1 Wednesday, 31 January 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.01 a.m.

5 JUDGE BONOMY: We'll go into closed session while the witness

6 enters the courtroom.

7 [Closed session]

8 (redacted)

9 (redacted)

10 (redacted)

11 [Open session]

12 THE REGISTRAR: We are in open session, Your Honours.

13 JUDGE BONOMY: Good morning, Witness K90.

14 THE WITNESS: [Interpretation] Morning.

15 JUDGE BONOMY: We'll continue with the questions. I remind you

16 again that the solemn declaration you took to tell the truth at the

17 beginning of your evidence continues to apply to that evidence today.

18 Mr. Ivetic.

19 MR. IVETIC: Thank you, Your Honour.

20 WITNESS: WITNESS K90 [Resumed]

21 [Witness answered through interpreter]

22 Cross-examination by Mr. Ivetic: [Continued]

23 Q. Good morning again, sir. I'd like to take up where we left off

24 yesterday, and we were talking about the crossroads, the Meja

25 Orize-Djakovica crossroads where the check-point was. And I would like to

1 ask you, at paragraph 54 of your statement, you say that the police seemed

2 to be checking papers and taking money from people.

3 I'm going to ask you that you are assuming this because you did

4 not actually eye-witness this yourself and that's why you say it "seemed."

5 Is that accurate?

6 A. Yesterday, I told you that we did not really understand each other

7 on that. The check-point at the bridge in Djakovica did exist, but this

8 time there was the check-point at the crossroads I described to you in

9 that diagram and that is on that little road that goes uphill, further up,

10 towards that other part of the village.

11 So that is where this other check-point was, the new check-point,

12 not in Djakovica where the old check-point was, the regular check-point,

13 but -- but, I saw them taking money.

14 Q. I believe we're talking about the same check-point, the one that

15 was near -- between your VJ command post and the rest of your unit. Is

16 that the check-point we're talking about?

17 A. That's the one. That's the one. Now it's that one.

18 Q. Now, during the time-period that you were still at the VJ command

19 post with your major, at that time you didn't personally see or

20 eye-witness any acts of killing at the check-point. Isn't that correct?

21 A. I didn't see them kill anyone, but I did see them shoot next to

22 people; that is to say, when they throw them to the ground and then shoot

23 right next to them. I saw that several times because I went there several

24 times, here and there that is.

25 Q. And the entire time you were watching this from the VJ command

1 post, your major was in close proximity to you, since you were his

2 body-guard. Is that correct?

3 A. Well, we were in the yard, in the same yard that is. Well, I

4 can't explain this to you now, it's a little yard. Perhaps it's bigger

5 than this room perhaps. It's not more than, say, ten square metres.

6 There was this auxiliary building where the soldiers from the command

7 platoon were and then there was high grass there, too, and then the

8 commander didn't want to go that side.

9 He didn't want to get wet probably. So I was there on that road,

10 from the crossroads to the command post and in the yard. So it's that

11 area.

12 Q. So the entire time you were -- I believe you haven't answered the

13 question entirely. I asked you while you were watching this going on from

14 the VJ command post, was your commander, the major, with you? We're

15 talking about the time in the command post. I don't know how we got to

16 the tall grass in April.

17 A. Tall grass in this April; there was dew in the yard. That's what

18 I mean. We were all wet. The soldiers were wet. Now you're saying tall

19 grass in April. I was at the command post. That's the way it was, for

20 sure.

21 Q. And while you were at the command post, was your major with you,

22 in close proximity to you, during the time you were at the VJ command post

23 at all times?

24 A. Well, sometimes he was near me, sometimes I was a bit further away

25 from him. Sometimes close by, sometimes further away. But when I was

1 there, I was close to him; if I was not there, I wasn't. We talked about

2 that for the most part. Sometimes we talked -- well, he had his own work

3 to do and then I had my work to do, and that was it.

4 Q. Did he leave you with the impression that he had seen what you had

5 seen at the check-point?

6 A. I think so.

7 Q. Okay. Now, you talked the other day about various groups of men

8 that were allegedly separated, and you said that the earlier groups were

9 smaller in number and that the last group was eight to ten. Now, could

10 you please help clarify for us with respect to the sustained gun-fire that

11 you say you heard coming from the compound, does that relate just to the

12 last group of eight to ten persons that you said were separated and taken

13 there?

14 A. When I said a few moments ago I said I think he saw it, no, I'm

15 sure he saw what I saw, because he sent me to see what was going on with

16 these people as they were bringing these people. And I said it was

17 smaller groups -- well, sometimes two, three, five -- but in the last

18 group there were ten, eight to ten. So he what I saw and I saw what --

19 yes.

20 Q. Sir, we have very little time, and I'm trying to finish your

21 examination. I've asked a specific question, and I would appreciate a

22 specific answer to my question. When you stated that you heard sustained

23 gun-fire coming from the compound does that relate just to the last group

24 of eight to ten individuals that you say you saw were separated and taken

25 there?

1 A. No, the previous groups, too, that were taken away.

2 Q. So is it your testimony that there was sustained gun-fire from the

3 compound from 8.00 a.m. onwards until approximately what time?

4 A. No, no, from time to time. When they take people out there then

5 the shooting would start, but in the meantime as they were being taken

6 out, no.

7 Q. Well, sir, I'd like to ask you then to comment on the fact that

8 another witness for the Prosecution here, Mr. Pnishi at transcript pages

9 1470, line 18 through 1481 line 13 testified under oath that he watched

10 this same crossroad and the same check-point from his second floor house

11 position continuously that day until 10.30 a.m.; and, in fact, did not see

12 or -- did not hear the sustained gun-fire and, in fact, saw men alive

13 taken away from the school building where they had been separated.

14 A. Sir --

15 MR. HANNIS: I have an objection as to foundation. I'm not sure

16 that that question has established that we're talking about the same

17 location. Mr. Pnishi is apparently referring to a school. I don't know

18 that is the compound this witness is taking about.

19 JUDGE BONOMY: Well, the answer to the question --

20 THE WITNESS: [Interpretation] No, no, no.

21 JUDGE BONOMY: [Previous translation continues]... Mr. Ivetic, is

22 it? You're going to be able to make submissions about this and whether

23 this question answered won't make any difference to the strength of these

24 submissions.

25 MR. IVETIC: No problem.

1 Q. Mr. Witness, could you tell me with respect to the policemen you

2 say you saw at the compound that told you "deremo Siptare," could you tell

3 me if this person spoke with a local Kosovar accent?

4 A. I don't remember. I don't remember. But it's not that he said

5 that they took a knife and skinned the Siptars. He said "deremo Siptare,"

6 as in we're destroying the Siptars. Do you understand what I'm saying?

7 JUDGE BONOMY: You've answered the question. We don't need to go

8 back over what you've told us several times.

9 Mr. Ivetic.

10 MR. IVETIC: Thank you.

11 Q. Now, when you went to the compound and you entered it, how many

12 bodies did you see in there?

13 A. Not in the compound. This was an auxiliary building in the yard.

14 I went in through the gate as if I were to walk through that door over

15 there. The gate was on the other side and the auxiliary building was like

16 where the Trial Chamber is sitting now.

17 I walked into this area where there were, say, not more than three

18 or four people lying on the floor. I didn't enter the building. I didn't

19 go into the building, but what I saw in front of me is what I saw. I say

20 them lying in there.

21 Q. So am I correct, sir, that you looked through the gate leading

22 into the compound and did not actually enter the building?

23 A. No, no, no. I entered the yard. I entered the yard for sure.

24 JUDGE BONOMY: Stop.

25 Mr. Ivetic, when a witness tells you it's not a compound, then to

1 follow that up with a question about the compound is simply inviting him

2 to give us the same explanation yet again about why it's not a compound.

3 Let's try and concentrate on what you really want an answer to.

4 MR. IVETIC: I apologise, Your Honour, but yesterday all day it

5 was translated as compound to me.

6 JUDGE BONOMY: Yes. But you've got this explanation now that

7 inevitably will mean -- if you want to press that, of course, that's

8 another matter, but I think it's coincidental here to the main thrust of

9 the question.

10 MR. IVETIC: I agree.

11 Q. Sir, with respect to the building, the property where the building

12 was located, this auxiliary building, did you actually enter the yard or

13 did you look from the area where the gate was, look through the gate?

14 A. No, I entered the yard. I entered the yard, and on the left-hand

15 side there was --

16 JUDGE BONOMY: You've answered the question. Thank you.

17 MR. IVETIC: Thank you.

18 Q. How long were you there and were you alone.

19 A. No. Policemen were there. As for the military, I was there on my

20 own. It was four or five minutes, not more than that.

21 Q. Now, after you left there, did you in fact go to report this to

22 anyone in the MUP, any MUP superiors, since yesterday you testified that

23 there were no MUP superior officers at the location?

24 A. No, no, but I did tell my commander. He sent me there to see what

25 was going on over there.

1 Q. All right.

2 MR. IVETIC: For the last handful of questions, Your Honour, I

3 think we need to go into private session to protect the identity of this

4 witness.

5 JUDGE BONOMY: Thank you.

6 We shall go into private session

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1 [Open session]

2 THE REGISTRAR: We are in open session, Your Honours.

3 JUDGE BONOMY: Witness, you have a copy of your statement -- do

4 you have a copy of your statement in front of you?

5 THE WITNESS: [Interpretation] Yes, yes.

6 MR. HANNIS: Your Honour, I was about to say I have a copy now of

7 what we prepared to incorporate.

8 JUDGE BONOMY: Well, indeed, we'll come to that shortly.

9 Will you look, please, at paragraph 60 of your statement. Now,

10 paragraph 60 tells us what you've told us a moment ago, that your major

11 sent you down to find out what was happening; and then you go on to say

12 the policeman was very dismissive; and you then say that the policeman

13 told you something. Now, just look at me now. What was it the policeman

14 told you?

15 THE WITNESS: [Interpretation] He said to me: "Deremo Siptare."

16 JUDGE BONOMY: Well, I've got that. Perhaps the interpreter will

17 now tell me the English for that.

18 THE INTERPRETER: It can be interpreted in several different ways,

19 notes the interpreter. It can indeed mean: We are destroying the

20 Siptars. And it can literally mean skinning the Siptars as well, but it's

21 more likely that it's just destroying.

22 JUDGE BONOMY: Thank you very much.

23 Now, Mr. Hannis, you have prepared another copy of the statement.

24 Unfortunately, you haven't taken out the paragraphs that we already have

25 said we won't be paying any attention to, so you're going to have to

1 prepare yet another one after this.

2 MR. HANNIS: Well, yes, Your Honour, and we also would prepare a

3 redacted version of this one as well because of --

4 JUDGE BONOMY: Well, I understand that. But separately from our

5 point of view, paragraphs 2 to 23 will need to come out, since that was

6 part of the determination we made at the outset.

7 MR. HANNIS: I understand that, Your Honour, but I left the

8 numbers in because I thought it was important to keep the numbering

9 consistent.

10 JUDGE BONOMY: And I think you should still keep the numbering

11 because, otherwise, the transcript won't make any sense. So even though

12 you take out 2 to 23, this statement will go from paragraph 1 to paragraph

13 24 as the second paragraph. Now, you're about to give a copy of this to

14 the witness. Is that correct?

15 MR. HANNIS: I am, Your Honour. That was the first thing I wanted

16 to do. There is one matter I want to bring to the Court's attention

17 regarding the taking of the statement that one of the last questions --

18 JUDGE BONOMY: Yes.

19 MR. HANNIS: -- Mr. Ivetic asked about. I have tried to contact

20 the individuals involved, and from the information I have so far, Your

21 Honour, it appears there was a second interpreter who's not named on the

22 statement.

23 I have her name and I can provide that to the Court and Defence

24 counsel, who was present the first day with Bretton Randall who's named on

25 the statement, that he was involved in the portion of the statement

1 regarding Croatia and Kosovo -- Croatia and Bosnia.

2 I'm getting a head shake here, but let me finish and then maybe

3 the witness will add something.

4 And then my understanding is that John Zdrilic then completed the

5 interview with the second interpreter who is named on the document. We

6 haven't been able to contact Mr. Zdrilic nor reach the interpreter not

7 mentioned on the certification.

8 JUDGE BONOMY: Well, I don't know you should say any more about

9 this, because you can obviously re-examine on the point, and it may be

10 that that's the right way to go about this. And you may then have to

11 decide whether the state of the evidence is so confused that you need to

12 lead another witness later to clarify this.

13 It may not matter, though, because what matters is what the

14 witness says in court here and the accuracy of what is reflected in the

15 statement, rather than the means by which it was taken. However, it's not

16 beyond the bounds of possibility that the circumstances in which it was

17 taken could also cast some doubt on its reliability. You have to make

18 that assessment.

19 Today, he has amplified the confusion by saying that perhaps the

20 separation in time between the two dates wasn't quite as clear-cut as he

21 said yesterday. He's also said that there was somebody who appeared on

22 the second day that wasn't there on the first day; and, of course, the

23 statement doesn't indicate that anyone extra arrived only for the second

24 day.

25 There were perhaps people there only for the first day, according

1 to the front of the statement, but not the second. So there may be things

2 that you wish to clarify or try to clarify, or you may decide that you'll

3 settle for what's already there. That's a matter for you.

4 So let's now pass over the statement. Now, how will this be

5 numbered, Mr. Hannis? Is this P2391A perhaps?

6 MR. HANNIS: I think this will be P02646, a completely new and

7 different number has assigned to it.

8 JUDGE BONOMY: All right. And you want now to examine the witness

9 about the extent to which what you've now incorporated resolves his

10 concern about the accuracy of the statement?

11 MR. HANNIS: Correct, Your Honour. This, as I understand it, it

12 has been assigned that number but it's not in e-court yet, because we're

13 trying to get the ERN numbers stamped on it and we would put it in after

14 that process has been done. And maybe removing paragraphs 2 to 23 as you

15 suggested, we'll do that as well.

16 Re-examination by Mr. Hannis:

17 Q. Witness, I've handed you now a copy of your statement; and if

18 you'll be patient with my for a moment, I want to go through the changes

19 we've made and see if they address all the concerns you had raised

20 concerning that. Now, some of these we talked about before. The first

21 one was paragraph 28. We changed that to read the "549th Motorised

22 Brigade." Correct?

23 A. Yes, yes.

24 Q. And paragraph 36 regarding the use of an air-freshener can as a

25 sort of flame-thrower, we added the words "in this situation we used," to

1 explain that it was only on this occasion. Is that correct?

2 A. I said "iskoristili" which means we used once. You said

3 "koristili" which means we used continuously or more than once, but I

4 don't object to this. Yes, yes.

5 Q. I'm sorry. I heard some conversation between counsel and --

6 JUDGE BONOMY: Mr. Bakrac.

7 MR. BAKRAC: [Interpretation] Your Honour, I think this is a big

8 difference. The witness said "iskoristili" which means we used on one

9 just one occasion situation, on that occasion; whereas, here it says in

10 such situations "koristili" we used. This is a form which indicates it

11 was done regularly, not more than once; whereas, the form of the verb used

12 by the witness would indicate it was used just in that situation on only

13 one occasion. And I see that the witness is nodding in confirmation of

14 this.

15 THE WITNESS: [Interpretation] Well, that's what I said, yes.

16 JUDGE BONOMY: What we'll do is we will alter this so that we

17 delete the words "in this situation," and we will add the word "an" after

18 "used," so it reads "we used an aerosol freshener can," or change "can"

19 to the singular. And, of course, The witness has amplified that in

20 explaining the situation in his evidence, it will be taken along with the

21 statement. And I think that accurately reflects what can be included in

22 the statement.

23 MR. HANNIS: Thank you.

24 Q. And, Witness, in paragraph 39, we had omitted a reference to the

25 man from the Territorial Defence. In your original statement, you said he

1 worked in the territorial building -- in the municipality building. We

2 omitted that.

