Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11960

1 Tuesday, 20 March 2007

2 [Open session]

3 [The accused entered court]

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

5 JUDGE BONOMY: As the witness in coming in, we can make

6 arrangements for the closed session continuation of the hearing. No, just

7 bring him in. It's okay.

8 [The witness entered court]

9 JUDGE BONOMY: Good morning, Mr. Phillips.

10 THE WITNESS: Good morning, sir.

11 JUDGE BONOMY: The cross-examination will continue. I simply have

12 to remind you that the solemn declaration to speak the truth which you

13 gave at the outset of your evidence continues to apply until it finishes.

14 THE WITNESS: Yes, sir.

15 [Closed session]

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Page 11961











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Page 11994

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12 [Open session]

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


15 Q. Okay. I'm just going to take you through some of your evidence

16 and ask you to clarify something. You said when I asked you questions

17 first that you met -- or you were present at a meeting where

18 Mr. Milutinovic was present with Mr. Milosevic.

19 A. Yes.

20 Q. How many meetings were you present at that Mr. Milutinovic was

21 present at?

22 MR. O'SULLIVAN: Your Honour --

23 JUDGE BONOMY: Mr. O'Sullivan.

24 MR. O'SULLIVAN: -- I'm going to object to this. In direct

25 examination my friend asked the witness whether he recalled a meeting on

Page 11995

1 the 15th --

2 JUDGE BONOMY: Do you want the witness to be here while you're

3 making this objection?

4 MR. O'SULLIVAN: Maybe it's best that he leave, yes. I think it

5 should be done in the absence of the witness.

6 JUDGE BONOMY: Could you just leave the courtroom briefly, please,

7 Mr. Phillips, while we deal with this.

8 [The witness stands down]

9 MR. O'SULLIVAN: Your Honour, my submission is this, that my

10 learned friend on direct examination asked the witness if he recalled a

11 meeting with Mr. Milosevic on the 15th of December, 1998. He answered

12 that it was on the 24th of November, 1998. He explored that meeting with

13 the witness, and at no time during direct did he ask the witness whether

14 there was any other meeting. He asked only about that one encounter on

15 the 24th. It was open to the Prosecution to ask whether there were other

16 meetings at which he was present, the witness was present with

17 Mr. Milosevic. That should have been done on direct. It's not

18 appropriate to open this question on re-examination.

19 JUDGE BONOMY: Unless he was only concerned about one issue and

20 therefore essentially about one meeting and the matter is now in a

21 different state from when he was examining the witness and clarification

22 is sought.

23 MR. O'SULLIVAN: Well, my point is he could have explored that

24 with the witness on direct examination and --

25 JUDGE BONOMY: Yeah, but he may have taken the view it was

Page 11996

1 pointless in view of the answers he got. He was satisfied with the

2 answers.


4 JUDGE BONOMY: You then had a very successful cross-examination,

5 and the -- in view of the very first question Mr. Stamp asked in

6 examination-in-chief, it may be that it's an issue over which there is

7 some confusion.

8 MR. O'SULLIVAN: Well, this --

9 JUDGE BONOMY: I -- I mean, I understand the point you're making.

10 I have no difficulty understanding your point, but I think this often

11 happens with cross-examination and what the Prosecutor may have thought

12 was a simple issue is clearly not as simple as he regarded it at the

13 time. Now --


15 JUDGE BONOMY: -- that may require clarification.

16 MR. O'SULLIVAN: Right.

17 JUDGE BONOMY: Is there any other point you want to make?

18 MR. O'SULLIVAN: No, except I may -- depending on where it goes, I

19 may seek leave to re-cross, but I'll do that if it arises.

20 JUDGE BONOMY: Mr. Stamp, your response to this, please.

21 MR. STAMP: Your Honour, the evidence of the witness was pretty

22 clear in examination-in-chief, but when he was cross-examined he was

23 cross-examined on point about a date, the 24th of November, and he

24 indicated in cross-examination or appeared to indicate that he was not

25 sure about the date. So there might not have been a meeting with

Page 11997

1 Mr. Milutinovic and Mr. Milosevic on that date, the 24th of November, and

2 he did indicate that there were at least two meetings in which

3 Mr. Milutinovic was present involving two letters, one letter being a

4 letter explaining the context of the KVM mission and one letter being a

5 letter of complaint and that the letter explaining the context -- the

6 meeting in respect to the letter explaining the context of the KVM mission

7 was a friendly meeting, and I think that was brought out by one of the

8 Defence counsel in cross-examination.

9 JUDGE BONOMY: When do you say that the witness claimed there were

10 at least two meetings?

11 MR. STAMP: I don't think the witness explicitly said there were

12 at least two meetings. The witness spoke about meetings, one in respect

13 to a letter dealing with the framework of the KVM mission and he said that

14 was a friendly meeting. He spoke of another meeting dealing with

15 complaints that Mr. Walker transmitted in another letter. And he says

16 that was a meeting in which Mr. Milosevic was shouting. So it appears

17 from what -- from what came out in cross-examination - and it's not

18 necessarily the cross-examination of Mr. O'Sullivan - that the witness is

19 uncertain as to the date and he's uncertain as to whether or not the --

20 the letter that he spoke of in examination-in-chief was the letter or was

21 the letter that afforded the occasion for the meeting he described in

22 examination-in-chief.

23 Yes, it's being pointed out to me now at page 11945 of the

24 transcript, and I'm not sure who is asking questions here. The witness

25 says -- or the witness is asked: "You say it went out on Wednesday 25th

Page 11998

1 of November, that is a letter, and what I'm wondering is whether you

2 actually discussed this letter with Mr. Milosevic on the 24th when you say

3 it didn't go out on the next day, the 25th."

4 The witness answered: "Yeah, all good points, I'm clearly

5 confused with the dates. We met with Milosevic. We delivered a letter to

6 him that made him upset. You know, I would have to go back and look at

7 the dates, but even now I'm confused now on what the date is."

8 JUDGE BONOMY: Yeah, but that's immaterial. The question in

9 relation to whatever date it was is whether Mr. Milutinovic was present.

10 MR. STAMP: And the passage goes on:

11 "Q. Now, I assume the only meeting you can be talking about is

12 the one where you deliver this letter, where you say that Mr. Milosevic

13 was very upset and yelling and make a lot of noise and -- my apologies.

14 And the witness answered in respect to a representation made by

15 counsel: "Well, there were several meetings," and the witness is

16 answering in the context without re -- I would probably have to read the

17 entire page, but the context -- if I may represent to the Court, the

18 context of when this meeting in which Mr. Milutinovic just fell into

19 place.

20 JUDGE BONOMY: But that's a reference to Milosevic. It's not a

21 reference to Milutinovic.

22 MR. STAMP: The question started out as to when is it this meeting

23 that he says took place on the 25th that he says -- 24th, that he says

24 Mr. Milutinovic participated in on the 24th took place, because it was

25 discovered that his diary indicated that he was at dinner in Pristina on

Page 11999

1 the 24th. So the witness is speaking about the meetings -- the meeting

2 that he thought was on the 24th --

3 JUDGE BONOMY: There's never been any suggestion so far in the

4 evidence that Mr. Milutinovic met the witness twice, has there?

5 MR. STAMP: I believe what the witness is saying here at the

6 passage is I just cited from 11842 forward --

7 JUDGE BONOMY: This is on the 19th?

8 MR. STAMP: Yes.


10 MR. STAMP: 11842.

11 JUDGE BONOMY: -- 842.

12 [Prosecution counsel confer]

13 JUDGE BONOMY: Yeah, this is the examination-in-chief.

14 MR. STAMP: That's examination-in-chief.


16 MR. STAMP: Where he speaks explicitly on the 24th of a meeting

17 with Milosevic.


19 MR. STAMP: In cross -- and Mr. Milutinovic. In cross-examination

20 he's referred back to that meeting.


22 MR. STAMP: And he says: "I am not sure about the date of the

23 meeting."


25 MR. STAMP: There were more than one meeting.

Page 12000

1 JUDGE BONOMY: Yes, with Milosevic.

2 MR. STAMP: The meeting that we're discussing on the 24th is a

3 meeting in which he was asked explicitly who were there and he says

4 Mr. Sainovic, Mr. Milosevic, Mr. Milutinovic on one side.

5 JUDGE BONOMY: Well, give me the page for the reference to more

6 than one meeting.

7 [Prosecution counsel confer]

8 JUDGE BONOMY: Just give me the page reference, please. Never

9 mind the debate among yourselves. Just give me the page reference.

10 MR. STAMP: I'm trying to find the page reference.

11 [Prosecution counsel confer]

12 MR. STAMP: Page 11861. 11945 to 946.

13 JUDGE BONOMY: There's no reference to more than one a meeting at

14 11861.

15 MR. STAMP: 1194 -- as I indicated, one has to look at the

16 progression of the cross-examination.

17 JUDGE BONOMY: 119 --

18 MR. STAMP: 459 to 46.


20 But it's in the context of meeting Milosevic he says there were

21 several meetings.

