1 Friday, 14 December 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: Buenos dias. Call the case, please.
7 THE REGISTRAR: Good morning, Your Honours. This is case number
8 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
9 JUDGE AGIUS: Gracias, gracias. All the accused are here. From
10 the Defence teams, I notice the absence of Mr. Sarapa, who was supposed to
11 give us an answer today. He's still thinking about it. Mr. Bourgon is
12 also not present, and Mr. Meek. The Prosecution team is as was yesterday;
13 that's Mr. McCloskey and Mr. Thayer.
14 The witness is present in the courtroom.
15 Good morning to you, Colonel. Welcome back.
16 THE WITNESS: Good morning, sir.
17 JUDGE AGIUS: We are going to proceed with the
18 examination-in-chief, and then we'll see what happens after.
19 WITNESS: JOSEPH KINGORI [Resumed]
20 MR. THAYER: May I proceed, Mr. President?
21 JUDGE AGIUS: Yes.
22 MR. THAYER: Thank you, and good morning to you, Your Honours.
23 Good morning, everyone.
24 Examination by Mr. Thayer: [Continued]
25 Q. Good morning, Colonel.
1 A. Good morning, sir.
2 Q. When we left off yesterday, you were speaking about the men
3 boarding the buses in fear. You mentioned that you saw that they had to
4 discard all of their belongings. Do you recall whether or not that
5 included identification? And forgive me if I asked you this.
6 A. Your Honour, they left everything that they had. That included
7 their identification cards, the money that they had in their pockets, that
8 is, their wallets and whatever was inside there, and also they had luggage
9 that they were carrying that maybe included clothing and all that.
10 Q. You mentioned yesterday that you recognised at least one person
11 with whom you'd become familiar from your time in Srebrenica town.
12 Colonel, when these men were being placed on these buses, were you able to
13 make any effort to record their identities?
14 A. Yes, Your Honour, I did. I tried to record whatever I could get
15 concerning the identities, and at one point I could tell them to shout
16 their names to me so that I could write them as they were leaving, heading
17 towards the buses, but that failed because some of the names I could not
18 be able to write them properly, even when they shouted. But that was my
19 attempt to make sure that at least those who were going in, there's
20 someone who knows who they are. But I did not finish that process.
21 MR. THAYER: May we have 65 ter 512 on e-court, please.
22 To move things along, we can see this is a daily sitrep from UNMO
23 headquarters in Tuzla to BH Command UNMO in Sarajevo and Zagreb, and this
24 is for the 12th of July.
25 Q. Is that correct, sir?
1 A. That's correct, sir.
2 MR. THAYER: If we could turn to page 4 of the English, and that
3 will be page 5 of the B/C/S, please.
4 Q. Let's focus on paragraph 1 for a moment, Colonel, please.
5 A. Yes.
6 Q. There's a reference, second sentence: UNMO's assessed that there
7 are about 10.000 people inside and 20.000 people outside.
8 When this report states there are 10.000 people inside the
9 compound, what does that mean?
10 A. Your Honour, what this meant was that the number of refugees, if
11 we can use that word, because they were not in their normal places of
12 dwelling, inside the Dutch-Bat compound, inside the main hall, there were
13 about 5.000 or slightly over 5.000, and those who were around and within
14 that general compound could have been around 4.000 to 5.000. That is why
15 the figure, to us, came to about 10.000.
16 And for your information, the way we arrived at these figures is
17 the way these people were huddled together inside, in that you could see a
18 group of around 50, 60. Then you could calculate the groups and then come
19 to a round figure that can guide you, because we did not do the physical
20 checks, but according to the way we -- way we analysed the whole
21 situation, the number of people inside there were about 10.000.
22 Q. A little further down, paragraph 2, Colonel, there is a reference
23 to patients numbering more than 80. Do you know where these 80 patients
24 were coming from, sir?
25 A. Your Honour, some of these patients were referred to Dutch-Bat
1 compound because there was a hospital there by the MSF. Others just
2 brought themselves and they fell sick, some were sick, others were
3 injured, and that is how we got the identity of them inside the Dutch-Bat
5 Q. Do you recall what happened to the patients being treated in the
6 hospital in Srebrenica town?
7 A. Your Honour, in Srebrenica town, the treatment was -- they had
8 only one doctor, and the treatment could not have been that -- it had its
9 own limits, in that they did not have a proper surgical ward, and the
10 people to help, and that is the nurses, were not that many. So the
11 treatment was not as good or as advanced as it was in Dutch-Bat compound
12 because of the facilities.
13 Q. Well, do you recall whether or not the patients who were being
14 treated in the Srebrenica Hospital during the course of the attack were
15 ever moved out of the hospital at any time; and if so, where were they
17 A. Your Honour, they were. They were moved to the Dutch-Bat
18 compound, and in fact the last patients, I was in that team that brought
19 them over to Dutch-Bat hospital from Srebrenica Hospital.
20 Also, there are some that were taken direct to Bratunac Hospital,
21 together with some others who were in the Dutch-Bat compound, but that was
22 much later.
23 Q. Do you recall approximately how many patients were transferred
24 from the Srebrenica Hospital to the Dutch-Bat compound, Colonel?
25 A. Your Honour, I cannot recall the actual figure, only that the last
1 ones, there were about six. The last ones to be transferred were six, and
2 I was involved. I personally was there to get them out of Srebrenica
3 Hospital to Dutch-Bat compound, and I think that that was the last group.
4 Q. And if we could look at the very bottom of the page in English,
5 and that's going to be the bottom of page 6 in the B/C/S version, there's
6 a reference to:
7 "We had to dismantle the station as the BSA trooped into the
8 streets of Potocari and further spreading to take positions all around the
9 near vicinity of the Dutch-Bat compound."
10 What is this station that this person is referring to, sir?
11 A. This station was our communication station, that is, the UNMOs.
12 Hours after we entered the Dutch-Bat compound, we established it in -- in
13 a container outside the main -- the main building. And when these just
14 came all over the place, we feared they might either take our
15 communication equipment or interfere with communication, so we had to
16 dismantle and take them inside the main -- the main building where
17 Dutch-Bat were, where we thought maybe slightly more secure, because
18 outside in the container, it definitely was not as secure as inside there.
19 Q. Colonel, given the level of activities that you've testified you
20 were engaged in over these last couple of days, who was it that was
21 spending most of the time manning that communications station?
22 A. Your Honour, we would alternate between the three of us, that is,
23 myself, Major Tetteh and Major Andre De Haan. We would alternate.
24 Sometimes we could have me being there and then the others outside. One
25 could be at the -- with the refugees in the main -- in the main hall, the
1 other one outside the compound. That is where they were grouped, in the
2 outside compound, and along the streets. So we were spread thinly all
3 over, and one could be manning their station at one time or the other.
4 Q. Let's talk about July 13th, Colonel. Did you have occasion to
5 investigate any particular locations in Potocari that day?
6 A. Your Honour, on July the 13th, there was a report from some
7 Dutch-Bat soldiers that there were some civilians who were being taken --
8 some BiH civilians that were being taken -- that is, Muslims that were
9 being behind a certain building, and whenever they were taken behind
10 there, they never returned. And in the process, there could be heard some
11 shooting, and that shooting was a bit -- it was single-round shots; that
12 is, upon further investigation, that is what we were told. So I decided to
13 go -- to go behind there to go and check, and when I -- I tried my first
14 attempt, I was told by the BSA soldiers who were there that I cannot go
15 through, that I should not go in there.
16 So I went back, but I later insisted and tried to go in. I
17 managed to go slightly further, and I saw some soldiers -- some Muslim men
18 being taken -- I think one of them was being taken behind there. I
19 witnessed that. And they prevented me from going further, and they even
20 told me that if I tried to go further than that, they were going to shoot
21 me. So I had no choice other than to turn back.
22 And for your information, I heard a shot as I went back, so I did
23 not stay there long enough to see whether that person came out or not, but
24 for sure, I heard a gunshot.
25 Q. Now, using the building in which you saw the Muslim men being
1 crowded as a point of reference, can you describe the approximate location
2 of where this place that you've just been describing was?
3 A. Your Honour, the building was not very far from the -- the
4 vicinity of the Dutch-Bat compound. It was slightly towards -- as you
5 head towards Srebrenica village from Potocari, and somewhere -- somewhere
6 in between Dutch-Bat compound and where these -- the civilians were herded
7 outside, that is, the Muslims, where they were outside a factory there, it
8 was somewhere -- somewhere there. I can't recall the exact location, but
9 it's somewhere there.
10 Q. Colonel, did you leave Potocari at some point on the 13th of July?
11 A. I think I left Potocari the 13th. I really can't remember. I
12 can't remember very well, but -- I'm not very sure.
13 Q. Do you recall going to Srebrenica at some point during these
14 couple of days after the transportation of the civilian population began?
15 A. Your Honour, I do. I do remember one time we -- there's a time
16 that we went to pick those injured with an MSF lady, and in the process
17 we -- we saw what had been told to us, that the Bravo Company compound had
18 been shelled, and we saw -- I actually saw the crater, that is, you know,
19 where the place had been shelled, and we passed through, although you
20 could see -- you could not -- I could not have time to analyse the crater,
21 but at least I could see some blood spilled all over. And then we went to
22 Srebrenica itself.
23 I think this is the time that either we picked the sick or --
24 there was a lady who was -- who had refused to leave that -- that place,
25 and we persuaded, but I think this is the last time that we went to pick
1 the last sick people.
2 Q. Okay, and let me ask you a couple more questions about that
4 On the way to Srebrenica, was there anything that you recall
5 standing out in your mind about that trip to Srebrenica?
6 A. Your Honour, I -- I can't recall.
7 Q. Okay. And can you describe again, what exactly was the purpose,
8 as best as you can recall, for this trip to Srebrenica? Why were you
9 being asked to go there?
10 A. Your Honour, there are two issues here that are conflicting in my
11 mind. One of them was that of the -- these sick -- sick people who were
12 left in the hospital, and the other one is about a meeting that we were to
13 hold, called by Colonel Karremans, I think, to talk to the BiH. And I
14 can't remember which one it was, but I think there was a meeting called by
15 Colonel Karremans with the Muslim leaders there.
16 Q. Okay. Now, can you describe for the Trial Chamber what you did
17 when you arrived at the hospital in Srebrenica that day?
18 A. Your Honour, when I arrived at the hospital, the first thing I
19 noticed was that the whole place really was -- was in a mess, and the --
20 the sick, actually, there was no one who was taking proper care of them.
21 And the soldiers, the BSA soldiers, were all over. In fact, they were
22 looting. They were looting everything they could -- they could get.
23 And the sick, you know, they themselves did not know what would
24 happen to them, and in fact they did not care because they were -- they
25 were old and they seemed not to know what was happening or what should be
1 done about the whole situation. But the soldiers there were insistent.
2 You know, they wanted these people to be removed from the hospital, we go
3 with them, or they -- in their own words, they said, if you don't go with
4 them, they are going to shoot them, they are going to kill them. So that
5 was a bit -- a bit hostile, but that is what they said. So we had to go
6 with them. Otherwise, they could have eliminated them. I think that is
7 what is most outstanding.