3 And in paragraph 41, we added a sentence to the first sentence to

4 say: "It was not my unit's primary task;" and then the fourth sentence we

5 added: "My major never ordered the expulsion of villagers; that is to

6 say, to have them expelled to Albania."

7 A. To Albania. It would have been better if you had said: "My major

8 never ordered the relocation of villagers." You say "expulsion."

9 Expulsion bears a different connotation in relation to relocation. What I

10 said was "relocation" not "expulsion." We agreed there was no expulsion;

11 there was only relocation.

12 JUDGE BONOMY: I don't understand your comment just now. I

13 thought that you accepted that people were told to move in their own

14 interests, and you described that as relocation.

15 THE WITNESS: [Interpretation] Yes.

16 JUDGE BONOMY: All that Mr. Hannis has done is make it clear that

17 expulsion was never ordered.

18 THE WITNESS: [Interpretation] Very well. In that case, it's all

19 right, yes. If that's how it is, then I agree. Yes.

20 MR. HANNIS:

21 Q. And then in paragraph 43 and 44, we changed the word "expelled" or

22 "expulsion" to "relocation" and to "relocate."

23 A. That's all right, yes.

24 Q. Then in paragraph 43, we also changed "most of the villages" to

25 "some of the villages" in the first sentence.

1 A. Yes. Yes, that's all right.

2 Q. Thank you. And in --

3 JUDGE BONOMY: Well -- sorry, carry on.

4 MR. HANNIS:

5 Q. In paragraph 45, where there was discussion about the looting, we

6 have added a sentence to say: "It was not all the troops that were doing

7 that; it was just individuals."

8 A. That's all right.

9 Q. In paragraph 46, we added at the end of the paragraph: "What I

10 state in this particular paragraph is not my direct knowledge but

11 knowledge I obtained from other people."

12 A. That's all right, yes.

13 Q. Then in paragraph 47, we changed the next-to-the-last sentence

14 regarding the Frenki's to now read: "They included PJP units and two or

15 Frenki's, Frenkijevci, in a car."

16 A. I said I saw two men in small hats, the kind of small hats that

17 the units were special operations wore, and that's how it should stay.

18 Q. It goes on. You'll see the rest of the paragraph. It goes on: "I

19 recognised the Frenki's men in their uniform. I swapped a cigar for some

20 water and cigarettes. They wore the familiar Frenki's hats." Is that

21 okay?

22 A. Yes, yes. That's correct. And masks.

23 JUDGE BONOMY: Well, that doesn't need to be added because you've

24 given that evidence, and we have a record of it in any event.

25 MR. HANNIS:

1 Q. And then in paragraph 52 --

2 JUDGE BONOMY: Just before moving from that --

3 MR. HANNIS: Yes.

4 JUDGE BONOMY: -- it's not clear to me that the witness was saying

5 they were recognisable as Frenki's. He's saying they were part of a

6 special operations unit. Now, are you saying that that special operations

7 unit was known as Frenki's?

8 THE WITNESS: [Interpretation] No, no, no.

9 JUDGE BONOMY: So why --

10 THE WITNESS: [Interpretation] PJP is the PJP; whereas, a unit for

11 special operations or SAJ is a --

12 JUDGE BONOMY: Yes, are you saying the SAJ?

13 THE WITNESS: [Interpretation] JSO.

14 THE INTERPRETER: Interpreter's correction.

15 THE WITNESS: [Interpretation] It is a JSO.

16 MR. IVETIC: Your Honour, if I can, hopefully, clear up the

17 confusion. I think there was an error in translation. Your question to

18 him was translated as: Are you saying that the PJP were Frenki's men

19 rather than the special operations unit.

20 JUDGE BONOMY: Well, I thought I was talking about an SAJ. Is

21 that wrong?

22 MR. IVETIC: He did mention them as well yesterday, Your Honour,

23 so I don't know.

24 JUDGE BONOMY: Is that not what is meant by a special operations

25 unit?

1 MR. IVETIC: It is not. The SAJ is the special anti-terrorist

2 unit.

3 JUDGE BONOMY: Sorry, that's my mistake.

4 All I want to be clear about from you, Witness K90, is what you

5 are meaning by your reference to two Frenki's in a car. What unit did

6 they belong to?

7 THE WITNESS: [Interpretation] Judging by their uniforms, Your

8 Honour, they should have been JSO; but where they came from, I don't know.

9 We saw them on the road, on the crossroads there. We exchanged cigarettes

10 and water, and then they went off in the direction of the village of

11 Korenica. That was all the contact I had with those men.

12 JUDGE BONOMY: All right. Why did you use the expression "two

13 Frenki's"? Why did you call them that?

14 THE WITNESS: [Interpretation] Because of their hats and because of

15 their uniforms.

16 JUDGE BONOMY: All right. Thank you.

17 Move on, please, Mr. Hannis.

18 MR. HANNIS: Thank you, Your Honour.

19 Q. Paragraph 52, Witness, we -- in the first sentence, we changed the

20 number of Albanian civilians to "around 500."

21 A. Yes, yes.

22 Q. In paragraph 55, we added in the second sentence: "They only

23 forced the last group to sing, not all of them."

24 A. Yes, that's correct.

25 Q. And --

1 A. And in 52, you also changed that part of my unit was deployed.

2 You said "men" the first time, but now what you say is correct.

3 Q. That's correct. We had changed "people" to "KLA." I'm sorry, I

4 missed that one in paragraph 52. That was the sentence that began:

5 "There's a small creek and they were to ensure that KLA did not escape."

6 And then paragraph 60 --

7 A. Yes, that's correct.

8 Q. -- we had changed the English where it had said: "Slaughtering

9 Siptars" to "skinning Siptars," which I now understand may be translated

10 as "destroying Siptars." And we added a sentence: "I understood that to

11 mean they were killing them." Is that correct?

12 A. What you just said, I agree with that, but here you said

13 "skinning." I didn't say -- I didn't say peeling their skin off; I just

14 said peeling. I gave you an example. I'll give you an example. For

15 example, you can say that Manchester skinned somebody else in football.

16 That's what I meant.

17 MR. HANNIS: Your Honour, I'm in your hands on how to deal with

18 this one.

19 JUDGE BONOMY: Well, as far as the statement is concerned, we will

20 change "skinning Siptars" to "slaughtering Siptars" and we'll take out the

21 next part, so that we're simply expressing his understanding of what the

22 witness said -- the policeman said rather than the exact words.

23 MR. HANNIS: All right.

24 Q. And then, Witness, in paragraph 61, we added at the end: "Only

25 the last group had eight to ten men."

1 A. Yes, that's correct.

2 JUDGE BONOMY: I wonder, though, if you've read carefully the

3 previous sentence. If you look at the previous sentence where it says: "I

4 personally saw at least four groups of men being taken to the compound and

5 they number from five to over ten men." Now, is that accurate?

6 THE WITNESS: [Interpretation] I wrote in my statement and I said

7 to the Defence and I said to you when questioned by the Prosecutor that

8 there were two, three, or four men. There weren't ten or eight every

9 time. It was a small number. It was only the last group that there were

10 eight to ten men, and that's what I said to the Prosecutor during the

11 proofing.

12 JUDGE BONOMY: So we will delete from this "and they number from

13 five to over ten men." We don't need to add anything. It's been

14 explained in his oral evidence.

15 MR. HANNIS: I agree.

16 So, Your Honour, should I omit the last change we made about the

17 only the last group?

18 JUDGE BONOMY: No, no, leave that.

19 MR. HANNIS: All right. Thank you.

20 Q. And, Witness, I didn't make any other changes. Is there something

21 else that should be changed?

22 A. Are you going to redact what we agreed to redact in the last

23 statement? Names and so on?

24 Q. Yes. The version that we propose to file publicly will be

25 redacted as that first one was, those portions relating to names that you

1 don't want --

2 A. In that case, I agree. Yes, that's okay.

3 Q. Then having said that, are you satisfied and can you now attest to

4 the Court that this statement as we modified it today is your declaration

5 and is the evidence that you would give in this case?

6 A. Yes, yes.

7 Q. Thank you?

8 MR. HANNIS: Your Honour, once we've prepared the changes that we

9 made here today, then we would tender it.

10 JUDGE BONOMY: One moment.

11 MR. HANNIS: Yes.

12 [Trial Chamber confers]

13 JUDGE BONOMY: Is there -- yes, Mr. Ackerman.

14 MR. ACKERMAN: Your Honour, this may be more in the nature of a

15 comment than an objection, but it seems to me that this process we've gone

16 through with regard to this statement is similar to a long visit to a

17 dentist. And it seems to me that where we've gotten now is that this

18 statement as it exists now is nothing more than a -- an inartful summary

19 of the live testimony that the witness has given in his testimony, and

20 that it really does not provide any kind of an independent piece of

21 evidence.

22 And, therefore, I think maybe we've gone beyond 92 ter with the

23 way this has all been handled and maybe the statement really serves no

24 useful purpose at this point. But I'm not making a specific objection. I

25 just think that 92 ter has been exceeded dramatically by the live

1 testimony that's gone on here.

2 JUDGE BONOMY: Are any other comments to be made by Defence

3 counsel?

4 The point you make, Mr. Ackerman, is a lesson I think to be

5 learned from this. I made some comments about it yesterday. Where the

6 evidence of a witness is to be tendered partially in writing, then there

7 is an obligation to be careful in the preparation of that. Prior to this

8 trial starting I spent a great deal of time in a different context trying

9 to urge the Prosecution to prepare statements for court at an earlier

10 stage in the pre-trial process, and, indeed, in the course of the

11 pre-trial process in this case I made the same point. Unfortunately, for

12 reasons that are I think matters entirely for the discretion of the

13 Prosecution, that didn't happen.

14 This has been a very unsatisfactory exercise in relation to this

15 witness; however, we are sympathetic to the situation Mr. Hannis has found

16 himself in, and we're going to take a moment to consider what exactly we

17 should do for this statement. We are, however, quite clear in our view

18 that in future we are unlikely to demonstrate the same patience, and it

19 may be that the Prosecution, faced with a similar situation, will have to

20 abandon the statement and take everything live to avoid the rather, I

21 think, untidy exercise that's taken place here.

22 So you should take careful note of that, Mr. Hannis, for the

23 future. I repeat, though, we are sympathetic to the situation you found

24 yourself in this case, and we will take that into account when deciding

25 the motion whether to admit the statement.

1 [Trial Chamber confers]

2 JUDGE BONOMY: Mr. Hannis, we will admit P2646, but it -- at the

3 moment it's marked for identification pending the submission of its final

4 form. And we order you to have that in our hands before the close of

5 business today, and we allow the Defence until the end of tomorrow to make

6 any comment about it. Now, that comment could only possibly be about

7 something that you have changed or altered or whatever. We've had all the

8 comments on the statement as it stands; but if there's something

9 extraneous happens, then the Defence will have that 24 hours to comment.

10 In the absence of comment, then it will then be admitted. But at the

11 moment it's marked for identification.

12 We also think it right to make clear to you at this stage that we

13 will have particular difficulty dealing with this witness's evidence in

14 the form of the combination of oral evidence plus the written statement

15 because of the confusion that there has been along the way, caused by the

16 general circumstances, including, I suppose, just the way this particular

17 witness presents himself. That's not a criticism of him. It's his

18 personality, possibly.

19 We will have to evaluate that in due course, but it does underline

20 the importance of deciding in which cases to use written statements and in

21 which cases to present the evidence entirely viva voce. However, in

22 recognition of what has happened in this case, all we say is that at this

23 point we will have particular difficulty in dealing with it. So you will

24 have to, in your submissions, have particular regard to that point and

25 assist us from both sides to come to the right conclusion in deciding

1 which of the statements he has made, both oral and written, we ought to

2 accept and which we cannot accept.

3 Now, the next stage before you continue, Mr. Hannis, is to ask

4 counsel for the Defence whether the admission of this statement in its

5 revised form gives rise to the need for further cross-examination. No one

6 seeks to cross-examine; therefore, Mr. Hannis, if you have further

7 re-examination you should continue with that now. And are we in open

8 session?

9 THE REGISTRAR: We are in open session, Your Honours.

10 JUDGE BONOMY: Please continue, Mr. Hannis.

11 MR. HANNIS: Thank you, Your Honour. Before I continue I want to

12 thank you for that because I think it would have been -- it would have --

13 there were particular circumstances in this situation and I appreciate

14 your recognition of that.

15 It would have made it very difficult if you had decided to exclude

16 the statement because there were portions in his

17 statement that I didn't lead evidence on if I had known the decision would

18 be not to consider it. Thank you.

19 Q. Witness, Mr. Ackerman, the first lawyer to ask you questions on

20 the other side of the room, yesterday asked you several questions about

21 your statement and your proofing session with the Prosecution, with me and

22 Ms. Neema here. Your statement was delivered to your hotel room last

23 Thursday and placed under your door; correct?

24 A. Yes, yes.

25 Q. And on last Thursday you refused to come to the office for a

1 proofing session because you hadn't eaten or slept for a couple of days is

2 the information I had. Is that correct?

3 A. I didn't refuse. I was ill. When you ask me this, you lead me to

4 say to the Court how it came about that I came here. Your Honours, I gave

5 the statement as it says here in 2002. I never had any further contact

6 with the OTP. On the 12th of September --

7 JUDGE BONOMY: Please, please. The question is a simple one.

8 Whether you were unwilling to go to the office to go over the statement

9 because you weren't up to it, having neither eaten nor slept for a couple

10 of days. Is that correct?

11 THE WITNESS: [Interpretation] Yes, yes. That's correct. I was

12 ill. I wasn't feeling well. That's why I didn't come.

13 JUDGE BONOMY: You and I probably agree that the Prosecution

14 should have had you back earlier to take the statement and get it sorted

15 out. You don't need to tell us that. Just concentrate on the questions

16 that are being asked and answer them to the best of your ability.

17 Mr. Hannis.

18 MR. HANNIS:

19 Q. Witness K90, you didn't want to be here at all; correct?

20 A. That's not correct. That's not correct. If I offered to give the

21 statement, if I gave it of my own accord, my first contact with you was on

22 the 12th of September. I was travelling, and you sent the police to

23 subpoena me.

24 We had had no contacts between 2002 and that point in time; then I

25 asked you to give me time to get a passport, to prepare. You live in an

1 orderly country. You need to prepare everything for your family in our

2 country. You need to prepare firewood, you need to prepare food for the

3 winter, and so on; you need to get money and so on.

4 Q. When you say --

5 A. Sir, if you had warned me in time, but you told me on the 16th of

6 January. A friend of mine died. I attended the funeral. You said: "No

7 problem. We will tell someone among your authorities to arrest you." And

8 I said: "No problem." Two hours later somebody from your office called

9 and said: "Can you come on the 23rd?" And I said, "No problem when I

10 come back." Because on the 20th was my family's patron saint's feast. I

11 couldn't travel then because people would come to visit my family.

12 I don't know if you participated in that, but somebody said it

13 would be after the 25th. Do you understand? And then it was suddenly the

14 23rd. First the 26th, then it was December, then it was November, then it

15 was the 25th, and then it was the 23rd. And every time you called me you

16 changed the date when I was supposed to testify and all under pressure and

17 coercion.

18 Until I met you here, not for a single moment was the conversation

19 correct and honest. I told the lady sitting on your right the first

20 proper contact and correct contact with the OTP was with you. Every since

21 I began contacting the Prosecutors and the investigators. So my first

22 proper contact, correct contact were with you and this lady.

23 Q. When you say "you," all those contacts with you and the OTP from

24 September until just before you got here, you were talking not with me

25 personally but with an investigator from the OTP; correct?

1 A. Not with you. The first time I spoke to you was when I came here,

2 not before that.

3 JUDGE BONOMY: Was one character reference not good enough for

4 you, Mr. Hannis?

5 MR. HANNIS: Depends on the source, Your Honour.

6 Q. Witness, so the first time that you met me and Ms. Neema was on

7 Friday last week when we had the proofing session?

8 A. That's correct, yes.

9 Q. And were you satisfied with the treatment you got during that

10 interview? I mean, you were offered drinks and food.

