1 Wednesday, 1 February 2006

2 [Open session]

3 --- Upon commencing at 9.06 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: Good morning, Madam Registrar. Could you call the

6 case, please.

7 THE REGISTRAR: Good morning, Your Honours. This is case number

8 IT-03-68-T, the Prosecutor versus Naser Oric.

9 JUDGE AGIUS: I thank you and good morning to you.

10 Mr. Oric can you hear the proceedings in your own language?

11 THE ACCUSED: [Interpretation] Good morning, Your Honours, ladies

12 and gentlemen. I can follow the proceedings in my own language.

13 JUDGE AGIUS: Thank you.

14 Appearances for the Prosecution?

15 MR. WUBBEN: Good morning, Your Honours and also good morning to

16 my learned friends of the Defence, my name is Jan Wubben, lead counsel for

17 the Prosecution. My team also included Ms. Patricia Sellers, Mr. Gramsci

18 di Fazio, and our case manager, Ms. Donnica Henry-Frijlink.

19 JUDGE AGIUS: Thank you, Mr. Wubben and good morning to you and

20 your team.

21 Appearances for the Defence.

22 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. Good

23 morning to my friends from the Office of the Prosecutor. My name is

24 Vasvija Vidovic and, together with Mr. John Jones, I appear for Mr. Oric.

25 We have with us our legal assistant, Ms. Jasmina Cosic, and our CaseMap

1 manager, Mr. Geoff Roberts.

2 JUDGE AGIUS: I thank you, Madam Vidovic and good morning to you

3 and your team.

4 So this morning, we will have the last viva voce witness for the

5 Defence and in the course of his testimony, representatives of the USA

6 embassy here in The Hague will be present as per our decision. Since

7 there are a few preliminaries to deal with before we start with his

8 testimony, I have made sure that they are made aware that they will need

9 to wait a little bit in the room where they are at the moment.

10 So I thank them for their patience. The other thing I want to

11 tell you is that at five past ten, ten to five minutes past ten we need to

12 stop because I need to accompany the Minister of Foreign Affairs of Malta,

13 his visit to the president. The visit was not expected to take much of

14 what would be our break in any case. After that, we will resume the

15 sitting and the minister and the rest of the troop will assist for the

16 continuation of the sitting for at least sometime.

17 There are several matters that I need to address before I ask you

18 if you have any preliminaries yourselves. First one is you recall that

19 last week we handed down a decision which we stated that we will be

20 proceeding with the appointment of a Trial Chamber handwriting expert and

21 that we will have a meeting with him in my Chamber, the idea was very

22 simply put, was to hand him the documents and explain to him which

23 signatures needed to be examined for our purposes, and make sure that he

24 has the originals and that he is put on notice that he does not -- he must

25 not carry out any invasive examination on the papers, on the documents,

1 thus retaining their integrity. Subsequently there was a motion by the

2 Defence asking for the parties to be present at the meeting with the Trial

3 Chamber's writing expert. This has been responded to by the Prosecution.

4 We have discussed it and we have decided that as a matter of courtesy, and

5 also because last thing that we would hope is put in doubt is the

6 transparency of this Trial Chamber. We will not only accede that the

7 Defence and the accused be present during our meeting with the handwriting

8 expert, but also that this meeting with the handwriting expert will be

9 conducted here in this courtroom and it will be televised, recorded

10 publicly as normal. And, of course, Prosecution is also invited to attend

11 if they so wish. We will not be deciding the motion and we are also

12 making it clear that by no means we are doing this in a way to establish a

13 precedent, that there is such a right. As I said, we are doing it only as

14 a matter of courtesy. In view of that, neither the motion nor the

15 response will be the subject matter of a decision on our part because the

16 matter would be moot.

17 The other thing is this: I am informed that the expert will

18 arrive here this evening -- sorry, will depart -- will depart.

19 [Trial chamber and legal officer confer]

20 JUDGE AGIUS: So he will be here only tomorrow. He arrives here

21 this evening. The idea is to have this very short sitting tomorrow at

22 10.30. I don't expect it to last more than a few minutes, I would say, 15

23 minutes to 20 minutes at the most. The parties will not be allowed to

24 intervene. This is just making this very clear.

25 So the sitting, and I ask you to reserve the room for tomorrow

1 morning at 10.30 please, all right?

2 So as an outcome of tomorrow's meeting, there will be also either

3 orally or in writing an order outlining the terms of reference of the

4 expert and the schedule attached to his forensic examination. In other

5 words, one thing that we will discuss is obviously when he is expected to

6 finish and come back with his report.

7 Now, rebuttal. This morning, I was informed that the Defence

8 response to the Prosecution rebuttal evidence motion has been filed. I

9 wish to ask the Prosecution whether they are aware of this and whether you

10 have a copy of it already.

11 MR. WUBBEN: Yes, Your Honour, we have. Though a copy without the

12 attachments as it was an electronic copy out of courtesy last evening.

13 JUDGE AGIUS: All right. Are there any submissions on your part?

14 Do you intend to seek to file a response to it?

15 MR. WUBBEN: Your Honour, I requested Ms. Patricia Sellers to make

16 a submission in that respect, this morning.

17 JUDGE AGIUS: Yes, Ms. Sellers.

18 MS. SELLERS: Good morning, Your Honours. The Prosecution will

19 file a response to the motion and we would ask if it were possible for us

20 to have a slight variance on time. We will be more than willing to file

21 by Friday.

22 JUDGE AGIUS: All right. Is there any other submission that you

23 would like to make in regard to this matter of rebuttal?

24 MS. SELLERS: Yes, there is, Your Honour.

25 JUDGE AGIUS: It needs to be finalised, the sooner the better.

1 MS. SELLERS: Certainly. We agree with that. Your Honour, there

2 is a submission that the Prosecution takes quite seriously and for this

3 matter I would ask that we go into private session for no more than two or

4 three minutes.

5 JUDGE AGIUS: Let's go into private session.

6 [Private session]

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25 [Open session]

1 JUDGE AGIUS: So you'll recall that sometime back, last week,

2 there was a motion, a very long and detailed motion, from the Defence

3 to -- praying for the exclusion from the records of the alleged record of

4 the interview of the Accused pursuant to Rule 89(D) and 95. The

5 Prosecution response has arrived. We have, of course, studied very

6 carefully the Defence motion but we haven't had time to see the

7 Prosecution response. We'll see that. We'll discuss it and we'll promise

8 you a decision as early as possible.

