Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8573

1 Thursday, 24 January 2002

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 4.03 p.m.

5 JUDGE LIU: Call the case, please, Madam Registrar.

6 THE REGISTRAR: Good afternoon, Your Honours. This is case number

7 IT-98-34-T, the Prosecutor versus Naletilic and Martinovic.

8 JUDGE LIU: Before we have the witness, there are several matters

9 I would like to say at this moment. The first one is that we have to

10 finish the testimony of this witness today because we have already kept

11 him here for almost a week, and I believe that this is the last witness

12 from the Prosecution's case. So there will be some procedural matters

13 that both parties would like to address to the Chamber.

14 Secondly, that this Trial Chamber has been seized of some

15 suggestions of the Court recess filed by the Defence counsel. We are now

16 in no position to make decisions on these issues, but one point I would

17 like to remind the Defence counsel is that you asked 20 days for

18 filing your motion for acquittal after the closure of the Prosecution's

19 case.

20 We looked into the Rules, that is the Rules of Procedure and

21 Evidence of this Tribunal. It is said only seven days, which means only a

22 week for you to file this motion. We believe that we have to abide by

23 that Rule. And by the way, if I could, I'll remind the Defence counsel

24 that we hope in your motion you could specify your request, which is count

25 by count rather than to submit an overall rejection.

Page 8574

1 Thirdly, we understand that the Defence counsel asked for a Status

2 Conference. During the proceedings of this case, and now it might be the

3 right time to hold it, sometime tomorrow or next week. I would like to

4 hear the initial response from Defence counsel. Which time will be more

5 suitable for them? Because we have to make the necessary arrangement for

6 the courtroom for the interpretations as well as for the support.

7 Yes, Mr. Krsnik.

8 MR. KRSNIK: [Interpretation] Good afternoon, Your Honours, and

9 thank you for giving me this opportunity. I shall be very brief.

10 Yesterday we had a very long and I believe a very satisfactory,

11 mutually satisfactory meeting. We managed to agree on certain matters,

12 and thus we also agreed on the Status Conference and our joint

13 suggestions - I hope my learned friends will confirm this - we all need

14 some time to prepare for it, and we agreed that it would be best to have

15 it on Wednesday next week. It is a Status Conference that we accord major

16 importance to. Because these suggestions that we indicated in our motion

17 with regard to their recess and the Defence case, they all need to be

18 explained very thoroughly to the Chamber, and we want to prepare for it

19 properly. And as we agreed with our learned friends, our joint proposal

20 is that the Status Conference be held next Wednesday. Thank you.

21 JUDGE LIU: Yes, Mr. Seric.

22 MR. SERIC: [Interpretation] Good afternoon, Your Honours.

23 Mr. Krsnik was quite right. I should also like to add that for tomorrow

24 we have a meeting with Mr. Fourmy, so that tomorrow we shall have a busy

25 day, and these Defence will be very happy to have the Status Conference on

Page 8575

1 Wednesday, and we shall be preparing also our oral -- the oral reasoning

2 of what we have already indicated in our written motion. Thank you.

3 JUDGE LIU: Any response from the Prosecution?

4 MR. SCOTT: Mr. President, what counsel said is correct. We met

5 yesterday and had proposed that all things being considered, that next

6 Wednesday would be a time to frankly allow everyone to catch their breath

7 a bit, not knowing exactly how the end of this week would come about, and

8 then be prepared hopefully to have a helpful Status Conference next week.

9 JUDGE LIU: Thank you very much. So we will have the Status

10 Conference next Wednesday. As for the specific timing and the location,

11 we believe that Madam Registrar will make the proper arrangement and

12 inform us in time.

13 Mr. Usher, would you please call in the witness.

14 [The witness entered court]

15 JUDGE LIU: Good afternoon, sir.

16 THE WITNESS: Good afternoon.

17 JUDGE LIU: Yes, Mr. Par. You may proceed.


19 Cross-examined by Mr. Par: [Continued]

20 Q. [Interpretation] Good afternoon, Sir Martin. I was corrected when

21 I addressed you as Sir Garrod. The correct address is Sir Martin, so that

22 I will do so as of this moment. I apologise.

23 A. I'm sorry.

24 Q. Can you hear me now?

25 A. Yes.

Page 8576

1 Q. Good afternoon. I just said that yesterday in my language, I said

2 that I was addressing you incorrectly and that the proper address is

3 Sir Martin. So this is why I emphasise it. Let me remind you of where we

4 broke yesterday. We started discussing the cause for the conflict between

5 the Muslims and Croats in Mostar in 1993, and today I should like to look

6 at some factors which influenced this conflict and perhaps touch upon the

7 nature of that conflict, that is, the international armed conflict in that

8 area.

9 I believe that the last subject we broached yesterday was the

10 Vance-Owen Plan, so let me ask you some questions about that today. As

11 far as I could gather from your testimony, the Vance-Owen Plan which was a

12 plan for the peaceful solution in Bosnia-Herzegovina, adopted, in early

13 1993, and that plan, as you yourself said, was in a way an introduction

14 into the Croat-Muslim conflict. It was a plan, and you pointed out that

15 it was not favourable to the Muslims but that the Croats misinterpreted it

16 and tried to implement it. Would that be the correct interpretation of

17 your testimony? Was that what you said?

18 A. Yes. I am not an expert on the Vance-Owen Plan which was more or

19 less, as I said, moribund by the time I arrived in Bosnia, but that is

20 more or less my understanding of how things developed, yes.

21 Q. Now, I should like to ask you a few short questions to go back a

22 little and try to clarify: Why was the Vance-Owen Plan adopted at that

23 particular time and why was it necessary at all. And in order to arrive

24 at some answer, I will ask you a couple of short questions and you will

25 tell me whether you agree with me or not. So my objective is to establish

Page 8577

1 the foundation, what -- underpin that plan and how it came about. Your

2 explanation is that the war in Mostar between Muslims and Croats was the

3 war about the territories. So my question is: Up to 1993, before 1993,

4 did Republika Srpska exist already as a territorial entity controlled by

5 Bosnian Serbs, and whether during that time, that is, until 1993, did

6 Serbs already accomplish the goals that they were pursuing in Bosnia

7 through Republika Srpska? I have no reason to pursue any further

8 objectives. Would you agree that that was the actual state of affairs in

9 Bosnia in the beginning of -- at the beginning of 1993?

10 A. Yes. Before the war in Bosnia, of course, there was no such thing

11 as Republika Srpska, but by the summer of 1992, the Serbs controlled

12 roughly 70 per cent of the territory of Bosnia.

13 Q. In other words, that was the Serb position. Would you agree when

14 I say that at the same time, that is, until 1993, the Croats had already

15 more or less accomplished what they had wanted to accomplish, defended the

16 territories as much as they could, they had lost the Sava valley, Jajce,

17 but nevertheless they had taken and were controlling a territory which

18 ensured their survival in Bosnia-Herzegovina? Would you agree that again

19 that was the state of affairs as far as the Croats were concerned and that

20 they also had no further reason for waging a war in that territory at that

21 time, that is, again, early 1993?

22 A. Well, they had certainly repulsed the Serb aggression against

23 Mostar, but, of course, as I've said, by now the Serbs were actually

24 controlling 70 per cent of the country. And I don't think that was a very

25 happy situation for either the Croats or the Bosniaks.

Page 8578

1 Q. We'll come back to the Bosniaks. But what about the Croats? Was

2 it a position which ensured for them survival in a certain way so that

3 they had no further motivation to prolong the war? Were they perhaps

4 slightly worse off than the Serbs but yet well enough to stay in that

5 area, that is, that there was no longer a reason for them to wage any

6 further war? That is my question.

7 A. Well, of course, they were certainly not happy with the situation

8 at all, and they had lost territory to the Serbs, and of course by April,

9 May 1993 the fighting between the Croats and the Bosniaks started.

10 Q. Yes. We'll come to May 1993 later. I'm talking about everything

11 that happened earlier, that is, prior to the Vance-Owen Plan. So we know

12 what the Serb situation was, we know what the Croat situation was. Now,

13 would you agree that at that same time, the army of Bosnia-Herzegovina

14 actually was in such a situation which could make them unhappy because

15 they had at least territory that they could control in view of the size of

16 their population. So in early 1993 they were faced with a major problem

17 because they had a very small territory and very many people in relation

18 to the territory. So wasn't there the weakest position and didn't they

19 have a reason at that time to look for new territories? Would you agree

20 with that?

21 A. Certainly the Bosniak army wished to regain the territory, in

22 particular, that they had lost to the Serbs. Yes. I mentioned that

23 yesterday. In particular, we're talking about Zvornik, the upper regions

24 of the Drina, Sanski Most, Prijedor, Sava, and so on.

25 Q. So in other words, what are we talking about? We're trying to

Page 8579

1 establish what is it that happened before the Vance-Owen Plan. And could

2 we then say that at that time, early 1993, was a relatively calm, a stable

3 period of time as far as the situation on the ground was concerned, that

4 the position had already been more or less defined, and that people's

5 concern -- were more or less interested in freezing that particular

6 situation? In other words, wasn't that a moment when it became quite

7 possible or when it became quite feasible to -- when long-time peace

8 became quite feasible? Could that be the reason behind the Vance-Owen

9 Plan?

10 A. Well, clearly the occupation of 70 per cent of the territory of

11 Bosnia was totally unacceptable, and therefore the Vance-Owen Plan was one

12 of the first major initiatives to try and bring a long-term agreed

13 settlement, agreed by all sides, for the future of Bosnia.

14 Q. So these were more or less the conditions when a plan of a kind

15 could be drawn up because there were no actual belligerences going on.

16 Everybody was holding his own positions. Is that correct?

17 A. Well, I certainly wouldn't call it a stable position at all, at

18 all. What the Vance-Owen Plan was attempting to do was to try and bring a

19 long-term, stable situation in Bosnia.

20 Q. Right. But now let us look at how Vance-Owen, international

21 diplomats, international mediators what idea did they come up with so as

22 to introduce a stable and long-term peace in Bosnia. Didn't the

23 Vance-Owen Plan recognise the factual situation on the ground achieved by

24 the force of arms and ethnic cleansing? And on the basis of that split

25 Bosnia into provinces? Wasn't that the basis of the Vance-Owen Plan? The

Page 8580

1 situation is such as it is, and we shall call then these areas provinces,

2 but as a matter of fact the status quo would be preserved. Was that the

3 idea that underpinned the Vance-Owen Plan?

4 A. Yes, except for the fact that it required the Serbs to withdraw

5 from many of the areas which they then controlled, into a much smaller

6 area, a much smaller area than the 70 per cent. And as you say, the plan

7 was to split Bosnia into ten provinces. Some had a Croat majority, some

8 had a Muslim majority, some had a Serb majority.

9 Q. Well, then, does the Vance-Owen Plan mean relinquishing the idea

10 of a multi-ethnic, unified Bosnia, and is the Vance-Owen Plan the basis

11 for the partitioning of Bosnia-Herzegovina? Is that the basis for the

12 partition of Bosnia-Herzegovina adopted by the international community,

13 perhaps in good faith?

14 A. No. Quite the reverse. The aim of the Vance-Owen Plan was to

15 ensure that we had retained a unified Bosnia and Herzegovina. It's now

16 split into cantons. Vance-Owen were going to split it into provinces,

17 some with different majorities, but all on a multi-ethnic basis. Not pure

18 provinces, not pure Serb provinces or pure Bosniak or pure Croat provinces

19 but multi-ethnic provinces but with a majority of one of the

20 nationalities. But it was intended to keep -- to ensure that thereby

21 Bosnia was retained as a unitary state.

22 Q. Very well. So formally speaking, we can say that this plan is a

23 plan about the unified Bosnia, that it pursues the preservation of that

24 unified Bosnia, its own provinces, such and such. We won't call them a

25 Serb, Croat or Muslim, but in substance, the situation on the ground is

Page 8581

1 blood. One knows what that means on the ground, and that is what the war

2 which erupted then showed. It brought to light the substance of this

3 plan, and what did everybody do? They all took up arms. Now, my question

4 to you is: Could one of the factors behind the war in Mostar be the

5 Vance-Owen Plan which showed those people down there that Bosnia was being

6 partitioned?