22 MR. STAMP: The witness was asked about the meeting with

23 Mr. Milutinovic that took place on the 24th. He was cross-examined about

24 this. That's the second passage that I cited. So he's speaking in the

25 context of a meeting which he thought occurred on the 24th with

Page 12001

1 Mr. Milutinovic, Mr. Milosevic, and others. The cross-examination later

2 on focused on the same meeting and the witness is saying, Well, I'm not

3 sure about the date or dates, there were several meetings.

4 Now, the witness does not in any of -- apart from when I examined

5 him directly, explicitly name everybody in these meetings that he's

6 speaking about, but the cross-examination proceeded on the basis of the

7 examination-in-chief about this meeting on the 24th when these named

8 persons were present.

9 JUDGE BONOMY: What was the second reference you gave me, the

10 first part of the cross-examination?

11 MR. STAMP: 11 --

12 JUDGE BONOMY: Was it 861?

13 MR. ZECEVIC: 861, Your Honour. 11861.


15 Now, I can't see the edge of my transcript, but the answer

16 was: "I can tell you it's a possibility that he was not there," is it?

17 The word's off the end of my -- it's 11862, line 4.

18 MR. STAMP: Yes, Your Honour. That is --

19 JUDGE BONOMY: "It's been eight years like you said, my notes are

20 what my ..." What's the next word?

21 MR. STAMP: "My notes are what my notes say and I relied on my

22 notes at the time."

23 JUDGE BONOMY: And is this referred to in his notes?

24 MR. STAMP: The -- the meetings with Mr. Milosevic are not

25 referred to in his notes because those notebooks are unavailable; they are

Page 12002

1 missing.

2 JUDGE BONOMY: All right.

3 MR. STAMP: What transpired -- that is why one has to look at the

4 examination-in-chief, the cross-examination of my friend, and the way it

5 progressed. In chief he gave answers in respect to the 24th. When he was

6 cross-examined by my friend he was focused on that date, the 24th --

7 JUDGE BONOMY: Yeah, I've got the point, Mr. Stamp. Thank you

8 very much.

9 [Trial Chamber confers]

10 JUDGE BONOMY: Mr. Stamp, we'll allow you to seek to clarify this

11 with exclusively open questions.

12 MR. STAMP: Thank you, Your Honour.

13 [Trial Chamber and registrar confer]

14 [The witness takes the stand]

15 JUDGE BONOMY: We can now proceed, Mr. Phillips.

16 Mr. Stamp.


18 Q. You told us in examination-in-chief that you were present at a

19 meeting with Mr. Milosevic on the 24th of November and you also said in

20 cross-examination that Mr. -- I withdraw that and I start again.

21 You told us in examination-in-chief that you were present at a

22 meeting with Mr. Milosevic, where Mr. Milutinovic was also present, on the

23 24th of November. And you also said in cross-examination that

24 Mr. Milutinovic might not have been there. Can you explain those two

25 statements, please.

Page 12003

1 A. Having thought about this last night, I was at a meeting with

2 Mr. Milosevic where I am certain at one of the meetings Mr. Milutinovic

3 was present. I may have mixed up my dates on the 24th. There is some

4 confusion, because we had a state dinner at the Intercontinental Hotel

5 with many of those same players. It is possible it was 4 December when

6 that meeting had taken place, but I am confused on the date and I am

7 fairly certain that at the first or second meeting with Mr. Milosevic,

8 Mr. Milutinovic was present.

9 Q. And at the meeting that Mr. Milutinovic was present at, what were

10 the matters discussed, if you recall?

11 A. I believe this meeting was a letter that was submitted to

12 Mr. Milosevic that was outlining areas of noncompliance by Serbian

13 security forces, and we were delivering a note to Mr. Milosevic to that

14 effect -- or a letter to Mr. Milosevic to that effect. And I can't recall

15 at this point if -- I know Mr. Walker wrote it but I can't recall if

16 Ambassador Miles actually handed it to Mr. Milosevic or if Mr. Walker did.

17 Q. When you were in chief I showed you a letter which was basically

18 setting out the framework of the KVM mission that you said was delivered

19 to Mr. Milosevic. Was this the same letter that you now speak of or was

20 it a different letter?

21 A. I believe it was a different letter. This OSCE letter outlining

22 the framework I believe was the first letter that was a relatively

23 friendly meeting with Mr. Milosevic that was a courtesy by Mr. Walker to

24 Mr. Milosevic to show him that we were there, that we were on the ground,

25 and this was the parameters of our mission mandate.

Page 12004

1 Q. Can you recall if at that meeting at which Mr. Milutinovic was

2 present if he said anything?

3 A. He did not speak, although at one point Mr. Milosevic conferred

4 with him on a matter but it was nothing that I heard or understood, but

5 spoke very little, if at all.

6 JUDGE BONOMY: Did we not at some stage see a letter drafted on

7 the 23rd of November?

8 MR. STAMP: The 24th of November, and if I may -- I don't know --

9 JUDGE BONOMY: 23rd, I think, Mr. Stamp.

10 And was that not a letter about noncomplying or was this a

11 friendly letter?

12 MR. STAMP: The exhibit P396 which I showed him - and Your

13 Honour's indeed correct - it's dated the 23rd of November I think is what

14 caused the confusion, the responsibility being entirely mine. I sought

15 to --

16 JUDGE BONOMY: What's that letter about, Mr. Stamp?

17 MR. STAMP: This letter is a letter setting out the framework of

18 the operations of the KVM mission dealing with the issues as to the

19 definition of heavy weapons, check-points, observation points, and this is

20 what I showed the witness --

21 JUDGE BONOMY: All right. Well --

22 MR. STAMP: -- in examination-in-chief.

23 JUDGE BONOMY: -- please carry on then.

24 MR. ACKERMAN: Well, Your Honour, if I may. My recollection of

25 the sequence was he was -- the witness was shown the letter. He said,

Page 12005

1 Yes, that's the letter we took to Milosevic on the 24th and when he saw

2 it, it got him very upset. So I don't think it's Mr. Stamp's fault. I

3 think the witness saw this letter, confirmed this was the letter that was

4 shown to Milosevic on the 24th and the one that got him upset. And the

5 testimony today is now different for whatever reason.

6 JUDGE BONOMY: All right. Please continue, Mr. Stamp.

7 MR. STAMP: I don't think this is the time and place for a

8 submission, but I should place on the record that that is not a correct

9 argument. But if -- but when the time --

10 JUDGE BONOMY: Well, you're right, it's a matter for later.

11 Please proceed.


13 Q. You were questioned about your meetings with Mr. Lukic and the

14 absence of a record -- of many records of those meetings in your notes

15 that you took at the time. And you indicated that sometimes you did not

16 accurately record all the persons present at these meetings.

17 MR. STAMP: I'd like -- and I think I need to ask leave of the

18 Court, I'd like leave to seek to put to the witness a part of his notes or

19 a part of the notes of his interview in 2001 to see if that could refresh

20 his memory. Before that --

21 Q. Do you recall speaking, and I think you've already said that, to

22 members of the OTP in 2001?

23 A. Yes.

24 Q. And do you recall discussing at that time meetings that you might

25 have had with Mr. Lukic?

Page 12006

1 A. In 2001?

2 Q. Yes.

3 A. I never met with Mr. Lukic in 2001.

4 Q. Do you recall discussing with people from the OTP --

5 A. Mr. Milbert Shin who is OTP asked me some questions regarding

6 those meetings.

7 Q. And you answered to the best of your recollection then?

8 A. Yes.

9 Q. If I indicated to you what your answers were, would that help you

10 to recall what the situation was?

11 A. I'm certainly willing to try.

12 MR. STAMP: I would like to seek to refresh his memory.

13 JUDGE BONOMY: Just a moment.

14 Very well.

15 I take it we should go back to closed session for this.

16 MR. STAMP: Yes, Your Honour. Thank you very much.

17 JUDGE BONOMY: And I take it the approach you're now taking is a

18 concession that these notes are actually a statement?

19 MR. STAMP: That is a very involved legal discussion --

20 JUDGE BONOMY: No if you're putting something to the witness that

21 he's supposed to have said.

22 MR. STAMP: Well, it's --

23 JUDGE BONOMY: And you wouldn't normally be allowed to put

24 something to a witness something that someone else wrote down that he

25 thought he said.

Page 12007

1 MR. STAMP: The notes contain a record of what he said and also

2 other material.

3 JUDGE BONOMY: That's interesting support for the Trial Chamber's

4 view. Please continue.

5 [Closed session]

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Page 12008











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Page 12010

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8 (redacted)

9 (redacted)

10 [Open session]

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

12 [The witness takes the stand]

13 JUDGE BONOMY: Mr. O'Sullivan.

14 MR. O'SULLIVAN: Thank you.

15 Further cross-examination by Mr. O'Sullivan:

16 Q. Sir, yesterday during your examination-in-chief when the

17 Prosecutor was asking you questions, he showed you the letter of 23

18 November 1998, which is Exhibit P396; correct?

19 A. Is that the OSCE --

20 Q. Yes --

21 A. Yeah.

22 Q. Yes, that's the one.

23 Now, a few minutes ago before the break - I'm looking at the

24 transcript now - the Prosecutor asked you this question. He said: "When

25 you were in chief," examination-in-chief, "I showed you a letter which was

Page 12011

1 basically setting out the framework of the KVM mission that you said was

2 delivered to Mr. Milosevic," that's the letter we're talking about, 23rd

3 of November. Then he asked you this question: "Was this the same letter

4 you now speak of or was it a different letter?"