9 We have also the -- received a Defence motion last week for the

10 revised translation of Prosecution Exhibit P84. Again we read and studied

11 this motion, which was also a lengthy one. We have this morning received

12 a copy of the Prosecution response, which we haven't had time to read as

13 yet. We will go into that as well and, likewise, we will be forthcoming

14 with a decision as quickly as -- and as early as possible.

15 MR. JONES: Your Honour, may I? We were going to seek leave to

16 reply to those responses but in a very short period.

17 JUDGE AGIUS: Yes. So would end of Friday ...

18 MR. JONES: Yes that would be perfect.

19 JUDGE AGIUS: In the meantime we will take our time to read the

20 responses because they are also, from what I gather, pretty long as well.

21 So the Defence will have up until the end of Friday, this Friday, 3rd of

22 February, to respond to the Prosecution responses in both these instances.

23 Finally, and this should be at last a matter on which we do not

24 expect you to disagree, there was, you will recall, a Defence motion to

25 admit the evidence of Philipp von Rechlinghousen, in the form of a written

1 statement pursuant to Rule 92 bis. This was formally objected to by the

2 Prosecution and rightly so some time back, because of a formality issue.

3 That formality problem has been addressed, also thanks to Ms. Fabian who

4 travelled to Germany over the weekend to secure the authentication of Mr.

5 Rechlinghousen -- von Rechlinghousen's statement. I take it that there is

6 no opposition on your side for the admission of this statement pursuant to

7 Rule 92 bis now, Mr. --

8 MR. WUBBEN: Under these circumstances, no, Your Honour.

9 JUDGE AGIUS: All right. I thank you. So our decision, which is

10 an oral one, is that the statement of Herr Philipp von Rechlinghousen is

11 being admitted as evidence of a witness in the form of a written statement

12 pursuant to Rule 92 bis, all right?

13 Are there any other matters that you would like to address by

14 means of a preliminary? Prosecution?

15 MR. WUBBEN: Your Honour, we might have a submission but please

16 allow us to update our self on the issue itself. It's related to

17 organising and it might be so that after the break, we do a short

18 submission in that respect.

19 JUDGE AGIUS: Organising what?

20 MR. WUBBEN: Organising the rebuttal, Your Honour.

21 JUDGE AGIUS: Oh, I see. All right.

22 So I think we can bring in the witness, but I suggest that you

23 bring in the representatives of the United States government first. The

24 representatives of the United States government first. Where are they

25 going to sit? Where --

1 MR. JONES: Your Honour, I just might say there are three of them

2 and I wonder perhaps.

3 JUDGE AGIUS: I don't usually like them facing the witness. I

4 think it's inevitable here. All right. I will keep a watchful eye.

5 Please do escort them in the courtroom and because the alternative is that

6 Ms. Sellers moves near Mr. Wubben but I wouldn't actually know whether

7 Mr. Wubben would like that.

8 MS. SELLERS: Perhaps I should join the Defence team at this

9 point.

10 MR. WUBBEN: I wouldn't allow that.

11 JUDGE AGIUS: No. It's okay, Ms. Sellers. Stay where you are. I

12 think that --

13 Mr. Jones, how long do you expect your in chief --

14 MR. JONES: I actually hope to be very brief indeed. I was even

15 thinking 45 minutes or something of that nature, an hour maximum.

16 JUDGE AGIUS: Okay. Thank you.

17 And Defence -- Prosecution?

18 MR. WUBBEN: Your Honours, Mr. Gramsci di Fazio will do the cross.

19 I don't know his estimation so far.

20 JUDGE AGIUS: Mr. Di Fazio?

21 MR. DI FAZIO: Anywhere between zero and 45 minutes, if

22 Your Honours please. I just can't predict. It's -- I can say that it's

23 likely to be brief.

24 JUDGE AGIUS: All right. I thank you.

25 So lady and gentlemen, welcome. I asked you to come in first. We

1 had some preliminary matters to address this morning. So I sent you a

2 message to explain that to you, and I wish to thank you for your patience

3 and understanding. We will now call the witness. I will ask you to

4 identify yourselves in his presence and then we can proceed with his

5 testimony. Thank you.

6 [The witness entered court]

7 JUDGE AGIUS: Good morning to you, Colonel.

8 THE WITNESS: Good morning.

9 JUDGE AGIUS: Welcome to this Tribunal. You are about to start

10 giving evidence, testimony, in this trial against Naser Oric as a witness

11 called by the Defence. As per specific request and also as per particular

12 provision in our Rules, we have here present representatives of your

13 government, precisely representatives from the US embassy here in The

14 Hague. I will now ask them to identify themselves in your presence so you

15 know exactly who they are.

16 MR. JOHNSON: Your Honour, thank you. I'm Clifton Johnson. I'm

17 the legal counselor councillor at the American Embassy in The Hague.

18 JUDGE AGIUS: I thank you, Mr. Johnson.

19 MR. JOHNSON: Thank you sir.

20 MR. SCHMID: Thank you, sir. I'm Peter Schmid. I'm a

21 representative from DOD.

22 JUDGE AGIUS: I thank you, Mr. Schmid, and welcome to this

23 Tribunal.

24 MS. SCHILDGE: Good morning, Your Honours. I'm Heather Schildge

25 I'm the deputy legal councillor here in The Hague.

1 JUDGE AGIUS: I thank you, madam, and I welcome you to the

2 proceeding. I appreciate and I wish to thank the US government for having

3 been kind enough to make you available as agreed. So colonel, once more

4 good morning to you. Our Rules require that before you start giving

5 testimony you make a solemn declaration, which in your country and in many

6 others would be the equivalent of an oath, to the effect that in the

7 course of your testimony you will be speaking the truth, the whole truth,

8 and nothing but the truth. Madam Usher, I see, has already handed to you

9 the text of this solemn declaration. Please read it out and that will be

10 your solemn declaration with us.

11 THE WITNESS; I solemnly declare that I will speak the truth, the

12 whole truth, and nothing but the truth.