8 Q. Did you return to Potocari that day?
9 A. Yes, Your Honour, I did.
10 Q. Do you recall seeing Major Nikolic in Potocari on the 13th of
12 A. Yes, Your Honour, he was there.
13 Q. What was he doing?
14 A. Major Nikolic came in to verify the -- mainly to verify the list
15 of the people who were in the Dutch-Bat compound with the one that he
16 had. His main reason was to check whether there were any Muslim soldiers
17 inside there, and also if they were there, you know, how did they get in
18 there, were they armed and did they have -- if they were injured, what
19 kind of injuries and where were they injured, all those things. That is
20 what we wanted to check, at least to confirm whether they are soldiers and
21 what they are doing there.
22 Q. Do you recall whether or not Major Nikolic was alone during this
24 A. Your Honour, I remember very well Major Nikolic was not alone. He
25 was with Colonel Vukovic and Colonel Drcic [Realtime transcript read in
1 error "Andric"]. And there were some others, but at least those I
2 remember very well were there.
3 Q. Okay. Let's look at 65 ter 514, please.
4 JUDGE KWON: Could you check whether "Colonel Andric" is correct?
5 MR. THAYER: Thank you, thank you, Your Honour. I just noticed
6 that. Thank you.
7 Q. Sir, the transcript indicates that you stated that Major Nikolic
8 was with Colonel Vukovic and Colonel Andric. Is that correct or -- or
9 not, "Andric"?
10 A. It's not correct, it's Colonel Drcic. I can spell if it's
12 Q. If you would, to the best of your recollection, sir?
13 A. I think the spelling was Delta-Romeo-India-Charlie-India-Sierra
14 [sic]. I think that's the spelling, "Drcic."
15 MR. THAYER: Thank you, Your Honour, for pointing that out.
16 Q. Sir, do you see a document in front of you?
17 A. Yes, Your Honour, I can see it.
18 Q. This is a sitrep update --
19 JUDGE AGIUS: One moment here.
20 Mr. Zivanovic.
21 MR. ZIVANOVIC: Sorry, I have not noticed this on the list of the
23 MR. THAYER: This is on the list. It's also been marked as 488.
24 It was marked twice. I think we indicated that on our list as well.
25 You'll see if you go to 488, it's also listed as 514. One of those
1 situations where it gets multiple numbers.
2 JUDGE AGIUS: Thank you. Let's proceed.
3 MR. THAYER:
4 Q. Sir, we're looking at a sitrep update at 0800 on the 13th of
5 July. I just want to turn your attention to two things.
6 At the very bottom of this report, it states:
7 "We tried to investigate the rumour that the Serbs should have
8 killed several men they took out of the crowd yesterday."
9 What is that referring to?
10 A. Your Honour, this is what I have alluded to you earlier, that
11 there were men who were being taken from the group and taken behind a
12 white building somewhere by there, and most of the time they -- I mean, in
13 fact, they never returned, so this is the people he's -- we are talking
14 about here.
15 Q. The sign-off line reads: "TA team, TL." You've already told us
16 what "TA" means. What does "TL" stands for?
17 A. "TL" stands for "Team Leader," and in this case this was Andre De
19 MR. THAYER: May we have 65 ter 515, and this has also been marked
20 as 489.
21 Q. Colonel, I just want to draw your attention to the "To" and"From"
22 line. We have a date here of 13th of July, 1100 hours, sitrep update.
23 The "From" is "TA," the "To" is "TX." What does that stand for?
24 A. "To," that is, "TX," stands for another team. I can't remember
25 whose team that was, but it was the code name for another team. And of
1 course "Tango Alpha," you know, it was Team Srebrenica. So in this case,
2 it used to happen that sometimes you're sending the sitrep to your
3 headquarters, and due to communication problems, it does not reach. You
4 may even try a second time and it does not go through, so you may opt to
5 transmit through another team site who maybe will be able to re-transmit
6 the same to your headquarters. That is what used to happen in normal
8 Q. Turning your attention to paragraph 4, in particular paragraph
9 4(a), which reads:
10 "The number of departed refugees is about 10.000 by now."
11 Do you recall how that figure was arrived at?
12 A. Your Honour, this was in accordance with -- with the number of
13 buses that had departed. We were calculating the capacities of the buses
14 and their number, and then we calculated and found that the figure was
15 around 10.000 people who had departed by that time.
16 Q. Before we leave this document, just a couple of other questions.
17 If we go down to paragraph 6, and this will be on both versions,
18 we'll be looking at paragraphs 6 and 7. Paragraph 6 refers to 50 babies
19 being delivered, one woman dying and being buried on the compound, and
20 another woman and a baby dying on a convoy to Tuzla. Do you have any
21 personal recollection of any of these events, sir?
22 A. Yes, Your Honour. At least I know about the 50 babies being
23 delivered inside there, in that even the ones who were assisting were
24 mainly the Dutch-Bat women who were assisting in these deliveries. Others
25 were being done by the normal -- by the Muslims themselves. And I was
1 witness to some of this, but at least I could see the kids immediately
3 Now, for the woman who died, she died inside the compound, inside
4 there, and we were -- we were there. And she was taken out and buried. I
5 think she was buried behind -- behind the factory. I cannot recall very
6 well, but she was buried there. At least I know about that situation.
7 Q. Let me just follow up with one question on that, Colonel.
8 Is it your recollection that she was buried within the confines of
9 the Dutch-Bat compound or somewhere outside the confines of the Dutch-Bat
10 compound, just for clarification?
11 A. I know it was behind the factory, but I cannot recall very clearly
12 whether it was inside the compound or just slightly outside. That, I'm
13 not very sure of.
14 Q. And when you refer to "factory," you're referring to the main
15 building on the Dutch-Bat compound that was formally a battery factory; is
16 that what you're referring to?
17 A. Correct, Your Honour, that is what I'm referring to.
18 Q. Okay. I'm sorry, I interrupted you.
19 A. Now, the woman and a baby who died, this was communicated to us by
20 the escort group, the Dutch-Bat guys who escorted these refugees out of
21 Srebrenica, so they're the ones who told us about the death of one woman
22 and a baby.
23 Q. Now, looking at the next paragraph, number 7, it reports that
24 Colonel Acamovic is the special representative of General Mladic who -- I
25 presume that reads "is taking care of the operation from now on." Who was
1 Colonel Acamovic, sir? Did you meet him? Do you know what this refers
3 A. Your Honour, this is someone I had met before, and he was present
4 in most of the occasions, and he introduced himself as someone who was
5 being appointed by General Mladic to take over all the operations inside
6 the enclave now from General Mladic. He was like a special representative
7 of the general.
8 Q. And do you recall what, if any, activities in particular you
9 observed this Colonel Acamovic being involved in during this period?
10 A. Your Honour, the -- the whole evacuation process was done in
11 his -- in his presence, and also these other side issues, like that of
12 taking some -- some men behind the building and shot or killed, all that
13 was happening in his reign, and also the whole process until we left the
14 enclave, all the way until the end of our journey from the enclave, I
15 think he was the one in charge. So there were so many things which
16 happened. Some of those are the ones I've told you, and also even the --
17 the separation of the men from the women, obviously he was -- he was still
18 there, he was in charge.
19 MR. THAYER: Let's look at 65 ter 516, please.
20 We're looking at what's headed as a sitrep update and "answer to
21 your questions," 1715 hours on the 13th.
22 Q. Do you see that, Colonel?
23 A. Yes, Your Honour, I see it.
24 Q. Just drawing your attention to paragraph 2(c), where it states
1 "Colonel Acamovic is the logistics officer of the staff of General
2 Mladic. He looks like a reasonable person, in the age of about 50 years
3 old. The talks with him were very friendly and understanding. Sorry we
4 don't have more on him."
5 Do you know what the source of this information was, sir?
6 A. Yes, Your Honour. I talked to -- I remember talking to a guy who
7 introduced himself as the -- as the legal officer, and he's the one who
8 told me that Colonel Acamovic is actually a logistics officer in the staff
9 headquarters of General Mladic.
10 Also -- we were getting this information also from the normal
11 people that we were dealing with, that is, Major Nikolic and Mr. Petar.
12 At least there were several sources of getting this information. So for
13 sure we had reason to believe that he was a logistics officer.
14 MR. THAYER: And let's look at 65 ter 517, please.
15 Q. Looking at a sitrep update. The date is the 13th of July, 2045
16 hours. Just turning your attention to paragraph 1, where it states:
17 "All the refugees are on the move now. Also the compound is
18 abandoned from refugees."
19 Two sentences later, it reports that an UNMO patrol escorted MSF
20 to rescue six more old sick women from the hospital and psychiatric clinic
21 in Srebrenica town. What is this referring to, sir?
22 A. Your Honour, this is referring to the actual situation on the
23 ground at that particular moment, in that in the Dutch-Bat compound, they
24 only have 59 who were -- who were left, that is, the patients, and they
25 were just waiting for transport to -- to go, and these -- look at it from
1 a scenario whereby you had around 10.000 people who were inside and then
2 you were left with only 59, so it was quite a big change.
3 Now, the other sick -- the six who were in the psychiatric ward in
4 the Srebrenica Hospital are the ones we went to pick with the MSF team.
5 Q. Moving down this document, sir, do you see where paragraph 2
7 A. Yes, I do.
8 Q. It reads:
9 "The UNHCR convoy came in as the last refugees went out (what an
10 expert timing)."
11 What is this referring to, Colonel?
12 A. Your Honour, this is referring to, I think, the fact that the
13 UNHCR convoy is supposed to have come earlier to come and serve the people
14 who -- who were in there, but somehow it just came in when the last
15 refugees were leaving. So it's a bit -- looks a bit cynical, but what it
16 means is that that timing, why could it have -- why couldn't it have been
17 better? Why couldn't they have come slightly earlier so that at least
18 they can assist the refugees before they leave, because essentially that
19 is what they were supposed to do.
20 Q. Moving a little further into the paragraph, Colonel, it describes
21 the condition of the compound, does it not?
22 A. Your Honour, it does.
23 Q. Beginning at paragraph 3, it reads:
24 "Tears were in our eyes when seeing the desperate displaced
25 persons with no secure future, looking at us and seeking for help we
1 cannot give them. We really lost this enclave and our heads. We feel
2 very sad that we were not able to do more. Only regards remain in this
4 Colonel, who wrote these words; do you recall?
5 A. Now, of course anything written by the team is us, we are the ones
6 who wrote, but these particular words were written by Major De Haan, but
7 actually it's us as a team. What this explains is the actual feeling that
8 we had inside there at that particular moment, in that you see the
9 displaced people, people who you've come here to ensure their security is
10 guaranteed, people you had stayed with for about three months or so,
11 people who thought you were the only source of their security and safety,
12 people who thought that you could be heard in the process of ensuring that
13 they are secure, but now they have been left alone, on their own. They
14 have been left to be harassed by the BSA, to be removed from where they
15 claimed was their place. As far as they knew, that was their place. So
16 you could see the way these people were feeling and the way on our side,
17 also, as people who were entrusted in the safety and security of these
18 people, being unable to ensure it, due to various reasons, and the
19 desperation was everywhere. Even on our own side, we were desperate. We
20 were thinking, why did we fail, why were we unable to contain this
22 Your Honour, when I say "we," in fact we're also referring to the
23 whole UN system, so why, how come we could not ensure the security and
24 safety of this enclave which was actually called "a safe area"?
