testify this week,

7 and no more and, in relation to the documents that are

8 sought to be tendered, we ask that they do not seek to

9 tender them until such time as the cross-examination is

10 completed.

11 We say that because we are hopeful that if we

12 are given a sufficient period of time to examine these

13 documents, that we can consent to some of them, and we

14 can reduce the amount of time spent, which would

15 otherwise be taken up in individually arguing and

16 objecting to them as they arise. If we are given

17 sufficient time, we believe that we can achieve this,

18 which will be considerably more efficient from the

19 point of view of court and far less tedious in terms of

20 having to deal with them one document at a time.

21 We will do everything in our best endeavours

22 to accommodate the Defence in not objecting to

23 documents if we can conceivably do so, in the interests

24 of the Prosecution case, and in the interests of

25 presenting before the court reliable and credible

Page 10128

1 evidence.

2 But, your Honours, we have been placed in

3 this impossible position -- placed in it by the Defence

4 -- and we are merely asking that we be extended the

5 same considerations as were extended to them in a far

6 less ingredious circumstance.

7 JUDGE KARIBI-WHYTE: Thank you very much for

8 giving us a forewarning of what you are likely to

9 meet.

10 Mr.s Residovic, what is your reply to this

11 service on the Prosecution --

12 MS. RESIDOVIC: Your Honours, I reject all

13 the objections made by the Prosecutor with respect to

14 any failure to respect the obligations that the Defence

15 has towards the Prosecution. According to the court's

16 ruling, the Defence informed the Prosecution in time

17 that it would call this witness and provide it with his

18 CV. The Defence also informed the Prosecutor that it

19 would be calling a military expert and, since that

20 military expert was also a participant in the events,

21 at their request we renounced calling this particular

22 military expert.

23 A month ago, we informed the Prosecution of

24 the name of a new military expert, and thereby,

25 respecting the ruling of this Trial Chamber, informed

Page 10129

1 the Prosecution in a timely fashion regarding our

2 expert witnesses.

3 As for the right of the Prosecution to

4 prepare for the cross-examination, I cannot speak about

5 that at length, because both parties have the right to

6 prepare for the cross-examination, but I would like to

7 remind you, your Honours, that this case started on 10

8 March last year and the Prosecutor, which has at its

9 disposal numerous institutions and resources, which is

10 not the case with the Defence team, provided us with

11 the expert finding of Professor Calic on 4 March, which

12 means only six days prior to the beginning of the

13 proceedings before this Trial Chamber.

14 For this reason, I feel that the Defence has

15 done nothing that would be in violation of the Rules of

16 the Tribunal and that is why I reject such an

17 objection.

18 However, I do understand that the Prosecutor

19 may need to review all the material and to prepare, but

20 the Prosecutor is offering something that the Defence

21 cannot accept and that is that, while examining this

22 witness, we cannot tender documents for admission. In

23 this way, we are placed in an unequal position

24 regarding -- as compared to their own witness,

25 Dr. Calic, who provided us, only six days before her

Page 10130

1 appearance, extremely voluminous documentation and

2 literature, which served as a basis for her testimony.

3 Therefore, your Honours, if you accept the

4 reasons presented by the Prosecutor that he needs time

5 to prepare for the cross-examination, I propose that we

6 postpone the testimony of our witnesses until the end

7 of the week, that is, until the Prosecutor is ready to

8 undertake the cross-examination.

9 JUDGE KARIBI-WHYTE: I do not think we have

10 any intention of doing so. You may proceed with your

11 witness and I think we will find a way of seeing when

12 the cross-examination will take place. Just lead your

13 evidence.

14 MS. RESIDOVIC: Thank you, your Honours.

15 JUDGE KARIBI-WHYTE: Would you call your

16 first witness. Would you please have the witness

17 brought in.

18 MS. RESIDOVIC: My apologies, but could the

19 usher please help me to have the witness brought in,

20 thank you.

21 (The witness entered court)

22 THE WITNESS: I solemnly declare that

23 I will speak the truth, the whole truth and nothing but

24 the truth.


Page 10131

1 Examined by MR.S RESIDOVIC

2 Q. Sir, would you please state your name for the

3 Trial Chamber -- and state your full name and last

4 name?

5 A. My name is Iljas Hadzibegovic.

6 Q. How old are you?

7 A. I am 59 -- I will be 60 this year.

8 Q. Where were you born?

9 A. I was born in a town called Bugojno, 135

10 kilometres south-west of Sarajevo.

11 Q. Can you tell us a few words about your

12 profession -- can you tell us what you are by

13 profession?

14 A. I am a historian by profession -- I work as a

15 university professor.

16 Q. At what university do you teach?

17 A. I work at the University of Sarajevo -- the

18 School of Philosophy.

19 Q. Where did you study, please?

20 A. I completed my studies at the Sarajevo

21 University, and graduate studies I completed in

22 Belgrade in 1967.

23 Q. What is the highest degree of education that

24 you received?

25 A. I received a Ph.D. in 1977, and in 1986

Page 10132

1 I became a full-time professor at the Sarajevo

2 University.

3 Q. Professor, how many professors with the Ph.D.

4 titles were at your school before the war?

5 A. We had 12 departments before the war in our

6 school and we had about 150 Ph.D.s -- professors.

7 Q. Professor, can you tell me how many

8 professors are there left today?

9 A. Between 50 and 60.

10 Q. Could you please tell us, when did you defend

11 your thesis?

12 A. This was in 1977.

13 Q. What was your doctoral thesis?

14 A. My doctoral thesis was the emergence of the

15 working class in Bosnia and its history until 1914.

16 This was a thesis covering both the social and economic

17 history.

18 Q. Since when have you been with the University

19 of Sarajevo, School of History?

20 A. I first worked as an assistant at the

21 historical institute for five years between 1964 --

22 starting in 1964, and starting on 1 January 1970

23 I moved to the School of Philosophy and that is where

24 I have been since. I became a docent in 1978 and,

25 after three years, I was elected an associate professor

Page 10133

1 and since 1986 I am a full-time professor and that is

2 the capacity now in which I work to date.

3 Q. Professor, in this period, you probably

4 conducted research work. Can you tell us, where did

5 you do your research -- at what universities and at

6 what institutes?

7 A. We have a tradition, to research the archives

8 that are the closest to us, and that was among the

9 Yugoslavs, it is the Sarajevo one which has about

10 20 million documents and then Belgrade -- Zagreb,

11 Dubrovnik and so on. Since Bosnia was for about 40

12 years under the Austro-Hungarian rule, I spent time

13 researching in Vienna, and the archives in Vienna, the

14 National Library for (INAUDIBLE) Archive and other

15 libraries are very important for all of the Balkan

16 history.

17 I also did some research briefly in Budapest

18 in the Hungarian State archive and in the National

19 Library in Budapest. I also did some research in

20 Prague and I also had an opportunity to spend an

21 extended period of time in Munich in the Institute for

22 South Eastern European Studies, as well as in Vienna,

23 where I was, for a while, I was invited to work as an

24 expert -- I had a grant to do study on a population

25 which unfortunately I have not yet completed.

Page 10134

1 Q. Thank you, professor. Is it true that you

2 have published about 100 articles from the area of your

3 expertise?

4 A. Yes, that is correct. It is true that I have

5 published around that number of units and I have not

6 counted in all the articles and studies that have not

7 yet been published.

8 Q. Professor, what is your narrower area of

9 interest?

10 A. It is the -- my narrow expertise is the

11 history of Bosnian people in the late 19th and 20th

12 century as well as the south Slav people of that same

13 period.

14 Q. Is it true that you have published two books?

15 A. Yes. I first published in 1980 the book that

16 bore the title of my doctoral thesis and my second book

17 was published in 1991, "The towns of Bosnia-Herzegovina

18 in the late 19th and early 20th century", which was an

19 attempt to study the dynamics between the tradition and

20 modern development in Bosnia-Herzegovina.

21 Q. Is it true that you are the author and

22 co-author of numerous publications which have been

23 provided as an annex to your expert report?