13 WITNESS: JOHN FENZEL

14 JUDGE AGIUS: Thank you, sir. Please make yourself comfortable.

15 Make sure you have the headphone in place. I expect you to be here for a

16 very short time, relatively speaking, so first thing I want to put your

17 mind at rest that you will be out and finished with this within the --

18 within this morning.

19 You will first be asked a series of questions by Mr. Jones, and I

20 understand you have already met. He will then be followed by

21 Mr. Gramsci di Fazio from the Prosecution side, if at all. We'll come to

22 that later. We are going to start now but at 10.00, I will have a break

23 which will be of 30 minutes. The reason is, as I explained, I have the

24 Minister of Foreign Affairs of my country visiting the Tribunal here today

25 and having a meeting with the president, for which I need to be present.

1 That's not supposed to take much of our time. And more or less should

2 cover the 30-minute break that we usually have in any case. So I ask you

3 to bear with me, just happened to coincide with today. The idea was

4 initially that we would your testimony yesterday and the meeting with the

5 minister had been fixed quite some time back.

6 So yes, Mr. Jones.

7 Examination by Mr. Jones:

8 MR. JONES: Thank you, Your Honour. Before I start I believe one

9 of the microphones is still on. Yes. I thought I should point that out.

10 Thank you.

11 Q. Yes. Please give the Court your full name.

12 A. John Fenzel III.

13 Q. I'm going to be pausing a little bit after your answer because

14 everything is being interpreted. So if I pause that's the reason. Please

15 give the Court your date of birth.

16 A. June 17th 1962.

17 Q. Thank you. And you're a citizen of the United States?

18 A. Yes.

19 Q. And you've served 22 years in the US army, including 15 years in

20 the army's Special Forces, and you hold the rank of a Lieutenant Colonel.

21 A. Yes.

22 Q. Now, before we proceed, I'll just ask you, are you aware, as the

23 Chamber is aware, and I think it's important to state on the record, that

24 the scope of your testimony will be confined to questions relating to the

25 character of the Accused, that is Naser Oric, based on your contacts with

1 him in 1998?

2 A. Yes, that's correct.

3 Q. All right. So I won't be asking you any questions beyond the

4 scope of that, nor will the Prosecution.

5 Now, as part of your duties for the US army, were you deployed to

6 Tuzla in Bosnia twice, once in 1997 and once in 1998?

7 A. I was deployed to Tuzla in 1998. In 1997 I was in Sarajevo.

8 Q. Right. Thank you for that clarification. Just dealing with 1998,

9 what was your function?

10 A. In 1998, I was the commander of the special operations command and

11 control element based at Tuzla, Eagle Base, and was responsible for the

12 special operations teams in the multinational division sector north, the

13 American sector.

14 Q. And that was part of the SFOR deployment, correct?

15 A. That's correct.

16 Q. Now in 1998 did you ask to be put in contact with Naser Oric and

17 please don't mention any names for the time being.

18 A. Yes, I did.

19 Q. And I would ask just to go into private session briefly.

20 JUDGE AGIUS: Yes. Let's go into private session for a while,

21 please.

22 [Private session]

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16 [Open session]

17 JUDGE AGIUS: We are back in open session.

18 MR. JONES: Thank you, Your Honour.

19 Q. Now, did you in fact meet Naser Oric in 1998?

20 A. Yes.

21 Q. And when and where was the first time that you met him?

22 A. It was in April 1998. I cannot recall the actual day. It was

23 early on in our deployment so I would -- it would only be my speculation

24 but perhaps mid-month in April and we met at a cafe in Tuzla.

25 Q. And on that occasion, did Naser Oric talk to you at all about the

1 war?

2 A. No. He did not. He had actually indicated that he did not want

3 to talk about the war during our meeting.

4 Q. So in fact, did he not talk about the war with you?

5 A. He did not talk about the war.

6 Q. And did you understand and respect that sentiment, that he didn't

7 wish to talk about the war?

8 A. Yes.

9 Q. How long in fact was the first meeting that you had with Naser

10 Oric?

11 A. It was perhaps an hour meeting, no longer than that.

12 Q. And after that, did you have other meetings?

13 A. Yes, we did.

14 Q. Can you give us some sense of their frequency and the time period

15 that that covered?

16 A. Over a four month period from April through August of 1998, my

17 guess would be that we met perhaps once a week.

18 Q. And it was August 1998, the end of your tour essentially?

19 A. That's correct. That's when we redeployed back to the United

20 States.

21 Q. And have you had any contacts with Naser Oric since then?

22 A. No, I haven't.

23 Q. So dealing with these meetings then that you had with Naser Oric,

24 what was his manner towards you and his conduct towards you?

25 A. I would characterise all of our encounters with him as being --

1 his demeanour as being very respectful, very professional, and very

2 forthcoming.

3 Q. At these meetings, at any of these meetings, did Naser Oric

4 mention any concerns that he had about being arrested on behalf of the

5 Tribunal?

6 A. Yes. During the first meeting at the cafe in Tuzla, he -- one of

7 the first things that he told me was that he was afraid that -- and he had

8 heard rumours that perhaps he was going to be arrested and brought to The

9 Hague, and he said that he was worried because his family was -- he had a

10 son and a daughter, his wife, and that to let everybody know that if he --

11 if they wanted to arrest him, that they should not launch a special

12 operation to capture him, to let them know that all they had to do was

13 call him up.

14 Q. And he would then surrender voluntarily?

15 A. Yes, that's correct.

16 Q. Now, Your Honour, I would ask again if we could go into private

17 session?

18 JUDGE AGIUS: Let's go into private session for a while, please.

19 [Private session]

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4 [Open session]

5 JUDGE AGIUS: We are in open session. Do you wish to tender this

6 document, Mr. Jones?

7 MR. JONES: Yes, Your Honour.

8 JUDGE AGIUS: Are you tendering it only in the Serbo-Croat

9 language?

10 MR. JONES: Yes, Your Honour. I should perhaps explain it's

11 purely for the purposes of the photograph. If need be we do have an

12 English translation but since we are not relying on the content we are

13 just tendering the Bosnian.

14 JUDGE AGIUS: I would take it you're not interested in the content

15 being translated into English, then, Mr. Di Fazio?