25 So that feeling and the realisation that this is actually the end,
1 because the last people are about to leave the enclave, really could have,
2 you know, driven someone to write such things. In fact, we were a bit --
3 he was -- we were a bit diplomatic, we were trying to be a bit diplomatic,
4 but let me tell you for sure: If you are in a similar situation, it's --
5 it's okay now that we are not in the same situation, but, Your Honour,
6 this was a very sad moment. This was a very sad moment for all of us in
7 that enclave.
8 Q. Now, that brings us to the 14th of July, Colonel. The civilian
9 population has been moved out. Who remained, other than Dutch-Bat and
10 UNPROFOR staff and employees?
11 A. Your Honour, the wounded also remained behind, the wounded,
12 together with us and the -- the employees.
13 Q. Do you recall what the issues or concerns were that occupied you
14 over the next few days after that?
15 A. Now, one of the major issues was our final evacuation from the --
16 from the enclave; that is, we, as the UNPROFOR, that is, the Dutch-Bat and
17 us, and also the -- the sick, the injured, were with us, and the civilian
18 employees. So we were very concerned about how we will exit that place,
19 how safe will it be.
20 Also, we were being told by the -- our headquarters that we should
21 persuade the BSA to let us continue staying there to observe the situation
22 in that area, and there was a lot of resistance from the BSA side in
23 allowing us to continue, because their headquarters was insisting that we
24 should remain as observers there, there should be a post, that we should
25 remain there, so we tried to persuade them and they said, no, they cannot
1 allow. And especially when it became apparent that if an UNMO team would
2 be left there, maybe ours would have to be rotated, they feel they cannot
3 have another team which they do not know.
4 So those were our major -- our major concerns at that particular
6 MR. THAYER: Let's look at 65 ter 519, sir.
7 Q. We're looking at a sitrep update, 14 July, 1420 hours. I'd like
8 to focus your attention on paragraph 5, Colonel.
9 A. Okay.
10 Q. I just want to ask you some questions about some of the wounded or
11 injured or sick that are described in the second half of this paragraph,
12 which begins with: "Because of the delay, one of the patients suffering
13 from diabetes is in a very bad condition now."
14 Do you see that?
15 A. Yes, I do.
16 Q. There's a description of two patients who died, another patient
17 who the doctors think may die, and one wounded Muslim soldier who
18 attempted to hang himself. Do you have any personal recollection of any
19 of these patients, sir?
20 A. Yes, I do.
21 Your Honour, these -- these sick people who were inside there
22 became our main concern, and some were because they were the most
23 critical. We were looking at them as our major -- our major concern, so
24 when their condition, especially of these -- these two started
25 deteriorating, we were all involved, the doctors, we as observers, the,
1 you know, Dutch-Bat team also. We were all getting concerned, and the
2 death of, I think, these two also, you know -- we could not believe
3 because we thought these are people who can be saved. But unfortunately,
4 they could not be saved at all.
5 Then the diabetic one, that one, we had no proper treatment for --
6 for him, and in fact we were -- we wanted him to be transferred to
7 Bratunac Hospital because we had no proper treatment for him. We were
8 just -- the doctors were just trying to keep him on for a while, but, you
9 know -- and we were hoping always that he is going to -- to remain, he's
10 not going to die.
11 Now, on the -- on the one who tried to hang himself, this is
12 someone that I actually met after he was saved by the Dutch-Bat people.
13 He was -- he was actually just about to kill himself, and he felt, now
14 that the enclave was being taken over, he would be found by Major Nikolic
15 and he would definitely be killed. Not by him; I mean he would definitely
16 be taken over. And he thought the best thing was to kill himself. He
17 attempted, but luckily or otherwise, he failed.
18 Q. Do you recall whether or not he had already been identified by
19 Major Nikolic at the time he made the decision to try to take his own
21 A. Yes, Your Honour, he had been identified by Major Nikolic as one
22 of the soldiers.
23 Q. Let's look at paragraph 7. It reports that:
24 "We also hear some shooting from the area of Bratunac. We again
25 can investigate what is going on over there. Because the men were taken
1 in separate buses, we fear for the worse."
2 Again, "ROM." What does that refer to again, "ROM"?
3 A. Your Honour, "ROM" stands for "Restriction of movement." The
4 other side of it is the freedom of movement, which is the "FOM."
5 So in this case, what we are trying to say is that in Potocari, we
6 could hear shooting coming from the direction of Bratunac, at least we can
7 be able to know the direction, because Bratunac was not too far from
8 Potocari, so we could -- we could know it was coming from there. And
9 because the men had been taken towards that direction, you know, it
10 occurred to our minds that maybe something is happening to them, maybe
11 something wrong, maybe some shooting, maybe they are being killed, but we
12 could not be able to confirm this because we could not move to that area.
13 It was our duty to go and investigate, to go and see what is happening,
14 but we had a restriction of movement, and, as such, we could not go there.
15 Q. Are you able to describe the shooting that you did hear?
16 A. Your Honour, it's -- it's a bit difficult to describe it, in that
17 some, you could hear single shots, you could hear single shots, and at
18 other times you could hear a burst. But most of the time, it was -- it
19 was a single shot.
20 MR. THAYER: Let's look at 65 ter 521, please.
21 Q. Sir, we're looking at an UNMO, headquarters Tuzla, daily sitrep
22 for the 15th of July.
23 If we could turn to page 3 of both the English and the B/C/S,
24 please. And we'll be focusing on paragraph (c).
25 Do you see the section that reports that the BSA have confirmed
1 that they are holding a quantity of males in Bratunac and Srebrenica, they
2 have declared that the civilian males will be released soon and the ABiH
3 males will be held for the purpose of POWs."
4 Do you recall seeing that, Colonel?
5 A. Yes, Your Honour I do.
6 Q. Do you recall receiving this information, and if you do, who did
7 you receive it from?
8 A. Your Honour, this information came in two -- came in twofold.
9 That is, first and foremost, I was told by the -- by the legal officer or
10 the officer who introduced himself as the legal officer that the reason --
11 you know, when I asked him why they were holding men separately from the
12 women, he told me that they were doing that so that men can be transported
14 Later on, when I insisted, he said they are taking the men
15 separately so that if they find there's some soldiers therein, they
16 would -- they would be able to exchange them with their own prisoners of
17 war who were held by the other side, that is, by the Muslims. So he told
18 me that exactly the main reason why they are holding them. And for sure,
19 to them -- to him it made sense, in that if they have men they can hold as
20 prisoners of war and the others have theirs, they can just swap over.
21 Q. Now, as to this particular report on this day, sir, do you recall
22 from whom this information came?
23 A. For sure, I can't tell where -- where it came from, but these must
24 have come maybe from us. I'm not very sure, but it is possible, but I'm
25 not very sure.
1 Q. Well, I mean, I don't mean who was the source of the information
2 to Tuzla. I mean, other than this legal officer, who you've described
3 before, you said first and foremost you were told by this legal officer at
4 some other point, my question is: On the 15th of July, as reflected in
5 this report, Colonel, do you have any recollection of what the source of
6 this particular report was to you or your UNMO team?
7 A. I cannot recall that, sir.
8 Q. Okay. Now, you've -- you've already referred to efforts to
9 transport some wounded and injured from Potocari to the hospital in
10 Bratunac. Do you recall who was involved on the Serb or civilian or VRS
11 side with that effort?
12 A. From the -- the Serb side, I think we had Major Nikolic, and also
13 there was a civilian -- I think Civilian Affairs officer who was involved,
14 but I cannot remember his name very well. But there was a Civilian
15 Affairs officer and also Major Nikolic.
16 MR. THAYER: Okay, let's just look at a couple more documents. 65
17 ter 524, please.
18 Q. We're looking at a sitrep update, 2300 hours on the 17th of July,
19 from Team Srebrenica to TX, which you described as another UNMO team. I
20 want to focus your attention, sir, on paragraph 2, which is on page 1 of
21 both versions. It refers to a meeting -- actually, a second meeting in
22 which UNMO's DCO Dutch-Bat, Colonel Drcic, MSF and ICRC took part. What,
23 if anything, do you know about this meeting, and do you recall who Colonel
24 Drcic was?
25 A. Your Honour, this meeting was organised by the deputy commanding
1 officer of Dutch-Bat so that we could talk to the BSA side and agree on
2 how we were going to handle the -- the injured, the sick who were in the
3 Dutch-Bat compound. Our feeling was that they could be better handled in
4 Bratunac Hospital, so we wanted to discuss it with them so that -- with
5 them so that they can allow the transfer of these wounded to that
6 hospital. And the Colonel Drcic was a senior officer there, and we had
7 met on, I think, two or three other occasions, but I really cannot recall
8 what his assignment was.
9 Q. And, sir, is this the Colonel Drcic to whom you referred earlier
10 in your testimony and tried to spell his name?
11 A. Correct, Your Honour, this is the same guy.
12 Q. There's a reference further into the paragraph that a Professor
13 Koljevic had to be called. Do you know who Professor Koljevic was?
14 A. I really cannot recall who he was. I know I met him -- I know he
15 had to be called because we were told now we were looking for Colonel
16 Koljevic -- Professor Kuljecic, but I really do not know him.
17 Q. Okay. And just to be clear for the record, is it your
18 recollection that you have ever met him, and do you have any recollection
19 of who he is or what his role was?
20 A. Professor Koljevic, I don't remember ever meeting him, and I do
21 not know his role. It's only that we were told he had to be informed, he
22 had to be called about this issue.
23 Q. Okay. At paragraph 3, it refers to:
24 "The UNMOs also had a private meeting with Colonel Drcic about the
25 issue of the team being able to stay in Bratunac with the full freedom of
1 movement and guarantee of their safety and security. The colonel stated
2 that as far as he was concerned, it would not be any problem because he
3 had heard very good stories about us from Major Nikolic. Of course, he
4 has to bring this subject up to his higher command."
5 And if we go to page 2 of the English and the B/C/S, paragraph 4
6 picks up on a separate issue:
7 "The Dutch-Bat rotation will be discussed tomorrow after Colonel
8 Drcic has orders from his higher command."
9 Do you recall this private meeting with Colonel Drcic, Colonel?
10 A. Your Honour, I do, and the main aim was twofold also, in that one
11 was, like I had said earlier, that the -- the request by our headquarters
12 was that an UNMO team -- UNMO presence be there in the enclave, and we
13 were to request them whether they can give us the freedom of movement that
14 is required of military observers so that we can do our job, which he
15 failed to provide until confirming with higher authorities.
16 Also, Dutch-Bat, they also request that it be rotated, so the
17 Dutch-Bat, you know, go out and then another team comes in, maybe from the
18 same country, but another team to come in, another battalion to come in.
19 And this, he said, he could not -- he could not confirm until he gets
20 instructions from above after he requests.
21 Q. Now, these two references to Colonel Drcic's higher command, to
22 your recollection, what level was his higher command, what level are we
23 talking about?
24 A. Your Honour, "higher command," in this sense, you know, being a
25 colonel, a higher command could have been the division, the division
1 level, or even at the army level, that is, the headquarters level. So it
2 could be -- it could be somewhere there, because as a full colonel, that
3 is a -- he's of a senior rank. So we're talking about the division or
4 the -- the army level.