7 A. No, I don't think so, because, as I say, the intention throughout

8 was that there may be majority provinces, but multi-ethnic provinces and

9 Bosnia as a unitary state. And of course, the Croats, as I said, were the

10 first to accept it, but I don't think they really examined the small print

11 carefully enough, reading that they were multi-ethnic provinces and the

12 provinces would be governed by multi-ethnic government based on the

13 proportions of the 1991 census.

14 Q. What Croats, Sir Martin? What Croats? Do you mean the political

15 leadership or do you mean the populous, the Croats? People there, what

16 were they to read? They heard what was happening. They saw who was

17 getting what promised. Did they understand the Vance-Owen Plan precisely

18 in the manner in which I'm telling you? Perhaps they couldn't read the

19 small print. They took it to mean the partitioning of

20 Bosnia-Herzegovina. I'm not talking about the politicians; I'm talking

21 about the grass roots, about the rank and file people on all three sides,

22 that they understood that the Vance-Owen Plan meant splitting up, meant

23 partitioning?

24 A. Well, if the grass roots did not understand the situation, that

25 must -- the blame must be put squarely at the feet of their own

Page 8582

1 leadership. It was up to the political leaders of all three sides to

2 explain to their people exactly what the plan meant before they accepted

3 it or rejected it. But it's no good saying that the people on the ground

4 didn't understand. Why didn't the politicians, political leaders, explain

5 to them what it meant?

6 Q. Well, we may come back to this particular subject, the

7 politicians, so as not to lose the thread right now. Why am I pressing

8 this point, namely, that the Vance-Owen Plan is based on the idea of

9 Bosnia's partitioning? Because during your testimony, you said, among

10 other things, that anyway, it was a Croat idea as opposed to some kind of

11 a Muslim idea about multi-ethnic nature and so on and so forth. But what

12 I'm saying now is that if we really look at the substance of this idea

13 about the partitioning of Bosnia, could we agree that this idea came from

14 the Serbian aggressor against Bosnia-Herzegovina, who, in a manner,

15 received support for the partitioning of Bosnia through the Vance-Owen

16 Plan? So is the partitioning of Bosnia the idea with which the Serbian

17 aggressor came up and was then indirectly endorsed by the views of the

18 International Community? Nobody in Mostar had to come up with this idea,

19 because this was a process under way and nobody could stop it. Would you

20 agree that this idea was born in the minds of the Serbian aggressor?

21 A. I would say that the Serb aggressor had already, de facto already

22 occupied 70 per cent of the land. This was a plan to take back a lot of

23 the territory that had been occupied by the Serbs, and Karadzic certainly

24 did not, he was not in favour of the Vance-Owen Plan, because it would

25 mean him having to give up a lot of the territory which was then actually

Page 8583

1 controlled de facto by the Serbs.

2 Q. What I am trying to get at here is to say that the idea about the

3 partitioning of Bosnia did not come from Croats, that it came -- that it

4 was born by itself but from a process. Let us look at some concrete

5 facts. For instance, would you agree that the Republic of

6 Bosnia-Herzegovina, as an independent state, gained its independence after

7 following a referendum in which the Croats and the Muslims said, "We want

8 an independent state"?

9 A. Yes.

10 Q. Would you agree that without that Croat voice, without that Croat

11 vote, without their desire to have this united state, that state would not

12 have come into being then, or rather, now?

13 A. Yes. As far as I can remember, the figures of the referendum I

14 think were something like 98 per cent in favour, but that was excluding

15 the Serbs, of course, who did not -- boycotted the referendum.

16 Q. Yes, quite. We'll come to that. So the Croat idea is very

17 clearly expressed at that time. What kind of Bosnia do they want? They

18 want a joint state with Muslims, an integral state, very clearly stated.

19 Now, at that time, it was a common fact what you have just said, the Serbs

20 say no, they don't want that and they start a war. Is that correct?

21 A. Well, I mean, the war started, initiated by the Serbs long before,

22 of course, the Vance-Owen Plan was even thought of, so I agree. And Serbs

23 were after their -- Milosevic was after his Greater Serbia. I think

24 that's accepted.

25 Q. So we agree that the partition of Bosnia-Herzegovina is no longer

Page 8584

1 theoretical. It is introduced through shelling, ethnic cleansing, in a

2 war waged by the Serbs against the Croats and Muslims in

3 Bosnia-Herzegovina. Can we agree on that?

4 A. Yes.

5 Q. Now, at that point in time, can we agree that the Serbs are

6 strong, that they enjoyed the support of the former Yugoslav People's

7 Army, they have weapons, tanks, air force, logistics, and that they have

8 an absolute military advantage over the Croats and Muslims, who had no

9 army, no weapons, no defence concept. Was that the military situation at

10 the time?

11 A. Yes. The Serbs, of course, had all the ammunitions and hardware,

12 the tanks, the guns, and so on, of the JNA, the Serb National Army.

13 Correct. That is so.

14 Q. And then, Sir Martin, didn't the Security Council, the UN Security

15 Council, in its well-known resolution 713, didn't it say, "We prohibit the

16 delivery of weapons to Croats and Muslims and all the other Yugoslavian

17 republics. We impose an embargo on arms. You may not be armed." Is that

18 an accurate statement?

19 A. It was not "you may not be armed," it was imposing an arms embargo

20 preventing countries to supply arms to those Serbia, Croatia, and the

21 Bosniaks. Correct.

22 Q. Sir Martin, it is -- so the word "resolution" always sounds so

23 nice and they say "We prohibit the supply of weapons, the sale of

24 weapons." But what it means is you allow us to be slain, because what it

25 means, its substance means that?

Page 8585

1 A. Well, I mean, I think we could spend a long, long time, a very

2 interesting discussion, on the arms embargo. All I would say is that of

3 course it affected the Croats and the Bosniaks far worse than it did the

4 Serbs, who had a two-year supply, could fight a war for two years without

5 any resupply. But of course then slowly Croatia very commendably started

6 to get in weapons from outside and indeed so did the Bosniaks. Not heavy

7 weapons, but weapons.

8 Q. Sir Martin, we are about to come to that, international conflict,

9 international cooperation, and so on and so forth, but we can agree the

10 Muslims, the Croats do not have any weapons, they don't have any

11 assistance from the International Community; that is, it is not going to

12 stop the intervention and therefore they have to turn to somebody for

13 help. Was that how it was at the time?

14 A. I would not say they had no weapons. They were affected by the

15 arms embargo, of course, but they did have weapons, less than, of course,

16 the Serbs, and they did not have the heavy weapons.

17 Q. Can we then agree that they simply have to turn for help? The

18 Croats to their Croatian brethren and the Muslims to their Muslim

19 brethren, as it was said? Wouldn't it be the logical evolution that they

20 turn to those -- to other sides for help?

21 A. Of course they're going to try and get weapons from where they

22 can, because they were in the middle of a war.

23 Q. Can we now, in regard of this situation where they looked for

24 help -- at Croatia for help, how it looked from the Croatian vantage

25 point, what were their reactions? At that time the Republic of Croatia,

Page 8586

1 the Croatian state, was assisting the HVO, the Territorial Defence, that

2 is, the Muslims. Did they assist, logistically speaking, to these

3 factions? For instance, did they allow the Territorial Defence, which is

4 the precursor of the ABiH, to form their units in their territory and to

5 train those units there?

6 A. Yes, but of course at that time the Muslims and the Croats were

7 fighting together before they started fighting against each other. But

8 until then, they had been fighting in the same formations against the

9 Serbs, and of course indeed up in Tuzla, they still continued to do that

10 throughout, in Tuco.

11 Q. Yes, but is there now an international aggression against the

12 Serbs? If Croatia is giving arms to the Muslim Bosniaks to fight the

13 Serbs, is that the Croatian aggression against the Serbs in Bosnia? In

14 other words, is it considered that if the Croatian state is assisting the

15 Muslims, is that considered all right if it is assisting the Croats, then

16 it is an international armed conflict? And we have to bear in mind that

17 the Muslims and the Croats are both fighting the Serbs, the third party

18 within Bosnia. So my question is: Did the International Community view

19 in the same way, by the same standard, the assistance that was provided to

20 the Muslims and to the Croats from Croatia, for instance?

21 A. I think the International Community must have realised that of

22 course there were weapons coming across from Croatia into Bosnia which

23 were supplying both -- for which the HVO and the ABiH were benefitted,

24 yes.

25 Q. Just one more thing regarding this assistance. At that time the

Page 8587

1 Muslims were getting some assistance from the Middle East countries and

2 then the Mujahedin arrived, which I'm not going to mention again. And

3 Croatia helped them go to Bosnia to fight with their Muslim brethren. In

4 other words, the Muslim assistance that came from the Islamic countries,

5 that was going, bound for Bosnia, went through Croatia; in other words,

6 Croatia assisted in this? Is that correct?

7 A. That I don't know. I never have known exactly the entry point of

8 those Mujahedin into Bosnia. I don't know how they got in, what routes

9 they took.

10 Q. I think we can clarify that easily. On the one side you had

11 Serbia, Montenegro, and the rest of the border is Croatia. Obviously they

12 did not come through Serbia or Montenegro, so I think that only one route

13 was possible. But if you don't know, you don't know?

14 A. No, I don't know for a fact, but what you say sounds sensible,

15 yes.

16 Q. Now, there's another interesting point in this situation. When we

17 have Croat citizens, Croatian citizens coming to Bosnia to fight there.

18 We know that at the same time we had a war in Croatia, the Serbs, but now

19 the Serbs from Croatia held certain territories occupied in Croatia, Knin

20 and areas that you are probably familiar with. All these Serbs, let's

21 call them rebels, they are all Croatian citizens. They are citizens of

22 the Republic of Croatia. And they were going to Bosnia with their weapons

23 and fought with their fellow Serbs. And in Bosnia they were constantly

24 fighting for the Serbian cause there, with their tanks and arms and

25 manpower, as volunteers. Is Croatia then responsible, internationally

Page 8588

1 speaking, that their citizens are fighting in this war? Do you

2 distinguish between the role of Croatia -- in other words, is there a

3 distinction between the Serbs from Croatia who went there to fight, or if

4 the Croats from Croatia went to fight? What was -- what part is the

5 aggression and what is not?

6 A. Well, I would say that the Croatian government was not controlling

7 those Serbs in the Krajina areas. Now, how many they, the Serbs Krajina

8 area had their own problems, but I don't know how many of them moved into

9 Bosnia. It is clear that a lot of the JNA, the Serb regular army, were in

10 Bosnia, but just how many of the Serbs from the Krajinas came into Bosnia,

11 I don't know. But, as I say, I very much doubt whether they were under

12 the control of the Croatian government. Certainly not.

13 Q. I would agree with that. And we also don't know whether some

14 Croat -- or Croatian volunteers who went to fight in Herzegovina, whether

15 they were under a control of the Croatian government or whether it was

16 just a call of their families or call of their ancestral lands or

17 something that led them there. But let's try to establish a simple truth

18 that in Bosnia and Herzegovina there were three constituent groups who

19 were fighting each other, all three?

20 JUDGE LIU: Yes, Mr. Scott.

21 MR. SCOTT: Mr. President, I have not objected this afternoon yet

22 at all, but I think the last statement by Mr. Par takes a step too far.

23 He did make clearly a speech that didn't go into a question, nor did he

24 give Sir Martin a chance to respond whether he agreed with him or not. He

25 led up to all these questions about the Croatians going and whether they

Page 8589

1 were volunteers and then there was never a question. And I think -- my

2 apology. I think Sir Martin should have a chance to respond to that.

3 JUDGE LIU: Well, Mr. Par, besides that objection raised by the

4 Prosecutor, we also have some concerns about the form of your question.

5 We believe that those questions are outside the scope of the indictment,

6 as well as the direct examination. Please concentrate your questions on

7 those events which are related to the indictment, as well as to the direct

8 examination.

9 MR. PAR: [Interpretation] Mr. President, it is our position that

10 one of the key issues in this case is the existence of an international

11 armed conflict in Bosnia-Herzegovina, that this is the question of all

12 questions, or the mother of all questions, as far as my client is

13 concerned. Today I have a competent witness, excellent reputation, and he

14 has been announced by the Prosecution as a witness who will be an expert

15 in the international arms conflict issues. Therefore, I believe that it

16 is my right to put my case to him and to ask for his comments so as to see

17 how this issue of the international armed conflict can be judged and how

18 much light we can shed on it. I will endeavour, in any case, not to go

19 too broadly in my questions, not to go into any speculation, and to allow

20 the witness to express his position as much as possible. Thank you.