16 MR. DI FAZIO: I can't say, Your Honours; I don't know what it

17 says. If there is an English translation I would like to see it.

18 JUDGE AGIUS: All right. But what is being stated is that the

19 text itself is not being put in evidence. It's the photograph only that

20 is being put in -- and the fact that it is alleged to be a photocopy from

21 this Dani. I don't --

22 MR. DI FAZIO: I understand that, Your Honours, I've got no

23 problem with the Defence seeking to tender merely the photograph. I don't

24 know what the text says. I may therefore make moves later to tender the

25 entire document if I find it necessary.

1 JUDGE AGIUS: So, for the time being this will become Defence

2 Exhibit D10 --

3 THE REGISTRAR: D1020, Your Honour.

4 JUDGE AGIUS: 1020.

5 All right. So I thank you so much.

6 Colonel, we will have a break now. You'll be attended to by

7 members of our staff. And then we will continue after the break. All

8 right? Thank you.

9 --- Break taken at 10.02 a.m.

10 --- On resuming at 11.04 a.m.

11 JUDGE AGIUS: Yes, one moment, Mr. Wubben. Yes, my apologies to

12 everyone for having kept you waiting longer than anticipated. That

13 includes the representatives of the embassy of the United States, who are

14 present here with us today. I thank you for your patience and your

15 understanding.

16 Yes, Mr. Wubben?

17 MR. WUBBEN: Your Honour, Prosecution wants to make two short

18 submissions but we would rather prefer to do that after finalisation of

19 this witness.

20 JUDGE AGIUS: Okay. Thank you.

21 Yes, Colonel, we are going to proceed with your testimony,

22 hopefully finish the examination-in-chief within the next half an hour or

23 so. Do you have an idea, Mr. Di Fazio, of how long you anticipate your

24 cross-examination to last, now that you've had --

25 MR. DI FAZIO: I will have a cross-examination.

1 JUDGE AGIUS: You will have a cross-examination.

2 MR. DI FAZIO: I would say 45 minutes or thereabouts.

3 JUDGE AGIUS: Okay. Thank you.

4 Yes, Mr. Jones.

5 MR. JONES: All right. Thank you, Your Honour. I would ask that

6 we go into private session just for two questions. My apologies to those

7 in the public gallery but it will be brief.

8 JUDGE AGIUS: Yes, thank you. I'm sure everyone will understand

9 and that also prompts me to acknowledge the presence in the public gallery

10 of Dr. Michael Frendo who is the Minister of Foreign Affairs of my

11 country, of Malta, and it's -- if I may say so, Minister, it's one further

12 demonstration on the part of the Maltese government to its commitment to

13 international justice and the sterling work being done by this Tribunal.

14 Yes, we are going into private session for a couple of minutes.

15 We'll have these two short questions and then we will go into open session

16 again.

17 [Private session]

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7 [Open session]

8 JUDGE AGIUS: We are in open session.

9 MR. JONES: I apologise. It seems also that the public gallery

10 was cleared so -- we can wait until the public returns.

11 Q. Okay.

12 JUDGE AGIUS: Yes, I would suggest you proceed.

13 MR. JONES: Yes, thank you.

14 JUDGE AGIUS: Thank you.

15 MR. JONES:

16 Q. Now, you told us this morning, Colonel Fenzel, that Naser Oric

17 told you that if he were indicted he would surrender voluntarily to the

18 Tribunal, correct?

19 A. Correct.

20 Q. Now, without mentioning any names or agencies, did you inform your

21 colleagues and other authorities of Naser Oric's willingness to surrender?

22 A. Yes, I did. I informed my superiors.

23 Q. And I'd ask now if the witness can be shown a new exhibit, it's a

24 newspaper article dated 12th April 2003, from Dnevni avaz, and there are

25 copies to be distributed. This is in Bosnian and in English. I'll just

1 start reading that while that's being distributed. It's -- it reads

2 Divkovic, police commissioner of Tuzla canton, and I'll read the two

3 paragraphs in full.

4 "The Police of Tuzla Canton did not take part in the arrest of the

5 Srebrenica war commander, Naser Oric. The SFOR commander informed us

6 about the action only this morning after 7.00 a.m., said for the 'Dnevni

7 avaz' the Tuzla Canton Police commissioner, Ivica Divkovic.

8 "All information alleging that the police knew that this would

9 happen, are speculations only and the reason for increased number of

10 policemen near the Oric's house is gathering of citizens that happened

11 after the arrest. We in the police knew that Oric was ready to surrender

12 himself and therefore we were surprised with his arrest in this way."

13 And I'd simply ask you this. You see what the police chief, Tuzla

14 canton, says there, we in the police knew that Oric was ready to surrender

15 himself. Is that consistent with what Naser Oric himself told you?

16 A. Yes, it's consistent.

17 Q. And in fact just one final question, can you please explain for

18 the Trial Chamber why you were willing to come here and testify as a

19 character witness for Naser Oric?

20 A. Throughout my encounters with Naser Oric, the information that he

21 provided us was so valuable to our mission and indeed I would characterise

22 it as predictable. We had the ability, on a daily basis through the

23 information he provided to us, to know what was going to happen tomorrow,

24 a week in advance, indeed months in advance, and we understood the threats

25 that were potentially gathering against my own people and against other

1 Bosnians regardless of ethnicity throughout the country. He had such an

2 extensive understanding of the country and specifically within the area

3 that I was responsible for, that it allowed us to do -- perform our

4 mission and bring back all of my soldiers alive, in good health, and while

5 minimising casualties, potential casualties, throughout the MND north

6 sector. He was always honest. He was always forthcoming. He was always

7 a gentleman. And through the help that he provided to us, I felt

8 obligated to come here.