5 MR. THAYER: One last document, sir. If we could look at 65 ter
7 Q. This is a sitrep update, 1500 hours on the 18th of July.
8 Paragraph 1 refers to a meeting at 1330 hours that the UNMO team had with
9 the commanding officer of Dutch-Bat, Colonel Drcic, Major Nikolic, and
10 Mr. Miroslav Deronjic, referring to as the Civil Affairs Commissioner for
11 Srebrenica of the BSA.
12 You referred to a civilian individual, sir, civilian authority
13 individual earlier in your testimony. Does this refresh your recollection
14 as to who that person was or are we talking about somebody else?
15 A. Your Honour, it does, it really does. Now I can remember him,
16 this Mr. Miroslav Deronjic. He was the Civil Affairs officer. I remember
18 Q. Do you recall anything in particular about this meeting, sir?
19 A. Your Honour, this meeting was to discuss the issues that I have
20 just said earlier, and especially to do with Dutch-Bat, in that there was
21 a need to rotate the Dutch-Bat, and this had to be discussed with the
22 BSA. But Colonel -- Colonel Drcic was very clear that there was a
23 meeting -- already a scheduled meeting between General Smith and General
24 Ratko Mladic, and he said that these are -- they are going to discuss
25 this, amongst many other issues. And I remember there's maybe a time that
1 I talked about such a meeting, in that General Smith were to meet with
2 General Ratko Mladic, you know, on -- at that level, they are to discuss
3 on issues that mainly were big in nature, so there's nothing we could do
4 at that time. We had to wait until we could hear the outcome.
5 Q. Sir, did you -- when did you withdraw from Potocari?
6 A. Your Honour, I don't remember very well, but I think it was on
7 20th, I think -- I think 20th.
8 Q. And did you withdraw with the rest of the Dutch forces or
9 separately from them?
10 A. Surprisingly, we were -- we were there as military observers,
11 unarmed, and we were told we were the ones to provide security to the --
12 to the Dutch-Bat, so we had to withdraw together. And on that day, I
13 remember we talked to Major Nikolic, and he told us that it was all safe,
14 because they are the ones to ensure that we were -- we had a safe passage
15 out of the enclave. And as we embarked on the -- on the way out, we were
16 told that General Mladic would be somewhere on the way to say goodbye to
17 us. So we escorted Dutch-Bat out. We had one patrol in front and another
18 one behind, and we escorted them out of the enclave, together with
20 Q. Sir, what I want to do with you last is show you a few video
21 clips, short clips, and a photograph first.
22 If we could look at 65 ter 448, please.
23 Do you see the image in front of you, sir?
24 A. Yeah, I can see it.
25 Q. Do you recognise this individual?
1 A. No doubt, this is Petar, our BSA interpreter.
2 MR. THAYER: Okay. I'd like to show you some brief video clips.
3 We are beginning at one hour 58 minutes and 8.3 seconds of a clip
5 [Videotape played]
6 MR. THAYER:
7 Q. Sir, you just viewed this brief clip that has ended at one hour 58
8 minutes 24.3 seconds. Did you recognise yourself in that clip at any
10 A. Yeah, Your Honour, I could see someone who looks like me. I think
11 I'm the one. But he looks a bit younger than me now, so ...
12 Q. And we're pausing here, and do you see three dogs in this frame?
13 A. Yes, Your Honour, I can see them. These are big -- huge dogs.
14 Q. Do you recall the presence of dogs with the BSA soldiers on the
15 12th or 13th of July?
16 JUDGE AGIUS: Yes, one moment before you answer.
17 Yes, Madame Fauveau.
18 MS. FAUVEAU: [Interpretation] Your Honour, objection. I object to
19 that line of questioning. I believe that my colleague should have asked
20 the witness, before he showed this video clip, if he remembered seeing any
21 dogs in Potocari, but not after showing him this clip.
22 JUDGE AGIUS: We have no problem with proceeding this way,
23 although maybe technically you are correct.
24 Yes, Mr. Thayer.
25 MR. THAYER:
1 Q. Colonel, do you recall whether or not there were dogs being
2 handled by Serb forces during the 12th and the 13th of July?
3 A. Your Honour, the dogs were there. I saw them, I personally saw
4 the dogs, and they were huge, huge dogs, which like the ones I know in
5 Nairobi, this size, these are the ones which are trained, sort of.
6 MR. THAYER: Okay. Let's resume, please.
7 [Videotape played]
8 MR. THAYER: Okay. Now we're at one hour 58 minutes 33.3 seconds.
9 Q. Do you see anybody you recognise? Do you see yourself, let me
10 just put it that way, in this video, sir?
11 A. Yes, I do, and I can recognise General Ratko Mladic who is to
12 the -- to the right. Your Honour, I can recognise him very well.
13 MR. THAYER: And let's resume, please.
14 THE WITNESS: The soldier, by the way, the soldier who is in blue,
15 this is not a UN soldier. This is not a UN soldier, but he has a blue
17 MR. THAYER:
18 Q. You don't recall this individual as being a UN soldier, sir?
19 A. No, I don't.
20 Q. Okay. And just to be clear, you're in the sunglasses?
21 A. Yes, I was in sunglasses which somewhere sometimes someone wanted
22 to snatch them from me, but he was requested to give them back.
23 MR. THAYER: And let's look at the second clip.
24 [Videotape played]
25 MR. THAYER:
1 Q. Sir, for the record, that clip began at two hours 25 minutes 39
2 seconds. We paused at two hours 28 minutes 45.4 seconds.
3 What are you referring to here, where we've paused? You're
4 addressing someone, some people. I want to ask you what you were
5 referring to, and who were you addressing, and why?
6 A. Your Honour, the issue at hand at this particular moment was the
7 men who were overcrowded in one -- in one building. There were too many
8 of them. There was no -- no water, no sanitation. There was no food for
9 them, and there didn't seem to be any air, because they were overcrowded,
10 and at least seen from some distance and I could see the condition they
11 were in. So I was trying to talk to anyone who at least could understand
12 what I'm talking about and someone who could speak a bit of English,
13 because there were very few Serbs who could -- who could speak English at
14 that particular moment.
15 And one of the soldiers behind there, the one I was talking to, he
16 was maybe somehow to my left, could speak English, and that is a guy I
17 wanted to convey the same to the senior -- to the senior officers. If
18 possible, we go -- in fact, the aim was we go with him to the senior
19 officers so that he can explain the situation that is actually of major
20 concern to me at that particular moment, and that is why I was talking to
21 him. And the issue at hand was the general condition of that building.
22 Q. And do you recall what, if anything in particular, this person you
23 were using as an interpreter was wearing?
24 A. Your Honour, this particular man was wearing a blue -- a blue
25 UN -- a blue vest, that is, a bulletproof vest.
1 MR. THAYER: Okay. Let's keep rolling the tape, please.
2 [Videotape played]
3 MR. THAYER:
4 Q. Sir, pausing at two hours 29 minutes 57.5 seconds, do you recall
5 where this location is depicted in this still?
6 A. Yes, Your Honour. This is on the main road towards Bratunac, that
7 is, outside the Dutch-Bat compound, and as can be depicted from this --
8 this picture is that I was discussing with these -- with this person so
9 that he can convey this same message, after translating it, to the senior
10 officers there, because at least he could speak a bit of -- a bit of
12 Q. And just for the record, when you're referring to the interpreter,
13 who are you referring to?
14 A. Here, I'm referring to this person who is in a blue UN vest and
15 who is in the picture to my -- to my right.
16 Q. And the individual who is next to this individual, between you and
17 this individual you've described in the blue vest, do you recognise this
18 individual at all?
19 A. Your Honour, this -- this was a senior officer in the BSA. Right
20 now I cannot remember his -- his name properly, but he was one of the
21 senior officers there.
22 MR. THAYER: And let's roll the tape, please.
23 [Videotape played]
24 MR. THAYER:
25 Q. Sir, we've paused at two hours 30 minutes 46.6 seconds. Do you
1 recall what's depicted in this frame?
2 A. Your Honour, this is the house we were talking about, the one I
3 said earlier, where all the men were -- were herded into. This is the
4 place that, after the men were separated from the women, were all taken
5 to. You can even see the -- the overcrowding that I was talking about.
6 There seems to be no space at all in between the individuals. They are in
7 a terrible state inside there, and this is just one part, one of -- I
8 think this is the first floor or something. Below, it was the same, and
9 it was quite a mess.
10 MR. THAYER: Thank you, Colonel. I have no further questions at
11 this time.
12 JUDGE AGIUS: Okay. Thank you, Colonel.
13 We'll have a break now, 25 minutes, and then we'll see how we are
14 going to proceed.
15 Twenty-five minutes.
16 --- Recess taken at 10.30 a.m.
17 --- On resuming at 11.02 a.m.
18 JUDGE AGIUS: By the way, the usual lapses. This is to confirm
19 that we have been sitting pursuant to Rule 15 bis today from the beginning
20 because of the inevitable absence of Judge Stole.
21 Yes, Colonel. What was your rank at the time in 1995, when you
22 were living these events?
23 THE WITNESS: Your Honour, in 1995 I was the rank of a major.
24 JUDGE AGIUS: A major. Okay. Thank you.
25 Now, Mr. Zivanovic.
1 MR. ZIVANOVIC: Your Honours.
2 JUDGE AGIUS: Are you prepared to go ahead with your
4 MR. ZIVANOVIC: Yes, I am, but I'd prefer to take my stand after
6 JUDGE AGIUS: Why? You think you will feel more energetic.
7 MR. ZIVANOVIC: I do.
8 JUDGE AGIUS: And will conduct a better cross-examination?
9 MR. ZIVANOVIC: Yes, of course. It's one of the reasons for that.
10 And as I understand my friend yesterday, he has to disclose some
11 additional documents and to provide Rule 70 clearance, and to have a
12 proofing with the witness regarding these documents, so I'd like to start
13 my cross-examination after that. But I'm ready if you order.
14 JUDGE AGIUS: I see you have quite a voluminous file in front of
16 MR. ZIVANOVIC: Yes, that's correct.
17 JUDGE AGIUS: Anyway, let's think about it. In the meantime,
18 we'll do what we promised to do yesterday.
19 Colonel, for the time being, I think we need to stop here. I will
20 soon send you a message, whether your presence is further required for the
21 rest of the morning. The understanding is that you will be returning in
22 January. I'm hoping you won't be sent back to Kenya when we need you.
23 And if we don't see each other again today, on behalf of the Trial
24 Chamber, we wish you not only a safe journey back home, and also a return
25 back to The Hague, a safe journey, but we also wish you all the very best
1 for the festive season.
2 THE WITNESS: Thank you very much, Your Honour.
3 JUDGE AGIUS: Mr. Haynes.
4 MR. HAYNES: Your Honour.
5 [The witness withdrew]
6 JUDGE AGIUS: There is a pending motion, Prosecution motion, for
7 the addition of one witness. I don't -- I needn't mention his name. And
8 we discussed the possibility of having this determined now, before the
9 break, before the recess, so that everyone will be in a position to know
10 what's going to happen.
11 I asked Mr. Sarapa yesterday also because this witness is of more
12 interest to your client than to anyone else, and he obviously needed to
13 consult with you and also with the other Defence teams.
14 What's your position? Are you in a position to give us your --
15 MR. HAYNES: Yes, I've read and considered the motion, and I can't
16 see any sensible opposition to it.