21 JUDGE LIU: Ask some specific questions with the proper time

22 frame.

23 JUDGE CLARK: Can I just say something, Mr. Par, that the

24 proposition that you put to this witness, and unfortunately didn't give

25 him an opportunity to respond, which has not been your form so far. I'm

Page 8590

1 sure it was inadvertent - is an interesting one and perhaps it would be

2 good for this witness to respond, and that is your thesis that Croatian

3 volunteers fighting in Bosnia in response to a call to defend their

4 ancestral lands or for whatever motives may equally not have been under

5 the control of Croatia. Now, it would be very interesting, I think, for

6 everybody to hear what Sir Martin has to say in response to that.

7 MR. PAR: [Interpretation] Your Honour, that is not exactly my

8 thesis. The thesis of this Defence is not that only those who were called

9 by their families went there to fight. It was a comment of mine which I

10 myself consider to be a bit of a speculation, and this is why I did not

11 invite this witness to respond to it. And it was to draw a parallel

12 between them and the Serbs who definitely were not under the control of

13 the government. But perhaps I should give Sir Martin an opportunity to

14 answer this.

15 Q. Sir Martin, you heard what Her Honour had asked, and maybe you can

16 give us your comment on it. Do you distinguish between what the Bosnian

17 Serbs were doing and what the Croats and Serbs from Croatia were doing?

18 A. Well, as I say, the Serbs from the Krajina areas in Croatia were

19 not under the control of the Croatian government. Now, there may well

20 have been volunteers that have come to fight in Bosnia. There were

21 certainly mercenaries. And I know Mladen Naletilic and his brigade had

22 people of many different nationalities including Germans, English and so

23 on. But what I'm saying is that of course there may well have been

24 volunteers. A lot of them came from, originally from Bosnia, including

25 Gojko Susak, the Defence Minister. But that is slightly different from

Page 8591

1 what I was describing either yesterday or the day before of large regular

2 army formations moving into another country.

3 Q. I believe that Sir Martin clarified that point.

4 I'm just going to take you very briefly to this area of different

5 ethnic groups and the international armed conflict and try to establish

6 certain facts. In your evidence, you said that you did not consider that

7 to have been a civil war, if I understood you correctly. My question to

8 you is this: If, in Bosnia, there were three constituent groups or

9 peoples who fought each other, so three people of Bosnia were fighting in

10 Bosnia, they were fighting each other, if this is not a civil war, what

11 else was it? I mean, what characteristics or features do you find that

12 that does not make it a civil war?

13 A. I started by speaking my own views. It started as a war of

14 aggression from Serbia. Milosevic, by putting in his paramilitaries,

15 people like Zeljko Raznjatovic, Arkan and his Tigers and the Bijeljina and

16 then it was followed up by regular forces. So it started as aggression

17 from outside Bosnia. Indeed, throughout the centuries, I think I'm right

18 in saying fighting has never actually started in Bosnia ever; it has

19 always come from outside. This time it came from Serbia. But I would say

20 that eventually, the fighting, some of the fighting, had many of the

21 characteristics of a civil war, particularly in a multi-ethnic city like

22 Mostar. That developed the characteristics of a civil war even though the

23 war started -- was initiated by external aggression.

24 Q. I absolutely agree with you that the war started by the Serb

25 aggression and then the situation developed into a civil war, that the

Page 8592

1 Croats jumped in and everybody was fighting everyone else.

2 Let us now focus on Mostar a little bit and deal with your

3 monitoring mission and the things that were going on in Mostar. And if we

4 take into account this multi-ethnic Bosnia, you said that you had a number

5 of meetings with Bosniaks, with their military leadership, political

6 leadership, and that they all expressed to you a very clear position that

7 they were for a unified, multi-ethnic Bosnia. My question to you is

8 this: Did you believe them when they said that -- did you believe that

9 what you -- what they were telling you was really their position?

10 A. In the absence of any alternative, yes, because they were not --

11 the Serbs were out to get their Republika Srpska. The Croats were anxious

12 to obtain their Croatian Republic of Herceg-Bosna. Bosniaks were not

13 after any specific area. They wanted to retake all the territories which

14 they had lost to the Serbs, and that was throughout Bosnia, not in a

15 portion, not like Republika Srpska, a portion of Bosnia, or the Croatian

16 Republic of Herceg-Bosna, but throughout Bosnia. And back to the

17 situation where you had Croats throughout the whole country, Serbs

18 throughout the whole country, and Bosniaks throughout the whole country.

19 Q. So this is a position that they presented to you and that looked

20 acceptable to you. However, did you at the same time see or did you have

21 any information, either from your teams on the field or anywhere else,

22 that in the areas under the control of these same military commanders,

23 that the ethnic cleansing was going on as well, that it was also -- that

24 there were a collection of concentration camps, that it had nothing to do

25 with multi-ethnic proclaimed aims, objectives, and that the reality was

Page 8593

1 completely different? Did you ever notice this discrepancy?

2 A. I would say that no side was guiltless, by any means. There were

3 varying degrees of guilt, but never, ever, since I very first went out to

4 Bosnia, have I heard or seen anything which indicated that the Muslims or

5 the Bosniaks wished to divide Bosnia into one, two, three bits, or

6 whatever. There's no concept of how they would divide it if they wished

7 to divide it, and therefore they've always said they did not want to

8 divide it, and therefore I must believe that. Because what portion of

9 Bosnia would they have wanted, had they wanted to divide it? So I don't

10 believe that that is so.

11 Q. Right. So that means maybe they did not want to partition it.

12 Maybe they wanted to dominate it, they wanted to be a people that would

13 suppress or repress others. You're talking about multi-ethnic character,

14 but the reality in the territory under their control is not giving any

15 signs of their actually nurturing this exotic plant called

16 multi-ethnicity. Perhaps some of -- you're aware that some of the people

17 that you have spoken with are now the accused before this same Tribunal,

18 accused of ethnic cleansing in certain areas around Zenica and elsewhere.

19 So my question to you again is whether the ideas advocated or presented to

20 you by these Bosniak leaders have proven to be something that was not

21 borne out by the reality on the ground.

22 A. I would certainly, as I say, I repeat: There are faults on all

23 sides. And I would like to see Sarajevo a much more multi-ethnic city

24 today than it is at the moment. But if we're talking about division of

25 the country, there is no evidence whatsoever that the Bosniaks wished to

Page 8594

1 divide the country where there's clear evidence that the Serbs did and the

2 Croats wished to have their own third entity. In other words, the

3 Republika Srpska, Croatian Republic of Herceg-Bosna, and whatever is left

4 for the Muslims.

5 Q. Sir Martin, you're prompting me to ask another question now by

6 your answer. If you're talking about the Croats, Bosniaks, Serbs, are you

7 talking about their political leaders? Am I understanding you correctly?

8 You are not talking about common folks, about Bosniak, Croat, or Serb

9 population; you're talking about their leaders. Am I understanding you

10 correctly?

11 A. Inevitably, inevitably, I think we're talking about political

12 leadership, yes.

13 Q. Now, why do I ask you this? As a monitoring mission there, you

14 developed information from them whether they wanted ethnic divisions or

15 not. You did not talk to the common people who basically wanted a Bosnia

16 without any blood-letting. Did you seek to get information from that

17 level or did you basically base your information on your contacts with

18 political leadership of all three factions?

19 A. Had we had more time, it would have been fascinating to go out

20 into the streets and talk to the man in the street, but frankly, there was

21 not enough time, and we had to rely on the views of the political and

22 military leaders, because those are the ones who are going to shape the

23 future course of events.

24 Q. I see. Let us try to move towards the end and move on to another

25 subject which is perhaps slightly easier. Sir Martin, could you please

Page 8595

1 answer me now, as somebody who has military experience, as a General.

2 Will you please answer a couple of short questions that I have in relation

3 to the situation in Mostar in 1993, as a military. 1993, Mostar, the

4 conflict between the Croats and Muslims starts, and now, regardless of who

5 was the one who fired first, what was the situation of military

6 conscripts, of men of military age in Mostar at that moment? Did they

7 have to join HVO units of their own will or would they be called up? Did

8 they have any other option but to become soldiers?

9 A. Well, of course, many of the Muslim men of military age were by

10 now locked up in the Heliodrom, Dretelj, Gabela, and so on, but as far as

11 the remainder is concerned, my understanding is that there was a

12 compulsion on men of military age to serve, on both sides, both in the HVO

13 and in the ABiH.

14 Q. That's what I'm asking. And you just said it, that is, those who

15 were Croats had to join the army and those who were Muslims, in West

16 Mostar, had to go to Gabela, that is, to prisoners' centres. That is how

17 I understood you. That is how you saw their fate?

18 A. Well, I said that there had already been a large number of Muslim

19 men of military age detained, but of course those in East Mostar, those

20 that were there of military age were of course required to serve.

21 Q. Well, let's keep to West Mostar. So who takes the decisions? At

22 what level do we have the decision making at the time. Who is it who

23 decides on the mobilisation: You join the army, you go to prison, you go

24 to Heliodrom? At what level are such decisions taken? From what level --

25 from what echelon do the orders come and which then end up in those

Page 8596

1 developments and those events which are alleged in the indictment? At

2 what level are these decisions made as to what the soldiers' tasks will

3 be?

4 A. I really don't know, but I can only guess, and I assume that it

5 was the Minister of Defence and the Deputy Minister of Defence in close

6 connection with the other political leaders of the Croats. That's how it

7 would normally work, and I assume that's the way it did, but I have no

8 knowledge of the mechanics of the call-up procedures and so on.

9 Q. I understand. So now those able-bodied men of military age in

10 West Mostar, Croats are called up and put on the separation line in

11 Mostar, this war is under way, and they are manning that front. Now, my

12 question is: Do they -- they are put on this front line. Can they have

13 any say with regard to some strategic issues happening in Herzegovina or

14 in Mostar or is it that they are assigned to a task with a limited scope?

15 JUDGE LIU: Yes, Mr. Scott.

16 MR. SCOTT: Mr. President, at this point I think we have to say

17 that I think Nuremberg established that following orders is not a

18 defence. I would object to further inquiry in this regard.

19 JUDGE LIU: Yes. Mr. Par, rephrase your question.

20 MR. PAR: [Interpretation]

21 Q. Very well. Then I will put it in a slightly different way. So

22 that soldier, that foot soldier, a Croat, HVO, a soldier on the Bulevar,

23 he is fighting against an ABiH soldier for months there at that place.

24 Does he have the information, in view of his rank, as a General, what do

25 you think? Does he have any information that would tell him that he is

Page 8597

1 involved in an international armed conflict or is it that he believes that

2 he is involved in a conflict between Aleska Santic Street and Mesa

3 Selimovic Street. Would that be the idea that the soldier has? Does his

4 position there on that front line, does it allow him to have any idea of a

5 broader strategic plan or anything?

6 JUDGE LIU: Yes, Mr. Scott.

7 MR. SCOTT: Mr. President, I object to speculation as to what the

8 individual soldiers knew. I mean, I understand the general principle, but

9 I think we all understand that there's probably different levels of

10 knowledge, but to ask this witness is just pure speculation.

11 JUDGE LIU: Yes. Mr. Par, skip this question.

12 MR. PAR: [Interpretation] Yes, I can do that, but my questions

13 were to learn something from a witness who has -- who is an expert on

14 matters military, who is a General, who knows it and can answer it off the

15 top of his head like this.

16 Q. In other words, does the strategic information ever reach a foot

17 soldier on the front line?

18 A. Well, I would say that the soldier serving in Aleksa Santic Street

19 would have been solely concerned with Aleksa Santic Street and wondering

20 whether he was going to survive the next 24 hours. I don't think he would

21 be concerned with the Vance-Owen Plan or the wide picture.

22 Q. Thank you very much. And to conclude: The Washington Accords of

23 1994 are eventually adopted and peace set in in Bosnia, in Mostar, in

24 1994, thanks to the Washington Accords. Is that an accurate statement?