11 A. Absolutely, absolutely.

12 Q. Now, did you experience any problems in the interpretation when we

13 were doing the proofing session? Did the young lady there seem to be

14 doing a good job at interpreting?

15 A. No, no problems. It was very correct. I said a few days ago my

16 contact with you and the lady was very correct. It was the first good and

17 correct contacts I had had with the OTP, the first one.

18 Q. And would it be fair to say when you first arrived on Friday and

19 met us to start that proofing session, you were still pretty upset,

20 excited, and agitated about everything that had happened since September

21 in dealing with the OTP?

22 A. Yes, yes.

23 Q. All right. Now, yesterday, when Mr. Ackerman was asking you some

24 of those questions about what you told me during the proofing session, at

25 page 9372 being asked about the expulsion issue you said: "I can't

1 remember everything. I can't remember exactly what we discussed." Was

2 that -- is that a fair statement?

3 A. Who talked about what? Discussed what? You? Me?

4 Q. And is it fair to say -- is it fair for you to say that you can't

5 remember everything that was discussed on Friday?

6 A. I remember what you and I talked about. We talked about the

7 statement itself for not more than one hour. As for other things, we

8 talked about it a lot more. I mean, I was there, or rather, you went

9 about your own business and then you would come back. As for the

10 statement, you put ten questions to me not more than that. I told you

11 then: "No, it was not expulsion; it was relocation." [Realtime

12 transcript read in error "No, it was expulsion, not relocation"]. And we

13 agreed on that I think, and we agreed on other terminology, too, I think.

14 I have my statement in the hotel, the one I brought you when I was

15 there. On that statement, some changes were made which are now contained

16 in the last paper you gave me. I thought that once you blackened that

17 then that's the way it would be.

18 Q. Did anyone, Ms. Neema or I, ever refuse to make any of the changes

19 you were asking for?

20 JUDGE BONOMY: Mr. Bakrac.

21 MR. BAKRAC: [Interpretation] Your Honour, an important

22 intervention for the transcript. It's the other way around the witness

23 said. Here it says: "We agreed that it was expulsion and not

24 relocation." The witness said that we agreed that there was no expulsion,

25 that it was relocation. So the transcript line is line 17.

1 JUDGE BONOMY: That's helpful. Thank you.

2 MR. HANNIS: Thank you.

3 Q. Now, Witness, I want to move on to some questions that

4 Mr. Ackerman asked you beginning at page 9375, line 8. There was a long

5 discussion about looting and that portion of your statement. And you said

6 that there were individuals who were engaged in looting, but actually

7 looting was a widespread problem during the conflict and it was quite

8 common, wasn't it?

9 A. Well, you have to understand. Do you think that only our army was

10 looting and that only our army loots? People, if you have so few officers

11 in the field, they physically simply cannot keep everything under the

12 control. People, we did not all go there with the same intentions.

13 There are thieves everywhere, absolutely everywhere, in any

14 country in the world. And -- well, if you catch a thief, you send him to

15 prison; if you don't catch him, then he'll go on stealing. There is no

16 big philosophy about that. A thief is a thief, right? Here or there or

17 in our country or wherever.

18 JUDGE BONOMY: I wonder if you're really being fair to military

19 people in general, Witness. I would be quick to accept your assertion

20 about human nature, but are you suggesting that it's commonplace among

21 regular military forces to loot?

22 THE WITNESS: [Interpretation] Sir, Your Honour, you cannot --

23 well, I'm not claiming that all people steal. You cannot say that the

24 Army of Yugoslavia are thieves. I'm not a thief and these men who a

25 sitting here are officers, they're not thieves. So it's quite illogical.

1 There are individuals everywhere who steal. A thief is a thief; that's

2 it.

3 So who steals is a thief, but you cannot generally say that an

4 entire army was looting. I was not looting. I wouldn't be the way I look

5 now, like a church mouse. I have three children. I wouldn't look that

6 way if I was stealing. I was in Croatia, Bosnia, Kosovo. I could have

7 acted differently, but I mean what is there to be said about it any more

8 than that?

9 [Trial Chamber confers]

10 JUDGE BONOMY: Yes, Mr. Hannis.

11 MR. HANNIS: Thank you.

12 Q. One of the points I'm trying to suggest, Witness, is that for the

13 VJ at that time, in terms of problems of criminal behaviour by soldiers,

14 looting was one of the -- one of the biggest, if not the biggest, problem

15 for the army. Would you agree with that?

16 A. Well, I agree. Sir, these men who came as reservists, well, they

17 were probably thieves even while they were civilians. Before -- I'm sure

18 that he didn't do anything right before that if he went out there to

19 steal. But he was summoned by the Territorial Defence, called up by the

20 Territorial Defence. They sent him out into the territorial unit.

21 How can the commander know who that man is until he commits a

22 crime and then the security organs check him out and hears about it much,

23 much later. If he was a thief there, I imagine that he was a thief while

24 he was still a civilian. That's what I think, but that is what I think

25 for sure. A thief is a thief. If he is used to steal, he is going to

1 steal whenever he has an opportunity, no doubt about that.

2 But then there were others who went to search apartments for other

3 reasons. They were looking for what I told you about last time, drugs.

4 There were drug addicts there. I saw this neighbour of mine there who was

5 a drug addict and that's the only reason why he went out there. I had

6 such a lot of trouble trying to save him. You would not believe all the

7 things happened.

8 Q. Thank you.

9 MR. HANNIS: Your Honour, in connection with this, Exhibit 962 was

10 tendered in the Prosecution case and I think there was some reference to

11 it in the cross-examination. This is General Delic's list of criminal

12 reports against perpetrators in the 549th Motorised Brigade for the period

13 from May 1998 to July 1999. And Your Honours will review that and see

14 there are 132 separate items in there; 73 relate to theft in various

15 forms.

16 Q. Now, at page 9391, Mr. Ackerman asked you about the war diary

17 entry for the 27th of April regarding the wounding of two soldiers, and

18 Mr. Visnjic also asked you about that I think at page 9432. Now, Witness,

19 we talked about two soldiers that were wounded on one day, and then

20 another soldier that was -- that you knew personally.

21 Your position is: In spite of what the war diary says about that

22 being two incidents on two different days, your memory -- you say all

23 three were injured on the same day. Is that correct?

24 (redacted) I know when he

25 was wounded. As for the two, I went with an ambulance to put them into

1 that ambulance. To this day I claim it was on the same day. I don't know

2 what's written there, but as far as I remember it's the same day.

3 I already said that I don't know what date it was and then you

4 told me that it was the 27th or the 28th; but like the other day, I'm

5 saying that that's the way it was. So there's no change in that regard.

6 Q. And are you certain that you personally were only out there at the

7 command post and at that blockade on one day?

8 A. I'm sure that I was at that blockade only one day, for sure, and

9 not throughout the day, not the whole day at that.

10 Q. If the war diary indicates that some parts of the battalion were

11 engaged in that blockade for as many as three or four days, you don't --

12 you personally weren't out there for that period of time. But can you say

13 whether or not other elements of your battalion were out there for three

14 or four days?

15 A. I don't know. I don't know about that. Possibly, but I don't

16 know about that. I don't know anything about that for sure. I was there,

17 on that road, where that incident occurred, the one that I testified

18 about, only on that day, not before, not later. Sir, I went there the

19 following day. I went there the following day. After the blockade was

20 over, I went there the following day. I think I told you that. Remember.

21 There wasn't any army there. There wasn't anybody.

22 Q. You were asked by Mr. Visnjic about being the squad commander.

23 What was your rank? Did you have a rank? Were you just a private? A

24 corporal?

25 A. I was a sergeant. I have my military booklet. If necessary, I'll

1 bring it -- I'll send it, rather. That's what's written in it, too.

2 MR. HANNIS: Finally, I, with some trepidation, would like to show

3 the witness Exhibit P1326. This was not one that was listed on my list of

4 exhibits to show this witness, Your Honour. It is a picture of various

5 uniforms and it deals with the issue of the hat.

6 We have seen this exhibit. It is in evidence. I just want to

7 show it to the witness and ask if a hat portrayed in one of those

8 photographs looks like the hat that he's been trying to tell us about.

9 JUDGE BONOMY: Very well, Mr. Hannis.

10 MR. HANNIS:

11 Q. Witness, you'll see on your screen in a minute, I hope, a picture

12 of -- well, a composite -- several pictures of men in uniform. I would

13 like you to take a look at number 8 and tell us anything you can about the

14 hat you see on the man in that picture. Do you see number 8 in the lower

15 left-hand corner?

16 MR. IVETIC: In that's going to be the question, then I object to

17 that question: Tell us anything you can about the hat.

18 THE WITNESS: [Interpretation] This is the little hat.

19 JUDGE BONOMY: Hold on a second, please.

20 THE WITNESS: [Interpretation] If you enlarge it, I think that's

21 the hat.

22 JUDGE BONOMY: Please pause for a moment. Thank you.

23 What's your objection, Mr. Ivetic?

24 MR. IVETIC: Well, the question that was asked was look at that

25 picture and tell us, if you can, anything at all about the hat. I think

1 that -- that question is improper. It calls for speculation, but, you

2 know, he answered it shortly so.

3 JUDGE BONOMY: That was not a wise question in this context,

4 Mr. Hannis. It would have been much fairer, I think, to say: Look at all

5 these pictures and tell us if you can identify the hat anywhere. I

6 suppose, mind you, it may be the only one with a hat that could possibly

7 fit the bill.

8 MR. HANNIS: No pun intended, Your Honour.

9 JUDGE BONOMY: Well, you may have substantially weakened the point

10 you're trying to make.

11 MR. HANNIS: Well, Your Honour, I understand the objection. I

12 understand the point, but this is not a situation where I'm asking someone

13 to identify the bank robber. And there's been other evidence in this case

14 about this.

15 JUDGE BONOMY: No. We will take note of the objection, which may

16 become a comment in due course, and we'll allow you to ask a question.

17 MR. HANNIS: Thank you.

18 Q. Have you looked at that photo and can you tell us anything about

19 that?

20 JUDGE BONOMY: Now, the witness would like it magnified.

21 THE WITNESS: [Interpretation] Can you have it enlarged, this

22 picture.

23 MR. HANNIS:

24 Q. How's that?

25 A. It's better, but I think it's pretty similar to that little hat.

1 It's blurred, but he had a similar little hat and a similar mask. I see

2 it a bit better now. I think it's it though it's blurred.

3 He had a mask on his face and that kind of little hat, perhaps not

4 this way but similar or just like that. I don't know. I mean, I think

5 that that's the hat, since I cannot see it very well, but I think that's

6 it.

7 Q. Thank --

8 A. I am sure about the mask.

9 Q. Thank you.

10 MR. HANNIS: Your Honour, I have more questions for this witness.

11 JUDGE BONOMY: Thank you.

12 K90, that completes your evidence -- sorry, Mr. Visnjic.

13 MR. VISNJIC: [Interpretation] Your Honour, I have an objection to

14 some of the Prosecutor's exhibits, so I don't know whether it's a good

15 idea to do it while the witness is still here or once he leaves the

16 courtroom.

17 JUDGE BONOMY: Which exhibits?

18 MR. VISNJIC: [Interpretation] 1596, 1599, and 1600, photographs.

19 It is photographs of different persons in uniform; and in view of the

20 testimony of this witness regarding some of these photographs, perhaps it

21 would be expedient if the Prosecutor were to give us the source of these

22 photographs.

23 If the Prosecutor provides us with this information, then this

24 objection of mine perhaps may become irrelevant. I'm referring to the

25 part of the testimony where the witness said that some of these

1 photographs were taken in Bosnia.

2 JUDGE BONOMY: Well, as -- yes, Mr. Hannis. Sorry.

3 MR. HANNIS: Your Honour, my understanding is those three are

4 already in. I think they were admitted on September 13th with Witness

5 K73.

6 JUDGE BONOMY: But on their own, they prove nothing, Mr. Visnjic.

7 They're only there to set context so far as this witness is concerned for

8 the comments he's made. You're absolutely right that if the Prosecution

9 wish to suggest that they portray people involved in the conflict in

10 Kosovo, they have to prove that.

11 I don't know if that's happened at an earlier stage in the context

12 Mr. Hannis refers to, but it certainly didn't happen in the context of

13 this witness.

14 MR. HANNIS: That's correct.

15 JUDGE BONOMY: So I think you need to have no concerns about that,

16 Mr. Visnjic.

17 MR. VISNJIC: [Interpretation] Thank you, Your Honour.

18 JUDGE BONOMY: Well, K90, that does complete your evidence. We

19 appreciate the difficulties that have faced you in making arrangements to

20 come here. We thank you, nevertheless, for being here to give evidence

21 and to assist the trial process. You're now free to leave. Thank you.

22 We'll go into closed session for that purpose.

23 [Closed session]

24 (redacted)

25 (redacted)

1 (redacted)

2 (redacted)

3 (redacted)

4 [Open session]

5 THE REGISTRAR: We are in open session, Your Honours.

6 JUDGE BONOMY: The next witness, Mr. Hannis.

7 MR. HANNIS: Your Honour, the next witness will be Ambassador

8 Vollebaek, who will be led by Mr. Marcussen. I see we're about five

9 minutes before the break. I wanted to raise with you an issue with the

10 following witness, the protected witness. If there's a chance we're going

11 to begin him today, I don't know when you might want to address the

12 pending issue of protective measures.

13 JUDGE BONOMY: I think we should deal with it immediately before

14 we hear the witness or at least later today and that we should make

15 progress with the evidence of the next witness. But it may be that now's

16 the time to take the break. I don't disagree with that. Perhaps we can

17 review the timing. How long do you envisage being with the witness,

18 Mr. Marcussen?

19 MR. MARCUSSEN: Your Honour, I don't think I'm going to have more

20 than half an hour or something like that with the witness.

21 JUDGE BONOMY: Do you have any idea overall of the

22 cross-examination, Mr. O'Sullivan?

23 MR. O'SULLIVAN: We haven't consulted on that, Your Honour, but I

24 don't expect it to be very long.

25 JUDGE BONOMY: All right. Well, we'll break now and we'll resume

1 at quarter to 11.00. One other thing I should clarify for tomorrow, the

2 sessions will be slightly differently timed tomorrow because of internal

3 administrative arrangements. We will sit only for an hour for the first

4 session and we will break between 10.00 and 10.30. We'll then sit from

5 10.30 till 12.00 and break to 12.20 probably, and sit from 12.20 to either

6 1.45 or 1.50, so effectively the same time but distributed differently

7 throughout the day.

8 We'll now adjourn until quarter to 11.00.

9 --- Recess taken at 10.26 a.m.

10 --- On resuming at 10.47 a.m.

11 [The witness entered court]

12 JUDGE BONOMY: Good morning, Mr. Vollebaek.

13 THE WITNESS: Good morning, Your Honour.

14 JUDGE BONOMY: Would you please make the solemn declaration to

15 speak the truth by reading aloud the document which will now be placed

16 before you.

17 THE WITNESS: I will.

18 I solemnly declare that I will speak the truth, the whole truth,

19 and nothing but the truth.

20 JUDGE BONOMY: Thank you. Please be seated.

21 THE WITNESS: Thank you.

22 JUDGE BONOMY: We have already read a statement that you gave

23 admittedly some time ago to the Office of the Prosecutor. We have also

24 read the transcript of your evidence in the trial of Slobodan Milosevic.

25 With that information before us, it's likely that examination by the

1 Prosecution will be fairly brief.

2 I understand that the cross-examination may not be lengthy, but

3 it's impossible at this stage for me to tell you how long that will be.

