1 Tuesday, 3 April 2007
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.07 a.m.
6 JUDGE AGIUS: Good morning. Could you call the case, please,
7 Madam Registrar.
8 THE REGISTRAR: Good morning, Your Honours. This is case number
9 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
10 JUDGE AGIUS: Thank you, ma'am.
11 All the accused are here. From the Defence teams I notice the
12 absence of Mr. Krgovic and Madam Nikolic. I take it that's for the same
13 reason as yesterday. Prosecution I see is in full force. Mr. McCloskey,
14 Mr. Nicholls, Mr. Thayer. The witness is present in the courtroom, so
15 let's start.
16 Madam Fauveau, you were in possession of the floor yesterday when
17 we broke, when we adjourned.
18 WITNESS: HAMDIJA TORLAK [Resumed]
19 [Witness answered through interpreter]
20 Cross-examination by Ms. Fauveau: [Continued]
21 Q. Sir, at the end of the hearing yesterday we were speaking of your
22 meeting with General Mladic on the 28th of July, 1995. Would you say that
23 General Mladic did not greet you on that occasion because in that period
24 he had realised that the agreement was not being respected by the Bosniak
1 A. I don't know that, and I can't claim either way. My status at the
2 time was that of a prisoner of war and that was my understanding of it.
3 Q. Yesterday, on page 23 and 24 of the transcript, you said that you
4 cannot confirm or contest that the convoy was escorted by the UNPROFOR. I
5 should like to show you your statement, 5D201, and it should not be
6 broadcast, a statement that you gave to the Office of the Prosecutor in
7 January 1998.
8 In the English version it is page 9, first paragraph, and in the
9 B/C/S version page 8, last paragraph.
10 Would you please see in this last paragraph on page 8, in the
11 middle of the paragraph you stated: "[Microphone not activated] ... with
12 20 buses. They were escorted by UNPROFOR and were escorted through to
14 A. In view of the fact that this statement was made at the time that
15 was closer to the events, it is to be assumed that it is more correct than
16 my recollection today. So I could agree with this, if that is what I said
17 in 1998, and that was almost 10 years ago and things are forgotten in the
19 Q. [Interpretation] During the hearing of the 30th of March, on page
20 27 you stated that when the evacuation started the people were afraid and
21 that the families were separated and the men were not allowed to accompany
22 wives and children. You said that the first evacuation included
23 everybody, including men of military age. I would like to know,
24 therefore, is it not true that men of military age who were separated from
25 their families was due to a decision of the authorities in Sarajevo and
1 the military authorities who advised that this offer should be rejected
2 and that they should continue to struggle.
3 A. There are several questions in what you have said. I shall try
4 once again briefly to say how it was.
5 According to the signed document, the right to evacuation was
6 enjoyed by the following: The wounded, the sick, women, children, and
7 persons under 18 years of age and over, I think, 55 years of age, and they
8 were encompassed by the evacuation. As for everything else, men of
9 military age should have surrendered, and they were not supposed to be
10 included in those buses and trucks that were transporting the population.
11 That's as much as I can say.
12 JUDGE AGIUS: Mr. Thayer.
13 MR. THAYER: Good morning, Mr. President. I'd just ask my learned
14 colleague for a specific reference to where the witness's testimony stated
15 that men of military age were actually boarding the buses other than the
16 wounded to which he just referred. I honestly can't find it at page 27.
17 I'm wondering if there is another site that you can point me to where he
18 discusses military-age men other than wounded boarding the buses during
19 the first evacuation.
20 JUDGE AGIUS: Thank you, Mr. Thayer.
21 Madam Fauveau.
22 MS. FAUVEAU: [Interpretation] There's a translation error. What I
23 said was not the first evacuation. It's the first offer for an evacuation
24 on the 13th of July. I see now that there's an error. May I repeat the
25 question? I am sorry. It was not my intention to confuse the witness.
1 Q. Maybe you didn't get the correct translation in B/C/S, but in the
2 English version there's an error. My question was the fact that the women
3 and children were separated from the men, was this not due to the refusal
4 of the offer made on the 13th of July, which included the whole
6 A. This proposal or request, as I have explained, was not adopted out
7 of fear, that this operation of evacuating the whole population may not be
8 carried out in the way the offer was made or, rather, the request was
9 made, and that was the main reason why this first proposal was not
10 accepted -- or, rather, request. And as for everything else, I have
11 explained several times how things happened.
12 Q. You were speaking of fear, and in fact you mentioned fear several
13 times during your testimony. Would you not say that that fear was due to
14 three years of war and to mutual mistrust that reigned at the time between
15 the Muslims and the Serbs?
16 A. I could agree with you that this fear was due to lack of
17 confidence, to the period of war that preceded this, as well as the
18 subsequent knowledge as to what had happened in Srebrenica, because the
19 people who tried to get through, some of them came back to Zepa with
20 terrible stories, and this intensified the fear among the people. That is
22 Q. But it is quite true that on the 13th of July when the first offer
23 was made by the Serbs, you still didn't know what had happened in
25 A. Yes, at the time we didn't know. That's what I said in my
1 statement. It was only later, in the days that followed. Maybe the
2 following two, three, or four days.
3 Q. Nevertheless, the fear was present already on the 13th of July.
4 A. Oh, yes, of course. Yes. Yes. That is the fear that you
5 described as being caused by the war that had raged up until then and the
6 lack of trust, but this fear was intensified as of the 15th following the
7 receipt of information about the fate of certain individuals and what had
8 happened in Srebrenica.
9 Q. You said yesterday on page 28 of the transcript that you cannot
10 confirm that people who remained in Zepa experienced anything bad. In the
11 light of what you've said, would you agree that the offer of the Serbs to
12 the civilians in Zepa to choose whether to leave or to stay was sincere?
13 A. At the time the evacuation started this issue was no longer an
14 issue. Whether it was sincere or not, it is a fact that at that point in
15 time there was no possibility of anyone staying to live on in Zepa. That
16 was the real situation, and this was the consequence of all the prior
17 events, the resistance, et cetera. So the moment the evacuation started
18 on the 25th of July, this was no longer a realistic option, nor did anyone
19 give it any more thought.
20 Q. At the time when the evacuation started, were there still people
21 who wanted to stay in Zepa?
22 A. No, I am not aware of any.
23 Q. Sir, you spoke of a meeting of delegates in Sarajevo that you
24 attended in 1993. When you attended that meeting in 1993, did you have
25 occasion to speak about the destiny of Zepa with the authorities of
2 A. During my visit to Sarajevo, apart from an official event, that is
3 the meeting of the Assembly, a delegation from Zepa had a brief visit with
4 the president of the Presidency at the time, Mr. Alija Izetbegovic. That
5 meeting was quite brief, between 20 minutes and half an hour, and as far
6 as I can recollect, Mr. Izetbegovic asked can we defend ourselves, what
7 the economic prospects were of such an enclosed and small community, but
8 we didn't go into any further details or proposals in that connection.
9 That's as much as I can say about that.
10 Q. Would it not be probable that the fall of Zepa, as well as the
11 fall of Srebrenica, were agreed on a higher political level and inscribed
12 in an agreement on an exchange of territories?
13 A. We in Bosnia call this the conspiracy theory, but I'd rather not
14 speculate about that.
15 Q. Sir, could you look at Exhibit 5D201, page 5 in the English
16 version, and page 5 in the B/C/S version as well. In B/C/S it is the
17 third paragraph, and in the English version the fourth paragraph.
18 At the time, in 1998, at least according to what is included in
19 this statement, you said the following: "[In English] Most probably the
20 agreement was reached to have a solution made in which Srebrenica and Zepa
21 would remain in the Republika Srpska. It was probably the only reason why
22 international military assistance was not given to Srebrenica and Zepa."
23 [Interpretation] Sir, is that what you stated in 1998?
24 A. Yes. Yes. That is what I stated.
25 MS. FAUVEAU: [Interpretation] Mr. President, I have no further
1 questions for this witness.
2 JUDGE AGIUS: I thank you, Madam Fauveau.
3 Mr. Zivanovic, yesterday I think you don't have any
4 cross-examination --
5 MR. ZIVANOVIC: Yes, I not cross-examine this witness, Your
6 Honour. We changed our position. I apologise.
7 JUDGE AGIUS: Mr. Bourgon.
8 MR. BOURGON: Same thing, Mr. President. No questions for this
9 witness. Thank you.
10 JUDGE AGIUS: I thank you so much, Mr. Bourgon.
11 Mr. Lazarevic.
12 MR. LAZAREVIC: [Interpretation] We don't have any questions for
13 the witness.
14 JUDGE AGIUS: Thank you. Mr. Haynes or Mr. Sarapa.
15 MR. SARAPA: Just a few questions.
16 JUDGE AGIUS: Okay. Go ahead, please.
17 Cross-examination by Mr. Sarapa:
18 Q. [Interpretation] Good morning, sir. When you're speaking of men
19 of military age in Zepa, are you referring to the troops of the 285th Zepa
20 Brigade under the command of Palic?
21 A. Yes, all those soldiers and those who belonged to -- were of that
22 age group and were not members of the 285th Zepa Brigade. There were
23 older men who were not in the brigade, but according to the document
24 signed they were included in the group of able-bodied men of military
25 age. That is the person I referred to.
1 Q. You met General Mladic on the 19th of July when certain conditions
2 were conveyed to you, or requests as you call them, which related to the
3 evacuation of the population who wanted to leave and to the disarmament of
4 the 285th Zepa Brigade. Brigade, yes.
5 In view of the fact that no response arrived from your side
6 according to your recollection and what you said in your testimony, you
7 said that this was understood by the Serb side as a rejection and the
8 continuation of the situation which continued until the 24th of July. On
9 that date you met General Mladic once again, and from that day onwards
10 there were no further -- there was no further fighting around Zepa. The
11 combat operations ceased; is that correct?
12 A. Everything you said is correct.
13 Q. I have a very short question. Would you agree with the statement
14 that the evacuation of Zepa was carried out between the 24th and the 27th
15 of July?
16 A. From the 25th to the 27th.
17 Q. But has it not been stated that -- didn't you say that the
18 evacuation started on the 24th?
19 A. No. It was on the 24th that the agreement was signed, but the
20 actual process of evacuation started on the 25th.
21 Q. In the physical sense, therefore, on the 25th.
22 A. Yes.
23 MR. SARAPA: [Interpretation] I have no further questions.
24 JUDGE AGIUS: I thank you, Mr. Sarapa.
25 Mr. Thayer, please.
1 MR. THAYER: Thank you, Mr. President. Good morning, Your
2 Honours; good morning, everyone.
3 Re-examination by Mr. Thayer:
4 Q. Good morning, Witness.
5 A. Good morning.
6 Q. I want to begin picking up with a theme touched on by my learned
7 friend Madam Fauveau and also previously in your prior cross-examination.
8 That's concerning the sincerity of the VRS in this agreement that was
9 signed on the 24th and the proposal, as you put it, that was placed before
10 you by General Tolimir on the 13th, specifically the sincerity of the VRS
11 to allow the people of Zepa to stay.
12 Sir, do you know what happened to the mosque in Zepa after the VRS
13 entered the town?
14 A. Yes. It was destroyed.
15 Q. Now, Mr. Josse yesterday suggested to you that the VRS had lived
16 up to its part of the agreement. And that was at page 27, line 15.
17 If we could have 65 ter number 209 placed on e-court, please.
18 And I'm just going to take you through a few documents.
19 Now, sir, the Trial Chamber has already heard testimony concerning
20 the efforts of the able-bodied men of Zepa to try to reach free territory
21 in the weeks after the fall of Zepa. This document is a VRS daily combat
22 report, and if we scroll down we can see who it's from. Lieutenant
23 Colonel Kusic, who was also a signatory to the agreement which you signed,
24 and it's dated -- sorry, go back to the top, please -- August 8th, to the
25 Drina Corps command. Do you see that document?
1 A. Yes, I do see it.
2 Q. Let me just read to you in English the first paragraph. "On 7
3 August in the afternoon, in the canyon of the Kamenica River, five
4 remaining balijas," his term "who were after the fall of Zepa travelling
5 along the following route," and he describes a route, "went down to the
6 railway tracks at Dub and tried to reach Drenovica walking on the tracks
7 were liquidated. The group was separate and had travelled for 10 days."
8 His report continues: "The same day in the vicinity of Luka an
9 unarmed Ustasha born in Srebrenica, 24 years old, was liquidated. Before
10 he died, he said that he fell behind the others and he was looking for
12 Sir, killing a lone, unarmed, hungry 24-year-old, does that sound
13 to you like the VRS was living up to the terms of the agreement?
14 JUDGE AGIUS: Yes, Mr. Josse.
15 MR. JOSSE: One, it's a leading question. Two, my learned friend
16 knows full well that this witness cannot deal with this particular
17 document. He has repeatedly said that after he was taken prisoner in late
18 July, he did not know what had happened. This is a deliberate pejorative
19 piece of re-examination and should be stopped now.
20 MR. THAYER: I'll rephrase, Your Honour.
21 JUDGE AGIUS: Thank you. I think Mr. Josse is perfectly right and
22 please refrain to ask questions to the witness referring to a period about
23 which he has already stated that he knows nothing.
24 MR. THAYER:
25 Q. Well, sir, this conduct reported by one of the signatories to your
1 agreement, is this consistent or inconsistent with the agreement that you
3 A. Is that a question for me?
4 Q. Yes, it is.
5 JUDGE AGIUS: Yes, it is.
6 THE WITNESS: [Interpretation] Of course it doesn't correspond,
7 because here we're dealing with killings; right?
8 MR. THAYER: If we may have 65 ter number 186 displayed, please.
9 Q. Sir, do you see the document in front of you?
10 A. Yes, I do. I can see the first part, the first paragraph.
11 Q. And can you see that it's dated July 29, 1995? It's addressed to
12 the Drina Corps --
13 A. Yes, yes.
14 Q. [Previous translation continues] ... command post, the Drina Corps
15 intelligence and security organ, and personally to Lieutenant Colonel
16 Kusic, headed "very urgent."
17 I just ask if we can have the bottom of the page displayed so we
18 can see who sent it.
19 Do you recognise the name at the bottom there, sir?
20 A. Yes.
21 Q. I want to turn your attention - if we could go back up to the
22 top - to the third paragraph. And that's page 2 of the English, the
23 second full paragraph where General Tolimir says: "Continue combat
24 operations in order to surround and destroy the 1st Zepa Brigade until the
25 Muslims make the exchange and carry out the agreement from the 24th July
1 related to their disarmament and surrender. Take all necessary measures
2 to prevent them from leaving the encirclement. Do not register persons
3 you capture before cessation of fire and do not report them to
4 international organisations."