24 A. I have only given select bibliography in the

25 annex of my expert report and I believe that this is

Page 10135

1 proper information given that -- the nature of the

2 report. I have -- the major topics that I have

3 included were the political movements and social

4 movements in Bosnia-Herzegovina. More recently, I have

5 researched migration and its impact on the ethnic

6 relations in Bosnia-Herzegovina, which is very closely

7 related to the most recent events in both

8 Bosnia-Herzegovina and the ex-Yugoslavia territory.

9 Q. Professor, could you please tell the Trial

10 Chamber when did you publish your first expert work?

11 A. I published it in 1962 while I was still a

12 student.

13 Q. And when did you publish your last work?

14 A. My last work was published early this year

15 and its title was, "Civic Society in

16 Bosnia-Herzegovina: its Origins and its Historical

17 Context."

18 Q. Professor, is it correct that your research

19 directly relates to the history of the former

20 Yugoslavia as well as the contemporary history of

21 Bosnia-Herzegovina?

22 A. Yes, that is correct.

23 Q. Professor, would you please tell me where did

24 you spend the war in Bosnia-Herzegovina in 1992 to

25 1996?

Page 10136

1 A. Between 1992 and mid August 1994, I was in

2 the besieged Sarajevo. After that, I left due to

3 family and health circumstances and I went to Vienna.

4 I worked there for a while, while my family stayed in

5 Munich.

6 Q. Professor, can you confirm to this Trial

7 Chamber that, as an eminent expert and scholar from

8 Bosnia-Herzegovina, you are able to objectively view

9 the events that you have been involved in and that you

10 can provide a balanced judgement on them?

11 A. Yes, I can. I am a historian by profession

12 and the historian that does not respect the truth

13 cannot work as a historian.

14 Q. In compiling this report, can you tell us

15 what sources you used?

16 A. When compiling this report, I first -- I used

17 my own work, then the work of a number of experts in

18 this field, that is, the history of Bosnia-Herzegovina

19 in the 19th and 20th century. I also used the relevant

20 material which is archived at the institute for the

21 research into war crimes in Bosnia-Herzegovina, which

22 provided precious material to me. Also, the

23 statistical institute provided me very valuable

24 material and from them I received very valuable

25 statistical information. I have also used material

Page 10137

1 that has been published in Sarajevo in this period, and

2 in the Sarajevo media, as well as media elsewhere.

3 I also used video material that was provided

4 to me through the TV Sarajevo as well as the TV in

5 Konjic and Srebrenica. I also used material that was

6 provided by my colleagues, Docent Marie-Janine Calic

7 and Dr. Gow. I also used documents that were provided

8 to me by the Defence team.

9 Q. Professor, through your -- did you try to

10 verify certain documents that you received from various

11 sources through your own research?

12 A. Verification of documents is a continuing

13 process -- it is an activity that has to go on and

14 until each document's authenticity has been fully

15 confirmed, this is an ongoing process.

16 Q. Professor, finally, can you tell me, do you

17 base your report and your testimony today on the facts

18 that have been adequately verified and confirmed?

19 A. I believe that -- I have based my report on

20 trustworthy facts, because there were many facts --

21 there were many documents which I have not included,

22 because I did not feel that they were adequately

23 verified. However, everything that I have included,

24 I have put into this report, I believe that, at least

25 at this stage of the research process, I think that

Page 10138

1 they have been adequately confirmed.

2 Q. On the basis of this answer, can you tell me,

3 did you encounter any difficulties during your efforts

4 to draft this report?

5 A. Of course. This is something that any

6 historian finds himself fighting against in a situation

7 when you have contemporary events. Many events have

8 not been fully developed or completed, because we had a

9 war some documents are missing. However, over a period

10 of time and despite all the difficulties, I think that

11 we can compile adequate and valuable facts. I believe

12 that of course, in time, certain conclusions will be

13 further confirmed in details.

14 Q. Professor, were you approached by the Defence

15 for Mr. Zejnil Delalic at some point last year and asked

16 to appear here as an expert witness in these

17 proceedings?

18 A. Yes, the Defence did approach me to appear

19 here as an expert witness.

20 Q. Obviously, you accepted to come here since

21 you are here today. Can you now please tell us how

22 long a time did you spend preparing this report?

23 A. I think that I was first approached about a

24 year ago, but I think that I have spent the last six

25 months fully involved in the project, whereas the first

Page 10139

1 six months was probably less intensive.

2 Q. Professor, I would now like to ask you to

3 identify what it was that you worked on the last six

4 months and that we have provided to the Defence and

5 what we are offering to the Trial Chamber today. So,

6 I would like to ask you, professor, is it true that you

7 compiled an expert report?

8 A. Yes, that is correct.

9 MS. RESIDOVIC: Your Honours, I would like to

10 offer this report for identification and show it to the

11 witness. The Defence has provided enough copies for

12 the Trial Chamber. (Handed).

13 MR. NIEMANN: I assume it is only being

14 marked for identification at this stage, your Honour --

15 yes, your Honour.

16 THE REGISTRAR: Defence document 135/1.

17 MR. NIEMANN: I would like to indicate we

18 will have an objection to the tendering of this

19 document.

20 JUDGE JAN: In evidence?

21 MR. NIEMANN: Yes.

22 MS. RESIDOVIC: Professor, is this the report

23 that you compiled?

24 A. Yes. This is the report that I have

25 compiled.

Page 10140

1 MS. RESIDOVIC: Your Honours, I tender the

2 expert's report by Dr. Iljas Hadzibegovic into evidence.

3 MR. NIEMANN: I object to the tendering of

4 the report. The basis of my objection is, firstly,

5 that the witness is here to testify and seemingly what

6 is sought to be done by the Defence is to not only

7 proceed with the witness through evidence-in-chief by

8 way of oral testimony, but to cover the same ground in

9 the form of a statement, which, in my submission, your

10 Honours, is an inappropriate way to proceed. The best

11 evidence that your Honour can receive is what the

12 witness says. There are numerous issues and points of

13 objection that are contained in this report, which the

14 Prosecution would have to then deal with individually

15 before it could in any way agree to its admission,

16 whereas these matters are much better and effectively

17 dealt with by the witness being taken through the

18 evidence in the usual fashion, and asked the questions

19 and then, should matters arise at that stage, the

20 Prosecution can take its objection, if necessary.

21 But just to simply, through the back-door,

22 try and put this report in, simply on the basis that it

23 is identified as an expert report, in our submission,

24 is objectionable.

25 Furthermore, the report itself is based on

Page 10141

1 the large volumes of documents that we were given so

2 belatedly last week, to which there are numerous

3 objections that we, at this stage, would wish to make,

4 because we have not had anywhere near a sufficient

5 amount of time to finally decide whether or not we can

6 agree to their admission.

7 As such, our position is at the moment we

8 have to indicate that we find the exhibits

9 objectionable. So, the report itself makes reference

10 and purports to rely upon the very material that we

11 seek to object to. Your Honours, on that ground, it is

12 the equivalent of calling a witness and endeavouring to

13 tender a statement at the same time. We find that

14 process objectionable.

15 JUDGE KARIBI-WHYTE: I really do not

16 appreciate this objection. Are you doubting whether he

17 prepared it, or the basis under which he did it, or its

18 usefulness?

19 MR. NIEMANN: The basis of the objection is

20 that it contains material that we would wish to take

21 objection to and that the witness is here and that the

22 usual and ordinary course is for this witness or for

23 any witness, whether it be an expert or an ordinary

24 fact witness, to be taken through the evidence. One

25 does not call a witness, tender their statement, and

Page 10142

1 then seek to examine them. That is not the appropriate

2 course to take.

3 JUDGE KARIBI-WHYTE: I will admit it for

4 identification at this stage.

5 MR. NIEMANN: If your Honours please.

6 JUDGE KARIBI-WHYTE: You can carry on with

7 the witness.

8 MS. RESIDOVIC: Before I proceed, your

9 Honours --

10 JUDGE KARIBI-WHYTE: You may proceed.

11 MS. RESIDOVIC: Before I proceed, your Honour

12 -- yes.

13 Mr. Professor, did you prepare this report on

14 the basis of documents contained in this folder?

15 A. Yes.

16 MS. RESIDOVIC: I should like to ask this

17 folder, on the basis of which this report was compiled,

18 to be identified. We have sufficient copies for your

19 Honours. Then we can see whether the witness

20 recognises the documents on the basis of which he

21 compiled his report and prepared for testifying.

22 JUDGE KARIBI-WHYTE: I am not sure it is

23 being disputed that he prepared the report which is

24 admitted for identification. Nobody is disputing that.