5 And you answered: "I believe it was a different letter. This

6 OSCE letter outlining the framework I believe was the first letter that

7 was a relatively friendly meeting with Mr. Milosevic that was a courtesy

8 by Mr. Walker to Mr. Milosevic to show him that we were there, that we

9 were on the ground, and this was the parameters of our mission mandate."

10 Then there's the question: "Can you recall at that meeting in

11 which Mr. Milutinovic was present if he said anything?"

12 And you answered: "He did not speak, although at one point

13 Mr. Milosevic conferred with him on a matter but it was nothing that I

14 heard or understood but spoke very little of, if at all."

15 So you are saying that there is a letter that this first letter

16 obviously preceded the 23 November 1998 letter?

17 A. What I'm saying is I am struggling with two dates and two letters

18 and the timing of both. To the best of my recollection the OSCE parameter

19 letter was first, there was another letter that was second that was of a

20 compliance nature, which is the one that bothered Mr. Milosevic.

21 Q. Right. And when you say "the first letter" --

22 A. I'm referring to the OSCE letter.

23 Q. Right. Which would be before the 23rd of November, 1998?

24 A. Yes.

25 Q. Right. Now, I can represent to you that Mr. Walker met with

Page 12012

1 Mr. Milosevic on the 16th of November..

2 MR. O'SULLIVAN: And I'd like to call up Exhibit 1D476, and I'd

3 like the usher to hand the witness a hard copy.

4 Q. Sir, I'll just wait until the document appears on the screen. I'm

5 giving you a hard copy for you to follow. Sir, do you read Serbian?

6 A. Do I, no.

7 Q. Turn to the second page of that first of that document you have in

8 your hand, could you look at the second page. That's -- what you see

9 there is the front page of the newspaper called Politika, it's a Belgrade

10 daily, and it's dated the 17th of November, 1998, and the first page, if

11 you go back to it, I just want to show you what it is -- it is a

12 translation of certain passages from that front page which are relevant to

13 my questions for you. And if you had a chance to look quickly at that --

14 A. Okay.

15 Q. You see that it sayings that Ambassador Walker and his associates

16 met with President Milosevic yesterday, and you can see they were talking

17 about the mission. And you'll note that the only other person present at

18 that meeting is Mr. Sainovic, who, as we know, is the head of the

19 cooperation commission with the OSCE.

20 A. Mm-hmm.

21 Q. Now, sir, my point yesterday and my point today is that you are

22 mistaken, your memory has failed you, and Mr. Milutinovic was never a

23 participant in a meeting where you were present with Mr. Milosevic.

24 A. You know, the best I can tell you is I can't -- I can't dispute

25 that. I am struggling with the memory of eight years ago on this. My

Page 12013

1 notes are what my notes are and I rely on them after this period of time

2 and I very well could be wrong.

3 MR. O'SULLIVAN: No further questions.

4 JUDGE BONOMY: Could I see P396 on the screen, please. Can we

5 just move it up. Thanks. That's okay. Just leave it.

6 And the last -- next page, please.

7 Questioned by the Court:

8 JUDGE BONOMY: Now, does looking at that letter help you at all

9 saying whether that one was presented in the context of a friendly meeting

10 or a meeting at which there was anger expressed?

11 A. Your Honour, the -- there was one meeting that was -- that was

12 friendly. Mr. Milosevic came out, shook Ambassador Walker's hand in a

13 vigorous manner. There was another meeting and there was a letter that

14 went with that meeting about noncompliance issues, and it was not as

15 friendly a meeting.

16 JUDGE BONOMY: And can we take it that this is not the letter

17 about noncompliance meeting?

18 A. Yes, sir.

19 JUDGE BONOMY: About noncompliance, sorry.

20 A. Yes, sir.

21 JUDGE BONOMY: All right. Thank you.

22 [Trial Chamber confers]

23 JUDGE BONOMY: Is there anything arising out of that question

24 that's just been asked?

25 MR. STAMP: Nothing from the Prosecution.

Page 12014

1 JUDGE BONOMY: All right. Thank you.

2 Well, that completes your evidence -- oh, sorry.

3 Mr. Sepenuk.

4 MR. SEPENUK: Yes, excuse me, Your Honour. Yesterday Your Honour,

5 and I think also Mr. Stamp, invited me to let the provider know if there

6 were matters post-Rambouillet that we wanted to raise and I've done that,

7 and I'm still waiting to hear Mr. Stamp's final resolution of this or

8 comment on this. This was done in e-mail last night, e-mail this morning,

9 and in conversations.

10 [Prosecution counsel confer]

11 MR. STAMP: Yes.

12 JUDGE BONOMY: Mr. Stamp.

13 MR. STAMP: We did invite counsel if they wanted to ask anything

14 outside of the notebooks and the scope of the examination-in-chief to let

15 us know yesterday or last night so we could clear it transatlantically --

16 we got this today and we are in the situation of having to do the same

17 thing, clearing it on the spot, but --

18 MR. SEPENUK: Well, the e-mail was sent last night, when you say

19 you got it today. I sent an e-mail last night about this, Your Honour.

20 MR. STAMP: So the bottom line is that he can ask about these

21 matters. We don't object to him asking about these matters.

22 MR. SEPENUK: Yes, thank you, Mr. Stamp.

23 Thank you, Your Honour.

24 JUDGE BONOMY: What's involved in this, Mr. Sepenuk?

25 MR. SEPENUK: Very brief. I'd say it's going to take about two

Page 12015

1 minutes.


3 MR. SEPENUK: It's post --

4 JUDGE BONOMY: It's just one issue. Is that what you're --

5 MR. SEPENUK: It's one issue and it refers to the

6 post-Rambouillet. This is on the alleged excessive force and alleged

7 KLA -- excessive KLA reactions to that alleged excessive force.

8 JUDGE BONOMY: Very well.

9 MR. SEPENUK: Same -- and, Your Honour, we had a number of

10 exhibits that I mentioned yesterday for the record that we were going to

11 go into, but several of those -- most of those have been already referred

12 to in prior testimony. There are only two matters that I want to inquire,

13 and this will be very brief.

14 Further cross-examination by Mr. Sepenuk:

15 Q. And again, Good morning, Colonel Phillips. The first item I

16 wanted to ask you about concerned post-Rambouillet, you don't have notes

17 covering that, and this is a period in early March of 1999 and we have the

18 notebooks of General DZ. He also kept notes of what he was doing, he kept

19 diaries of what he was doing. And in his diary for the period March 1st,

20 1999, he says this about KLA actions.

21 "KLA actions on the ground are becoming increasingly

22 unrestrained. The return of the KLA leadership from France on 25 February

23 does not appear to have affected the situation for the good. KLA have

24 taken hostages in the Prizren region in the latest incident in a space of

25 detentions by the KLA. There has also been KLA activity around Kacanik,

Page 12016

1 an area which has been very quiet in recent months."

2 And my question to you, Colonel, is: Do you -- does your memory

3 jive -- is your memory in accord with what General DZ said in his diaries?

4 A. Yes, sir.

5 Q. Okay. And then the last question I have for you -- actually,

6 there's another matter that General DZ put in his diaries on March 2nd,

7 1999, he's talking about hostages and he says: "The two Serb wood-cutters

8 who had been taken hostage were handed over by the KLA in less than mint

9 condition. One was dead, the other had been badly beaten. The handover

10 only happened because of KVM's persistence with the KLA and there had been

11 a number of high-level appeals to the KLA up to and including HOM."

12 Does that also purport with your --

13 A. Yes, sir.

14 Q. And then the last question I have concerns a KVM fusion centre

15 report of -- and it's an OTP Exhibit 407 number 03525397, and this report

16 talks about an ambush in Pristina at approximately 1815 hours on 21 March

17 1999: "Four MUP were shot and killed and one was wounded in an ambush.

18 The attack happened near the Hotel Dea, D-e-a, in Pristina. The area has

19 been sealed off and a MUP investigation in ongoing." And the comment

20 is: "This attack appears to have been carried out by the KLA, the first

21 urban KLA attack against the MUP in Pristina. This could become a

22 flashpoint for Serb retaliation against Pristina residents."

23 Do you recall that event of March 21, 1999, the ambush by the KLA

24 of MUP personnel?

25 A. I recall the ambush and some extensive discussion on this, just

Page 12017

1 the urban nature of the KLA not just in Pristina but in other villages as

2 well.

3 Q. In other words, the attacks were starting to include urban areas?

4 A. Yes, sir.

5 MR. O'SULLIVAN: That's all I have, Your Honour. Your Honour,

6 there's one point for the transcript, page 56, line 2, I believe the first

7 word should be spaked not spaced.