4 Best plan is to get started.

5 THE WITNESS: Very good.

6 JUDGE BONOMY: And the first person to examine you will be for the

7 Prosecution, Mr. Marcussen.

8 Mr. Marcussen.

9 MR. MARCUSSEN: Thank you, Your Honour.

10 WITNESS: KNUT VOLLEBAEK

11 Examination by Mr. Marcussen:

12 Q. Ambassador Vollebaek, thank you for making time available to come

13 and testify for us. I know you have a busy schedule and that it was

14 difficult to squeeze us in. Ambassador Vollebaek, before testifying

15 today, have you had a chance to review your statement that you gave in

16 January 2002 to the Office of the Prosecutor?

17 A. Yes, I have.

18 Q. And when you reviewed the statement, did you note that there was

19 an error in a date in paragraph 71 of that statement? And I'll give you a

20 copy of the statement. I'll just open it on the right page.

21 A. Thank you.

22 Q. At paragraph 71, a little under the middle, there's a reference to

23 November 1999. Am I correct that that should have been November 1998?

24 A. You are correct. I took over as chairman in office from the

25 beginning of 1999, and we had this meeting in Oslo at the end of 1998.

1 Q. Thank you. Now, apart from this correction to the statement, does

2 the statement correctly reflect what you would declare and say if you

3 today were examined on the points in this statement?

4 A. It does. The English could be -- have been a little bit more

5 elegant, but the content is correct, yes.

6 Q. Thank you.

7 MR. MARCUSSEN: I would then seek to tender the statement.

8 JUDGE BONOMY: And its number is?

9 MR. MARCUSSEN: It's number is P2634.

10 JUDGE BONOMY: 34 did you say? 4?

11 MR. MARCUSSEN: Yes, 4.

12 JUDGE BONOMY: Thank you.

13 MR. MARCUSSEN:

14 Q. And, Ambassador Vollebaek, did you also have a chance to review

15 the transcript of your testimony in the Milosevic case on the 8th of July,

16 2002?

17 A. Yes, I have.

18 Q. And am I correct that you also discovered one error in that

19 transcript; namely, at page 7657 at line 13, there is a problem. Is that

20 correct?

21 A. That is correct, yes.

22 MR. MARCUSSEN: Now, Your Honours, the transcript that I'm

23 referring to has been uploaded into e-court, and just for reference it is

24 P2632. And the page number that I gave before from the Milosevic

25 transcript corresponds to page 23 of the exhibit, Exhibit P2632. Now, at

1 line 13 of the transcript, there's a sentence that says --

2 Q. You're talking about your meeting with Milosevic and the issue of

3 whether or not an international force could be placed in Kosovo, and

4 there's an issue about whether or not that is being imposed on Milosevic

5 or not.

6 And then you say: "And I tried to tell him that it wasn't by

7 invitation," and that should have read: "I was trying to tell him that it

8 was by invitation." So the idea being that Milosevic would invite OSCE or

9 the international community to place a force in Kosovo. Is that a

10 correct?

11 A. That is correct, and it shows, if I remember correctly, a little

12 bit further down in the same paragraph. But that is a misunderstanding in

13 that statement, yes.

14 JUDGE BONOMY: I think the meaning was clear, even without the

15 correction.

16 MR. MARCUSSEN: Thank you.

17 Q. Now, having cleared that up, which wasn't even necessary, the rest

18 of the transcript, would that -- does that reflect what you would declare

19 and say if you were examined today on these very issues?

20 A. It does.

21 MR. MARCUSSEN: So, Your Honours, I also seek the admission then

22 of the exhibit that I mentioned, P2632.

23 JUDGE BONOMY: Thank you.

24 MR. MARCUSSEN:

25 Q. Ambassador Vollebaek, if I could ask you to look at paragraph 19

1 of the statement that I handed to you before. And so we're now talking

2 about, for the record, P2634. You say there that Mr. Sainovic was

3 responsible for Kosovo within the federal government. What is the basis

4 for that statement? Why are you saying he had this position?

5 A. Well, I must admit first of all that this happened eight years

6 ago; but as I read it now and as I recall it, we were told so or I may

7 even have read it in some kind of - what should I say? - overview of the

8 different responsibilities of the members of the cabinet. But we were at

9 least -- or I was at least clearly under the impression that he was the

10 person responsible for Kosovo in the cabinet.

11 Q. Thank you. And there's mention in the same paragraph -- you say

12 there was also a governor for Kosovo in Pristina. Today do you remember

13 the name of the governor?

14 A. His name was Zoran Andjelkovic.

15 Q. Thank you. Which is mentioned later on in the statement, just to

16 make that clear. And then in the same paragraph, you also say that the

17 impression at least was that decisions really were made in Belgrade.

18 What -- what gave you that impression?

19 A. I had, as far as I recall, three -- yes, probably three meetings

20 in Pristina with representatives of the local government. And as far as I

21 recall, at least at one or two times the representatives from Belgrade

22 present in those meetings, and in addition there were never any decisions

23 taken in the meetings.

24 And, normally, one would refer to Belgrade or to then-President

25 Milosevic when they said that they could not comply with what I wanted

1 them to comply with.

2 Q. Now, in various places in your statement, you describe meetings

3 you had with Milosevic. You explain that they were also attended by

4 Mr. Milutinovic and sometimes by Sainovic. Could you describe the role

5 that Mr. Milutinovic played in these meetings. Maybe the best way to do

6 this, if you could, is to describe some of the general -- how these

7 meetings unfolded, maybe starting with your first meeting, and just give

8 us an impression of how these meetings worked.

9 A. My first meeting with President Milosevic when I -- after I became

10 foreign minister was already in April as far as I recall 1998. But

11 when -- in the meetings after I took over as chairman in office of the

12 OSCE was then in January, as far as I recall the 11th of January, 1999.

13 Normally, they would take place with a number of other people

14 present, and I do not recall if Mr. Milutinovic would be present at all

15 the meetings, but definitely at some of them. And he would, normally, as

16 far as I recall anyway, sit next to Mr. Milosevic and be very supportive

17 of Mr. Milosevic and not very supportive of me.

18 Q. Did he address you at the meeting or --

19 A. Normally, as far as I recall, he wouldn't. He may have made a

20 comment or not, but maybe I was oversensitive. He had a face that spoke

21 clearly of what he meant or thought of me and my presence and what I said.

22 Q. Now, at paragraph 30, if I can ask you to jump to that, that's on

23 page 6 of the statement. In this paragraph, you describe your trip to

24 Kosovo in March 1999. It's also covered in some other paragraphs, but we

25 can deal with it in the context of this one. I want to ask you if you

1 could describe what it was you saw on the ground in Kosovo.

2 A. Well, we saw a lot of destruction. I do not recall all the places

3 I visited, but as far as I recall one of the villages I visited was

4 Podujevo, and that was a village that was quite severely damaged as far as

5 I recall. So the houses were damaged or -- and very often the kind of --

6 the roofs were blown off or destroyed. So you had the kind of shells of

7 houses without roofs.

8 Then we met people travelling on tractors with all their

9 belongings and whole families, and there was a lot of military presence

10 around us, much more than should have been according to the agreement we

11 had with Milosevic. And we also saw fires, or at least smoke then coming

12 up from places.

13 Q. And in relation to the smoke you saw coming up from the places,

14 Milosevic told you - and you explain that in the statement - that that

15 really was haystacks that were burning. Did you see -- were you close

16 enough to these places that were burning to see that they were houses that

17 were burning?

18 A. Yes, I think so. This -- again, this happened eight years ago,

19 but there was no doubt in my mind that they were houses burning. We could

20 see -- I don't think I was, as far as I recall, up to the houses, but we

21 saw clusters of houses and smoke came up.

22 And as -- when Mr. Milosevic told me on the phone that I had seen

23 haystacks burning. Of course, I laughed because the situation wasn't

24 laughable. But I grew up in the countryside and I know the difference

25 between a haystack burning and a house burning.

1 Q. And some of the destroyed houses you saw, did they have markings

2 that indicated that they would have been burning before you saw them?

3 A. The houses in -- as far as I recall then, the houses in Podujevo

4 definitely had that and I would think also some other places.

5 Q. Thank you. Now --

6 MR. ACKERMAN: Excuse me just a minute, Your Honour. I think it

7 would be helpful if we had a date for this visit as to whether it's within

8 the indictment or not.

9 JUDGE BONOMY: I'm about to embark on that exercise since it's not

10 happened so far, Mr. Ackerman. I was just waiting completion of this

11 section of the examination.

12 MR. MARCUSSEN: I --

13 JUDGE BONOMY: Can I clarify with you, Mr. Vollebaek, first of

14 all, the damage in Podujevo, can you help us with a date for that?

15 THE WITNESS: Yes, I had -- again, Your Honour, this happened some

16 years ago. But I had three meetings as far as I recall with

17 Mr. Milosevic; and in connection with those meetings, I also visited

18 Kosovo three times before the war started in 1999. As far as I recall, my

19 first visit meeting was on the 11th of January, the second was on the 21st

20 of January, and then I had a meeting on the 1st of March.

21 So as far as I recall, this visit to Podujevo was in connection

22 with this visit on the 1st of March. I would think that it must have been

23 slightly after the 1st of March, because normally I would start a meeting

24 in Belgrade, since that was the capital, and go to Kosovo afterwards.

25 JUDGE BONOMY: And your reference to seeing smoke rising.

1 THE WITNESS: That was the beginning of March then, Your Honour.

2 JUDGE BONOMY: The same visit?

3 THE WITNESS: Yes, that's right.

4 JUDGE BONOMY: And the -- finally, in that section, the question

5 of an increased military presence over that permitted by the agreement?

6 THE WITNESS: Was at the same time.

7 JUDGE BONOMY: And can I take you back just a little further. You

8 referred to your impression of the involvement of Mr. Milutinovic in

9 meetings. It wasn't clear from your answer there how often you can say

10 that you were at a meeting attended by him.

11 THE WITNESS: No. I'm -- you know, Your Honour, I was very much,

12 I suppose, concerned with Mr. Milosevic, because he was the main actor and

13 he was the one that addressed me, and we led the conversation. So I

14 didn't always attach that much importance to the other people that were

15 present.

16 As far as I -- well, I recall him being present at meetings, but I

17 could not honestly tell you if he was present at all the three meetings or

18 just two of them or just one of them.

19 JUDGE BONOMY: And your recollection is being confined to the

20 period when you were president of the OSCE and doesn't relate to any

21 meetings you had as foreign minister prior to that?

22 THE WITNESS: That is correct. I do not recall whether he was

23 present in April 1998, no. I met them --

24 JUDGE BONOMY: Did you only meet Milosevic on one earlier occasion

25 prior to 1999?

1 THE WITNESS: No. I met him -- I had -- I was deputy co-chairman

2 of the so-called International Conference to the former Yugoslavia in

3 1993, and I was assigned to negotiate between the government and Zagreb

4 from June to the end of that year. And I met with him on some occasions

5 both in Geneva, and I had a meeting with him in Belgrade at that time.

6 JUDGE BONOMY: Thank you.

7 Mr. Marcussen.

8 MR. MARCUSSEN: Thank you, Your Honour.

9 Q. Ambassador Vollebaek, if we turn to paragraph 39 of your

10 statement, please, and I guess the related paragraphs would be paragraph

11 39, 40, and 46. The issue is about whether Mr. Milosevic and other people

12 were told about the situation in Kosovo. Now, during the meetings you

13 refer to here, did you -- to start with: Did you express concern about

14 the treatment of Albanian civilians in Kosovo?

15 A. Yes, very much so. I think one may say more than concern. We

16 were -- we were concerned with the situation, but we also, I guess, one

17 could say, rejected the treatment and said that this was a breach of

18 fundamental human rights.

19 Q. And during these meetings, were you also giving specific examples

20 of incidents that had taken place in Kosovo that you were aware of?

21 A. Well, I was not given examples by Mr. Milosevic, but we had

22 examples through -- of the reports from KVM. KVM reported to us, and I

23 would also think that there were other reports, but mainly KVM reports

24 that told about violations of the rights that we thought meant the Kosovo

25 Albanians should have.

1 Q. And maybe my question was unclear, but that information that you

2 got from KVM, did you relay that to -- at the meetings that were -- that

3 you participated in?

4 A. That is my recollection, yes. I could not give you one kind of

5 example, but I'm fairly certain that I did so, yes.

6 Q. Thank you. I just wanted to touch on --

7 JUDGE BONOMY: Did that question relate to whether the information

8 was relayed to Milosevic at the meetings?

9 MR. MARCUSSEN: Yes. And I think the witness has explained that

10 on occasions at least Sainovic and Milutinovic would be present at the

11 same meetings.

12 JUDGE BONOMY: Thank you.

13 MR. MARCUSSEN: Now --

14 MR. O'SULLIVAN: Well, Your Honour, I'm going to have to object to

15 the comment by my learned friend. What's been admitted into evidence -

16 and this is my objection - is the Milosevic transcript. Now, that is the

17 testimony -- forms part of the testimony of this witness. Now, if my

18 learned friend is going to ask questions about what was discussed at the

19 meeting, in my submission, he must formulate his question based on what

20 this witness has said.

21 In the Milosevic trial, you said this and that; is that correct?

22 The open-ended question cannot be asked anew as if we don't have the

23 answer given previously by this witness to discussions at these meetings,

24 and that's what has taken place.

25 MR. MARCUSSEN: Your Honour, if I may.

1 JUDGE BONOMY: Well, that's a very restrictive interpretation of

2 what 92 ter provides. The goal-posts were moved after this trial started,

3 and your interpretation suggests that if you use a transcript you confine

4 yourself to the territory explored in the transcript and amplify it. Is

5 that right?

6 MR. O'SULLIVAN: The point I'm making on this specific bit of

7 evidence is that if a question has been asked and answered previously, I

8 think it's in fairness to the witness it should be put to him: This is

9 what you said. Do you wish to add or detract from that.

10 JUDGE BONOMY: Yes, that I do understand, I think, as a reasonable

11 criticism.

12 You'll appreciate that this is all very vague, Mr. Marcussen,

13 especially since it's conditional on a number of things. First of all,

14 the presence of either Messieurs Milutinovic or Sainovic at a particular

15 meeting; secondly, that that was a meeting at which some reference was

16 made to an atrocity reported on by the KVM. If you want to really rely on

17 this as somehow or other giving notice to the two accused that have been

18 mentioned by you, then I think we would need to have more precise

19 evidence.

20 MR. MARCUSSEN: Your Honour, this has been explored and we -- I'm

21 not able to get the evidence any clearer than it is. It would be a matter

22 of weight and whatever's going to be made of submissions in the context of

23 all the evidence.

24 JUDGE BONOMY: Well, in that case - and I'm sure in the best of

25 humour - Mr. O'Sullivan is anxious that you keep the comments to a

1 minimum.

2 MR. MARCUSSEN: No, the comments -- I take the point about my -- I

3 was trying to explain what my understanding of the evidence was. I am

4 aware that that was my comment and not evidence, and we will be careful

5 about that when we make submissions and not mix things up then.

6 Q. Ambassador Vollebaek, if I can ask you about paragraph 41. Now,

7 here we're back to the issue that I touched upon, initially, about the

8 international force or larger international presence in Kosovo, that you

9 discussed with Mr. Milosevic in March 1999.

10 Could you explain to the Court what was the proposal actually that

11 was made for this force. How did the force look, to start?

12 A. To explain the context a little bit, and as you know the OSCE had

13 the political responsibility for finding a peaceful solution to the Kosovo

14 conflict. We saw that we were not -- and -- well, to add to what I said,

15 that we established the KVM, the observer mission, in order to be able to

16 fulfil this task. We saw that an unarmed observer mission could not help

17 us in fulfilling the task, and we had then the Rambouillet talks to find a

18 solution or a way in -- by which the OSCE could continue its work.

19 As a part of this or as a consequence of the actual situation, it

20 was proposed that there should be an international military force. I must

21 admit that I do not now recollect neither the composition - I don't think

22 that we came to the stage where we discussed it - nor the actual number

23 of personnel. But the main thing was that it should be an armed force, a

24 military force and not an unarmed force, because that was the only way we

25 saw that we would be able to continue. And this was very strongly then

1 opposed by Mr. Milosevic. He would not accept an armed force on Serb

2 territory, as he said.

