1 Tuesday, 30 June 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.32 p.m.
5 JUDGE MOLOTO: Good afternoon to everybody in and around the
6 courtroom. Mr. Registrar, will you please call the case.
7 THE REGISTRAR: Thank you, and good afternoon, Your Honours.
8 This is case number IT-04-81-T, The Prosecutor versus Momcilo Perisic.
9 JUDGE MOLOTO: Thank you very much.
10 Could we have appearances today, please, starting with the
12 MS. BOLTON: Good afternoon. It's Mark Harmon, Lorna Bolton, and
13 Carmela Javier for the Prosecution.
14 JUDGE MOLOTO: Thank you so much.
15 And for the Defence.
16 MR. GUY-SMITH: Good afternoon. Daniela Tasic, Chad Mair,
17 Kay Marshall, Colleen Rohan, Tina Drolec, Milos Androvic, Novak Lukic,
18 and Gregor Guy-Smith on behalf of Mr. Perisic.
19 JUDGE MOLOTO: Thank you so much, Mr. Guy-Smith.
20 Good afternoon -- or good morning out there in New York. How are
21 you, Mr. Sacirbey, and everybody else? Can you hear me?
22 They obviously don't hear us. Yeah, I'm speaking to you, but it
23 looks like you don't hear us.
24 MS. BOLTON: I also don't have any sound through my headphones,
25 Your Honour.
1 JUDGE MOLOTO: Thank you, Madam Bolton. Yes, there is obviously
2 a problem. We're not connected yet.
3 THE REGISTRAR: [Via videolink] Your Honours, I'm not sure if you
4 can you hear us, but we are not receiving any audio from your end.
5 JUDGE MOLOTO: I can hear you, but can you hear me? You can't
6 hear us.
7 [Technical difficulty]
8 [Trial Chamber and registrar confer]
9 [Trial Chamber confers]
10 JUDGE MOLOTO: You're not getting any audio. Are you hearing me
11 now. Sorry, can you hear me? Hello? I can hear you very well. Can't
12 you hear me.
13 Thank you so much. Okay. Fine. Good.
14 Just for the record I just want to say that once again today
15 we're still sitting pursuant to Rule 15 bis as Judge Picard is still held
16 up in another trial, Stanisic and Simatovic.
17 I wanted to say to you, Mr. Sacirbey, that once again, we go
18 through the ritual to say that you are still bound by the declaration you
19 made at the beginning of your testimony to tell the truth, the whole
20 truth and nothing else but the truth. Is that okay?
21 THE WITNESS: Yes, Your Honour, I understand. Thank you.
22 JUDGE MOLOTO: Thank you so much.
23 Mr. Guy-Smith.
24 MR. GUY-SMITH: Thank you very much, Your Honour.
25 We ended yesterday's proceedings looking at a particular document
1 which was 1D00-1843, page 26, which was a quote of Lord Owen, and I ask
2 that that be admitted into evidence, that particular page.
3 JUDGE MOLOTO: Yes, Madam Bolton.
4 MS. BOLTON: I'm sorry. I don't know what the relevance is. I
5 thought my friend was going to develop this issue. I'm not sure what the
6 relevance is of a quote from Lord Owen to any material issue at this
8 MR. GUY-SMITH: Well, we can start that way -- that's fine.
9 Let's start the day that way and go from there.
10 JUDGE MOLOTO: I'm not sure I understand what you are saying.
11 MR. GUY-SMITH: I choose not to respond to Madam Bolton's remarks
12 at this time. So I leave it in the Court's fine hands right now. If the
13 Court is willing to admit the document, fine. Otherwise, we'll proceed
14 and go from there.
15 JUDGE MOLOTO: The Court does what the parties ask them to do,
16 Mr. Guy-Smith.
17 MR. GUY-SMITH: It is my request at this time that the
18 document -- that page be admitted.
19 JUDGE MOLOTO: I have no recollection of what the document was
20 all about.
21 Can we see the document again, please.
22 MR. GUY-SMITH: It's page 26, Your Honour, and the quote is:
23 "Nothing is simple in the Balkans. History pervades everything
24 and complexities confound even the most careful study. Never before in
25 over 30 years of public life have I had to operate in such" --
1 THE INTERPRETER: Please slow down.
2 JUDGE MOLOTO: Please, slow down. And you just want that page.
3 MR. GUY-SMITH: Yep.
4 JUDGE MOLOTO: It's admitted. May it please be given an exhibit
6 THE REGISTRAR: Your Honours, as Exhibit D127.
7 MR. GUY-SMITH: Thank you, Your Honour.
8 JUDGE MOLOTO: [Microphone not activated.
9 WITNESS: MUHAMED SACIRBEY [Resumed]
10 [Witness testified via videolink]
11 Cross-examination by Mr. Guy-Smith: [Continued]
12 MR. GUY-SMITH: I don't have Mr. Sacirbey. There we go.
13 Q. Good morning, Mr. Sacirbey.
14 A. Good morning, Mr. Guy-Smith.
15 Q. I would like to start today discussing with you the matter of
16 your intelligence or information sources while you were the ambassador at
17 the United Nations.
18 As I understand your testimony thus far, you obtained information
19 from international media sources; correct?
20 A. That is correct.
21 Q. You obtained information from some of your colleagues at the
22 United Nations, and by colleagues I mean both ambassadors as well as
23 members of staff who were working at the United Nations during the period
24 of time that you were there; correct?
25 A. That is correct.
1 Q. You also obtained information from what I will call for the
2 moment the ground, and by that I mean such individuals as your president,
3 President Izetbegovic. True?
4 A. That is correct.
5 Q. Would it be fair to say that you also received information from
6 other sources on the ground, such as Sefer Halilovic, Rasim Delic?
7 A. Yes, if you mean by Bosnian military. On a few occasions, I
8 don't remember that I discussed this with Sefer Halilovic but at least on
9 a few occasions I discussed it with General Rasim Delic, that's correct.
10 Q. And did have you conversations with Naser Oric?
11 A. I did not even meet Naser Oric until after the war and only on
12 one occasion.
13 Q. Did you have -- and I appreciate that you did not meet him, which
14 I take it means that you did not have a face-to-face conversation with
15 him. Did you have any telephone or other forms of communication with
16 him, such as satellite phone or telex?
17 A. Not that I would recall any direct conversation with him, nor --
18 at least no one that represented himself as Naser Oric.
19 Q. And did you have any contact with Enver Hadzihasanovic?
20 A. Frankly, doesn't even sound familiar.
21 Q. Okay. If I were to --
22 A. It may have been --
23 Q. I may be pronouncing his name incorrectly. I may be pronouncing
24 his name incorrectly, but if I were to say to you, It's my understanding
25 that he was the chief of the Supreme Command Staff of the BiH army in
1 November of 1993, would that be of any assistance to you, with regard to,
2 first of all, such a name?
3 A. Yeah. Well, first of all, I just don't recall having a
4 conversation with him. The one -- the one name that may escape me is the
5 commander of the Cerska enclave, who, on several occasions, did call the
6 mission of BiH in the spring of 1993. And that's the one that I'm
7 conscious of not skipping somehow.
8 Q. And when you that the one name that may escape you is that
9 commander, when he called you how did you speak with him? Did you speak
10 with him on a satellite phone?
11 A. I believe it was a satellite phone, that's correct.
12 Q. Okay.
13 A. Or might have been some other connection out of the enclave, but
14 we in fact received it on a regular telephone.
15 Q. Did you ever have any conversations concerning what was going on,
16 going on, on the ground with General Talijan, this is spelled
17 T-a-l-i-j-a-n, who was located in Sarajevo?
18 A. The person that I had the greatest communication from the
19 military was actually General Jovan Divjak because he visited New York in
20 the fall of 1992 for the General Assembly session and we spent a lot of
21 time together, and after that, it was much more sporadic in terms of my
22 communication with any military staff.
23 JUDGE MOLOTO: Mr. Sacirbey, just so that we expedite matters,
24 can I suggest you listen to the question and try to be precise in your
1 The question was: Did you ever have conversations with
2 General Talijan. We'll deal with Divjak --
3 THE WITNESS: And the answer is I don't -- I don't believe I've
4 had conversations with General Talijan, at least not that I recall.
5 JUDGE MOLOTO: Thank you so much.
6 MR. GUY-SMITH:
7 Q. With regard to other members of who I believe were in the
8 1st Corps of the BiH army in Sarajevo, did you have conversations with
9 either Vahid Karavelic or Nedzad Ajnadzic?
10 A. Possibly, but I just don't recall any such conversations.
11 MR. GUY-SMITH: We seem to have having a failure of video here.
12 Mr. Sacirbey's face is frozen in time.
13 JUDGE MOLOTO: Yes. But can we hear him when he speaks?
14 MR. GUY-SMITH: Yes, I can hear him, but I can't see his facial
16 THE REGISTRAR: [Via videolink] We can see you and hear you
17 perfectly, Your Honour.
18 JUDGE MOLOTO: Yes, expect that your video that side is frozen.
19 MR. GUY-SMITH: I can go through this limited part of the
20 examination in this -- in this sense, because it is going to be basically
21 dealing with the same subject matter. But there will come a time when I
22 really do need to be able to see the gentleman's facial expressions.
23 JUDGE MOLOTO: Let's hope in the meantime that it gets sorted
25 MR. GUY-SMITH: Thank you. I take it that's a compatible way of
1 working with the situation.
2 JUDGE MOLOTO: Sorry, now it's gone from bad to worse.
3 MR. GUY-SMITH: Oh, well.
4 [Technical difficulty]
5 [Trial Chamber and registrar confer]
6 THE REGISTRAR: [Via videolink] Your Honours, can you hear us and
7 see us?
8 JUDGE MOLOTO: Indeed, I can hear you now. And can you hear us?
9 THE REGISTRAR: [Via videolink] We can hear you.
10 JUDGE MOLOTO: Thank you so much.
11 THE WITNESS: Yes we can, Your Honour.
12 JUDGE MOLOTO: Thank you, Mr. Sacirbey.
13 Mr. Guy-Smith.
14 MR. GUY-SMITH: I think we have attended to the audio issue, but
15 not to the video issue. But I will proceed as I said I would with this
16 particular -- when I finish this area, then we will have to deal with the
17 video issue, I think.
18 Q. I left off asking you some names. I'm going to continue in that
20 Did you have conversation with General Hazim Sadic who I believe
21 was in the 2nd Corps in Tuzla, also a member of the BiH army?
22 A. Not that I recall, Mr. Guy-Smith.
23 Q. Mehmet Alagic who was in Zenica, 3rd Corps.
24 A. I did have conversations with him, but I think that was only
25 toward the end of the war.
1 Q. Toward the end of the war would that have -- can you be any more
2 specific in that regard?
3 A. I certainly remember meeting him in 1995. I may have met him as
4 early as 1994. I'm just not precise on that.
5 Q. With regard to this particular gentleman, do you recall or do you
6 have a memory of when he was the commander of Zenica, for what period of
8 A. Well, I -- I believe he was commander for -- if not the entire
9 conflict, certainly the back end of it when I meant him. I don't
10 remember the date that he was pointed. I believe was commander through
11 the conflict.
12 Q. And by "through the conflict" do you mean until the signing of
13 the Dayton Accord?
14 A. That is correct.
15 Q. If I were to tell you have I information that he was commander in
16 Zenica until the 26th of February, 1994, would be have any reason to
17 argue with me in that regard?
18 A. No, I wouldn't. I do know that I met him in a role as a military
19 commander and for whatever reason my memory of him may be in the
20 connection of other roles that he played in the military.
21 Q. And when you met him, did you meet him stateside, or did you meet
22 him on the ground in Bosnia-Herzegovina?
23 A. It was in Bosnia and Herzegovina. If I'm not mistaken, it was
24 also outside of Sarajevo.
25 Q. Did you ever have a conversation with Dzemal Merdan?
1 A. Again, I did not hear the name, Mr. Guy-Smith.
2 Q. Dzemal Merdan.
3 A. Zeman, I think, is the pronunciation of the first name. And,
4 again, I may have had conversations with him toward the end of the
6 Q. Just stopping here for a moment. With regard to the gentlemen
7 who were in the military you had conversations with, are those
8 conversations that you noted? And by "noted" I mean memorialized in some
9 fashion to be used for whatever purposes you deemed necessary in front of
10 the United Nations?
11 A. No. By and large if I in fact used information in the context of
12 the United Nations and therefore in the context of these proceedings, I
13 would have to limit that to only three or four individuals. And that --
14 again, I emphasise that General Jovan Divjak, General Rasim Delic, I
15 emphasise the commander of Cerska; and I think those would be the three
16 main military commanders that I would have dealt with.
17 My staff may have dealt with others, and I'm quite certain that
18 they did and may have in fact obtained the information. But I don't
19 recall in the context that which are you now describing that I dealt with
20 any more than three or four individuals from the military.
21 Q. I'm going to mention one other name to you that I want to know
22 whether you dealt with personally. And then after that I'm going to
23 mention a series of names to you to see if these are names that your
24 staff ever reported to you with regard to having conversations about what
25 was going on, on the ground.
1 The name that I'm going mention to you with regard to you have
2 personal conversations with would be Arif Pasalic?
3 A. Yes, I know the name.
4 Q. Is that a gentleman that you spoke to during the war concerning
5 what was going on, on the ground?
6 A. If it was, it might have only in a casual conversation, not
7 something that I would relayed in the connection of my responsibilities.
8 Q. And when you say "in a casual conversation," I take it that would
9 have been a casual conversation in Bosnia and not in New York?
10 A. That is correct.
11 Q. Okay. The names I'm now going to mention to you because I think
12 you've told us that you only met with three or four people - and if any
13 of the names do ring a bell do let me know - are names that would have
14 been reported to, potentially by your staff.
15 Mustafa Isovic from the 4th Corps?
16 A. Don't -- don't recall anything specific about that.
17 Q. Atif Dudakovic from the 5th Corps?
18 A. Definitely someone that I know, met on several occasions once the
19 Bihac area was liberated. The communications during the war, I -- I
20 believe he managed to get some communications to our mission. I don't
21 remember speaking to him actually during the majority of the conflict.
22 Q. General Galib Hodzic.
23 A. I know the name, but nothing specifically.
24 Q. From the 6th Crops. From the 7th Corps, Commander General
25 Mehmet Alagic, I think you've mentioned. Did you ever deal with a
1 gentleman whose name -- who was the Chief of Staff of the 7th Corps,
2 Fikret Cusic or Cuskic?
3 A. Nothing specific that I would recall.
4 Q. Did you ever have any dealings with a gentleman by the name of
5 Fikret Abdic?
6 A. No. I do know who the gentleman is.
7 Q. Tell the Chamber who Fikret Abdic was.
8 A. Fikret Abdic at the time of my involvement with Bosnia and
9 Herzegovina was the leader of something -- the so-called Krajina area of
10 Bosnia and Herzegovina, and it was a separatist group under the
11 leadership of Mr. Fikret Abdic. As I understand he is serving prison now
12 in Croatia.
13 Q. When you say he was a leader of a separatist group, a separatist
14 Group from where? From -- from the Federal Republic of Yugoslavia, from
15 Croatia, from Slovenia, Slovakia? Where was he a leader of a separatist
16 group from?
17 A. Primarily Bosnia and Herzegovina, although they occupied also a
18 piece of the territory of the Republic of Croatia.
19 Q. And when did this separatist group initially form itself?
20 A. Somewhere right around the outset of the war.
21 Q. And by right around the outset of the war, are you talking about
22 before or after Izetbegovic was elected president?