5 Again I ask you, sir --
6 MR. JOSSE: Next sentence, please.
7 MR. THAYER:
8 Q. "We are going to keep them for exchange in case the Muslims do not
9 carry out the agreement or they manage to break through from the
11 Now, I ask you, sir, do not register persons you capture and do
12 not report them to international organisations, is that consistent or
13 inconsistent with your agreement that you signed on the 24th of July?
14 A. It is inconsistent with the agreement, because they were all
15 supposed to be registered straight away by the International Red Cross.
16 That was the agreement.
17 Q. Now, I have one more document to show you on this topic, sir, and
18 I may need the assistance of Madam Usher to hand out some hard copies.
19 This document does not have a 65 ter number. It was disclosed January 30,
21 JUDGE AGIUS: Yes, Mr. Josse.
22 MR. JOSSE: Your Honour, Mr. Thayer was good enough, and I'm
23 grateful to him for this, to put on our table this morning a list of
24 proposed documents for his re-examination. It includes, I think, eight
25 documents that are not on the 65 ter list.
1 MR. THAYER: If I may respond because I think there is some
2 confusion. The list that I have tendered to my learn friend this morning
3 is not a list that I intend to use in the examination or my redirect
4 examination. Are you talking about packet or the --
5 MR. JOSSE: No. I'm talking about this document of -- which
6 includes eight -- eight documents.
7 JUDGE AGIUS: It has been circulated to us too.
8 MR. JOSSE: Now, Your Honour, it seem --
9 JUDGE AGIUS: We -- Mr. Josse, I think we did make -- give a
10 ruling sometime back on whether we expect all documents used on
11 redirect --
12 MR. JOSSE: Absolutely and -- and what -- if I may briefly
13 finish. I'm not actually going to invite the Chamber to stop the
14 re-examination. All I'd like to do is put down a marker that having heard
15 it in due course, I might then make a submission about the re-examination
16 that has taken place and as to whether these documents should be admitted
17 into evidence. But I accept that sensibly, the Chamber won't be able to
18 rule on that until it's heard the complete re-examination. So I'm not
19 going to interrupt for this purpose again, but I reserve my position.
20 JUDGE AGIUS: Okay. Thank you so much, Mr. Josse.
21 Mr. Thayer you may proceed.
22 MR. THAYER: I see Mr. Bourgon standing, Mr. President.
23 JUDGE AGIUS: Sorry, Mr. Bourgon. I didn't notice you.
24 MR. BOURGON: Good morning, Mr. President. Regarding what the
25 Trial Chamber just mentioned a few moments ago. Yes, the Trial Chamber
1 has ruled on allowing the Prosecution to use documents which are not on
2 the Rule 65 ter list in re-examination. However, the Defence recalls,
3 Mr. President, that we did file a motion for certification of this
4 decision. We are of the view, and I speak for this accused but also with
5 the other accused in this case. We are of the view that the use of
6 documents which are not on the Rule 65 ter list in re-examination creates
7 a serious prejudice to the accused and go against the right to a fair
8 trial, and in this case, Mr. President, we just for the record this must
9 be mentioned if this is going to be allowed with this witness.
10 Thank you, Mr. President.
11 JUDGE AGIUS: [Previous translation continues] ... The record of
12 course. Yes, Mr. --
13 MR. MEEK: Mr. President, the Defence for Ljubisa Beara also joins
14 Mr. Bourgon.
15 JUDGE AGIUS: Okay. In the meantime until we decide the matter of
16 certification or until the matter is finally determined in any case,
17 procedurally our decision still holds good and will continue to regulate
18 the current proceedings until reversed, if at all.
19 Yes, Mr. Thayer.
20 MR. THAYER: Thank you, Mr. President. And I apologise to Mr.
21 Josse for interrupting his objection. I thought we were talking about
22 something that he and I were working on to hopefully save some time.
23 JUDGE AGIUS: Thank you.
24 MR. THAYER:
25 Q. Now, sir we only have this document in English. It is a
1 memorandum from a UN civil affairs office, sector Sarajevo headquarters to
2 UNPROFOR headquarters in Sarajevo, and it is dated 29 July 1995, and the
3 subject is negotiations in Zepa.
4 Page 2 contains the following passage and I'll just read it to you
5 from the English: "Also during the afternoon, I received a message from
6 Ed Joseph in Zepa who indicated that the Serbs were apparently planning to
7 seize a number of Bosnian fighters ('war criminals'), regardless of what
8 agreement was reached. He noted that the Serbs seemed to be using
9 UNPROFOR to entice the Bosnians to give up their weapons and were perhaps
10 using UNPROFOR to give the Bosnians a false sense of security."
11 Sir, does that passage sound to you like it's consistent or
12 inconsistent with the agreement that you signed?
13 A. Well, I repeat, according to the agreement they were supposed to
14 be handed over within the circle of UNPROFOR and registered by the
15 International Red Cross. These people being brought in was inconsistent
16 with the agreement that was signed.
17 Q. Now, yesterday, sir, Mr. Josse also showed you Defence Exhibit
18 6D102. It was some kind of transcript of a conversation involving a Mr.
19 Amor Masovic. Do you remember those questions, sir?
20 A. Yes, I do. Only perhaps we need an explanation. I couldn't go
21 into the details until I'd seen it again, so I can't comment.
22 Q. Okay. Well, do you remember -- and I'll just read the section
23 that was quoted to you at page 18, line 9 of yesterday's transcript,
24 that -- do you remember that the document contained the passage: "The
25 all-for-all agreement reached at the airport on 20 July includes the
1 release of all members of the army from all the aggressor's prisons and
2 camps, including the new captives of Srebrenica"?
3 Do you remember that passage being quoted to you yesterday, sir?
4 A. Yes, I do.
5 Q. Now, you later testified, yesterday, about how sometime around the
6 26th of July it became clear that nothing would come of the all-for-all
7 exchange idea, and that was at page 30, line 4. Do you recall that
8 testimony, sir?
9 A. Yes, yes, I do recall it.
10 Q. Okay. I want to explore with you the relationship, if any,
11 between these two topics.
12 Sir, do you know what -- or to what degree the fate of the men
13 from Srebrenica became an obstacle to the all-for-all prisoner exchange
15 A. Well, I personally did not have all that information in view of
16 the fact that it was all done in Sarajevo. So it's difficult for me to
17 address that matter and comment on all the details, to accept them or not.
18 Q. Okay. Well, let me show you a couple of documents and see if they
19 correspond at all to your understanding from the information that was
20 filtering to you, on the ground. And I'm going to show you a couple of
21 documents with the assistance of Madam Usher.
22 And this document, as well, was disclosed January 30, 2006, but
23 does not have a 65 ter number.
24 Now, sir, this is a UN memorandum dated 20 July 1995, subject
25 "meeting on prisoners exchange and evacuation of Zepa." Again, we only
1 have the English.
2 In the third full paragraph, there's a reference to the meeting
3 being convened at the Sarajevo airport and Amor Masovic representing the
4 Bosnian government.
5 In the next paragraph, there's a passage and I'll just read it:
6 "No final made because the Bosnians were not satisfied that the Serbs had
7 accounted for all the prisoners taken in the assault on the Srebrenica
8 enclave. The Serbs agreed that they would try to produce a fuller
9 reckoning of the Srebrenica prisoners in the next several hours."
10 Sir, I'll just ask you, did any of the information, reflected in
11 the passage I just read to you, filter down to you on the ground in those
12 days, specifically on the 20th or the 21st?
13 A. Well, as about this information, well, not in that form. It
14 didn't reach me. However, we did receive information in other ways. But
15 at the time we relied on the stories told by the survivors, people who had
16 survived, about the events in Srebrenica. But as to official information,
17 I myself did not have them about people being taken prisoner, executed and
18 so on.
19 Q. Okay. Sir, to save some time I had two other documents, but I'll
20 move on based on that -- the answer you just gave. I don't think it will
21 be productive.
22 The next topic I want to touch on with you concerns some questions
23 asked by Madam Fauveau yesterday about the month or two prior to the VRS
24 attacks on the Srebrenica and Zepa enclaves. She put it to you that Zepa
25 was not shelled until July of 1995, and you had some discussion about a --
1 a calm situation that existed in June and the beginning of July 1995, and
2 that was at page 48, line 12, and page 49, line 14. And, sir, you had
3 some -- some recollection of a village called Pripecak, I think, perhaps,
4 being shelled, but you weren't sure when that was. And that was at page
5 49, line 15.
6 I just want to show you one document and see whether --
7 A. Yes, I do remember.
8 Q. I'd just like to show you one document and see if it helps you
9 shed any light on this issue.
10 This document was disclosed October 18, 2005, and was specifically
11 referenced in the Prosecution's pre-trial brief at paragraph 173, page 57.
12 Now, sir, this is an UNPROFOR sector Sarajevo weekly situation
13 report for 15 July 1995. Again it's only in English so I'll just read out
14 portions. On page 2 of the English, under the heading "Serb assault on
15 Zepa begins, UNPROFOR forces under attack by the Serbs are powerless,"
16 there's a reference in the fifth paragraph down, and I quote: "Throughout
17 the week there had been sporadic artillery, mortar and heavy machine-gun
18 fire directed at the Safe Area's population centres, particularly Zepa
19 town and the villages of Ribioci and," here it says, "Pripecki." Can you
20 help us out, sir? Does it refresh or jog your memory at all about any
21 activity in the first week of July?
22 A. Well, yes. This report -- yes, I remember it. I remember the
23 village, Pripecak. And this report shows that on the 8th of July, is that
24 right, if I'm reading it correctly, that these attacks were carried out,
25 artillery attacks. Well, that's what I can confirm.
1 Q. Sir, at the time do you recall receiving any information that the
2 village of Ribioc had been targeted?
3 A. Well, it's difficult now for me to remember all that. Well, you
4 can see it from the centre of Zepa.
5 Q. Okay.
6 A. But if that's what it says in the UNPROFOR report, then that's
7 probably it.
8 Q. Well, I'm just asking for your recollection, sir, and I'll move
10 I want to turn to the next page, the top of the document, and
11 again I'll quote: "UNPROFOR's position in the pocket has also been
12 difficult. The 79 Ukrainians in the pocket have been under Serb
13 bombardment since 27 June, with the tempo increasing this week.
14 "Early in the week, the Serbs tried to force the Ukrainians out of OP 9 at
15 the southern end of the pocket. Later in the week, OPs 1, 2 and 3 at the
16 south-western end of the pocket were also attacked.
17 "The attacks came after ultimatum from the Serbs, delivered on 30
18 June, that UNPROFOR should withdraw from the pocket immediately."
19 Sir, how does this information that I just read comport with your
20 recollection of the state of affairs militarily in the last week of June
21 or June and early July?
22 A. The overall atmosphere at the beginning of July was tense. Now, I
23 can't remember these military activities, but everything was looming in
24 the air. There was a sentiment that something would happen. And this in
25 a way is a demand for withdrawal, UNPROFOR's withdrawal. Well, I didn't
1 know about this earlier on.
2 Q. Okay. And, sir, just -- just to be clear, and that was the only
3 other question I had on this topic. As one of the civic leaders in Zepa,
4 did you ever receive this information that UNPROFOR had been attacked by
5 the VRS at the end of June and given an ultimatum to leave the pocket?
6 Was that ever communicated to you?
7 A. No.
8 Q. Okay. The last --
9 A. No, no.
10 Q. The last topic I want to address is a -- you were asked a number
11 of questions regarding UNPROFOR failing to interdict smuggled goods and
12 arms and about UNPROFOR, in fact being accused by the VRS of covering up
13 the activities and intentions of the army of Bosnia and Herzegovina, and
14 that was at page 44, line 1 of yesterday's transcript. And you just heard
15 me read the portion of the document concerning the ultimatum to UNPROFOR
16 from the VRS.
17 Sir, did you become aware in July of 1995 of the VRS exercising
18 further control over UNPROFOR in Zepa, that is military control. And I
19 have hard copies here to distribute of one last document. This has been
20 approved for inclusion on the 65 ter list that was disclosed September
21 19th, 2005. We just haven't given it a number yet.
22 So my question, sir, is did you become aware in July of 1995 of
23 the VRS exercising further control over UNPROFOR in Zepa?
24 A. Could you be more specific, please?
25 Q. Okay.
1 A. In what way do you mean --
2 Q. Well --
3 A. -- because -- may I just be allowed to finish? We otherwise knew
4 that every convoy, including this one, the UNPROFOR convoys, not the UNHCR
5 ones, that the army of Republika Srpska, I assume, had the right to
6 control and did exercise that right. Now, these immediate occurrences
7 prior to the attack on Zepa, I or the civilian section of the
8 organisations in Zepa did not have knowledge of. We didn't have any
9 information that any additional things like that were happening.
10 Q. Okay. I want to see whether we can be shown the B/C/S version of
11 this document in hard copy.
12 This is a combat report. And if we could just move to the bottom
13 of the document so we could see who it's from, please. From again
14 Lieutenant Colonel Kusic.
15 And if you would just take a look at the paragraph headed
16 "UNPROFOR," and I'll just read out the portion that's in English since we
17 don't have it on e-court.
18 "Check-point number 2 Boksanica, where the UNPROFOR commander is
19 located has been put under the control of our forces. An agreement was
20 reached with him not to attack, with the condition that they should not
21 open fire on our BP," translated as "battle formation," "which he accepted
22 with the request to leave his positions where they are, and he would in
23 return provide information on enemy activity and would not call in NATO
24 Air Force."
25 A. Air force, yes.
1 Q. Sir, did you receive any information to this effect during the
2 period of time when you were staying at Boksanica during those days?
3 A. Well, Colonel Dudnik only told me that he had been threatened by
4 the Serbs, that he and his soldiers would be killed if a NATO attack were
5 to be made. This is what he said to me sometime around the 26th of July
6 when we were alone in a room at check-point number 2.
7 As for this additional information, that he informed the Serb side
8 about enemy activities, that is the Bosnian side, I was not aware of.
9 Q. Thank you, sir.
10 MR. THAYER: That concludes my redirect examination.
11 JUDGE AGIUS: I thank you, Mr. Thayer.
12 JUDGE KWON: I have one question.
13 JUDGE AGIUS: Judge Kwon would like to put a question to you, sir.
14 Questioned by the Court:
15 JUDGE KWON: Mr. Witness, you were referred to a couple of VRS
16 documents at the beginning of Mr. Thayer's re-examination, one of which is
17 Mr. Kusic's report, and the other being the General Tolimir's order, in
18 relation to liquidating remaining soldiers of Zepa Brigade after the
19 falling of Zepa enclave and not to report the captives -- or not to
20 register them and not to report to international organisation. Do you
21 remember that?