3 Q. Now --

4 JUDGE BONOMY: You made a comment at the outset of that answer,

5 "as you know, the OSCE had the political responsibility for finding a

6 peaceful solution to the Kosovo conflict."

7 Now, what document provided that responsibility upon the OSCE?

8 THE WITNESS: Your Honour, you ask a difficult question. This

9 was -- there were different agreements between the -- between the

10 government of Federal Republic of Yugoslavia and the OSCE that actually

11 gave us that mandate. And that was also, as far as I can recall, agreed

12 to by President Milosevic, and that was -- these documents were referred

13 to in my conversations earlier then with Mr. Milosevic and the government.

14 JUDGE BONOMY: So you're referring to an agreement that your

15 predecessor was involved in in concluding. Is that right?

16 THE WITNESS: Foreign Minister Geremek had an agreement, or on

17 behalf of the OSCE, there was an agreement signed between Foreign Minister

18 Geremek, the Polish foreign minister, and on the Yugoslav side I think it

19 was Mr. Milosevic.

20 JUDGE BONOMY: And prior to that, there was an agreement that you

21 never saw between Holbrooke and Milosevic?

22 THE WITNESS: That is correct.

23 JUDGE BONOMY: Now, Mr. Marcussen, do we have exhibit numbers for

24 these agreements?

25 MR. MARCUSSEN: We do. I don't remember them on the top of my

1 head.

2 JUDGE BONOMY: We do have them?

3 MR. MARCUSSEN: They are exhibits. They are 600 --

4 JUDGE BONOMY: Perhaps, later today, to help us to put all of this

5 evidence in context, we should have the numbers of the relevant agreements

6 establishing the OSCE mission, just to read them in the context of

7 Mr. Vollebaek's evidence.

8 MR. MARCUSSEN: Indeed. We'll get back to you with that in a

9 little bit.

10 Now, I would like if we could call up Exhibit P460, please.

11 Q. And, Ambassador Vollebaek, that will come up on your screen in

12 just a minute. Could we -- Ambassador Vollebaek, this is a report by the

13 KVM from the 1st of March.

14 MR. MARCUSSEN: I'd like if we could zoom in on paragraph -- the

15 first part of paragraph 2, the heading and that paragraph.

16 Q. Ambassador, can you see this on your monitor or shall we zoom in

17 further?

18 A. I see part of it, but -- yes. If you ask the question, I can tell

19 you what -- now I see it finally. Thank you.

20 Q. Thank you. Now, in this paragraph, there's a statement made by

21 you about the reaction to your proposals about international military

22 presence in Kosovo. My question simply is: Is this -- looking at this

23 today, is that a correct reflection of what was said at the time?

24 A. Yes, I do think so.

25 Q. Thank you.

1 MR. MARCUSSEN: We would like to have this -- like to tender this

2 exhibit, so that will be P460.

3 JUDGE BONOMY: In the previous trial, a bit of time was spent on

4 the question whether the force was to be NATO-led, but this document

5 actually clarifies that. It was to be a NATO-led force.

6 THE WITNESS: Yes. I guess it was to be a NATO-led force and not

7 a UN-led force, but under a UN mandate, as you, for instance, today do

8 have in Afghanistan.

9 MR. MARCUSSEN: Next I would like if we could see Exhibit 461.

10 Q. While we wait for that to come up, this is the KVM report, daily

11 report, from the subsequent days or the next day, from the 2nd of March,

12 1999.

13 MR. MARCUSSEN: Now, if we can zoom in on the second-last

14 paragraph on the first page. The one that starts with: "A statement from

15 Milutinovic's office ..."

16 Q. Ambassador Vollebaek, can you see this? They are tweaking it a

17 little bit.

18 A. If they zoom in, then it's better. Yes, thank you.

19 Q. So this report said there was a statement from Milutinovic's

20 office after a meeting with Ambassador Hill. And in this statement, it

21 was said that a political agreement was not adopted at Rambouillet. Do

22 you think that is a correct -- a correct statement?

23 A. No, I don't think so. Could you give me the date of this report.

24 Q. This is the 2nd of March.

25 A. 2nd of March.

1 Q. So the day after the one we saw just now.

2 A. As far as I recall, I have a -- I received a letter from

3 then-Foreign Minister Jovanovic to me with also a statement, I think,

4 attached to it as signed by or made by Mr. Milutinovic at the time of the

5 recess of the Rambouillet talks. As you may recall, there was talks and

6 then a recess.

7 Q. So that's between the talks at Rambouillet and the talks at Paris?

8 A. That's right.

9 Q. Thank you.

10 A. And after the talks in Rambouillet, the -- when there was this

11 recess, there was, as far as I recall, an agreement or -- yes, I guess you

12 could call it an agreement. A declaration that was signed by the Serbs

13 but not by the Kosovo Albanians. So the problems were more actually on

14 the Kosovo Albanian side than on the Serb side at that time, and that's

15 why, as I see it, it is wrong to say that the Serbs had not accepted some

16 kind of an agreement in Rambouillet.

17 Q. So in your view, there was a political agreement adopted at

18 Rambouillet, but then something changed. Is that correct?

19 A. There was a political acceptance by the Serbs, and then -- but the

20 Kosovo Albanians did not accept it; and then the leaders of the

21 negotiations, I don't know whether they decided themselves or whether they

22 were -- it was suggested to them that there should be a recess.

23 And as far as I recall, it was about a two weeks' recess. And as

24 I again recall, when the Serb delegation came back after this recess,

25 things had changed quite dramatically, and things that they had accepted

1 earlier all of a sudden they could not accept any longer.

2 Q. Thank you.

3 JUDGE BONOMY: Just hold on a moment, please, Mr. Marcussen.

4 This is not any criticism of you, Mr. Vollebaek, but you'll

5 understand that that answer is fairly vague. It demonstrates a change in

6 attitude; that's as far as it goes. The reason for that is not clear,

7 obviously, when you simply refer to things that had previously been

8 accepted were now not accepted.

9 There must be somebody who was neutral but so closely involved in

10 these discussions that he can give us an accurate account of what is the

11 state of play at the end of Rambouillet and how that may have changed when

12 we get back to Paris, because we're hearing various accounts. We're

13 hearing that the Albanians, for example, didn't reject agreement at

14 Rambouillet but wanted to go back and consult before they accepted things,

15 and that's rather from the impression you have.

16 Who is the person -- was there not some administrator close to

17 this keeping records who would be able to tell us what actually happened

18 so that we could maybe have some confidence in as an unbiased observer?

19 THE WITNESS: Yes, Your Honour, I hope so and I suppose so. I was

20 not, as you also may know, a part of the negotiations as such. The

21 chairman in office of the OSCE was an observer, so I was not present

22 during the negotiations but I was called in when there were meetings with

23 them. So I participated twice during this process.

24 The negotiations were organised by the French Minister of Foreign

25 Affairs Quai D'orsay, under the leadership of Foreign Minister Vedrine,

1 and I suppose that the French would have taken due notes. It was also

2 then co-chaired by the late Foreign Secretary Robin Cook, and I suppose

3 the British would have taken due notes of this. Then you have the contact

4 group, the five countries that were involved in this and they were around.

5 So I certainly agree with you, Your Honour, that there should be

6 records. I do not have them. I wasn't entitled to them at that time.

7 JUDGE BONOMY: Thank you.

8 Mr. Marcussen.

9 MR. MARCUSSEN: There will be a witness, Petric, later on who

10 will also testify about what happened at Rambouillet. So hopefully we'll

11 get some of this clarified at the time.

12 Q. But -- sorry. I think that's clear.

13 Mr. -- Ambassador Vollebaek, the last thing I wanted to ask you

14 about concerned paragraph 74 in your statement. That is -- you describe

15 there people leaving Kosovo. Now, I understand you were present at some

16 point in time at the border between Kosovo and Albania.

17 A. That is correct. When they -- when the war started, then we

18 withdrew the KVM observers to Macedonia, and we also then replaced some of

19 them into Albania because there were a number of refugees, quite a large

20 number of refugees, coming into -- both into Macedonia and to Albania.

21 And even though the UNHCR was the main responsible UN organ --

22 organisation for them, we had vehicles and we had personnel that could

23 help out. So the KVM observers were present at the borders, both in

24 Macedonia and in Albania. And I -- at that time, as far as I recall,

25 there was a -- quite a bit influx into Albania and there was established

1 refugee camp just across the border in -- on the Albanian side.

2 And I went down to meet with the people and see how they -- what

3 was their conditions. And one of the problems we had was that they had

4 lost identity in one way. Their ID papers were taken from them and

5 destroyed and the licence plates on the vehicles. So we were very

6 concerned that we should kind of re-establish or take down records of

7 where they came from and what houses they had left and all of that.

8 So there was a quite, as I recall it, well-organised system of

9 doing that, and I kind of oversaw it and monitored it for a little while

10 and then met with some of the people that came across the border and spoke

11 to them through interpreters.

12 Q. If I can just -- when were you at the border, if you remember?

13 A. I do not recall a date. There would probably be some records in

14 the OSCE that one could find from that visit. I had also meetings at that

15 time with the government in Tirana. I'm afraid that I do not have a date.

16 Q. But was it fairly shortly after the NATO bombing started, for

17 example? Are we talking a few days or weeks?

18 A. I would think not weeks, but it could of course be a week but it

19 was shortly after. So it was at the time of the mainstream, one would

20 say, of people fleeing Kosovo.

21 Q. Could you give us an impression of what you saw when you were

22 standing at the border. Could you see into Kosovo from where you were?

23 A. We could see into Kosovo, and I think as it's reflected in the

24 transcript, I had never seen so many tractors in my whole life. There

25 were thousands of them, I mean miles and miles of tractors. And people

1 were on those hangars; whole families, couples, some people walking, but

2 they were fairly few.

3 Most of them were on tractors. And they had come from different

4 areas, as far as they told me. It looked or sounded to me according to

5 their statements very well-organised. People even talked about different

6 ribbons or ribbons of different colours to organise their exodus.

7 Q. Let -- we'll get to that a little bit. You say -- and I guess

8 that's related. You say in your statement that a large number of people

9 had been expelled. Now, what is it that made you say that the people had

10 been expelled?

11 A. Well, they -- they told me that they had been expelled. There

12 were different stories about how that expulsion had taken place. There

13 were quite moving stories about couples or families that had been out

14 strolling in the street in Pristina, and they came home and their

15 apartment was occupied.

16 Or there were other stories then of people being at home and then

17 the police, I suppose, or someone with authority came and told them to

18 leave. So at least those with whom I spoke were under the clear

19 impression and, I would say, order to leave their property.

20 Q. And --

21 MR. IVETIC: Your Honour.

22 JUDGE BONOMY: Mr. Ivetic.

23 MR. IVETIC: I have an objection to this line of questioning.

24 We've had a decision in this case that with respect to certain interviews

25 conducted with refugees and at that time it was found that without knowing

1 the identities of the interviewees, without giving us an opportunity to

2 confront this interview process, without having this information, it would

3 be impossible to cross-examine on this.

4 And now we're -- I can see we're asking where got the knowledge

5 from is a proper question. But where the witness then proceeds to give

6 very general but yet specific discussions of what unknown persons that we

7 cannot compel to bring here said to him and starts making accusations

8 against various entities that were in Kosovo-Metohija, then we're

9 approaching an area where the Prosecution is leading evidence that I

10 believe has already been barred in that form -- similar form in terms of

11 the OSCE publication, As Seen, As Told.

12 And I think we have to be mindful of the prior rulings of the

13 Court and the inability to confront this type of evidence if it is in fact

14 led. I think it is improper to try and lead that type of evidence

15 particularly in light of the prior rulings.

16 [Trial Chamber confers]

17 JUDGE BONOMY: The big difference between this evidence and the

18 evidence that was excluded is that here we have the person who is speaking

19 directly to the people who claim to be victims. We acknowledge the point

20 made that we don't have the identity of the people to whom he was

21 speaking, and that obviously does affect the weight that can be given to

22 this. But we do think that cross-examining this witness is an exercise

23 that can assist in -- assist the Court in identifying how reliable the

24 accounts given to the witness were. So we're in a different situation, in

25 our opinion, from that where the evidence was rejected.

1 We're aware of the dangers, however, of relying too heavily on

2 hearsay of any kind, and we are aware that it must be carefully considered

3 when it goes directly to questions of either the commission of criminal

4 acts or the question of criminal responsibility. With these caveats in

5 our mind, we will allow this evidence to be led.

6 MR. IVETIC: If I can, Your Honour, just one further point,

7 though, on the objection. My -- specifically with respect to this section

8 that was just -- that was just introduced, we don't know what the people

9 actually said or whether he's recalling them. He said he supposes it was

10 this; he supposes it was that.

11 I tender that that's very vague, and it would be different if he

12 was saying person X said A, B, C, and D. But he's giving general accounts

13 that we can't really then to reliability because they're not tied to

14 specific persons. They're tied to very general statements over all, and

15 there's a lot of supposition there, et cetera.

16 So I submit that's something that we perhaps can't really address

17 through cross-examination because, again, we have no -- we have no

18 supporting data. We don't have the underlying discussions that were had,

19 the exact words that were used, the exact persons that said whatever they

20 said. That's -- that's the difficulty I'm having with this, Your Honour.

21 JUDGE BONOMY: Well, the one example I think I've seen - and there

22 may be others - but you're talking about a reference to the police, I

23 suppose, or someone with authority. Well, I hose you know this Bench well

24 enough by now, Mr. Ivetic, to know that if somebody says: The police, I

25 suppose, or someone with authority, we would never come to the conclusion

1 it was the police.

2 What we could do eventually, of course, on an accumulation of

3 evidence is decide it doesn't matter who precisely it was, as long as

4 we're satisfied that they were part of a gang acting in cahoots with one

5 another. But on the particular point, can we say that it was a policeman

6 that was involved with any of these events? No, we couldn't so far. That

7 may well be clarified though by other questions that are asked. I think

8 that goes to weight. It doesn't go to the essential admissibility of the

9 evidence.

10 Mr. Marcussen.

11 MR. MARCUSSEN: Thank you, Your Honour.

12 Q. Ambassador Vollebaek, you started to explain something about some

13 people getting some ribbons, and I stopped you there. Was -- could you --

14 now that you've given the background for this, could you explain to us

15 what it was you were told about these ribbons. First of all, were you

16 told what area these ribbons had been distributed, in what area of Kosovo?

17 A. What we were told --

18 JUDGE BONOMY: Mr. Bakrac.

19 MR. BAKRAC: [Interpretation] I think that it was sufficient to ask

20 what he knew about those tapes. It is leading to ask where they were

21 distributed and who gave it to them in Kosovo. So my friend is moving a

22 step ahead. It was sufficient to ask what the witness knew about these

23 ribbons. All the rest is leading.

24 JUDGE BONOMY: Well, there's an element, I suppose, of leading in

25 that question, but I don't think enough, bearing in mind the subject and

1 the witness, to say that it would wholly undermine any answer given.

2 We'll bear in mind the nature of the question; but, again, it's a matter

3 that goes to weight and we will allow the question to be answered.

4 MR. MARCUSSEN: The witness had said that he was informed by

5 people who exited Kosovo that they had been given ribbons. My question

6 was based on that previous answer. It's not leading to guide the

7 witness's attention to a specific context. And my question is, which is

8 not leading --

9 JUDGE BONOMY: Well, do you want us to rule against you or are you

10 not happy with a decision in your favour?

11 MR. MARCUSSEN: I'm happy with a decision in my favour. I think

12 it's important when there's an issue of weight that we get clarified if

13 there was something wrong with my question.

14 JUDGE BONOMY: Yes, if you ask a question: What area were these

15 ribbons distributed? That suggests that it's confined to an area, and

16 that's a suggestion. Now, there's an element of leading in that. That's

17 all we're saying.

18 MR. MARCUSSEN: Thank you, Your Honour.

19 Q. Ambassador Vollebaek, were you told where these ribbons had been

20 distributed?