25 MS. RESIDOVIC: Your Honours, I appreciate

Page 10143

1 sincerely the experience of this Trial Chamber and of

2 the Prosecutor. I am following the same procedure that

3 the Prosecutor applied when calling Dr. Calic. I have

4 no other experiences with this Tribunal, and I think

5 I am acting correctly and in order with the procedure

6 determined for this Trial Chamber.

7 THE REGISTRAR: Defence document D136/1.

8 MS. RESIDOVIC: Professor, will you please

9 look at the table of contents of this folder that you

10 have on the table? Is it the folder containing

11 materials which you used in preparation for this

12 testimony and for your report? Are you having problems

13 with the interpretation?

14 A. I am hearing the English interpretation.

15 Q. Professor, will you please open this binder

16 and tell me whether these are the documents that you

17 based your expert opinion on?

18 A. Could you please repeat the number?

19 Q. Are these the documents that you worked with

20 when drawing up your report and your opinion?

21 A. Yes.

22 MS. RESIDOVIC: Thank you. Could these

23 documents be admitted into evidence?

24 MR. NIEMANN: I object to the documents

25 being admitted into evidence, if your Honours please.

Page 10144

1 JUDGE KARIBI-WHYTE: Why you objecting to

2 it? They are not documents on which he relied for his

3 report.

4 MR. NIEMANN: No, I am not basing my

5 objection on that. I am basing my objection on

6 numerous of the documents that are contained in here

7 (a) because we do not know the source of them so

8 therefore are in no position to make any assessment as

9 to their reliability; (b) some of the documents are in

10 the form of statements or ways of avoiding statements,

11 because they are letters written to Madam Residovic

12 saying, "I am informing you the following things have

13 taken place," or, "the following position is correct."

14 Under no basis could I see that as admissible. There

15 are some documents which presumably, if we understood

16 the relevance of them, then we may not have any

17 objection to them at all. What is sought to be done

18 here, your Honours, is that there is a process going on

19 that the statement and a huge binder of documents, are

20 sort to be just thrown in and we are sitting here try

21 to say whether we are object to some and not the

22 others. We are not given the opportunity -- it is goes

23 in as one blanket document.

24 If they are marked for identification, that

25 is a different matter because we can deal with them in

Page 10145

1 the appropriate way. If they are sought to be

2 tendered, we object to them being tendered in this way.

3 We have indicated we have not had an opportunity to

4 fully assess them and make a final determination. We

5 must object --

6 JUDGE KARIBI-WHYTE: Is it your argument

7 that you can object to a document that somebody relies

8 upon for his opinion?

9 MR. NIEMANN: I am not seeking to object to

10 it on that basis. If it is sought to be tendered as to

11 the truth of the contents, then I object.

12 JUDGE KARIBI-WHYTE: I do not think they are

13 saying that is the truth of what is being tendered.

14 They are merely saying they are the documents on which

15 he relied for what he did.

16 MR. NIEMANN: If they are not sought to be

17 tendered as to the truth of the contents --

18 JUDGE KARIBI-WHYTE: Not necessarily, no.

19 JUDGE JAN: This is a report. He has

20 indicated the sources upon which he has based his

21 report. There are so many statements in this

22 document. You can question him with regard to the

23 source upon which he has based that opinion. It is

24 merely his opinion. He was not present there

25 personally. This is a report. You can cross-examine

Page 10146

1 him with reference to the document which is the basis

2 of a particular statement in this report. He has given

3 a list of all these documents.

4 MR. NIEMANN: That is depriving me of the

5 right to object to the documents being tendered into

6 evidence -- the very thing the Defence spent many, many

7 hours doing. The documents seized in Vienna were

8 objected to. I had to go through individually and

9 establish the relevance and admissibility of each one.

10 The Defence come here and hand up a huge binder of

11 documents --

12 JUDGE KARIBI-WHYTE: They are not saying

13 those are documents which he now uses -- they are

14 documents on which he relied. It does not mean those

15 documents are correct. It does not tell you that they

16 have been authenticated by anybody. It is documents he

17 relied on. That is a different thing.

18 MR. NIEMANN: My objection falls away to

19 some extent so long as there is no attempt whatsoever

20 for the Defence to rely on them for the truth of their

21 contents. If the Defence are trying to rely on them

22 for the truth of their contents, then I have to object

23 at this stage, because it is too late after they are

24 admitted into evidence.

25 JUDGE KARIBI-WHYTE: They could not have

Page 10147

1 relied on them as the truth of what they contain --

2 that is a different matter. He relied on them for what

3 he was saying. It does not necessarily mean that those

4 things are correct. Somebody else might draw a

5 different conclusion from what he has said.

6 MR. NIEMANN: One wonders why it is

7 necessary to tender them. They could be marked for

8 identification for that purpose.

9 JUDGE KARIBI-WHYTE: On the same basis as

10 the report which he has produced.

11 MR. NIEMANN: Madam Residovic said she was

12 tendering them. If they are only going to be marked

13 for identification, I am sorry, yes.

14 JUDGE KARIBI-WHYTE: They cannot be superior

15 to what he has produced from them.

16 MS. RESIDOVIC: I should now like to ask you,

17 professor, to look at these maps first and then to tell

18 us whether these maps were used by you as a basis for

19 compiling your expert opinion and report. We have a

20 sufficient number of maps for the Trial Chamber and the

21 witness. Could they be marked for identification,

22 please?

23 THE REGISTRAR: Defence document D 137/1.

24 (Handed).

25 MS. RESIDOVIC: Professor, I shall now, after

Page 10148

1 the identification, show you three videotapes and I am

2 asking you to tell me whether these tapes, too, were

3 used by you as a basis for compiling your report and in

4 the preparation for your testimony here.

5 THE REGISTRAR: Defence exhibit number

6 138/1, 139/1, and 140/1.

7 (Handed).

8 MS. RESIDOVIC: Those, Sir, are they the

9 videotapes that you used in compiling your expert

10 report?

11 A. Yes, these are the tapes that I used when

12 preparing my report.

13 MS. RESIDOVIC: Thank you. Could they be

14 marked for identification and admitted as the basis on

15 which the expert witness compiled his expert report and

16 which serves as a basis for his testimony before this

17 Trial Chamber?

18 JUDGE KARIBI-WHYTE: They have been admitted

19 for identification.

20 MS. RESIDOVIC: Professor, I shall try to

21 clarify through your testimony the historical,

22 political and other events that occurred in the

23 territory of the former Yugoslavia after 1980 and in

24 Bosnia-Herzegovina and the town of Konjic after 1990.

25 However, in view of your expert finding and in view of

Page 10149

1 the fact that we all understand that current events do

2 not occur in an historical vacuum, I will also put to

3 you some questions from the more distant past. I am

4 familiar with the historical principle that the present

5 is the daughter of the past and the mother of the

6 future, and that, without an understanding of some more

7 distant events which decisively affected the fate of

8 Bosnia-Herzegovina as well as events in the recent

9 past, it is not possible to understand it.

10 MR. NIEMANN: I object. We either ask

11 questions or we do not. This is nothing more than just

12 a speech and I object to it.

13 JUDGE KARIBI-WHYTE: Kindly put your

14 question to him.

15 MS. RESIDOVIC: Thank you.

16 Professor, will you please tell us briefly

17 when Bosnia and Herzegovina was formed as a State and

18 what happened in that first initial period in the

19 territory of Bosnia-Herzegovina?

20 A. Bosnia and Herzegovina is mentioned for the

21 first time in the middle of the 10th century in the

22 work of the Byzantine King in 904, Constantine. It is

23 mentioned on a small area of a small area of the banks

24 of a river of the same name as an area which changed

25 hands from the weaker to the more powerful neighbours.

Page 10150

1 Q. Professor, to be able to be as brief as

2 possible, would you put on the ELMO map number M1, and

3 indicate very briefly the main points of that

4 historical period that are related to the current

5 events or the latest events.

6 A. We have before us a map of the medieval

7 Bosnian State. This is a map of the medieval

8 Bosnia-Herzegovina, or rather, the changes that

9 occurred from the 10th century, because the area marked

10 in red is the area called Horjon Bosnijonen mentioned

11 by King Constantine in the 10th century. This large

12 area in pink is Bosnia in the 12th century, and the

13 line in dark red is indicative of Bosnia at the peak of

14 its power when it became a kingdom and this was in

15 1377, and this line in dark green indicates the borders

16 of present day Bosnia-Herzegovina (indicates).