8 JUDGE BONOMY: Thank you, Mr. O'Sullivan.

9 Mr. Fila.

10 MR. FILA: [Interpretation] I apologise, Your Honour, for taking

11 your time but I expected you to ask that question because it doesn't arise

12 out of cross-examination so I could not raise it myself. The witness said

13 yesterday that the Milosevic-Holbrooke agreement was something that

14 Milosevic didn't want to sign. I could not explore more as Defence, but

15 all of us here are interested in whether this agreement exists in

16 writing. And I would appreciate it very much if you could ask the witness

17 whether he knows anything about it.

18 JUDGE BONOMY: Do you have any objection to me asking that

19 question, Mr. Stamp?

20 MR. STAMP: No, not if you ask it.

21 Further questioned by the Court:

22 JUDGE BONOMY: There are fairly glib references made from time to

23 time to a number of agreements which are named after the so-called

24 participants in these agreements, and one of them is the

25 Milosevic-Holbrooke Agreement. Do you know if it exists in written form?

Page 12018

1 A. I believe it does, sir.

2 JUDGE BONOMY: Have you seen it?

3 A. I believe I have. This was initially the agreement that actually

4 allowed OSCE to stand itself up. I do not believe -- when I looked at it

5 I believe it was the foreign minister who had actually signed that

6 document and not Mr. Milosevic.

7 JUDGE BONOMY: Mr. Fila, I think further exploration of this is

8 not likely to be fruitful. I think --

9 MR. FILA: [Interpretation] I just wanted to assist you if you

10 allow me. The witness is obviously referring to the Jovanovic-Geremek

11 Agreement.

12 JUDGE BONOMY: Indeed, that's -- I think that it is unlikely to

13 assist us to try to explore recollection now of something that we don't

14 have a copy of.

15 MR. ZECEVIC: Your Honour, if I may, just one small matter with

16 the transcript, it's 56, 22, it says "the Aleksander." Actually it is the

17 attack happened. It says the Aleksander happened near the Hotel Dea.

18 JUDGE BONOMY: Thank you very much.

19 And do you have any re-examination on the point that was raised by

20 Mr. Sepenuk?

21 MR. STAMP: No, no re-examination.

22 JUDGE BONOMY: Thank you.

23 That now completes your evidence, Mr. Phillips. We are very

24 grateful to you to coming here to give evidence to the Tribunal. I think

25 it only right also to record the Trial Chamber's gratitude to Ms. Manning

Page 12019

1 and Mr. Horrigan for their assistance here and also for the very

2 cooperative way in which yesterday they assisted the expediency of the

3 conclusion of this trial by very quickly taking instructions on matters

4 which required urgent consideration.

5 So thank you again, Mr. Phillips. You're now free to leave.

6 THE WITNESS: Yes, Your Honour.

7 [The witness withdrew]

8 JUDGE BONOMY: Mr. Hannis, I asked you yesterday about one of the

9 exhibits in your second request for admission from the bar table, and my

10 concern was related to the exact nature of a piece taken from the

11 internet. Have you been able to advance investigation into that?

12 MR. HANNIS: No advance, Your Honour. I'll tell you what I have

13 done and what I know. It appears that that interview was done in

14 connection with a documentary that was presented on PBS, the Public

15 Broadcasting System, on a programme called Frontline. I don't know from

16 what I've been able to discover so far whether or not the general --

17 General Pavkovic's interview was a part of the -- of the portion that was

18 ultimately selected for broadcast. I've only been able to locate two

19 segments, and his was not in those two segments that were broadcast. We

20 are trying to make connections with officials there to see if we can find

21 the original interview tapes in the Serbian language but we don't have it

22 and I don't have any information that his interview was actually

23 broadcast.

24 JUDGE BONOMY: Thank you.

25 There's a general point arising from this because a number of the

Page 12020

1 exhibits that you seek to tender through Mr. Coo are documents which are

2 available only in English but plainly in their original form were either

3 broadcast or printed in Serbo-Croat. Now, what's your submission about

4 how we could satisfy ourselves about the authenticity of the English

5 version?

6 MR. HANNIS: Well, Your Honour, I think sitting in your seat, I

7 would want to see the original Serbian from which the English was

8 transcribed.


10 MR. HANNIS: I don't think it's satisfactory for you to have our

11 Serbian translation of our English.

12 JUDGE BONOMY: Yeah. So there is a problem that --

13 MR. HANNIS: There is, Your Honour.

14 JUDGE BONOMY: And how it's to be addressed is not yet clear.

15 We'll turn to that in a moment.

16 I want to do two things at this stage. I want to deal with the

17 request for the admission of exhibits from the bar table, that's the

18 second one filed on the 9th of March. We grant the application to exceed

19 the word limitation. We considered the application along with responses

20 from the accused Sainovic and Pavkovic. The accused Milutinovic joined

21 the Pavkovic response.

22 The Chamber recognises that its requirement that the Prosecution

23 should explain the relevance of each document to issues in the trial has

24 led to the inclusion of argument about the interpretation of the exhibits

25 in the submissions. The Chamber has confined its consideration to the

Page 12021

1 question whether each exhibit should be admitted and has made that

2 determination on the basis of the apparent authenticity and reliability

3 and the prima facie irrelevance of each exhibit. The Trial Chamber has

4 decided to admit all the exhibits tendered in this motion with the

5 exception of the one which we have just been discussing, which is P1378.

6 It's obviously open to the Prosecution to re-tender that with appropriate

7 supporting material.

8 We have decided to exhibit -- to admit all the others because we

9 are satisfied that there are sufficient indicia of authenticity and

10 reliability and a sufficient indication of relevance to do so. We wish to

11 add something about those where objection was taken to their admission.

12 In its final deliberations, the Chamber will give careful consideration to

13 the interpretation of these documents in light of all evidence bearing

14 upon them.

15 P531 and 1947 raised objections which were essentially challenges

16 to the Prosecution's interpretation of the documents rather than their

17 admissibility, and the same was the case in relation to 973 and 969. And

18 there will be a number of others on which I will make the same comment.

19 Exhibit 1010 appears to be a published verbatim account of a statement

20 made by the accused Ojdanic. The Chamber, as has been indicated before,

21 will consider admitting media reports of verbatim statements by the

22 accused where it's satisfied that the report is reasonably capable of

23 challenge by the accused and that its probative value is not substantially

24 outweighed by the need to ensure a fair trial. And this particular one

25 falls into that category.

Page 12022

1 In relation to Exhibit 1012, again we regard the submission as

2 essentially about the appropriate interpretation. We take together

3 Exhibits 1063 and 1064. These a Joint Command documents in 1998. The

4 Trial Chamber considers they are relevant to issues in the trial and that

5 the further arguments advanced on behalf of -- well, particularly by

6 Mr. -- on behalf of the accused Sainovic relate essentially to the

7 interpretation of these documents.

8 1157 and 1160 are again documents where the objection relates

9 principally to their interpretation and they do, in the opinion of the

10 Trial Chamber, bear to be genuine. In relation to 1198, much of the

11 objection there challenges the Prosecution's interpretation of the

12 document, and the other challenges do not indicate that it is other than

13 admissible.

14 Objection was taken by all three accused who objected to a series

15 of exhibits between 799 and 803. The first of these was I think - and I'm

16 pretty sure - mistakenly identified as 779 in Mr. Fila's submission.

17 We've assumed it was 799. Again, that objection essentially challenges

18 the Prosecution interpretation of the documents and, as we have said,

19 that's a matter for later.

20 I turn now to 1101. We consider that is relevant to a period

21 covered by the indictment, and beyond that the objection is again related

22 to interpretation. 1401, the objection relates essentially to

23 interpretation.

24 1428 is objected to in part because the proposed corroborative

25 document or the one it is said to corroborate, is not in evidence, and

Page 12023

1 that is P1468. Well, again the objection to 1428 is essentially an

2 objection to -- or an argument about its interpretation. But having

3 reflected on the relationship between these two documents and having

4 looked again at P1468, which is the handwritten document

5 entitled: "Meetings of the Joint Command for Kosovo and Metohija"

6 detailing 69 separate meetings in 1998, the Chamber has decided to

7 reconsider the decision it made on the 15th of December not to admit the

8 exhibit. Having done that, we consider that what's said in paragraphs 13

9 to 15 of the Prosecution motion of the 29th of January in combination with

10 the relationship between this document and 1428 leads to the conclusion

11 that it is necessary to admit the document in order to prevent injustice

12 to the Prosecution. On closely examining 1468, the Trial Chamber is now

13 satisfied that it bears the appearance of being an authentic rather than a

14 forged document.

15 There is then objection taken to a series of documents between

16 1429 and 1435. I take 1429, 1434, and 1440 together. These are each

17 relevant to an anti-terrorist operation in 1998 and thus to paragraph 95

18 of the indictment. 1433 is a 1998 document which is plainly relevant to

19 issues in the trial. 1432 and 1435 relate to events in 1998 which the

20 Trial Chamber consider to be relevant issues in the trial. Much of the

21 objection taken to these related to the Prosecution's interpretation.