25 A. I would it's more accurate to say that -- I wouldn't say peace

Page 8598

1 sets in. I would say a stopping of the fighting, but I would not call it

2 true peace.

3 Q. Quite, and my question was in that direction. Can you tell us,

4 based on your own experience and how you saw it, were Mostar and Bosnia

5 split up then, or are these multi-ethnic cities, that is, states? That

6 is, now, after all that happened, has Mostar become a unified,

7 multi-ethnic city, or is it a partitioned city? Does anyone know the

8 answer to that question? Do you know it? Can you tell us what option has

9 had the upper hand?

10 A. Well, I would say that in 1990 -- after the Washington Agreement,

11 Mostar was a totally divided city, but the reason why it was totally

12 divided was because the Croat side would not permit any freedom of

13 movement. And we used to be fighting this particular battle every single

14 day, attempting to get freedom of movement from east to west, from west to

15 east. And it was -- as I think I indicated maybe yesterday, the problem

16 that we faced was the hard-line people we were dealing with on the Croat

17 side who did not wish to see a unified Mostar.

18 Q. Very well. Thank you for your patience, Sir Martin. I have no

19 further questions.

20 MR. PAR: [Interpretation] Your Honours, thank you very much.

21 JUDGE LIU: Now, Mr. Scott, are you going to do your

22 re-examination, or we break here?

23 MR. SCOTT: I do have redirect.

24 THE INTERPRETER: Microphone, Mr. Scott

25 MR. SCOTT: I do have re-direct, Your Honour. And I'm not

Page 8599

1 suggesting that we lose the time, but it might just as well be that we

2 take an earlier break and start earlier again rather than start one or two

3 questions.

4 JUDGE LIU: Yes. We might break here. Mr. Usher, would you bring

5 the witness out of the room first.

6 We'll resume at 20 minutes to 6.00.

7 --- Recess taken at 5.12 p.m.

8 --- On resuming at 5.42 p.m.

9 MR. KRSNIK: [Interpretation] Your Honours, before the witness

10 comes in, a very short question. May I? Your Honours, I must seek an

11 explanation, or perhaps I simply did not understand it right, regarding

12 our submissions for -- our motion for acquittal. We've also studied the

13 Rule 98 bis, which says, in its last sentence, and within seven days of

14 the close of the Prosecutor's case and in any event prior to the

15 presentation of evidence by the Defence pursuant to Rule 85(A), and then

16 Rule 127. We should like to ask for a slightly longer period of time. We

17 are asking it, and we believe we have a strong case to do it. Of course,

18 we were very specific and very concrete in our motion to the Chamber. We

19 presented our view, our position, in very clear terms. If I'm correct,

20 and my learned friend will correct me if I am, but I believe they also

21 agreed that we could have 14 days. But what is important for us is that

22 the countdown starts after the Status Conference, that is, as of

23 Wednesday. You would make us very happy, and of course if our learned

24 friends do not object to it. Because now we have to prepare for the

25 Status Conference, and if we could have seven days as of Wednesday, we

Page 8600

1 would be very happy. But hoping, of course, only that the countdown does

2 not start today. But we shall hear what our learned friends say, or at

3 least that it starts on Monday, that is, to have at least the weekend and

4 the period after Wednesday to write it down as best we can and as best we

5 should. Thank you very much.

6 JUDGE LIU: As I understand, that the Rule 98 bis said the seven

7 days should be run after the close of the Prosecutor's case. I understand

8 that there are still some documents which will be tendered through this

9 witness. And you also have some time to make a response to those

10 documents. Then the Trial Chamber will make decisions concerning the

11 admission of those documents. And after that, I believe that will be the

12 proper time for the closure of the Prosecutor's case. Then time begins to

13 run. The reason why I mentioned this very issue, to let you know

14 beforehand, so that you could have, you know, proper time to prepare your

15 motion. Maybe right now, but the time will not run from today or from

16 next Monday. I'm quite sure about that. But the Rule said seven days. I

17 think we all have to abide by this Rule.

18 MR. KRSNIK: [Interpretation] Thank you very much, Your Honour.

19 JUDGE LIU: Mr. Usher, would you please bring in the witness.

20 MR. SCOTT: Mr. President, I clearly understand the Court's

21 ruling, of course. I just feel as perhaps a matter of honour I should

22 tell the Chamber that when counsel asked me yesterday, I had agreed

23 that -- I had indicated we would agree to a bit longer time. Just so the

24 Court knows and I want to be true to my word to Defence counsel and I had

25 said that.

Page 8601

1 JUDGE LIU: But I believe that, you know, your agreement was

2 subject to the rulings of this Trial Chamber.

3 MR. SCOTT: Absolutely, Your Honour.

4 THE INTERPRETER: Microphone, Mr. Scott.

5 MR. SCOTT: I didn't mean to suggest the contrary, at all, Your

6 Honour, but when I make an arrangement or at least offer to make an

7 arrangement with counsel, I want to make sure that I act consistent with

8 that, and I thought I should advise the Chamber that what representations

9 made were correct.

10 JUDGE LIU: Thank you very much for your information.

11 Any re-examination, Mr. Scott.

12 MR. SCOTT: Yes, Your Honour. Thank you.

13 Re-examined by Mr. Scott:

14 Q. Sir Martin, one of the questions that Mr. Par put to you this

15 afternoon was whether there was in fact no reason for the Bosnian Croats

16 to wage war, to continue the war after or as of early 1993. Let me ask

17 you this: Can you tell the Chamber, to your knowledge, did the Bosnian

18 Croat leadership continue to seek after and have as a goal the Croatian

19 Community of Herceg-Bosna or Republic of Herceg-Bosna throughout 1993?

20 A. Yes, indeed, and I think I made it clear that in my view, the

21 fighting started because the Croats had misunderstood, deliberately or

22 otherwise, the Vance-Owen Peace Plan provinces and assumed that

23 particularly cantons 8 and 10 -- provinces 8 and 10 were Croat and

24 therefore they wanted to ensure that those were -- and including, that it

25 be right up to Vitez, Busovaca, and so on, and of course, as I said, they

Page 8602

1 wanted Mostar as the capital of their Croatian Republic, Croatian Republic

2 Herceg-Bosna.

3 Q. And likewise, at least until the time of that the Washington

4 Agreement began to take some substantial form, is it fair to say that they

5 also, the Bosnian Croat leadership also was still seeking some sort of

6 connection, linkage or attachment to the Republic of Croatia?

7 A. Yes. The Washington Agreement had visualised, first of all, the

8 Federation between the Croats and Bosniaks in Bosnia, and then a

9 confederation with Croatia, but that was knocked out in the Dayton

10 Agreement.

11 Q. Now, in terms of questions about fighting that was taking place in

12 the first six months or so of 1993, there are questions about that. Is it

13 correct, sir, or can you confirm to the Chamber that in fact -- my

14 mistake. I'm sorry. Not only early in 1993 but the latter part of 1992,

15 and can you confirm that the HVO attacked Prozor as far back as October

16 1992?

17 A. Yes, that is correct.

18 Q. And did they attack Travnik in November 1992?

19 A. I'm trying to remember Travnik. Now, I just cannot quite remember

20 the chain of events in Travnik.

21 Q. Very well.

22 A. It eventually became Bosniak in early 1993, but I can't -- up

23 until then, to the best of my knowledge, it had been mixed.

24 Q. Very well. Can you confirm that the HVO initiated fighting in

25 Gornji Vakuf and in Busovaca in January 1993?

Page 8603

1 A. That is my understanding. That's where --

2 THE INTERPRETER: Could the counsel and the witness please break

3 between question and answer.

4 A. I'm sorry. I'm sorry. That is my understanding, that the first

5 shots were fired in Gornji Vakuf and Busovaca.


7 Q. And can you also confirm to the Chamber that the HVO launched an

8 initiative or an offensive in the Vitez Kiseljak area in mid-April 1993?

9 A. Yes. And of course it was in April 1993 that we had the massacre

10 at Ahmici.

11 Q. And to confirm that one of the topics we've spent a great deal of

12 time talking about this week, can you also confirm again, sir, in your

13 view that it was the HVO who initiated the attack on Mostar on the 9th May

14 1993?

15 A. That is certainly my clear understanding, yes.

16 Q. And in terms of the referendum for an independent

17 Bosnia-Herzegovina, can you tell the Chamber what would the result have

18 been if the Croats, the Bosnian Croats, had not supported the referendum?

19 A. Well, if they had boycotted the referendum, then no doubt all --

20 if the Croats had boycotted, then whether it would have been accepted by

21 the International Community as the wishes of the country if only the

22 Bosniaks had voted, I am -- it's difficult to say, but the fact that both

23 the Croats and the Bosniaks took part in the referendum and voted for an

24 independent Bosnia, it was accepted, even though the Serbs had boycotted

25 the referendum.

Page 8604

1 Q. Let me ask my question perhaps slightly differently. If the

2 referendum had not passed, what would the result have been, for both the

3 Croats and the Bosniaks?

4 A. Well, I suppose the International Community might not have

5 accepted --

6 JUDGE LIU: Yes. Yes, Mr. Par.

7 MR. PAR: [Interpretation] Mr. President, I think this is a

8 speculative question. The witness cannot say what would have happened if

9 something had or had not happened. Simply, it is too speculative, and I

10 trust you will not allow this question.

11 JUDGE LIU: Mr. Scott, it is speculation.

12 MR. SCOTT: I'll move to a different question, Mr. President.

13 Thank you.

14 Q. Sir Martin, let me put a similar question to you this way, perhaps

15 if it assists: By voting for an independent Bosnia-Herzegovina, was that

16 in any way inconsistent as a step on the road to the Croatian Community of

17 Herceg-Bosna?

18 A. No. It was an independent Bosnia as it had been an independent

19 Slovenia and an independent Croatia.

20 Q. Now, questions going back to Mr. Meek's cross-examination. Fairly

21 early he asked you if -- sorry. He asked you whether it would be unfair

22 to use your interpreter as a source. And Sir Martin, I'd like to clarify

23 that, because sometimes in a military or law enforcement context, the word

24 "source" may have a particular meaning. Now, would you have ever

25 considered, for instance, using an interpreter, one of your interpreters

Page 8605

1 as what someone might call a spy?

2 A. Certainly not. We were very conscious that all those

3 interpreters, whether they were Croat or Bosniaks, were always in a very

4 sensitive position, and therefore we were very careful not to undermine

5 their position in any way at all. Inevitably, if one took a Croat

6 interpreter to a Bosniak meeting, she or he would be regarded with

7 suspicion and vice versa. So one had to be very careful indeed, and

8 certainly not use them as, as you say, spies.

9 Q. But is it accurate to say that you did engage in day to day

10 conversation with in your interpreters in which you might learn what was

11 happening in the area?

12 A. Yes, indeed. When one was travelling from A to B, one would talk.

13 But we were always careful not to engage them in trying to elicit their

14 views on specific, particularly sensitive political or military topics.

15 Q. All right. Now, as I understand your testimony, there were many

16 Bosnian Croats in Bosnia with Croat citizenship who in fact even voted or

17 at least could have voted in Croatian elections. Is that right?

18 A. That is so. In fact, to my knowledge, all the Croats in Bosnia

19 had Croatian passports.

20 Q. Did you ever understand, and can you assist the Chamber, whether

21 in fact some of the very strongest support for the HDZ party in Croatia

22 came from the Herzegovinian Croats?

23 A. That is so. That is so. And as I've said, there were a number of

24 Herzegovinian members of President Tudjman's government.

25 Q. Just so the record is abundantly clear, Sir Martin, I take it from

Page 8606

1 the discussions about joint Croatian citizenship, are you suggesting that

2 any part of the territory of Bosnia-Herzegovina, by the presence of these

3 dual citizens, somehow belonged to the Republic of Croatia?

4 A. Absolutely not, and to my knowledge, they were not dual citizens.

5 They were citizens of Bosnia-Herzegovina. They were citizens of Bosnia

6 and Herzegovina. But somehow they were allocated Croatian passports and

7 were able to vote in the Croatian elections.

8 Q. And the very fact that they could vote in Croatian elections

9 effectively meant that they were constituents, we might call them in a

10 democratic system, they were constituents of the Croatian government in

11 Bosnia-Herzegovina?

12 A. I suppose you could put it that way, yes, but they were citizens

13 of Bosnia-Herzegovina.