21 A. If I were told -- if I was told, I do not recollect. I was under

22 the impression and we were told that the exodus, the expulsion, if you

23 would call it, was well-organised. And these ribbons were mentioned to me

24 as a sign of how well-organised it was, and it was -- I took it at that

25 time as an indication that this was prepared. It was not something that

1 happened -- I mean, immediately or upon some kind of immediate action. It

2 was prepared ahead. That was how I understood it at that time.

3 Q. What were you told about the ribbons?

4 A. There were different colours in order for the -- whoever was along

5 the roadside from the authority's side to guide people in the right -- on

6 the right roads in order to avoid a traffic jam. And if you could

7 understand that when you were standing on the border when you were looking

8 into Kosovo, because there were, as far as I can remember, miles and miles

9 of these tractors and it was definitely a jam on the border.

10 And when those roads came together closer to the border, it was --

11 it was quite difficult for the people to came across the border. And as

12 you will understand, they were quite eager to cross the border because

13 they were afraid all along until they finally came over to Albania.

14 JUDGE BONOMY: Mr. Marcussen, had -- Mr. Bakrac, what is it?

15 MR. BAKRAC: [Interpretation] Your Honour, I'm sorry if I

16 interrupted you while you were speaking, but I wanted to object. Would

17 you like me to wait for you to finish and then I will object?

18 JUDGE BONOMY: Well, objections are usually to questions. Are you

19 objecting to an answer now?

20 MR. BAKRAC: [Interpretation] No, no, Your Honour. I'm objecting

21 to the question and the answer. As for this part of the

22 examination-in-chief, we have not received any information. This is the

23 first time we hear about these ribbons.

24 We will have to call back all the crime base witnesses and to

25 cross-examine them with regard to that. Up to this moment, we had not had

1 any information about any organisation, any ribbons, not during the 65 ter

2 informations or in the witness statement.

3 JUDGE BONOMY: I think some of your colleagues might be horrified

4 at that suggestion, Mr. Bakrac. The -- I was about to ask Mr. Marcussen,

5 if you had just given me a moment, if you were unable to find any witness

6 at all who had a ribbon assigned to him or her as part of the exodus

7 process.

8 We -- this is entirely new to me. We've not heard from any

9 refugee who had such an arrangement, although Mr. Bakrac is keen we bring

10 them back to check.

11 MR. MARCUSSEN: Well -- now, the -- this witness is bringing

12 hearsay evidence about ribbons handed out to -- having been informed that

13 ribbons had been handed out to people who left Kosovo. That is the

14 evidence. It's hearsay evidence. We're not stating it any higher than

15 this. What other evidence we --

16 JUDGE BONOMY: The answers that are being given are about a

17 well-organised process to distribute streams of people crossing the

18 border. You don't expect this Trial Chamber to make a finding to that

19 effect about a well-organised system if you can't actually lead somebody

20 before us that was the subject of such a system, do you?

21 MR. MARCUSSEN: I mean, we will have to see what all the evidence

22 is once we are set in, and I think your comment probably means that I

23 should clarify one thing with the witness, if I may, on this issue;

24 namely, where --

25 JUDGE BONOMY: Well, what about the question of notice that this

1 is something that's never been notified to the Defence?

2 MR. MARCUSSEN: Obviously, the 65 ter summaries we have in this

3 case are summaries of what the witnesses are going to say in a summary

4 form. This witness was clearly at the border. I've asked a question

5 about what the witness saw while at the border, and we've gotten his

6 evidence out on this.

7 JUDGE BONOMY: One -- one of the most significant issues in this

8 case for us is linking any criminal act that's proved to have occurred to

9 an accused or the accused. And, if I may say so, there's generally

10 speaking not a lot of evidence that does that. So every time you come

11 across some, it's important.

12 And here you have a suggestion of a well-organised system to guide

13 people out of Kosovo that might be interpreted as the essence of ethnic

14 cleansing. And I, for one - and I can only speak for myself at this

15 moment - would have expected that if you knew about this as the way in

16 which the exodus was partially organised, that it might have been

17 disclosed. Now, are you saying this is something you knew about and

18 didn't disclose in your summary?

19 THE WITNESS: Your Honour, if I may --

20 JUDGE BONOMY: No, please. I'm speaking to Mr. Marcussen at the

21 moment.

22 I'm sorry.

23 MR. MARCUSSEN: I actually don't recall whether this came up in

24 proofing. We had about a one-hour proofing session, and we did not

25 provide --

1 JUDGE BONOMY: It's not in the statement. It's not in the

2 Milosevic transcript, although that may be partly to do with the time that

3 was wasted in the manner of cross-examination and the issues were never

4 explored. But it certainly wasn't led by the Prosecution as part of the

5 Milosevic case either. So where has this -- when has this emerged?

6 MR. MARCUSSEN: As I said, I do not recall whether this was

7 mentioned yesterday when we met -- when I met with Ambassador Vollebaek

8 during proofing. I'm trying to recall. The Ambassador can probably --

9 JUDGE BONOMY: Well, he's offering to assist and I'm happy to

10 listen to any assistance you can give on this point, but as long as you're

11 satisfied that what you want to say is confined to this then we'll hear

12 you on it.

13 THE WITNESS: Thank you, Your Honour. I'm sorry if I have

14 complicated things by a wrong answer, so to say. But it is correct that I

15 don't find this in my statement. I don't know why it doesn't say this

16 before, but we were told - and again, it is of course hearsay, because I

17 was not witness to --

18 JUDGE BONOMY: I don't want you to go on to the subject matter.

19 THE WITNESS: Okay.

20 JUDGE BONOMY: What we're exploring at the moment is how it's come

21 to the attention of a Prosecutor.

22 THE WITNESS: I mentioned it to him yesterday.

23 JUDGE BONOMY: Yes.

24 [Trial Chamber confers]

25 JUDGE BONOMY: It is, I'm reminded possible, that we have had some

1 evidence that supports this from a religious leader who did - and we're

2 speaking very much from memory at the moment and it's difficult,

3 obviously, to recall every day everything that's been said in this case -

4 but a religious leader who did mention carrying something white that was

5 issued to him. So there may be some evidence. It may not be something

6 that's never arisen.

7 It would -- in spite whether that's right or wrong, it would be

8 unrealistic to exclude this evidence. It's unfortunate that the pre-trial

9 process has not involved revising the statements of witnesses and

10 concentrating on the issues for this trial. It's very unfortunate that

11 statements prepared for another trial are being used without revision

12 until the last minute.

13 We've said that before, but we think it bears repeating because it

14 is possible that the failure to carry out that simple exercise may

15 prejudice this -- the outcome of this trial adversely for the Prosecution.

16 Nevertheless, we will allow this evidence to be led. If it gives rise to

17 difficulty for the Defence, then we will have to address that difficulty

18 and accord them any necessary remedy to ensure that there's no unfairness

19 attributable to the admission of this evidence.

20 Mr. Marcussen.

21 MR. MARCUSSEN: Thank you, Your Honour.

22 I think I would actually stop with the witness at that point in

23 time and stop the direct examination for now. Thank you.

24 JUDGE BONOMY: Your period, Mr. Vollebaek, at the border when you

25 had an opportunity to speak to people was confined to one day?

1 THE WITNESS: That is correct, Your Honour.

2 JUDGE BONOMY: Over roughly what period of time in that day did

3 you speak to people directly?

4 THE WITNESS: We -- as far as I recall, we came up from Tirana and

5 so I think it would have been midday or -- before noon or noontime or

6 something like that, and then we stayed until the afternoon.

7 JUDGE BONOMY: Were you involved in individual discussions with

8 people or were you observing the process that your staff were engaged in,

9 in finding out details from refugees arriving?

10 THE WITNESS: I was observing, Your Honour. I was getting up to

11 the border and seeing the -- watching the various activities going on

12 because there were a number of organisations involved in this. People had

13 travelled for some time, so there was an organisation giving them a bottle

14 of water as soon as they crossed and then a loaf of bread the next stop;

15 and then the third stop, as far as I recall, was the OSCE or the KVM then

16 taking down their data.

17 So I was standing close to the border, and through interpreters I

18 spoke to people as they crossed.

19 JUDGE BONOMY: So you yourself posed questions to these people or

20 exchanged conversation with them?

21 THE WITNESS: Through an interpreter, yes, Your Honour.

22 JUDGE BONOMY: And did you also listen to what was being said

23 between your own staff interviewing them and recording their details and

24 the refugees themselves?

25 THE WITNESS: Yes, for a short while, but not for a long time.

1 JUDGE BONOMY: Okay.

2 Mr. O'Sullivan, the order?

3 MR. O'SULLIVAN: I will follow the indictment and I have no

4 questions.

5 JUDGE BONOMY: Mr. Fila.

6 MR. FILA: [Interpretation] Yes, Your Honour. I do have questions.

7 Cross-examination by Mr. Fila:

8 Q. [Interpretation] Mr. Vollebaek, good day. My name is Toma Fila,

9 attorney-at-law, appearing for Nikola Sainovic. I would like to begin

10 with the issue of Rambouillet and what you said about it.

11 MR. FILA [Interpretation] I wish to remind the Chamber that

12 Mr. O'Sullivan tendered as a Defence exhibit a book of documents from

13 Rambouillet. The Chamber has these, and it contains the

14 Milosevic-Holbrooke Agreement, as well as the documents Mr. Vollebaek

15 spoke about. These documents speak for themselves, but Mr. Vollebaek

16 described them a little differently so I'll put some questions.

17 Q. The standpoint of the Defence and of all of us from Serbia is that

18 in Rambouillet the Serb delegation was led by Professor Ratko Markovic,

19 who signed a political document, as it was called, and we agreed in

20 principle to consider the nature and extent of an international presence

21 for the implementation of any agreement that is reached. What the Serb

22 delegation did not accept was a NATO military presence. Do you agree with

23 this?

24 A. I do not recall exactly what was agreed, what was said, because

25 I -- as I said, I did not participate in the negotiations; but at that

1 time, of course, I had access to the political agreement, as you said.

2 And I suppose you are right, because the discussion I had with

3 Mr. Milosevic was precisely on the international NATO-led military force.

4 So I would think so. But I do not have access to those papers and, as I

5 said, it happened eight years ago.

6 Q. All right. Thank you very much. My next observation is the

7 following. In Paris, when they met again, the Serb delegation did not go

8 back from the political agreement that had already been signed, rather,

9 the Serb, or rather, the Yugoslav delegation - we were still Yugoslavia

10 then - did not want to sign the entire document in which, I repeat, NATO

11 troops were to enter and there was to be a referendum on the independence

12 of Kosovo three years later.

13 That's what the Yugoslav delegation did not sign then, and let me

14 tell you, no one in their right mind without sign it today. However,

15 that's my comment, that's not a question.

16 A. Again, I do not recall exactly what was agreed and what was not

17 agreed to. My impression at that time, when I met again in Paris, was

18 that there were a number of questions that had been accepted, that after

19 the recess were taken up and discussed again, but this again is my

20 recollection.

21 Q. Very well. Thank you very much. I think this had to be said.

22 Now I will put the questions I have prepared for you.

23 JUDGE BONOMY: Yes. It's not just a question of having to be

24 said, though, Mr. Fila. If it's as simple as that, that there was

25 introduced into the equation a term which would lead inevitably to a

1 referendum within three years or after three years, then that's a very

2 important consideration in trying to work out why these negotiations

3 failed, because it's part of the Prosecution case here that the accused

4 set about ensuring that they failed.

5 Now, are you saying, Mr. Vollebaek, that you were not aware of a

6 change in the terms as fundamental as that taking place between

7 Rambouillet and Paris?

8 THE WITNESS: Your Honour, again, this happened eight years ago,

9 and I have to be careful. But as I recall, to be a little bit personal, I

10 was in disagreement and I was quite upset at the time when those who led

11 the negotiations allowed the recess, because I thought that was utterly

12 wrong. I felt we had come quite far in the negotiations, and I knew there

13 were difficulties.

14 I'm not an expert but I have participated in some negotiations

15 before this, and I knew these were contradicting any kind of experience I

16 have. When you are close to an agreement, then you all of a sudden let

17 the people off the hook and let them go home. But I -- as I said, I was

18 just an observer and I couldn't really -- I didn't have a clout to say no.

19 And when they came back then, it was my assessment - but it could

20 of course be that I was upset and saw that they were -- and saw thought

21 this would happen - that there were a number of issues that the Serb or

22 the Yugoslav delegation came back and they had several points that they

23 said they could not accept. It could be that this was under the overall

24 impression of something that I felt strongly about, but there were a

25 number of issues as I recall it that were discussed, not only one issue.

1 JUDGE BONOMY: It's even more fundamental than the way I've put it

2 I think. I'll be corrected if I'm wrong, but I think the position of the

3 Defence here generally is not only were they not intent upon making sure

4 the negotiations failed, but it was the other way around. It was at least

5 part of the international team that was intent upon making sure they

6 failed by adding a clause that would be unacceptable.

7 MR. FILA: [Interpretation] That's right.

8 JUDGE BONOMY: And it's suggested that the Americans insisted on

9 this referendum appearing as part of the fundamental terms, and thus they

10 were intent on ensuring that NATO got in there to bomb Serbia. Now, you

11 don't have this impression in your mind that that's what actually

12 happened?

13 THE WITNESS: Your Honour, I think you have to ask the Americans

14 about that and not a poor Norwegian. But if I may, Your Honour, what I

15 felt when the recess came was actually that the Serbs -- or the Yugoslav

16 government had a kind of upper hand to a certain extent, and I thought

17 that because the Kosovo Albanians were the difficult ones. And I couldn't

18 understand why they wouldn't give us this, because they could actually

19 have got quite a bit of praise from being more forthcoming than what they

20 were.

21 So my impression was that we had come quite far. And if I may,

22 Your Honour, just to make it quite clear, at that time I was very much

23 opposed to an independent Kosovo. So from my point of view, as chairman

24 in office of the OSCE, I had absolutely no intent whatsoever of making --

25 making - what should I say? - taking steps that would lead to an

1 independent Kosovo, out of a matter of principle but also out of a matter

2 of my office as the chairman of the OSCE, where we had a number of -- and

3 the OSCE still has a number of issues that deal with ethnic enclaves.

4 And I felt that if Kosovo became independent, it would open up for

5 Nagorno-Karabakh, Southern Ossetia. You have all these various areas

6 under the mandate or where these issues are discussed within the OSCE. So

7 I was very concerned with that from a personal point of view.

8 JUDGE BONOMY: Thank you.

9 JUDGE CHOWHAN: I have a question, Ambassador. I have a

10 question. But you had in mind the suggestion that it should be like

11 Aaland in Finland, like the case of the island of Oland. Did you have

12 that suggestion? Did you propose that?

13 THE WITNESS: Not to my recollection, Your Honour. I know that

14 some NGOs worked on this, and I know also that the -- whatever it's

15 called, the local government in Aaland was very actively involved and

16 trying to make that an example. To my recollection, I never mentioned

17 Aaland as a case.

18 What I was concerned with and what I told Mr. Milosevic on several

19 occasions was that one had to find some kind of a -- I may have used the

20 word "autonomy," at least some kind of way in which the Kosovo Albanians

21 could have the rights to their language, to schools, to religion, some

22 basic human rights. That was a great concern to me.

23 But I also remember that we discussed the various ways that this

24 could be organised, and as you will know there have been different

25 constitutions for Yugoslavia. And under these different constitutions

1 there were different status for Kosovo. And as far as I recall, I told

2 Mr. Milosevic that I was not going in to discuss this. This was not my

3 business and this could be done in various ways, as long as this was

4 accepted and there were certain ways in there.

5 JUDGE BONOMY: Mr. Fila.

6 MR. FILA: [Interpretation] Two issues. First, in the political

7 agreement that was signed, the rights to education and language were

8 mentioned. And as for your question, Your Honour, about Aaland and the

9 southern Tirol, that's precisely the package that the Serb delegation is

10 offering to the Albanians now. We offered it then, too, but all they want

11 is independence.