17 Q. Professor, can you tell us where

18 Bosnia-Herzegovina is situated -- did its position

19 affect its present-day history?

20 A. Bosnia-Herzegovina is a land whose geographic

21 and historical position was determined by history,

22 because it was situated at the cross-roads of a number

23 of civilisations -- originally, it was at the division

24 between the eastern and western empire, that is, the

25 division between Catholicism and Orthodoxy. Then,

Page 10151

1 again, it found itself on the border between the

2 Ottoman empire and the Habsburg empire, one bringing

3 Islam and the other Catholicism.

4 In modern history, again, a third line of

5 division crossed Bosnia and the Yugoslav lands, and

6 that was that it was between the eastern and western

7 block and that it was always between two worlds -- the

8 eastern part of it being inclined towards Orthodoxy and

9 Islam and the western towards Catholicism.

10 In more modern history and the political

11 divisions that occurred, the eastern and western block

12 met in Yugoslavia and therefore in Bosnia-Herzegovina

13 this coincides with the present situation, because

14 again the eastern and western part of Yugoslavia was

15 divided, in this sense in terms of religion,

16 civilisation and culture.

17 MS. RESIDOVIC: Professor --

18 JUDGE KARIBI-WHYTE: Let us rise. We will

19 come back at 4 o'clock.

20 (3.30pm)

21 (A short adjournment)

22 (4.00pm)

23 MS. RESIDOVIC: Can we have the witness

24 brought back in, please?

25 (The witness entered court)

Page 10152

1 JUDGE KARIBI-WHYTE: Mr.s Residovic, you may

2 continue.

3 MS. RESIDOVIC: Thank you.

4 Professor, I would like to apologise to both

5 you and the Trial Chamber that I forgot to forewarn

6 you. We both speak the same language. However, all

7 that we are saying needs to be heard by the Trial

8 Chamber, so we need to allow the interpreters to convey

9 it to them. So, I would like to ask you now -- you see

10 a set of headsets on your desk -- will you please

11 listen in just for the sound of it and, when that is

12 done, then please proceed with your answer?

13 A. Yes, I understand that.

14 Q. Professor, could you tell us briefly what are

15 the main characteristics of the relations between the

16 different religious groups during the Ottoman period,

17 which continued to date?

18 A. Bosnia and Herzegovina during the middle ages

19 was a multi-religious and multi-ethnic province. This

20 multi-ethnic feature continued after the fall of the

21 medieval Bosnian State in 1453. After the Turkish

22 take-over, the history of Islam ensues in addition to

23 the Orthodox and Catholic religions and this produces

24 the population of today, known as Bosniaks.

25 At the end of the 15th century, a fourth

Page 10153

1 religion is added -- the Jews from Spain resettled in

2 Sarajevo and that is where they stay to date.

3 This mosaic continues in Bosnia for 415 years

4 and, later on, it would expand during the

5 Austro-Hungarian period.

6 Q. When the Ottoman empire withdrew from the

7 Balkans, did this have significant consequences to the

8 local population?

9 A. The withdrawal of the Ottoman empire lasted

10 for almost two centuries, and it also implied

11 withdrawal of the Muslim population, predominantly the

12 Turkish population and out of Europe through the

13 Bosphorous and into Anatolia. My apologies, this

14 withdrawal was caused by one -- to transfer the

15 population from the lost territories and in the other

16 case, it was the annihilation of all the heritage --

17 this is the case in Greece, in Vlaska, Moldavia and

18 later on in Serbia and still later in Bulgaria.

19 Q. Can you tell us, what was the status of

20 Bosnia and Herzegovina under the Austro-Hungarian

21 monarchy? I would like to especially draw our

22 attention to the creation of the constitution for

23 Bosnia and Herzegovina?

24 A. Bosnia came under the Austrian rule in 1878

25 and its status was -- in fact, it was Austria that

Page 10154

1 received the mandate from the European powers through

2 the Berlin Congress, and the relationship between

3 Austria and Hungary was set out in a separate contract

4 and Bosnia was annexed to the Austro-Hungarian empire

5 in 1908 and it received a separate constitution and its

6 first provision was that it was a corpus separatum, it

7 did not belong to Austria or Hungary so it was a corpus

8 separatum, and the Bosnian becomes part of political

9 life of that empire. It has no legislative powers but

10 it could cooperate with the legislative bodies in

11 Vienna.

12 Q. Thank you. Can you tell me, did

13 Bosnia-Herzegovina during the Austro-Hungarian rule as

14 a corpus separatum, did it cover predominantly the

15 current borders?

16 A. During the Berlin Congress,

17 Bosnia-Herzegovina had 51,027 square kilometres and

18 these are the borders that Bosnia had when it entered

19 Yugoslavia in 1918.

20 Q. The State constitution which you just

21 mentioned, is a copy of this constitution included in

22 this report as annex A1? (Handed). Could we just take

23 a look at a copy of this State constitution and I think

24 that you have already explained what it was.

25 A. Here we also have a translation -- an English

Page 10155

1 translation --

2 Q. Yes, this is part of the file that you have

3 provided.

4 Professor, how was Bosnia included into the

5 Kingdom of Serbs, Croats and Slovenes after the

6 breakdown of Austria-Hungary after World War I and what

7 was its status?

8 A. The first Yugoslavia State, or the Kingdom of

9 Serb, Croats and Slovenes, was formed on 1918, on

10 1 December. Bosnia-Herzegovina became part of that

11 State together with the lands that were under

12 Austria-Hungary, including Slovenia, Croatia and Bosnia

13 and Herzegovina. They formed a single entity and they

14 united with the Kingdom of Serbia, which also included

15 Montenegro and Vojvodina and on 1 December they all

16 united and, within its territorial borders, which were

17 guaranteed by the first constitution of 1920, provision

18 135, guaranteeing its borders under the

19 Austro-Hungarian rule, and it was not established --

20 constituted as a separate unit.

21 Q. Professor, the article 135 of the

22 constitution of the Kingdom of Serbs, Croats and

23 Slovenes that you just quoted, is this the document

24 which was marked as annex A2 in your folder -- your

25 supporting folder?

Page 10156

1 A. Yes.

2 Q. Thank you. Professor, can you tell me, what

3 was the territorial and administrative division in

4 Bosnia-Herzegovina during the period of Kingdom of

5 Yugoslavia; that is, what were the reasons for such

6 divisions, if they took place?

7 A. The most significant division in Yugoslavia

8 was introduced by the dictatorship of 6 January 1929,

9 when the dynasty, that is, the court and the Serbian

10 oligarchy attempted to create a unitarian State to

11 obliterate the historical borders and, at that time,

12 the State was divided into nine Banovinas, and the

13 historical names were not respected, but the Banovinas

14 drew their names from the names of rivers -- all

15 provinces bore the names of different rivers, and

16 Bosnia was split into four different Banovinas whereby

17 its century-long tradition -- both the tradition as a

18 State and as of its autonomy was thereby annihilated.

19 MS. RESIDOVIC: I would like to ask the

20 technical booth to display the map, page 1/3. I would

21 like you then to elucidate the points you have just

22 made to us when this map is displayed. Could you

23 please just wait until the map is displayed on the

24 ELMO.

25 What does this map represent?

Page 10157

1 A. This is the map of the Kingdom of Yugoslavia

2 of 1929 in which you can see nine Banovinas and the

3 district of Belgrade. I would please like to ask to

4 have the current borders of the State of

5 Bosnia-Herzegovina to overlap this over the map that is

6 displayed on the ELMO.

7 Q. Can we please have the technical booth do

8 that for us?

9 A. In red line are indicated the borders of the

10 present-day Bosnia-Herzegovina, which is the territory

11 which we saw in the previous map of 1918, and the

12 current one. We can see that Bosnia was divided

13 between Drinska, Vrbaska, Primorska and Zetska

14 Banovinas, so we can see that part had been annexed to

15 Serbia and so on.

16 MS. RESIDOVIC: Professor, why is the

17 agreement Cvetkovic-Macek often mentioned during the

18 analysis of this period? Could you please explain to

19 us the map marked as 1/4, and I would like the

20 technical booth please to display this map?