9 MR. JONES: Thank you very much. I have no further questions.

10 JUDGE AGIUS: Yes. I thank you, Mr. Jones.

11 I think we need to give this document an exhibit number.

12 MR. JONES: That's correct, thank you, Your Honour.

13 JUDGE AGIUS: So this document which consists of two pages, one in

14 B/C/S, being a photocopy of an excerpt from a newspaper, Dnevni avaz, of

15 April 12th 2003, and the other being an English -- a certified English

16 translation thereof is being tendered and received and marked as Defence

17 Exhibit D1021.

18 Yes, Colonel, you are now going to be cross-examined by

19 Mr. Di Fazio.

20 Mr. Di Fazio.

21 MR. DI FAZIO: Thank you, Your Honours.

22 Cross-examination by Mr. Di Fazio:

23 Q. Colonel Fenzel, my name is Di Fazio, I have a few questions for

24 you. I shan't trouble you for long. You said in your evidence that you

25 were the commander, special operations, and the command was based at Tuzla

1 and you were responsible for special ops or operations in team sector

2 north. You also just mentioned a moment ago that Mr. Oric was very

3 helpful to you and had an understanding of the area I was responsible for.

4 What particular -- what in particular were your duties? What area were

5 you responsible for in 1998, as -- in your position as commander?

6 A. The special operations command and control element which I

7 commanded was responsible for six joint commission observer or GCO teams

8 that were positioned throughout the multinational division north or

9 American sector in Bosnia.

10 Q. And what did they do, these six joint commission observer or GCO

11 teams?

12 A. The joint commission observer programme was established by SFOR to

13 provide the eyes and ears, if you will, for the SFOR commander and for the

14 multinational division commander in each of the sectors, so there was a

15 SOCCE or special operations command and control element with the GCO teams

16 that worked for them in each of the areas. The GCOs were Special Forces

17 teams that lived in houses on the economy locally in areas that were

18 potentially -- that were of interest.

19 Q. Would you agree with me that broadly speaking, you were

20 responsible for intelligence gathering?

21 A. No, I wouldn't. I would not classify it as intelligence gathering

22 so much as information gathering because it was overt, it was not covert.

23 Q. Okay. Information, the sort of information that would be used for

24 what purpose?

25 A. To -- as I just mentioned, to provide a greater awareness of what

1 was happening within Bosnia to prevent violence and to potentially defuse

2 crises, preferably before they erupted but also during and after the fact.

3 Q. Okay. Just so that I make myself clear, I'm not actually seeking

4 details of any specific episode or anything like that.

5 So you were interested, were you not, in obtaining information

6 relating to possible criminal acts, intended criminal acts?

7 A. We were interested in information not so much relating to specific

8 criminal acts but information relating to events that would represent a

9 threat to the safety and stability of our area, and Bosnia at large.

10 Q. What sort of events were you concerned about, what type of event?

11 A. We were concerned about demonstrations, marches, riots, about the

12 situations that could represent a threat to the Dayton peace accords and

13 in all areas, with all ethnicities.

14 Q. Right. And one of the other matters of concern for you were

15 attacks on teams, I think, because your teams because you had such

16 attacks, I think in Zvornik, Bijeljina, and Brcko, correct?

17 A. We did not have attacks, as I recall in Brcko and Bijeljina. Once

18 again I would need a map to be able to specifically tell you where those

19 attacks occurred and I think I could do so reliably.

20 Q. I'm not interested in the geography of it. I'm interested in the

21 fact of it. You were interested in information about possible attacks on

22 your teams, wherever they might be operating in Bosnia?

23 A. That's correct.

24 Q. And Mr. Oric was able to assist you in that specific regard,

25 wasn't he?

1 A. That's correct.

2 Q. Right. Thank you.

3 You started your work in April of 1998 and you continued, I think,

4 until August of that year, correct?

5 A. That's correct.

6 Q. And when you -- I'm sorry, did you arrive in April 1998 or had you

7 been in the country sometime prior to that?

8 A. During that deployment we arrived, I think recall in early April.

9 Q. You proceeded, did you not, to attempt to gather information that

10 would help you in carrying out your duties?

11 A. That's correct.

12 Q. And one of the people you went to was Mr. Oric?

13 A. That's correct.

14 Q. Now, you hadn't met him before, I take it?

15 A. I had not.

16 Q. Your reason for meeting him, I gather, was as a result of

17 information that you possessed, you had information that made it sensible

18 for you to contact him and see if he could provide you with assistance?

19 A. Yes. I had -- I had prior to deploying the first time in 1997 I

20 had read extensively about the Balkans and specifically what had

21 transpired in Srebrenica.

22 Q. But your own information wasn't confined -- wasn't confined to

23 simply your own personal readings of the situation of the Balkans. I take

24 it you had other sources of information?

25 A. Yes.

1 Q. And you used those sources of information to see who would be best

2 approached, to help you, and that led you to Naser Oric, didn't it?

3 A. Yes, it did.

4 Q. Thank you. What was Mr. Oric doing in 1998? What was his

5 occupation?

6 A. You know, to my recollection, he -- I did not know until after I

7 had met him, and he was the one who informed me that he was running a

8 construction company, his own construction company.

9 Q. Right. And as far as you're aware -- if you're not aware, tell

10 us -- but as far as you're aware, that was his occupation throughout 1998?

11 A. I had no reason not to believe that.

12 Q. Now, you met him on I think a weekly basis from April to August of

13 that year, and during that particular time, during those meetings, I

14 should say, the matters that you discussed, I don't want to know what they

15 were but the matters you discussed were confined to work, weren't they,

16 information, information that he could provide to you, information that

17 you were interested in obtaining?

18 A. That's correct. It was a professional relationship.

19 Q. That's right, that's what I mean. That was the beginning and end

20 of your association and relationship with Mr. Oric, namely obtaining

21 information and his providing it to you?

22 A. That's correct.

23 Q. Did you ever question Mr. Oric about his sources of his

24 information?

25 A. No, I did not. There was -- there was -- I felt no need to.

1 Q. Okay. You regarded the information that he was providing to you

2 as quite reliable enough for your purposes?

3 A. Yes. But I should clarify that all of the information that he

4 provided to us was also corroborated wherever and whenever possible

5 through other sources.

6 Q. Sure. His information was accurate, wasn't it?

7 A. Yes.

8 Q. And he had information about events occurring all over Bosnia,

9 didn't he?

10 A. Yes, he did.

11 Q. He had information about demonstrations that were going to occur,

12 correct?

13 A. Yes, he did.

14 Q. He had information about politicians?

15 A. He had, yes.

16 Q. He had information about the activities of members of all three

17 ethnic groups throughout Bosnia, didn't he?

18 A. That's correct.

19 Q. It wasn't his employment in the construction industry that

20 provided him with this information, was it?