22 A. Yes, I do.
23 JUDGE KWON: I take it that you can answer whether it is
24 consistent or inconsistent with the agreement that has been reached based
25 upon what is written on that -- those documents, but my question is
1 whether you were or you are aware of those situation, yourself.
2 A. I, no. Because the period that these documents refer to was the
3 period when I was already in prison. So I had no information about those
5 JUDGE AGIUS: Yes, Mr. Zivanovic.
6 MR. ZIVANOVIC: Excuse me. That is error in translation. It was
7 translated in the line 5, "I know," but the witness responded not, "I
9 JUDGE KWON: Thank you. I was about to clarify that.
10 JUDGE AGIUS: Thank you, Mr. Zivanovic.
11 Judge Prost? Judge Stole?
12 We don't have any further questions of you, sir, which means you
13 are free to go. The usher will assist you. Before you leave the
14 courtroom, however, I wish to thank you on behalf of the Tribunal for
15 having come over to give testimony in this case, and on behalf of
16 everyone, I wish you a safe journey back home.
17 THE WITNESS: [Interpretation] Thank you.
18 [The witness withdrew]
19 JUDGE AGIUS: Exhibits. Mr. Thayer.
20 MR. THAYER: Your Honour, we obviously have some additions to the
21 tender list which was submitted, and I'll just start with the original
22 list that has been e-mailed to everyone. I'm not sure if 6D00030 still
23 appears on the list. No, it's been taken off. That was something that's
24 already in evidence. Other than that, we would just offer the items that
25 are listed on that exhibit list, in addition to the documents to which the
1 witness was referred today in his redirect examination.
2 JUDGE AGIUS: All right. The -- I take it that the Defence teams
3 are all in possession of the two lists that have been distributed by the
5 JUDGE KWON: Mr. Thayer, have you used all of these documents
6 listed in the second -- second list?
7 MR. THAYER: No, we have not, Your Honour.
8 JUDGE KWON: If you could identify those --
9 MR. THAYER: Yes.
10 JUDGE KWON: -- which you didn't use today.
11 MR. THAYER: Absolutely. P02500 were not used, and did -- with
12 the Court's indulgence.
13 JUDGE KWON: 2501.
14 MR. THAYER: Yes, Your Honour. I believe that is the second
15 document that was not used.
16 JUDGE AGIUS: And you still insist on tendering them?
17 MR. THAYER: No, Mr. President. We'll withdraw those, and we'll
18 need to add, I believe, two others to this list, and I'm just using a
19 process of elimination. Unfortunately, things were moving a little fast
20 last night and I haven't taken a look at this list that's before you.
21 I've only been working with the documents, but I can --
22 JUDGE AGIUS: Okay. I think we need to be precise this time
23 since --
24 MR. THAYER: And I can do that, Your Honour, since I have the
25 documents here.
1 JUDGE AGIUS: I can do that for you. Let's start with the
2 original list which is 2489 and 2490 video footage and transcript. 2491
3 and 2492 video footage plus transcript. Then 2493 which is a map showing
4 the location of Zepa village, and PIC82, which is a map marked by the
5 witness. Let's start with these. Are there any objections from any of
6 the Defence teams to the admission of these six documents? We hear none.
7 We hear none. So these are admitted.
8 Now we come to the additional list referring to Exhibits used for
9 redirect. The first one is 65 ter number 209, which is the 1st Podrinje
10 Light Infantry Brigade daily combat report signed -- type signed by Rajko
12 Is there any objection to the admission of that document? We hear
14 Then there's 186. That's a 65 ter number. Yes, Mr. Bourgon.
15 MR. BOURGON: Mr. President, we do object to the admissibility of
16 all the documents used during the re-examination despite the fact that
17 there is a Trial Chamber's order to the effect that documents can use. I
18 may explain the reasoning now or at the end, whatever the Court prefers.
19 JUDGE AGIUS: Explain now.
20 MR. BOURGON: Thank you, Mr. President. In order to explain why
21 we object to the admissibility of these documents I simply use one
22 example, and I refer here to page 18 of the transcripts at lines 12 to 14
23 where my colleague says that in using one of those documents, I don't
24 recall exactly which one it was, but he mentioned that this document was
25 disclosed to the Defence on 18 October 2005, and he also mentioned that
1 this document was referred to in the Prosecution pre-trial brief at page
2 173 -- or paragraph 173, page 57.
3 Now, our question, Mr. President, is we fail to understand, given
4 the nature of the testimony of this witness, why these -- why this
5 document and the others were not included in the Rule 65 ter list. We
6 also fail to understand why is it that we are given this list this morning
7 without any prior notice. We also fail to understand that there is
8 nothing that was raised in the cross-examination which was conducted by my
9 colleagues, there is no surprise, nothing that the Prosecution could not
10 expect when they decided to include this witness and to call him to
11 testify viva voce before the Trial Chamber.
12 Mr. President, further to the Trial Chamber's order, it appears
13 that we are now on notice that we, the Prosecution, may use any document
14 that was either previously disclosed or even worse, any document that was
15 previously made available to us on the famous or infamous electronic
16 disclosure system, and that is at any time and without prior notice. So
17 we now are facing the situation where there are millions of document out
18 there, and of course we will be asking time to go back and see all these
19 documents, because we need to know the case we have to meet, and at this
20 stage, on the basis of the Trial Chamber's order, we no longer know the
21 case we have to meet. We have to go back, and we have to see every single
22 piece of those documents which the Prosecution can use because they are
23 given the possibility and the permission to use them at any time, how they
24 wanted, when they wanted, with any witness.
25 For all these reason, Mr. President, we object to the
1 admissibility of all these documents used during the re-examination by the
2 Prosecution. Thank you, Mr. President.
3 JUDGE AGIUS: Even those with a 65 ter number?
4 MR. BOURGON: Not those that have a 65 ter number, Mr. President.
5 JUDGE AGIUS: So not all. So we're talking of four.
6 Yes, Mr. Meek.
7 MR. MEEK: Yes, Mr. President. Ljubisa Beara also joins that
9 JUDGE AGIUS: Thank you.
10 Mr. Thayer -- oh. Mr. Josse.
11 MR. JOSSE: Perhaps it would be more sensible if I went first,
12 because my submissions are really rather different from my learned
14 JUDGE AGIUS: Let's deal with this first and then we'll hear your
15 objection, and then we'll decide on everything.
16 MR. JOSSE: Fair enough, Your Honour.
17 JUDGE AGIUS: Yes, Mr. Thayer.
18 MR. THAYER: Just briefly, Mr. President. There's no prior notice
19 about what documents are going to be used on re-direct because there can't
20 be. I'm reacting to doors that were opened widely on cross, and if
21 Mr. Bourgon or any of my other learned friends had objections that it was
22 beyond the scope of the cross, then those objections should have been made
23 at the time and not after the witness has left. I submit respectfully,
24 Mr. President, Your Honours, that every one of these documents was
25 presented in a fair response to questions, issues that were raised on
2 With respect to the 65 ter extremist argument, if I can put it
3 that way, we -- yeah, we draw a complaint when there's a specific
4 reference being made to the pretrial brief or to when the item was
5 disclosed, the pre-trial brief being designed to give the Defence a
6 specific idea of where we're going on a specific issue. This document was
7 referred to in the Zepa section of the pre-trial brief. Once again this
8 is not an issue of millions and millions of documents being -- being
9 thrown at -- at Defence counsel. There is no surprise here. We are -- we
10 are simply responding to issues that are raised on the cross-examination.
11 JUDGE AGIUS: Okay. I thank you, Mr. Thayer.
12 Mr. Bourgon.
13 MR. BOURGON: Very quickly, Mr. President.
14 JUDGE AGIUS: Please.
15 MR. BOURGON: The idea is that's exactly the point that we are
16 making. A document that is used in the pre-trial brief does not find --
17 make its way onto the Rule 65 ter list of documents. The question is when
18 does the Defence -- when is the Defence supposed to know what is the
19 material that will be used in this case? And we do not know what is the
20 material that the Prosecution intends to use in this case. This keeps us
21 off balance, and this creates prejudice to the Defence and makes this
22 trial wholly unfair. Thank you, Mr. President.
23 JUDGE AGIUS: Thank you, Mr. Bourgon. Mr. Josse.
24 MR. JOSSE: Your Honour, whilst I broadly speaking agree with what
25 my learned friend Mr. Bourgon has said, I accept for the purpose of this
1 argument particularly bearing in mind the previous ruling of this Trial
2 Chamber that the Prosecution are entitled to use documents in
3 re-examination which are not on the 65 ter list, but it's a balancing
4 exercise, and it's not altogether easy for the Trial Chamber to unravel,
5 in my submission, because what the Trial Chamber needs to ask itself is
6 whether the document in question should properly have been used in chief,
7 because the difficulty we face now is how to respond to documents that are
8 dealt with in re-direct.
9 Now, Mr. Thayer is understandably at pains to point out that a
10 given document has been disclosed at any particular time, and that is of
11 some comfort to the Trial Chamber, little comfort to the Defence bearing
12 in mind the number of documents that have in fact been disclosed over the
13 period of time, but what I would invite you to ask yourselves is whether
14 the particular document should have been dealt with in chief, thereby
15 allowing the Defence to deal with it properly in cross-examination,
16 because it's undoubtedly true, and here I agree with Mr. Bourgon 100 per
17 cent, that we need to know the case we are going to meet, and it's not
18 right that the Prosecution responds to the case put to the witnesses in a
19 particular given way. That requires, in my submission, an analysis
20 document by document, frankly, and there perhaps I don't altogether agree
21 with my learned friend Mr. Bourgon is looking at the matter in one global
22 picture as a matter of principle. I would suggest that what the Trial
23 Chamber need to do is look at it more in terms of a document-by-document
25 So that's the way I put it, and I have got submissions in relation
1 to each of the documents that have been used. I don't know whether the
2 Court would like me to deal with those in turn.
3 JUDGE AGIUS: I think you'd better deal with that, with them now,
4 because I would be asking Mr. Thayer to explain whether he agrees that it
5 was indeed the case of using -- make use of those documents in chief and
6 not in re-direct. I mean, basically this is what it's going to boil -- to
7 boil down to.
8 MR. JOSSE: Now, so far as 65 ter 00209, and here again I don't
9 agree with Mr. Bourgon, the fact that it's on the 65 ter list doesn't mean
10 to say that the Prosecution can automatically use it with the witness. So
11 I take objection to the use of that particular document because the
12 witness knew nothing about it, and it was inevitable, bearing in mind the
13 evidence that that witness had given, that he would know nothing about it,
14 and to use this witness, particularly for the Prosecution to use this
15 witness as a vehicle to introduce this document is in my submission wrong.
16 So far as P02498 is concerned, could we go into private session
17 for a moment out of an abundance of caution?
18 JUDGE AGIUS: Yes. Let's do that. Let's go into private session,
20 [Private session]
7 [Open session]
8 JUDGE AGIUS: We are back in open session.
9 MR. JOSSE: So far as the sitrep report is concerned, the witness
10 did have some knowledge of that and notwithstanding everything else I've
11 said, I take no point so far as that's concerned speaking personally and
12 in relation to my client's case.
13 Finally, Your Honour, there's the document dated the 20th of July
14 from Mr. Harland, and that again the witness realistically had no
15 knowledge of and was unable to assist and again on that basis I would
16 oppose its admission.
17 So, Your Honour, I hope I've dealt with the matter partly as a
18 matter of principle but also specifically document by document.
19 JUDGE AGIUS: It's abundantly clear, Mr. Josse, and I thank you
20 for being precise, to the point, and succinct at the same time.
21 Mr. Thayer.
22 MR. THAYER: Your Honour, the direct examination I conducted with
23 this witness covered the areas I intended to cover with him on -- on his
24 direct examination. Those were the areas that we intended to elicit.
25 That was the extent of the evidence that we intended to come through with
1 this witness.
2 I was given a stack of approximately a hundred documents that the
3 Defence wished to use and pretty much did use during their cross in which
4 they took him through all kinds of areas that were not covered nor were
5 germane in my opinion to his direct examination. That's why those areas
6 were not brought up. He was shown UNPROFOR documents by Defence counsel,
7 VRS documents by Defence counsel, ABiH documents, newspaper articles.
8 Every manner of medium is presented to this witness and past witnesses,
9 and the practice that we have preferred on this side is to let it in.
10 If -- if a party, and this has been happening from day one with my learned
11 friends, if a party has -- has a document, asks a question, unless there
12 is absolutely no foundation or something unbelievably objectionable about
13 it, we have had no objection. I think we've created that record
14 abundantly here.
15 The -- my learned friends repeatedly will show a witness a
16 document, ask some questions about it, whether or not the witness has ever
17 seen it before, has any familiarity. We've said just let it in. We -- we
18 trust the Trial Chamber. We are ultimately in pursuit of the truth here.
19 We think that these documents meet that burden clearly and that these were
20 not areas that -- that I had intended to go into on direct. I did not go
21 into, but the Defence's cross-examination blew those doors wide open.
22 Just to take one example, yes, Mr. Ed Joseph is on the Prosecution's 65
23 ter list of witnesses. That doesn't mean necessarily I have to wait six
24 months until Mr. Joseph is here to use a document that perhaps or perhaps
25 not we intend to use with Mr. Joseph. Simply because a document has
1 Mr. Joseph's name on it in addition does not mean it automatically should
2 get a 65 ter number. We exercise a tremendous amount of discretion in
3 terms of which documents get 65 ter numbers and which don't. I don't need
4 to repeat the nightmares we've had in terms of documents not getting
5 numbers, but if the practice were to be every single document that refers
6 to a witness gets a 65 ter number in my opinion would be unfair to the
7 Defence. That would be civil litigation burying your adversary in
8 meaningless documents. What we have tried to present is a streamline list
9 of exhibits and we proceed witness by witness.
10 JUDGE AGIUS: Thank you, Mr. Thayer. I think we'll take the break
12 Yes, Mr. Josse.
13 MR. JOSSE: Simply this point about the future witness. It's not
14 just that his name appears on it but he was the source of the
15 information. I'd invite the Chamber to analyse the document carefully in
16 relation to the submission that I made.
17 JUDGE PROST: Mr. Josse, I just have one question for you. Do you
18 see a distinction between a document that on its face it might be apparent
19 the witness is unlikely to have any knowledge of it versus a document
20 where the witness may answer that he didn't have any knowledge but it may
21 well have been a different answer?
22 MR. JOSSE: Yes, I do see the difference, because I accept what
23 Mr. Thayer has said, that the Defence throughout this trial have
24 cross-examined on that basis. That is how most of the cases in this
25 Tribunal, as far as I can see, are conducted for better or for worse, and
1 therefore the submission that Mr. Thayer makes in relation to that is, I
2 concede, clearly right.