23 A. Well, President Izetbegovic was elected president well before the
25 Q. Okay. And --
1 A. Or he was elected a member of the Presidency and, of course, the
2 Chair of that Presidency ultimately.
3 Q. Am I correct in my understanding that, as a matter of fact, there
4 came a time when this individual, Fikret Abdic, ran against
5 President Izetbegovic before he was elected as president?
6 A. They certainly were, if you would, concurrence. I'm not sure it
7 would be appropriate to say they ran against each other, because we were
8 talking about a collective Presidency of Bosnia-Herzegovina. But they
9 certainly had a different vision.
10 Q. And when you said they certainly had a different vision, you're
11 referring to a different vision from that which was held by
12 President Izetbegovic; correct?
13 A. No, I'm saying they did not agree.
14 Q. And others obviously.
15 A. They did not agree with each other on the future of Bosnia and
17 Q. And, to your knowledge, was this gentleman, Fikret Abdic, was he a
19 A. I don't know if he was practicing or not. But at least by his
20 Ethnic identity, he would have been considered Bosniak.
21 Q. Okay. With regard to the issue of whether he was practicing or
22 not, was, to your knowledge, this particular separatist leader supported
23 by any other countries?
24 A. Yes. We believe he was supported by Serbia and Montenegro.
25 Q. I see. And when would that have been? Would that have been
1 throughout the war?
2 A. Well, that would -- that is correct.
3 Q. Thank you.
4 MR. GUY-SMITH: At this time, I am done with my list of names and
5 need to be in a position where I can have some face recognition.
6 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.
7 Mr. Registrar, can you try and get us -- apparently we have to
8 disconnect to be able to get the video.
9 [Trial Chamber and registrar confer]
10 MR. GUY-SMITH: Can you hear me?
11 THE WITNESS: Yeah, thank you.
12 JUDGE MOLOTO: Sorry about that.
13 THE WITNESS: [Overlapping speakers] ... I can hear you now.
14 MR. GUY-SMITH:
15 Q. Apart from the names that we've just mentioned, I take it that it
16 would be fair to say that you also received information from various
17 members of your government back in Bosnia; correct? And once again when
18 I say information --
19 A. That is correct.
20 Q. When I say information, I'm referring to information that you
21 ultimately made a determination would be utilized in your capacity as the
22 representative of Bosnia-Herzegovina.
23 A. Whether I was always in a position to always make that
24 determination, of course, was dependant on whether the information to me
25 for my consideration, or whether I was instructed to actually provide it
1 to the United Nations Security Council Secretary-General Assembly by my
2 government. I did not necessarily always have that discretion.
3 Q. Okay. I understand your answer.
4 With regard to information that was flowing back and forth
5 between you and your government, you were concerned that there were leaks
6 in your government, and specifically in your foreign ministry, were you
8 A. Always was, that's correct.
9 Q. Okay. And in that regard, part of your concern was that
10 individuals in your government would be leaking information to those
11 entities that you perceived as your enemy. True?
12 A. Particularly Belgrade, where some officials might have had past
13 relationships; that's correct.
14 Q. And when you say where some officials might have had past
15 relationships, are you referring to those individuals in your government
16 who were identified as being ethnically Serb?
17 A. Actually more likely than not, I would have been concerned about
18 Bosniaks more than Serbs. I -- I certainly did not identify leaks or
19 threats on the basis of ethnicity.
20 Q. Okay. With regard to those individuals who you were concerned
21 about leaking information, can you identify for the Chamber who those
22 individuals were?
23 MS. BOLTON: Sorry, Your Honour.
24 THE WITNESS: I think that be would highly --
25 JUDGE MOLOTO: Madam Bolton.
1 Sorry, Mr. Sacirbey.
2 MS. BOLTON: Again, I just have a relevance issue with respect to
3 this line of questioning. This wasn't a matter that came up in
4 Examination-in-chief, so pursuant to our guidelines, it would have to
5 have some relevance to either credibility of this witness or to my
6 friend's case. And if it does have that relevance, it's just not
7 apparent to me at this point, and I'm referring specifically to
8 guideline 8.
9 JUDGE MOLOTO: Thank you, Madam Bolton.
10 Mr. Guy-Smith.
11 MR. GUY-SMITH: Let me double-check to make sure which guideline
12 Ms. Bolton is referring to, and then I will respond.
13 A central issue in this case is that of notice. Notice is
14 obtained by the passage of information. We have heard much testimony
15 about various methods and manners by which, potentially, information
16 could be made aware to the public at large and our to client in specific.
17 With regard to the -- with regard to the particular issue of
18 leaks, especially when viewing it in the context of a conflict, and more
19 particularly in the context of a conflict that involves, among other
20 things, both internal and external military decisions, the issue of
21 leaks, one would think, would be something which is of import and germane
22 to the analysis that we're undergoing.
23 With regard to the question of those leaks, since this was a
24 matter of some concern for Mr. Sacirbey, identifying those individuals
25 who he was concerned with could well lead us to, and I say this most
1 specifically, that I am not on a fishing expedition, could well lead us
2 to intercepts that either substantiate or reject such a position.
3 JUDGE MOLOTO: Mr. Guy-Smith, my problem with your line of
4 questioning is that you are just asking the witness who he had contact
5 with, and you don't telling us what it is he discussed with these people.
6 So We don't see the relevance. And when you talk of leaks, I don't even
7 know what is suppose to have been leaked. Secrets, of course,
8 intelligence, confidential information. What information which would go
9 to notice or -- which is what you say is the issue here.
10 MR. GUY-SMITH: Let me proceed with your -- with your concern.
11 With regard to those individuals who we initially discussed who
12 were all of the military ilk, Did you have discussions with them
13 concerning the military situation on the ground during the period of
15 A. Yes, I did.
16 Q. And with regard to those conversations, in a general sense, you
17 discussed with them such things as their fighting ability; correct?
18 A. Yes, I believe that would be an accurate characterization.
19 Q. And with regard to their fighting ability, you discussed with them
20 such issues as the availability of munitions, weapons, and --
21 A. That is correct.
22 Q. And other instruments of war. Correct?
23 A. Particularly anti-tank weapons, yes.
24 Q. You discussed with them the shipments that were going to be made
25 to them; correct?
1 A. I think now you're asking me either a general or specific
2 question. If you're suggesting, did I discuss with them specific
3 shipments? Or am I -- are you talking about general shipments?
4 Q. Well, I will first talk with about you about general shipments and
5 then we'll talk about the specific in a bit.
6 A. Okay. In general we certainly discuss what was available to them.
7 Certainly my personal knowledge as to the arrival of any specific
8 shipments, I think at this point on, I will have to consult with my
10 Q. I take it that with regard to that particular issue, it is your
11 opinion that any answers would you give in that regard would tend to
12 incriminate you. Is that what you're asserting now?
13 A. That is my opinion -- absolutely not. I think it's only wise for
14 me to discuss this matter with my counsel. That's all that I'm saying.
15 Q. Okay. Well, I'm going to ask on a ruling on that from the Court
16 because I don't believe that is the reason why he was counsel present.
17 This is a direct inference in the fact-finding process, and there has
18 been no legally recognizable assertion made that would allow for such a
19 unique circumstance.
20 MR. GUY-SMITH: That's my respectful submission, up until this
22 JUDGE MOLOTO: Madam Bolton.
23 MS. BOLTON: It may be that the witness doesn't know what kinds
24 of shipments my friend is talking about, and there may be some confusion
25 as between counsel and the witness. We don't know what materials he is
1 talking about, and so I think until that is clarified, the witness is
2 perhaps on a different page than Defence counsel.
3 JUDGE MOLOTO: My only problem is that, here, we haven't really
4 heard from the witness why he wanted to have counsel with him. He has
5 asked to have counsel with him. He has asked to have counsel with him,
6 and we've said counsel must be with him. He now asking to consult his
7 counsel. We have surmised why he needs counsel to be with him, and the
8 summation that we made is precisely the proposition you put to him
9 whether he is going to incriminate himself by answering the question or
10 not. And he says, no, that's not the issue. But we don't know why he
11 called counsel.
12 So ... but we have allowed him to have counsel, and if we have
13 allowed him to have counsel, I think he must consult counsel when he
14 feels the need to do so.
15 MR. GUY-SMITH: With all due respect, Your Honour, the purpose of
16 counsel in this regard, as I understood the Court's ruling, was to deal
17 with the limited issue of whether or not questions propounded to him
18 could potentially place him in a position, the response to which would
19 lead to incrimination. And on those grounds, he was afforded the right
20 to counsel. Which, as I said some time ago, something that I fully
22 The fact that he has got a lawyer sitting in the room does not in
23 and of itself allow him to confer with that lawyer, if the conversation
24 with that lawyer is outside of the specific legal purpose for which he
25 asked for the lawyer in the first place.
1 Now we're having a deviation from the very reason why this whole
2 matter began. And if you recall the matter, began with a motion from the
3 Prosecution, with regard to the limits of cross-examination on the very
4 specific issue of self-incrimination. Not any other issue.
5 At this point in time, to have the witness be allowed to confer
6 with counsel on anything outside of the specific purpose for which he
7 asked for counsel initially, it is our respectful submission, it would be
8 outside of the intent and order of this Chamber.
9 In addition, there's another potential legal matter that needs to
10 be addressed, which is something that Your Honour raised early on, which
11 is that his counsel - and if I mispronounce your name, sir, I do
12 apologise, Mr. Guirguis, did not have standing. And you made a very
13 specific ruling with regard to for what purpose he was present and what
14 he could do as a lawyer on behalf of Mr. Sacirbey. The position taken
15 now is dramatically distinct from where we began this particular legal
16 analysis and legal journey.
17 THE WITNESS: May I provide some insight into this point.
18 JUDGE MOLOTO: No, sir, you have asked for leave to consult with
19 your lawyer. The Court must resolve the matter before you can speak.
20 Yeah, thank you very much. I mean --
21 MR. GUY-SMITH: If I might refer you, if it is of any
22 assistance --
23 JUDGE MOLOTO: I'm assisted.
24 MR. GUY-SMITH: Very well.
25 MS. BOLTON: I'm sorry, Your Honour, could I just address that
1 last point that my friend was raising.
2 JUDGE MOLOTO: Yeah.
3 MS. BOLTON: There is an issue in terms of the role Mr. Guirguis
4 would play, in that initially my friend is correct, in that there was an
5 indication he didn't have standing, but then last Friday, you will
6 recall, we had an exchange where I was asking -- or sorry, a week ago
7 Friday, asking about my raising objections in the area of the allegations
8 from Bosnia-Herzegovina. And I understood from that exchange that, in
9 respect of that narrow issue, that being the allegations, that it would
10 be Mr. Guirguis who would have to respond or raise any objections, and
11 not something that I would do.
12 Do I -- does this ring you a bell, Your Honour? Have I
13 misunderstood again your ruling?
14 JUDGE MOLOTO: Yeah. I remember. But it is for -- I'm sorry,
15 sir, can you spell this name for me. I hate mispronouncing people's
16 names. What is counsel's name again?
17 MS. BOLTON: It's Guirguis. G-u-i-r-g-u-i-s.
18 JUDGE MOLOTO: And it's pronounced?
19 MS. BOLTON: He is he laughing at me, so --
20 MR. GUIRGUIS: Guirguis, Your Honour.
21 JUDGE MOLOTO: Guirguis, okay.
22 Now, yes, the way I understand -- and I said I'm indebted to Mr.
23 Guy-Smith for reminding us the reason for his presence. The way I
24 understand Mr. Guirguis' presence is that when an issue does arise which
25 would prejudice Mr. Sacirbey for purposes for which Mr. Guirguis is
1 present, he would then say to him, Sorry, you need to talk to me and --
2 before you answer that question. And he can do so either raising his
3 hand or saying that, yes, he doesn't have standing. He doesn't have to
4 address the Court, but he can give advice to his client.
5 MS. BOLTON: [Microphone not activated]
6 JUDGE MOLOTO: Okay. Thank you.
7 So to that extent, yes, I must defer to what you say, sir. You
8 are may proceed. Objection overruled.
9 MR. GUY-SMITH: Thank you, Your Honour.
10 Q. Okay. My question was then ...
11 [Trial Chamber confers]
12 [Defence counsel confer]
13 MR. GUY-SMITH: Thank you, Your Honour.
14 Q. My question then is: With regard to your personal knowledge as to
15 the arrival of any specific shipments, that's the place where we are now,
16 and in that regard --
17 A. Yes.
18 Q. -- did you -- did you discuss with the military on the ground, and
19 specifically such individuals as General Delic, the arrival of specific
20 shipments of munitions and arms and other instruments of war during the
21 time that you were the ambassador for Bosnia-Herzegovina at the United
22 Nations between 1992 and the end of the war?
23 A. First of all, Mr. Guy-Smith, as you know the allegations that are
24 directed at me may have been portrayed in some particular way in the
25 media or even by yourself. But they actually --
1 Q. Excuse me, sir, I'm going to interrupt you now. This time I am
2 going to interrupt you.
3 I've asked you a specific question; I expect a specific answer.
4 Thereafter, sir --
5 A. [Overlapping speakers]...
6 Q. Thereafter, sir, you may explain it.
7 However, this is it not a bully poppet [phoen] for you.
8 A. I will invoke Rule 90(E).
9 Q. You're taking the position that this particular -- that the answer
10 to this particular question will tend to incriminate you.
11 A. It may.
12 Q. Very well.
13 A. Proceeding --
14 Q. Excuse me.
15 A. [Overlapping speakers] ...
16 Q. Excuse me. In that regard, I think at this point in time, we need
17 the benefit of the position that his counsel is going to take.
18 JUDGE MOLOTO: Rule 90(E) reads --
19 MR. GUIRGUIS: The position is that this is --
20 JUDGE MOLOTO: Okay.
21 MR. GUY-SMITH: Because what I'm going to ask is, pursuant to
22 90(E), I'm going to ask the Chamber to compel him to answer the question.
23 JUDGE MOLOTO: [Microphone not activated]
24 MS. BOLTON: Yes, Your Honour.
25 What the witness had alluded to in his response is a concern that the
1 answer to this question may incriminate him, and he said - sorry, I
2 wanted to find his exact words - basically, he's concerned not just here
3 but again with the allegations in Bosnia and Herzegovina.
4 So I would ask, then, in light of that response that we go into
5 private -- I guess private session, Your Honour.
6 MR. GUY-SMITH: Well, I think before we do that, I don't think
7 that that's necessarily what he is saying. He may well be saying that,
8 and perhaps we need to get clarification on that, first of all. He may
9 be asserting that is he going to be prosecuted somewhere else in the
10 world for this answer. There is another issue that arises here, which is
11 that if one views 90(E), there is a remedy, and the remedy is clear,
12 which is contained in the third sentence of 90(E).
13 [Trial Chamber confers]
14 [Prosecution counsel confer]
15 [Defence counsel confer]
16 JUDGE MOLOTO: Sir, the Chamber wants you to take this moment to
17 consult with counsel before we break, and tell us what your position is.
18 I know that you said you're invoking Rule 90(E). Do you need any further
19 advice from your counsel on that, or are you happy to stand by what you
20 have just said?
21 THE WITNESS: I would like to have the advice of my counsel
23 JUDGE MOLOTO: Would you like to confer with him before we take
24 the break?
25 THE WITNESS: Yes, please. Thank you, Your Honour.
1 JUDGE MOLOTO: Please do.
2 MR. GUY-SMITH: Kind of unusual.
3 JUDGE MOLOTO: [Microphone not activated]
4 MR. GUY-SMITH: A bit unusual.
5 MS. BOLTON: I don't know that it would be unusual that you
6 consult in confidence with your counsel.