21 A. We have according to the Banovinas and the

22 larger map is the Cvetkovic-Macek agreement-based map

23 of Bosnia, which was signed 26 August 1939 and that

24 means four days before the beginning of World War II.

25 What this map reflects is the fact that the unitarian

Page 10158

1 concept of Yugoslavia did not work and that Serbs and

2 Croats proceeded to adopt an agreement. They wanted to

3 create a Yugoslavia with three units -- one would be

4 Slovenia, one Croatian Banovina and one the Serbian

5 lands.

6 Q. Based on map H 1/4/1, would you comment on

7 the fate of Bosnia-Herzegovina according to this

8 division?

9 A. You can see that Bosnia-Herzegovina was

10 partly in the Posavina region, the three counties have

11 been annexed to the Croatian Banovina and in the

12 south-western part of Bosnia, several additional

13 counties were annexed to the Croatian Banovina. The

14 remaining territory was supposed to be part of the

15 Serbian lands. This was a compromise between the

16 Serbian and Croatian national movement leaders.

17 MS. RESIDOVIC: Professor, in your report, and

18 this is a frequent case in the scholarly analysis, you

19 mentioned the project of Greater Serbia. Can you

20 please explain what this concept means and what is

21 particularly -- in particular, what it means for

22 Bosnia-Herzegovina.

23 In order to facilitate that, could the

24 technical booth please display the map H1/5?

25 Also, could the technical booth display

Page 10159

1 H1/5/1 right away so that we can see how

2 Bosnia-Herzegovina looks there.

3 JUDGE KARIBI-WHYTE: Mr.s Residovic, I am not

4 sure what you intend to show by this. What do you want

5 to flesh out? It is an interesting historical

6 discussion -- I do not deny that. What, in terms of

7 your case, do you think this is intended to do?

8 MS. RESIDOVIC: Your Honours, in the

9 beginning, I said that we called an expert witness, a

10 historian, to give us a very brief summary of a

11 thousand years of history, which were some of the root

12 causes for the conflict which took place in the early

13 90s, with a breakdown of Yugoslavia, and since my

14 client has been associated with the activities of the

15 Bosnian forces during the events, and I believe that we

16 have covered 900 years very fast -- I think that we are

17 arriving at 1990s any moment -- I think that it would

18 be helpful if we provided a full context and covered

19 the historical facts.

20 JUDGE KARIBI-WHYTE: I am not saying

21 anything about your style or what you intend to do. My

22 apprehension is what all this meant. You understand

23 what your case is and what you expect it to do? I do

24 not see the relevance. That is speaking for myself.

25 I am not talking about my colleagues. They might have

Page 10160

1 their own attitude towards proving what you are

2 asserting. A lot of the historical incidents are not

3 in dispute -- nobody is denying that. If there is any

4 dispute at all, it might relate to the current areas --

5 not the history before this time.

6 It is your case. I have always preferred a

7 tidier and more expeditious way of getting at where we

8 are going.

9 MS. RESIDOVIC: Your Honours, that is my

10 endeavour, too. I think that the witness's testimony

11 will focus on Konjic, but you will recall about the TO

12 and HVO, the Republika Srpska. In order to understand

13 all these categories in case, it is not so easy --

14 maybe even for us who have lived through this period.

15 I think that it will assist you when you make final

16 determinations if you are able to get the full context

17 of all the events that took place there. I am really

18 trying to be brief. I will do my utmost to get there

19 fast.

20 JUDGE KARIBI-WHYTE: I am trying to avoid

21 being not confused by too much detail -- this is my

22 problem.

23 MS. RESIDOVIC: Thank you.

24 Professor, you said that this was a project

25 known as Greater Serbia. Does it include parts of the

Page 10161

1 territory of Bosnia-Herzegovina?

2 A. Yes, all of it, except the part that was

3 attached to Croatia in the south-west and in the north,

4 in the Sava River valley. The rest of Bosnia was

5 attached to Serbia, or rather to the Serb lands, as

6 they were known.

7 MS. RESIDOVIC: The concept of a Greater

8 Croatia is also customary in your historical and

9 scholarly reviews. Could you tell us, please, on the

10 map, H1/6 -- could you show us what that idea means for

11 Bosnia-Herzegovina?

12 Could the technicians show us H1/6?

13 A. This map shows in yellow the area of the

14 independent State of Croatia established on 10 April

15 1941 as a puppet State created by fascist Germany and

16 Fascist Italy.

17 Q. Would you please show over this map the

18 borders of Bosnia-Herzegovina -- H1/6/1, and will you

19 please tell us how the fate of Bosnia-Herzegovina was

20 affected by this project?

21 A. Here we see that the whole territory of

22 Bosnia-Herzegovina was included in the independent

23 State of Croatia. This marked the fulfilment of the

24 concept of a Greater Croatia and, when a debate is

25 going on between Yugoslav and world historians as to

Page 10162

1 the borders between Serbia and Croatia, the Serbian

2 extremists wished to attach Bosnia to Serbia, then the

3 border is on the Una River. When on the other hand a

4 Greater Croatia thesis is advocated, then the boarder

5 is on the Drina River, so that these two interests

6 collided throughout history at the expense of

7 Bosnia-Herzegovina and this can be seen also on this

8 map, because, in its entirety, it was included in that

9 State.

10 May I add in this connection that all these

11 changes were accompanied by extreme suffering of the

12 population, both Serbs, Croats and Muslim populations,

13 and, during the Second World War, ethnic cleansing was

14 already introduced in programmes and in practice.

15 Hence, we feel it is necessary to draw attention to the

16 roots of the evil, which was repeated in the 20th

17 century and Bosnia-Herzegovina was rebuilt three times

18 from the ashes, with vast human and material

19 destruction and that is why we think it is not -- it

20 would be a good idea to try and find some solution so

21 that such things should not be repeated.

22 MS. RESIDOVIC: Professor, this radical

23 Ustasha concept has, on the other extreme, the Chetnik

24 concept of a Greater Serbia, so would you please

25 explain to us that concept on map H1/7?

Page 10163

1 Can I ask the technicians to show us number 7

2 and, again, H1/7/1, could you overlay

3 Bosnia-Herzegovina on top of this map so that we see

4 how it is affected by this project?

5 A. This is a map of Yugoslavia -- the area in

6 white shows that the whole of Bosnia-Herzegovina is

7 included in Greater Serbia -- actually, in Serbia --

8 which was designed in such a way that it came to life

9 in this war. The idea was that it would stretch to

10 Karlobag in the north and include all these territories

11 not only in Bosnia-Herzegovina but also in Croatia

12 where the Serb population was residing so that is the

13 root of the idea of all Serbs in one State, and this

14 corresponds to present-day history.

15 Q. Could you tell us, please, briefly what the

16 programme of the Chetnik movement was, because their

17 Honours were listening to some witnesses and wanted

18 this concept to be clarified for their benefit. You

19 have discussed this in your documents and in annex

20 number 6, in particular.

21 Annex A6?

22 A. Here you have the most important abstract

23 from the Chetnik programme translated into English.

24 The author of this programme was Draza Mihajlovic, who

25 was a colonel of the Yugoslavia army, and commander of

Page 10164

1 the Chetnik army in the country. He was, for a time,

2 also Minister of the King in exile -- a Minister in the

3 Government in exile.

4 Q. Professor, does that programme imply the

5 disappearance of the Muslim population from the

6 territory of Bosnia-Herzegovina?

7 A. There is reference here to the creation of

8 Serb territories and these are listed. It is stated

9 that they have to be ethnically pure and it is also

10 envisaged that the non-Serb population should be

11 removed. There are all kinds of possibilities

12 envisaged, from killings to persecution and banishment

13 and expulsions, so that this programme actually served

14 as a basis in this war, too.

15 Q. Professor, could you tell me, in view of the

16 fact that these two projects, the Chetnik and the

17 Ustasha, came to expression in the Second World War,

18 what was the attitude of the Muslim population and

19 their intellectuals towards the crimes committed

20 against the Serbs, the Jews and other peoples?

21 A. I wanted to show, through the resolutions

22 passed by the Muslim people in the most important towns

23 in 1941, whereby it denounced the crimes committed

24 against the Serb people, and it also disassociates

25 itself from the Muslims in the Ustasha movement who

Page 10165

1 participated in the commission of those crimes.