17 JUDGE AGIUS: Okay.
18 Does anyone else from the Defence teams oppose the motion?
19 So step number 1, we are granting the motion. We don't need to
20 follow it up with a written decision. I suppose you can work out the
21 necessary applications for visa without a written decision; isn't that so?
22 MR. THAYER: That's correct, Mr. President.
23 JUDGE AGIUS: All right. Okay. And the understanding is that you
24 try and see when you will fit him within the schedule and that you inform
25 the Defence teams, particularly the Pandurevic Defence team, as early as
2 MR. THAYER: And just for the record, this witness will be
3 referred to as "Witness number 192."
4 JUDGE AGIUS: Witness number 192, okay. But it's not my
5 understanding that you're seeking protective measures for him; are you?
6 MR. THAYER: We frankly don't know yet, Mr. President.
7 JUDGE AGIUS: All right. Okay, thank you.
8 There is another -- let me bring it up here. Yesterday evening,
9 the Prosecution filed a further motion to add two witnesses to its 65 ter
10 list, these being an ICMP employee who will testify about the methodology
11 of the DNA identification process, and Ms. Ewa Tabeau, who will testify on
12 the process of updating the list of Srebrenica missing persons.
13 Is there any objection from any of the Defence teams?
14 Mr. Ostojic.
15 MR. OSTOJIC: Thank you, Mr. President and Your Honours.
16 We do object to the motion filed in connection with the ICMP and
17 Ms. Tabeau.
18 JUDGE AGIUS: A reason?
19 MR. OSTOJIC: First of all, the --
20 JUDGE AGIUS: Is it because you didn't question the witness on
21 precisely the same matters that the Prosecution seeks to clarify now?
22 MR. OSTOJIC: Not because of that, Your Honour. First, I think
23 that the Court has set certain guidelines for identifying witnesses, and I
24 think that given how late we are in the stage of the proceedings and with
25 one month left for the Prosecution to conclude their case in chief, I
1 think quite candidly, it's very untimely to bring in witnesses.
2 With respect to the ICMP witness, we were not given any
3 information whatsoever as to who the individual is or the basis of the
4 testimony that they will be providing.
5 Secondly, with respect to Ms. Ewa Tabeau, she is an in-house
6 demographer that has assisted Mr. Brunborg. And her reports, I think it's
7 just going to be cumulative from what Mr. Brunborg has already testified
8 to and given his reports. We think that the Prosecution, with all due
9 respect to them, wanted to have Ms. Tabeau, they should have listed her
10 earlier and they should have identified her months ago, when she was
11 compiling this data.
12 We also disagree with the Prosecution that it would be unfair to
13 the Defence. We think that that's just their standard statement to meet
14 some threshold. They don't give a basis, we think, because of the late
15 disclosure, the not -- non-sufficient disclosure of information from both
16 witnesses, that the Court should reject their motion, they should not be
17 permitted to add these witnesses to the list.
18 JUDGE AGIUS: Okay, thank you, Mr. Ostojic.
19 Does anyone else wish to address the Chamber?
20 Ms. Nikolic.
21 MS. NIKOLIC: [Interpretation] Yes, Your Honour, thank you. Good
22 morning. Good morning to my colleagues.
23 I would just like to add some more things that I'm more concerned
24 about in relation to the ICMP witness.
25 What I did not manage to speak to my colleagues about is this:
1 Are we speaking about an expert witness or a witness?
2 JUDGE AGIUS: I didn't understand it at any time to be a proposal
3 on the part of the Prosecution to bring an expert witness. I haven't
4 understood it that way.
5 Yes, Mr. McCloskey, perhaps you can deal with this first so that
6 Ms. Nikolic can finish her intervention.
7 MR. McCLOSKEY: We don't yet have the name of the person, so
8 it's -- this person's level of expertise, I don't know. He may, in fact,
9 or she may, in fact, be a chemist of some sort, but fundamentally, we're
10 not calling the person for chemistry or biogenetics or whatever, but
11 mostly just for the processes, not the science.
12 As I said, I think, yesterday, I don't think there's a scientific
13 objection about DNA, but the general processes, I think, is what this is
14 about, and I will get into more detail in responding to Mr. Ostojic.
15 JUDGE AGIUS: All right, thank you.
16 Yes, Ms. Nikolic. Do you wish to conclude your intervention?
17 No. Ms. Nikolic. I'll give you the floor soon, Madam Tapuskovic.
18 MS. NIKOLIC: [Interpretation] Thank you, Your Honour.
19 I think that I cannot finish what I am saying until the
20 Prosecution decides in the case that we have a witness who's only going to
21 talk about the compilation of data, that's one thing. But as for the
22 analysis, the reliability, percentages, the procedures and methods, this
23 is something that the Defence would need to deal with, in particular, so I
24 want to just leave this question open for now and I will try and see and
25 speak to my colleagues to see exactly what this is about.
1 MS. TAPUSKOVIC: [Interpretation] Good day to everyone in the
3 Your Honours, we tried to have a meeting this morning because the
4 motion of the Prosecution yesterday was submitted quite late. According
5 to what the Prosecutor said now, that they don't know what kind of witness
6 they will have and what their specialty will be, whether it will be a
7 chemist or some other kind of specialist, it's perfectly clear that the
8 Prosecution absolutely cannot determine the field of expertise of this
9 witness, what the witness will be talking about. If it's not an expert of
10 the appropriate profile, then there is the possibility that the testimony
11 of that person from the ICMP would be repetitive in relation to the
12 testimony of witness Dean Manning, so that is why I believe that there are
13 no conditions, there are no basic parameters from the Prosecution, in
14 order for us to be able to decide whether to object to their proposal or
16 So we object to including such a person on the list at all. Thank
18 JUDGE AGIUS: Thank you, Madam Tapuskovic.
19 As I read paragraph 4 of the motion, what it says is:
20 "The ICMP employee will testify about the methodology of the DNA
21 identification process and confirm the accuracy and reliability of the
22 underlying identification data used to prepare the lists of the Serbians
23 who are missing, as well as to prepare the 27 November 2007 Dean Manning
25 Does anyone else from the Defence team wish to address the
1 Chamber, failing which I will give the floor to Mr. McCloskey?
2 Mr. McCloskey.
3 MR. McCLOSKEY: Yes, Mr. President, and briefly I'll try to remind
4 counsel how this has all arisen.
5 I had not planned to call anybody from ICMP originally, nor did I
6 plan to call Helge Brunborg again or his assistant here -- that works
7 here, because when Helge Brunborg testified about this material and
8 outlined the methods and procedures and his confidence in it as an expert
9 in the field, no one objected, and therefore we didn't feel the need to go
10 into it. It didn't appear anyone had any real concerns about the issues
11 of getting bones from relatives of missing people and connecting their
12 blood, which is a very -- it's pretty basic and easy to describe, though
13 it's complex in the detail.
14 Now, when Dean Manning was relying on the same -- much of the same
15 data as Helge Brunborg, as you remember Ms. Soljan told us, we got an
16 objection of the same material, and so at that point I -- I've spoken and
17 I'm hearing myself speak again on the same subject, that if that's the
18 case, if we're getting an objection, we relied on their non-objection
19 before, so since they are objecting and they're calling into question this
20 material, then we are offering to bring in the person from ICMP to meet
21 their objection. And because the data comes in a raw form from ICMP, we
22 need Ewa Tabeau to package it a bit for us so that it's -- so they'll
23 understand how it got used in -- for Dean Manning and for Helge Brunborg.
24 Should the Defence withdraw all those objections regarding DNA and
25 they're willing to stand by it, I'd just as soon not get into this
1 subject, but we're ready to do it. It's fascinating stuff and it's an
2 important programme, and it's, unfortunately, a field that is growing.
3 And with things like 9/11, it may be becoming an expertise, actually, what
4 they are doing.
5 But that's what this is about. That's why we're filing it at this
6 time. It's in response to their objection, having not objected to the
7 same material a few months back.
8 JUDGE AGIUS: Yes, Mr. Zivanovic.
9 MR. ZIVANOVIC: I have nothing further but to repeat that we
10 object to all findings of Mr. Brunborg, but we didn't object to
11 admissibility of his report because he testified here that he made this
12 report and we have no grounds to object to in this regard. But all
13 findings of Mr. Brunborg were objected by us from the very start, and I
14 expected Mr. McCloskey to comply with the order of the Trial Chamber and
15 file his motion about -- regarding this issue.
16 JUDGE AGIUS: Okay, thank you.
17 MR. McCLOSKEY: Mr. President, I absolutely agree with
18 Mr. Zivanovic. That's not what I'm saying. But he -- there's a
19 difference between objecting to the admissibility and objecting to the
20 numbers. I, of course, know that he's been fighting the numbers all
21 along, and I understand that, but he did not object to the admissibility,
22 which is what this is all about.
23 JUDGE AGIUS: This is the whole crux of the matter, actually.
24 Let me consult with my colleagues.
25 [Trial Chamber confers]
1 JUDGE AGIUS: So this is, first of all, the understanding is that
2 because of the urgency of the matter and the fact that we are going on
3 recess and such decisions need to be taken with some urgency, we have
4 dispensed with the usual time limits for the filing of responses, and I
5 wish to thank you all for your cooperation in this.
6 Our position is as follows:
7 Prior to the testimony of Dean Manning and the raising of issues
8 relating to the ICMP DNA fingerprinting analysis undertaking for
9 establishing the identity of Srebrenica missing, and prior to that, our
10 feeling, our conviction, is that the Prosecution is right in contending
11 that there was no plausible reason for them to bring forward such
12 evidence -- such additional evidence as is being sought now.
13 The need for such evidence arose -- was prompted by the position
14 taken by the Beara Defence team during their cross-examination and also by
15 the statement forthcoming from the Popovic Defence team, which made things
16 clearer than they might have been understood prior to then, so our first
17 conclusion is we feel the need for such additional testimony, and we are
18 granting the motion.
19 However, there is one "but." A good point raised by Ms. Nikolic
20 this morning is that the ICMP employee that will be produced as a witness
21 here has not been identified, and also it is not clear, possibly even in
22 your mind till now whether this individual, he or she, would testify
23 merely on facts or whether as sort of an expert witness. So in granting
24 the motion, we are also ordering the following or instructing you along
25 the following lines:
1 Number 1, you need to identify this person as soon as possible and
2 decide in which vest you are going to produce this witness. The name of
3 this person is to be communicated to the Defence teams in a pristine
4 manner as early as possible and is to be accompanied by either a statement
5 or a report, as it may be the case. And for that purpose, we are reserving
6 for all the Defence teams any right -- residual right that they may still
7 have to make submissions in relation to this would-be ICMP witness. In
8 that case, please, we would expect you to make any further submissions on
9 this matter once you have the details, possibly before we start again on
10 the 10th of January.
11 Is that clear? Okay.
12 Yes, Mr. McCloskey.
13 MR. McCLOSKEY: And I don't fully understand the objection. I
14 take it there's not an objection as to the science of DNA matching.