3 The point that I was making was he knew, with respect to
4 Mr. Thayer, that his witness wasn't going to know about those matters
5 bearing in mind the testimony he'd already given in relation to specific
6 comments I made as far as some of those documents were concerned.
7 JUDGE AGIUS: I thank you, Mr. Josse.
8 Madam Fauveau.
9 MS. FAUVEAU: [Interpretation] Very briefly, Mr. President. The
10 Defence would like to associate itself to the objections made by my
11 learned friend Mr. Josse.
12 JUDGE KWON: Thank you. We'll have the break now, 25 minutes. I
13 don't quite know whether I am going to make it through this sitting,
14 because I'm not feeling well at all, but I'll try. I'll try.
15 --- Recess taken at 10.27 a.m.
16 --- On resuming at 10.59 a.m.
17 JUDGE KWON: Unfortunately, Judge Agius is indisposed, so we have
18 to sit pursuant to 15 bis.
19 So can I wrap up the situation in relation to the documents which
20 were used during the course of re-examination. I take it that Mr. Bourgon
21 and the associate with other Defence are opposing to the admission of
22 those which had not 65 ter numbers, i.e., the last four documents. Am I
24 MR. BOURGON: Indeed, Mr. President, and I'd like to add that of
25 course my colleague made some further objections on two documents that are
1 on the list. Now, when the question was asked of me whether I -- my
2 objection stood for those two documents that were on the list, I said as a
3 matter of principle, of course my objection did not stand, but I fully
4 join with the objections raised by my colleague, Mr. Josse. Thank you,
5 Mr. President.
6 JUDGE KWON: And to clarify, Mr. Josse, you are opposing to what
7 documents? The first two documents or first document and others? If
8 you'd clarify that.
9 MR. JOSSE: Could Your Honour give me a moment? I'm sorry, I
10 should be clearer, but ...
11 I certainly object to the first two documents, those on the 65 ter
12 list, for the reasons that I have already given.
13 This second document, 2498, I object to also for the reasons I
14 have given.
15 I think I differ from my learned friend Mr. Bourgon in that
16 bearing in mind the previous ruling of the Trial Chamber, notwithstanding
17 the certification request, I can see no basis on which I could object to
19 JUDGE KWON: How about 2499 and 2503?
20 MR. JOSSE: 2499, same position as 2502. 2503 is a document that
21 I would respectfully suggest should have been dealt with as part of the
22 Prosecution case or not at all.
23 JUDGE KWON: Thank you, Mr. Josse.
24 Having noted the position of the -- each party, the Chamber will
25 mark those documents for identification, and as soon as Presiding Judge
1 will join or the proper witness come and deal with them, we can decide in
2 due course the admissibility.
3 Shall we deal with the Defence exhibits? Who will go first?
4 MR. JOSSE: I'm happy to go first since I cross-examined first,
5 Your Honour.
6 JUDGE KWON: Thank you.
7 MR. JOSSE: A large list has been tendered. I've been helpfully
8 informed that 6D27 which is on our list is in fact already in evidence.
9 JUDGE KWON: Thank you.
10 MR. JOSSE: So therefore it should come off that particular list.
11 To the best of our knowledge, all the other documents are not yet in
12 evidence, and we apply for them to be admitted.
13 JUDGE KWON: I take it this list is disclosed to the Prosecution
14 as well? Can I hear the position of the OTP on this?
15 MR. THAYER: Your Honour, we have no objection to any of the
16 documents on this list.
17 JUDGE KWON: Thank you. And we'll then therefore admit them, all
18 of them, subject to those documents which have not been translated yet,
19 and we'll -- no. There are -- those are UN documents.
20 MR. JOSSE: That's right. The only documents that have not been
21 translated are original English language. All the B/C/S documents have
22 been translated into English, so I don't think the problem arises on this
24 JUDGE KWON: But for those documents as well, those should be
25 translated or not? If you waive --
1 MR. JOSSE: Well --
2 JUDGE KWON -- of the Defence --
3 MR. JOSSE: We've had problems with the CLSS. I don't want to
4 blame them because they're extremely helpful, they've been very, very
5 helpful with us in relation to these documents. But from recollection
6 certainly on previous occasions and again in a previous case, they will
7 not translate, as a matter of principle, documents in English into B/C/S.
8 JUDGE KWON: Thank you for the information. Why don't we leave it
9 at that and we'll admit them all.
10 And Defence Miletic team tendered eight documents.
11 MS. FAUVEAU: [Interpretation] Mr. Chairman, unfortunately there
12 are only two who have been translated. So for the rest we'll ask that
13 they be tendered whilst we wait for the translation into English.
14 JUDGE KWON: Thank you. Mr. Thayer, do you have any say to this?
15 MR. THAYER: No objection to any documents on the list, Your
17 JUDGE KWON: So as is written on the list, we'll admit number 2
18 and 4 and marking for identification the remaining six items. Thank you.
19 Shall we go into private session briefly?
20 [Private session]
22 [Open session]
23 JUDGE KWON: Yes, Mr. Thayer.
24 MR. THAYER: I apologise, Your Honour, for taking us back to the
25 issue concerning the admissibility of these documents on my re-direct. I
1 wanted to just add a couple of words that occurred to me as I was
2 cogitating during the break. I don't think I adequately addressed one
3 other ground that I was trying to make but I don't think I did it,
4 frankly, artfully enough or cogently enough.
5 JUDGE KWON: Yes. Please proceed.
6 MR. THAYER: And I appreciate that the Court hasn't made its
7 decision yet and I appreciate the opportunity to further address the
9 Particularly with respect to documents about which a witness may
10 not have personal knowledge in terms of the contents, I think what we've
11 seen consistently during the course of the trial, particularly on
12 cross-examination, is that my learned friends have used these documents in
13 such a way to a great extent, and I would say 99.9 per cent of the time
14 without objection.
15 Even if a witness looks at a document and says, "I wasn't there.
16 I don't know about this," or, "I never heard about this," respectfully our
17 position is that that document may nevertheless have utility, have
18 probative value, assist the Trial Chamber ultimately in its
19 decision-making on a particular issue, in that the document itself may
20 complete a picture, may present another side to an issue as it were, even
21 if the witness, him or herself, doesn't have particular knowledge about
22 what was going on in a particular document.
23 Just to use the first document, 209, as an example, here we have
24 events that were going on recorded by a signatory to the agreement. Of
25 course this particular witness had no direct knowledge at the time of this
1 particular individual, but nevertheless we would submit that it is
2 probative evidence of the intentions of one of the signatories to that
3 agreement if you see the actions which are recorded in here.
4 Were we to object as it has been done numerous times on the
5 Defence, I think, number one, that would deprive the Trial Chamber of
6 evidence it -- it ought to consider, and that, number two, it would also
7 really prolong the proceedings if we were forced to think ahead of time of
8 every possible document we may conceivably have to use with our witnesses
9 in our case or our direct examination. We don't want to do that. We
10 don't think that that ultimately is helpful. It will encumber the
11 process, not streamline the process.
12 As I said, we had a very limited idea in terms of what we wanted
13 the Court to understand through this witness's testimony. I showed him
14 one document, I think, and understandably, the Defence had its hundred
15 documents it wished to put through this witness, and again I think
16 ultimately it assists the Trial Chamber in its -- in its search for the
17 truth and its decision-making to have such evidence even if this
18 particular witness doesn't have personal knowledge about the events that
19 are contained therein.
20 I just wanted to clarify that. I don't know if that clarifies it,
21 but I at least wanted to give that a shot. Thank you.
22 JUDGE KWON: Thank you. The Trial Chamber will note your
23 submission in the future. But as for the Chamber, what was important is
24 that there was no opposition at the time from the Prosecution.
25 Yes, Mr. Bourgon.
1 MR. BOURGON: Thank you, Mr. President. With your leave I'd like
2 to reply to what my colleague just said in addition to the arguments which
3 took place before the break, very shortly, Your Honour.
4 JUDGE KWON: Very briefly.
5 MR. BOURGON: Thank you. I would simply like to say that there is
6 a difference which my learned friend from the Prosecution omits to
7 mention. There is a difference between examination-in-chief conducted by
8 the Prosecution and cross-examination.
9 When a document is shown to a witness in examination-in-chief, if
10 the witness doesn't recognise the document or the event in the document, I
11 would, of course, object that the witness can testify or say anything
12 about the event in the document because that is examination-in-chief. On
13 the contrary, when we have cross-examination, if the Defence shows a
14 document to a witness, even if the witness has not seen the document, does
15 not know the document, it is a proposition put to him on which he can
16 comment because that might have an impact on his credibility.
17 Now, my colleague says, and I quote on this, he says, "We would
18 not like to be forced to think ahead." Well, Mr. President, that's the
19 complete argument of the Defence. The Prosecution should be able to think
20 ahead and know the case that they are leading before this Chamber so that
21 we know the case we have to meet. The Rules ask of the Prosecution that
22 they produce a list of documents so that we know what material we have to
23 deal with. It is -- that's the duty of the Prosecution to do that. So
24 the fact that they like it or that they don't like it is irrelevant,
25 Mr. President.
1 Now, my colleague said they have a huge discretion in selecting
2 documents. I agree. They have a discretion in many respect. The
3 Prosecution is fully independent. They decide what charges they will
4 lay. They decide what documents they will use. They should live it,
5 Mr. President, in order to make these proceedings fair.
6 Thank you, Mr. President.
7 JUDGE KWON: Thank you, Mr. Bourgon. So we'll leave the matter
8 there and come to the point later on in due course.
9 So can we go into private session briefly.
10 [Private session]
16 [Open session]
17 [The witness entered court]
18 WITNESS: WITNESS PW-165
19 [Witness answered through interpreter]
20 JUDGE KWON: Good morning to you, Witness. Would you kindly take
21 the solemn declaration.
22 THE WITNESS: [Interpretation] I solemnly declare that I will speak
23 the truth, the whole truth, and nothing but the truth.
24 JUDGE KWON: Thank you. If you could take a seat.
25 THE WITNESS: [Interpretation] Thank you.
1 JUDGE KWON: Mr. Witness, in order to protect your identity, you
2 will be called by a pseudonym, which is PW-165, and your image will not be
3 broadcast. Do you understand that?
4 THE WITNESS: [Interpretation] Yes.
5 JUDGE KWON: Thank you. Mr. Nicholls.
6 MR. NICHOLLS: Thank you, Your Honours. First thing, if I could
7 hand the witness the sheet which is P02495.
8 Examination by Mr. Nicholls:
9 Q. Sir, I would like you to read that piece of paper silently to
10 yourself, don't read it out loud, and then tell us if your name appears
11 underneath the pseudonym PW-165.
12 A. Yes, that's it.
13 MR. NICHOLLS: Could that be shown to my colleagues.
14 May we go into private session, please.
15 JUDGE KWON: Yes.
16 [Private session]
2 [Open session]
3 MR. NICHOLLS:
4 Q. You are of Serb --
5 JUDGE KWON: Just a second. Yes. We are now in open session.
6 MR. NICHOLLS: Thank you.
7 Q. You are of Serb ethnicity, is that right?
8 A. Yes.
9 Q. And did you give signed statements to the Office of the Prosecutor
10 on the 26th of November, 1995, and more recently on the 22nd of March of
11 this year?
12 A. Yes.
13 Q. Were you truthful in your statements to the OTP?
14 JUDGE KWON: Just a second. Mr. Bourgon.
15 MR. BOURGON: Mr. President, I object to the question as to
16 whether a witness was truthful when he gave his statement. This is
17 examination-in-chief. This is a leading question. My colleague said --
18 he started off with leading questions for identity. Of course we don't
19 say anything for those questions.
20 Now we see that the witness hasn't begun to testify, that he's
21 already saying that his witness is not going to say the truth. Now, there
22 is a matter that will arise with this witness, and my colleague --
23 JUDGE KWON: I don't follow at all.
24 MR. BOURGON: Well, Mr. President, the witness is being -- he's
25 being asked by the Prosecution whether he was truthful in his statement.
1 This is not a 92 ter witness. He's not going to try to get the statement
2 into evidence. He will simply -- he is trying to put the witness on
3 notice because there was an event that took place this week of which the
4 Trial Chamber will probably be made aware later on in his testimony, and I
5 think that the question itself is improper. If he wants -- the witness is
6 there. He is to testify about issues. Let the Prosecution ask about the
7 issues and what the witness knows about the issues and what he saw and
8 nothing else. Thank you, Mr. President.
9 JUDGE KWON: Before dealing with that, can I check whether -- with
10 the Prosecution whether this witness is a live witness a 92 ter witness.
11 MR. NICHOLLS: He's a live witness, Your Honour, and if I can --
12 I'll answer that question, first.
13 JUDGE KWON: Yes, please.
14 Mr. Meek.
15 MR. MEEK: Sorry, Your Honour. There is an error in the
16 transcript. Page 43, line 22. The witness stated it was 1995 he gave his
17 statement to the OTP. November 26th. I don't believe that's correct.
18 MR. NICHOLLS: It should be 2005.
19 JUDGE KWON: Thank you. Mr. Bourgon.
20 MR. BOURGON: I think any further conversation the witness should
21 take off his earphones off because I know what my colleague is about to
22 say. Thank you, Mr. President.
23 JUDGE KWON: Yes. Mr. Witness, if you could kindly take off your
24 headphones with the assistance of our usher, please.
25 MR. MEEK: And, Your Honour, the --
1 JUDGE KWON: Just a second, Mr. Meek.
2 MR. MEEK: Your Honours, if --
3 JUDGE KWON: Just a second. Mr. Witness, do you understand
5 THE WITNESS: [Interpretation] No.
6 JUDGE KWON: Thank you. Mr. Meek was that your concern.
7 MR. MEEK: Yes, it was, Your Honour. Thank you.
8 JUDGE KWON: Yes, Mr. Nicholls.
9 MR. NICHOLLS: Well, first I find it very interesting that Mr.
10 Bourgon didn't ask him to take the headphones off before he made his
11 submission on this exact this issue. Apparently, he wanted the witness to
12 hear what he had to say, but not what I might want to say, although I have
13 no objection to the witness taking his headphones off. Second it's a live
14 witness. I fully expect him to tell the truth. There is to question
15 about that. I think there is nothing improper whatsoever about talking
16 about when the witness made statements and asking if he was truthful in
17 those statements. I know that he's going to be cross-examined on those
18 statements and it's sort of a basic background question. Mr. Bourgon has
19 already alluded to the fact that he's going to cross-examine the witness
20 on these statements and I see nothing improper whatsoever about that
21 question and it's -- I don't recall ever having that question objected to
23 [Trial Chamber confers]
24 JUDGE KWON: Mr. Nicholls, the Chamber by majority will allow the
25 question, with my dissent. Please proceed.
1 MR. NICHOLLS: Thank you, Your Honours.
2 Q. You can answer the question, sir. Oh, excuse me. You need
3 your ...