2 Therefore, this is something that was set in motion by

3 Muslim priests in Sarajevo and then such resolutions

4 were passed in Sarajevo, Mostar, Zenica, Bijeljina and

5 other towns. This was one of the rare anti-fascist

6 moves taken against fascism in those days in Europe.

7 Q. What is the importance for the State of

8 Bosnia-Herzegovina of the anti-fascist struggle of the

9 peoples of Yugoslavia and of Bosnia-Herzegovina during

10 the Second World War?

11 A. In the course of the Second World War, three

12 ideas came together -- one was the greater Croatian

13 idea; the second the greater Serbian; and the third

14 idea was the anti-fascist national liberation idea

15 which sought to unite the peoples of Yugoslavia and of

16 Bosnia-Herzegovina. It emerged victorious in

17 Bosnia-Herzegovina in the Second World War.

18 Q. Professor, could we now see map H8/1 for you

19 to explain to us what that meant as a result of the

20 anti-fascist struggle of the people of

21 Bosnia-Herzegovina?

22 A. This is a map of Yugoslavia created in the

23 course of the Second World War and, finally, regulated

24 as a State -- a Federal State with six equal republics

25 -- not only were they equal -- not only were the

Page 10166

1 republics equal but so were the Yugoslavia peoples.

2 All the republics had certain ethnic characteristics,

3 whereas Bosnia and Herzegovina, as a multi-ethnic

4 State, also acquired a -- it was also an independent

5 republic on a completely equal footing with the other

6 Yugoslavia republics.

7 This is a map that remained in force until

8 1992.

9 MS. RESIDOVIC: Your Honours, with this we

10 come to the end of the brief review of the history of

11 the State of Bosnia-Herzegovina and the peoples living

12 in it and we would now like to ask the professor to

13 move on to latter-day history, which we have asked you

14 to testify about before this Trial Chamber.

15 Will you please, professor, explain to us the

16 main characteristics of the crisis in the former

17 Yugoslavia after 1980, that is, after the death of the

18 President of SFRY, that is Josip Broz Tito. So as not

19 to go into excessive details, will you please tell me

20 first whether the crisis was first initially an

21 economic or political crisis?

22 A. The death of Josip Broz Tito, the President

23 of the Federal Socialist Republic of Yugoslavia at the

24 time speeded up the crisis and the destruction of the

25 Yugoslavia society. It started as an economic crisis,

Page 10167

1 which was particularly expressed in the form of very

2 high external debts of Yugoslavia, which amounted to

3 $US22 billion, and even though attempts were made

4 through a crisis commission, and long-term programmes

5 of economic stabilisation, the crisis was too deep and

6 it could not be overcome, so that it soon developed

7 into a social and political crisis.

8 The ideology of Communism was called in

9 question and solutions had to be sought in the form of

10 new ideas.

11 Q. Professor, were there differences in terms of

12 ways of dealing with the crisis among the individual

13 Yugoslavia republics?

14 A. Of course there were differences and they

15 were not only due to that crisis, but to previous

16 history due to which there were different outlooks

17 regarding social development. In the first place,

18 Slovenia and Croatia wanted to develop a democratic

19 society with a market economy, with more democracy, and

20 with the ultimate goal of forming national States,

21 whereas Serbia and Montenegro wanted to create a State

22 which would be a centralised State and which would be

23 controlled from Belgrade.

24 Q. Professor, under those circumstances, what

25 did the Memorandum of the Serbian Academy of Sciences

Page 10168

1 issued in 1986 mean?

2 A. The Memorandum of the Serbian Academy of

3 Sciences was actually an analysis made by prominent

4 intellectuals, members of the Serbian Academy headed by

5 Antonije Isakovic. That document said that Serbia was

6 a loser since the 1974 constitution, because, as

7 opposed to the period before that, in 1974, it became

8 only one of six equal republics. As a way out of the

9 crisis, the intellectuals proposed three stages -- in

10 the first stage, Serbia proper should strengthen its

11 authority; then the second stage would consist of a

12 centralisation in Serbia; and the third stage would be

13 the creation of a Greater Serbia.

14 In the first stage, Slobodan Milosevic and

15 people who thought like him first tried and succeeded

16 -- I beg your pardon -- something first had to be done

17 to achieve greater homogeneity and to do that Milosevic

18 went through various institutions -- first of all he

19 cleansed the media from disobedient editors. Then he

20 carried out changes in the Party leaderships, that is,

21 removing the moderates and then, when he gained control

22 of the media and strengthened his position in the

23 Party, he then sought and dealt with the problem of

24 disobedience.

25 Then came the second stage -- the stage of

Page 10169

1 centralisation of Serbia. This meant abolishing the

2 autonomies of the two autonomous provinces, i.e.

3 Vojvodina and Kosovo. It also involved changing the

4 leadership in Montenegro so as to form a territory for

5 Serbia, which would serve as a basis for further

6 expansion and for control over Serbian lands outside

7 the Republic of Serbia and Montenegro.

8 Through the media, of which he already had

9 control, and which were run by his followers, public

10 rallies were organised, massive rallies in cities, and

11 the moderate leaderships were removed and in their

12 place Slobodan Milosevic's followers were appointed.

13 Q. To speed up things, did the forces in Serbia

14 succeed in their centralisation efforts and in

15 abolishing the autonomies of Kosovo and Vojvodina?

16 A. There was a parallel process going on. The

17 strongest resistance was put up by the Albanians who

18 did not wish to give up their autonomy. They had

19 90 per cent of the population in Kosovo which was

20 Albanian. They had their formed national institutions

21 and they did not wish to give up that autonomy.

22 There were fierce clashes between the army

23 and the police, which sought to stifle the

24 demonstrations in Kosovo. As a result of all these

25 clashes was the failure of the Albanians to retain

Page 10170

1 their autonomy, the constitution was amended and, on

2 28 March 1989, Serbia acquired a new constitution, a

3 centralised Serbia. Slobodan Milosevic was elected

4 President of Serbia and, in Novi Sad, Podgorica and

5 Pristina, the leaderships were loyal to Slobodan

6 Milosevic. That was the upshot of the memorandum, as

7 well as of the other political tendencies that were in

8 evidence in the country at the time.

9 Q. Professor, after 1990, and the democratic

10 elections in Slovenia and Croatia, new democratic

11 forces appeared on the political stage. How did

12 Belgrade react to those changes and what is the

13 substance of the proclaimed slogan in Belgrade, "All

14 Serbs in one country"?

15 A. After these changes, it became clear, and

16 especially after the failed 14th Congress of the League

17 of Communists of Yugoslavia, which was interrupted and

18 then resumed -- at that Congress, the League of

19 Communists made a statement that it no longer wanted to

20 have a monopoly over political power in the country.

21 This was followed by a process, during which the League

22 of Communists disappeared from the historical scene, as

23 did the single-Party system.

24 This meant that processes were set in motion,

25 the aim of which was to establish a balance between

Page 10171

1 various political concepts. The concepts advocated by

2 Slovenia and Croatia, which wanted to develop

3 democratic societies and to form their own national

4 States, and another concept advocated by Serbia and

5 Montenegro and that was to preserve Yugoslavia, which

6 would have a centralised federation, the centre being

7 in Belgrade.

8 Q. Professor, the question that I put to you

9 regarding the slogan, "All Serbs in one State", was it

10 a call for changing the boundaries of the existing

11 Yugoslavia republics?

12 A. Yes. Milosevic said at the time that he

13 would not recognise republican boundaries if Yugoslavia

14 fell apart. This meant that he would create a State

15 following ethnic lines rather than historical

16 boundaries. Therein lay the basis of the idea of all

17 Serbs in one State. This, after all, was drawn into

18 the plan called "framework", which covered the whole of

19 Serbia, Bosnia-Herzegovina and parts of Croatia in

20 which the majority of the population were Serbs.

21 This was a situation in which, when all this

22 existed and had been plotted, efforts were made to

23 achieve greater homogeneity of Serbs in other

24 territories, and the Serbian national movement in

25 Croatia became more radical, with the assistance and

Page 10172

1 protection of the Yugoslavia People's Army, which

2 increasingly acquired the characteristics of a Serbian

3 army.

4 In 1990, 60 per cent of the armed forces were

5 Serbs -- even though Serbia constituted a far smaller

6 proportion of the population.