12 Q. Sir, you took over leadership of the OSCE and the mission sometime

13 in January 1999. Is that correct?

14 A. Yes, formally from the 1st of January, 1999.

15 Q. And the presidency is one year, am I correct?

16 A. That is correct.

17 Q. And then you said that the mission had finished its job, because

18 on the 20th of March, 1999, you asked for the withdrawal of the monitors

19 and that was four days before the air-strikes. There is a terminological

20 difference because we consider it to be an aggression by NATO. Since

21 there was no decision issued by the Security Council, you who participated

22 in it. Call it differently, but we won't go into that now. What I'm

23 interested in --

24 JUDGE BONOMY: Let's now concentrate on the questions, Mr. Fila.

25 I think I've allowed you plenty of rope to make your comments.

1 MR. FILA: [Interpretation] Thank you. Thank you for allowing me

2 to say what I said before. I won't say anymore.

3 Q. The question is the following: We have heard a number of

4 witnesses, in particular Mr. Adan Merovci, for example at page 8524, who

5 said that already in Paris Mr. Robin Cook and Mr. Huber Vedrine, who you

6 said attended more of these talks than you did, told him that Serbia and

7 Yugoslavia would be bombed within two or three days.

8 Then they went to see Mr. Clark in Brussels, and Mr. Clark told

9 them that they should get their women and children and themselves off the

10 streets, because there would be air-strikes and NATO would be in Kosovo

11 within a few days. Did you have any knowledge that after the failure to

12 sign in Paris there would be air-strikes?

13 A. Your Honour, if you allow me, I think I have to go back a little

14 bit since this is a question that involves just more than a yes or no

15 answer. First of all, when the Defence says that this was a NATO-led

16 aggression, to me it was under a UN -- not a full mandate.

17 I would have wanted a stronger mandate, but still there was an UN

18 acceptance of using chapter 7 language. And for me this is a matter of

19 principle, which is very important for me to make clear that I was under

20 that understanding, otherwise I would not have accepted it.

21 Secondly, I feel that it is implied in the Defence's question that

22 I kind of opened the ground for bombing, which I reject very strongly,

23 Your Honour. We had the KVM observers there under an agreement with --

24 Q. We misunderstand one another. Allow me to interrupt you --

25 JUDGE BONOMY: No, Mr. Fila, allow the witness to answer. I agree

1 with you that he's probably read more into your question than he should

2 have, but let him complete his answer.

3 THE WITNESS: Maybe I recall, Your Honour, my presence here five

4 years ago because then that was the -- I was charged with that. But

5 anyway, I saw that the situation for the KVM observers were deteriorating,

6 and they were -- there was aggression against them. So there were several

7 attacks on them. And some of my colleagues, foreign ministers from other

8 countries, threatened to withdraw their members because they said that it

9 was politically impossible for them to have these people in the force.

10 I told them that they shouldn't do that because that would, of

11 course, put in jeopardy the whole mission, and it would show to

12 Mr. Milosevic that there was a disagreement among the members of the

13 group. And I said to them that as long as there are talks going on - and

14 I told that also to Mr. Milosevic - as long as there are talks going on,

15 I'm not going to withdraw. So please agree with me that as long as

16 Mr. Milosevic, the Yugoslav government, accepts to be in the position of

17 talking, we should have the troops or the forces -- neither the forces nor

18 troops, but observers there.

19 And the reason for this, of course, then was that I would not do

20 anything that could put in danger the talks. So the moment the

21 Rambouillet talks failed, my arguments were used. I had lost. So I had

22 to accept that I had no reason to keep the KVM observers there any longer,

23 since the talks were not going on. And we all -- I would say we all knew

24 from press - you didn't need to do more than read the press - that there

25 would be attacks -- a military attack on Kosovo after this. I did not

1 know when, but I knew it would be coming. And as you will know from the

2 transcript and my statement, I spoke to Mr. Milosevic on the 24th of March

3 in order to avoid this.

4 JUDGE BONOMY: I have found it difficult so far in this case to

5 establish when the decision was taken to attack Serbia, whether it was

6 made before the talks took place and was thus conditional on the failure

7 of the talks; or whether there was -- something happened after the talks

8 to decide on bombing. Do you have the answer to that? Possibly not?

9 THE WITNESS: Your Honour, I have also found it difficult, and I

10 think you have to ask someone else other than me.

11 JUDGE BONOMY: Well, we have got closer to the horse's mouth, but

12 I think failed to get the answer.

13 THE WITNESS: Your Honour, if you tell me when you get the answer,

14 I would love to have it.

15 JUDGE BONOMY: Thank you.

16 Mr. Fila.

17 MR. FILA: [Interpretation].

18 Q. Perhaps, Mr. Huber Vedrine would know the answer as Mr. Cook is

19 not with us, and you know that he knew more about this. And do you know

20 that Ambassador Mayorski also did not want to sign in Paris, the Russian

21 representative?

22 A. I think that is correct. I couldn't -- that is my impression,

23 yes.

24 Q. Let's move on. Explaining your role in relation to the KVM,

25 that's what we are going to discuss now, you said that you dealt mostly

1 with the leadership of the mission while the leader of the mission on the

2 terrain was Ambassador Walker. That's your statement.

3 A. That is correct.

4 Q. And something that I would like to clarify is the following. What

5 do you understand by issues of leadership and the structure of the

6 mission? So that I can know what questions to put to you next.

7 A. Your Honour, is it referred to at a paragraph that I could look

8 at. I'm not certain that I understand the question. Is it the leadership

9 in Belgrade or ...?

10 Q. No. I am referring to your leadership of the OSCE. You said that

11 your involvement in the KVM was mainly about issues of leadership and the

12 structure of the mission. I'm referring to the KVM, the mission, and it

13 is not clear to me what the extent of your involvement was.

14 A. Thank you. Thank you very much. Well, it -- as the OSCE is

15 organised and as a consensus organisation, it has a secretary-general and

16 a chairman in office, and the chairman in office is then a foreign

17 minister from a country and it rotates every year. The political

18 decisions for the OSCE would be taken -- or the day-to-day political

19 decisions of the organisation would be taken by the chairman in office

20 sometimes in consultations with two other ministers, the previous chairman

21 and the coming chairman, so that they would form a troika.

22 But under the OSCE, there was at that time and there still is as

23 you probably know a number of field missions. The KVM was one of these

24 missions and they have a leader, and the leader has of course the local

25 authority. But he may be instructed by the chairman in office on at least

1 major issues.

2 Q. Now I understand. Then we could not ask you about the details,

3 for example, the precise number of observers, the number of locations, and

4 so on. Those would be details you would not be familiar with?

5 A. At that time I should probably have known the number of observers,

6 but I do not recall today. I think there were 300 and something at the

7 maximum, but I don't know.

8 Q. Sir, with all due respect, I don't want to strain your memory.

9 Now I would like to know whether Ambassador Walker, as the chief on the

10 ground, sent any written reports, either to the OSCE or to you as the

11 chairman in office concerning the situation on the ground.

12 A. Yes. There are rules of reporting. I don't know the frequency,,

13 but there would be a number of reports sent to the OSCE on the -- on the

14 situation on the ground. And I would have -- I don't think I read every

15 single report. I, of course, could have had access to every one, but the

16 secretariat in Vienna would have them all.

17 Q. Yes. I understand. So the address we should apply to for

18 Mr. Walker's reports would be the secretariat of the OSCE in Vienna?

19 A. That is correct, that is correct.

20 Q. Thank you.

21 [Defence counsel confer]

22 MR. FILA: [Interpretation]

23 Q. You said that you contacted the Minister of Foreign Affairs

24 Zivadin Jovanovic on more than one occasion. I have these reports. I

25 will not show them to you because it was not you who compiled them but

1 others. But would you please explain whether these meetings, one of which

2 was attended by Nikola Sainovic, were constructive. How would you

3 describe them?

4 A. It may be difficult, Your Honours, to describe those meetings.

5 But sometimes they were a little bit constructive, and I thought maybe

6 that we moved ahead. But I felt very often that I -- it didn't lead any

7 way, and at the end it kind of stopped. We had some specific cases that I

8 managed to solve.

9 We had a hostage case with some -- and we had the situation with

10 the declaration or the threat of declaration of Ambassador Walker persona

11 non grata that I managed to solve. So we solved some of the specific

12 issues, but to describe them when I think back as very constructive

13 meetings, I think I would have a problem with that.

14 Q. Very well. Thank you. My next question is: How come you never

15 saw the Milosevic-Holbrooke Agreement, that nobody showed it to you, and

16 we have it in a book, in the book of documents from Rambouillet?

17 A. That's a good question. I think at that time before -- at least

18 before the Rambouillet, it was looked upon as something that was a

19 bilateral or a kind of understanding. It wasn't an agreement that had

20 been signed within the framework of the OSCE.

21 It was Ambassador Holbrooke that kind of took an initiative,

22 wanted to help out. And I don't know whether it was Holbrooke who didn't

23 want it public or Mr. Milosevic who didn't want it public, but anyway it

24 wasn't made available to me at that time.

25 JUDGE BONOMY: Is this a suitable time to interrupt you, Mr. Fila?

1 MR. FILA: [Interpretation] No. I have one more question and then

2 it will be a suitable time.

3 Q. One more question I'm interested in is the following. You once

4 said that you were at a KLA position. I would like to know whether you

5 saw what kind of army this was. Did they have uniforms or not? What kind

6 of weapons did they have? Light weapons? Heavy weapons? What were your

7 impressions? And that will be my last question.

8 A. I don't think I could tell you I got an impression about the size

9 or the structure of the army. I was taken to two posts; one from the Serb

10 military post and one KLA post, in order to be shown how close they were,

11 the situation in the region, the tension. And so that was -- and also,

12 how the KVM worked with both sides. I think that was the structure or the

13 reason for it.

14 Q. Thank you very much.

15 JUDGE BONOMY: Thank you, Mr. Fila.

16 We have to break now, Mr. Vollebaek, for half an hour. Would you

17 please leave the courtroom with the usher. He'll show you where to wait.

18 [The witness stands down]

19 [Trial Chamber and legal officer confer]

20 JUDGE BONOMY: Mr. Marcussen, I would still like these exhibit

21 numbers for the various Rambouillet documents -- well, not the Rambouillet

22 documents. The preceding documents mainly, the ones in October.

23 MR. MARCUSSEN: We have some of them and there are some duplicates

24 in our exhibits. So I would ask the Court's indulgence. We'll take the

25 time to make sure we get the right numbers for you.

1 JUDGE BONOMY: Very well. We'll resume at ten to 1.00.

2 MR. MARCUSSEN: Thank you.

3 --- Recess taken at 12.22 p.m.

4 --- On resuming at 12.51 p.m.

5 [The witness takes the stand]

6 JUDGE BONOMY: Mr. Sepenuk, is it you on this occasion?

7 MR. SEPENUK: Yes, Your Honour. We have no questions.

8 JUDGE BONOMY: Thank you.

9 Mr. Ackerman.

10 MR. ACKERMAN: Your Honour, just very briefly. Very, very

11 briefly.

12 Cross-examination by Mr. Ackerman:

13 Q. Mr. Ambassador, I want to refer you to that moment you were up

14 near the border in Albania, and you talked to us about this matter of

15 ribbons. Who did you go up there with? Who accompanied you up there to

16 that location?

17 A. I was accompanied by members of my staff of the -- of OSCE. It

18 might have been someone from the Albanian government. I do not recall

19 that, but it was from the OSCE staff.

20 Q. And was it known by the people working up there at that location

21 that you were going to be coming there that day?

22 A. I don't know. I do not recall that. I recall that I was not very

23 satisfied with the UNHCR presence and their way of being organised; so at

24 least they hadn't -- if they knew in advance, they hadn't taken it

25 seriously. But there were a number of other people who were very

1 well-organised like local church groups and local NGOs that had been there

2 already for some days.

3 Q. I assume that a person of your stature arriving there and being

4 there was -- kind of spread like wildfire. I think everything probably

5 learned very quickly that Ambassador Vollebaek was present.

6 A. That could be. That could very well be. But as I said not

7 everyone had done what they should have done if they knew it.

8 Q. Now, how far was it from the actual border crossing where you

9 found yourself talking to people who had come across that border?

10 A. It was on the border itself.

11 Q. All right. And who had they encountered that you could see prior

12 to your opportunity to actually have a chance to ask a question or

13 something?

14 A. I don't think they had had a chance to see anyone actually,

15 because there was a long, long queue of people. And they -- I spoke -- I

16 was standing literally on the border and I could, of course, watch them as

17 they approached. And as I recall, they were not -- they didn't speak to

18 anyone except among themselves probably, and then they were, as I said,

19 met with an NGO as soon as they crossed and were given water and bread.

20 Q. And the interpreter that you had with you that you used, where did

21 that interpreter come from? How did you wind up with that particular

22 interpreter?

23 A. I always used OSCE interpreters.

24 Q. So this was someone who worked for OSCE, that was an official OSCE

25 Albanian interpreter?

1 A. As I recall, yes.

2 Q. All right. And how were the people that you actually talked with,

3 the people who you actually had a conversation with through this

4 interpreter, how were these people chosen?

5 A. I just went up to them and said hello or spoke to them as they

6 passed.

7 Q. All right.

8 A. No one chose them for me.

9 Q. That's all. Thank you.

10 JUDGE BONOMY: Thank you.

11 Mr. Bakrac.

12 MR. BAKRAC: [Interpretation] Your Honour, thank you. I hope I

13 won't be much longer than my colleague Mr. Ackerman.

14 As for my first question to the Ambassador I would like to rely on

15 what Mr. Ackerman already asked about.

16 Cross-examination by Mr. Bakrac:

17 Q. [Interpretation] I'm only interested in asking you the following,

18 Mr. Ambassador, can you recall and for the purposes of our Defence case

19 what was the border post that you were at on that day that you discussed

20 now with Mr. Ackerman?

21 A. No. I'm afraid not, but that of course we could find out. This

22 was in the northern part of Albania. I visited two border posts; one in

23 Macedonia and one in Albania. And I must admit I do not recall the name

24 of the border posting, but it shouldn't be -- that of course are in the

25 files and the archives. It shouldn't be very difficult to find.

1 MR. BAKRAC: [Interpretation] Your Honours, perhaps it's not much

2 of a problem for me, but there is no interpretation, and I assume that the

3 accused did not receive interpretation of the Ambassador's answer either.

4 JUDGE BONOMY: Is there now interpretation?

5 MR. BAKRAC: [Interpretation] Now we can hear the interpretation,

6 yes. But the answer was not interpreted at all, and I see that there has

7 been a reaction on the part of the accused.

8 JUDGE BONOMY: Very well.

9 Let's have the answer given again from page 85, line 3, of the

10 transcript, in B/C/S.

11 THE WITNESS: Your Honour, should I reply or --

12 JUDGE BONOMY: No, no. The interpreter will read what's on that

13 into B/C/S I hope.

14 MR. BAKRAC: [Interpretation] Thank you.

15 JUDGE BONOMY: That has been clarified, has it?

16 MR. BAKRAC: [Interpretation] Yes, Your Honour, thank you. Now we

17 have a full interpretation of the entire answer.

18 Q. Mr. Ambassador, if I understood you correctly on that same day,

19 you were at two different border crossings in Macedonia and Albania?

20 A. No, that is not correct. I -- how should I say. During this

21 process, I visited two border crossings; one in Macedonia and one in

22 Albania, but not on the same day, two different occasions. I think, if I

23 may add, that this -- there was only one border crossing into Albania. I

24 think the refugees came only through one border post into Albania, so as I

25 said it could be easily found, the name of it.

1 Q. Thank you. Mr. Ambassador, today during the direct examination by

2 Mr. Marcussen on page 44, the last two lines, 24 and 25, and 45, on the

3 very -- at the very beginning, at the beginning of March when you were in

4 Kosovo in the area of Podujevo, you noticed the presence of more troops

5 than would be in accordance with your agreement. What agreement did you

6 mean? It is unclear from the transcript.