21 A. I have no -- no way of knowing that.

22 Q. The -- you mentioned, I think, that he provided you with some

23 information about three specific episodes.

24 MR. JONES: Your Honour.

25 JUDGE AGIUS: Yes, Mr. Jones.

1 MR. JONES: If we are going to get into any specifics, I would

2 prefer to be in private session. I was in private session for reasons

3 which I can explain in private session.

4 JUDGE AGIUS: Yes, you are right.

5 Are you going into details, Mr. Di Fazio, or not.

6 MR. DI FAZIO: I may. It depends on the answers but I think to be

7 safe it would be best if we --

8 JUDGE AGIUS: I think we better play it safe and we go into

9 private session for a short while.

10 [Private session]

11 (redacted)

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3 (redacted)

4 (redacted)

5 [Open session]

6 JUDGE AGIUS: We are back in open session, thank you.

7 MR. DI FAZIO: I will repeat my question just for the purposes of

8 the record.

9 Q. Colonel, you told us that Mr. Oric expressed fears to you in 1998

10 about possible arrest by this institution. When in 1998 was that?

11 A. As I mentioned, I believe the meeting -- it was the first meeting

12 that occurred in mid-April 1998.

13 Q. On the first occasion that you and he met, he expressed these

14 fears to you?

15 A. That's correct.

16 Q. And can you recall precisely what the fears were? Did he go into

17 detail?

18 A. He did not go into detail. Everything was translated through

19 Chuck Mesic. The statement that he made was spontaneous. He said, "Tell

20 everybody that if they want to bring me to The Hague, not to launch a

21 special operation to capture me. All they have to do is call me and I

22 will come in."

23 Q. Did he ever provide you with any information or explain to you

24 what it was that he thought he might be arrested for?

25 A. No, he did not. He just, as I recall, he had heard rumours but

1 beyond that, he did not mention anything, no.

2 Q. Okay. Were you able to assist him in any regard concerning this

3 fear of his?

4 A. Well, all I did was report the information through my official

5 channels.

6 Q. Okay. And did he speak about his fear of arrest again in 1998

7 during your meetings with him?

8 A. No, I think that was the only time that he had mentioned it.

9 Q. You say he provided you with some information about a gentleman --

10 would Your Honours just bear with me? I'm told there is an extra

11 microphone switched on somewhere that's impeding the transcriber?

12 JUDGE AGIUS: Certainly not mine. I'll switch it on now. We

13 don't have any switched on here. There are only two that the witness has

14 in front of him. I see none on the Defence side. I don't know. I can't

15 help you, Mr. Di Fazio.

16 MR. DI FAZIO: Thank you, Your Honours. Would Your Honours just

17 give me a moment. JUDGE AGIUS: And I saw you also standing up. Do you

18 have an objection?

19 MR. JONES: Just to request private session again if we are going

20 to talk about specific people and events.

21 JUDGE AGIUS: All right. Thank you, Mr. Jones.

22 MR. DI FAZIO: I don't think I need to put you --

23 JUDGE AGIUS: Yeah, but I want to make sure that what was annoying

24 the interpreters is no longer annoying them.

25 MR. DI FAZIO: The transcriber.

1 JUDGE AGIUS: Or the transcriber. I'll switch on mine again, but

2 I just want to make sure that it's okay now. I know how it can be

3 annoying because there have been instances where it annoyed Judge Eser and

4 annoyed me but not today. Exactly. What has usually -- I wouldn't

5 even ...

6 MR. DI FAZIO: Should I just carry on?

7 JUDGE AGIUS: Yeah. Go ahead and then we see.

8 MR. DI FAZIO: Thank you.

9 Q. Where was I? Yes. Earlier this morning you were shown a

10 photograph of a man and you provided some testimony about --

11 JUDGE AGIUS: We are in open session. So if we need to go into

12 private session, please let me know.

13 MR. DI FAZIO: I don't think it will be necessary.

14 JUDGE AGIUS: Okay. Thank you.

15 MR. DI FAZIO:

16 Q. You provided some testimony about a man whom you had reason to go

17 and speak to as a result of information provided to you by Mr. Oric.

18 Did Mr. Oric in 1998 provide you with any details of his past

19 relationship with that man?

20 A. No, he did not.

21 Q. Thank you. The meetings that you had, were they always at the

22 same location in 1998?

23 A. They were usually at one location. There were times when we had

24 meetings at other locations in Tuzla.

25 Q. Did Mr. Oric drive to these meetings?

1 A. I know that on some of them he did. I recall that he had a jeep.

2 Q. Did he ever arrive in any other vehicle?

3 A. I did not see any other vehicle.

4 Q. And the occasion that you spoke to the gentleman I mentioned to

5 you earlier, the man that you went and spoke to as a result of information

6 Mr. Oric gave you, whose photograph was tendered into evidence, when you

7 spoke to him, did he provide you with any information about Mr. Oric?

8 A. No, he did not. I didn't even mention that Naser Oric had

9 referred me to him.

10 Q. Thank you. Thank you very much, Colonel.

11 MR. DI FAZIO: If Your Honours please, I have no further

12 questions.

13 JUDGE AGIUS: I thank you so much, Mr. Di Fazio.

14 Is there any re-examination?

15 MR. JONES: No, Your Honour.

16 JUDGE AGIUS: Yes, Judge Eser would like to put a question.

17 Questioned by the Court:

18 JUDGE ESER: Colonel, do I understand you correctly that it was

19 you who approached Naser Oric and not him who approached you to get in

20 touch with each other?

21 A. That's correct, Your Honour.

22 JUDGE ESER: Does that mean that you had some knowledge about

23 Naser Oric before you got in touch with him.

24 A. Yes, I did.

25 JUDGE ESER: Now, you told us that he had a construction firm. Do

1 you know whether this construction firm would operate locally in Tuzla or

2 whether it was active all over Bosnia?

3 A. Your Honour, I did not have any detailed knowledge, nor did he

4 convey any regarding the areas throughout which he worked. I assumed it

5 was primarily in the Tuzla area.

6 JUDGE ESER: And when you told us about a visit to Srebrenica,

7 that you went on a hill and you looked over a village, and then

8 afterwards, you passed the house of Naser Oric. Do you remember where

9 this was located? Was it located in Srebrenica or in some other place.