4 Sorry about that delay, sir. You can answer the question. Were
5 you honest in your statements to the OTP? Did you tell the truth?
6 A. Yes.
7 Q. Thank you. Could you tell us when you were -- if you were
8 mobilised, when that was in the 1990s?
9 A. On the 6th of April, 1992.
10 Q. And which brigade did you join?
11 A. The Zvornik Brigade.
12 Q. Thank you. I'm going to jump up to 1995 now, July. In July 1995,
13 which unit of the Zvornik Brigade were you in? What was your position?
14 A. In June 1995, I was in the military police company.
15 Q. Okay. And in July 1995?
16 A. In July, too, I was in the military police company.
17 Q. Thank you. And how long had you been in the military police of
18 the Zvornik Brigade by July 1995, how many years?
19 A. A year and a couple of months.
20 Q. Who was the commander of the Zvornik Brigade military police in
21 July 1995?
22 A. It was Lieutenant Miomir Jasikovac.
23 MR. NICHOLLS: Could we go into private session for one moment,
25 JUDGE KWON: Yes. Let's go into private session.
1 [Private session]
15 [Open session]
16 MR. NICHOLLS:
17 Q. In July of 1995, try to remember who were the security officers
18 for the Zvornik Brigade?
19 A. They were Trbic, Milorad, and Drago Nikolic. I'm not sure about
20 the first name of the first person.
21 Q. Just to be clear then, you're not sure whether Milorad is the
22 first name for Trbic?
23 A. I'm not quite sure about that.
24 Q. Now, in June and July 1995, could you briefly describe what your
25 primary duties were as a Zvornik Brigade MP? What were your assignments
1 for the most part?
2 A. At the beginning of the month of July, I asked for -- to be
3 deployed closer to the town of Zvornik because my wife was in the ninth
4 month of pregnancy, so that I could take her to the doctor's and before a
5 medical commission. So I asked the commander be positioned closer, which
6 he allowed. So that I was appointed at the frontier crossing between
7 Karakaj and Sepak, at the bridge there. And on that day, on the 11th, he
8 called me on the line of the frontier police in Sepak and told me to --
9 Q. Let me stop you there because I was just asking now about your
10 duties in general.
11 Do you recall the date when Srebrenica fell? Or was liberated,
12 depending on how you prefer to describe it?
13 A. I'm not quite sure about the exact date.
14 Q. I want to ask you now some questions about soon after the date
15 that Srebrenica fell. After Srebrenica fell, whatever the date, soon
16 after, did you perform any other duties as a military policeman other than
17 the border crossing duties that you've described?
18 A. No. No.
19 Q. So you're -- to the best of your recollection now, after the fall
20 of Srebrenica, you never did anything except work at a border crossing.
21 Is that what you're saying?
22 MR. MEEK: Yes, Your Honour.
23 JUDGE KWON: Mr. Meek.
24 MR. MEEK: Obviously it's been asked and answered. I object.
25 JUDGE KWON: I don't think so. I don't agree with you, Mr. Meek.
1 Let the witness answer the question, please.
2 THE WITNESS: [Interpretation] Could you repeat it, please?
3 MR. NICHOLLS:
4 Q. After the fall of Srebrenica, to the best of your recollection now
5 as you sit there, is your testimony that you never did anything except
6 work at a border crossing? Is that right, after the fall of Srebrenica?
7 A. I did not.
8 Q. In this time in July of 1995, did you -- what duties did you
9 perform other than working at the border crossing or at Karakaj?
10 MR. MEEK: Your Honour, I again object. Asked and answered. Now
11 he's just asking it in a different -- he's just rewording the same
12 question. He already answered it twice. He answered no the first time, no
13 the second time. I did not, and now the Prosecution is just rewording it
14 and again these objections the witness ought to have his headphones off
15 and I apologise for not asking that.
16 JUDGE KWON: He is not referring to the different time span?
17 MR. MEEK: No, same time span, Judge.
18 MR. NICHOLLS: No Mr. Meek needs to listen carefully. Before I
19 was asking about immediately after the fall of Srebrenica. Now I'm about
20 July 1995.
21 MR. MEEK: Judge, I object. It's all been --
22 JUDGE KWON: Let's hear from the witness. Proceed, Mr. Nicholls.
23 MR. NICHOLLS:
24 Q. All of July 1995, what duties did you perform other than working
25 at the check-point by Sepak, at the border crossing?
1 A. I also worked in Karakaj and Zvornik in the centre of town at the
2 Sepak crossing.
3 Q. In July 1995, did you perform duties as an MP in any towns other
4 than Zvornik and Karakaj?
5 MR. MEEK: Judge, I object. That's a leading and suggestive
6 question, and it's also becoming repetitive. It's again been asked and
7 answered I still claim for the third time and for the fourth time now.
8 JUDGE KWON: He said he performed working at check-point by Sepak
9 and border crossing, and this question is any -- any town other than
10 Zvornik and Karakaj. Is it not a legitimate question? Mr. Nicholls is
11 referring to other places.
12 Please go on, Mr. Nicholls.
13 MR. NICHOLLS:
14 Q. You can answer the question. Did you work in any other villages
15 other than Zvornik and Karakaj in July 1995, as an MP?
16 A. I only worked for that one day when the commander called me when I
17 went to Rocevici and I was active there.
18 Q. Okay. Let's talk about that day. Where were you when you were
19 called to go to Rocevici?
20 A. I was at the Sepak border crossing and about 11.00 I was called up
21 by telephone to come to Rocevici, and I went there in a private vehicle,
22 and I found there two or three of my colleagues. I was given an
23 assignment as to what I should do there.
24 Q. First of all, just to be very clear, you say the commander called
25 you. Give me the name of that commander, just for the record.
1 A. The commander was Miomir Jasikovac.
2 Q. I'm not asking for the names but your two or three colleagues.
3 Who are you referring to there, when you get to Rocevici?
4 A. They were my colleagues, military policemen, but I can't remember
5 their names now.
6 Q. What was the assignment given to you by Miomir Jasikovac? What
7 did he tell you to do when you got to Rocevic?
8 A. My colleagues passed on to me that we should secure a kind of
9 informative check-point and not allow civilians to approach, to check
10 vehicles, and that sort of thing.
11 Q. Now, your colleagues informed you that or it was Miomir Jasikovac
12 who told you to set up a -- this check-point? You said you were given an
13 assignment by your commander.
14 JUDGE KWON: Who would go first?
15 MR. BOURGON: It's the first time I hear about a check-point and
16 instructions to give a check-point. It's entirely a leading question. He
17 said his colleagues were told, and he's talking about an assignment. The
18 assignment might mean or be a certain number of things and my colleague
19 suggests to him when did Jasikovac tell you to set up the check-point?
20 MR. MEEK: [Previous translation continues] ... And again maybe we
21 need to ask the witness every time to take his headphones off when we make
22 these kind of objections. Maybe you could help me with that.
23 JUDGE KWON: I would prefer the evidence to flow, but I take the
24 point, and if Mr. Nicholls to rephrase the question, please.
25 MR. NICHOLLS:
1 Q. You stated that on this day your commander gave you an assignment.
2 What was the assignment that he gave you?
3 A. He told me by telephone that I go to the school at Rocevic and
4 together with my colleagues, at the entrance to the yard, that we should
5 check who was coming and going and to secure that place.
6 Q. Right. And my question was, again just to be very clear, that
7 assignment to secure the place, the yard, who gave you that assignment,
8 your colleagues at the school or your commander?
9 A. I was given the assignment by telephone by the commander, but
10 before that I was told by my colleagues because they were there before I
12 Q. Okay. Now, again, best you can, explain the purpose of what you
13 were going to do there. You said to check who was coming and going and
14 secure the place. Which place are you securing, and who are you checking
15 coming and going?
16 A. Place was the main village road leading off from the main road
17 about 400 metres towards the school. There was a house there, and the two
18 of us were there controlling the cars, the people who were coming, and
19 telling the civilians to keep away from the yard.
20 Q. Okay. Now, describe when you first get to Rocevic and the
21 school? What do you see at the school? Who's there? What's going on
22 besides your two or three colleagues from the Zvornik Brigade military
24 A. When I arrived there there were many civilians, about 20 to 30 of
25 them. They were shouting. They were there to the -- standing to the
1 side, and we were making sure that they wouldn't approach. We didn't
2 enter the school. Other soldiers were in there, soldiers I didn't know.
3 Q. What -- when you say civilians, which civilians are these? Are
4 these Serb, Muslim, Croat? Who are these civilians you're talking about?
5 A. They were civilians of Serb ethnicity.
6 Q. Were they saying anything? How were they behaving? What were
7 these civilians doing?
8 A. They were very angry, nervous. They were swearing. They were
9 shouting. They lost many of their own relatives during the war, their
10 brothers and cousins up there, and then they were very bitter and against
11 this group.
12 Q. Which group were they bitter against? Who were they angry at?
13 A. The group of these prisoners who were there in the school.
14 Q. And what ethnicity -- or where were these prisoners from? Who
15 were these prisoners?
16 A. I don't know exactly where they were from, but most probably from
17 the area of Srebrenica, and they were of Muslim ethnicity.
18 Q. Why do you say most probably from the area of Srebrenica?
19 A. Most probably from up there, from Srebrenica, because in that
20 period of time there was nothing else happening anywhere else.
21 Q. And again, to the best of your recollection what period of time is
22 this? When is this in July that these Muslim prisoners are being held in
23 the school in Rocevic? If you don't remember the date, that's okay, just
24 best you can.
25 A. When I got there this was after 11.00, about 11.30 when I
1 arrived. That was about the time. And I stayed there until 1700 hours,
2 something like that.
3 Q. Thank you. What I'm asking now is about the date in July. Do you
4 know what the date was in July? If you don't know, that's okay. Just
5 tell me best you can when it was that these Muslim prisoners were being
6 held in Rocevic school. And if you think it would help you to look at
7 your statement, let me know.
8 A. The date is the 11th when I was called by my commander to come
9 there. That was that one day when I was there.
10 Q. And how -- what makes you think this was the 11th of July that
11 Srebrenica prisoners were being held at the Rocevic school?
12 A. I don't understand the question.
13 Q. Why are you saying it's the 11th of July? How do you -- what is
14 making you remember that this is the 11th of July that these prisoners
15 were being held at the Rocevic school, these Muslim prisoners?
16 A. I remember the day that I was there. I can't remember any other
18 Q. But I'm asking you how you remember that date. Is there any
19 particular reason? Your grandmother's birthday? I mean anything.
20 A. No, no. There's no other reason.
21 Q. And let me ask you if you remember talking about when this
22 happened in your statement. Do you remember talking about that?
23 A. Yes.
24 Q. Do you remember when in your statement you said it was that you
25 were sent to the Rocevic school to guard Muslim prisoners from Srebrenica?
1 MR. MEEK: Well, Your Honours, I object because you overruled the
2 objection earlier that when he asked this witness if he told the truth in
3 his statements, and apparently now he's wanting to do something
4 different. If he told the truth in his statement, then he's here to tell
5 the truth under oath, and he's already three, four times a page now we've
6 asked about the date. He knew it was the 11th.
7 JUDGE KWON: Speaking for myself, it is absolutely legitimate to
8 rely on the statement to refresh the memory, so please --
9 MR. NICHOLLS: Thank you, Your Honour.
10 JUDGE KWON: Please proceed.
11 Mr. Bourgon.
12 MR. BOURGON: If the witness wishes to look at his statement and
13 feels it's necessary, Your Honour, not simply because the Prosecution
14 wants to show him the statement. There's a difference. And I note that
15 at line -- my colleague asked him before, "If you need to look at your
16 statement, please let me know." I haven't heard the witness inform the
17 Prosecution that he's interested in seeing his statement yet. Thank you,
18 Mr. President.
19 JUDGE KWON: I think that was the case, but I have to consult with
20 my colleagues.
21 [Trial Chamber confers]
22 JUDGE KWON: The Chamber finds the question absolutely legitimate,
23 and I'd like to reiterate on behalf of the Chamber it is important to have
24 the evidence to flow unless there's a serious concern or objection.
25 MR. NICHOLLS: Thank you.
1 JUDGE KWON: Please proceed.
2 MR. NICHOLLS: Thank you, Witness -- thank you, Your Honours.
3 Q. I'm going to read you from paragraph 5 of your statement, Witness,
4 from 2005. "I cannot recall exactly what --"
5 JUDGE KWON: Mr. Bourgon, what is it?
6 MR. BOURGON: I don't agree with the procedure that's being used
7 by my colleague. If the witness wishes to see the statement, then he can
8 give the statement to the witness. Witness can look at it and then answer
9 the question. But he cannot quote from the statement and say, "Do you
10 agree that this is true or not?"
11 MR. NICHOLLS: Your Honour.
12 MR. BOURGON: Show him the statement --
13 JUDGE KWON: Just a second.
14 MR. BOURGON: -- to refresh his recollection but not more than
16 JUDGE KWON: Just a moment. Hold on.
17 [Trial Chamber confers]
18 JUDGE KWON: The Chamber is of the view that if the witness wishes
19 to take a look at his own statement, it's fine, but there's no problem for
20 the Prosecution to read out the proper part from the statement. But why
21 don't you put the statement to the witness.
22 MR. NICHOLLS: Thank you, Your Honour. Can I proceed the way we
23 have this entire trial and just read out the paragraph and then --
24 JUDGE KWON: Does the witness have the statement in front of him?
25 MR. NICHOLLS: No. I can give him a copy of that.
1 JUDGE KWON: Let the witness have the statement in his own
2 language, and if you could indicate the part, relevant part. And so that
3 if you indicate the para number or page number so that the witness can
5 MR. NICHOLLS:
6 Q. Witness, this is paragraph 5 of your very short statement. I'd
7 like you to read that to yourself.
8 JUDGE KWON: You can read out the part.
9 MR. NICHOLLS:
10 Q. "I cannot recall exactly what the date was that I received this
11 this assignment. This was the one and only time that I performed any sort
12 of guard duty regarding the school in Rocevic. It must have been soon
13 after the fall of Srebrenica, because the school was being used on this
14 day to house prisoners from Srebrenica."
15 Tell me when you've read paragraph 5.
16 A. I've read it.
17 Q. Now, has that helped you recall when this event occurred? Think
18 about it. Please tell me. It's the last time I'm asking to ask you.
19 When were you at that school in Rocevic performing this duty?
20 A. It was it the 11th of the month of July.
21 Q. To the best of your recollection, what was the date of the fall of
23 A. I can't recall that.
24 Q. You started talking about this check-point or place you set up on
25 the road between the school and the main road. What is that main road?