7 JUDGE MOLOTO: Couldn't they mute us -- mute themselves, or mute
9 MR. GUY-SMITH: [Overlapping speakers] ...
10 MS. BOLTON: Sorry. I was speaking.
11 Solicitor/client privilege would be breached by the presence of
12 The Registrar to hear their conversations, so in order to have
13 Confidence, they have to take place just between the counsel and the
15 [Trial Chamber confers]
16 MR. GUY-SMITH: This might be one area where it may be of some
17 assistance coming from the same general tradition and jurisdiction. The
18 chances are probably pretty good they're going to be spending some time
19 discussing this matter with each other. And perhaps we could do at this
20 time is have Madam Registrar peak her head out the door and go from
21 there. But I leave it in your -- I leave it your capable hands,
22 Your Honour.
23 JUDGE MOLOTO: The part -- she is not in court now. But my
24 problem is that I thought this was a very simple matter. Do I stand by
25 my 90(E)'s request or don't I? Yes or no, full stop.
1 MR. GUY-SMITH: [Overlapping speakers] ... That's what I thought
2 too, but --
3 JUDGE MOLOTO: I didn't think it needed any further discussion
4 and ...
5 MR. GUY-SMITH: Apparently --
6 JUDGE MOLOTO: Because that is the only purpose for which counsel
7 is there.
8 MR. GUY-SMITH: That's correct.
9 THE REGISTRAR: [Via videolink] Your Honour's, I apologise.
10 Should I invite counsel and the witness to come back in?
11 JUDGE MOLOTO: It would be very helpful if you could, ma'am,
12 because we're well into the break time now, and we want to take the
14 THE REGISTRAR: [Via videolink] I'm on my way.
15 JUDGE MOLOTO: Okay.
16 Just before we take the break, to say that -- yeah, the Chamber
17 Was taken aback by the fact that you left the room.
18 We'll take the break and come back at 4.00.
19 Court adjourned.
20 --- Recess taken at 3.36 p.m.
21 --- On resuming at 4.02 p.m.
22 JUDGE MOLOTO: I guess, when we went out, when we went for break,
23 you had just come back from conferring with counsel, Mr. Sacirbey.
24 What's your position?
25 THE WITNESS: May I ask my counsel to speak, please.
1 JUDGE MOLOTO: Actually, Mr. Sacirbey, we don't want arguments.
2 We just want your position. Do you want to answer? You don't want to
3 answer? That is really the question that I'm asking you.
4 As I said, your counsel --
5 MR. GUIRGUIS: Your Honour, this is -- I had understood that I
6 standing to make these objections. I don't plan on a lengthy argument,
7 but I do plan on establishing the basis for Mr. Sacirbey' objection and
8 raising a Rule 90(E), which I understand was the Court's prior ruling.
9 JUDGE MOLOTO: Yes. The basis we understand. The basis is of
10 you self-incrimination, and that's it, you know. And really what we want
11 to know is what is Mr. Sacirbey saying, yes, he doesn't want to answer
12 the question because he will self-incriminate, or no?
13 MR. GUIRGUIS: Well, I think Mr. Sacirbey would just take
14 exception to the suggestion that it would necessarily incriminate him,
15 instead, what he is saying is that there are issues which may be
16 raised --
17 MR. GUY-SMITH: Excuse me, Your Honour, what is he doing now is
18 precisely [Overlapping speakers] ...
19 MR. GUIRGUIS: [Overlapping speakers] ... is precisely in
20 violation of what you have asked.
21 JUDGE MOLOTO: Sorry, Mr. Guirguis, we must stop you from
23 Mr. Sacirbey, do you want to answer the question, or you feel you
24 cannot answer the -- you don't want to answer the question?
25 THE WITNESS: I feel that I cannot answer the question without
1 the possibility of risk to my legal status.
2 JUDGE MOLOTO: Thank you. And your legal status, you mean
3 self-incrimination? That's the reason your counsel is here.
4 THE WITNESS: Your Honour, again, we have -- yes.
5 MR. GUIRGUIS: Yes.
6 JUDGE MOLOTO: Thank you.
7 [Microphone not activated]
8 THE REGISTRAR: [Via videolink] Microphone, Your Honour.
9 JUDGE MOLOTO: I beg your pardon. I was just saying I don't know
10 whether the parties have any -- still have any submissions. I think we
11 have heard the submissions of both parties, and unless there is something
12 that they want to add, we can rule.
13 MR. GUIRGUIS: Your Honour, I just like my objection - this is
14 Peter Guirguis - my objection noted for the record that I have not been
15 heard on this matter. But the Court may proceed, of course.
16 JUDGE MOLOTO: Mr. Guirguis, there will be no objection put on
17 the record by you because have you no standing before this Court.
18 MR. GUY-SMITH: I have submitted, Your Honour.
19 JUDGE MOLOTO: Okay. The -- Mr. Sacirbey, your protection is
20 granted. You don't have to answer the question.
21 THE WITNESS: Thank you, Your Honour.
22 MR. GUY-SMITH: For purposes of the record, considering that
23 Rule 90(E) does have a provision that not only safeguards the witnesses
24 concerns with regarding to the privilege against self-incrimination but
25 also would allow for the explanation and examination of facts that are
1 germane to the defence of General Perisic, we would interpose an
2 objection. We would request that the testimony be compelled pursuant to
3 order by this Chamber. And given the Chamber's concern or inclination
4 that I'm inferring from the ruling just made that testimony, which is
5 compelled in this fashion, shall not be used as evidence in a subsequent
6 prosecution against Mr. Sacirbey for any offence other than false
7 testimony which we would call perjury.
8 JUDGE MOLOTO: That protection protects Mr. Sacirbey within this
9 Tribunal, obviously doesn't protect him against courts in the rest of the
10 world. These are just no rules of procedure; they are not substantive
11 law. And these are Rules of Procedure by the ICTY, not by the UN, so we
12 don't bind anybody outside of this Tribunal.
13 Secondly, the relevance of shipments of arms and ammunition to
14 the question of notice to Mr. Perisic eludes me. So I'm not quite sure
15 that this is relevant. So there are two grounds on which I do that. The
16 Chamber does allow Mr. Sacirbey not to answer this question.
17 MR. GUY-SMITH:
18 Q. During the period of time that you were an ambassador for Bosnia
19 and Herzegovina, you met with various officials or individuals from a
20 variety of states for the purpose of obtaining weapons, did you not?
21 A. That is correct.
22 Q. And in that regard, you specifically made arrangements to
23 purchase ammunition and weapons from a number of individuals, including
24 members of the Russian delegation. True?
25 A. I think I should invoke Rule 90(E), Your Honour.
1 JUDGE MOLOTO: To me this is the same topic that we have just
2 ruled on, and I was surprised that in fact you didn't invoke this
3 Rule 90(E) with respect to the very first question, after the ruling.
4 THE WITNESS: Your Honour, we just -- I'm trying to be as
5 forthcoming as possible, at the same time, obviously, protect my legal
6 interests. So I hope you can appreciate my efforts at that. Thank you.
7 JUDGE MOLOTO: Thank you. Granted. It's the same topic.
8 MR. GUY-SMITH:
9 Q. You also met with members of the Iranian delegation for the
10 purpose --
11 MS. BOLTON: Could counsel, if this is the same topic, be
12 instructed to move on.
13 JUDGE MOLOTO: I was just going to do that, Madam.
14 Counsel, otherwise we are going to be sort of -- you are going to
15 be putting questions, and I'm going to say -- [Overlapping speakers] ...
16 MR. GUY-SMITH: [Overlapping speakers] ... Very well, and for --
17 JUDGE MOLOTO: I would like to you move on, please, if you don't
19 MR. GUY-SMITH:
20 Q. During -- well, first of all, I understand what the Chamber's
21 position is, and because the Chamber has asked me to move on, I will. I
22 would note an objection. I believe that this goes directly to issues
23 concerning credibility of this particular witness, and I want to make
24 sure that the Chamber is aware of the fact of my concerns in this regard,
25 but I will move on.
1 JUDGE MOLOTO: Thank you. Mr. Guy-Smith.
2 MR. GUY-SMITH:
3 Q. You, during your tenure as ambassador for Bosnia-Herzegovina,
4 continually pressed for the lifting of the embargo under United Nations
5 Resolution 713. True?
6 A. That is correct.
7 Q. You made that particular issue of concern not only with the
8 United Nations but also with various members of the United States
9 government, specifically Senator Dole; correct?
10 A. From Senator Dole to Richard Holbrooke; that is absolutely
12 Q. You had occasion to meet, if I'm not mistaken, by, I'm saying
13 you, that would have been you, President Izetbegovic, and, I believe
14 Dr. Slavic to meet in the basement of -- the basement area of the
15 United Nations with Mr. Holbrooke concerning the embargo issue; correct?
16 A. Correct. I believe I'm on the record in that meeting.
17 Q. And with regard to Mr. Holbrooke, could you tell the Chamber who
18 you are referring to?
19 A. I'm referring to, at that time, the undersecretary of the
20 US State Department who was also directly responsible for the
21 negotiations management of the, what was probably called internally, the
22 Balkan crisis or the Bosnian-Herzegovina conflict.
23 Q. Mr. Holbrooke told to you cease and desist pressures on the
24 American Congress with regard to the lifting of this embargo under United
25 Nations Resolution 713, and you would be assured of supplies of arms
1 coming from Iran; correct?
2 A. I would like to make the direct quote, which I have been cited
3 for, Mr. Guy-Smith, which is, we could be allowed to receive weapons from
4 any source we wanted to, including Iran. So Iran was not the exclusive
5 potential source that Mr. Holbrooke outlined.
6 Q. In that regard, did you discuss with Mr. Holbrooke those other
7 sources that you would be receiving potentially weapons from, apart from
9 A. Personally, I did not.
10 MR. GUY-SMITH: If I could have a moment.
11 [Defence counsel confer]
12 MR. GUY-SMITH:
13 Q. With regard to your last response, you said, personally, you did
14 not. Am I led to believe that there were discussions between
15 Mr. Holbrooke and others concerning the transfer of weapons to
16 Bosnia-Herzegovina in violation of Resolution 713 that occurred with
17 other members of your government or military?
18 JUDGE MOLOTO: There may have been --
19 Madam Bolton.
20 MS. BOLTON: Sorry, Mr. Sacirbey.
21 Sorry, I take that the witness can't see me, so I have to speak
22 quickly before he starts to answer, and I apologise, because I sometimes
23 interrupt other speakers.
24 Again, the issue of whether Bosnia-Herzegovina was obtaining
25 weapons in terms of the issues before this trial, I'm not sure are
1 relevant, certainly in the involvement of Mr. Holbrooke, again, I'm not
2 understanding the relevance.
3 JUDGE MOLOTO: Mr. Guy-Smith, relevance?
4 MR. GUY-SMITH: Thus far, we have learned from Mr. Sacirbey that
5 information sources with regard to what various positions were
6 concerning, at a minimum, the passage of United Nations Resolution 713,
7 were not only mixed, in terms of the interpretation of that particular
8 Resolution, but also that, apparently outside of the formality of the
9 Security Council, outside of the formality of the General Assembly, there
10 were deals that were being cut. The deals that were being cut are deals
11 that directly go to the issue of what it was reasonable for any
12 individual who was in possession of that information to understand about
13 the state of affairs.
14 The Prosecution has asserted, and I think rather loudly and
15 strongly, that the passing of the variety of resolutions, in effect,
16 establishes not only the legality of various positions but the duty that
17 it would impose on others, and specifically the duty that it would impose
18 on Mr. Perisic, if indeed you have, as we do here, indications that there
19 were violations of these specific resolutions, the extent to which they
20 can be taken at face value as having mandatory effect, as having legal
21 effect, as having a binding effect, is certainly something which this
22 Chamber will necessarily have to consider when making a determination of
23 the impact of any of the publication of these -- of these materials to
24 the parties in general. And if, ultimately, it determines that this is
25 information that Mr. Perisic had specifically, the impact of that
1 information to him as well.
2 Under a totality of the circumstances test, it is reasonable to
3 assert, and it is reasonable to consider whether or not where there have
4 been violations of the self-same resolutions that are being used for
5 purposes of establishing a basis of liability, culpability, obligation,
6 or duty, that an individual possessed of such information could
7 reasonably believe, objectively believe, that it was an alternative
8 matter and have an alternative approach to those particular
10 JUDGE MOLOTO: [Microphone not activated]
11 MR. GUY-SMITH: Well, it's -- I will put it to you real simple.
12 Judge, if I say to you, You can't go there, and if you do go there, you
13 will get in trouble. And you see everybody going there and nobody
14 getting in trouble, you may think that perhaps my statement to you is not
15 an accurate one. And certainly not one which you would follow or rely
16 upon in any respect whatsoever. And if you have, as we seem to have
17 here, and I use the terminology quite specifically, a cynical world in
18 which violations of the -- of the initial resolution, that theoretically
19 is supposed to stop the conflict and conflagration is occurring, then it
20 is certainly something to be taken under consideration.
21 JUDGE MOLOTO: Let me say this. The person on trial here is
22 Mr. Perisic and not Mr. Sacirbey, or is it any of the Bosnian army
23 people. And to say that because somebody said you shall not steal, and
24 other people are stealing and they are not caught and not prosecuted,
25 therefore, you steal, which is what I understand you to be saying, which
1 almost borders on a cousin of tu quoque.
2 MR. GUY-SMITH: Absolutely not --
3 JUDGE MOLOTO: And that doesn't sound to me like a defence.
4 MR. GUY-SMITH: Absolutely not. That's not what I'm saying,
5 Your Honour. And I really don't want you to in any sense whatsoever
6 think that is what is going on.
7 JUDGE MOLOTO: The statement that somebody says, Don't go there,
8 and you see other people going there and nothing happening to them, and
9 you think you also can go there without consequences, to me, is something
10 like saying, Well, there's a law that says we shall not steal, people do
11 steal, people don't get prosecuted, I might as well steal.
12 MR. GUY-SMITH: I understand -- I understand your concern.
13 Before we go any further, I have been patient in holding back on this
14 issue. There has been, as far as I can tell, at least two separate
15 occasions in which there have been communications between Mr. Sacirbey's
16 lawyer and himself through writing, which is not permitted. We have a
17 tape here, so if there is any question about it, it can be reviewed. But
18 I would admonish Mr. Guirguis to stay in his position as a lawyer for the
19 purpose of dealing with the issue of self-incrimination and not engage in
20 counselling Mr. Sacirbey with regard do his testimony.
21 JUDGE MOLOTO: I didn't observe that. And if, indeed, you did do
22 that, Mr. Guirguis, you are so warned. You do not have to engage in
23 communication with Mr. Sacirbey unless you want to -- you want to advise
24 him, and in which case, you shall do so through the Court, or he shall do
25 so through the Court, that he would like to take advice form you on a
1 specific issue.
2 MR. KEHOE: I think --
3 MR. GUIRGUIS: So to be clear, Your Honour, so that -- if I may,
4 Mr. Guy-Smith.
5 Your Honour, so I can clearly understand the Court' ruling
6 because it is not my intent in any way to violate the Court throughout
7 this. If it is my intent to direct the witness not to answer a question
8 or to invoke Rule 90(E), how would you like me to communicate that to the
9 witness? Would you like me to interrupt the questioning and interrupt
10 the Court and inform him formally in front of the Court? Or may I do so
11 privately as between us? Which is what I had understood the
12 ruling before to be and what I -- [Overlapping speakers] ...
13 JUDGE MOLOTO: I expressed my surprise that you left the
14 courtroom and went to confer outside. It is a very simple counselling
15 that he needs on that issue. Yes, you may answer the question; yes, you
16 may not answer the question. You don't really need to leave the court
17 for that to do it privately.