14 Q. Now, you mentioned yesterday, when General Roso was -- excuse me.

15 Replaced General Praljak in approximately November 1993.

16 A. Yes.

17 Q. Can you tell the Chamber, if you know, where had General Roso come

18 from at that time?

19 A. I don't know where he had -- what particular appointment he just

20 moved from, but I know he had spent many years in the French Foreign

21 Legion.

22 Q. And do you know whether he had held any senior position in the

23 Croatian government prior to taking -- prior to replacing General Praljak?

24 A. No, I don't.

25 Q. Do you know where General Praljak had come from before becoming

Page 8607












12 Blank pages inserted to ensure pagination corresponds between the French

13 and English transcripts. Pages 8607 to 8614.













Page 8615

1 head of the HVO?

2 A. No. His background, funnily enough, his background was in the

3 theatre and directing, and his abiding passion was Shakespeare.

4 Q. And finally on that question or that series of questions: Do you

5 know who it was that made the decision, effectively made the decision to

6 dismiss General Praljak?

7 A. No, I don't. I speculated about why he was dismissed, and I've

8 said that it could be a combination of events: The destruction of the old

9 bridge, the Stari Most, the lack of general success that the HVO were

10 having at the time, and the crucial loss of Vares, which took place

11 shortly before he was replaced by Roso. But I don't know who would have

12 made the decision. But I think -- no. It would be speculation.

13 Q. Very well. Now, Mr. Meek asked you if a group of 100 Mujahedin

14 would be able to cause a great deal of damage or trouble. Sir Martin, can

15 the same be said about a brigade or battalion of extreme Croats?

16 A. Oh, yes. Oh, yes. A small number of determined people can

17 achieve -- can do a lot of damage, yes.

18 Q. Sir, Mr. Meek questioned you about something -- some statement or

19 some fact not being in your 1998 witness statement, and you began to say

20 something to the effect that that was not what the statement was about,

21 but I want to give you a further opportunity to clarify what you mean, if

22 you recall that question.

23 A. Which -- I'm sorry, which one was that?

24 Q. Mr. Meek asked you about something -- put it to you that something

25 was not contained in your 1998 witness statement. That Tuta was not

Page 8616

1 mentioned in your statement.

2 A. Yes, indeed. Indeed. And I think I said because the subject was

3 basically the subject of that particular statement was Central Bosnia and

4 Dario Kordic.

5 Q. You gave some answers mentioning the Catholic church, and I think,

6 sir, lest we receive inquiries from the Vatican, perhaps you should be

7 more specific. Was there some particular component or part or group of

8 the Catholic church that you say opposed --

9 JUDGE LIU: Yes, Mr. Krsnik.

10 MR. KRSNIK: [Interpretation] Your Honour, I think that the

11 Catholic church is not mentioned in the indictment. I don't think that

12 the Catholic church was mentioned here. It is not in the indictment or

13 it's not subject of the indictment. We're not here to try the church.

14 And in any event, I don't think that the witness, whom we all respect

15 here, should not be bothered with these questions. I'm lead counsel here

16 and I felt obliged to get on my feet.

17 MR. SCOTT: Mr. President, it was mentioned in question -- in both

18 cross-examinations both by Mr. Meek and Mr. Par.

19 JUDGE LIU: We understand that the Catholic church was mentioned.

20 That's quite sure. But we don't know how relevant this issue is to this

21 very case. Is there any point to pursue it?

22 MR. SCOTT: I think there is, Your Honour, several things. One

23 is, I think it's really unfair to leave a broad statement on the record

24 like that without clarification, which can only be perhaps viewed by some

25 as inflammatory. Secondly, in the Defence case, I think it will come up

Page 8617

1 and I think it needs to be clarified. This witness is in a position, I

2 believe, to clarify it, and I think he should be given a chance to do so

3 while he is here.


5 MR. KRSNIK: [Interpretation] I'm very surprised that my learned

6 friend is speculating, or perhaps he already has some knowledge about what

7 my case is going to be. But something rang a bell. The Croatian press is

8 filled with comments about my Defence and the information that no one

9 should have known, as has been published. I may even seek protection from

10 this kind of obstruction, perhaps at the Status Conference next week,

11 based upon what my learned friend has said. But in any event, we cannot

12 discuss issues and present context here which are not contained in the

13 indictment. I repeat this, and I'm sorry if I'm taking the time to do so,

14 but I'm not sure that I understand what kind of general questions or what

15 kind of speculations may be -- may have anything to do with this case.

16 [Trial Chamber confers]

17 MR. KRSNIK: [Interpretation] Your Honour, with your permission,

18 Mr. Meek told me that he had asked not a single question about the

19 Catholic church, and because this is a re-examination, I think the

20 question is completely inappropriate.

21 JUDGE LIU: Well, we believe that during these proceedings, at

22 least during the direct examination, the witness answered questions

23 concerning the view expressed by the Catholic church, as well as in other

24 witness's testimony. Let me hear what this witness is going to tell us.

25 Then at a later stage we will decide whether it's relevant to this very

Page 8618

1 case or not.

2 Mr. Scott, you may continue.

3 MR. SCOTT: Thank you, Mr. President.

4 Q. Sir Martin, can you please indicate: When you said -- when you

5 gave the answers previously, can you tell the Chamber whether there was

6 any particular group or portion of the Catholic church in particular that

7 you were referring to?

8 A. Yes. Yes. The Catholic church in Mostar, in Mostar. Perhaps I

9 should explain that the -- there's quite a big gap between the Franciscans

10 and Roman Catholic church.

11 JUDGE LIU: Yes, Mr. Krsnik.

12 MR. KRSNIK: [Interpretation] Your Honours, I would like the

13 witness to be asked where this information comes from, what year he's

14 referring to, because our case is 1993 to early 1994. There is no mention

15 of this within that time frame. This may refer to something that happened

16 in 1995, 1996. Can we get a clarification? Was this information that

17 refers to 1993.

18 JUDGE LIU: Yes. I believe Mr. Scott will clear it up for us.

19 MR. SCOTT: Yes, Mr. President. If the witness can be allowed to

20 finish his answer, then I will follow up with the time frame?

21 A. Yes. I was just setting the scene that there was a schism between

22 the Roman Catholic church and the Franciscans. The Franciscans had been

23 in Bosnia since the Eleventh Century and it is the Franciscans who Croats

24 have turned with their problems over the years. The Roman Catholic church

25 I believe was only established at the time of the Austro-Hungarian Empire

Page 8619

1 of some hundred years ago. To be specific, we're talking about early

2 1994, when we were -- I was trying to arrange meetings with the bishop of

3 Mostar and Mr. Hans Koschnik. I first had a meeting with the vicar

4 general, the bishop's number 2, and after saying that -- telling me that

5 the E.U. Administration in Mostar was going to be thoroughly humiliating

6 for the Croats, it was going to be like the British rule in India. He

7 then launched into a long, long tirade against the Muslims or Bosniaks,

8 including warning of Islamic fundamentalist state. I then had a meeting

9 with the bishop, who is a very hard man. We did not discuss this subject,

10 but I asked him whether he would -- the mufti in East Mostar had asked

11 whether he could meet the bishop. I put this to the bishop that it would

12 be nice if he had a meeting with the mufti. He looked at me coldly and

13 just said, "Don't interfere." I remarked at the time that the support we

14 were going to get from the bishop in Mostar, the reconciliation between

15 two sides I considered to be minimal or maybe zero.

16 Q. Sir, for the record, is the mufti that you're referring to of

17 Mostar, was that a man named Sead Smajkic?

18 A. Yes.

19 Q. You indicated and you did clarify toward the end of your

20 cross-examination, I had made this note frankly yesterday, but can you

21 tell us, in terms of the position of the two parties and by that I mean

22 the Croats and the Bosniaks, concerning the status of the city of Mostar,

23 what was the HVO's first position, if you will, during 1993 about what

24 Mostar should be, what kind of city it should be, their first or preferred

25 position, if you will?

Page 8620

1 A. The HVO?

2 Q. Yes.

3 A. Well, if I could refer to the Croat leadership.

4 Q. Very well.

5 A. The Croat leadership wanted Mostar as the capital of the Croatian

6 Republic of Herceg-Bosna.

7 Q. Now, later, did they fall back to a different position, and what

8 was that?

9 A. At the start of the E.U. Administration, it then became apparent

10 that it was not going to be a Croat city, so then they attempted to make

11 two municipalities, in other words, a Bosniak one on the east side, a

12 Croat one on the west side. In other words, dividing Mostar, with the

13 results of the war virtually down the line of the River Neretva.

14 Q. Essentially, an East Berlin and West Berlin?

15 A. Correct.

16 Q. Mr. Meek, I believe, it may have been Mr. Par, but one of the

17 Defence counsel asked you questions whether the Croats wanted peace. And

18 sir, can you tell us, can you tell the Chamber again, please: Was it the

19 ECMM's assessment that it was the HVO which was on the offensive

20 throughout Central Bosnia and Mostar in the April/May/June 1993 time

21 period?

22 A. Of course the fighting in Central Bosnia by then had become pretty

23 general, with both sides fighting each other. There was a very big

24 difference. Up in the north, in Tuzla, the Croats and the Bosniaks were

25 fighting together against the Serbs; in Central Bosnia they were fighting

Page 8621

1 each other; and in the south, we had the fighting in Mostar.

2 Q. And can you tell the Chamber whether the balance or whether the

3 military situation had shifted by the late summer of 1993, I mean, in

4 relation to the HVO and the ABiH?

5 A. The situation in -- I reckon by towards the end of the year, the

6 balance was shifting against the Croats, particularly in Central Bosnia.

7 In Mostar, the line did not change, although East Mostar continued to be

8 progressively further destroyed.

9 Q. So in answer to the question -- Defence counsel's question when

10 you said the Croats wanted peace, was that at a time when they had become

11 at a military disadvantage?

12 A. That was my -- that was my personal assessment. That was about

13 the end of the year early 1994 that they were definitely on the

14 defensive. They had just lost the key town of Vares and they were not

15 having military successes and they saw the ABiH are getting stronger.

16 Q. Now, Sir Martin, as best I can tell, there have been questions

17 seemed to have been raised concerning when you formed some of the

18 assessments you did and the basis for your assessments and perhaps there

19 was some suggestion that in fact some of these views maybe were only

20 formed sometime later and in fact whether these were simplified views. Do

21 you believe you formed simplified views of what was happening in

22 Bosnia-Herzegovina?

23 A. We were up against -- we couldn't wait. We had to produce reports

24 every night, and at the end of the week, a weekly assessment. So these

25 were not views and opinions and facts produced with hindsight. They had

Page 8622

1 to be written on the very day in question to meet the time scale of the

2 various reporting procedures through the RCs to Zagreb and then on to the

3 capitals.

4 Q. Concerning the documents that the Prosecution showed you, from

5 1993 and 1994, can you just please clarify so the record is clear: Did

6 those reflect assessments or conclusions that you somehow only reached at

7 a much later time, or were those your assessments and observations in 1993

8 and 1994?

9 A. Those were my assessments and views in 1993 and 1994, at the time

10 that I wrote the reports, which was nearly always on the day of the actual

11 report, although, as I say, at the end of the each week we would produce a

12 weekly assessment.

13 Q. If I can just -- I'm only going to take one example, but if I

14 could ask you to turn, please, in the binder to Exhibit 458. Towards

15 the -- not the front, but more toward the front of the binder than toward

16 the back. And of course ..

17 A. Yes. I've found 458.

18 Q. If you would turn again please to what would be overall, including

19 the cover pages, the fourth page of the document, the list that we looked

20 at the other day, where it says the summary of aims and there were several

21 points attributed to the HVO.

22 A. Yes.

23 Q. Sir, in the interests of time, I had written each of these down in

24 my notes, but I don't see that that's really necessary. I'll just simply

25 pick one. Directing your attention to 3(c), Eventually cleanse provinces

Page 8623

1 8 and 10 of the Muslims in pursuit of their dream of Herceg-Bosna. Now,

2 as an example, was that in fact your assessment and your observation in

3 1993 based on your experience on the ground?