1 Can you just describe the main road? Where does it go from and to?
2 JUDGE KWON: Hold on, Witness, a second.
3 MR. NICHOLLS: And --
4 JUDGE KWON: What is the objection?
5 MR. NICHOLLS: Sorry, Your Honour.
6 MR. BOURGON: Is my colleague quoting from --
7 THE INTERPRETER: Microphone, please, Mr. Bourgon.
8 MR. BOURGON: -- that if my colleague thinks it's necessary, he
9 ask the witness to turn off -- take off his headphones because there's
10 been on/off practice on that side.
11 JUDGE KWON: Yes. Mr. Witness, if you could kindly take off your
12 headphones. Yes, please.
13 MR. BOURGON: If my colleague thinks it's necessary.
14 THE INTERPRETER: Microphone, please.
15 JUDGE KWON: Can I hear you, Mr. Bourgon, now.
16 MR. BOURGON: I just wanted to say is now my colleague quoting
17 from the statement which I object should not be used the way it is being
18 used right now, or is he saying -- referring to the testimony of the
19 witness? The question from my colleague was: "You started talking about
20 this check-point." I did not hear the witness say "check-point" before,
21 and then I did not hear the witness describe between the main school and
22 the main road. Now, that's in the statement. Is my colleague quoting
23 from the statement, or is my colleague referring to a previous answer?
24 That's my only thing, Mr. President.
25 JUDGE PROST: Mr. Bourgon, there was a statement by the witness
1 referencing the check-point, and there was also a statement by the witness
2 referencing the main road in the previous testimony. I can find you the
3 transcript lines.
4 JUDGE KWON: At least the witness referred to checking cars and
5 coming and going. Is that not a check-point?
6 MR. NICHOLLS: I'm trying to use normal words, Your Honour. I was
7 quoting from his answer, and I can't find it right now rolling up, but my
8 recollection is the same as Your Honour's, that he talked about setting up
9 this place where he's going to check cars and people, and that it's
10 between the main road and the school. Page 53 line 2, "A place was the
11 main village road leading off from the main road about 400 metres towards
12 the school. Two of us were controlling the cars, the people who were
13 coming." That sounds like a check-point on the way to the main road.
14 MR. MEEK: I think the objection, though, went to -- if you go
15 back and look at what the Prosecutor just quoted, Judge, it is obviously
16 not the question he asked, and that question he asked is leading and
17 suggestive because the witness has never, never mentioned the road was
18 between a school and the main road or where it went to or where it went
19 from. I mean, just didn't.
20 JUDGE KWON: I don't see much point of the objection, and it was
21 dealt with, and the Prosecution has a sufficient base -- basis to put that
22 question. So the objection denied.
23 Please proceed, Mr. Nicholls.
24 MR. NICHOLLS: Thank you. Could we please put up in e-court --
25 JUDGE KWON: I apologise. Please let the witness have the
1 headphones on.
2 Yes, proceed.
3 MR. NICHOLLS:
4 Q. Sorry about all this, Witness. I know it must be frustrating to
6 MR. NICHOLLS: Could we please have P02494 on e-court. That is a
8 Q. That should appear on the screen in front of you in a few minutes,
10 MR. NICHOLLS: Now, Your Honours, this map does not have a 65 ter
11 number, but I e-mailed it to all of my friends last week, I think. It's
12 very similar to a map - thank you, that's the correct orientation - which
13 does have an a 65 ter number, number 1748, and I received no objection to
14 using this, and I spoke with Mr. Bourgon, and he does not object.
15 JUDGE KWON: I don't see any rising on the part of the Defence.
16 MR. NICHOLLS:
17 Q. Witness, can you take a look at this map and try to orient
18 yourself to it? Let me know if you can't see it clearly. And do you
19 recall that I showed you this map when we met earlier?
20 A. Yes.
21 Q. All right. Can you tell us in the centre of this map which --
22 which area? Can you tell what's depicted on this map?
23 A. It's the village of Rocevic, by the main Zvornik-Bijeljina road.
24 Q. Thank you. And is that the same main road you were talking about
25 earlier, when you said that this place where you were checking cars was
1 set up in between the main road and the school?
2 A. Yes. It's about 3 to 400 metres upwards towards the school from
3 the main road.
4 Q. Sorry, I lost interpretation for one second but it's back. Okay.
5 On this map, and we can blow it up if you need to, can you --
6 well, what would you call this place where you were checking cars and
7 checking people coming through? What term would you give to that post?
8 What was your assignment? What was it called when you were assigned to go
9 somewhere and check everybody coming in and out? How should we refer to
11 JUDGE KWON: Mr. Nicholls, you can fairly refer to check-point.
12 Can I draw the attention of the Defence to page -- line 19 to 21 of page
13 51. The witness said, "my colleagues passed on to me, that we should
14 secure a kind of informative check-point and not allow civilians to
15 approach us," et cetera.
16 Please go on, Mr. Nicholls.
17 MR. NICHOLLS: Thank you, Your Honour.
18 Q. Can you mark on this map where the check-point was set up by you?
19 And the usher will show you how to use a special pen. Just draw a line
20 across the road where the check-point was. And we can make it bigger if
21 you need it bigger.
22 A. Here. On that road.
23 Q. Okay. And if you can see the approximate location of the Rocevic
24 school on this map, could you circle it?
25 A. [Marks].
1 Q. Thank you. And for the record, the witness made a short
2 horizontal line against -- on the road showing where the check-point was
3 in between the school and the main Zvornik-Bijeljina road.
4 Now, were you alone? I think you -- I don't want to -- sorry.
5 Witness, could you please write your number, 165, in the top right-hand
6 corner of this map.
7 A. Which number? Would you repeat it, please?
8 Q. 165.
9 A. [Marks].
10 JUDGE KWON: Yes, Mr. Bourgon.
11 MR. BOURGON: Thank you, Mr. President. Maybe the witness could
12 just confirm that the mark he made about the road, that's not the main
13 road. It's a road beside that. This will avoid questions on
14 cross-examination. Thank you, Mr. President.
15 MR. NICHOLLS: That's fine.
16 JUDGE KWON: Yes.
17 MR. NICHOLLS:
18 Q. Could you indicate -- well, could you -- on the main road could
19 you draw an arrow in the direction of Zvornik and label it with a "Z", and
20 an arrow in the direction of Bijeljina and label that with a "B", if you
22 A. [Marks].
23 Q. Okay. I think that's clear. Thank you. That shows Zvornik to
24 the left, as we're looking at it, and Bijeljina to the right; correct?
25 That's what you've drawn?
1 A. Yes.
2 Q. Thank you.
3 MR. NICHOLLS: I'm finished with that. Thank you.
4 JUDGE KWON: Save it and proceed, please.
5 MR. NICHOLLS:
6 Q. You talked about your colleagues. Who was with you when you were
7 manning the check-point until, you said, approximately -- I think you said
8 1900. Or 1700. Sorry.
9 A. I can't remember the name of my colleague, but there was just one
10 person at the check-point. The others were separating the civilians from
11 the yard and so on.
12 Q. And just quickly, why were they separating the civilians from the
13 yard? What were they preventing the civilians from doing?
14 A. The civilians wanted to enter the school, probably for some sort
15 of revenge, because during the war they had lost their nearest and
16 dearest, their brothers and cousins, and so they were very angry. And
17 these colleagues of mine, one or two of them, separated them up there, and
18 we were -- the rest of us were up at the check-point.
19 Q. Now, as far as you know, were your colleagues successful in
20 protecting the prisoners in the school from the civilians, or was
21 anybody -- or were any prisoners hurt or killed?
22 A. Well, certainly they were successful in preventing them not to
23 reach the school, and other people whom I didn't know, other members, were
24 providing security at the entrance.
25 Q. Now, during the time up to 1700 at the check-point, who passed
1 through that check-point while you were on duty?
2 A. At one point while we were at the check-point, myself and another
3 colleague of mine, several -- a couple of vehicles passed by, and one of
4 the vehicles stopped down there for a moment and my colleague said to me,
5 "The security guards have arrived," like Trbic and Drago Nikolic. I
6 didn't see them myself, but I heard that later on one of my colleagues
7 turned up and said what they had been told, that everything must be kept
8 under control. And then they left in an unknown direction.
9 Q. The colleague was told by whom that everything must be kept under
11 A. The security guards there, Trbic and Drago Nikolic.
12 Q. Which direction were Trbic and Drago Nikolic coming from when they
13 arrived at the check-point?
14 A. Well, from where we were at the check-point, we couldn't see the
15 main road, so we couldn't really establish where they were coming from.
16 Q. And -- so they were coming from somewhere on the main road in the
17 direction towards the school; is that right?
18 A. Yes. Yes.
19 Q. And then which direction did they continue on?
20 A. Well, they came from the direction of the main road, the main
22 Q. Yeah. They come from the main road. They get to the check-point,
23 and then they go ...
24 THE INTERPRETER: Could the witness kindly be asked to speak up,
1 THE WITNESS: [Interpretation] Since they'd issued those orders and
2 checked what the situation was like there, they went through the
3 check-point again, by the byroad, to reach the main road.
4 JUDGE KWON: Mr. Witness, when answering could you come close
5 to -- closer to microphone and speak up. Thank you.
6 MR. NICHOLLS:
7 Q. Now, I want to be very, very clear about this. You've talked
8 about these vehicles coming. What did you see at the check-point when
9 Nikolic and Trbic, Drago Nikolic and Trbic, were there?
10 JUDGE KWON: Mr. Bourgon.
11 MR. BOURGON: This question has been asked and answered very
12 precisely. He said exactly what happened when the cars went there. He
13 saw what his colleague told him, what he did not see, and what those cars
14 did. So we're just repeating over and over again the same evidence.
15 Now, I refer, Mr. President, to page 64, lines 11 to 7 -- 11 to
17 JUDGE KWON: He said that, "I didn't see them myself, but I had
18 heard that later on --" one of my colleagues ...
19 [Trial Chamber confers]
20 JUDGE KWON: So, Mr. Nicholls ...
21 [Prosecution counsel confer]
22 MR. NICHOLLS: Sorry, Your Honours.
23 JUDGE KWON: The witness has said that he had -- just a second.
24 He didn't see them himself, so in light of the statement, if you could
25 rephrase your question.
1 MR. NICHOLLS: Yes.
2 Q. My question, Witness, is you said you didn't see them. What
3 exactly did you see? Talk about vehicles, which vehicles? What did you
4 see at the check-point when they came?
5 A. I was there controlling, with my colleagues, the civilian cars
6 which were passing by the village, and there's a wider space there, and a
7 vehicle passed by and parked a little way away by the stadium, next to the
8 school, and the colleague that went there said the security officers or
9 security guards have arrived and have checked what the situation is like
10 and issued orders that no civilians were to be allowed to approach. And
11 after spending several minutes there, they came back and went down towards
12 the main road. So those are the vehicles.
13 Q. And do you recall -- if you can, describe the vehicle. If you
14 don't remember the vehicle, just say you don't remember it, this vehicle
15 that stopped by the school.
16 A. I don't remember that vehicle.
17 Q. Now, Witness, do you recall meeting with me last week and talking
18 about this part of your statement? Do you remember that?
19 A. Yes.
20 Q. Tell me if you recall, what did you tell me then about seeing
21 Drago Nikolic at the check-point?
22 JUDGE KWON: Yes, Mr. Bourgon.
23 MR. BOURGON: Mr. President, the question has been asked. Twice
24 he has described that he did not see Drago Nikolic. I know what my
25 colleague is referring to. Maybe, Mr. President, we ought to have the
1 witness leave the room and we will sort this out once and for all, exactly
2 what when happened last week when I met with the witness and then my
3 colleague asked a number of questions and told the witness many times not
4 to lie on the stand. That's what we have to do. We need to get the
5 witness out of the courtroom so we can argue this matter. Thank you, Mr.
7 [Trial Chamber confers]
8 JUDGE KWON: We think before you made that objection you should
9 have asked the headphones of the witness be taken off.
10 So, Mr. Witness, could you take off your headphones again.
11 I had the impression that Mr. Nicholls was trying to refresh his
12 memory, rely on his statement, but what's the point of your objection?
13 Could you tell me again, Mr. Bourgon?
14 MR. BOURGON: Thank you, Mr. President. My colleague asked twice
15 already what the witness did, what the witness saw when he was at that
16 check-point. In the first answer I referred to -- I referred the Trial
17 Chamber to, and that was on page 64, lines 11 to 14, he said, "I did not
18 see Drago Nikolic." Then when my colleague asked the question again,
19 despite the objections of the Defence, the witness repeated exactly again
20 that he did not see him, and that the car parked away from him and that he
21 was told this information by a colleague.
22 Now -- then my question -- my colleague goes on and he asks, "Did
23 you recognise the car?" "I don't recognise the car. I can not tell what
24 car it was."
25 But all this in mind -- with all these answers, now my colleague
1 wants to cross-examine the witness by saying, "What did you tell me in my
2 office last week?"
3 That's my objection, Mr. President. This is inadmissible the way
4 to lead a witness. If my colleague wants to say that this witness is
5 hostile to his case, that this witness is not telling the truth, then of
6 course he can trigger that procedure and then he'll be allowed to
7 cross-examine the witness. But the way my colleague is proceeding is
8 inadmissible. He has had two answers already.
9 Now, I also refer, Mr. President, and that's very important
10 because if you look in the statement that is in front of the witness, it
11 doesn't say that he saw him. It says exactly the same thing as the
12 witness has answered twice already, and now he wants to go back to a
13 conversation that took place in his office last week.
14 Now, that's my objection, was that if we want to go back to this
15 conversation in the office we will, but we will go in detail without the
16 witness being present, and we will go with the information note that was
17 produced by my colleague concerning what happened at that meeting, exactly
18 who did what and when.
19 Thank you, Mr. President.
20 JUDGE KWON: Mr. Nicholls.
21 MR. NICHOLLS: Your Honour, first of all, could we go into -- I
22 know the witness has his headphones off, but could we go into private
23 session for this discussion a little bit?
24 JUDGE KWON: Yes.
25 MR. BOURGON: What's the reason, Mr. President? Is there
1 something about private about the witness that needs to go into private
3 JUDGE KWON: Let's hear from the Prosecution first of all.
4 MR. NICHOLLS: If my friend could just relax a minute and let me
5 explain --
6 JUDGE KWON: Just a sec. Let's go into private session first of
8 [Private session]
18 [Open session]
19 JUDGE KWON: Open, yes. Mr. Witness, we are going to take a
20 break, and we will resume again around five to 12.00. So if you could
21 excuse yourself from the courtroom, please. Five to 1.00, correction.
22 [The witness stands down]
23 JUDGE KWON: So the Chamber will suggest that -- as follows:
24 We'll hear Mr. Nicholls' submission in private session, and we will, if
25 necessary, we'll make public that part later on.