18 If you must indicate, maybe you might do so by raising your hand,
19 and we will stop, and we'll ask Mr. Sacirbey to hear what you have to
21 And you can tell Mr. Sacirbey, and Mr. Sacirbey can tell us.
22 MR. GUIRGUIS: Thank you, Your Honour.
23 MR. GUY-SMITH: What I'm getting at this, Your Honour.
24 THE WITNESS: [Interpretation] Thank you, Your Honour.
25 MR. GUY-SMITH: Because I think that going towards the notion of
1 tu quoque is not only ill-advised, it is incorrect in terms of what I'm
2 saying to you.
3 Under the principle of in dubio pro reo and under the
4 jurisprudence of this Tribunal, if there is an objectively reasonable
5 alternative explanation for why an individual acted in a particular
6 fashion or if there is an objectively reasonable alternative explanation
7 which is distinct from that of guilt, the Trial Chamber must of necessity
8 adopt that interpretation.
9 Now here what we're dealing is the issue of perception. And the
10 issue of perception is going to be rather critical to you at the
11 conclusion of this case, with regard to what the motivations were of
12 General Perisic. If you take -- it seems as if Judge David wishes to say
13 something, so I will stop.
14 [Trial Chamber confers]
15 JUDGE MOLOTO: Can you finish, Mr. Guy-Smith. If you could be
16 brief, please.
17 MR. GUY-SMITH: This gentleman's testimony has been replete with
18 identifying resolutions which, as the Chamber knows, I objected to him
19 reading from the resolutions and interpreting them, because they were
20 documents, that I took in that position, stood for themselves, and the
21 Court could read them as well as anyone else.
22 Mr. Sacirbey has put a spin on these documents. It is his spin,
23 and I don't think it's necessarily something which he can be faulted for
24 because of his particular position with regard to not only the conflict
25 but his position as a diplomat and his position in regards to this case.
1 But that does not discount the importance of this Court being aware of
2 the fact that the mice were scurrying about throughout this conflict and
3 all of that information and all of the things that were occurring
4 potentially affected the perception, the thinking, and ultimately the
5 actions of General Perisic. And to deny an inquiry into this particular
6 area is to begin the process of cutting off an aspect of what, in our
7 respectful submission, is an appropriate line of inquiry and is an
8 appropriate line of consideration for the Chamber.
9 JUDGE MOLOTO: Are you saying Mr. Perisic was aware of what was
10 happening, what was -- what the Bosnian army was doing and what
11 Mr. Sacirbey was doing, and therefore he went and did what he did because
12 he saw them doing what they were doing?
13 MR. GUY-SMITH: No, indeed not.
14 JUDGE MOLOTO: Then I don't see the relevance.
15 MR. GUY-SMITH: And I don't think that I would need to have to
16 say that in order for this to become part of your consideration. I
17 really -- I don't think that's where the inquiry should be at all.
18 JUDGE MOLOTO: Okay. Fine.
19 MR. GUY-SMITH: [Overlapping speakers] ...
20 JUDGE MOLOTO: Are you done with your argument? Are you done
21 with your response?
22 MR. GUY-SMITH: Yes.
23 JUDGE MOLOTO: Thank you so much.
24 Do you have response, ma'am? You made an objection.
25 MS. BOLTON: I stand by the objection. I still don't think the
1 relevance has been established, Your Honour.
2 JUDGE MOLOTO: Objection upheld.
3 MR. GUY-SMITH: Could I have 1D03-1477 up on the screen.
4 THE REGISTRAR: [Via videolink] Could counsel please identify the
5 tab number.
6 MR. GUY-SMITH: That is something -- this is a screen document.
7 It is a relatively lengthy document.
8 THE REGISTRAR: Could you repeat the number, please.
9 MR. GUY-SMITH: Surely.
10 JUDGE MOLOTO: [Microphone not activated]
11 MR. GUY-SMITH: 1D03-1447 [sic].
12 JUDGE MOLOTO: That's a different number.
13 THE REGISTRAR: I'm afraid that's unreleased, Mr. Guy-Smith.
14 MR. GUY-SMITH: I seem to be saying the wrong thing. 1D03-1477.
15 Q. Okay, can you see that -- do you have the title page on your
16 screen -- do you have the title page available to you?
17 A. Yes, I do.
18 Q. Okay.
19 MS. BOLTON: Is this not the same topic we've just been
20 discussing, Your Honour.
21 MR. GUY-SMITH: No, it's not. And the document is the final
22 report of the select subcommittee to investigate the United States role
23 in Iranian arms transfers to Croatia and Bosnia ("the Iranian green light
1 A. That's correct.
2 Q. If we could go to page 30 of that document, which, for purposes
3 of -- Mr. Registrar, if it's of any help, will be 1D03-1506.
4 A. Still cannot read it. If you could just magnify it a little
5 more, please.
6 JUDGE MOLOTO: We are still not on page 20. It looks like we're
7 on page 20 and not 30.
8 MR. GUY-SMITH: It's page 30 of the e-court.
9 JUDGE MOLOTO: Okay.
10 MR. GUY-SMITH:
11 Q. I'd like to read to you --
12 MS. BOLTON: Sorry, if I could just have a moment. I got the
13 first page as a part of a binder that the Defence provided to me, but
14 none of the subsequent pages. So before my friend asks his question, if
15 I could just read the text and then I'll know whether --
16 MR. GUY-SMITH: Sure.
17 JUDGE MOLOTO: [Overlapping speakers] ...
18 MR. GUY-SMITH: I'm going to be reading from the paragraph
19 "Notwithstanding..." So we will need to scroll down a little bit.
20 MS. BOLTON: Thank you.
21 MR. GUY-SMITH: For purposes of the record, I will not be seeking
22 to introduce the entire document. I believe it is some 695 pages long.
23 And in addition, information was released to the Prosecution, so they did
24 have access to the document. This document also was a document that was
25 previously introduced into evidence in another case at this Tribunal.
1 Q. Have you had an opportunity to read that paragraph, sir?
2 A. Yes, I have.
3 Q. Okay. And the paragraph states:
4 "Notwithstanding the UN's efforts, the war continued into the
5 summer. In August 1992, representatives from other 30 countries and
6 non-governmental organisations met in London at the international
7 conference on the former Yugoslavia to bring about a negotiated end to
8 the fighting. The London Conference, sponsored by the EC and the UN
9 named Lord David Owen and Cyrus Vance co-chairman of the EC-UN steering
10 committee. The conference affirmed the principle that international
11 borders should be changed only by mutual consent and called for a
12 cease-fire, access to detention camps (by international organisations
13 such as UN high commission on refugees or the Red Cross), and the
14 protection of human and minority rights.
15 "Unfortunately, the London Conference, like the resolution before
16 it, had little effect on the violence on the ground. Finally, on
17 August 31st, Cyrus Vance announced that all parties had already violated
18 the terms of the conference, including the cease-fire, which they had
19 approved just days earlier."
20 Now my question to you is, initially, as follows. Is this
21 paragraph discussing the London Conference that you had mentioned in your
22 direct testimony?
23 A. Yes, it is.
24 Q. And with regard to the issue of the cease-fire having been
25 violated by all parties, do you concur with that statement?
1 A. No, I do not necessarily.
2 Q. Thank you. We will remain with the same document.
3 MR. GUY-SMITH: If can go to -- and it will be 1D03-1564, which
4 will be page 88 in e-court.
5 JUDGE MOLOTO: 15 ...
6 MR. GUY-SMITH: 64.
7 Q. I'm referring to the first paragraph, the last sentence of the
8 first paragraph, after the --
9 JUDGE MOLOTO: Yes, Madam Bolton.
10 MS. BOLTON: Yes, again, this is the precise issue that we had
11 the discussion about the relevance of before and that I understood
12 Your Honour to rule that it was not relevant, and I raise the same
14 MR. GUY-SMITH: Asking a different question.
15 JUDGE MOLOTO: Well, I need to read this just to understand what
16 you are saying.
17 Yeah, I -- I don't see the relevance, but, you know, to the
18 extent that --
19 MR. GUY-SMITH: If I might develop --
20 JUDGE MOLOTO: -- this is not coupled with whether or not this is
21 the actions of Mr. Sacirbey and therefore self-incriminating, it's just a
22 document. I don't know how you feel, or do you still insist that ...
23 MS. BOLTON: I may -- I may have been premature in that my friend
24 hadn't asked the question yet, and I am, perhaps, assuming he is going
25 somewhere. I will listen to his question, and then I'll readdress the
1 issue. I'm sorry.
2 JUDGE MOLOTO: Thank you, ma'am.
3 MR. GUY-SMITH: I thank you for the courtesy.
4 Q. Referring to the last sentence: "The US had made a clear
5 decision that the UN Security Council Resolution 713 applied to all of
6 the former Yugoslavia and that 'all arms embargo violations should be
7 investigated and, where appropriate, prosecuted.'"
8 You said yesterday with regard to resolution 713 at page 7624,
9 line 15 to the following question that I asked:
10 "I'm sorry, when you say that diplomatic initiatives sometimes
11 have results that are not necessarily direct, could you please explain
12 what you mean by that, sir?
13 "A. Yes. There were states that ultimately took the view that
14 Resolution 713 was not binding upon Bosnia-Herzegovina, because it had
15 been adopted before Bosnia and Herzegovina was a member state and because
16 Bosnia and Herzegovina was faced with a direct assault upon its
17 sovereignty and territorial integrity. And in fact its primary right to
18 defend itself was the one that legally dominated."
19 And my question to you, sir, is: Is one of the member states
20 that you're referring to when you made that statement yesterday, the
21 United States of America?
22 A. I believe that's a largely accurate statement.
23 Q. Thank you.
24 MR. GUY-SMITH: If we could now have in the same document, the
25 last four numbers would be 1631. And if we could move -- you need to
1 move down, yes. And it would be the last paragraph.
2 Q. You had discussed with us violation of air space. And my
3 question to you is as follows, starting with the language of the second
5 "According to newspaper stories United Nations observers claimed
6 to have observed C-130 military transport aircraft operating what they
7 believed to be low-level parachute drops in the Tuzla area on
8 February 10, 12, 17, and 23 of 1995. News reports also indicated Danish
9 and Norwegian troops serving with UNPROFOR in the area claimed to have
10 'heard' C-130 aircraft, seen American military weaponry and packaging,
11 and been fired upon when they attempted to investigate the mysterious
13 Stop there for the moment.
14 Were you aware of any such flights occurring in the Tuzla -- it
15 the Tuzla area on those dates, and is this one of the things that you
16 were discussing when you were discussing the issue of the violation of
17 air space?
18 JUDGE MOLOTO: Madam Bolton.
19 MS. BOLTON: Well, sorry, Your Honours.
20 In terms of the previous statements the witness has made about
21 this, they -- they related to violations, as I recall, of Serbian air
22 space -- or by Serbian air forces. And the issue of whether there were
23 flights by United Nations -- or sorry, United States military personnel
24 and equipment was not an issue that came up during examination-in-chief.
25 And, again, would simply be another issue of - I use a colloquial term
1 because I don't remember the name the actual defence - but tit-for-tat
2 basically again. There is no relevance to this to any issue of notice.
3 Again, it's just an indication that there was wrongdoing on the other
4 side as well.
5 MR. GUY-SMITH: Well, no, that is not what is being offered for.
6 That's not the purpose of this at all.
7 JUDGE MOLOTO: I think, Madam Bolton, the question was: When you
8 talked about violation of air space, did you refer to this? The answer
9 is, yes, I did; no, I didn't. I think -- I don't think -- and in any
10 case, I'm aware that in this trial we have heard evidence before around
11 this issue. I think it is an issue that is alive in the trial.
12 It may not have been around the Tuzla area. Maybe it was around
13 other areas. I don't want to reveal more, because -- [Microphone not
15 MR. GUY-SMITH:
16 Q. Do you have any question in mind, Mr. Sacirbey?
17 A. I think I actually heard the question reformulated, to some
18 extent, by His Honour. So it may be -- if you can restate it for me, I
19 want it make sure I'm precise here to your question, Mr. Guy-Smith.
20 Q. With regard to the sentence that I have read out loud, which you
21 have had the opportunity to read, were you aware of there being a
22 violation of air space on February 10th, 12th, 17th, and the 23rd of 1995
23 as described in this particular paragraph?
24 A. Beyond the report that you have read to me, and beyond the
25 request that I made of the US government at that time for humanitarian
1 airdrops, I'm not aware of anything of that sort.
2 MR. GUY-SMITH: I'm trying to make this shorter, not longer, so
3 if I could have a second.
4 JUDGE MOLOTO: You may.
5 MR. GUY-SMITH: Going to 1675. The 1675, I'm sorry -- thank you.
6 Down to the very -- down to the bottom.
7 Q. With regard to the last paragraph, it is -- which says:
8 "Izetbegovic and the radicalization of the Muslim political
9 leadership, it is the abandonment of secular and democratic principles by
10 the Bosnian Muslim political leadership, particularly by
11 President Izetbegovic" --
12 JUDGE MOLOTO: Slowly.
13 MR. GUY-SMITH: "And his party" --
14 THE REGISTRAR: [Via videolink] Your Honour, can that paragraph be
15 zoomed in a bit more. I apologise.
16 JUDGE MOLOTO: I didn't hear the Registrar. Okay. She
17 wanted ...
18 MR. GUY-SMITH:
19 Q. "And his party" --
20 A. I'm good, thank you.
21 Q. Good.
22 "And his party of democratic action (SDA), that is the most
23 surprising and disappointing failure of the Bosnian political elite to
24 rise to the challenge of the electoral process mandated by the
25 Dayton Accords. Under the leadership of President Izetbegovic, the
1 Muslims have in the years since the dissolution of Yugoslavia, frequently
2 tried to calm the fears and suspicions of the Serb and Croat minorities
3 by emphasizing a commitment to secularism, and the protection of minority
4 democratic rights. Increasingly, though, the radicalized SDA has taken
5 refuge in nationalism and a devisive emphasise on the Islamic identity of
6 Bosnia. The SDA now, controlling a plurality of the Bosnian population
7 (some 40 percent are Muslim), appears single-mindedly intent that only
8 Bosnia be unified under its domination."
9 With regard to the views expressed there, sir, were those views
10 the kind of views that you were talking about, that were expressed during
11 your tenure as an ambassador to Bosnia-Herzegovina for the
12 United Nations?
13 A. Mr. Guy-Smith, I think that document -- I think that document
14 both came out and refers to a period after the war.
15 Q. I understand. What I'm getting at is the -- the underlying
16 concern that is contained therein. Because, as you recall, the other --
17 as you recall, the other day we were discussing the concern that existed
18 with regard to the Islamic declaration of President Izetbegovic. And you
19 had indicated that the president had moved away from, or did not share
20 those particular kind of views.
21 A. Mr. Guy-Smith, again, emphasizing that this document refers to a
22 period after the war, it is my view, also, that in fact the
23 Dayton Accords did in many ways betray secularism and did in fact create
24 a new feudal system within Bosnia and Herzegovina.
25 So at least to that extent that I may agree. But I do not agree
1 with the particulars of that report, and certainly as it applies to the
2 period during the war. It is it my view that not only Dayton agreement
3 but, in fact, in many ways it has been implemented since the conclusion
4 of the war has promoted, what I call a European apartheid, where people
5 are encouraged to live in ethnic ghettos, rather than promoting a true
6 notion of a pluralistic multi-ethnic Bosnia. I certainly did not
7 envision nor did I struggle for a Bosnia that was mono-ethnic, that was
8 divided into ethnic ghettos, or one was that was dominated by any Muslim
9 group or certainly a Muslim majority.