7 Q. Professor, so as to avoid going into the war

8 in Slovenia and the Republic of Croatia, I should like

9 to ask you to tell us, after the withdrawal of the JNA

10 from the territory of the Republic of Slovenia and

11 Croatia, where was the majority of the forces of the

12 former JNA deployed?

13 A. The majority of those forces were withdrawn

14 to Bosnia-Herzegovina. All the forces that had

15 withdrawn from Slovenia and from Croatia were deployed

16 in Bosnia-Herzegovina -- even three additional corps

17 were brought in from Montenegro, Serbia and Vojvodina,

18 the Novi Sad, Uzice and Podgorica Corps, so that Bosnia

19 was overpopulated by the army, and this actually

20 constituted what some people called "a quiet

21 occupation", but in fact it was covering the entire

22 territory and establishing full control over all

23 resources, all communication lines, within

24 Bosnia-Herzegovina.

25 MS. RESIDOVIC: Professor, in your brief

Page 10173

1 review of the history of Bosnia-Herzegovina, you

2 ascertained that, throughout this long period in

3 history, it was a multi-ethnic State. Could I please

4 ask you to look at map H1/9 and 9/1, and to show us

5 what the actual ethnic situation was in

6 Bosnia-Herzegovina before the war broke out in 1992, so

7 could the technicians please show us these maps?

8 A. This is an ethnic map of Bosnia-Herzegovina,

9 based on the 1991 population census. We see the ethnic

10 composition of the population in Bosnia-Herzegovina --

11 the blue indicating Muslims/Bosniaks; the brown are

12 Croats; the yellow are Serbs; and the pale blue, the

13 others. So, this map shows that, in

14 Bosnia-Herzegovina, there was not a single municipality

15 -- and there were 109 of them-- that were ethnically

16 100 per cent pure.

17 Q. Professor, you have just told us that each of

18 these circles represents one municipality, reflecting

19 the colours of the three dominant peoples. Were they

20 the only peoples living in 1992 just before the

21 outbreak of the war in Bosnia-Herzegovina?

22 A. No, they were not the only peoples, because,

23 in Bosnia-Herzegovina, according to the 1991 census,

24 there were about 70 different statements regarding

25 ethnic origin, but, in realistic terms, in addition to

Page 10174

1 Serbs, Croats and Muslims, there were another 20 ethnic

2 groups residing in Bosnia-Herzegovina. Therefore, this

3 was really a multi-ethnic community -- multi-ethnicity

4 was a permanent characteristic of Bosnia-Herzegovina

5 from the middle ages to the present day.

6 Q. What was the result of the elections that

7 were held in 1990 in Bosnia-Herzegovina, and which

8 political Parties won most seats in the Bosnian

9 assembly?

10 A. At the elections held in November 1990, the

11 national Parties were victorious -- the Party of

12 Democratic Action, the Muslim Bosniak Party won the

13 most votes. In a Parliament with 240 deputy seats, it

14 won 86, or 35.83 per cent. The Serbian Social

15 Democratic Party won 72 seats, or 30 per cent of the

16 total number of seats in Parliament. The Croatian

17 Democratic Alliance won 44 seats, or 17.33 per cent,

18 I think. So that the national Parties won an absolute

19 majority of seats, that is, 202 out of a total of 240.

20 All the remaining Parties won a total of 38 seats, or

21 -- I cannot remember what that was percentage wise.

22 Q. Professor, since the period that you are

23 talking about right now is the period of the

24 dissolution of Yugoslavia, could you tell us whether

25 Bosnia-Herzegovina, as one of the Federal units within

Page 10175

1 Socialist Federal Republic of Yugoslavia and its

2 political leadership, had a significant influence on

3 the dissolution of Yugoslavia and can you tell us what

4 was the thrust of the resolution proposed by President

5 Izetbegovic and Gligorov and which you used in your

6 report?

7 A. I have already stated the differences which

8 existed between different republics within Yugoslavia,

9 that the concepts of Slovenia and Croatia were

10 different than the positions of Serbia and Montenegro.

11 The two weakest republics, that is Bosnia-Herzegovina

12 and Macedonia, were attempting at that time to do

13 something in order to avoid the war. The Presidents of

14 republics and autonomous provinces met six times in

15 order to try to resolve this constitutional crisis.

16 The last attempt was made by the Presidents Gligorov

17 and Izetbegovic -- they attempted to find a compromise

18 between the two concepts. They proposed to preserve an

19 alliance of States or republics -- that is, a

20 Yugoslavia identity be preserved. Slovenia and Croatia

21 adopted decisions to proclaim their independence and to

22 create national States.

23 Q. Did this position yield any results?

24 A. This platform did not yield any results, and

25 peace could not be preserved.

Page 10176

1 Q. Professor, the things that you just stated,

2 is this platform part of your supporting material as

3 annex D1?

4 A. Yes.

5 Q. Professor, let me take you back to certain

6 issues regarding Bosnia-Herzegovina of this period.

7 Can you tell me what was the position with respect to

8 the independence of Bosnia-Herzegovina of the three

9 main political Parties? That is, the Serbian SDS, the

10 Bosniak SDA and the Croat HDZ Parties?

11 A. The national parties cooperated in questions

12 of winning the elections and removing the communists

13 from power. Following that, their positions followed

14 their own courses. They did not have the same

15 positions with respect to the survival of

16 Bosnia-Herzegovina.

17 Q. The Social Democratic Party -- you mean the

18 SDA?

19 A. No, I am sorry, I mean the Party of

20 Democratic Action, and the Croatian Democratic Union,

21 from the very beginning, cooperated very closely, and

22 they wanted a sovereign and independent

23 Bosnia-Herzegovina, while the SDS advocated for

24 Bosnia-Herzegovina to remain within Yugoslavia.

25 Q. Professor, what are the key elements or

Page 10177

1 factors in the establishment of Bosnia-Herzegovina as a

2 sovereign independent State towards the end of 1991 and

3 in early 1992?

4 A. There are several factors which contributed

5 to the establishment of Bosnia-Herzegovina as an

6 independent State. First of all, it is a long

7 historical period -- a long period of history -- of its

8 identity as a State and its long survival within the

9 borders of the Ottoman and Austro-Hungarian empires.

10 Another factor which is also very significant

11 is the referendum through which the majority of the

12 population elected for Bosnia-Herzegovina to become

13 independent, and the third would be its struggle to

14 preserve the independence of Bosnia-Herzegovina. This

15 would be some of the main elements that contributed to

16 the establishment of Bosnia-Herzegovina as an

17 independent State. One of the key factors is obviously

18 the international recognition of Bosnia-Herzegovina by

19 the European Union and other nations and its acceptance

20 by the United Nations.

21 Q. What was the role of the former JNA in the

22 dissolution of Yugoslavia and the war that ensued and

23 I would like you to be very brief there and illuminate

24 it for me, the historical rather than the military

25 perspective?

Page 10178

1 A. The JNA, first of all -- in fact, it was

2 permeated by nationalism -- not just Yugoslavia

3 People's Army but also the Yugoslavia political

4 leadership, so the JNA started arming and protecting

5 only one segment of the population by becoming a single

6 ethnic group-based army -- it lost its Yugoslavia

7 character. It protected one ethnic group only, and

8 therefore stopped being the factor which used to be the

9 guarantee of the constitutional arrangements in

10 Yugoslavia.

11 It protected the Serbs in Croatia and Serbs

12 in Bosnia-Herzegovina. It armed them and it prepared

13 them for a creation of a Greater Serbia -- to put it in

14 a nutshell.

15 Q. Professor, you said that SDS was one of the

16 victors of the election in Bosnia-Herzegovina in 1990

17 and was against the independence of Bosnia-Herzegovina

18 as a republic, that it opposed the status of

19 Bosnia-Herzegovina that would put it on equal footing

20 with the rest of the republics. Can you tell us what

21 did the SDS leadership do in the months following the

22 elections and especially on the eve of the war of 1992?

23 A. The Serbian Democratic Party, after the

24 elections, and seeking support from Belgrade,

25 endeavoured to create a State within a State in

Page 10179

1 Bosnia-Herzegovina. It developed a relationship with

2 the JNA, and was one of the political actors in the

3 preparation for the division of Bosnia-Herzegovina.