4 A. Yes. I would say that was a fair assessment.

5 Q. And I think finally, you were also asked about the basis of your

6 assessment of Mr. Naletilic, that is, Tuta, which counsel seemed to

7 indicate seemed -- your opinion seemed to be rather negative. Let me ask

8 you this, and I'm going to caution you, in light of some of the cautions

9 that the Court has given me, given us earlier. I don't want you to give

10 any specifics of any other events or conversations or meetings, but just

11 answer this question, please: During the time that you continued serving

12 in or in connection with the Mostar region, from July 1993 to late 1998,

13 did anything happen? And again, don't tell me what or anything, but did

14 anything ever happen or information come to your attention that caused you

15 to form a more favourable assessment of Mr. Naletilic?

16 JUDGE LIU: Yes, Mr. Meek.

17 MR. MEEK: Your Honour, this question goes well beyond the scope

18 of the present indictment. Now we're wanting to ask the witness questions

19 clear into 1998 and I understand that my learned colleague attempted to be

20 very clever in that question, but it's going way, way past this, and I

21 object, Your Honour.

22 MR. SCOTT: Mr. President, let me respond.

23 JUDGE LIU: You don't regard this question is in favour of your

24 client?

25 MR. MEEK: Your Honour, I regard the question as being -- wanting

Page 8624

1 to bring forth evidence of things that may have happened in 1995, 1996,

2 1997, and the following years.

3 MR. SCOTT: Mr. President, let me respond, please. I am being

4 very careful, in light of the Court's ruling, not to talk about any

5 specific other events or conversations which might have occurred.

6 However, I think this witness was challenged by the Defence as to the

7 basis of the statements that he has made concerning Mr. Naletilic and

8 whether they were ill formed or whether, you know, without basis and

9 without going into any detail I simply asked the witness the question that

10 I did, that based on the totality of his experience in Mostar, did

11 anything ever happen which would have changed his assessment to a more

12 favourable assessment of Mr. Naletilic, and that's my final -- excuse me,

13 counsel. That's my final question.

14 JUDGE LIU: Yes, Mr. Meek.

15 MR. MEEK: Mr. President, Your Honour, it appears to me that

16 again, for the second time, Mr. Scott has tried to caution the witness

17 before answering, and in the argument not to talk about any specific

18 events or conversations which might have occurred. It's very clear, from

19 Sir Martin's testimony, that he only had one conversation with Mr. Tuta,

20 and that was August 15th, 1993. Only one conversation was ever held. And

21 I'm not going to reiterate my previous objections, because you know what

22 they are, Your Honours. And I'll sit down now. Thank you.

23 JUDGE LIU: I understand, but the conversations which might not be

24 between this witness and your client. It may be with the other persons.

25 But Mr. Scott, we don't think this question is essentially

Page 8625

1 important to this very case, because we have already heard what the

2 witness said about the accused. So would you please skip this question.

3 MR. SCOTT: I will do that, Your Honour, and if I can just look at

4 my notes, then, it may conclude my re-direct.

5 Sir Martin, the Prosecution thanks you for your testimony.

6 No further questions, Your Honour. Thank you.

7 JUDGE LIU: Any questions. Judge Clark

8 Questioned by the Court:

9 JUDGE CLARK: Sir Martin, I hope the series of questions that I'm

10 going to put to you doesn't spawn an entire new re-examination because I

11 have managed to do that on a few occasions, so I'll tread carefully. In

12 relation to the referendum that was held in 1992 in Herzegovina, am I

13 correct in saying that the issue which was put to the people of Bosnia, I

14 should say, was whether they would leave the country of Yugoslavia?

15 A. Yes. I don't know the precise wording of the question in the

16 referendum, Your Honour, but it was following the declaration or the

17 agreement, the recognition of independence of Slovenia and then Croatia

18 and then it was agreed, I think it was the Badinter Commission, agreed

19 that Bosnia could also have independence subject to a referendum.

20 JUDGE CLARK: And that was the referendum that Mr. Karadzic

21 refused to allow his supporters to vote in?

22 A. That is correct.

23 JUDGE CLARK: Now, the next question that I wanted to ask you is

24 really in relation to the international armed conflict. Following the

25 Washington Accord and the Dayton Agreement, is it your assessment of the

Page 8626

1 situation on the ground that there was no further military involvement of

2 the government of Croatia in the area of conflict in this indictment,

3 that's the area of southern Bosnia-Herzegovina?

4 A. Yes. I think the last -- the time the Croatian army were in

5 Bosnia was during the follow-up to Operation Storm in August 1995, the

6 sweep-up through Western Bosnia, but I think once the Dayton Agreement was

7 signed, I'm not aware of any further involvement by the Croatian army in

8 Bosnia.

9 JUDGE CLARK: And did that coincide with the cessation of the HVO

10 military activities? I don't mean incidents, but military activities.

11 A. Yes. Following the Dayton Agreement, there was no more fighting.

12 I won't say it was a cessation of fighting as opposed to full peace.

13 JUDGE CLARK: Cessation of hostilities, yes.

14 The next question now goes away from that issue. When you talk

15 about the aspirations of the Bosniaks to maintain Bosnia as a multi-ethnic

16 country, and you talked to leaders in relation to Mostar as a multi-ethnic

17 country, was there any room in the city of Mostar for the Serb families

18 who had been pushed out in 1992?

19 A. Yes, indeed, Your Honour, and in fact, we spent a lot of -- there

20 were a number of Serbs still in Mostar throughout this time and during the

21 E.U. Administration they held positions of authority in the government.

22 But we spent a great deal of effort and time in 1977 and 1978, and

23 particularly in 1998, getting Serbs back into the Neretva valley in

24 Mostar. So the Serbs were returning.

25 JUDGE CLARK: I'm glad to hear that, but the question that I was

Page 8627

1 really interested in, Sir Martin, was: Were the Serbs included in the

2 Bosniak's aspirations for a multi-ethnic city and area?

3 A. Yes, indeed. And indeed they were written into the EU Statute for

4 Mostar. Bosniaks, Serbs, and Croats, which was agreed by all three

5 parties. So there were firmly written in. A number of their seats were

6 left vacant because there were not sufficient Serbs back in Mostar at that

7 stage. But certainly the Statute visualised them sharing power on a

8 proportional basis with the Croats and the Bosniaks.

9 JUDGE CLARK: Thank you. Now, a different subject now. If I

10 could refer you to Exhibit 565.2, and that's your daily summary from the

11 15th of August, 1993, which obviously is very relevant to the accused Mr.

12 Naletilic.

13 A. Yes. Yes.

14 JUDGE CLARK: In that document, you described how one of the

15 guests at the lunch was the Commander of the HVO Special Forces, Tuta.

16 A. Yes.

17 JUDGE CLARK: How did you come by that information that he was the

18 Commander of the Special Forces?

19 A. I can only assume that he must have told me at the lunch, although

20 I'm surprised he did not say that he was the commander of the Siroki

21 Brijeska Kaznjenicka Bojna, the Convicts' Brigade, because he was very

22 proud of that and was happy to talk about it to anyone, as I understand.

23 So I can only assume it could have come from him.

24 JUDGE CLARK: And what did you at the time -- now, obviously your

25 information broadened and developed with the period of time that you spent

Page 8628

1 in the area, but at the time in 1993, in August, and in the period between

2 then and early 1994, what did you understand by the term "HVO special

3 forces"?

4 A. Well, I knew that they were like most countries' special forces.

5 They would be forces who are particularly highly trained for certain

6 specific dangerous or other tasks.

7 JUDGE CLARK: Did you know anything more about them? Did you know

8 that the HVO special forces at the time had a special name, or can you

9 assist us? I don't want to put words in your mouth, but ...

10 A. No, I'm afraid I can't. I can't be more specific. The name the

11 Convicts' Brigade, I can explain that to you.

12 JUDGE CLARK: Well, I would be glad to hear. I thought that you

13 were going to say that you didn't know anything about them.

14 A. I'm sorry, special forces. The Convicts' Brigade by my

15 understanding Naletilic's explanation, they called them the Convicts'

16 Brigade because they were all members, the members of the brigade had been

17 indicted by UDBA, the Yugoslav Secret Intelligence Service. That's why

18 hence the name Convicts' Brigade.

19 JUDGE CLARK: And what did he tell you about the Convicts'

20 Battalion apart from the condition precedent to entering it, what sort of

21 work did they do?

22 A. Sadly, we did not discuss it on that occasion. I wish we had.

23 JUDGE CLARK: Indeed. Thank you very much, Sir Martin.

24 JUDGE LIU: Judge Diarra.

25 JUDGE DIARRA: [Interpretation] Thank you, Mr. President. Witness,

Page 8629

1 I would like to know if the Mujahedin, who were fighting on the side of

2 the BiH army, were they mercenaries, like those Danes or Germans or French

3 that you found fighting for the HVO, or had they been sent officially by

4 their governments to engage on the side of the BH army?

5 A. Your Honour, I just -- I'm afraid, do not know whether they were

6 sent by their governments or whether they were volunteers. I believe a

7 number of them were volunteers, but I'm afraid I never really studied that

8 matter in that sufficient detail, so I'm afraid I cannot say whether they

9 were volunteers or sent by their governments.

10 JUDGE DIARRA: [Interpretation] And did the HV elements, were they

11 under the military chain of command of the Republic of Croatia or did they

12 act independently on the ground, side by side with the HVO?

13 A. Sorry. Did who --

14 JUDGE DIARRA: [Interpretation] HV elements. Were HV elements

15 under the orders from the Republic of Croatia or did they act

16 independently, side by side with the HVO?

17 A. I do not know the specific command chain, but I think it is 99 per

18 cent certain that they would have been operating under the direction of

19 the Croatian government and particularly the Croatian Minister of

20 Defence. I'm quite certain he would not have put Croatian forces under

21 Bosnian Croat command.

22 JUDGE DIARRA: [Interpretation] Thank you, Sir Martin.

23 JUDGE LIU: Anything arising from the Judges questions?

24 MR. SCOTT: No, Your Honour.

25 JUDGE LIU: Thank you.

Page 8630

1 Yes, Mr. Par.

2 MR. PAR: [Interpretation] Two short questions, Mr. President, if I

3 may.

4 Further cross-examination by Mr. Par:

5 Q. I'm sorry, Sir Martin. The referendum, would you allow that it is

6 possible that the question of the referendum was asked for an independent

7 and integral Bosnia-Herzegovina? Would you agree that that could have

8 been the question asked of the people of Bosnia-Herzegovina at the

9 referendum? Are you for an independent and integral Bosnia and

10 Herzegovina? Could that have been the question?

11 A. It could have been the question, but sadly, I'm afraid I'm not

12 aware of the question. The fundamental question, I think, would have

13 been: Do you wish to see an independent Bosnia and Herzegovina?

14 Q. Thank you. And my second question is: The Croatian troops, you

15 said that the Croatian troops, Croatian units, left Bosnia sometime at the

16 time of the Operation Storm. Now, my question is: Are you aware of the

17 fact that the Croatian armed forces, the Croatian troops, were, together

18 with the army of Bosnia-Herzegovina allies, that they jointly held certain

19 front lines in the territory of Bosnia-Herzegovina and especially in

20 Bihac, that is, with the permission of both states, the Croatian troops

21 fought side by side with ABiH forces in the territory of Bosnia right up

22 to the time of the Operation Storm and that they shared their objective

23 and that is the struggle against the Serb aggressor?

24 A. It was -- I am quite clear in my own mind that the Croatian

25 troops, Croatian army, were working with the HVO and the ABiH army

Page 8631

1 following in -- following on from the clearing of the Krajina as an

2 Operation Storm when the operation continued up through Western Bosnia,

3 and they were approaching Banja Luka when the fighting stopped.

4 Q. Thank you very much. Thank you once again.

5 MR. PAR: [Interpretation] Thank you, Your Honours.

6 JUDGE LIU: Yes, Mr. Meek.

7 Further cross-examination by Mr. Meek:

8 Q. Sir Martin, Judge Clark asked you about document 565.2, the daily

9 summary from 15 August 1993, the incident -- the one time you spoke with

10 Mr. Tuta, and she asked you, I believe, how you -- why you put in your

11 report that he was commander of HVO special forces. Do you recall that

12 question?