1 MR. NICHOLLS: Thank you, Your Honours.
2 JUDGE KWON: Now, let's go into private session now briefly.
3 [Private session]
11 Pages 9931-9934 redacted. Private session
7 [Open session]
8 --- Recess taken at 12.37 p.m.
9 --- On resuming at 1.01 p.m.
10 JUDGE KWON: The Chamber has decided to hear the submission in
11 public session, and we don't think that Mr. Nicholls has to repeat his
12 earlier submission. We begin with Mr. Bourgon.
13 MR. BOURGON: Thank you, Mr. President. I will be as brief as
14 possible. This submission, Mr. President, is being made, of course, on
15 behalf of my client as we are in this trial, like everybody else in the
16 courtroom, in the search for the truth, but it is also being made,
17 Mr. President, on behalf of witnesses whom we believe are being pressured
18 by the practices of the Prosecution before making their testimony before
19 this Tribunal, and this is certainly the case of this specific witness.
20 The relief I ask with this specific witness is simply that we
21 continue with the evidence that is on the record and we move on to another
22 topic, and it's as simple as that. I ask for nothing more.
23 In support of this submission, however, it is important to go into
24 what exactly happened. I will not -- I will spare the Trial Chamber going
25 into the exact contents of the witness's answer, but we do have one answer
1 of the witness at page 64, lines 11 to 17. We have a second answer of the
2 witness at page 66, lines 14 to 21, and we have the statement of the
3 witness which is before the witness, and in all three cases the evidence
4 that is provided by this witness is consistent that he did not see Drago
5 Nikolic. Nowhere does it say that he saw Drago Nikolic at Rocevic school
6 on that day.
7 In this sense, Mr. President, we simply say that it is completely
8 inappropriate to try and go back to a meeting that took place last week,
9 but I need to answer to elaborate as to why it is improper to go back to
10 this meeting.
11 This meeting, Mr. President, was triggered by the Defence. As we
12 normally do for witnesses whom we like to try and get some clarification
13 from, we send a letter to the Prosecution, and we ask the Prosecution
14 please show the letter to the witness, there are issues that we would like
15 to share with them before their testimony to make things easier for all
16 parties in the courtroom, and we simply ask that the letter be shown to
17 the witness, and the witness decides whether he wants to meet with the
18 Defence or not. Most of the time witnesses will -- will decide to meet
19 with the Defence and to discuss the questions that we have. Sometimes it
20 does happen, like it happened one -- in one case earlier in this case,
21 where a witness refuse, and that was raised in the cross-examination which
22 I conducted on behalf of the client.
23 In this specific case, Mr. President, I selected -- I asked the
24 Prosecution that the letter be shown to the witness. It was, and the
25 witness accepted to meet with the Defence. The meeting took place at my
1 request. I said I'd like to meet the witness alone, and I met the witness
2 with my colleague, and we ask -- we put some questions to this witness.
3 On the basis of the statement which is now before the Trial
4 Chamber, which says that, and I can quote, it says that Drago Nikolic --
5 maybe I should quote just for the sake of completeness. From the
6 statement it is mentioned, and I'll quote from paragraph 10 of the witness
7 statement where it says: I performed my duties at the check point until
8 approximately 18.00 hours. During this time --"
9 JUDGE KWON: Could you hold on a minute so that we can have the
10 statement in front us.
11 MR. BOURGON: By all means, Mr. President. I will be referring to
12 the statement during cross-examination anyway so I don't mind the Trial
13 Chamber being aware of the information that is there.
14 JUDGE KWON: You refer to --
15 MR. BOURGON: Paragraph 10 of the statement, and that is 3D97.
16 May I proceed, Your Honour?
17 JUDGE KWON: Yes. At paragraph 10, yes.
18 MR. BOURGON: On the basis of paragraph 10 which states during
19 this time the security officers from the Zvornik Brigade Drago Nikolic and
20 Trbic and then first name is either Milorad or Milan came through the
21 check-point and where they were travelling from and the rest. On the
22 basis of this sentence my first question to the witness when I met with
23 him was did you see the car, can you tell me the car looked like. He
24 says, I don't remember the car. I asked him, did you look into the car.
25 Said, no, I didn't look into the car. I said, did you speak to anyone in
1 the car. Said, no, I did not speak to anybody in the car. I said, thank
2 you very much, this is what I will try to get from you on the stand, and
3 that was the end of the meeting, after which I clarified one more issue
4 with him which was where exactly was Sepak border and how he could get a
5 phone call from the brigade because there's no communication between
6 standard, the command of the Zvornik Brigade and this Sepak border. The
7 meeting was very casual and everything went fine, and we were about to
8 leave in less than half an hour.
9 We left the place. The Prosecution then immediately, and I say
10 immediately, in the minutes that followed, met with the witness and this
11 gave rise to the information report that I will now put before you, which
12 is 3D102.
13 If we can zoom in to the last paragraph, and the Trial Chamber may
14 look at the first paragraph and say that this is the context and I agree
15 with the way the context is depicted in this paragraph. And where it says
16 in the paragraph 2 it confirms that we were there for approximately 30
17 minutes. Probably a bit less.
18 JUDGE KWON: We should not broadcast this.
19 MR. BOURGON: No, not broadcast. And the witness was asked by the
20 Defence -- if the Defence treated him well, and he confirmed it.
21 Now, at this point in time questions were put to the witness in
22 terms of what was discussed with the Defence. Did the witness -- did the
23 Defence bring anything up that I should be aware about, and the witness
24 mentioned, and you can see what is written there, and the witness confirm
25 exactly that the Defence, whether he remembered anything important about
1 Nikolic Drago, and he answered that they asked him about his presence at
2 the check-point, when Nikolic and Trbic passed, pertaining to paragraph
3 10, and particularly whether he approached the car with the security
4 personnel when it passed and (redacted) denied to the
5 Defence that he approached the car and that was paragraph 10 of his
7 Now, up until that point everything is okay. The Prosecution
8 asked to say, what did you discuss with the Defence? We believe that it
9 is improper for a party to ask what they discussed with another party.
10 For example, I would never, when I meet a witness in these circumstances,
11 I would never even attempt to ask, what did you discuss with the
12 Prosecution? And if you ask this witness here if that would be required
13 and to what happened at the meeting, he would tell you that the first
14 thing I mentioned to him was whatever you said to the Prosecution is none
15 of my business. I have my own question, and I have only very few
16 questions, and then we went into the car and that was it.
17 So the first thing we believe it was inappropriate for the
18 Prosecution to ask what discussed with the Defence. That's the first
19 issue. The second issue, and where it gets complicated, is that when
20 Prosecution was inform of this, two things happened, or, rather, three
21 things happened.
22 First, the witness confirmed that -- sorry. I read from -- I read
23 from lines one, two, three, four, five, six, seven, eight -- or seven. It
24 says paragraph 10 of his November statement was read back to him in which
25 he states that Nikolic and Trbic came through the check-point. And then
1 the witness was asked whether this statement was truthful, and the witness
2 said yes, it is.
3 Again, no problem. He is again saying exactly the same thing that
4 is in his statement. What he told the Defence is the same thing. But of
5 course the Prosecution is not satisfied with this answer. They want him
6 to have seen my client.
7 So what happens then, if you look at the last line -- now, this
8 document was drafted, by the way, by the Prosecution. You look at the
9 last line where it says the Prosecution told the witness on several
10 occasions during the conversation that he should remember to tell the
11 truth when on witness stand. Then of course he asked, "Did you see him?"
12 "Yes, I did," and the witness is shaking because he's being contradicted
13 and he is being pressured by the Prosecution telling him you have to tell
14 the truth on the stand many times. There was no problem until then.
15 After this, what happened is we were served with this document in
16 which it explains the situation, in which it says that the witness was
17 nervous when he met us, which is absolutely untrue. And you can ask the
18 witness. The meeting was very casual and very short. There was no
20 The only -- the only thing about being nervous in this case is the
21 witness being pressured by the Prosecution, knowing that he's about to say
22 something that is favourable to the Defence. The Prosecution is
23 pressuring him by saying that he has to tell the truth and by saying -- by
24 showing him a statement which does not even say that he saw my client, and
25 then he said you better tell the truth.
1 Once we were served with this document the next day, we asked to
2 meet with the Prosecution simply to resolve the matter in a -- hopefully
3 in a friendly manner, and we did have a meeting, and that was my colleague
4 and myself. We met with Mr. McCloskey and his colleague, and we simply
5 discussed. We said, Listen, this is going to be a long trial. We're
6 going meet witnesses. We believe that it is improper that you ask the
7 witness after I see him what I discussed with him. I would never do that.
8 We were informed that this was absolutely normal and that for them this
9 was a normal procedure, that they are able to ask any questions about
10 anything that the witness might have discussed with the Defence.
11 We believe, Mr. President, that this is -- is inappropriate. This
12 is really placing witnesses in a very difficult situation.
13 In my opening brief to this case, I explained to the Trial
14 Chamber, and I gave examples, of witnesses being met by the Prosecution in
15 which they are pushed in terms of saying, "You have to tell the truth.
16 You have to tell the truth." I don't have the references to my opening
17 brief, but there were names of witnesses there and persons that did
18 interview these witnesses and that put pressure on them when the answers
19 they get are not what they would like to have.
20 Now, in a case like this, Mr. President, the witness shows up on
21 the stand after all this debate. We agree to disagree that of course now
22 I know now that whatever I ask to a witness the Prosecution will
23 immediately jump on the same witness and try to say, "What did you discuss
24 with the Defence? What did we miss in our case? Because we miss our
25 documents on the Rule 65 ter list, but that -- we're allowed to do that.
1 So we're going to jump on the witness and ask him the witness what he
2 discussed with the Defence."
3 Now, the witness shows up and begins to testify before a Trial
4 Chamber. There is no difficulty. He answers quite honestly to the
5 Prosecution, and he repeats what he said to me, what is in his statement,
6 and there is no problem. We get to the issue where it is improper for the
7 Prosecution at that point in time to say, "We met in your office and you
8 said differently." Because when the witness met differently -- there are
9 three things he said differently because he was pressured to say
10 differently. He said differently we have a document before you that is
11 unsigned that does not constitute a statement, and the question has
12 already been answered, and the fact that the answer is different would
13 amount to cross-examination, even more than cross-examination. It is
14 really saying, you're not telling the truth. Well, if the Prosecution
15 wants to say you're not telling the truth, then they have to declare the
16 witness hostile to their case.
17 Now, it hasn't happened yet. He hasn't said that he has not said
18 the truth, but he cannot put that question without first going through the
19 motion of saying I'm telling you you're not telling the truth and I ask
20 the Trial Chamber to declare you hostile to my case. In such a situation
21 he can put the questions he wants to the witness. Other than that, the
22 evidence is on the record, and we should move on.
23 Thank you very much, Mr. President.
24 JUDGE KWON: A couple of questions, Mr. Bourgon. The first one
25 will be as to whether a party can cross-examine its own witness. You are
1 of course of the view that that should not be allowed.
2 MR. BOURGON: Indeed, Mr. President. And I have read your dissent
3 in the Milosevic case that in your own personal capacity as a Judge you
4 believe a party should be able to cross-examine a witness. I'm aware of
5 your position; however, as I stand here trying to protect the rights of my
6 client, my position is that, no, a party cannot cross-examine its own
7 witness because this is not what the Rules say for. This is not the
8 practice of this Tribunal, and this is not whatever it is in continental
9 law system or common law system, it is not proper for a party to
10 cross-examine its own witnesses. But as I've mentioned, there are
12 One of these exceptions is when the witness is not being truthful
13 to have him declared hostile, which is a completely different -- different
14 approach to -- to a witness, because then the Trial Chamber must take into
15 account that what will happen then, there is a relationship between the
16 witness already is believed to be not credible.
17 Now, I would add that, Mr. President, on this issue that with
18 respect to cross-examination, when I will cross-examine this witness I
19 will also highlight the fact, and this is probably my -- the thing I
20 understand -- I have the most trouble understanding. This witness is
21 contradicted by plenty of Prosecution evidence that was disclosed to us.
22 I will go through every piece of it during my cross-examination. I will
23 show in my cross-examination, and I'm not going to -- we're in public
24 session now so I'm not going to get into this, but I will refer to
25 Prosecution evidence both on the record and Prosecution evidence that is
1 intended to be on the record which show that Drago Nikolic, my client, was
2 not in Rocevic school on that day and now they insist on putting pressure
3 to a witness, a witness by the way who has been here now for 15 days and
4 has -- really, he has had it and he wants to go home, and we're going to
5 put pressure on this witness to get evidence that is contradicted by their
6 own case. Their own case, Mr. President.
7 We have evidence that will show and now we have an expert witness,
8 we've received a report which shows that Drago Nikolic was on duty at that
9 specific moment at the headquarters. And I will say that to the witness,
10 and the witness of course will say, "I don't know." So why is it that we
11 are putting pressure on a witness to get a piece of evidence that is not
12 even a critical piece of evidence that just contradicts the Prosecution's
13 own case?
14 When I talk about the practices of the Prosecution, this is what
15 I'm referring to, Mr. President.
16 JUDGE KWON: Thank you. My second question won't be necessary.
17 JUDGE PROST: Mr. Bourgon, I'd like you to address the law on the
18 question of having a witness declared hostile. Do you agree with the
19 submission from the Prosecution as to the procedure, as to the test? Can
20 you submit on that? Mr. Nicholls made some submissions and made reference
21 to the Limaj case as to the procedure and to the determination, and in
22 particular, can it be previously oral statements as well as written
23 statements which can form the basis for the declaration?
24 MR. BOURGON: In this case, Judge, I will simply answer that I've
25 read that -- that decision in that case, and that was Judge Parker, and
1 Judge Parker is a Judge who, in my humble opinion, is very well aware of
2 the issue of hostile witnesses, and I believe that the test that he
3 articulated then is the right test.
4 Now, this test has to be that the decision for a witness to be
5 declared hostile, the decision, of course, belongs to the Trial Chamber,
6 but there has to be an application for this purpose. The application must
7 be made by the party leading the witness -- or the party, sorry, calling
8 the witness. In this case, the Prosecution is calling this witness before
9 they have to make an application and explain why they want to have the
10 witness declared hostile.
11 In this case, I can tell you very openly that if the Prosecution
12 would even ask to get the witness declared hostile, I would say, On what
13 basis? What is the basis? What basis do you have to have the witness
14 declared hostile when the witness has his statement, is saying something
15 that is consistent with the statement, and has given two answers which are
16 uncontradicted by anything?