10 JUDGE MOLOTO: Just before you continue, Madam Stenographer,
11 Mr. Lukic has been so quite right through this proceedings, if you could
12 please delete his name from the record. Thank you so much.
13 Just protecting you, Mr. Lukic.
14 MR. GUY-SMITH:
15 Q. Finally -- well, not finally, I apologise. If we could now go to
16 last four numbers 2079, which would be page 603.
17 This document indicates a series of dates of articles appearing
18 in the national intelligence daily referring to actual or proposed arm
19 shipments in violation of the United Nations embargo. My first question
20 to you is, do you know the national intelligence daily to be a
21 publication of the Central Intelligence Agency of the United States of
23 A. Not specifically, Mr. Guy-Smith.
24 Q. You had earlier discussed with us that some of the information
25 that you obtained, and I'm not sure whether you obtained that information
1 firsthand or second-hand, but that some of the information that you had
2 obtained had been obtained from CIA
3 A. I have never received a direct briefing that I am at least aware
4 of from someone who identified himself as a CIA operative.
5 Q. Okay.
6 A. I have been told that -- information may have had CIA origins.
7 Q. Okay. And with regard to information that you were told may have
9 a representative of the Bosnia-Herzegovina government to pursue those
10 interests as best you could on behalf of Bosnia-Herzegovina; correct?
11 A. Mr. Guy-Smith, I had extensive discussions with people who may
12 have had either CIA
13 In each instance I had to make an appraisal to what extent that
14 information was, number one, reliable, the source was reliable; and,
15 number two, accurate. So your statement is very broad in that point.
16 But there certainly may have been moments; that's correct.
17 Q. And what I'm asking you, because I think have you established for
18 us that you have no contemporaneous records of such conversations, as you
19 sit here today, information that you were led to believe came from the
21 A. Again, to the extent -- again to the extent that I was confident
22 that it was accurate, and, of course, depends on what purpose would I
23 rely for it.
24 Q. Okay. Looking at this particular document, in 1994, there are a
25 series of dates, those being January 22nd, February 7th, March 16th,
1 April 4th, April 27th.
2 JUDGE MOLOTO: You don't have to go through all of them.
3 MR. GUY-SMITH: Okay. Well, my concerns is I'm going to be
4 moving admission of this particular page, so if --
5 JUDGE MOLOTO: [Microphone not activated]
6 MR. GUY-SMITH: Okay. Fine.
7 Q. Do you have any reason to disbelieve that the information that is
8 contained in this particular chart which is information from the CIA
9 concerning actual or proposed arms shipments is inaccurate, incorrect, or
10 in any other fashion --
11 A. I have in reason --
12 Q. -- unreliable?
13 A. I have no particular reason to believe -- I have no particular
14 reason to believe that it is an inaccurate. Also, on the contrary, I
15 have no reason to believe it's necessarily accurate.
16 Q. I see. With regard to your answer, I thank you. And if we could
17 now move to the next page which is 2080.
18 One of the things that you have discussed with us is the major --
19 major news media, sources. I think we need to go up a little bit more.
20 MR. GUY-SMITH: Madam Bolton.
21 MS. BOLTON: Please, yes.
22 MR. GUY-SMITH: Thank you.
23 Q. Now had you had mentioned in your testimony television press, and
24 you had not mentioned the written press, I don't believe. Perhaps I'm
25 mistaken, maybe you did. But with regard to --
1 A. If I did --
2 Q. A with regard to the written press -- let me get there.
3 With regard to the written press, would it be fair to say that
4 during your tenure as an ambassador for Bosnia-Herzegovina, you read and
5 considered information from those newspapers and news agencies that are
6 listed on this particular schedule, including, and I want read them all,
7 the New York Times, the Los Angeles Times, the Washington Post, the
8 Christian Science Monitor, Reuters.
9 A. That is correct. The list that I see at least goes down to
10 Washington Post, as far as I can see.
11 MR. GUY-SMITH: Let's, if we could, Mr. Registrar, scroll down.
12 THE WITNESS: Yes, yes, it's the last date I see, 4/15/1995.
13 MR. GUY-SMITH: Okay. And if we scroll just up to the top.
14 Q. The time-period begins on August 23rd, 1992, and I believe you
15 gave us the ending time there; correct?
16 A. That is correct.
17 Q. Okay. Thank you for your answer.
18 MR. GUY-SMITH: I would move the admission of those particular
19 pages into evidence at this time.
20 JUDGE MOLOTO: Yes, Madam Bolton.
21 MS. BOLTON: Yes, Your Honour, I would object under guideline 27,
22 which indicates that where one of the parties seeks the admission of a
23 document through a witness, it must demonstrate to the Trial Chamber the
24 relation between the witness and the document. My respectful submission,
25 first of all, with respect to this page that is currently displayed, the
1 witness hasn't indicated that he had read any of these articles. The
2 question was asked him was, Would be fair to say during your tenure as an
3 ambassador for Bosnia-Herzegovina, you read and considered information
4 from those newspapers and news agencies that are listed on the particular
6 But he didn't then ask him if he had read these particular
8 MR. GUY-SMITH: I stand corrected there, And I will be happy to
9 tend to that. I'm trying to save time. But I'm happy to go through each
10 one of the articles.
11 MS. BOLTON: If I -- perhaps can I deal with my objections, the
12 other portions, or would you prefer to Mr. Guy-Smith continue to ask
14 JUDGE MOLOTO: If you hadn't finished, I would like you to
15 finish. But I wanted to ask the question: Does the fact that a person
16 has read a newspaper necessarily establish a link between person and the
18 MS. BOLTON: Well, that's another issue, and I think it would be
19 a different -- a different scenario if he were shown the actual article
20 and then could identify the article by its contents. To have a list
21 doesn't assist, I think, anybody, and, him, I don't know how, you know,
22 as a person how would you remember, you know, an article by its name
23 alone 13 years later. Again, I think you would have to show the actual
24 article for it to be admitted.
25 Those are my comments with respect to that page, Your Honour.
1 With respect to the previous page that was shown, which had to do with a
2 list of alleged violations from the national intelligence daily,
3 Mr. Sacirbey was asked if he was aware of that being a publication of the
5 that's the source of the information.
6 And there was not any -- there is no relationship again between
7 him and the list of dates that was provided. He didn't adopt any of the
8 information on that page. He was questioned about a quote about
9 Izetbegovic and the radicalization. I don't have any particular
10 objection to that paragraph going in, just so that the record is clear
11 that -- well, I think the whole paragraph, actually, was read into
12 evidence to him, so perhaps it is not necessary to file the page because
13 we already have in the transcript what was put to him and what his
14 response was. And, similarly, with respect to the questioning about the
15 mystery flights. But I'm most concerned about the two annexes which my
16 friend seems to wish to rely on for the truth of their contents, and this
17 witness is not in a position to -- has not adopted them, basically, for
18 their truth.
19 JUDGE MOLOTO: I appreciate what you have just said. My only
20 confusion is, at this stage, I've just written the ID numbers, and you
21 have sort of dealt your objections heading by heading. I'm not quite
22 sure which heading relates to which document, to which ID number. We
23 will have to take it one at a time.
24 MR. GUY-SMITH: Sure.
25 JUDGE MOLOTO: Maybe what I would suggest for purposes of
1 expediency and expeditiousness, I would ask Mr. Guy-Smith to take them
2 one by one, and say he must tender 1D03-1477 first. If have you an
3 objection, you will raise it, and then go to the next one.
4 MR. GUY-SMITH: Well, in light of the objection that has been
5 raised by Ms. Bolton, and considering the Court's admonition when I was
6 dealing with the second-to-the-last document, it perhaps will be
7 unnecessary for me to go through date by date with regard to those dates
8 in 1994 and 1995. I was avoiding that because I felt that the Chamber
9 did not want me to go through that laborious process. But considering
10 Ms. Bolton's objection, if that is going to make the difference between
11 its admission and its nonadmission, then perhaps that is it matter I
12 should attend to first.
13 JUDGE MOLOTO: Well, can I suggest that because we -- [Microphone
14 not activated]
15 THE INTERPRETER: Microphone, Your Honour.
16 JUDGE MOLOTO: I'm so sorry. I was saying can I suggest that
17 Mr. Guy-Smith goes right to the top 1D03-1477, let's deal with that, get
18 it admitted or thrown out, and get to the next one.
19 MR. GUY-SMITH: ID -- 1D03-1477 is the face-page of the final
20 report by the subcommittee. I would move its admission.
21 JUDGE MOLOTO: Is admitted into evidence. May it please be given
22 an exhibit number.
23 Now, that just the first page.
24 MR. GUY-SMITH: Yes.
25 THE REGISTRAR: [Via videolink] Microphone, Your Honour, please.
1 [Trial Chamber and registrar confer]
2 JUDGE MOLOTO: 1D03-1477 is admitted into evidence. May it
3 please be given an exhibit number.
4 THE REGISTRAR: Your Honours, that will be Exhibit D128.
5 JUDGE MOLOTO: Thank you. D128.
6 Yes, Mr. Guy-Smith.
7 MR. GUY-SMITH: The next part, and I know if we're doing this in
8 terms of sequential exhibit numbers or not.
9 JUDGE MOLOTO: Sequential exhibit numbers, sir.
10 MR. GUY-SMITH: The next part would be 1D03-1506.
11 JUDGE MOLOTO: The next one was 1D03-1564.
12 MR. GUY-SMITH: I believe I have 1506 first Your Honour. That
13 was page the 30 that we discussed. That was "notwithstanding the
14 United Nations efforts, the war into continued into the summer ... in
15 August 1992." It's at page 37, line 24.
16 JUDGE MOLOTO: [Microphone not activated]
17 MR. GUY-SMITH: That's 1506, Your Honour. Perhaps I misspoke
18 myself in the -- but that is 1506.
19 JUDGE MOLOTO: [Microphone not activated]
20 MS. BOLTON: No objection.
21 JUDGE MOLOTO: It is admitted. May it please be given an exhibit
23 THE REGISTRAR: Your Honours, that will be Exhibit D129.
24 JUDGE MOLOTO: Thank you.
25 Yes, Mr. Guy-Smith.
1 MR. GUY-SMITH: The last page was page 1D30-1506, which is
2 page 30 electronically, Carmela.
3 The next on is 1D03-1564, which is page 88 electronically. I
4 would move its admission.
5 MS. BOLTON: Sorry, Your Honour, I just need a moment. I'm
6 trying to remember the line of questioning with respect to this page.
7 Thank you. No objection.
8 JUDGE MOLOTO: It is admitted. May it please be given an exhibit
10 THE REGISTRAR: That will be Exhibit D130.
11 JUDGE MOLOTO: Thank you.
12 Yes, Mr. Guy-Smith.
13 MR. GUY-SMITH: Yes, the next page is 1D03-1631, which is
14 page 155 electronically.
15 JUDGE MOLOTO: You need a moment, Madam Bolton?
16 MS. BOLTON: Please.
17 MR. GUY-SMITH: If it's of any help, this deals with the issue of
19 MS. BOLTON: Can we please scroll down. I don't think we hadn't
20 seen the first paragraph of this page before.
21 JUDGE MOLOTO: [Microphone not activated] ... I just said this is
22 the one, Tuzla mystery flights.
23 MS. BOLTON: Sorry, Your Honour, I'm just taking a moment. I
25 JUDGE MOLOTO: Would it be of any help if we took the break
1 early, and you can go through these things tell us later when we come
3 MS. BOLTON: It would be. And I'm sorry it's taking me a moment,
4 Your Honour.
5 JUDGE MOLOTO: No problem at all. We will take a break and come
6 back at quarter to.
7 Court adjourned.
8 --- Recess taken at 5.13 p.m.
9 --- On resuming at 5.46 p.m.
10 JUDGE MOLOTO: You have been able to sort yourself out,
11 Madam Bolton?
12 MS. BOLTON: On this issue, I have, yes. I have no objection to
13 this page.
14 JUDGE MOLOTO: This was 1631. It's admitted. May it please be
15 given an exhibit number.
16 THE REGISTRAR: Your Honour, that will be Exhibit D131.
17 JUDGE MOLOTO: Thank you.
18 Mr. Guy-Smith.
19 MR. GUY-SMITH: Thank you, Your Honour.
20 The next page sought for admission is 1D03-1675, which I believe
21 is page 199 electronically in the document which is the final report of
22 the select subcommittee to investigate United States' role in an arms
23 transfer to Croatia and Bosnia, the Iranian green light subcommittee.
24 MS. BOLTON: No objection, Your Honour.
25 JUDGE MOLOTO: [Microphone not activated]
1 THE REGISTRAR: That will be Exhibit D132.
2 MR. GUY-SMITH: The next document for which I was going to seek
3 admission was 2079. However, unless Ms. Bolton's position changes with
4 regard to this document, I had been led by the Court's inclination and
5 instruction and had not gone through it date by date, because I
6 considered it to be not a particularly good use of time. However, if
7 there's going to be difficulty with its admission, I will spend some more
8 time with this particular document.
9 MS. BOLTON: I object both on the basis of relevance and that he
10 hasn't established the necessary connection with this witness.
11 MR. GUY-SMITH: Very well then, I'm going to hold off for a
12 minute, because I think that we're going to have the same difficulty with
13 the next document. So for the moment I will not be seeking their
14 admission, unless the Chamber is inclined to admit them over objection.
15 But at this point I seek guidance from the chamber because I don't know
16 if the Chamber is satisfied or not.
17 JUDGE MOLOTO: Mr. Guy-Smith, are you speaking in tongues.
18 MR. GUY-SMITH: I don't mean to be, Your Honour.
19 JUDGE MOLOTO: You're saying because of the objection, you're not
20 seeking --
21 MR. GUY-SMITH: [Overlapping speakers] ...
22 JUDGE MOLOTO: -- to tender, but you seek guidance. You
23 prosecute your case.
24 MR. GUY-SMITH: Thank you very much, and I understand the Court's
1 I seek the admission of 2079 and 2080. Let me take them
2 sequentially, 2079 which is the dates of articles appearing in National
3 Intelligence Daily, referring to actual or proposed arm shipments in
4 violations of the United Nations embargo, which include dates both for
5 the years -- the calendar years, 1994 and 1995.
6 [Trial Chamber confers]
7 THE INTERPRETER: Could Mr. Guy-Smith please speak closer to the
8 microphone. Thank you.
9 JUDGE MOLOTO: Sorry, the Chamber is of the view no nexus has
10 been established between the witness and this document.
11 MR. GUY-SMITH: Very well.
12 JUDGE MOLOTO: Yeah. I'm not quite sure whether your request was
13 global for the two, or --
14 MR. GUY-SMITH: No, no.
15 JUDGE MOLOTO: Just for that one.
16 MR. GUY-SMITH: Just for that one. Okay.
17 If we could have 2079 back up on the screen, page 603.
18 JUDGE MOLOTO: Now we have ruled.
19 MR. GUY-SMITH: I'm going to, at this point, discuss this
20 document further with the gentleman. Whether or not I seek its admission
21 or not is a different issue.
22 JUDGE MOLOTO: Okay.
23 MR. GUY-SMITH: But, also, Your Honour, if I might, truly, if I
24 might, the purpose of cross-examination is certainly more than just the
25 testing of the lock-step direct evidence presented by the Prosecution.