13 A. Yes.

14 Q. Now, being 37 years in the military, with all your prior

15 experience, you've been -- had a lot of experience in writing reports,

16 haven't you?

17 A. Yes. Yes.

18 Q. And you would agree with me that it is highly important to put

19 down contemporaneously as possible with events that occurred in these

20 reports; correct?

21 A. Correct.

22 Q. And in that report, you don't indicate that Mr. Naletilic, Tuta,

23 ever told you that, did you?

24 A. No.

25 Q. And so am I to understand from your answer of Judge Clark that

Page 8632

1 now, these many years later, you can only assume that he told you that?

2 A. I can only assume. I do not know where I got that information

3 from.

4 MR. MEEK: Thank you very much. Thank you, Sir Martin.

5 JUDGE LIU: Thank you, Witness.

6 THE WITNESS: By the way, perhaps I could just add one question --

7 one postscript to that. He was clearly Commander of the Convicts'

8 Brigade. I don't think there's any doubt about that.

9 JUDGE LIU: Thank you, Witness, for coming here to give us the

10 evidence. I'm sorry that we have kept you here for so long. We all wish

11 you good luck in your future.

12 THE WITNESS: Thank you very much indeed, Mr. President.

13 JUDGE LIU: The usher will show you out of the room.

14 [The witness withdrew]

15 JUDGE LIU: Mr. Scott, at this stage, are there any documents to

16 tender from your side?

17 MR. SCOTT: Yes, Your Honour, there are. I have to say, and my

18 apologies to the Registry, I have not checked. Many of these have

19 probably been, I'm sure, tendered already. I will read the ones that have

20 been referenced by Sir Martin. P86.1, P359, P373, P386, P396, P397, P458,

21 P460, P465, P532, P553.1, P555.2, P559, P561.1, P565.2, P600, P611.1 --

22 apparently we are not getting a transcript for whatever reason. It is on

23 the list and I can make the list available essentially, Mr. President, but

24 Stringer has just indicated that we are not --

25 [Technical difficulty]

Page 8633

1 JUDGE LIU: Well, please continue. I believe that eventually

2 these numbers will appear.

3 MR. SCOTT: All right. Very well. I believe I just said --

4 frankly, I lost track now, but P611.1, P642, P643, 751 is not tendered, in

5 light of various cautions by the Chamber. P751 is not tendered. P7701 is

6 tendered, the end of tour report. And just so there's no confusion

7 because of the list that accompanied the binder, P772 is not tendered, and

8 P814 is not tendered.

9 JUDGE LIU: Thank you.

10 MR. SCOTT: Mr. President, if -- I see the Registrar indicating

11 that she is still not getting it. Again, if there is any question, I can

12 make the written listing available.

13 JUDGE LIU: Any objections from the Defence side?

14 MR. MEEK: Your Honour, Mr. President, Your Honours, these were

15 documents that were given to us this week, and we would ask, as it's usual

16 practice, until a Status Conference on next Wednesday to follow our

17 objections, to which ones we will object to, which ones we don't, then we

18 won't file an objection to these.

19 MR. SCOTT: Mr. President, I don't object to counsel having some

20 time to respond, but I'm sorry, at this late stage of the proceedings, but

21 it's not correct to say that these are new documents. These are documents

22 that have been in the original binders, most of them, for a long time.

23 JUDGE LIU: Mr. Par.

24 MR. PAR: [Interpretation] We second the request of the Defence of

25 the first accused.

Page 8634

1 JUDGE LIU: Well, since there's bundles of documents tendered

2 through this witness, we believe that it would only be fair to Defence

3 counsel for them to have some time to go through it and file their

4 objections before next Wednesday. It is so decided.

5 MR. SCOTT: Mr. President, the last -- well, there's one other --

6 there are two matters, then, to finish the record in connection with the

7 Prosecution case. Your Honour, there are -- two binders have been

8 provided to the Chamber and to counsel. They were provided to counsel

9 last Friday, almost a week ago. They have been provided to, I hope by

10 now, to the Chamber. And I'll be very transparent, Mr. President, as to

11 what they are. I hope the Chamber can imagine that in the past some

12 weeks, since the Christmas recess, we had essentially embarked on a last

13 review of various documents in the possession of the prosecutor, and had

14 found these -- this collection of documents that we thought should still

15 be tendered. I can tell the Chamber there is a list that's been marked

16 for identification purposes to assist, P897 which should be in the first

17 binder 1 of 2. In terms of the foundation or background, Mr. President,

18 all of these documents, all of these documents, with exception of one,

19 came from the Zagreb archive. The Chamber has heard twice from Mr.

20 Prlic. I submitted would be simply redundant to hear from him yet again.

21 The archive itself and the way that the Prosecutor has accessed and

22 collected documents from the archive is, I think clear, and that is where

23 these documents came from. There is one exception, as I indicated, on the

24 bottom of page 8 of the list. There is P745.2. That single document came

25 from the seized -- what we referred to now some months ago with

Page 8635

1 Mr. van Hecke as one of the seized documents, and once again, the source

2 of those documents, how they were collected, was explained, in fact, on

3 the first or second day of trial, by Mr. van Hecke, and therefore was

4 covered by that. I want to say that a great many of these documents are

5 daily -- how shall I say? The records of daily checking prisoners out

6 from the Heliodrom for labour, that you will see that on such-and-such a

7 day, 20 prisoners were checked out, on the next day, 25 prisoners were

8 checked out, on the next day 30 prisoners were checked out. Many of these

9 documents, just so the Chamber knows that even though the list goes on for

10 some pages, you will see that many of these documents are the same sort of

11 document every day, or virtually every day, many days over a period of

12 time. Also, Your Honour, there are several ledgers, and again, I want to

13 move obviously quite quickly, but Exhibit -- just make sure I have the

14 right -- Exhibit 566.2, Your Honour, for instance, and maybe if I may be

15 allowed, these are ledgers -- these are ledgers this we were able to find

16 of when the prisoners were taken out from the Heliodrom on particular

17 days, and handwritten lists like you might see in a ledger book of

18 journals of entries of the prisoners going out and coming back.

19 So Mr. President, those are those documents. They were tendered

20 to counsel last week. I make it very clear, I understand that counsel

21 will need a time to respond. We would submit those would be our last

22 submissions of documents, Mr. President.

23 JUDGE LIU: Could we hear the response from the Defence counsel.

24 Yes, Mr. Krsnik.

25 MR. KRSNIK: [Interpretation] Thank you, Mr. President. I should

Page 8636

1 like to thank my learned friend for the understanding and the realisation

2 that we need time to respond, especially since the Defence does not have

3 at its disposal the whole machinery that my learned friends have. We have

4 indeed approached the end of the Prosecutor's case, and I should like to

5 say that the Defence has indeed invested a great effort to be up to the

6 task to go through all the documents, all the documents that we received

7 between the 10th of September and this day, that we went through our work

8 every day, getting ready for cross-examination, going through documents,

9 and I say I hope every day and I pray that I haven't erred against my

10 client because of the shortage of time. Now, with a view to all these

11 documents, we indeed need time to make a cogent, a coherent answer. Every

12 document is a story in itself. Every document has to be seen. Questions

13 have to be asked: Why, how, where? Mr. Prlic cannot cover all the

14 documents. Has a particular -- has every single document been proffered

15 by some other intelligence service or here? We need time for that,

16 because this is the intelligence information about the territory. The

17 Prosecutor has given us a very laconic explanation. We've heard it. But

18 I do not want to tax your patience. We shall respond to it all in our

19 written submissions. Thank you.

20 JUDGE LIU: Yes, Mr. Par.

21 MR. PAR: [Interpretation] We shall endorse the position of the

22 first accused.

23 JUDGE LIU: Mr. Scott, concerning these two binders of documents,

24 I believe that the Chamber would like to ask some questions.

25 MR. SCOTT: Of course.

Page 8637

1 JUDGE LIU: The first one is that how long do you think those

2 documents have been in your possession? And when did you disclose all

3 those documents to the Defence counsel?

4 MR. SCOTT: The disclosure question, Mr. President, I've already

5 answered. It was last Friday, a week ago tomorrow. As to the -- how

6 long we've had any particular document, Mr. President, I cannot honestly

7 tell you that off the top of my head. I can tell you, it could be

8 determined. I can tell you that documents come to The Hague from the

9 archive literally every week. New documents come and will continue to

10 come.

11 JUDGE LIU: Are you suggesting that those are new coming

12 documents?

13 MR. SCOTT: I'm not suggesting anything about those. They might

14 come up, I suppose, for cross-examination material, Mr. President. No,

15 I'm not. I'm not suggesting that we would seek to offer those in terms of

16 our case in chief. I do believe that indeed more material will come in

17 and it may become relevant to the Defence case, in which case we'll tender

18 it and the Chamber will certainly rule as it sees fit.

19 These particular documents, Your Honour, as I said -- and I'm

20 trying to -- I know this is probably not a popular position, given the

21 volume of material the Chamber has, that has been tendered to the Chamber,

22 but again, we've conducted a final review before we wanted to close our

23 case, we collected these documents. Frankly, there were many more, but we

24 thought that these were the ones that the Chamber should have, the ledgers

25 of prisoners being taken from the Heliodrom, the forms that were signed

Page 8638

1 out, and we thought the Chamber should have those. And I say all that

2 completely understanding and not disagreeing with counsel that they would

3 have to have additional time to respond to that.

4 JUDGE LIU: Well, Mr. Scott, as you understand that all those

5 documents tendered should go through a witness or witnesses before this

6 Trial Chamber, unless, unless, stipulated otherwise in the Rules.

7 MR. SCOTT: Mr. President, the only explanation I can give the

8 Chamber is the one I gave already. All these documents came from sources

9 that have been thoroughly testified to by the -- by witnesses in this

10 case. We could have Mr. Prlic come yet again and he would explain yet

11 again the archive that exists in Zagreb. You've heard -- Mr. Prlic has

12 twice appeared on that topic, and I suggest it would be redundant, and

13 that's why we thought it was not necessary. There's a single document

14 from the seized material that again Mr. Jan van Hecke indicated in the

15 early days of the trial. We, therefore, thought there was adequate

16 explanation for the documents, Your Honour.

17 JUDGE CLARK: Mr. Scott, I'm not sure that I understand your

18 response to Judge Liu's question.

19 MR. SCOTT: Yes.

20 JUDGE CLARK: Are you saying that these documents which we're now

21 being asked to receive are, with the exception of one from the Zagreb

22 archive, but that they were not in your possession when Mr. Prlic gave his

23 evidence first and when you gave us the 17 binders?

24 MR. SCOTT: I cannot answer that, Your Honour, truthfully now. I

25 wouldn't try to, because I would probably give the Court a wrong answer,

Page 8639

1 and I'm not going to do that. I think it is highly likely, from my notion

2 of the way these things work, it is extremely likely that -- and I'm

3 almost sure that some of these documents we didn't have at the time -- at

4 the end of August of last year, these documents. But without going back

5 and checking on a document-by-document basis, Judge Clark, I'm not about

6 to make a representation that I can't make in good faith. So

7 that's -- I'm sorry, Judge Clark. That's the only answer I can

8 give. I will be happy -- if the Chamber wants that information on a

9 document-by-document basis, I can seek to document that and provide dates,

10 if that's necessary. But Mr. President --

11 JUDGE CLARK: We might just look at the documents first to see

12 what effect they have on the defendant's position, and if they are not

13 very material, maybe just of some assistance to both sides, that's one

14 thing, but obviously, at this late stage, introducing documents that are

15 capable of being prejudicial might get a different view.

16 MR. SCOTT: Judge Clark, let me hasten to say, because let's go

17 back -- forgive me for -- I know the hour is late, but let's go back to

18 the first principles here. Remember way back to the 10th of September and

19 the status of the documents. There was never 66(B) request -- disclosure

20 request in this case. We said at the time, and even in the pre-trial

21 proceedings, with the prior Judge, Pre-Trial Judge, with Mr. Fourmy, that

22 documents would be tendered as we went, on a daily -- on virtually a daily

23 basis.