4 They started establishing in

5 Bosnia-Herzegovina wherever there was a Serbian

6 population or wherever there was a Serbian majority --

7 they started establishing the independent autonomous

8 regions. Five such autonomous regions were formed in

9 1991. After that an assembly of the Serbian people was

10 established in Bosnia-Herzegovina, which adopted

11 several decisions on further build-up of political

12 structures of Serbian people in Bosnia-Herzegovina.

13 After these Serbian autonomous regions --

14 Serbian municipalities are being established. These

15 municipalities were supposed to be established in two

16 kinds of ways. According to one, it would be where the

17 Serbs formed a majority within the territory or

18 municipality and, also, where there was Serbian

19 minority within a municipality, they also formed their

20 own Serbian municipality. All these together were to

21 form a unified Serbian Republic of Bosnia-Herzegovina.

22 Also, SDS announced a programme how the

23 Serbian people should act in a crisis situation, and

24 this was adopted both in the municipalities with the

25 Serb majority and minority. The plan was to, first of

Page 10180

1 all, establish all structures of power, to organise

2 self-defence, and that all these municipalities join

3 according to a plan, which I have provided as a

4 document, and there are further documents that give

5 specific details of how this territorial expansion was

6 going to take place. All this was done in secrecy,

7 that is, wherever the Serbian population was in a

8 minority, this process went on secretly, and, in

9 secret, local boards were established. There were

10 municipal boards and then they created further

11 institutions -- committees and advisory boards -- and

12 it went down to the local commune levels and everybody

13 had their own tasks to organise people -- first, to

14 organise watches, to control communication lines, to

15 control the traffic of goods and such.

16 JUDGE JAN: You are saying the same thing

17 what Dr. Calic told us. Do you not think the statement

18 is sufficient for that part of your case,

19 Mr.s Residovic?

20 MS. RESIDOVIC: Your Honour, it is possible

21 that one part of the expert report coincides with the

22 findings of Dr. Calic's report. However, there are

23 parts which are different and this is why we felt the

24 need to provide our own expert's opinion on the same

25 topics.

Page 10181

1 Professor, you said that in the period of

2 1991, the SDS implemented the plan of ethnic

3 homogenisation of Bosnia-Herzegovina in secret. Can

4 you tell me, did the representatives of SDS go public

5 with respect to these intentions at some point?

6 A. Yes. There was, by now, a notorious

7 appearance of the President of the Serbian Democratic

8 Party, Radovan Karadzic, in the Parliament of

9 Bosnia-Herzegovina.

10 MS. RESIDOVIC: Before you comment on this,

11 could we please ask the technical booth to play us tape

12 marked 1, which is a part of the video material on

13 which you based your expert report. Could we please

14 have the technical booth run tape clip number 1?

15 (Videotape played)

16 (Videotape stopped)

17 MS. RESIDOVIC: Thank you.

18 Professor, could you tell us what was the

19 goal of this message of Radovan Karadzic -- how do you

20 see it as an expert?

21 A. First of all, I think that it was to serve as

22 attempt to dissuade the Parties in Bosnia-Herzegovina

23 from proclaiming independence and I think, secondly, it

24 was a warning to the Serbian population as to what they

25 were supposed to do.

Page 10182

1 MS. RESIDOVIC: Your Honours, we have seen a

2 short excerpt from the video material provided by

3 Mr. Hadzibegovic's testimony. I would like now to

4 tender this particular excerpt into evidence.

5 JUDGE KARIBI-WHYTE: What is the evidence

6 you want to tender -- the videotape?

7 MS. RESIDOVIC: The speech of Radovan

8 Karadzic in the Assembly of Bosnia-Herzegovina on

9 14 October and I want to tender it as the basis and as

10 a foundation for the expert opinion and I think that

11 the relevance of this material is incontrovertible in

12 light of the subsequent developments in

13 Bosnia-Herzegovina.

14 JUDGE KARIBI-WHYTE: You might as well

15 attempt to, but I do not know how you got the tape --

16 how did you get the tape?

17 MS. RESIDOVIC: The professor laid the ground

18 and provided information on this piece of material.

19 I think the professor quoted all the sources which it

20 came from. A professor is a witness of those days. He

21 is also a historian and this also served as a basis for

22 his research and I believe that it is relevant to the

23 events that are the matter of these proceedings anyway.

24 JUDGE KARIBI-WHYTE: It is relevant to what

25 he has been talking about -- I do not dispute that.

Page 10183

1 Did he make the tape? How did he get it? Is it his

2 own tape himself, or did he produce it? How was it

3 produced?

4 MS. RESIDOVIC: Your Honours, I have tried to

5 explain -- I think this is an original tape from the TV

6 Sarajevo and I think it was provided to us by the

7 Institute for Research of War Crimes, and this is how

8 it was provided to us.

9 The professor was also a witness to this

10 particular period -- the professor is a witness of the

11 speech, as we were all at that time. The TV outlets

12 around the world showed this.

13 Your Honours, this excerpt has been

14 introduced in the Tadic case already, and I think that,

15 given that it concerns Dr. Karadzic, I think that it is

16 relevant to this Tribunal.

17 JUDGE KARIBI-WHYTE: It depends on how it is

18 introduced -- who did it and who makes the claim and

19 these are the areas for introducing it. It is

20 admissible, I do not deny that -- it is relevant but it

21 depends on through whom it is introduced.

22 MS. RESIDOVIC: Pursuant to Article 89, you

23 are admitting it into evidence -- is that my correct

24 understanding of what you have just said?

25 JUDGE KARIBI-WHYTE: If this witness claims

Page 10184

1 to have produced the videotape itself and was also a

2 witness to what happened, obviously he could himself

3 tender it, if he made such claims.

4 MS. RESIDOVIC: Professor, were you a witness

5 of this speech of Radovan Karadzic as a citizen of

6 Bosnia-Herzegovina?

7 A. I was in Sarajevo when this took place and

8 I was a witness of it, not only of what happened. At

9 that time we did not have electricity, so I could not

10 see it, but during the period of time when we did have

11 electric power, we were able to see this -- it was

12 rerun and it was a speech that shocked the citizens of

13 Bosnia and Herzegovina. If a President of a Party

14 which has no links to both Belgrade and the JNA, and

15 that the JNA had overrun Bosnia -- we were all shocked,

16 and very soon, on 6 April, when independence of

17 Bosnia-Herzegovina was proclaimed, I was present when

18 the people in the streets were shot at. I was a

19 witness of the sniping of the people and this is what

20 happened after this speech.

21 JUDGE KARIBI-WHYTE: As I said, it is not

22 that you were not a witness of it being run, but that

23 is a different thing from producing a videotape

24 itself.

25 I agree -- you said it was submitted to you

Page 10185

1 by the Institute -- a member of the Institute who took

2 the videotape. He is a member of the Institute from

3 which it has come, and introducing it as such from the

4 Institute -- that is a different matter -- unless that

5 is the basis on which he is doing that.

6 MS. RESIDOVIC: Your Honours, the witness

7 provided the tape as part of his research. It is not a

8 tape that was given to the witness by the Defence.

9 JUDGE KARIBI-WHYTE: That is acceptable,

10 yes.

11 MS. RESIDOVIC: Thank you. Can you please

12 tell us what the exhibit number is.

13 THE REGISTRAR: The exhibit will be marked

14 Defence Exhibit D141/1.

15 JUDGE KARIBI-WHYTE: Is it one of those

16 tendered for identification -- there are three tapes

17 you tendered for identification -- D138 to D140. Does

18 it belong to that group?

19 THE REGISTRAR: Yes, it belongs to that

20 group, on my understanding, but I do not know which one

21 of these and I do not know if these videotapes are the

22 other exhibits. I prefer to give it a separate number.

23 MS. RESIDOVIC: Thank you. Your Honours,

24 I need to remind you of the time. I do not know if

25 this would be a good moment to break?

Page 10186

1 JUDGE KARIBI-WHYTE: Thank you very much.

2 That is a good point to stop, but, in addition to that,

3 before we resume tomorrow, we would like to continue in

4 a closed session for a status conference so we know

5 exactly how things will be for the rest of the period.

6 We will come back in five minutes now for a closed

7 session and then carry on in a status conference

8 tonight.





13 --- Whereupon the hearing adjourned at

14 5.28 p.m., to be reconvened on Tuesday,

15 the 31st day of March, 1998 at

16 10 a.m.