15 Because if that's the case, we have to add about six months on to our time
17 JUDGE AGIUS: I think you have to take it from -- take the lead
18 from the line of questioning that was taken by the Ostojic -- by the Beara
19 Defence team during cross-examination. I think the contention at the time
20 was that the ICMP report or findings, as such, were not being introduced
21 as a separate expert report or a separate report from what Mr. Manning was
22 providing us with, and I think from the questions asked to -- from Mr. --
23 put to Mr. Manning, you should have a clear answer, what is being
24 contested and what is not. I think I would leave it at that. I wouldn't
25 venture to add anything to it further.
1 I think what's important is that the Dean Manning report makes
2 reference to the ICMP findings, and I think we need to know something
3 about -- about those, too.
4 Now, let's come to the other issue.
5 Yesterday I asked you, Mr. McCloskey, whether you were in a
6 position to give your oral response to the Gvero Defence team motion
7 relating to the testimony -- forthcoming testimony of Mr. Butler, and you
8 said you would be in a position to give us your position today.
9 So I don't think I need to come back to you first, Mr. Krgovic or
10 Mr. Josse, to explain the contents of your motion, because it's very
11 clearly expressed, and I don't think it really calls for any further
12 explanation. But of course you will have a right to respond after
13 Mr. McCloskey has finished his intervention, if that is satisfactory to
15 MR. JOSSE: It is. I rather hoped that the Chamber aren't going
16 to be troubled by this matter for too much longer, but we'll hear from
17 Mr. McCloskey in a moment.
18 JUDGE AGIUS: All right, thank you.
19 Mr. McCloskey.
20 MR. McCLOSKEY: Yes, Mr. President.
21 I think we had a bit of misunderstanding with the -- with the
22 Defence. I was able to speak to Mr. Josse about this, and I think we've
23 come to an agreement that we don't really have an issue anymore. And I'll
24 give you the explanation.
25 The material that I provided was never meant to be an additional
1 report, and it was never -- the 109 documents that Mr. Butler reviewed was
2 based on a process of material that he hadn't been able to review because
3 he hadn't been here or we didn't have translations of, but that he either
4 thought had something to do with his previous analysis or something that I
5 thought had come up as an issue in the case that he should know about, and
6 so we wanted to hear his comments on what turned out to be a final 109. I
7 never intended to put 109 documents as exhibits before the Court in his
8 testimony; maybe half of that. And I am continuing to -- to go down that
9 list to try to restrict the exhibits.
10 Mr. Butler is a person that if an exhibit, on its face, says what
11 it says and everyone can read it, I don't want Mr. Butler to just repeat
12 that to you. His value, as you've seen from the other motions, is linking
13 that document or that fact with related facts in a complicated situation
14 to help make sense out of it. And so in that case, I spoke to Mr. Josse,
15 and the intercepts, for example, that he had a concern with. I'm not
16 intending to ask Mr. Butler about those intercepts. They speak for
17 themselves. One of the witnesses that was involved in them spoke to you.
18 And there's three other documents that we spoke about that
19 Mr. Josse doesn't have a problem with; Mr. Butler's brief connection.
20 I spoke to Ms. Fauveau. There's several Miletic-type documents
21 there, but Mr. Butler was just pulling them out of the convoy documents
22 as -- to show that these were documents that showed restriction of convoy,
23 and so -- and Ms. Fauveau didn't have a problem.
24 So I don't think we have a problem. It's been restricted. We've
25 had a chance to talk. It's not meant to be something that's changing
1 anything or adding significance of the last detail. I'm very conscious of
2 that as a problem and I don't want to do that. I've never wanted to do
3 that. And I think once we've had a chance to talk about it, we shouldn't
4 have a problem.
5 And I don't know what you want to do with that, the proofing note,
6 but I think it really is not something that I think we need to go any
7 further on. And if there's any other help I can give anyone, let me know.
8 JUDGE AGIUS: Let me put it like this -- let me hear what
9 Mr. Josse has to say.
10 MR. JOSSE: Well, we are very pleased to hear that and basically
11 are prepared to withdraw the motion.
12 I would like to state for the record that from the index of the
13 109 documents, the three documents that Mr. McCloskey has indicated he
14 does wish to ask Mr. Butler about that are of relevance to our client are
15 68, 69 and 89, and we accept that he's going to do that and we have no
16 objection to that. And on that basis, that is, that those are the only
17 three documents of the 109 that relate to General Gvero that he's going to
18 ask Mr. Butler about, we will withdraw the motion.
19 JUDGE AGIUS: Okay, thank you, and that has the advantage of
20 removing from our eyes the proofing note, which we would otherwise have to
21 read for the purpose of deciding your motion.
22 MR. JOSSE: Well, I'm sure all of us defending are glad about
23 that, Your Honour. It was not an easy decision, to decide to annex it to
24 the motion. We explained in the motion why we did that. Your Honour's
25 aware that the Gvero team always take the view that the Chamber need to
1 see the material before making a ruling, but since you don't need to make
2 a ruling, as you've rightly observed, with respect, the document can be
3 thrown away.
4 JUDGE AGIUS: All right, thank you. That sorts things out.
5 One thing we also want to make clear, however, and this, too, is
6 to avoid any further problems in anticipation of Mr. Butler's testimony,
7 is that Mr. Butler is being produced as an expert in a particular field of
8 expertise, and any questions to him should be confined to that field of
9 expertise and not go beyond and invade other fields of expertise which
10 he's not summoned to testify about. We are making it very clear, and it's
11 being given to you as an advance notice.
12 All right. That clears the territory, because there would have
13 had -- there would have been problems arising out of the motion which
14 would have involved other Defence teams, and they would have been
15 perfectly justified in making submissions. We can leave it at that.
16 The motion, for all intents and purposes being withdrawn, we will
17 destroy our documents which we haven't read and -- I mean, we've read the
18 motion, obviously, but pending the discussion on it, we haven't read any
19 of the proofing notes or other accompanying material that there was with
21 So shall we proceed with the cross-examination, Mr. Zivanovic?
22 MR. ZIVANOVIC: I hope not, Your Honours.
23 JUDGE AGIUS: Madam Usher, could you please convey to Colonel
24 Kingori our decision not to proceed with his testimony for the rest of the
25 day, and wish him all the best.
1 Yes, Mr. Thayer.
2 MR. THAYER: Sorry to interrupt, Mr. President. Excuse me, my
3 cold is catching up with me finally.
4 I just wanted to clarify one thing my learned friend Mr. Zivanovic
6 With respect to the Rule 70 documents that we hoped to hear from
7 the New York headquarters about and the additional notebook and any
8 reports, those we will -- with respect to specifically the notes, the
9 notebook and the reports, we will handle all of that through the Witness
10 Unit. Because he is still testifying, I will have no direct contact with
11 him, obviously. I think my friend may have mentioned, maybe I misheard
12 it, a future or an additional proofing session. I have absolutely no
13 intention of proofing Colonel Kingori about any new information. It will
14 simply be transmitted as we get it from the Victim/Witness Unit to my
15 friends in that form.
16 JUDGE AGIUS: All right, is that clear in your mind,
17 Mr. Zivanovic?
18 MR. ZIVANOVIC: Yes, absolutely Your Honours, thank you.
19 JUDGE AGIUS: I mean, I never understood that there was going to
20 be a further proofing sessions between the Prosecution and Mr. Kingori
21 prior to his return -- or after his returning to The Hague for the
22 continuation of his testimony.
23 Yes, Mr. McCloskey.
24 MR. McCLOSKEY: Just one other thing I'd spoken to my colleagues
25 about, and I'm sorry I'm not more clear on the detail, but there's been
1 some motions and there's some motions out there still, and there will be
2 various deadlines that will be following in the next couple of weeks, and
3 I think everyone has agreed to ask for a moratorium on responding.
4 As Mr. Josse said so eloquently in his recent motion about this is
5 the time not to work so much, I fully agree to that, and perhaps
6 Ms. Fauveau would follow that for a change as well.
7 JUDGE AGIUS: Yes. Mr. Josse is only half right, however, because
8 even the Gvero team has in the past filed motions during the holiday or
9 during recesses, and they're not the only ones. Even we have a standing
10 team here throughout the entire recess period working on several issues,
11 and we will be in contact with them on a daily basis ourselves so -- and
12 possibly come down with some decision or decisions if we -- if they reach
13 the maturity stage required.
14 So, yes, the recess is supposed to be a time when we can recharge
15 our batteries, but there is a lot of work still outstanding that needs to
16 be attended to.
17 However, before we rise ...
18 [Trial Chamber confers]
19 JUDGE AGIUS: All right. I saw you standing, Mr. Josse.
20 MR. JOSSE: Yes. Since we've got a few moments, I don't know
21 whether now is the appropriate time for me to make a brief oral
22 application in relation to the 98 bis procedure. It doesn't really need
23 to be resolved now.
24 We note, from the order that the Chamber issued, that the Chamber
25 decided that the Defence had no right of reply. Speaking for myself --
1 we've had some discussion amongst the Defence teams about this, but
2 speaking on behalf of my team only, we don't feel it's appropriate to ask
3 the Chamber to tinker with the amount of time this has been allocated, but
4 we wonder whether you would consider allowing us an hour and a quarter for
5 our submission and reserving a quarter of an hour reply to whatever the
6 Prosecution say.
7 Replies, in our submission, are useful for the Chamber and
8 important for the party responding, to have that opportunity to meet
9 whatever's being said, both, frankly, as a matter of law and fact, but
10 more a matter of law. It may be that an assertion of law is made and
11 Defence neither accept it and, more to the point, say there is some
12 alternative authority which the Court should examine.
13 So the proposal, for want of a better word, that I'm making is
14 that you allow a party, a Defence party, 15 minutes of their hour and a
15 half for reply if they so choose.
16 JUDGE AGIUS: Are you speaking on your own behalf only or on
17 behalf of the other Defence teams?
18 MR. JOSSE: I'm only speaking on my own behalf, because others
19 perhaps might be a bit bolder and say they would like the right to reply
20 and the hour and a half, but I'm not going that far.
21 JUDGE AGIUS: Yes, Mr. McCloskey.
22 Thank you, Mr. Josse.
23 MR. McCLOSKEY: Mr. President, I think your decision was a sound
24 one. I think the -- well, I know the burden of the proof is on the
25 Prosecution, and should the Defence be given a reply in this context, the
1 Prosecution should be able to reply to their reply. And so I think you've
2 stopped it at the appropriate place, and I don't think we should go any
4 JUDGE AGIUS: Yes, Mr. Josse.
5 MR. JOSSE: My only comment is the reply has to literally be a
6 reply. It can't go beyond anything that has been said by the Prosecution
7 in their response. So, in other words, it can't cover new material, and
8 that is why, save in the most exceptional circumstances, there shouldn't
9 be any call for what I think is called here a surreply. It simply
10 shouldn't happen.
11 JUDGE AGIUS: All right. I don't think we need to discuss this
12 any further for the time being. I think just mull over it, as Milton
13 said, think about it, and re-digest it, and then if you think you wish to
14 formulate it when we resume in January, that would still be a month before
15 the --
16 MR. JOSSE: Absolutely, that's very sensible, with respect. I
17 simply mentioned it now because we had a few minutes.
18 JUDGE AGIUS: All right, thank you.
19 Yes, Mr. McCloskey.
20 MR. McCLOSKEY: Mr. President, we -- we have a couple of exhibits
21 for the Chamber that are the result of stipulations by the -- all the
22 parties. They are two books that I've spoken of before. One is a book
23 showing stills from the various trial videos showing mostly VRS or MUP,
24 and then there's another book that show Muslims. We've had the finished
25 product for you. The Defence has all theirs. There's been a
1 stipulation. I think Ms. Stewart has the numbers, and I'm not sure it's
2 in e-court yet.