1 It also is a time-honoured and recognised position, as I'm sure
2 Your Honour is well aware, for the Defence to be able to develop its case
3 and its defence. And since, with regard to this particular document, I
4 had begun to ask questions day by day about this document and received an
5 indication from Your Honour that that was not a [indiscernible]
6 methodology of going, I foreclose going through it day by day. So at
7 this point in time, I'm going develop a discussion if. The Chamber
8 decides there is a nexus, fine; if the Chamber decides there is not a
9 nexus, so be it. But I'm going to spend some time with this particular
10 document and this particular witness.
11 JUDGE MOLOTO: You're very correct, Mr. Guy-Smith. But, you see,
12 you're putting the cart before the horse. What happened -- the Chamber
13 indeed did say to you, yeah, you don't need to go through them because
14 are you just reading what was there on the list. When the Chamber said
15 you don't have to go through them all, and you agreed that, yeah, you're
16 going to tender them, and that was the reason you stopped.
17 However, at the time of tendering, Madam Bolton objected. And
18 you said if she objects, you want to go through them one by one. Now,
19 that was before the break. Now, after the break, you have made a
20 statement, and I said you're speaking in tongues. Then you said, no, I'm
21 submitting -- I'm tendering them, instead of saying let me go one by one
22 so that I started a nexus before you rule. Then you let me rule. After
23 ruling, now I say you want to go one by one. This is the problem.
24 MR. GUY-SMITH: I certainly don't want to ... I certainly don't
25 mean to offend and didn't in any fashion.
1 THE INTERPRETER: Could counsel please speak closer to the
3 MR. GUY-SMITH: In a fashion feel that it would foreclose --
4 MS. BOLTON: Sorry, we're disconnected.
5 JUDGE MOLOTO: While we're talking about admission of documents,
6 do we need them?
7 MR. GUY-SMITH: I don't think so.
8 JUDGE MOLOTO: While they're being connected, can we carry on.
9 MR. GUY-SMITH: Sure.
10 I did not believe that that would foreclose an examination of
11 information that's contained concerning -- within this document
12 concerning issues which are relate and germane not only to challenging
13 the Prosecution's case but also to developing the Defence case.
14 But now, I stand -- I understand what the Court has said, and I
15 also believe that there are two separate areas in which I find solace in
16 my position. One is that under guidelines we have, and if you feel I
17 have been, shall we say, a bit too quick in my position, that I can ask
18 for you to reconsider. And the second area is under the fundamental
19 rights that my client has under Article 21 to be able to, through
20 cross-examination, not only, as I said before, challenge the case
21 presented by the Prosecution but also develop a Defence. And, to be
22 perfectly honest with you, I make a comment here, which is I find the
23 view that the gentleman, at this time, is able to act as a mouthpiece for
24 resolutions without being challenged, both in terms of his credibility in
25 this regard by such information as is contained within this relatively
1 comprehensive senate report, about something that I think is relatively
2 critical to a number of issues, is troublesome. But in any event -- he
3 is back.
4 So at this point what I will do is I would ask, with the Court's
5 indulgence, for it to reconsider its ruling, after a series of questions
6 have been asked and answers have been given, whatever they may be, or ...
7 JUDGE MOLOTO: You know --
8 MR. GUY-SMITH: I'm referring to the guidelines, I believe it's
9 -- it's -- Rule 33. Your guideline, Rule 33.
10 JUDGE MOLOTO: Mm-hm. I guess you do accept and understand,
11 Mr. Guy-Smith, that, as a matter of procedure, and I'm sure this happens
12 also in your jurisdiction, when a ruling has been made, it has been made.
13 And on an issue like this where you are trying to admit a document, if
14 the Chamber rules that it is not admitted, surely, you can't ask
15 questions further on that document.
16 I understand that there is a slight -- well, it is not slight.
17 In my book it is a very fundamental difference, and it's a difference
18 with which I have very great difficulty in this Tribunal, where documents
19 are read, put on record, and after they have been put on record, only
20 then they are sought to be admitted into evidence. They are already
21 there. The procedure, as I know it, is that you authenticate and
22 identify and authenticate and establish the nexus even before you ask
23 questions about it, then you ask for admission. If it is it admitted,
24 then only then can you ask questions. And if it is not admitted, that's
25 the end of it, and that's the end of the life of that document.
1 I hear you where you say you ask for reconsideration. We can
2 reconsider. Let's hear what the Prosecution has to say.
3 Madam Bolton.
4 MS. BOLTON: My main concern again relates to the -- well,
5 there's no -- there's no reason been proffered for reconsideration. But,
6 again, my friend has said he wants to rely on this document somehow to
7 advance his case, but the relevance or how it would advance his case is
8 not clear and still has not been established. So there is still a
9 two-prong objection on my part. I don't see any basis for your exercise
10 and your discretion to reconsider.
11 JUDGE MOLOTO: Well, the basis for exercising my discretion, and
12 of course, I will confer with my colleague on the bench, is, as I
13 understand, counsel, is that he was probably misled by the Chamber saying
14 you don't need read through the whole thing, and he didn't go one by one,
15 which is what he wanted to do. At the time he was not going one by one;
16 he was reading what was already there. And I'll just mention in them,
17 all of them chronologically as they stand, without engaging the witness
18 on the article of the 22nd of January and discussing that article and
19 then going to the next one.
20 And given that it may very well be that the Chamber misguided
21 him, that would be the basis for reconsideration. And he did indicate,
22 indeed, at some stage that he would want to do so, to go through one by
23 one, if that is after your objection, if you still insisted on your
25 MS. BOLTON: I understand that. I guess the point I'm trying to
1 make is what is the utility in him going through one by one whether there
2 were violations of the arms embargo when we had this discussion about the
3 fact that it doesn't seem to be relevant to any issue other than a -- I'm
4 sorry, I'm going right down what the actual Latin is.
5 JUDGE MOLOTO: The only thing is I don't know what his case is.
6 I can't answer that for him. My other concern, of course, is that these
7 are not articles; these are dates. Even if the witness can say, Yes, I
8 am aware of that; I'm not aware.
9 MS. BOLTON: I'm in Your Honours' --
10 JUDGE MOLOTO: I don't know what the evidentiary value is going
11 to be, but we will find out --
12 MS. BOLTON: Thank you.
13 JUDGE MOLOTO: Is that probably what he is going to establish, I
14 don't know.
15 [Trial Chamber confers]
16 JUDGE MOLOTO: We have reconsidered, Mr. Guy-Smith. You can go
18 MR. GUY-SMITH: Thank you.
19 Q. As ambassador to the United Nations for Bosnia-Herzegovina, one
20 of the issues that you continually pressed was the lifting of the embargo
21 which is something that you've testified to in your direct, as well as
22 cross-examination testimony. True?
23 A. True.
24 Q. And it was your position that under principles of self-defence,
25 and I believe it was Article 51, you had a right, and by you I mean
1 Bosnia-Herzegovina, had a right to defend itself which it could do by
2 virtue of lifting the arms embargo. And that was badly put, so let me
3 put to that you again.
4 That you had a right to defend yourself, and you needed to have
5 the arms embargo lifted in order to do so. Correct?
6 A. Correct. Once the aggression and the genocide had started, that
7 is correct.
8 Q. And with regard to the issue of the arms embargo --
9 THE REGISTRAR: [Via videolink] Your Honour.
10 JUDGE MOLOTO: Yes, Madam Registrar.
11 THE REGISTRAR: [Via videolink] Mr. Guy-Smith and Your Honours,
12 we're having --
13 THE WITNESS: Your Honours, we're some technical difficulty, and
14 we're going have to reconnect. It will take one minute. That's not a
16 JUDGE MOLOTO: Okay, do so.
17 THE REGISTRAR: [Via videolink] I apologise.
18 [Technical difficulty]
19 JUDGE MOLOTO: While we're waiting for the reconnection, can we
20 deal with a housekeeping matter.
21 I hate doing this in the middle of a witness because of the
22 urgency of matter, I would like to take this opportunity.
23 The Defence has filed a motion as a result of yesterday's
24 discussions in Court, and we are trying to take advantage of the presence
25 of the witness before he goes on the questioning on those questions that
1 we -- the Defence was stopped yesterday.
2 Is it possible for the OTP to reply by no later than 12.00
3 tomorrow morning?
4 [Prosecution counsel confer]
5 THE REGISTRAR: [Via videolink] Your Honours, for the record we
6 can hear you and see you again.
7 JUDGE MOLOTO: Thank you. Can you hear us?
8 THE REGISTRAR: [Via videolink] Yes, Your Honour.
9 JUDGE MOLOTO: Thank you so much. We are dealing with one little
10 point, if just give us a moment.
11 MS. BOLTON: Your Honour, wondering if we could have a little bit
12 more time, if we could just have till perhaps the first break in the
13 afternoon. Mr. Harmon is tied up for part of the morning tomorrow. And
14 so there's -- I think we wouldn't be able to do it by noon.
15 JUDGE MOLOTO: Can't Mr. Harmon go and do it right now?
16 MS. BOLTON: No. Mr. Harmon -- it actually relies part on me,
17 and part on Mr. Harmon, and part on Ms. McKenna, so --
18 JUDGE MOLOTO: You understand that the Court is tied in Court
19 itself, and it has got to write a decision, which must be given in time
20 for the cross-examination to proceed, if it is to proceed.
21 MS. BOLTON: Yes, could we have then until at least 2.15, then,
22 Your Honour? Mr. Harmon is tied up from 10.00 to 12.00.
23 MR. GUY-SMITH: If I might, I would think that the able minds of
24 Madam Bolton and Madam McKenna could certainly put such a motion into
25 sufficient shape for Mr. Harmon to be able to take a look at it and get
1 it on file. We have -- it's -- we're beginning at 7.00 tonight, and from
2 7.00 to 7.00 is 12 hours, plus five is -- that's 17 hours of time. And
3 we found time to get it to you. I think we sent it to you kind of early
4 this morning, as a matter of fact.
5 MS. BOLTON: There are audiotapes, Your Honour that -- my friend
6 has filed an excerpt from tape 3B of four audiotapes. There is no
7 transcript in part to the tapes because they were inaudible, which means
8 somebody has to sit and listen to tape 2 in its entirety, tape 3 up until
9 to the point that my friend has failed, and then the rest of tape 3 and
10 tape 4. So we're looking at several hours of audiotape that have to be
12 JUDGE MOLOTO: One page of the annex from the tapes.
13 MS. BOLTON: Because we have to able to put that page into
14 context, Your Honour. So that is the challenge. It's about four hours
15 of audio to listen to, and then, hopefully, the matter of a short reply.
16 As my friend indicates, we get out of court at 7.00. I
17 appreciate there is a number of hours before 7.00 in the morning, but I
18 do intend to sleep some of those hours, so if we could just have until
19 the session starts, or even 1.00. I --
20 JUDGE MOLOTO: Okay, ma'am. You have until 2.15.
21 MS. BOLTON: Thank you, Your Honour.
22 JUDGE MOLOTO: Thank you.
23 Sorry about that, Mr. Guy-Smith. You may proceed.
24 MR. GUY-SMITH: Not a problem, Your Honour.
25 Q. And the question that I was asking you before we were cut off is
1 as follows. And with regard to the arms embargo, one of the matters that
2 was voiced as a concern at the United Nations was whether or not - not
3 you specifically - but Bosnia-Herzegovina was in fact receiving any arms
4 outside of that which they had; correct?
5 A. I believe your question is, am I aware of such discussions at the
6 United Nations?
7 JUDGE MOLOTO: Can you just hold it, Mr. Sacirbey.
8 I just want to intervene, Mr. Guy-Smith, to say that if you look
9 at the heading of this exhibit, doesn't talk about Bosnia-Herzegovina.
10 It just talks about general violations.
11 MR. GUY-SMITH: I understand that, Your Honour.
12 JUDGE MOLOTO: Yes. As long as you understand that.
13 MR. GUY-SMITH:
14 Q. Do you have my question in mind?
15 A. Can you please repeat it. I think I'm a little bit not clear on
17 Q. Which is -- my question is: With regard to the issue of lifting
18 the embargo, something that you strongly advocated, was it of concern to
19 you and was it of concern to those member states with regard to this
20 discussion as to whether or not you were receiving any arms, ammunition,
21 or other tools of war while the embargo was in place? Was this a topic
22 of discussion?
23 A. The word -- it was a topic of discussion. The word you use,
24 "concern," gave me some pause, but it certainly was a topic of
25 discussion. That's correct, Mr. Guy-Smith.
1 Q. I'm sorry. I didn't mean to give you pause in terms of the word
3 One of the aspects of the discussion was the desire of the
4 United Nations Security Council and many of the member states to have the
5 area, if it could, devoid of all weaponry, because if there were no
6 weapons, there could be no armed conflict; correct?
7 A. That is correct. The problem was if weapons coming in as well as
8 weapons that were already there, particularly in the hands of the JNA.
9 But that is correct.
10 Q. I understand that. And with regard to the issue of weapons
11 coming into the region, and specifically weapons coming in to
12 Bosnia-Herzegovina in violation of the embargo, those discussions
13 concerned various parties. And I'm going to define parties in a minute.
15 A. As long as you define parties, correct.
16 Q. Okay. One of the parties that was of concern was a party that we
17 spoke about before which was Iran.
18 And I'm not asking at this point in any fashion whatsoever any --
19 any involvement you may have had or may not have had with regard to this
20 issue, only the issue of the discussion being had.
21 A. The context of discussion was not so much about the source as it
22 was the entry. I believe you referred to some documents that again were
23 post-war but during the United Nations, there wasn't this emphasise on
24 the source, as there was and, in fact, the weapons that were coming in or
25 were already there.
1 Q. With regard to the issue of the weapons coming in, irrespective
2 of the source of those weapons, a topic of conversation was the fact that
3 those weapons were coming in, and the presence of those weapons in the
4 region defeated the purpose of, among others, United Nations Resolution
5 713; correct?
6 A. Correct. Except I think you have added interpretation on the
7 last part that I'm not sure I would agree with.
8 Q. Okay. And when you say I have added an interpretation, if you
9 could be so kind as to explain where you differ with my statement.
10 A. Absolutely. Which is the notion that it defeated the intention
11 of Resolution 713. In fact the intention of that Resolution 713, as I
12 think you so aptly pointed out before, was in fact to starve the whole
13 region of all weapons, including the ones that were potentially coming in
14 and including the ones that were already employed primarily by one side
15 in the conflict.
16 Q. Well, the discussion of the weapons that were already in is as, I
17 think, more appropriately discussion under, I believe, it is
18 United Nations Resolution 752. And I think we will be having that
19 discussion. But with regard to the issue of 713, and now I want to ask
20 you whether or not you personally were aware of any information with
21 regards to weapons coming into the region in violation of the
22 United Nations arms embargo on January 22nd -- I saw your hand go up,
23 Mr. Guirguis, and I'm more than happy to respect that.
24 MR. GUIRGUIS: Okay, well, I'm go to -- I have to consult with
25 the witness on this question. But you can finish your question, if you
1 like. I didn't realize you weren't finished. But I'm going to object.
2 THE WITNESS: Please finish, Mr. Guy-Smith.
3 MR. GUY-SMITH: Sure.
4 Q. January 22nd, 1994.
5 MR. GUY-SMITH: Mr. Guirguis, I defer to you now at this time.
6 MS. BOLTON: Regarding that, should we be muting, so that we
7 don't hear their conversations?
8 JUDGE MOLOTO: Madam, can you mute?
9 MR. GUIRGUIS: Could I perhaps have the question read back. I
10 guess I don't understand the difference between this question and the
11 topic area that had previously been raised and I understood the Court to
12 exclude. I think he is asking about personal knowledge with respect to
13 these matters, which the Court has already addressed. But if I'm
14 incorrect, perhaps it would be clarified by having the question back.