10 A. It was located in Srebrenica.

11 JUDGE ESER: In the village of Srebrenica or in the city of

12 Srebrenica.

13 A. As I recall it was located on the road that went uphill towards

14 the cemetery where his grandmother was buried.

15 JUDGE ESER: Thank you. No further questions.

16 JUDGE AGIUS: Okay. I thank you so much, Colonel. And I wish to

17 show the Trial Chamber's appreciation for your having accepted to come

18 over and give testimony.

19 You will now receive all the attention and assistance you require

20 from our staff to facilitate your return back home. I also wish to wish

21 you a safe journey back home. And last but not least I wish to thank

22 publicly the government of the United States for its continued assistance

23 and cooperation to this Tribunal.

24 Yes, and that's the end of the story when it comes to the witness

25 today. I take it that there are some submissions. Yes.

1 Colonel, travel safely.

2 THE WITNESS: Thank you, sir.

3 [The witness withdrew]

4 JUDGE AGIUS: So Mr. Wubben.

5 MR. WUBBEN: Yes, Your Honour. I would like to tender into

6 evidence some video material. It's a replacement, a substitute, for

7 earlier provided video material regarding the Naser Oric interview. It's

8 a couple of months ago, two months ago, that Defence requested for a

9 replacement of videos and we already provided them because they told us

10 that they couldn't navigate or there were duplicates, et cetera, but we

11 also told them that we will do a double check and we did so. And thus we

12 were able to provide for four videos on CDs and it is for that purpose

13 that I would like to make a submission. It's regarding P328 and P329 that

14 we ask videos to be replaced and I will read those four videos out for the

15 record because they were given a new ERN numbers by the evidence unit.

16 First one is video 2 -- start always with a triple O, triple 0 to

17 be specific. And then dash 2844, dash 2, and that is the second out of

18 three to be replaced with V 000-6409. That's the second out of three.

19 Second video is video V 000-2844-5. That's the third out of four. And

20 the fourth out of four to be replaced with V 000-6412. That's the third

21 out of three. I'm now moving to P329, also two videos. For the record,

22 the first one V 000-2920-2. That's the first out of three. The second

23 out of three and the third out of three to be replaced with V 000-6417.

24 That's the first out of three, the second out of three, and the third out

25 of three.

1 And the last one, Your Honour, is video V 000-2920-8. That's

2 first out of three, the second out of three, and the third out of three,

3 to be replaced with V 000-6423, that's the first out of three, the second

4 out of three and the third out of three.

5 JUDGE AGIUS: All right. Before you close on this and before I

6 give you the floor obviously I think this needs some clarification.

7 There is the issue of the entire admissibility or the

8 admissibility of the entire interview of the -- alleged interview with the

9 Accused and I'll be careful with the words that I choose.

10 So I take it straight away that you're not doing this in any way

11 as to prejudice the merits of that motion.

12 MR. WUBBEN: No.

13 JUDGE AGIUS: All right.

14 MR. WUBBEN: No, Your Honour, this is a request triggered and our

15 follow-up to this, and it is easy for the Defence and I understand, I

16 conveyed it already to the Defence and I invited hem to check whether or

17 not this is indeed fitting more to navigate and that there are no

18 duplications.

19 JUDGE AGIUS: The other thing I need to clear with you is the

20 videos that we had until now also included a transcript. Is that

21 changing? Or is it the same --

22 MR. WUBBEN: Your Honour, this is aiming only the video,

23 Your Honour.

24 JUDGE AGIUS: The transcript remains the same, in other words?

25 MR. WUBBEN: The transcript should remain the same.

1 JUDGE AGIUS: No, no, I'm just asking you. I'm not saying whether

2 it should or shouldn't. I'm just asking you whether will are any changes

3 in the transcript as it appears in this video compared with the transcript

4 as it appeared in the previous videos.

5 MR. WUBBEN: Please bear me a moment I will ...

6 JUDGE AGIUS: Okay. Because again that is very relevant. And

7 thirdly we need to decide whether it's a substitution of or whether it is

8 a new set that will sit down in -- together with the previous ones, which

9 can be consulted, if necessary, at least for the purpose of the decision

10 that we need to take on the Defence motion. In the meantime while you

11 consult, I recognise Ms. Vidovic. You have the floor, Ms. Vidovic.

12 MS. VIDOVIC: [Interpretation] Your Honour, we, or rather, first of

13 all, I wish to say this clearly for the transcript. Since we first met

14 with the Office of the Prosecutor we drew their attention to the

15 deficiencies in the interview, both officially at conferences and

16 unofficially in our interactions with Mr. Withopf. We told them that once

17 we were delivered the CDs that Mr. Wubben mentioned now, two were lacking

18 and we have not received them to date. We were now in a position to check

19 whether the contents of the transcript correspond to the tape, and I wish

20 this to be said clearly.

21 In addition to this, on two occasions were delivered two CDs that

22 are already been delivered to us earlier and twice so. We received these

23 duplicates. One of the CDs was not workable at all, was not checkable,

24 and we informed them thereof in December. What the Prosecutor is

25 suggesting at this stage is completely unacceptable to us. We are opposed

1 to their idea of simply replacing one with the other. We needed these

2 portions of the interview at the time when we had our witnesses here. We

3 wanted them to comment on the contents of the interview. We have received

4 this only at the point when our last witness has testified and we find it

5 is pointless. They may, if they wish so, tender this as additional

6 evidence. However, we are opposed to having them replace one with the

7 other. We want the evidence to reflect whatever we had at our disposal

8 from the start until this very day.

9 [Trial Chamber confers]

10 JUDGE AGIUS: So our decision after consultation is as follows:

11 These are being admitted under these caveats. First they are not being

12 admitted in substitution of the previous ones but they will co-exist with

13 the previous ones for whatever need we or the Defence may have for the two

14 to be available. That's number 1.

15 Secondly they are being admitted also without prejudice, of

16 course, to the Defence motion for the exclusion from the records of the

17 alleged interview of the Accused, to which I referred to earlier on in the

18 sitting of today. And also they are being admitted without prejudice to

19 the submission that Ms. Vidovic made a couple of minutes ago.