7 A. There was an agreement, a signed agreement between, as far as I

8 recall then again, the OSCE and the Government of Yugoslavia to the number

9 of troops that could be posted to Kosovo. And one of the tasks of the KVM

10 was to verify that this was not violated, that the number was according to

11 the agreement with the OSCE.

12 And we had heard or I had received reports from KVM that they

13 thought that this number was increasing and that it could be in violation

14 of the agreement, and this was also one of the issues that I raised with

15 Mr. Milosevic when I spoke to him on the phone on the 24th of March,

16 because I -- there was a lot of military people when I visited Kosovo in

17 the beginning of March.

18 Q. Mr. Vollebaek, can you remember the number envisaged by this

19 agreement; that is to say, the force level?

20 A. No, I do not recall.

21 Q. What would you say to me, Mr. Ambassador, if I were to put it to

22 you that this agreement did not envisage a particular number of troops at

23 all?

24 A. I would say that I think you are wrong, but I do not have the

25 agreement in front of me. But I was under the impression and I still am

1 under the impression that there was a level agreed to.

2 Q. Were you under that impression or do you know that for sure?

3 A. As I have repeated several times, this happened eight years ago

4 and a lot of things have happened in my life after that. And I must, in

5 all honesty, say that I do not recall, but I was -- I do recall that I

6 definitely was under the impression at that time.

7 Q. I did not ask you about the number, but now you finally said to me

8 that you were under that impression and that will do as far as I'm

9 concerned. Thank you. I'll move on to my next question.

10 Do you know that the representatives of the OSCE, with the members

11 of the Army of Yugoslavia, at the time when Rambouillet was taking place -

12 and we have heard testimony to that effect - assessed that there were less

13 troops there to protect the state border from incursions by terrorists

14 from Albania. Are you aware of that?

15 A. Excuse me, could I -- I don't think I understood the question.

16 Could you repeat it, please.

17 Q. Do you know that the representatives of the OSCE, with the members

18 of the Army of Yugoslavia, assessed that there was a shortage of troops,

19 especially to protect the state border, at the relevant time that we're

20 discussing; that is to say, the Rambouillet negotiations?

21 A. Not that I recall, but there might be -- we may talk about two

22 different things. One is the protection of the border and one is the

23 presence inside Kosovo.

24 Q. And do you recall, since you say that there had been reports, how

25 many troops were there in the field? Did your verifiers have actual

1 figures as to the personnel levels there?

2 A. That could very well be that they had and it may also be that

3 that's in the report in Vienna. I do not have the figures here.

4 Q. And if I say to you now, Mr. Ambassador, that OSCE representatives

5 testified here and that in their testimony we can find assertions to the

6 effect that they were not aware of such figures, what would you say to

7 that?

8 A. I would be surprised.

9 Q. Thank you, Mr. Ambassador. Now I would just like to touch upon

10 yet another topic. It has to do with the transcript page 45, lines 14 to

11 21. Again, it is the visit in the area of Podujevo in early March. It is

12 not clear to me from the transcript.

13 You said that you were born in the country and you know what the

14 difference is between a haystack burning and a house being set on fire.

15 It is my impression on the basis of this that you just saw smoke rather

16 than what it was that was actually burning, right?

17 A. Yes. To my recollection, we saw smoke. But it was smoke coming

18 out of clusters of houses, and we saw a lot of burnt-out houses and

19 destroyed houses. So I was, as I recall it, very convinced at that time

20 that one never talked about burning haystacks. And I told that to

21 Mr. Milosevic in very uncertain terms. I was never in doubt at that time.

22 Q. But, Mr. Ambassador, you didn't know whose houses they were,

23 right?

24 A. If you mean the owner, no.

25 Q. And do you know from your reports. And we have here the testimony

1 of a witness from the KVM. It was not a protected witness. I can even

2 tell you who it was; it was Ciaglinski. The transcript page is 6902. I

3 can read it out, actually, and I apologise in advance for my perhaps poor

4 English. I'm going to read the question and the answer.

5 [In English]" -- Also know as a result of KLA activities and the

6 fact that they took control of large territories, another 36 villages were

7 cleansed of Serbs and other non-Albanians while the mission was in

8 Kosovo."

9 [Interpretation] The answer of Mr. Ciaglinski is: [In English] "I

10 believe that there was some of that type of cleansing going on by the KLA,

11 yes."

12 [Interpretation] And what was being referred to are 36 villages

13 precisely in the area of Podujevo, where you were. Do you know of that

14 kind of report?

15 A. Yes, I do. We had several reports also by KVM on activities by

16 KLA or I don't know if we knew they were KLA, but by Kosovo Albanians that

17 were in violation; and, of course, we addressed those in the same way as

18 we addressed the other. I was told on this visit by KVM which knew,

19 presumably, which villages were what kind, that these villages that I

20 visited or saw having been destroyed were Kosovo Albanian villages.

21 Q. And, again, as you said yourself, that is what you assume?

22 A. Yes. But it's a little bit more than an assumption, because we

23 had, I would say, fairly good reports on where people lived and who did

24 what to whom. And to repeat myself, we knew of very severe activities by

25 the Kosovo Albanians that we objected to and protested, but on this

1 occasion it was no doubt that this was done by Serbs.

2 MR. BAKRAC: [Interpretation] Your Honours, I have no further

3 questions of this witness. Thank you very much.

4 Q. And I would like to thank you, Mr. Ambassador, for your answers.

5 JUDGE BONOMY: Thank you, Mr. Bakrac.

6 Mr. Ivetic.

7 MR. IVETIC: No questions, Your Honour, for this witness.

8 JUDGE BONOMY: Thank you.

9 Mr. Marcussen.

10 MR. MARCUSSEN: Thank you, Your Honour. I don't have any

11 questions in re-direct.

12 [Trial Chamber confers]

13 JUDGE BONOMY: That does complete your evidence to the Tribunal --

14 well, at least this Trial Chamber. I don't know if anyone else will call

15 you back. Thank you for coming again for coming to the Tribunal to give

16 your evidence, and you're now free to leave.

17 THE WITNESS: Thank you, Your Honours.

18 [The witness withdrew]

19 [Trial Chamber and legal officer confer]

20 JUDGE BONOMY: We now have to deal with the question of

21 trial-related protective measures for the next witness, K79, and probably

22 should do this in private session?

23 MR. MARCUSSEN: That would probably be best. The filings have

24 been filed confidentially and I think we should stick to that.

25 JUDGE BONOMY: Well, we'll go into private session for that

1 purpose.

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10 [Open session]

11 JUDGE BONOMY: Yes, Mr. Ivetic.

12 MR. IVETIC: Thank you, Your Honour. I apologise. We had

13 advised --

14 THE REGISTRAR: We are in open session, Your Honours.

15 MR. IVETIC: I apologise.

16 We had advised the Office of the Prosecutor that we would be

17 moving to exclude the evidence of this next witness that is beyond the

18 scope of the indictment. We could present oral arguments on that or if

19 Your Honours wish we could probably get together a quick written

20 submission on that and get it filed within the next two hours or so, so

21 that Court could have it to consider. Just in terms of the fact that we

22 do have some time. I don't know whether we could complete the

23 discussions.

24 JUDGE BONOMY: What is the argument?

25 MR. IVETIC: The fact that basically, Your Honour, there's two

1 types of evidence that is contained at least in the witness statement for

2 this witness. There is material from 1998 that is temporally outside the

3 scope of the indictment; and then the material from 1999 that is listed,

4 as far as we have been able to determine - we've cross-referenced all of

5 them now - none of the events that are from 1999 relate to charged

6 incidents in the indictment in terms of - and then they talk about crimes

7 that are not even alleged.

8 So, basically, it's the same arguments that were presented with

9 respect to K83 whose testimony the Trial Chamber did exclude that what the

10 Prosecution has done is take someone who is not relevant to this

11 indictment and wants to present him with the aim of having the Trial

12 Chamber make inferences from that about the alleged conduct that is

13 relevant to the indictment, which we believe is -- would be an improper

14 inference.

15 The fact that this witness was not listed in the pre-trial brief

16 as supporting this indictment and the fact that the indictment was not

17 amended to include any of the allegations being made by this witness make

18 it squarely a situation identical to that with K83, where we have a whole

19 lot of evidence, none of which appears in any of the paragraphs of the

20 indictment, specifically or generally. And we're concerned about that and

21 we want to -- we want to -- we want to have that evidence removed.

22 Now, at the end of the day, I don't know what would be left of

23 this witness, if anything, but I think we need to have a clear ruling on

24 that because, essentially, if it's not in the indictment, we ought not to

25 be charged with rebutting it and defending against it because of the

1 manner of which the indictment is supposed to serve as notice to the

2 accused.

3 So that's the just of our submission as I indicated. If you

4 wanted details I could put them together in a written submission, but

5 that's the gist of it and since we did have this time I wanted to bring it

6 to Your Honour's attention now.

7 JUDGE BONOMY: What could you add in a written submission?

8 MR. IVETIC: Just identifying specific paragraphs of the

9 statement --

10 JUDGE BONOMY: And then find what's not there?

11 MR. IVETIC: And then find what's not there, right. I think, from

12 our review, that there is nothing that would be left of the witness. I

13 have not found a single one that was listed in the indictment, but I could

14 at least categorise them at least from ones that are from the 1998 and

15 ones that are subject to this objection.

16 JUDGE BONOMY: Are you supported by this in any of your

17 colleagues?

18 MR. IVETIC: I have not had a chance to talk with any of them

19 about it, so I don't know.

20 JUDGE BONOMY: I suppose one's as good as six in a situation like

21 this, unless the others are anxious to retain the -- or to have the

22 evidence of the witness.

23 Mr. Ackerman.

24 MR. ACKERMAN: Your Honour, just with regard to your last comment,

25 this witness is almost exclusively with regard to police activities and so

1 most of us really have no interest in making that objection, frankly.

2 JUDGE BONOMY: Thank you.

3 MR. ACKERMAN: But I would certainly support it if it's outside

4 the indictment, as he says.

5 JUDGE BONOMY: Thank you.

6 Mr. Marcussen.

7 MR. MARCUSSEN: Would you like me to address the issue of whether

8 or not we should have written filings or would you like --

9 JUDGE BONOMY: No. We're not having written filings. We want to

10 hear what you have to say on this.

11 MR. MARCUSSEN: Well, Your Honours, this witness is clearly

12 relevant to the case, although my learned colleague is right. This is not

13 a witness that testifies specifically about any of the charged incidents.

14 It was mentioned that this witness is not referred to in the pre-trial

15 brief; that's also correct. Now, the witness only gave his statement to

16 the Office of the Prosecutor after the pre-trial brief was filed or just

17 around the time when that brief was filed. So that's why there's no

18 reference to the witness in the pre-trial brief.

19 The witness was added to the witness list prior to trial. The

20 statement has been disclosed to the Defence on the 31st of July. So I

21 think it has been quite clear for a while that this is a witness that we

22 find relevant, and it's unfortunate that we get the objection now that the

23 witness is here. As to the relevancy of this witness --

24 JUDGE BONOMY: When should the objection have been made?

25 MR. MARCUSSEN: In my submission, when the witness was added to

1 the Prosecution's witness list or before we -- we give notification of

2 what witnesses we're going to bring a month in advance. We file a

3 witness -- we file weekly notifications of what witnesses we're bringing.

4 When these sort of things come up last minute, what it means is

5 that we're bringing these witnesses up, some of which are sensitive

6 witnesses in our view. They've now been exposed to the dangers that we

7 think they're being exposed to by coming here and testifying. And it's

8 just unfortunate that we get this kind of objection I think at this last

9 stage. We are not -- we ourselves happen to be late at a time.

10 JUDGE BONOMY: I just wonder if there's another mechanism for

11 dealing with this. I'm not sure that there is.

12 [Prosecution counsel confer]

13 MR. MARCUSSEN: Well, anyways, in terms of the relevancy of this

14 evidence, one of the issues in this case is how -- how operations were

15 conducted in Kosovo during the indictment period. As is clear from our

16 pre-trial brief, it is the Prosecution's submission that there was a

17 pattern established in 1998 in the way that so-called anti-terrorist

18 operations were conducted in Kosovo. They involved excessive use of

19 force. We have had evidence about how these operations were planned.

20 What this witness brings is evidence from the ground about how

21 these operations were carried out. The witness gives evidence about --

22 specifically about crimes committed in September of -- during a big

23 operation in September of 1998. We've mentioned this operation in the

24 pre-trial brief. The witness will give evidence about how the police and

25 his unit in the PJP operated together with members of the army. The VJ,

1 how they were attached to the company that this witness was in.

2 They were assigned tanks and Pragas that regularly were used

3 during the operations they went out on. So this 1998 evidence is

4 critical to assessing the nature of these operations that were carried out

5 in 1998 and, we submit, were carried out in a similar way in 1999. The

6 witness also can give an overview of how the PJP was organised. He will

7 mention the name of a number of people in his PJP unit. He will provide

8 their radio call signs, which is relevant specifically to the assessment

9 of which PJP units were involved in -- in the events in Suva Reka on the

10 26th of -- 25th and 26th of March, 1999, which is covered by the

11 indictment.

12 And the -- the specific evidence give about crimes committed in

13 1999, although it is not -- it doesn't relate directly to our crime sites.

14 We submit that this is -- this evidence is relevant to assessing how these

15 operations were carried out. The witness will say that he was given

16 orders to expel Kosovar Albanians, for example, from their houses and tell

17 them to leave the country. In our submission, this will clearly show a

18 pattern of conduct and the evidence is, in our submission, very relevant

19 for the issues that the Trial Chamber has to determine in this case,

20 issues like the level of preparation that went into these operations.

21 The witness is mentioning that before the operations that he was

22 participating in in September 1998, his unit received orders from -- from

23 officers that had been with Lukic in Pristina and how his superior officer

24 would come back to the unit and launch these operations. All of this

25 evidence is clearly relevant to this case and this witness should be

1 allowed to testify. Thank you.

2 JUDGE BONOMY: Mr. Ackerman.

3 MR. ACKERMAN: Well, Your Honour, if what Mr. Marcussen has just

4 told you is correct, we have a new and I think serious problem, and that's

5 another failure of notice. None of the information we've been given

6 indicates that this witness is going to have anything to say about any

7 kind of joint operations with the VJ.

8 And if somehow the Prosecution has that evidence, they've not

9 given it to us. We don't have any notice of it, and the unfairness of

10 that is patent on its face I think. Maybe he misspoke and maybe that's

11 not what the witness is going to say, but if he is we certainly should

12 have had that notice.

13 JUDGE BONOMY: Mr. Marcussen.

14 MR. MARCUSSEN: Your Honours, the evidence that the witness is

15 going to give on this point the Defence have been given full notice of.

16 First of all, the Defence have had the statement disclosed since the 31st

17 of July last year. Secondly, it's true that the 65 ter summary was kept

18 extremely short for the purpose of protecting the witness, but it's quite

19 clear, for example, from paragraph 12 of the statement that the witness's

20 unit was carrying out operations jointly with army units.

21 So there's no surprise in that; and when we filed our witness

22 notification last week, we specifically included a note saying that in

23 order to avoid any misunderstandings, we wanted to make clear that we were

24 going to lead evidence on every single point covered by the statement of

25 the witness statement. So in my respectful submission there is no of

1 notice issue arising from it in relation to this witness. Thank you.

2 JUDGE BONOMY: Thank you.

3 We will consider these submissions also and decide the matter this

4 afternoon, if possible. That particular decision may have to await

5 tomorrow morning, but if we can we will deal with it this afternoon and

6 intimate the decision so that you're prepared for tomorrow whatever

7 happens. We'll now adjourn now to 9.00.

8 --- Whereupon the hearing adjourned at 1.45 p.m.,

9 to be reconvened on Thursday, the 1st day of

10 February, 2007, at 9.00 a.m.

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