17 So I would object to the Prosecution saying, you and me met in my
18 office last week and on this basis I would like to declare you hostile,
19 because he's not telling the truth. Because everything else he's done up
20 to now when he met with the investigators, that was untruthful. When he
21 met with the Defence, that was untruthful. What he said today on the
22 stand, that was untruthful. I don't think there would be any basis for
23 that to allow to get into evidence that took place in the office. And, of
24 course, I would explain and ask the party, the Prosecution in this case,
25 explain to the Trial Chamber what is it -- why is it that they believe
1 that the answer in the office is being untruthful? And I would say that
2 when the Trial Chamber would look at all this material and look at the
3 context in which this pressurised -- the witness is being pressurised into
4 saying, Yes, I did see him. I would say that this should not be put to
5 the witness. It is unfair, not only to the proceedings, but is also not
6 the right procedure for witnesses.
7 We go at -- you know, we really spend lots of attention trying to
8 care for witnesses. What this witness -- the situation he's being placed
9 in, that is improper. It is not right for the Prosecution to do this.
10 Thank you.
11 JUDGE KWON: Thank you. Before I request Mr. Nicholls to respond
12 to this, but I think at this point of time there would be no point for the
13 witness to wait for the hearing, so we can fairly let the witness go to
14 the hotel and rest.
15 Mr. Nicholls.
16 MR. BOURGON: Thank you, Mr. President.
17 JUDGE KWON: Thank you, Mr. Bourgon.
18 Mr. Nicholls.
19 MR. NICHOLLS: Thank you, Your Honour. We, as Mr. Bourgon said,
20 generally, whenever the Defence -- when they've come here and they've
21 asked to meet a witness --
22 JUDGE KWON: Excuse me a minute. How about bringing in the
23 witness again and giving him a warning not to contact anybody else.
24 MR. NICHOLLS: Thank you, Your Honour.
25 JUDGE KWON: I think that's safe.
1 MR. NICHOLLS: Thank you.
2 JUDGE KWON: Given the time spent for the procedural matters, I
3 would expect the parties to try to finish this witness tomorrow.
4 [The witness takes the stand]
5 MR. BOURGON: Mr. President, before the witness puts his earphones
6 on, can we reassure him this has nothing to do with him personally at this
7 stage. Thank you, Mr. President.
8 JUDGE KWON: Thank you.
9 We are in open session, yes?
10 Mr. Witness, I apologise to you for having kept you for long
11 outside. We had to deal with some procedural matters, nothing to do with
12 you personally, and things seem to be that we are not in the position to
13 hear your evidence today. So -- so the hearing will be continued a little
14 bit further without your -- without your presence, so I would like you to
15 come again to the courtroom tomorrow morning at 9.00. But in the
16 meantime, could you bear in mind that you are not supposed to contact
17 other people and discuss the -- discuss in relation to your evidence. Do
18 you understand that? Thank you. Have a nice day, and see you tomorrow.
19 THE WITNESS: [Interpretation] Yes, I understand that.
20 JUDGE KWON: Now -- you may go now.
21 [The witness stands down]
22 JUDGE KWON: Yes. Let's proceed.
23 Mr. Nicholls.
24 MR. NICHOLLS: Thank you, Your Honours.
25 First of all, I'll try to respond to all of Mr. Bourgon's points
1 other than the last part about what he will do on cross-examination, which
2 I think completely irrelevant at this stage.
3 As he has said, we helped him to meet with this witness and to
4 have a conversation with the witness. The witness told me first that he
5 did not want to meet with the Defence. He told me he had refused to meet
6 with them when they approached him in Zvornik, but we gave the letter to
7 the witness, and the witness agreed to meet with the Defence, and that's
8 fine. And we tried to help to do that.
9 The witness then met with the Defence for about half an hour, and
10 following that I asked the witness, "Everything okay?" As Mr. Bourgon
11 says, he said, "Yes, it is." And the question I asked him, Mr. Bourgon is
12 inaccurate in conveying this as a process where we ask the witness, "Tell
13 me everything that the Defence lawyers asked you. Tell me what your
14 answers are. Give me a verbal transcript of what just happened." I don't
15 think there's anything wrong with that. I think that would be permissible
16 to ask what was discussed. There was nothing cited, no rule, no ethics
17 code which would say that that was impermissible. And honestly, the only
18 thing I could find on point at all was from the Canadian military
19 prosecutor's office, which is where I always turn when I have large
20 ethical issues, and there -- and I'm sure that my colleague does, and
21 they've got a directive which I think is clear, which states that there's
22 no property in a witness. And they -- the directive to the prosecutors'
23 in the Jag is anything you say to the witness, he can discuss your
24 theories of the case, your ideas, scheduling, anything. It's perfectly
25 fine for him to discuss that matter with lawyers for the other party. And
1 the reverse is true. There is no property in the witness and it's fine
2 for me to talk to the witness. And there's obviously no privilege either.
3 It's not a situation where there is any privilege of a Defence attorney
4 talking to a witness.
5 Now, in this case with with my investigator present what I in fact
6 asked the once was you've just met with counsel, Defence counsel, have you
7 remembered anything else that you think it's important to tell me, and
8 that point the witness said to me, yeah, I just remembered that I didn't
9 see him, Drago Nikolic, that day. And at that point, as counsel says,
10 it's in the information report, I read him the paragraph of his statement
11 which talks -- which you have seen, paragraph 10 of Drago Nikolic going
12 through the school.
13 And the reason is the witness this reviewed that document before
14 coming here, said it was all correct, made one correction to the statement
15 in which he talked about not seeing somebody else that is spoken of of the
16 statement, and he said I just want to clarify I didn't see person X in
17 paragraph 12. He left alone paragraph 10 completely. And I'd say the
18 plain meaning when you read that statement he's on duty at the check-point
19 and these people came through. He saw them.
20 So I then asked him, did you or did you not see Drago Nikolic at
21 the check-point? And he said, "I saw him." That's it. That's where we
22 are. And I don't think there was anything impermissible or unethical in
23 those questions. And it's important. There's been a lot of discussion on
24 the other side about ambush. We don't want a trial by ambush. We need to
25 know everything, and that's a two-way street when it comes to witnesses.
1 He doesn't -- they don't need to give me their notes. They don't take
2 statements, they don't give any information before the witness comes
3 before cross-examination but before meeting with the witness I can meet
4 with the witness I believe if that meeting triggered anything that he
5 remembered that he thinks is important.
6 What I really object to, my friend was not at that meeting, and
7 he's talked about all this pressure being put on the witness, and that's
8 just not true. There wasn't any pressure put on the witness. We asked
9 him a question about that, and I did tell him it was important to tell the
10 truth when he testified on the stand. I did tell it to him a couple of
11 times, and that was because essentially what the witness told me was what
12 he had said to counsel wasn't accurate. And I did ask him, "Why did
13 you -- are you nervous? What's going on?" And he said yes I am a bit
14 nervous and he said where he was from. He didn't say he was nervous from
15 what counsel had done. I'm not implying that. He didn't imply that. He
16 just said he's nervous talking about this topic because of where he's
18 The question about him being here for a long time, that's true.
19 The witness has been here for a while, but that is something that we asked
20 the witness in advance. We said to him, "Look, we can either reschedule
21 you or you can come but you may be here waiting around a little bit longer
22 than we would like," and the witness made the decision that it would be
23 less disruptive to his life and his career if he just came and got it over
24 with rather than being postponed again.
25 So we do facilitate these meetings. It's okay for us to ask if
1 the witness has remembered anything. We're just trying to get to the
2 truth here. And we do not pressure witnesses in that way. And I think
3 it's -- frankly I don't even understand the argument that telling the
4 witness it's important to tell the truth is somehow putting pressure.
5 Also, I want to note that I have not applied to have this witness
6 declared adverse. I prefer that term hostile, the old traditional term.
7 It doesn't mean the witness is hostile to me, hostile to anybody. What it
8 means is that he is edging away and parting from his statement.
9 What I am trying to do is ask the witness if he remembers what he
10 said to me and to my investigator last week and to give him the chance to
11 remember and think about it, what he saw that day, and answer that
13 Now, after that, whatever the answer may be, if I'm permitted to
14 do that, then I may go down the road of requesting to be able to
15 cross-examine him, and I think I would be able under all the relevant law
16 to form a basis for that, but that's slightly down the road.
17 That would be my submission at this time. And finally, Your
18 Honours -- sorry. Mr. Bourgon has said over and over again he told the
19 truth, he told the truth, he told the truth. That's up to you to decide,
20 not up to Mr. Bourgon.
21 JUDGE KWON: Do you have a reply, Mr. Bourgon?
22 MR. BOURGON: Very quickly, Mr. President. I leave the Trial
23 Chamber the document is there in terms of the paragraph which was written
24 by the Prosecution as to the context of what happened after the witness
25 met with the Defence and what the witness has said today, I leave that up
1 to the Trial Chamber.
2 I would simply reply to the fact that to me it is revealing. I
3 would simply answer to the fact that there is no property in a witness.
4 That's exactly the point that is important. The witness doesn't belong to
5 the Prosecution, and when the Prosecution meets with the witness after the
6 witness has met the Defence it is improper, in my view, to ask the witness
7 what was discussed. You belong to me. You tell me what was discussed,
8 because I'm calling you and you have to tell me what was discussed."
9 This was a way of having to avoid having the Defence even ask for
10 those meeting any more because I know every time I will ask for such a
11 meeting I know that the minute I will be out of the room they will be on
12 top of had him trying to find out what was discussed between me and the
14 My last point, Mr. President --
15 JUDGE KWON: Do you have any basis for that? Not from Canada.
16 MR. BOURGON: Basis for?
17 JUDGE KWON: Any jurisprudence as to the impropriety of the --
18 MR. BOURGON: To ask because I do not have any legal argument to
19 say that it is improper. To me it is unethical, but unethical because of
20 the pressure that is being placed on the witness.
21 Imagine yourself, Mr. President, being a witness. You come here
22 having made a statement. You meet with the Prosecution. And we have to
23 remember the context of this case and the fact of where the witness comes
24 from. Then the witness agrees to meet with the Defence and he gives an
25 answer which to him is quite normal. Then immediately after he's being
1 asked, "What did you tell them, because you have to tell the truth," and
2 not a couple of time but several time.
3 If that, Mr. President -- if the Trial Chamber feels that this is
4 a proper procedure and this is okay, I stand corrected, but I will say
5 that to me I find it unethical, which brings me last issue, which is the
6 most important issue, and that is to ask this question to the witness
7 tomorrow on the stand would be improper. It would be unfair, and it would
8 simply be harassment to a witness who is trying to do his job by coming
9 here and he's been here 15 days like my colleague said. It would be
10 improper to place him into such a position, because then I will call the
11 investigator who was sitting with the Prosecution, and then the
12 Prosecution will call my colleague who was there in that meeting and we
13 will get to the bottom of exactly what happened.
14 In my colleague said -- wanted to get something else on the
15 witness, then he should have gotten a written statement, and with a
16 written statement maybe he would have a basis to go into the hostile
17 witness procedure. Maybe. Even then I would argue that he was fresh
18 rising on the context that he saying he saw him even if he didn't see him.
19 And that's the most important thing. We're trying to get evidence that
20 the witness saw Drago Nikolic when the witness never said today or before
21 and there are other statements he provided before never said I saw him.
22 He said they came through and he repeated it -- he repeated it to the
23 Prosecution, they came through. He never said that he saw them. That is
24 the crux of the matter thank you, Mr. President.
25 JUDGE PROST: Mr. Bourgon, as a point of clarification are you
1 saying that the statement provided by Mr. Nicholls and captured in this
2 information note is false, not correct because Mr. Nicholls has made this
3 representation and it's captured in the note that he did in fact made that
4 statement, the witness made the statement that he saw Drago Nikolic to Mr.
5 Nicholls? Are you disputing that? That the essence of your last
7 MR. BOURGON: Judge, I think maybe I may not have been as clear as
8 I thought it was. I look at this information report. To me, one, this is
9 not a statement. It is an information report. It is information given to
10 the Defence as to information, and it describes a context.
11 Now, looking at this context and comparing it with the statement,
12 it is your decision, Judge, to decide whether it is proper to place the
13 witness in this context, reading this paragraph, reading his statement and
14 considering his evidence, whether it's proper to call him back in and say,
15 "Listen, I think you lied to the Prosecution" if the Trial Chamber thinks
16 this is the way to go ahead with the witness so be it and I stand
17 corrected. I think it would be improper considering the context of this
18 information report so if it was so important for the Prosecution that they
19 should have obtain a written statement and maybe we would be in a
20 different proceedings today and it wouldn't be how they acted with the
21 witnesses. Putting pressure on the witnesses especially in a case like
22 this. There are lots of witnesses in Zvornik. They are scared
23 unbelievable to come here. They believe that if they come here they will
24 end up in Sarajevo. We have to reassure them that if they come here and
25 say they say the truth and they are not involved in these events that they
1 will not end up in Sarajevo. That's very important. Thank you.
2 JUDGE PROST: Thank you.
3 MR. NICHOLLS: I just feel forced to respond again, Your Honours.
4 We did not put any pressure on the witness. We did not do anything
5 improper --
6 JUDGE KWON: That's clear.
7 MR. NICHOLLS: -- if he remembered something and my friend's last
8 comments I think cut both ways. If he believes the witnesses are scared
9 when they come here when they sit down with the Defence attorney who asks
10 him, "okay, I want to ask you what about this paragraph," that can also
11 explain perhaps the answer he gave to them and it's the difference from
12 what he told us. And just the last thing he keeps saying again and again
13 the statement says he didn't see them. I mean, the plain reading of most
14 statements if you say, "I was standing at the door, I saw -- I was
15 standing at the door, Fred came through," you don't necessarily say, "and
16 I saw him walk through the door on his feet." It's -- the plain meaning
17 is he was there. He said he was manning the check-point and Drago Nikolic
18 came through. This was levered possibly into, "oh, I didn't see him, I
19 just heard about it." That's why there's an issue to clear up. That's
20 why I asked the question, "Did you see him or did you not see him?" And
21 he said he saw him.
22 JUDGE KWON: Before we adjourn, Mr. Nicholls, can I ask you that
23 after having heard the witness saying that he had seen Mr. Nikolic there,
24 did you by any chance endeavour to pursue the -- to get the explanation as
25 to his inconsistency in his statement? Did you do that?
1 MR. NICHOLLS: No, Your Honour, other than just asking --
2 JUDGE KWON: You just stopped there.
3 MR. NICHOLLS: No. I said, "Were you nervous while you were
4 meeting" and he said, "Yes, you know, I'm nervous because of where I live
5 and being here," and that was -- I took that as the explanation.
6 JUDGE KWON: Thank you. In light of the time we will adjourn for
7 the day, and we'll give a ruling tomorrow morning, 9.00.
8 --- Whereupon the hearing adjourned at 1.44 p.m.,
9 to be reconvened on Wednesday, the 4th day
10 of April, 2007, at 9.00 a.m.