15 JUDGE MOLOTO: Mr. Guy-Smith, are you going to repeat the
17 MR. GUY-SMITH:
18 Q. The question is: With regard to the issue of 713, whether or not
19 you were personally aware of any information with regard to weapons
20 coming into the region, in violation of the United Nations arms embargo
21 on January 22nd, 1994.
22 And this is -- the issue is an issue of knowledge, not an issue
23 of any personal involvement therein.
24 MR. GUIRGUIS: Well, I'm sure counsel is aware that knowledge is
25 something that can be charged under various forms, laws, and so I'm not
1 particularly comfortable with that representation --
2 JUDGE MOLOTO: [Overlapping speakers] ...
3 MR. GUIRGUIS: [Overlapping speakers] ... But in any event,
4 Your Honour, I understand it's not my objection to make.
5 JUDGE MOLOTO: Mr. Guirguis, please can we stick to what we are
6 here for. You are here to advise your client, not to speak on his
7 behalf. Advise your client what to say, and -- in response to this
8 question and on his rights, and then let him say what he has to say.
9 Your objection has no validity.
10 THE WITNESS: [Interpretation] Your Honour, I think that -- I
11 believe that the issue that gives me a little bit of pause is the
12 language "personal knowledge," which, of course, I'm aware of numerous
13 such information that I may have obtained through diplomatic or other
15 JUDGE MOLOTO: Mr. Sacirbey, [Overlapping speakers]...
16 Can I interrupt you, please. Can I interrupt you.
17 THE WITNESS: [Interpretation] Yeah.
18 JUDGE MOLOTO: We're not asking you to answer to the question.
19 I'm asking you to tell whether you wish to answer the question or not to
20 answer the question. Your counsel raised a hand because he wanted to
21 give you advice on how who handle the situation.
22 THE WITNESS: Right.
23 JUDGE MOLOTO: Right. Now, can you tell us what you want to do,
24 sir? Do you want to answer the question or not answer the question?
25 THE WITNESS: I could answer this one question, but, I, of
1 course, I wish to reserve my right to object to whatever follow-up may
3 JUDGE MOLOTO: Okay. Madam Bolton is on her feet.
4 Let's hear what she has got to say before I come back to you.
5 Yes, Madam Bolton.
6 MS. BOLTON: Sorry, the issue, I think, is that, previously, my
7 friend had been asking question about the arrival of any specific
8 shipments, did he have knowledge of that, and that was, I thought, an
9 issue that had already been ruled on as not relevant. But I'm only going
10 by my notes and not the transcript. So I stand to be corrected. Again,
11 my issue is with relevance.
12 JUDGE MOLOTO: Yeah, okay. I don't want even try to remember. I
13 think I remember what -- I have a certain recollection of what was being
14 discussed at the time, but I don't know want to say it.
15 MR. GUY-SMITH: I believe at the time of the discussion was
16 concerning self-incrimination and not relevance.
17 JUDGE MOLOTO: I thought -- but, actually, now that you say it,
18 that discussion revolved around whether or not Mr. Sacirbey was involved
19 in the ordering and procuring of arms from Iran from other countries to
20 go for Bosnia-Herzegovina, not the question of whether he has knowledge.
21 MS. BOLTON: I think, Your Honour, you're correct, and I
22 apologise. I -- you have indicated the distinction.
23 JUDGE MOLOTO: And I think that also clears Mr. Guirguis in
24 New York.
25 You said you can answer -- you will answer this question, and you
1 still reserve your right on subsequent questions. Go ahead,
2 Mr. Sacirbey.
3 THE WITNESS: I do not recall any specific knowledge of the event
4 that has been addressed here.
5 JUDGE MOLOTO: Thank you.
6 MR. GUY-SMITH: Okay.
7 Q. I'm going to try to do this in a fashion where it is not quite as
8 tedious. And what I'm going to do for the moment is read you a number of
9 dates. Then I am going to stop, because your counsel may or may not wish
10 to talk with you, or you may wish to speak with your counsel. If that is
11 acceptable to you, sir, as a method for me to ask the following question,
12 because I don't want to trap you in anything hear, okay?
13 A. I think that will be okay, Mr. Guy-Smith.
14 Q. Okay. I pose the same question to you with regard to the dates
15 of February 7th, March 16th, April 4th, April 27th, April 30th, May 3rd,
16 May 5th, and May 14th, 1994.
17 JUDGE MOLOTO: Yes, Mr. -- we recognise the hand of Mr. Guirguis.
18 THE WITNESS: Your Honour, I have no specific knowledge of these
19 dates as in the context of what Mr. Guy-Smith has, I think, brought up.
20 So I believe that's the proper answer.
21 JUDGE MOLOTO: Thank you.
22 MR. GUY-SMITH: Thank you.
23 Q. The next dates would be May 19th and May 21st, and I stop there.
24 If that causes any concern. Or I can continue.
25 A. Mr. Guy-Smith, I think the point was that I -- none of these
1 dates would be of significance to me. First of all, because I really
2 don't have the firsthand knowledge that you seem to be asking about.
3 And, second of all, I'm not exactly sure of what the dates represent,
4 when weapons may have been received, sent, some transit point. Clearly
5 these issues are not within my personal knowledge. Or at least not that
6 I would recall.
7 Q. Okay. If I understand your answer correctly, if I was to ask you
8 the same question with regard to the dates of June 11th, 15th, 19th,
9 July 23rd, August 17th, September 3rd, September 13th, September 20th,
10 September 27th, November 3rd, and November 15th of 1994, I take it that I
11 would obtain the same response with regard to you having no knowledge of
12 when --
13 A. Let me make sure that I'm clear for the Court's record here.
14 Q. Let me finish.
15 A. That is, that I was part -- I'm sorry, Mr. Guy-Smith.
16 Q. That you had no knowledge of when weapons may have been received,
17 sent, some transit point as it related to the discussion at the
18 United Nations concerning the lifting of the embargo. And specifically,
19 the lifting of the embargo for Bosnia-Herzegovina.
20 JUDGE MOLOTO: I'm going to take issue with that question,
21 Mr. Guy-Smith. It has absolutely nothing to do with this list. The
22 discussions in the United Nations have nothing to do with this list.
23 MR. GUY-SMITH: They may well. They very well may.
24 JUDGE MOLOTO: They may. It is it not apparent from the
1 MR. GUY-SMITH: Well, if you go back and take a look at the
2 United Nations resolutions dates, and you take a look at the times of the
3 minutes that have been received into evidence, and you make a
4 comparison --
5 JUDGE MOLOTO: Mr. Guy-Smith.
6 MR. GUY-SMITH: -- of those, Your Honour. If I may finish my
8 JUDGE MOLOTO: Tell me, you interrupt me when I'm talking, and
9 then you want to insist to finish when I can't finish my question, my
11 MR. GUY-SMITH: I'm certainly not meaning to be -- [Overlapping
12 speakers] ...
13 JUDGE MOLOTO: [Overlapping speakers] ... listen to me.
14 The purpose of your questions is to seek admission of this
15 document into evidence. And you're trying to establish a relationship
16 between this witness and this document, not a relationship between the
17 witness and what is taking place in the United Nations. For starters,
18 this document talks about articles appearing in the National Intelligence
19 Daily which you have established with a witness that is a CIA agent and
20 not a United Nations agent.
21 So that question about the United Nations has absolutely nothing
22 to do with the witness's nexus with this document.
23 MR. GUY-SMITH: Of course, it does.
24 JUDGE MOLOTO: He may have information that he has from the
25 United Nations, but you're trying to establish a nexus with this.
1 MR. GUY-SMITH: Of course, it does. It Absolutely does. If he
2 receives information from the milk man and that information is germane to
3 his position as a United Nations ambassador Bosnia-Herzegovina with
4 regard to the issue of his desire to have the embargo lifted, it is it
5 relevant, and there is a nexus.
6 JUDGE MOLOTO: And it's relevant to establish a link with this
7 document. Is that it?
8 MR. GUY-SMITH: It is certainly relevant information. And it may
9 or may not establish a link for this document, and you may or may not
10 rule with me with regard to the document, but with regard to the
11 information that's contained therein --
12 JUDGE MOLOTO: You have --
13 MR. GUY-SMITH: -- with regard --
14 JUDGE MOLOTO: Go ahead.
15 MR. GUY-SMITH: With regard to the information that is contained
16 therein, and the underlying issue that is of importance, it is relevant.
17 And I believe there is a nexus.
18 JUDGE MOLOTO: Now you have asked this witness extensively about
19 his knowledge about arms embargoes from his position in the
20 United Nations. There was no problem with that. I am saying to you, I
21 don't see any relevance to establishing a nexus between this witness and
22 this document by asking him questions about the United Nations. That's
23 what I'm saying to you.
24 MR. GUY-SMITH: I understand. Let me --
25 JUDGE MOLOTO: But any way, go ahead and do -- ask your question.
1 MR. GUY-SMITH: Let me see if I can -- if can I perhaps give you
2 an idea of what my thinking is, because it may be of some assistance in
3 terms of this particular aspect of this particular examination.
4 We have heard evidence that there is a television set outside in
5 the hallways of the United Nations and people saw that television set,
6 and they saw a variety of publications with regard to that television
7 set, and that information impacted or had the potential of impacting with
8 regard to what the Prosecution has said is notice.
9 So there is, obviously, apart from the fact that it is on the
10 premises of the United Nations, there is obviously information which is
11 being received by this witness which is information which impacted with
12 this witness with regard to his job as a United Nations ambassador.
13 Now, I'm asking him about another area where there is information
14 which he may be aware of; he may not be aware. If he is not aware of it,
15 so be it, then he is not aware of it. But if he is aware of it, because
16 he has told us he received some information with which he learned at a
17 later point, not directly, but indirectly came from the CIA, he learned
18 he does not know whether or not he directly talked with people from the
20 the CIA
21 central intelligence agency which he may have received. He may not have.
22 That I don't know.
23 JUDGE MOLOTO: You do know.
24 MR. GUY-SMITH: If he has not, then he will tell us so, as he
25 thus far, and we can move on.
1 JUDGE MOLOTO: But do you know, Mr. Guy-Smith. He has told you
2 now that he has no recollection of these dates and what they are talking
3 about. He has told you.
4 MR. GUY-SMITH: [Interpretation] Fine.
5 JUDGE MOLOTO: And to me, that's the end of the inquiry. But to
6 begin to go beyond this document to other sources of information and want
7 to use that to establish a link between the witness and this document, I
8 find that irregular. Because you are rehashing subjects on which you
9 have already cross-examined. And if you want to cross-examine this
10 witness about what he knows in his capacity as ambassador, you don't need
11 this document to do so. You can ask him those questions, and you have,
12 indeed, done so without this document.
13 [Defence counsel confer]
14 MR. GUY-SMITH: If I might, Your Honour, this -- this ties into
15 the following question and answer that was made during the direct
16 examination of Mr. Sacirbey at page 7141, beginning at line 7.
17 "What sources of information did the Security Council have
18 available to it, in terms of what was actually happening in the region?"
20 "A. First of all, they may have had various reports from the
21 secretariat that is, United Nations representative agencies, whether it
22 was UNPROFOR or such other missions or rapporteurs, as those who were
23 institutions directly associated with United Nations, and there were
24 multiple such institutions. They may have also received reports from
25 other international institutions, for example, the EU monitoring mission.
1 They may have received reports from related institutions, for example,
2 various groupings of states and, of course, they would receive
3 information from member states themselves and those member states might
4 in fact also include media reports."
5 It is our respectful submission that with regard to
6 Mr. Sacirbey's answer and specifically starting at line 16, for example,
7 various groupings of states, and, of course, they would receive
8 information from member states themselves, that those member states would
9 of necessity include information based on other answers that Mr. Sacirbey
10 has given that come from intelligence agencies such as the CIA.
11 And it in this that regard that I believe that the questioning of
12 Mr. Sacirbey with regard to this issue is appropriate.
13 JUDGE MOLOTO: With respect, I don't agree with you,
14 Mr. Guy-Smith. Based on that very answer that you have quoted. First of
15 all, he is not saying they did receive. He say they may have. Right
16 through that the paragraph, he says, they may, they may, they may. It is
17 all speculative answer. And when he talks about media reports, could be
18 any media reports. It is it very general. It may not necessarily be
19 this media; it may be any other media report. We don't know. But what
20 this witness has told us this afternoon is that he has no personal
21 knowledge of these documents listed here specifically.
22 MR. GUY-SMITH: I take what Your Honour has said, and I'm
23 reminded of guideline number 39, which deals with the issue of
24 circumstantial evidence, and trust that the ruling and analysis just made
25 by Your Honour concerning the qualified usage of language, and
1 specifically the word "may," will apply to an analysis of this witness's
2 testimony. If such is the case and the qualified use of that language,
3 "may," by this witness will be viewed in the such a fashion so that an
4 inference cannot be drawn, then I am comfortable.
5 [Trial Chamber confers]
6 MR. GUY-SMITH: I have one more thing to say with regard --
7 because I think it might be of --
8 [Trial Chamber confers]
9 JUDGE MOLOTO: Carry on, Mr. Guy-Smith.
10 MR. GUY-SMITH:
11 Q. And I do apologise, Mr. Sacirbey, I don't know whether or not I
12 received an answer for the balance of 1994 or not.
13 JUDGE MOLOTO: I think you did. You did, and that's when you
14 went into his knowledge emanating from the United Nations.
15 MR. GUY-SMITH: As I'm looking at the record, unfortunately, I
16 did not, Your Honour. Perhaps I'm mistaken, so I'd like if we could just
17 have a quick view of the record to make sure.
18 JUDGE MOLOTO: Yeah, you'll do that. Let me see if I can help
19 you. Your last question on the document was:
20 "I take it, therefore, with respect to the balance of the dates,
21 your answer is going to be the same."
22 And he said, Yes.
23 Then you moved on to his knowledge from the United Nations.
24 MR. GUY-SMITH: If you could be of assistance, if you could give
25 me -- and I do apologise, Your Honour. I just need a page and line so I
1 know where I am.
2 JUDGE MOLOTO: [Microphone not activated]
3 MR. GUY-SMITH: Oh, I see.
4 JUDGE MOLOTO: [Microphone not activated]
5 THE REGISTRAR: [Via videolink] Microphone, Your Honour.
6 JUDGE MOLOTO: I was saying, I'm not able to give him a page line
7 because I was talking from recollection. And if I have to find the page,
8 I have got to search like he was searching, you know. I'm doing it for
9 the record.
10 MR. GUY-SMITH: Give me a second then, please, I do apologise.
11 I see that my last question with regard to this particular issue
12 is on page 71, line 6. And then without going into the question itself,
13 at line 19, you interject, Your Honour, and I never got an answer to my
15 JUDGE MOLOTO: Because your question starting at line 15 left
16 your question from line 6 to 11, and now went to -- which was related to
17 the dates, and now you were going to the United Nations, to his knowledge
18 based on United Nations, and that's when I intervened.
19 So if you want him to answer the question from line 6 to 11, if
20 can you complete that, he can answer that.
21 MR. GUY-SMITH: Thank you.
22 Q. Are you with us, Mr. Sacirbey?
23 A. Yes, I am, Mr. Guy-Smith.
24 JUDGE MOLOTO: Mr. Sacirbey, do you have a view of the screen
25 with you? Are you able to read?
1 THE WITNESS: Are you referring to --
2 JUDGE MOLOTO: The transcript.
3 THE WITNESS: We were able to read when it was posted. I was
4 able to read it when I was posted, but I have not seen anything for quite
5 sometime now.
6 JUDGE MOLOTO: Okay. Then have you to have the question put to
7 you again.