22 1523 is an Article in Glas Javnosti dated the 18th of July, 1999

23 reporting the transcript of a TV Top Show appearance of the accused

24 Pavkovic and Lazarevic on Nis television, channel 5, on 16th July 1999.

25 It is in the original language and appears to be a verbatim record of what

Page 12024

1 was said and for these reasons we consider it should be admitted.

2 1528 is from the same publication, but on the 30th of January,

3 2001, and is a report of the appointment of the accused Lukic as the new

4 chief of the MUP -- sorry, as the new chief of the RJB of the MUP and of

5 Radosavljevic as the chief of the PJP. The report is in very specific

6 terms and its accuracy can, if appropriate, be challenged. We consider it

7 appropriate to admit that document, albeit it is a press report.

8 1855, although that document relates to 1990, that is a period on

9 which the Trial Chamber has heard some political and historical background

10 evidence. This document goes no further than that and indeed has an

11 element of formality that may be helpful to us in reaching such few

12 conclusions as may be necessary in relation to that period.

13 So that deals with the request.

14 I now wish to deal with the filing of the 19th of March which is

15 the further submission to joint Prosecution and Defence submission of

16 Annex C, that's documents agreed by the parties, filed on the 9th of

17 March. This filing now includes the exhibit numbers and makes it clear

18 that all but two contained in the original document are agreed. We have

19 also identified two which have already been admitted. The two to which --

20 on which there is plainly no agreement are 885 and 904. The two already

21 admitted are 1348 and 1635. The remainder of the document in this filing,

22 having been agreed to and assigned an exhibit number, are hereby admitted

23 into evidence.

24 I have one question for Mr. O'Sullivan arising out of this.

25 What's the position of the Weller book? Is it one of these documents

Page 12025

1 or --

2 MR. O'SULLIVAN: Your Honour, the Weller book is not one of those

3 documents.

4 JUDGE BONOMY: Have you extracted things from it and agreed them

5 in this one? No.


7 JUDGE BONOMY: So what is to be its position?

8 MR. O'SULLIVAN: The book -- and the pages from the book that

9 were used in evidence are recorded in the e-court system, so it's Exhibit

10 1D18 with a page range, which represents the actual documents that were

11 used with the witnesses.

12 JUDGE BONOMY: And have you sought agreement of the Prosecution

13 that these are an accurate reflection of events?

14 MR. O'SULLIVAN: No, we haven't, not yet.

15 JUDGE BONOMY: Would it not be a good idea? Because it seems a

16 handy way of reviewing the events of Rambouillet.

17 MR. O'SULLIVAN: We can do that, yes.

18 JUDGE BONOMY: Thank you.

19 MR. HANNIS: Your Honour, were you about to leave that matter?

20 JUDGE BONOMY: Yes, Mr. Hannis.

21 MR. HANNIS: I just wanted to indicate to you that there are a

22 number of other documents on there that were previously admitted into

23 evidence, Prosecution exhibits were previously admitted through your

24 October order, but I don't know if those have all been identified. I

25 don't have the list in front of me, but a number of them were admitted but

Page 12026

1 the Defence had agreed they wanted to leave them on the list and I have no

2 objection to that.

3 [Trial Chamber and legal officer confer]

4 JUDGE BONOMY: I think, Mr. Hannis, that what the agreement does

5 is advance the situation to the point where parties are all agreed that

6 these documents are what they bear to be, whereas previously you were

7 tendering documents that the Defence were still indicating that they might

8 challenge. So I think there's no harm done by clarifying that through

9 this agreement.

10 That takes us to the question of the proposed written statement to

11 be introduced in the evidence of Philip Coo.

12 Just a couple of introductory comments before we hear any further

13 submissions on this. A number of detailed objections to parts of the

14 proposed statement have been made on the basis that they bear to be

15 conclusions, which is not appropriate for this witness to make. Our broad

16 impression of the document in its current form is that most of the

17 objectionable conclusions of that nature have been removed and that,

18 although there are statements which might be capable of being described as

19 conclusions, they are in many instances plainly open to the clear

20 interpretation that they are just a statement of fact or a statement

21 almost of the obvious from what's in the document. And we do think you

22 should be able to trust us to distinguish between the two. You can take

23 it we will at no point accept a conclusion that Mr. Coo has drawn that

24 would be appropriate only for an expert or the Court itself to draw.

25 Now, in making that observation I'm trying to simplify this to

Page 12027

1 some extent, because otherwise this can be a very lengthy exercise.

2 The second general comment I would wish to make is that a large

3 number of the exhibits suffer from the same difficulty as the one in the

4 order we've just dealt with. They originally existed in Serbo-Croat and

5 have been translated, but the original version -- translated into English,

6 but the original version is no longer available. And while we will have

7 to make a final decision on this, you've heard the Prosecution position on

8 the one we discussed earlier and I assume it will be the same in relation

9 to all the others. So that is a broad category, again, of material which

10 might affect some of the passages, apart from the exhibit itself, the

11 passages in the proposed statement.

12 And the final preliminary point I wish to make is this. Objection

13 is taken to the first part of the report setting out the legislative

14 structure. We have to consider further whether this is something that

15 should not be admitted. It's actually very helpful to see the material

16 related in the way in which it has been related. We can see the link

17 between provisions, rules, regulations, and statutes. On the other hand,

18 we can also read the law for ourselves and the Prosecution can make

19 submissions about the law and the effect of the regulations. So we see

20 two arguments that can plainly be advanced here. We wouldn't like to lose

21 assistance in the end of the day, as long as it's kept within bounds.

22 We will probably, if we do decide that large parts of this have to

23 be removed for reasons such as that, then we may feel obliged to instruct

24 a military expert ourselves, depending on the assistance that we can find

25 in the material without that. We'd obviously like to avoid having to do

Page 12028

1 it, but that might be an alternative. Now, bearing in mind that something

2 of that nature may be necessary to assist us, we invite you to be

3 restrained in your submissions about the impact of the report, set out the

4 way it is now. We recognise that opinion and conclusion are

5 inappropriate; on the other hand, we would appreciate the assistance that

6 can be derived from someone putting the material into reasonable order.

7 If there are significant additional submissions to be made by

8 Defence counsel on top of what's been submitted in writing, then it would

9 be appropriate for us to hear these first before inviting Mr. Hannis to

10 respond. If, on the other hand, all that's sought by the request for oral

11 argument is to supplement what's here already, then it may be it's

12 unnecessary. That's a matter for Defence counsel to judge.

13 Mr. Ackerman, you, I think, were leading the van on this. Do you

14 want to say anything further at this stage?

15 MR. ACKERMAN: Your Honour, I put a sentence at the end of the

16 submission that I would like an opportunity for additional oral

17 submission, and that was just in case something came up in the meantime

18 that I hadn't had a chance to deal with. I think it would be excessive

19 for me to go further in view of the motion I filed yesterday.

20 JUDGE BONOMY: And, Mr. Fila, you are the other main player here.

21 Do you want to add anything?

22 MR. FILA: [Interpretation] Well, I merely wanted to say that we

23 received the materials in B/C/S only yesterday afternoon, and I think that

24 in fact we did need some more time to consult with our clients. We're

25 talking about a thousand pages or more, but we -- I did agree with Mr.

Page 12029

1 Hannis that Mr. Coo might start tomorrow and then we will make up for it.

2 We will catch up.

3 What I wanted to say that the persistence in tendering this

4 statement reminded me of something that Marcus Tullius Cicero said in the

5 senate. Let me quote something in Latin when he spoke about Catalina, a

6 Roman nobleman "quo usque tandem abutere, o Catalina, patientia nostra."

7 And I don't think that we need the fifth booth. I think this actually is

8 an apt comment to make regarding Mr. Coo and I will stop there.

9 JUDGE BONOMY: There was one question for Mr. Ackerman I forgot to

10 ask. Is the list at the end simply a summary of what's in the main part

11 of your document or does it add anything?

12 MR. ACKERMAN: I think there are some exhibits listed there that I

13 don't talk about in the main part of the document --

14 JUDGE BONOMY: So this is find the exhibit time for the Chamber?

15 MR. ACKERMAN: It's just to make -- actually I didn't prepare that

16 myself, Your Honour, I commissioned it. And I think there are some

17 documents listed there that are not in the body. I just wanted to make

18 sure that there was a record of my objections to the exhibits that are, in

19 my view, objectionable. So there may be some there that are not in the

20 body of the thing. Probably are. And I think there are two there that

21 are mistakes and we debated whether to file a corrigendum or not. And if

22 the Chamber wishes me to identify those, I can't do it immediately but I

23 can probably do it rather quickly.

24 JUDGE BONOMY: It would be helpful if you did two things,

25 identified mistakes and identified those in that list at the end that are

Page 12030

1 not dealt with substantially in the report -- in the submission.

2 MR. ACKERMAN: I can't do it now, but I can do it before the end

3 of the day.

4 JUDGE BONOMY: No -- yeah, that would be helpful.

5 There was a fourth comment I should have made as a preliminary.

6 The reference in paragraph 14 of your submission, Mr. Ackerman, to the

7 executive summary and the other introductory summaries we do agree with

8 that submission. We think that there's neither need for it nor a sound

9 basis for it. It doesn't really greatly affect the issue but that was

10 easily dealt with.