20 So that submission remains, of course, unprejudiced for you.

21 All right. Any further submissions? Yes, Mr. Di Fazio?

22 First of all, have you finished Mr. Wubben? I thought you said

23 you had two submissions to make.

24 MR. WUBBEN: Yes. And the second submission will be done by

25 Mr. Di Fazio but I would like to add to it that the transcript remains the

1 same.

2 JUDGE AGIUS: All right. Okay exactly.

3 MR. WUBBEN: And the second submission will be done by

4 Mr. Di Fazio.

5 MR. DI FAZIO: It's not really a submission. It's just to invite

6 you to help us with a practical problem. As you know we've got a military

7 man intended to be part of our rebuttal evidence and, of course, if your

8 decision is that there is going to be no rebuttal evidence that's the end

9 of the matter and we don't have a problem at all. But should you decide

10 that rebuttal evidence will be permitted and that witness in particular,

11 then the question will arise of when he's -- when we get him here for that

12 and when he commences his evidence. Now, I raise that because I think the

13 Defence have Friday to put in their rejoinder. Now, if you were to give a

14 decision, I don't know when you have in mind, but say for the sake of

15 argument it was early next week, then that would be the point at which we

16 would then start to make arrangements to get that witness here and don't

17 forget, too, that it's not just a question of getting him here. He has to

18 be proofed and I understand the Defence might want to speak to him as

19 well. So it's a practical dilemma and what we wouldn't want to be

20 confronted with is a situation where we get a ruling in our favour and

21 Your Honours expect a witness to start. Also, we are loathe, if

22 Your Honours please, to get the man here and start proofing him in the

23 hope that we might succeed because that would be really a wasted trip and

24 an expenditure of money that I don't think could be justified.

25 JUDGE AGIUS: You will understand. I don't think we need any

1 feedback from you.

2 MR. JONES: Well, I have one clarification and maybe a tiny bit of

3 feedback. Your Honours will have seen that we have filed, I might say, a

4 vigorous, painstaking, and thorough response.

5 JUDGE AGIUS: Which we haven't even started reading as yet.

6 MR. JONES: We did actually by the way send a courtesy copy

7 yesterday in the early afternoon I believe. I wanted to make that clear

8 for the record because of the reference to being sent in the afternoon.

9 We sent it in the early afternoon as I understand but in any event we are

10 opposed to moves -- well, let me put it this way. Because obviously

11 careful deliberation will be required, possible appeal, we would be

12 opposed to any arrangements put in place now which would appear to suggest

13 that the matter had been in any way decided even provisionally. I think

14 the Prosecution can certainly wait a few days until the Trial Chamber

15 issues its decision and then take due steps. The witness is not located

16 on the other side of the world; as I understand it he's in the United

17 Kingdom, and actually a matter of getting a witness over from the United

18 Kingdom for proofing isn't something which has to be planned weeks in

19 advance.

20 The clarification which I sought was, Mr. Di Fazio said that we

21 would be filing a rejoinder by Friday. I'm not clear about that. I

22 thought that would follow from Your Honour's decision about rebuttal

23 because obviously we -- it would be pointless for us to file a whole

24 motion on rejoinder until we know when who the rebuttal witnesses would

25 be.

1 JUDGE AGIUS: I take it that should follow as a matter of course.

2 But we can't help you, Mr. Di Fazio, because we have absolutely no idea at

3 all where we stand on the rebuttal issue. We still have to read the

4 Defence response. We still have to await your response to their response,

5 which will come Friday. Of course, we are not going to sit pretty between

6 now and Friday and we haven't been sitting pretty. I mean, we have done a

7 lot of homework on the matter particularly from the injuries prudential

8 and doctrinal point of view. I have no idea and neither -- I can assure

9 you neither have my two colleagues.

10 MR. DI FAZIO: I don't know how my comments were interpreted to

11 mean that I was suggesting that you might have an idea and give us a broad

12 hint. I would have thought that Your Honours would -- I never dreamed for

13 a moment --

14 JUDGE AGIUS: No, no, no. It wasn't taken that way. But what I'm

15 trying to say is that we will have the full documentation from parties end

16 of Friday. Basically on the basis of what has happened in the past, the

17 three of us will take Saturday and Sunday to finish reading and then on

18 Monday we will meet early in the morning, usually in about an hour or two

19 we should be able to decide. And then obviously the decision has to be

20 written. And that's where the problem lies because there are so many

21 issues involved that I frankly cannot anticipate even whether it's going

22 to be a long or a short decision. I don't know. So expect a decision

23 sometime early next week and we have to mark time depending on what the

24 decision will be. And the question of rejoinder becomes conditional on

25 that. The question of the problem that -- the organisational problem that

1 you have becomes conditional on that. At the end of the day you may not

2 have to worry about this at all but I don't know. We are extremely,

3 extremely -- we haven't even really begun to consider the matter of

4 rebuttal.

5 MR. DI FAZIO: That's fine, Your Honour. I make no comment about

6 that. All I -- originally I think we were meant to start next week.

7 JUDGE AGIUS: Yeah, but obviously -- come on, let's suppose we

8 decide now in favour of rebuttal, how can we expect to you bring the

9 witness on Thursday or on Friday?

10 MR. DI FAZIO: Those are the words I wanted to hear, if

11 Your Honours please.

12 JUDGE AGIUS: I think it stands to reason. Plus there is the

13 question or there it would be the question of rejoinder, too, and then

14 there is the question if there is a decision in favour of rebuttal the

15 question of certification and appeal and so on and so forth. So we are

16 still too much in the clouds. So let's wait until we have got our feet

17 firmly on the ground again on this matter and we know where we stand, all

18 of us, and then we talk further. But, of course, if there is going to be

19 a rebuttal and if there will be a rejoinder you will have all the time you

20 require to make it possible to bring these witnesses. All right?

21 Any further matter? We are going to be at your disposal here

22 throughout the entire, the rest of the week, should any matter or any

23 further dispute amongst you arise. And we anxiously await your final

24 responses and responses to responses so that we can do our homework

25 throughout the weekend and come down with all the necessary decisions

1 early next week. All right? Thank you.

2 --- Whereupon the hearing adjourned at 11.56 a.m.,

3 to be reconvened on Thursday, the 2nd day of

4 February, 2006, at 10.30 a.m.

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