8 MR. GUY-SMITH:
9 Q. The question I asked you was: If I was to ask you the same
10 question with regard to the dates of June 11th, 15th, 19th, July 23rd,
11 August 17th, September 3rd, September 13th, September 20th,
12 September 27th, November 3rd, and November 15th of 1994, I take it that I
13 would obtain the same response with regard to you having no knowledge of
14 when such violations occurred.
15 A. Mr. Guy-Smith, you're largely correct. Subsequent to Dayton, the
16 US initiative was called a train and equip programme to help rebuild the
17 army of Bosnia and Herzegovina, pursuant to --
18 Q. [Overlapping speakers]... I do apologise to you, Mr. Sacirbey,
19 but you unfortunately are skipping away from the issue at hand.
20 JUDGE MOLOTO: And, Mr. Guy-Smith, I'm not quite sure -- you say
21 now at page 79, I take it that I would obtain the same response with
22 regard to you having no knowledge of when such violations occurred.
23 I wonder whether that is the question. Whether the question is
24 you would have no knowledge of these dates. The question that you were
25 -- you have been asking about the dates, not the violations.
1 MR. GUY-SMITH: Very well.
2 JUDGE MOLOTO: The dates of these documents that are on the
4 MR. GUY-SMITH: I will be happy to reframe the question along the
5 lines that His Honour has proposed in correcting the position that I have
6 taken, and clearly rightfully so.
7 Q. That you would have no knowledge of these dates as being dates in
8 which violations occurred concerning the embargo.
9 A. That is correct.
10 MR. GUY-SMITH: Apparently, I didn't ask the question properly.
11 And I'm not meaning -- I'm really not meaning not to ask the question
13 JUDGE MOLOTO: That's fine. I find myself in a situation where
14 I'm doing what I shouldn't be doing. I shouldn't be asking you --
15 telling you how to ask your questions.
16 MR. GUY-SMITH: I don't want to you do that.
17 JUDGE MOLOTO: But the point is, the point that you have been
18 building up on is the witness's knowledge of articles that appeared on
19 these dates that relates to violations that come from the national
21 Now he has said -- the question, as I understand it, should be, I
22 take it, therefore, you say to me, you have no knowledge of any articles
23 that appeared on these specific dates that I have given you, relating to
24 violations of the embargo. That's what you are dealing with. You're
25 dealing with this document.
1 MR. GUY-SMITH: Perhaps it's the difference between standing and
2 sitting, Your Honour, but I think your question is an excellent question,
3 and with your permission --
4 JUDGE MOLOTO: Would you like to sit down?
5 MR. GUY-SMITH: With your permission -- I would love to sit down.
6 But with your permission, if I could adopt --
7 THE INTERPRETER: Microphone, Mr. Guy-Smith, please.
8 MR. GUY-SMITH: If, with your permission, I could adopt your
9 question, I think that would forward the situation.
10 JUDGE MOLOTO: I would appreciate it if you would --
11 MR. GUY-SMITH: Thank you.
12 Q. Are you mindful of His Honour's question?
13 A. I must say that I would like to have it rephrased. I'm just not
14 quite sure I'm getting it. Thank you, Mr. Guy-Smith.
15 MR. GUY-SMITH: Surely.
16 JUDGE MOLOTO: [Microphone not activated]
17 MR. GUY-SMITH: I can hand it now, judge, but I appreciate any
18 help I can get, you know. I'm a humble man; I will take help when I can
19 get it.
20 Q. I take it, therefore, you have no knowledge of any articles that
21 appeared on these specific dates that I have given you, relating to
22 violations of the embargo.
23 A. Any articles in what publications, Mr. Guy-Smith? The
24 publications that you just noted?
25 Q. Yes.
1 A. I have no -- that's correct.
2 Q. Since you have answered by qualifying your answer, are you aware
3 of any publications --
4 JUDGE MOLOTO: What do you qualify? I'm sorry. "I have no --
5 that's correct."
6 MR. GUY-SMITH: Qualified by saying, Any articles in what
7 publications? The publications that you just noted?
8 JUDGE MOLOTO: [Microphone not activated]
9 MR. GUY-SMITH:
10 Q. So since you have qualified your answer with regard to,
11 specifically, the publication noted, that being the National Intelligence
12 Daily, I would ask you the same question with regard to any other
14 A. Am I aware of any other publications that address the issue of
15 arms embargo?
16 Q. Violations.
17 A. Is that the question?
18 Q. Arms embargo violations.
19 A. I -- I again would emphasise that the word "violations" is one
20 that you have been utilizing, but, of course, I am aware of articles on
21 this point.
22 Q. When you say the word "violation" is one that have I been
23 utilizing, I take it that you were of a different opinion with regard to
24 the introduction of weapons into the area as being a violation of --
25 A. I --
1 Q. -- Resolution 713.
2 A. I think -- I think, as you remember, Mr. Guy-Smith, and I think
3 that His Honour asked me a specific question on this point. And that was
4 did, in fact I, as representative of Bosnia-Herzegovina, consider the
5 introduction of defensive weapons by the government of the republic of
6 Bosnia-Herzegovina? After the aggression had started and after the
7 genocide had started, did I consider that a violation of Resolution 713?
8 I think my answer was very specific, no.
9 Q. Okay. Are you aware of any publications with your definition in
10 mind, apart from the National Intelligence Daily that discussed the issue
11 of introduction of weapons into the area, which, in your view, was not in
12 violation of 713?
13 A. I am.
14 Q. With regard -- first of all, generally to those publications, are
15 those publications that were the -- were the subject matter of
16 United Nations Security Council discussions?
17 A. Are we speaking of official, informal discussions among
19 Q. Mr. Sacirbey, you have pretty much told us throughout your
20 testimony that there were both official and informal. If you would like
21 I could start, of course, with the informal.
22 Were there informal discussions?
23 A. Yes, yes, Mr. Guy-Smith.
24 Q. Okay. And did those informal discussions occur throughout the
25 calendar year of 1994?
1 A. I believe that that's accurate.
2 Q. And the dates that have been mentioned to you and thus far, with
3 regard to any publications outside of the Central Intelligence Agency
4 publication, were those publications the subject matter of those
6 MS. BOLTON: I am sorry, I don't know what my friend is referring
7 to when he's asking about the dates mentioned to thus far. Are you
8 talking about the other appendix we were looking at or...
9 MR. GUY-SMITH: No, I'm just referring to the -- I'm just
10 referring to the dates in 1994 that I had mentioned before, starting in
11 January 22nd and concluding with November 15th.
12 MS. BOLTON: Okay, thank you.
13 THE WITNESS: Mr. Guy-Smith, I don't have any specific
14 recollection to that -- to any of those specific dates. I have only
15 recollections to general discussions regarding the matter.
16 MR. GUY-SMITH:
17 Q. And with regard to the general discussions regarding the matter,
18 could you please amplify for the benefit of the Chamber how many of those
19 discussions you had if you could.
20 A. It was quite numerous. Probably at least ranging at -- certainly
21 more than ten, probably less than 20.
22 Q. Are you able to focus on any of those discussions occurring at or
23 near the time of the passage of any resolutions during the calendar year
24 of 1994?
25 A. With great specificity, probably not.
1 Q. Okay. With general specificity [Microphone not activated]
2 abstract of the other day, Your Honour. Let me rephrase.
3 JUDGE MOLOTO: Yes, please. That cannot be general; that's a
4 contradiction in terms.
5 MR. GUY-SMITH: That's what one would call an oxymoron. I'm in
6 total agreement, Your Honour.
7 Q. With regard to general discussion, can you tie any of those to
8 any specific resolutions?
9 A. Keeping in mind that there was always a reference to previous
10 resolutions using subsequent resolutions on the subject matter, at least
11 in general terms, perhaps. I think is the best answer I can give you.
12 Q. And with regard to the discussions, can you help us at all here
13 in terms of what the nature of the conversation was? And by that I mean
14 in light of the fact that 713 was an active issue, one that is, as you've
15 pointed out, was repeatedly mentioned and discussed in subsequent
16 resolutions? Can you help us here as to what the nature of these
17 conversations was? And by that I mean --
18 A. Absolutely. The -- most of the --
19 Q. Go ahead.
20 A. Absolutely. Most of the discussions were about the issue,
21 whether in fact this was a violation of Resolution 713 and whether or not
22 in fact there was any consistency, a conflict if you would, between
23 various resolutions and as well as various principles of the right of
24 self-defence and the needed to defend the population and the country.
25 So clearly that was a constant topic.
1 Q. And with regard to the constant topic that you've mentioned, I
2 take it obviously that the issue of Article 7 -- I'm sorry, chapter 7
3 became of some import?
4 A. Well, you're speaking, of course, sometimes we speak of the
5 Security Council, sometimes we speak of the United Nations. As you will
6 recall, in the General Assembly starting December of 1992, there was a
7 resolution of the General Assembly that specifically recommended that in
8 fact the Security Council should, in fact, make it clear that
9 Bosnia-Herzegovina was not bound by Security Council Resolution 713.
10 Q. That was something that was not adopted by the Security Council,
11 however, was it.
12 A. It was not. But it was an adopted by the General Assembly and we
13 constantly had that conflict back and forth.
14 Q. As -- I take it, then, your position is that the passage by the
15 General Assembly of position distinct from that of Security Council
16 allowed for the different interpretation with regard to 713?
17 A. No. Actually, not. I think what 713 was -- what the
18 General Assembly was suggesting is that the Security Council, in fact,
19 should explicitly exclude Bosnia and Herzegovina. Bosnia and Herzegovina
20 was never mentioned in the context of 713, since at that time it did not
21 exist. The Republic of Bosnia and Herzegovina did not exist as a member
22 of the United Nations when it was adopted.
23 Q. I --
24 A. [Overlapping speakers] ... only spoke of Yugoslavia.
25 Q. I appreciate that and that was part of the discussion that we had
1 yesterday and part of this discussion you had with His Honour, and I'm
2 not going to re-plow that particular field at this time.
3 I take it that this same position, and once again now I'm talking
4 about is your knowledge of the articles, would exist for the calendar
5 year 1995; correct?
6 JUDGE MOLOTO: Which articles?
7 MR. GUY-SMITH: The articles that are listed -- the articles that
8 are listed in Appendix E of the document that we've been referring to,
9 which is the final report of the select subcommittee to investigate the
10 United States' role in Iranian arms transfers to Croatia and Bosnia ("the
11 Iranian green light subcommittee").
12 And I'm referring to the following dates in 1995: Those being
13 February 25th, May, 5th, June 2nd, June 10th, June 23rd, what I believe
14 to be with my aged eyes is July 20 -- I can't --
15 JUDGE MOLOTO: I am with you. I'm with you on that. I don't
16 know whether the witness is.
17 MR. GUY-SMITH: July ... July 24th, July 31st, August 11th,
18 September 1st, October 3rd, November, what I believe to be the 17th, but
19 I'm guessing, to be honest with you. December 11th, and December 28th.
20 THE WITNESS: Mr. Guy-Smith, sorry, is there a question?
21 MR. GUY-SMITH:
22 Q. We're going back to that old -- the old question that we dealt
23 with some time ago, which is you're not aware of any articles that are in
24 the national intelligence daily that dealt with the issue of violation of
25 the arms embargo for those dates?
1 JUDGE MOLOTO: In the year 1995 this time.
2 THE WITNESS: I -- I believe the question that I originally
3 understood was am I aware of the dates regarding any such, quote/unquote,
4 violations, and the answer is no.
5 MR. GUY-SMITH:
6 Q. Okay. And are you aware of any articles discussing violations on
7 those dates?
8 A. Not specifically.
9 Q. Okay.
10 MR. GUY-SMITH: If we could have Appendix F on the screen,
12 JUDGE MOLOTO: What appendix is then that we already have?
13 MR. GUY-SMITH: That was Appendix E.
14 JUDGE MOLOTO: Okay. And what -- before we go to Appendix F,
15 remember all these questions were being asked to establish a nexus
16 between this witness and Appendix E, and Appendix we had -- you had asked
17 that we reconsider. And all of this exercise was so that we
18 [indiscernible] --
19 MR. GUY-SMITH: Based on the answers given by the witness at this
20 time, I will be not moving its admission.
21 JUDGE MOLOTO: You are?
22 MR. GUY-SMITH: I am not moving its admission based on the
23 answers given by the witness at this time since the witness has indicated
24 that he has no knowledge of that.
25 JUDGE MOLOTO: Thank you very much.
1 Now, Appendix F, is that 1D03-2080?
2 MR. GUY-SMITH: Mr. Mair says that it is.
3 JUDGE MOLOTO: What does Mr. Guy-Smith say.
4 MR. GUY-SMITH: Mr. Guy-Smith follows the lead of Mr. Mair in
5 this regard.
6 JUDGE MOLOTO: Thank you.
7 Q. Okay. You see there in front of you in Appendix F a series of
8 articles and a series of dates. What I would like to do now is go
9 through the pages that follow and go to 2081.
10 A. Oh.
11 Q. That's kind of a mess, isn't it?
12 A. Yeah. It's impossible to read except for the headlines,
13 Mr. Guy-Smith.
14 Q. Okay. Well, we'll start just, if we can, perhaps with the
16 JUDGE MOLOTO: You're going to start this? How long are you
17 going to take.
18 MR. GUY-SMITH: Well, I don't think it's going to take two
20 JUDGE MOLOTO: Okay.
21 MR. GUY-SMITH:
22 Q. With regard to the first article on the screen, is this an
23 article that you recall reading? And I'm asking that question by virtue
24 of looking at the headline that is contained therein for the moment,
25 because I don't think that you're going be able to see the writing as it
1 is right now.
2 JUDGE MOLOTO: You're going have give us an ID number of this
3 document because now we are seeing this for the first time. This is
4 not --
5 MR. GUY-SMITH: This is --
6 JUDGE MOLOTO: This is not 2080.
7 MR. GUY-SMITH: That's what it seems to ...
8 [Trial Chamber and registrar confer]
9 JUDGE MOLOTO: What is the ID number, sir?
10 MR. GUY-SMITH: I have it as 2080 on my screen right now. I'm
12 JUDGE MOLOTO: [Microphone not activated]
13 MR. GUY-SMITH: I have it on my screen as 2081. The screen is
14 reading it as something different from what it is. It's 2081.
15 Q. Do you recall reading such an article?
16 A. First of all, Mr. Guy-Smith --
17 I'm sorry, Your Honour, did you interrupt?
18 MR. GUY-SMITH: He did -- [overlapping speakers]...
19 JUDGE MOLOTO: Yeah. But you go ahead.
20 THE WITNESS: My -- first of all, I can't tell the publication
21 nor the date; although, obviously the subject matter is familiar.
22 MR. GUY-SMITH:
23 Q. Okay.
24 JUDGE MOLOTO: [Microphone not activated]
25 MR. GUY-SMITH:
1 Q. Turning to the next one which is -- do you have a minute or not?
3 THE INTERPRETER: Microphone for the Judge, please.
4 JUDGE MOLOTO: I will. I was saying we've passed the time. I'm
6 Sorry, it's time to take a break at this time and once again,
7 Mr. Sacirbey, the usual ritual: You don't discuss the case with anybody,
8 not even with counsel next to you, until you are excused from testifying.
9 We stand adjourned to tomorrow once again in the afternoon at
10 quarter past 2.00, in Courtroom I for those who are here, and where you
11 are there in New York.
12 Court adjourned.
13 --- Whereupon the hearing adjourned at 7.03 p.m.,
14 to be reconvened on Wednesday, the 1st day of July,
15 2009, at 2.15 p.m.