11 And if I may now ask you a few questions just to clarify things

12 that we've identified, if you don't mind assisting us further. The -- do

13 you really think that he comments greatly on laws, regulations, and

14 decrees, rather than simply relating them one to the other?

15 MR. ACKERMAN: Your Honour, I think that -- I think that comment

16 is in the submission based upon the order that you announced orally I

17 think on the 9th of March, where you said he had no place commenting on

18 such matters. And in our view, the report was not changed in any

19 significant way from how it had existed at that point in time. So the

20 assumption was made that you had basically already made the determination

21 that that was improper and it was just set out in there in that form.

22 JUDGE BONOMY: I'm not sure that it's fair to the report to say

23 that it's not been substantially altered in that part. If you just flick

24 -- in fact, I know you have got the one which has got the blacked-out

25 portions and there are a fair number of them. And having said that, we

Page 12031

1 are -- obviously we don't want to make decisions that are inconsistent and

2 if we feel that he's doing more than simply identifying the laws that

3 comment on things that a military analyst might be familiar with, that is

4 the structure of military units and the powers that they have to exercise

5 and so on and simply identifying them, if we think he's going further than

6 that then obviously we will pay no attention to it. But actually

7 identifying the ones which do refer to things such as, for example,

8 discipline and whatever. I wonder if there's anything wrong with that and

9 if we went too far if we suggested that he should never refer to the law

10 at all.

11 MR. ACKERMAN: Your Honour, frankly I see no problem with him

12 identifying various documents as being relevant to issues that might be

13 important in the case. If he starts going -- taking the next step and

14 defining what he believes that relevance is and the findings that you

15 should make in that regard, then I think that becomes the problem.

16 JUDGE BONOMY: Now, immediately following what we've just been

17 looking at in paragraph 16 there's an example of that -- that's paragraph

18 16 of your submission. But having said that, you can take it we would

19 never be misled by a comment like that.

20 MR. ACKERMAN: Well, and that underscores the point that I

21 think -- I think it was something more than just a statement of the

22 existence of these laws, but some conclusions drawn from them. And what

23 Your Honour has said this morning, if this report is going to be taken in

24 the light that you've suggested, that is, if there are any conclusions in

25 it they'll be ignored, then how could I not trust the Chamber to do that?

Page 12032

1 I mean that would be --

2 JUDGE BONOMY: Well, at least you couldn't say so.

3 MR. ACKERMAN: That's true.

4 JUDGE BONOMY: Now, I have a number of other questions, if you

5 don't mind.

6 What is wrong with the Prosecution referring to the VJ web site?

7 I take the point there's a difference between the VJ in general and the

8 individual accused that are before us, but what's wrong with an apparently

9 official web site being a source of material?

10 MR. ACKERMAN: Your Honour, we have no idea and the Prosecution

11 has no idea the parameters under which information is put into that web

12 site, who it is that's authorised to put information into that web site,

13 whether or not there's any effort made to make that information accurate

14 and reliable. You know, it may be somebody that has computer skills but

15 very little knowledge of the VJ that's just kind of putting stuff in there

16 at whim. In other words, there's no basis for us to believe that the

17 material put in that web site is accurate material, and if you want to

18 spend some time surfing around on the net you'll find something in a web

19 site supporting almost any proposition you want to come up with and some

20 of them may be "official" web sites. So I think without some kind of

21 evidence that the material put in that web site was checked and authorised

22 by someone of -- with the ability to do so, I think it's very difficult to

23 say -- just drag something off a web site and say, This proves something.

24 I just don't think that can be done.

25 JUDGE BONOMY: What about simply establishing that it is the

Page 12033

1 official web site of the army.

2 MR. ACKERMAN: I don't think that gets there. I think official

3 web sites are subject to error and mistake as any other web site because

4 eventually it comes to some technician sitting in front of a type-writer

5 and typing stuff in and he may type it correctly and he may not and if

6 that technician comes here and says that was information given to me by

7 commanding general of the VJ and it came from an official source and I

8 simply copied it into the web site, then that's no problem but to just

9 assume that that's reliable material because it comes from a web site I

10 think is an error.

11 JUDGE BONOMY: There's a number of publications attributed to an

12 organisation called Vojska which seems to have something to do with the VJ

13 also.

14 MR. ACKERMAN: Vojska, Your Honour, is that VJ magazine, the

15 translations of which are not CLSS translations. They apparently come

16 from some US government organisation, and I'm not going to quote a web

17 site --

18 JUDGE BONOMY: But are most -- yeah, are most of them items where

19 we don't have the B/C/S original?

20 MR. ACKERMAN: There is no B/C/S original cited. It's not on the

21 web site -- I mean on the e-court. If you go to e-court all you get is

22 the English.

23 JUDGE BONOMY: So it's the American translations?

24 MR. ACKERMAN: It's the American translations and I think they

25 were done by an organ of the CIA primarily, which at least recent history

Page 12034

1 should teach us not to completely trust.

2 JUDGE BONOMY: On a number of occasions you refer to something as

3 a report and then say that for that reason it's inadmissible. It's not

4 clear to me why you say that. Reports compiled in the course of official

5 duty would normally be admissible.

6 MR. ACKERMAN: I'm not sure what you're referring to. Do you have

7 a paragraph?

8 JUDGE BONOMY: Yeah, I need to find one of them. If you take

9 paragraph 20, and when I had a look at this it's actually a 3rd Army order

10 I think.

11 MR. ACKERMAN: I'm not able to respond, Your Honour, because 20

12 is --

13 JUDGE BONOMY: You've clarified to some extent by saying that you

14 commissioned this --

15 MR. ACKERMAN: Much of this I did myself. I think paragraph 20 I

16 probably did myself, but in terms of trying to connect that to something

17 without the Coo books here in front of me, I'm not able to do that right

18 now. I'd have to be able to look at footnote 39 and I don't have it here.

19 But there must have been something about that that distressed me because

20 I think there are other reports that I have no objection to.

21 JUDGE BONOMY: There's another one that -- another example is 25,

22 paragraph 25.

23 MR. ACKERMAN: I think this probably arises, Your Honour, from

24 language in your March 9th oral order, and I also haven't got that in my

25 hand, but I think it arises from some language there that it was

Page 12035

1 inappropriate for him to comment on certain kinds of reports. The

2 difference probably is between reference to a report and comment upon its

3 meaning, and I think that's probably what Your Honours meant on the 9th of

4 March, and that gets us back to your earlier remarks today that, to the

5 extent there were any comments, they would be ignored by you.

6 JUDGE BONOMY: There's a particularly good example of what might

7 be concerning you if you go to your paragraph 47.

8 Now, I can understand your anxiety about what's said there, but I

9 also find it very difficult to imagine circumstances in which the Trial

10 Chamber would be misled in any way by that. We would look at the whole

11 context and draw our own conclusions.

12 MR. ACKERMAN: Your Honour, there are a number of examples, both

13 in the Coo document and I was working through the third bar table

14 submission by the Prosecution last night. There's a tendency by the

15 Prosecution to take a document which makes a request for something and

16 treat it as if that request was honoured exactly as it was made and that

17 it's a fait accompli and that you should then take it that that happened.

18 That's pervasive in many of the Coo comments and Prosecution comments with

19 regard to some of these documents, that a mere request becomes a fact, not

20 beyond the request that it was honoured and acted upon. And I don't think

21 that's appropriate. And again, I think Your Honours are totally capable

22 of seeing and recognising that and ignoring it.

23 Your Honour pointed out this morning that to some extent this

24 process has denigrated to the making of submissions, and I think there's a

25 grain of truth in that.

Page 12036

1 JUDGE BONOMY: You can't be faulted, though, for trying and that

2 was not meant to be a criticism. It was an acceptance that we, to some

3 extent, had prompted that situation.

4 The problem -- the principal problem in the end of the day is that

5 Mr. Coo could be in the witness box for a few days on end identifying

6 documents that had been recovered by an RFA or had been found here, there,

7 or everywhere, in other words, speaking to the provenance report; whereas

8 a great deal of time could be saved by accepting the basic parts of his

9 report as introducing the documents to their relevant place, as it were,

10 in the case and confirming the accuracy, if he can, of the provenance

11 document itself.

12 So there are choices here to be made about what is necessary to

13 satisfy us about the authenticity of this material, quite apart from the

14 question of whether Mr. Coo goes too far. Whatever we decide here, the

15 Prosecution are clearly going to seek to introduce a substantial number of

16 documents through Mr. Coo one way or another.

17 MR. ACKERMAN: Well, Your Honour, in that regard I hear what

18 you're saying and I have a suggestion which I think solves everyone's

19 problem perhaps, and that is this: It's based upon our argument in this

20 motion that what you have before you is basically a submission by the

21 Prosecution through Mr. Coo. And I'm perfectly willing to have the Trial

22 Chamber treat that as a submission by Mr. Hannis of his fourth bar table

23 request. And if you treat it as a fourth bar table request, then it

24 becomes a submission by the Prosecution that is not evidence in the case.