3 So we've got that for you, if you want it.
4 We also, as -- we can deal with Dean Manning's exhibits now.
5 JUDGE AGIUS: Yes, we are going to deal with those, but there are
6 some further issues that I would like to deal with, but that's on the
7 agenda, obviously.
8 So one thing, this moratorium that you suggested, and you seem to
9 be also echoing the desire or the wish of the Defence team, does it
10 mean -- because we need to have things clear, in black and white, are you
11 expecting or are you asking us to put in deep freeze all legal time limits
12 applicable for possible responses and filings during the recess period?
13 MR. McCLOSKEY: Whatever I'm asking, I'm doing it with Defence
15 JUDGE AGIUS: Yes, I thought so, yeah, but --
16 MR. McCLOSKEY: And it's hard to ask, and I can't really right now
17 even figure out what's out there. But if there's anything out there that
18 needs our response, we'll of course get it to you. But I don't think
19 there's much that can afford not to be frozen, is my memory.
20 JUDGE AGIUS: Yes, but there is one very important issue, namely,
21 the decision that we handed down recently on the intercepts, so if any of
22 the parties, you or the Defence teams, wish to ask for certification, for
23 example, are you proposing that the time limit fixed by the Rules for an
24 application for certification will be suspended or put in freeze -- in
25 deep freeze until the 10th of January or the 7th of January, when we are
1 supposed to start again?
2 MR. McCLOSKEY: Mr. President, of course we don't intend to file
3 anything in relation to that, and I don't have an objection freezing that,
4 perhaps. But whenever Mr. Bourgon is not in the courtroom, I'm always
5 worried, so I'd like to freeze Mr. Bourgon for December. But that
6 particular, I don't have any problem with.
7 JUDGE AGIUS: Does any one of the Defence team wish to -- because
8 our position, as far as the intercepts decision is concerned ...
9 [Trial Chamber confers]
10 JUDGE AGIUS: We have raised the intercepts decision for an
11 obvious reason; that according to our calculations, which I think are
12 right, the due date for the filing of any application for certification is
13 today. I don't know if any such filings have already been made, and I
14 don't know if there is the intention of any one of the Defence teams to
15 file such an application, but if it is filed, it's not our intention to
16 then put in force or place in force a moratorium, giving you almost a
17 month to respond to such application, Mr. McCloskey, and I'm pointing this
18 out because you took it upon yourself to ask for a moratorium also on
19 behalf of the Defence teams.
20 The rest, I think, can be kept in deep freeze until January when
21 we come back, but this one should be accepted, and we're making that
22 clear. Okay?
23 All right.
24 [Trial Chamber confers]
25 JUDGE AGIUS: Okay. Mr. McCloskey, the Dean Manning exhibits,
2 MS. SOLJAN: Good morning, Your Honours.
3 JUDGE AGIUS: Good morning.
4 MS. SOLJAN: We've just circulated to you a new list that contains
5 only two additional documents to the list that was already circulated on
6 Tuesday of this week, and I'll point out the additions. They are on page
7 2 of the exhibit list, under the dossier "Branjevo Military Farm." It's
8 3009, and it's an A3 aerial titled "Branjevo Farm," dated 17 July with
9 markings by the provider. And it's page 6, right under expert reports,
10 it's under 676, it would be 65 ter 3.010, and it's essentially just
11 another report by Martin Ols. This has been actually added in agreement
12 or per the request of the Nikolic team.
13 JUDGE AGIUS: Thank you.
14 Any objections from any of the Defence teams?
15 Mr. Ostojic.
16 MR. OSTOJIC: Thank you, Mr. President.
17 We continue to maintain our objection on the satellite images. If
18 you'd like, I can read through these specific numbers, but --
19 JUDGE AGIUS: I don't think there is a need for that. I think
20 your objection runs across all the satellite images that have been made
21 use of by the Prosecution, doesn't it?
22 MR. OSTOJIC: It does, Mr. President, and that would include the
23 current one, 3009, from what I understand it, under the "Branjevo Farm"
24 dossier section, but it does not include the one that she said there's a
25 stipulation to.
1 We also object, on page 6, to the ICMP data, both 3002 and 3004.
2 JUDGE AGIUS: Okay, thank you.
3 Do you wish to comment on Mr. Ostojic's objection, Ms. Soljan?
4 MS. SOLJAN: Well, with respect to the ICMP data, Your Honours,
5 this was the data on which Mr. Manning relied in order to produce his
6 report. We would at least ask that it be marked for identification,
7 pending the expert that we're expecting to get from the ICMP, who would
8 then talk about it.
9 Thank you, Your Honour.
10 JUDGE AGIUS: Okay, thank you.
11 Any objections, Mr. Josse?
12 MR. JOSSE: I'm sorry, Your Honour, I shouldn't have laughed.
13 This has got nothing at all to do with General Gvero. I think the Court
14 may know why I laughed, but others who are interested in the issue can
15 perhaps pursue it better than I can.
16 JUDGE AGIUS: Okay, thank you.
17 MR. JOSSE: I apologise to my learned friend.
18 JUDGE AGIUS: Ms. Tapuskovic.
19 MS. TAPUSKOVIC: [Interpretation] Your Honours, the Defence for
20 Popovic, according to the list we have just received some 20 minutes ago
21 from the Prosecution, although we are basing our submission on the list we
22 received several days ago, wishes to ask for the admission into evidence
23 of all the summaries of Witness Dean Manning, the 65 ter numbers 2993,
24 649, 648, 2994, 2994. I will give you a brief submission in relation to
1 Where a piece of evidence is found to be relevant and of probative
2 value, it has to pass the test of reliability. I believe that during the
3 cross-examination by all the Defence teams of Witness Dean Manning, we
4 arrived at the conclusion that the data he presented in his reports,
5 particularly the November report, which is evidence 2993, that none of
6 them passed the test of reliability.
7 As far as the other evidence is concerned, we join with the
8 Defence team for Beara, and we state the same reasons for our refusal to
9 accept the ICMP documents. 3002 and 3004 are the numbers of the
10 exhibits. This is the third batch of documents that was tendered for
11 admission, and I believe that according to the list that you've just
12 received in electronic form, it's also page 6, as is the case with the
13 copy that I hold -- I'm holding in my hands that we received several days
14 ago, and all the expert reports, 676, 675, 678, 562, 563 and 599. I'm
15 referring to the decision rendered by the Trial Chamber shortly before the
16 evidence of Dean Manning, 18096 is the transcript page, where you
17 concluded that the witness would not be relying upon the expert evidence
18 before the Trial Chamber, whereas during the examination-in-chief, the
19 witness referred to the findings by other experts only in a sentence or
20 two. That's why we oppose the admission of these documents into evidence.
21 Thank you.
22 JUDGE AGIUS: Thank you, Ms. Tapuskovic.
23 Ms. Soljan.
25 JUDGE PROST: Ms. Tapuskovic, I'm sorry, but there may have been a
1 misinterpretation. At page 55, lines 23 and 24, it says "... Wishes to
2 ask for the admission into evidence of all the summaries of Witness Dean
3 Manning," and I'm assuming you meant -- or you may have said and it was
4 misinterpreted, "oppose," I assume. That was the nature of your
5 submission, but I just wanted to make sure I had that clear.
6 MS. TAPUSKOVIC: [Interpretation] Thank you, Your Honour. Yes,
7 that's correct. I wasn't able to follow the transcript as I was reading
8 out the numbers. Thank you.
9 JUDGE AGIUS: Yes. Thank you, Judge Prost, and thank you,
10 Ms. Tapuskovic. I think the rest of the transcript makes it clear,
11 because the reference is specifically to the four documents, four reports,
12 Dean Manning reports, that the Prosecution was seeking to introduce.
13 Yes, Mr. McCloskey.
14 MR. McCLOSKEY: Mr. President, I believe - excuse me - that there
15 was just an objection to the fabric analysis and the report, as well as
16 the report of Tony Brown on pollen analysis, and it was my understanding
17 that we had a stipulation with the Defence that there was no objection to
18 that, and that was one of the reasons why we reached some of the
19 agreements that I have with the Defence. So I think perhaps that's a
20 mistake on the part of the Popovic team or it's maybe they somehow got
21 left out of those discussions. But if there is no -- if there is an
22 objection to the -- to the fabric and pollen analysis, we're going to need
23 to ask to call those witnesses, because this is totally against the
24 understanding that we had.
25 JUDGE AGIUS: Thank you for that information, with which we were
1 not privy, of course.
2 Yes, Ms. Tapuskovic.
3 MS. TAPUSKOVIC: [Interpretation] Thank you, Your Honour.
4 There was extensive communication between the parties concerning
5 the evidence of Mr. Manning, both before his evidence, during, and after.
6 Now, whether Mr. McCloskey negotiated with some of the Defence teams the
7 issue of the admission of expert findings, however, with us the
8 possibility to stipulate some of the expert reports that I just referred
9 to, well, I have to say that the Popovic Defence did not have any such
11 MR. McCLOSKEY: Again, if I could try to clarify this for the
12 umpteenth time. We're not asking them to stipulate to the findings of the
13 report, just that they don't object to the admissibility. They object to
14 the admissibility, they challenge the credibility of it, we're going to
15 want to put on evidence. We had an agreement with them.
16 JUDGE AGIUS: Who took part in these discussions from the Popovic
17 Defence team? I don't think -- I'm assuming that neither Mr. Zivanovic
18 nor Ms. Tapuskovic were absent.
19 MR. McCLOSKEY: Mr. President, the -- I can tell you that my lack
20 of objection to this 30-day extension to the 65 ter list was based on
21 their agreement not to object to this scientific document. They are well
22 aware of that, I know they are, and I don't know what the problem is.
23 JUDGE AGIUS: We'll cut this short. We'll ask you to file a
24 motion, get these witnesses or get the necessary evidence, and if -- yes,
25 if there has been a stipulation, there has been a stipulation.
1 MR. OSTOJIC: Mr. President.
2 JUDGE AGIUS: Mr. Ostojic.
3 MR. OSTOJIC: Thank you. If we could maybe have a short pause, a
4 break, and then maybe we can just discuss this among ourselves and
5 hopefully come to some resolution. I think there might be some
6 miscommunication on that. A short five-minute recess, if the Court would
7 indulge us --
8 JUDGE AGIUS: Okay.
9 MR. OSTOJIC: -- may, I think, resolve it.
10 JUDGE AGIUS: You for your wise suggestion, Mr. Ostojic.
11 --- Recess taken at 12.05 p.m.
12 --- On resuming at 12.15 p.m.
13 JUDGE AGIUS: Yes, Mr. McCloskey.
14 MR. McCLOSKEY: Yes, Mr. President.
15 I think, as usual, the calming influence of Mr. Ostojic has
16 brought us back on track, and I believe it's clearly understood that the
17 Popovic team will, of course, be objecting to all that -- the substance of
18 the material, but not the admissibility. And with that clear
19 understanding, I think we're fine, and we can disregard anything else.