24 THE INTERPRETER: Could you slow down, Mr. Scott, please

25 MR. SCOTT: I apologise to the translation.

Page 8640

1 Everyone agreed that that was, in fact, the case, and that was the

2 way it was done. Now, having said that, we have always endeavoured to do

3 better than that, and we have provided the 17 binders before the trial

4 started, we've certainly supplemented those binders as the trial has

5 proceeded and given those, turned those over when we could. These we

6 turned over a week ago, and we think we are still within the Rules, to

7 tender these today, are still within the Rules and the practice that's

8 been applied during the case, recognising that the Defence certainly will

9 have to have a chance to look at them.

10 JUDGE LIU: Yes, Mr. Krsnik.

11 MR. KRSNIK: [Interpretation] Your Honours, is it fair? Could the

12 Defence perhaps have used these documents in their cross-examination? So

13 this was prejudicial to us. Is it fair for the Defence to have to go

14 through all them at the end of the Prosecution's case? Then I hope that

15 in the name of the quality of arms, my learned friend will agree, if

16 this -- if the Chamber admits these documents, that we shall need much

17 more time to check all these documents on the ground, because this is

18 something new that has come up just now. And I agree with

19 [indiscernible]. Otherwise, yes, there was a disclosure. But I'm asking:

20 Is this fair? Perhaps we could have used these documents to check in our

21 cross-examination, had we had them in time, not to mention the work that

22 lies ahead now. If we are going to base our defence on that, then we

23 shall perhaps be forced to ask for an even longer period of time for our

24 response than the one that we were asked when we asked that the countdown

25 start on Wednesday. Thank you very much.

Page 8641

1 JUDGE LIU: Yes, Mr. Seric.

2 MR. SERIC: [Interpretation] Mr. President, thank you very much. I

3 shall be very brief. If I understood well, that we -- that the Chamber

4 had given us until Wednesday to file our objections to the earlier

5 tendered evidence, I think that we shall absolutely not be able to manage

6 even all these new documents by that time. We simply cannot do it. So

7 please give us more time. It will affect, of course, an agreement Mr.

8 Krsnik that the position,

9 the position of the OTP as to your decision regarding the time that the

10 Defence will be given to make all its submissions and to start its case

11 but I suppose we shall be discussing all this on Wednesday.

12 MR. KRSNIK: [Interpretation] Your Honours, I'm sorry. I didn't

13 have time for deal with the documents, but it is said that not all

14 documents have been translated into English. So Your Honours, not all the

15 documents had been translated from Croatian, that is B/C/S, into English.

16 JUDGE LIU: We have to make a distinction between the two sets of

17 documents. One set of documents is that the Prosecutor tendered through

18 the last witness, Sir Martin. This Trial Chamber has made a ruling that

19 if you have any objections, file your objections by next Wednesday. This

20 is so decided. The other elements -- the other documents are those two

21 bundles of documents we just received a few minutes ago, you know. Those

22 are two different issues.

23 Well, we believe that at this moment we are not in a position to

24 make any rulings concerning the last two bundles of documents which are

25 furnished to us just now, and we also believe that it could only be fair

Page 8642

1 to give some time for the Defence counsel to go over all of those

2 documents. So we will reserve any decisions concerning those two

3 documents at a later stage.

4 MR. SCOTT: Thank you, Mr. President. The other item that's a bit

5 of a loose end is that the Chamber may recall -- I don't know if this was

6 a protected witness. Your Honour, I don't have the pseudonym in front of

7 me, but one of the last group of the Prosecution witnesses -- I'll find it

8 in just a moment, Your Honour. Witness AC. The Chamber may recall that

9 there was a considerable dispute and confusion about particular documents

10 put to that witness by the Defence, and the order, and what they were, and

11 whether it was page 2 of the same document, and the Chamber -- this was

12 another instance where the Chamber directed that a supplemental statement

13 be taken from the witness in the presence of the registry, and that was

14 done. And frankly, it's been -- I've been carrying it around with me for

15 the last few days. If I could provide that to the usher at this time.

16 And I would have -- once they're distributed, Mr. President, I do have a

17 comment or two, but I promise to be brief.

18 For the translation booth, there's not going to be any extensive

19 discussion of the document, I assure you.

20 THE INTERPRETER: But if you do read them, Mr. Scott, then please

21 go slowly.

22 MR. SCOTT: Thank you very much.

23 JUDGE LIU: Yes, Mr. Krsnik.

24 MR. KRSNIK: [Interpretation] Yes. That is the document which the

25 Defence asked for, to get a better copy. We should like to thank the

Page 8643

1 Prosecutor. We wanted to see this document, and we appreciate it very

2 much. And of course, we do not object to its admission, because that was

3 precisely the question that the Defence asked.

4 JUDGE LIU: Thank you very much.

5 MR. SCOTT: Mr. President, let me just clarify. When he says he

6 doesn't object to the admission, I believe this is probably more of a

7 Defence exhibit, as it turned out. In any event -- and we don't object

8 it was. We don't object either way. But let me just say -- I do want to

9 say, Your Honour, and I'm only going to treat it briefly at this point:

10 It was very clear in the original -- in the statement, in the witness

11 statement. I have copies of those here, but because of the time, I would

12 not give them out. It was very clear at the time this witness was

13 testifying that this was two -- this was the second page of a two-page

14 document. It said right on the annex to the witness statement.

15 Mr. Krsnik had taken that one part of the page, which we now know

16 is two sides of the same document which has this stamp on it at the bottom

17 of now the same page. That led into a huge controversy over whether this

18 man had a passport or not, and in fact -- I mean, the witness was really

19 put to task. And Your Honour, we respectfully submit there was never any

20 indication -- the evidence will show that there was never, in fact, a

21 passport or any issue of a passport going from Bosnia-Herzegovina to

22 Croatia. And when the witness was asked and there was a suggestion that

23 he was being evasive and he wasn't giving a straight answer, Your Honour,

24 we submit that it was because of the confusion over this document, which

25 was clear -- the witness statement said at the time this was the second

Page 8644

1 page of a two-page document, and that was clear all along and has been

2 made clear again. And that's all.

3 JUDGE LIU: Do we have to debate on this document? I don't think

4 so. There's no disputes of the admission of this document at all. We

5 just have it admitted at this stage.

6 MR. KRSNIK: [Interpretation] Yes, of course, but we do not agree

7 with the clarification, because this certificate is not an A-4 size paper

8 and this stamp could not have been put at the border crossing. But we

9 will leave it until the proper time.

10 It is 7.00 and we are about to finish, but there is something that

11 has been bothering me. You had ordered the registry to check the

12 transcript when I was supposedly -- when I had supposedly revealed the

13 identity of a witness, so I don't know if this check has been done,

14 because it has been bothering me for several days. This was an order for

15 Madam Registrar. The Trial Chamber had ordered that the transcript be

16 checked, that the registry conduct a search to find out whether I had

17 inadvertently revealed identity of one of the witnesses. I had not done

18 so and I was aware of it from day one. But when my learned friend said

19 that additional protective measures should be now given to this witness

20 because it was broadcast on Bosnian television that I had revealed his

21 identity, this is what led to the original ruling. I would just like to

22 have the results disclosed to us at some point. Thank you.

23 JUDGE LIU: Well, taking into consideration the late hour

24 today, I believe that maybe during the Status Conference we could get

25 some feedback from the registrar. Is that all right?

Page 8645

1 Yes, Mr. Scott. Do you have anything to address to this Chamber?

2 MR. SCOTT: Yes, Your Honour. I believe it's perhaps the words

3 that you've been expecting at this juncture. Mr. President, with those

4 submissions, the Prosecution closes its case, subject to a couple of

5 clarifications, which I will make very briefly. But it does close the

6 case, the testimony of witnesses. Sir Martin Garrod was our last witness

7 that we have tendered to the Chamber.

8 The exceptions that we would ask and the reservations we would

9 ask, Your Honour, is, one, as the Chamber knows from prior filings and

10 discussion, in fact, in the courtroom, we would preserve our opportunity

11 to respond to any outstanding exhibit matters. We believe it's only fair,

12 Your Honours. And again, I hasten to say that it's not meant as a

13 criticism of the Chamber or the Chamber staff, and we recognise again the

14 volume of material that we have confronted the Chamber with. But having

15 said that, Your Honour, we feel that we must be -- we submit we must be in

16 a position where, depending on the Chamber's rulings - and I won't assume

17 or presume what those final additional rulings might be - we would want to

18 be in a position to respond, if we could, to correct any deficiencies that

19 the Chamber might find that we have not been able to address without

20 having the Chamber's ruling. So we would reserve the opportunity to do

21 that, and I'll abbreviate my remarks in that regard.

22 The second item that I feel I must report to the Chamber on,

23 because it's come up on a number of occasions, is the question of the

24 wooden rifle. I can tell the Chamber, and I will say to Defence counsel,

25 that we have made ongoing inquiries to pursue those matters and will

Page 8646

1 continue doing so. I do feel that I must say, however, on that

2 point - because there's a little bit of concern on the Prosecution's part,

3 to be perfectly honest - that we do not want the -- whether this

4 particular rifle is ever found or whether it's ever identified in

5 connection with one of the three or four human shields victims that day or

6 not should not take on undue importance. The Prosecution submits that we

7 have presented a full case on that matter. We have presented to you

8 numerous eyewitnesses to the events, we have presented to you three of the

9 four victims themselves who participated in those events, and whether or

10 not a wooden rifle is presented to the Chamber ever, or whether there's

11 anything more about whether it was one of their rifles or somebody else's

12 rifle, the Prosecution case stands on substantial -- very substantial

13 evidence, independent of that rifle. Having said that, given the

14 Chamber's questions of interest or curiosity in the rifle, we are

15 continuing to make inquiries about that.

16 So, Mr. President, with those two comments and the reservation

17 concerning the exhibits, the Prosecution closes its case.

18 JUDGE LIU: Well, Mr. Scott, one point I have to seek some

19 clarification from you, that is, the first one.

20 MR. SCOTT: Yes.

21 JUDGE LIU: You know, we just have been furnished with two bundles

22 of documents. This Trial Chamber has no authority at this moment to make

23 any concrete rulings on those documents. It may take time. We understand

24 that you furnished all those documents just last Friday, as you mentioned

25 before, and we just got it today. So that may take a longer time. So my

Page 8647

1 question is that when this Trial Chamber makes a decision concerning the

2 admission or not the documents you tendered through the last witness,

3 we'll be in the position to say that your case is closed; otherwise we'll

4 wait for another month or two to do that, which is just a waste of time.

5 MR. SCOTT: Mr. President, I think I understand. I think what

6 you've said addresses part of our concern, and that is that the case

7 wouldn't be considered closed, if I understood you correctly, until, in

8 fact admissibility or the admission decisions were made and then the case

9 would be -- you would consider the Prosecutor's case closed. I think that

10 goes, from our perspective, respectfully, part way to address our

11 concerns. But however, Your Honour, our point is this: If you should

12 reject particular exhibits and not accept them into evidence because you

13 say additional foundation would have been necessary -- was necessary as to

14 this exhibit or we have a question as to this exhibit. As you did on some

15 occasions. You may remember that there were ten documents at one point.

16 You specifically advised us of and I think the Chamber knows that we then

17 took steps with Mr. Rule, Officer Rule and others at ECMM to identify and

18 address those ten documents that you mentioned. If you were to do that in

19 the future -- it could be important evidence. It may be something we

20 consider critical to the case and you would say, "Well, we have a question

21 about P75. Could you tell us more about that." Respectfully, Your

22 Honour, we don't think it would be fair to exclude the evidence without

23 giving us a chance, further chance to respond to that and to make the

24 additional showings at that time. So to be clear, we're resting our case

25 subject to the ability to correct any of those -- my apologies, Judge

Page 8648

1 Diarra. I see I'm going too fast again. We rest our case subject to the

2 ability to deal with the exhibits in that way. We believe that we're not

3 critical of anyone or anything about that, but we believe that's the fair

4 way to proceed. Thank you.

5 JUDGE LIU: Thank you. It seems to me there's no other issues

6 that we have to address. So I've been informed that we will have our

7 Status Conference on this case next Wednesday, at 3.00 p.m., in the

8 courtroom 3. During this Status Conference, we would like to hear the

9 views expressed from both sides on the preparation of the Defence case.

10 We will rise until next week.

11 --- Whereupon the hearing adjourned at 7.12 p.m.,

12 to be reconvened on Wednesday, the 30th day of

13 January 2002, at 3.00 p.m.