25 When it becomes evidence in the case, it takes on a completely different

Page 12037

1 light than when it's a submission that, Here is a bunch of documents that

2 ought to be admitted. And if you want to treat it as a bar table

3 submission, you've already got my response to whether or not I believe

4 those documents are admissible or not and you make the determination today

5 what's admissible and what's not and we know exactly what to do tomorrow

6 with Mr. Coo. And then we don't have to spend hours on cross-examination,

7 going page after page through what is a Coo report as opposed to a

8 submission by the Prosecution which we wouldn't be cross-examining on.

9 That may be the solution to the problem you just talked about,

10 because otherwise what Mr. Visnjic said yesterday was not said in jest.

11 There is a -- either a five-minute or a five-hour cross-examination of Coo

12 depending on what it is we're dealing with. If we're dealing with all of

13 these pages of material as a Coo report document, then that requires

14 cross-examination that wouldn't happen if it were treated as simply a

15 submission and a request for the admission of documents. If we treat it

16 that way, then I don't think we have any problems.

17 JUDGE BONOMY: Thank you for your assistance, Mr. Ackerman.

18 Mr. Hannis.

19 MR. HANNIS: Where would you like me to begin, Your Honour? I --

20 JUDGE BONOMY: Well, begin at the end. That might be a good

21 idea. You've been offered a -- or a suggestion has been made by

22 Mr. Ackerman about how this could be dealt with.

23 MR. HANNIS: Before I came to court today I was working on two

24 tracks and one was trying to file a -- draft a written response to

25 Mr. Ackerman's most recent submission, but you've addressed a number of

Page 12038

1 those issues already so I don't think I have to. Your first point about

2 conclusions, I think we have removed the most objectionable of those. Any

3 that remain are ones that Your Honours will be able to draw on your own or

4 ignore them if you disagree.

5 A large number of the exhibits do suffer from the point you raised

6 in connection with Exhibit P1378 and the Vojska materials are an example

7 of that, because we don't have the original B/C/S from the Vojska

8 magazine; in many cases, what we have is the FBIS translation, the English

9 translation. But one thing I would indicate in connection with many of

10 those, if not most of those articles, we're offering them for a limited

11 purpose. A limited purpose many times is just simply to show the

12 identification of a particular individual in connection with the

13 particular unit, perhaps. It's an army magazine, article, and will talk

14 about the heroics of the 549th Motorised Brigade but it will mention Delic

15 as the commander and it might mention that they were in this location on

16 that day.

17 Much of that is corroborated through other evidence and it's only

18 in Coo's report as sort of supplemental information about who was the

19 commander at that time which helps him draw up his chart. But we also

20 have that from other more authentic documents, daily combat reports signed

21 by Delic as the commander of the 549th. So to the extent that we will

22 continue to try to offer it, most of those are for limited purposes.

23 The second track I had been working on was going through the

24 provenance report and the list of documents, and I think it was 438 or

25 something like that. Approximately 60 of those are already admitted

Page 12039

1 exhibits, so those can go out. I'm not trying to get them in through Coo,

2 but they are referred to in his report to relate to other matters and to

3 explain other documents.

4 But in my rough go-through before court today, I think probably

5 half of them are not ones that are must-have exhibits from the

6 Prosecution's point of view. It may be necessary for the continuity and

7 flow of Coo's report, statement, whatever we're calling it now, but

8 they're not ones that I want to tender on their own for you to look at for

9 all purposes, not just for some limited purpose.

10 You made that remark concerning the legislative structure and the

11 constitutional provisions, the Law on Defence, et cetera, and I think you

12 have a right, Your Honour. Mr. Coo is not commenting on those except to

13 the extent that he quotes what's in them and then relates them to other

14 documents or structures that we see.

15 The objection to the summary overview we understand is --

16 JUDGE BONOMY: If you lost that whole part, what would you

17 actually have lost?

18 MR. HANNIS: Your Honour, I would have to sit back and read it

19 again. I think not a lot.

20 JUDGE BONOMY: You could put it in as a submission.

21 MR. HANNIS: Yes.

22 JUDGE BONOMY: You've just been invited to do that. You know,

23 we're not in the business of just admitting something because it might not

24 fail a test. We, I think, should be more concerned about admitting things

25 which pass a qualification, and therefore there must be a purpose in

Page 12040

1 presenting the evidence. That large swathe of material about the set-up,

2 the structure, the legislation, the regulations, the rules, all seems to

3 be stuff that has been agreed or will be admitted in some form on which

4 you can then reproduce this document as your submission.

5 MR. HANNIS: That's correct, Your Honour, and many of those have

6 already been admitted, either through your first order in October last

7 year or through other witnesses, so much of that is in place. And I am

8 interested in the proposal that we sort of tender Mr. Coo's report as our

9 submission. But I feel like I need to respond to some of the --

10 JUDGE BONOMY: I'm going to ask you some questions but I'd rather

11 you made your submissions first.

12 MR. HANNIS: Okay.

13 The other remarks, the questions you addressed to Mr. Ackerman. I

14 would point out one thing. With regard to paragraph 47, which Your Honour

15 pointed to as an example where he may have made an overstatement, that's

16 where there was a request for weapons and Coo, in his report, leaves it as

17 though that was granted. Mr. Coo and I looked at that yesterday and

18 Mr. Ackerman is right. Mr. Coo is wrong on that because there's nothing

19 in that document to show that weapons were given. There's other evidence

20 in the case that may suggest that that, indeed, happened but that's not

21 right.

22 But I would disagree with Mr. Ackerman's further submission that

23 that's a pervasive kind of thing in the report and a pervasive kind of

24 thing in our submissions for bar table exhibits.

25 JUDGE BONOMY: It may be that where it does crop up it can be

Page 12041

1 crossed on anyway, and this would have been a good example of one that

2 could have been dealt with easily.

3 MR. HANNIS: That's my submission. If you have specific questions

4 for me, Your Honour, I'll be happy to try and address them.


6 Well, you heard me say that we would probably exclude the

7 executive summary and other introductory summaries, and I take it you have

8 nothing to say to --

9 MR. HANNIS: No, Your Honour. The only thing I was going to say

10 about that in my written response to Mr. Ackerman's submission regarding

11 that was that they are -- I think they are a fair summary of what follows

12 in each case and they are only offered sort of for readability.

13 JUDGE BONOMY: Yeah, well --

14 MR. HANNIS: So they're not necessary.

15 JUDGE BONOMY: But you don't normally have a witness come into

16 court and say, Well, I'll tell you now what my evidence is going to amount

17 to and that will help you focus.

18 MR. HANNIS: Well, Your Honour, I seem to recall some witnesses

19 who introduced every answer in some fashion similar to that.

20 JUDGE BONOMY: All right.

21 You rely on what you claim are official VJ and MUP web sites, and

22 you've heard submissions made about the unreliability of web sites.

23 MR. HANNIS: Yes. We can ask Mr. Coo about that when he's here,

24 but that's what he will say, that these are identified as the official web

25 sites for the VJ and for the MUP. The documents that we proposed in

Page 12042

1 connection with that, if you look at the documents themselves, they're

2 really not about things that are very controversial.

3 In one case I think one of the pages we offer is a reference to

4 the constitutional provisions about the role of the army, which we have

5 from the constitution itself. So to some extent the web sites are

6 corroborated by the constitution because it has that information

7 accurately and which you might argue other things from there may be

8 accurate as well.

9 We have descriptions of some of the various types of units that

10 are in the army, and those are consistent with other evidence in the

11 case. From that you might say, Why do I need it at all? We'd say, It's

12 just some further evidence in corroboration of other evidence in the

13 case. I don't recall that there was anything very controversial. I think

14 on the VJ web site there was one statement or press release citing General

15 Pavkovic for some remarks.

16 JUDGE BONOMY: Well, a press release is, I would have thought,

17 essentially an authentic document.

18 MR. HANNIS: And if it's posted on the web site, Mr. Ackerman has

19 questions about it?

20 JUDGE BONOMY: Does that change it?

21 MR. HANNIS: I can see an argument both ways.

22 JUDGE BONOMY: I doubt it, but I can picture all sorts of things

23 on web sites that I wouldn't be prepared to rely on. But an official VJ

24 web site with a press release, I think there's a pretty good argument that

25 that's got enough indicia of reliability for us to admit it.

Page 12043

1 MR. HANNIS: And I certainly don't want to take the position, Your

2 Honour, that we take everything that's on the VJ web site or any web site

3 as being gospel truth no matter what it is. We think you have to look at

4 other things, look at the content itself, see if it's corroborated by

5 other witnesses or other evidence in the case.

6 JUDGE BONOMY: We're also influenced to some extent by the

7 question how difficult something might be to challenge, and the official

8 nature of a publication would tend to suggest that there will be ways of

9 inquiring into it and challenging it if the accuracy is not accepted.

10 MR. HANNIS: I think that's a good point, Your Honour. If there

11 were some web site out there purporting to be the official VJ web site and

12 saying things that weren't accurate, I would think that somebody from the

13 VJ would notice at some point in time and bring it to the world's

14 attention.