20 Thank you.
21 JUDGE AGIUS: Okay, thank you.
22 Any further remarks? And I would have expected that, considering
23 Mr. Ostojic's imposing stature compared to that of Mr. Zivanovic, so
24 assuming that there has been no undue influence.
25 Yes, Ms. Soljan.
1 MS. SOLJAN: Your Honour, I just wanted to make one additional
2 point about Mr. Manning's reports.
3 The same thing; we are going -- we are now tendering them for
4 admission. This is only an admissibility question. Obviously, we have a
5 position on their reliability as well, given that they have been used and
6 accepted into evidence in previous three trials, other than the newest to
7 1993, but we are tendering it into admission, and the weight will be up to
8 Your Honours.
9 JUDGE AGIUS: Obviously, the weight is a matter reserved for the
10 final exercise.
11 All right. Let me confer with my colleagues.
12 [Trial Chamber confers]
13 JUDGE AGIUS: Yes, Madam Nikolic, do you wish to address the
15 MS. NIKOLIC: [Interpretation] No, no. Thank you, Your Honours. I
16 thought it was my turn now for the documents.
17 JUDGE AGIUS: Okay, thank you.
18 [Trial Chamber confers]
19 JUDGE AGIUS: Our decision on the Prosecution list of exhibits to
20 be tendered is as follows:
21 The 65 ter documents 3002, 3004, that is, the ICMP data documents,
22 will be MFI'd for the time being, and then a decision will be taken later
23 on. The rest is being admitted.
24 Now, we have further lists. One is forthcoming from the Drago
25 Nikolic Defence team.
1 Madam Nikolic.
2 MS. NIKOLIC: [Interpretation] Your Honours, I submitted the
3 documents. They were documents used during the cross-examination of
4 Witness Manning, with the material that accompanied the documents that
5 were shown in the courtroom, in the e-court.
6 JUDGE AGIUS: Okay, thank you.
7 What's the position of the Prosecution team on this?
8 MS. SOLJAN: No objections, Your Honours.
9 JUDGE AGIUS: All right.
10 Any of the other Defence teams wishes to raise an objection?
11 Ms. Tapuskovic.
12 MS. TAPUSKOVIC: [Interpretation] Your Honours, no, I thought that
13 it was my turn. I don't have any objection to the Nikolic Defence
14 documents. I just thought that it was my turn to say something about the
15 proposed Defence -- Popovic Defence document.
16 JUDGE AGIUS: Thank you. Let's not make it turn into an
17 epidemic. I'll soon come to you, Ms. Tapuskovic.
18 So there being no objection, the four Nikolic Defence team
19 documents are being admitted. I would kindly ask the Registrar to consult
20 with the Nikolic Defence team, whether the relevant -- whether -- in
21 respect to items 1 and 2, whether they should be under seal or not, but
22 it's something to be discussed amongst you. I don't know. I'm not in a
23 position to decide on that.
24 We finally come to you, Madam Tapuskovic. You have only got one
25 document that you wish to tender?
1 MS. TAPUSKOVIC: [Interpretation] Yes, Your Honour. That's
2 document marked 1D449. It's a document that was shown to the witness
3 during the cross-examination of Mr. Manning, and the witness stated his
4 position on the document. This was a document presented to him by the
5 Popovic Defence, and that's the only document.
6 JUDGE AGIUS: Thank you very much, madam.
7 Is there any objection?
8 MS. SOLJAN: No objection, Your Honours.
9 JUDGE AGIUS: Any objection from the other Defence teams?
10 Thank you, Ms. Soljan.
11 So this document is also admitted.
12 I know you're anxious to leave this courtroom, but there is a
13 final matter that we wish to deal with.
14 You will recall that recently, and also before, the Prosecution
15 raised the issue of submitting so-called teachers edition of a portion of
16 the duty officers log book dated from the 11th to the 23rd of July, 1995.
17 This version of the logbook has red markings denoting the Prosecution's
18 contentions about such matters as to the dates to which the entries
19 pertain and the authors of the entries, and the matter was discussed
21 The Nikolic, Miletic and Beara Defence teams objected to accepting
22 the annotated logbook at this juncture as a submission, arguing that the
23 annotations constitute arguments that should come at the close of the case
24 rather than at this stage of the proceedings, that in addition, the
25 Pandurevic Defence team added that the proposed submission contained
1 mistranslations and misinterpretations.
2 You will also recall that on the 6th of December, we further
3 requested you to try and have negotiations and discussions amongst
4 yourselves, and we also informed you that if no agreement was forthcoming
5 between the parties, then we would prefer to state our position on the
7 I take it, before proceeding any further, that there has been no
8 agreement -- no specific agreement across the board between the
9 Prosecution and the various Defence teams, Mr. McCloskey.
10 MR. McCLOSKEY: I wouldn't say there was an across-the-board
11 disagreement. We're still talking, and the -- where we are now is that I
12 believe the Defence were going to offer some numbers, some dates, that
13 they didn't object to, to put up in the right-hand corner to help guide
14 you and all of us on which dates we agreed on, and perhaps some other
15 items, but we haven't gotten that far yet. And so we -- that's where we
16 left it, with the understanding that they did not object to us using it,
17 like you said, at the end of the case as a submission.
18 JUDGE AGIUS: All right.
19 [Trial Chamber confers].
20 JUDGE AGIUS: Our position, Mr. McCloskey and distinguished
21 members of the various Defence teams, is that we believe that we have
22 given it enough time and we don't believe that there is going to be an
23 across-the-board agreement which will be definitive and unequivocal, so we
24 are going to tell you, in very clear terms, what our position is, and we
25 expect you to take this into consideration and comply with our directives.
1 Our view is that the annotations that the Prosecution referred to
2 particularly on the 23rd of November, 2007, can serve -- can indeed serve
3 as a valuable aid in conveying the Prosecution's contentions concerning
4 the logbook. We are of the opinion that the submissions can be received
5 at this stage of the case, that is indeed preferable to receive them at
6 this stage of the case, considering that we are approaching the end of the
7 Prosecution case. And indeed we do not believe there is any need to delay
8 having the availability of these documents until the close of the date.
9 It would serve no purpose.
10 Indeed, however, we want to make it clear that the Prosecution's
11 annotations will not be treated as evidence by the Trial Chamber. We want
12 to put your mind at rest on that. Rather, they will be looked at as a --
13 simply as an aid in presenting, as I said, presenting the Prosecution's
14 contentions, and will be solely treated as such.
15 We also wish to make it clear that these Prosecution annotations
16 are -- can be premised upon hearsay, as such evidence is clearly
17 admissible before this Tribunal, according to a uniform and constant list
18 of jurisprudence. However, as you are all aware, any hearsay statement
19 relied upon must be in evidence before the Trial Chamber if it is to form
20 the basis or part of the basis for an annotation, so any annotation which
21 is based on evidence which is not before this Tribunal will, of course, be
22 completely ignored.
23 I hope that clears the waters and that you will understand what
24 the position will be in relation to the document that the Prosecution
25 wishes to make available.
1 MR. McCLOSKEY: Thank you, Mr. President.
2 And we --
3 JUDGE AGIUS: One moment.
4 [Trial Chamber confers]
5 JUDGE AGIUS: Okay. Yes, Mr. McCloskey.
6 MR. McCLOSKEY: Just to note that that book is 65 ter 377A, and we
7 will be providing you hard copies, if you'd like.
8 JUDGE AGIUS: All right, thank you.
9 MR. McCLOSKEY: And it is in e-court.
10 JUDGE AGIUS: Thank you.
11 So that disposes of another issue that we had still outstanding.
12 [Trial Chamber and registrar confer]
13 JUDGE AGIUS: I will try to make this clear.
14 [Trial Chamber confers]
15 JUDGE AGIUS: The Registrar has raised an important matter, issue
16 that is more of concern to the Registrar than, really, to you or to us,
17 because I think we have made ourselves pretty much clear.
18 We have been asked a question, how this document is going to be
19 treated, whether it's going to be treated as an exhibit or whether it's
20 going to be treated as just a filing. Our position, I think, is very
22 We have already stated that it is not going to be treated as
23 evidence. That is the starting point. So whether it's given an exhibit
24 number or not is immaterial for us. If it is more practical for the
25 Registrar to give it an exhibit number, then so be it. But for the real
1 practical purpose of this document, I think the position is very clear and
2 I think it corresponds with both the manner in which you had presented or
3 offered this document and the way the offer was treated and considered by
4 the various Defence teams, even those who opposed its -- it being made
6 Yes, Mr. McCloskey.
7 MR. McCLOSKEY: Yes, that's absolutely correct. You will have
8 the -- good copies of the full original of this notebook, in fact two
9 notebooks, in the original B/C/S and in the English translation, when we
10 finally get those done, and of course that will be the evidence, and this
11 thing you're getting is a submission.
12 JUDGE AGIUS: Thank you. And for that purpose, I think it should
13 be in the records of the proceedings, because we will, of course, consult
14 it as we go along. We consider it as an aid, and others who may come
15 after us may need to look at it for the same purpose as the one that
16 justifies its availability at the time being, at the moment.
17 So yes, Mr. Zivanovic.
18 MR. ZIVANOVIC: Sorry. I'd just like to clarify that the Popovic
19 Defence team is among the teams contesting this notebook.
20 JUDGE AGIUS: Okay. Thank you for pointing that out, and it will
21 go -- it will be entered in the records, Mr. Zivanovic.
22 We haven't finished our long journey as yet. There is still a lot
23 to come, but at least we have in sight the end of the Prosecution case by
24 the 1st of February. And in preparation for that and the hard work that
25 lies ahead, I wish to take this opportunity to show the -- express the
1 Trial Chamber's appreciation for all the good work that you have put into
2 this case, both Prosecution and Defence, but not only Prosecution and
3 Defence, our team, the Registrar's team, the interpreters that have such a
4 difficult job and which many a time we perhaps are not very cooperative
5 with - we try to do our best - the technicians, and all the others that
6 work in the background and that we never see in the courtroom.
7 JUDGE KWON: Court reporters as well.
8 JUDGE AGIUS: Yes, court reporters. And we are going to have a
9 recess, a well-merited one, I would say, which will serve good for
10 everyone. We'll be able to recharge our batteries and then face the
11 forthcoming months with greater energy.
12 However, this recess also coincides with festive seasons. I know
13 that there are people with -- having different religious backgrounds and
14 denominations. It's still a festive season for everyone. For those of
15 you who celebrate Christmas, both the one I'm used to and also the Serbian
16 Orthodox one, Judge Prost, Judge Kwon and also Judge Stole, who couldn't
17 be with us today, we wish to extend to you our greetings and our best
18 wishes. We hope you will be able to enjoy Christmas with your families.
19 And as far as the new year is concerned, of course that is a
20 matter that we will have every reason to celebrate together.
21 We will reconvene after the new year, and so we wish to extend
22 again to you and to your friends and to your families our best wishes for
23 a prosperous and fruitful new year, a new year which will see the Defence
24 teams beginning their case and hopefully finish as well.
25 I mean, I see some unhappy faces.
1 But, anyway, so we leave you with this. We leave you with our
2 best wishes. I know that almost all of you will be travelling to your
3 places of residence, so we also wish you a safe journey to and from where
4 you will be returning to The Hague for the January session.
5 Thank you.
6 --- Whereupon the hearing adjourned at
7 12.40 p.m. sine die