15 JUDGE BONOMY: Now, if you go to paragraph 30 of Mr. Ackerman's,

16 you'll find that there are a number of media reports and transcripts

17 referred to. And probably in relation to all of them there is a question

18 over language and translation that will need to be addressed. In one of

19 them I can't actually tell, the last one I think, footnote 18, it's a

20 television programme. If you've got it in B/C/S, fine. So there are --

21 there's actually quite a lot of work in this. It's not an easy task and

22 you've identified over 400 of these exhibits. We can't just take a

23 completely broad brush to this and say, Just throw them at us. We'll take

24 them and analyse them. We've really got to be satisfied that what we're

25 taking satisfies the rule.

Page 12044

1 MR. HANNIS: I understand, Your Honour, and with regard to those,

2 if we don't have the original language, then I think we will -- we won't

3 be asking you to take those --

4 JUDGE BONOMY: And you may have to go over all of the language

5 issues here. Paragraph 36 is possibly the best example of all. There are

6 apparently two English versions of this, which I couldn't quite

7 understand.

8 MR. HANNIS: Paragraph 36?

9 JUDGE BONOMY: Of the submission.

10 MR. HANNIS: Where he refers to --

11 JUDGE BONOMY: It's about Perisic and it says --

12 MR. HANNIS: Yeah, it says "Pesic" but it's --

13 JUDGE BONOMY: -- and the circumstances in which he left the

14 army.

15 MR. HANNIS: Yeah.

16 JUDGE BONOMY: And it may be that both come to the same, but I

17 wasn't able to work out why there are two different versions. There's one

18 in Mr. Coo's report and --

19 MR. HANNIS: And there was one that was introduced in Milosevic

20 and I think that was taken from a book. We'll have a look at that, Your

21 Honour.

22 JUDGE BONOMY: It will be clear to you now what all the

23 translation problems are. Paragraph 45 suggested that there was no

24 reference in the document to the Skorpions, and I certainly couldn't find

25 it quickly --

Page 12045

1 MR. HANNIS: No. Within the document itself, Your Honour, I don't

2 believe there is, but there was evidence from the witness Goran Stoparic,

3 who identified himself as a Skorpion and identified the author of that

4 document as being the head of the Skorpions.

5 JUDGE BONOMY: But you'll see here that Mr. Coo has cited the

6 document as an example showing that the Skorpions were brought in as a

7 reserve element of the MUP's SAJ. Now, the document's much more general

8 than that and doesn't refer to the Skorpions. So I'm afraid it's this

9 sort of thing that creates doubt in the mind about whether, in parts, he

10 goes beyond what we ordered.

11 MR. HANNIS: I see your point with regard to that, Your Honour.

12 There was other evidence connecting --

13 JUDGE BONOMY: That's a separate issue, I think, Mr. Hannis.

14 MR. HANNIS: Okay.

15 JUDGE BONOMY: If you look at paragraph 60, it says that the

16 documents -- all the documents relied on are inadmissible press reports or

17 information from web sites. Well, at a quick glance, it looks to me as

18 though some may be okay, but we really need to know more, I think.

19 [Trial Chamber confers]

20 JUDGE BONOMY: There's also some -- an apparent relationship

21 between what's said in paragraph 78 and what's said in paragraph 36 of

22 these submissions.

23 These are the questions I have. Thank you, Mr. Hannis. How to

24 address some of them which you can't address immediately we'll discuss for

25 the moment.

Page 12046

1 MR. HANNIS: Okay, Your Honour.

2 [Trial Chamber confers]

3 JUDGE BONOMY: Mr. Hannis, you indicated that you had some filing

4 underway or have you departed from that idea?

5 MR. HANNIS: Well, Your Honour, I had not departed from it. I

6 just stopped to come to court. But some of the matters that I was

7 addressing in Mr. Ackerman's submission you've already addressed in terms

8 of conclusions and comments on reports.

9 JUDGE BONOMY: But you seem to be able to divide your proposed

10 exhibits into those that were essential and those that were desirable.

11 MR. HANNIS: Yes.

12 JUDGE BONOMY: Are you able to readily do that?

13 MR. HANNIS: I think so. If I could sit with Mr. Coo for a couple

14 of hours, I think we could winnow it down. My rough cut, we had gone from

15 what was 434 to 200 something.

16 JUDGE BONOMY: I think that would be a very helpful exercise to

17 undertake.

18 MR. HANNIS: I think so, too.

19 JUDGE BONOMY: I think also that the law could readily disappear

20 from this report as well without you losing anything, as long as you're

21 satisfied that every item has been introduced into evidence.

22 MR. HANNIS: I'll have a look at that, Your Honour.

23 JUDGE BONOMY: And indeed we would obviously allow a little time

24 later in the week for you to double-check that if you're anxious about

25 anything.

Page 12047

1 MR. HANNIS: Okay.

2 JUDGE BONOMY: So We will adjourn now until tomorrow --

3 MR. STAMP: Excuse me.


5 MR. STAMP: I'm wondering if I could raise one briefly, very

6 briefly. It's about a framework or a timetable in which the Rule 70

7 provider in respect to the last witness would indicate what aspect of --

8 JUDGE BONOMY: It was remiss of me not to have dealt with that.

9 MR. STAMP: The evidence needs to remain in closed session.

10 JUDGE BONOMY: What I should have suggested to you at the end of

11 the evidence was that no later than a week on Friday you make a decision

12 on the material which can be in the public domain, and a hopefully limited

13 amount that does not require -- that requires to remain in private.

14 MR. STAMP: Are --

15 JUDGE BONOMY: We thought ten days would be ample for that.

16 MR. STAMP: It should be. May I make another request to the

17 Court. I think that one or maybe two of the counsel for the Defence had

18 put into e-court exhibits which comprise the entirety of the -- of the

19 notebooks but only referred to a page or two. If they could remove it

20 from e-court and put in only that page that they used or wanted to use,

21 that might facilitate the provider in raising any restrictions on it being

22 sealed or not.

23 JUDGE BONOMY: Is there a comment on that? Mr. Sepenuk.

24 MR. SEPENUK: Not really a comment, Your Honour, but just for the

25 sake of the record - it will take 20 seconds - I neglected to mention that

Page 12048

1 the part of General DZ's notebooks was reading from are 3D414, page 32 and

2 page 38. [Realtime transcript read in error.] Thank you, Your Honour.

3 JUDGE BONOMY: Thank you. Am I not right in saying that -- well,

4 it may be two counsel. I understood one had placed a bundle of material

5 from the notebooks into the e-court. Is that you, Mr. Ivetic? Mr. Fila?

6 MR. FILA: [Interpretation] I said yesterday to Mr. Stamp - and I

7 can repeat - it is very little but if you have trouble giving up those two

8 sentences, if you think that is detrimental to you, that's fine with me.

9 MR. STAMP: Yes, the thing is that if a batch of documents,

10 hundreds of pages, is in e-court, then whereas we might agree that the

11 part used need not be under seal; we couldn't agree to the whole thing.

12 So it could be -- if the situation could be regularised --

13 JUDGE BONOMY: Can you please deal with that directly with

14 counsel --

15 MR. STAMP: Very well.

16 JUDGE BONOMY: -- and only draw it to our attention if it's

17 necessary for us to make a decision.

18 MR. STAMP: Thank you.

19 JUDGE BONOMY: Thank you.

20 MR. SEPENUK: Excuse me, Your Honour. Page 87, line 19, it should

21 be page 32 and page 38, not 33 that's mentioned there. Thank you, Your

22 Honour.

23 JUDGE BONOMY: Mr. Ackerman.

24 MR. ACKERMAN: Your Honour, I just need -- I know we're running

25 out of time. I need a few seconds. Mr. Hannis talked about documents

Page 12049

1 being offered just for a limited purpose and I just want to state that

2 that creates future enormous problems because more than once I've stood in

3 the appellate Chamber here and heard a Prosecutor refer to some part of a

4 document that was admitted for a limited purpose but using it for a

5 different purpose at the appeal. So if it's to be admitted for a limited

6 purpose, everything else should be redacted so that there's no question

7 four years down the road from now that that was admitted for any other

8 reason.

9 Second of all, the problem -- another problem with web sites that

10 I didn't refer to you about was that web sites change rather frequently,

11 and it's very difficult to go back years later and check if something

12 actually came off of a web site because it's probably not there any

13 longer.

14 And finally, Your Honour, the two documents I referred to on my

15 chart at the end of the submission are P1588 and P626. P626 is there --

16 is not there for a purpose and should be removed. P1588, however, is

17 there for a purpose and it deals with a document that appears to be

18 incomplete. It's just filled with blanks, and it's like it was a document

19 that was prepared but never -- never actually filled in the blanks and

20 sent, unless there's some showing that it was actually issued I think it

21 cannot be admitted. And that's all I have to say and we can break now.

22 JUDGE BONOMY: Thank you.

23 Well, we will resume at 9.00 tomorrow, and before then hopefully

24 we'll have indicated something of the likely ruling in relation to the

25 evidence of Mr. Coo.

Page 12050

1 --- Whereupon the hearing adjourned at 12.55 p.m.,

2 to be reconvened on Wednesday, the 21st day of

3 March, 2007, at 9.00 a.m.