1 Tuesday, 10 March, 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.07 a.m.
5 JUDGE AGIUS: Good morning, Madam Registrar. Could you call the
6 case, please.
7 THE REGISTRAR: Good morning, Your Honours. This is case
8 IT-05-88-T, The Prosecutor versus Vujadin Popovic et al.
9 JUDGE AGIUS: Okay. Thank you. All the accused are present.
10 Prosecution, Mr. McCloskey, Mr. Thayer, Mr. Mitchell. Defence teams,
11 absentees, Mr. Nikolic from the Beara team; Mr. Bourgon in the Nikolic
12 team; Mr. Lazarevic in the Borovcanin team; and that's it.
13 Let me start from here. There are two outstanding motions dated
14 29th January, 2009, from the Gvero Defence team in which objections were
15 raised against exhibits tendered by the Prosecution. They relate in
16 particular to Prosecution Exhibit P4110, which was tendered through
17 witness Milenko Jevdjevic, and Prosecution Exhibits tendered through the
18 witness Slobodan Kosovac. We've decided to hand down an oral decision
19 rather than a written one, so I'm going to go straight to the -- what
20 would be the disposition.
21 The Trial Chamber's decision is as follows: With the exception
22 of P4201, that is the New York Times article, all the exhibits tendered
23 through witness Kosovac which were objected to by the Gvero Defence team
24 are admitted for the purpose of testing his credibility because they are
25 relevant to Kosovac's expert report and/or to the testimony he gave on
1 direct examination. In each case, the whole exhibit will be admitted
2 either because it provides a context for what was read into the record or
3 because he was questioned about his awareness of the document as a whole.
4 As regards Exhibit 4201 to which I have already referred, the New
5 York Times article, in the view of the Chamber it was used only on a very
6 limited basis with the witness, and any probative value it may have is
7 outweighed by its prejudicial effect. Accordingly, we have decided to
8 exclude it pursuant to Rule 89(D).
9 I come now to Exhibit P4110, which is, as you will recall, an
10 intercept, and which relates to the testimony of Milenko Jevdjevic
11 elicited during the cross-examination by the Gvero Defence team. We've
12 come to the conclusion not to admit this document, the reason being that
13 its contents were read out almost entirely into the record, and,
14 therefore, the admission of the exhibit itself is rendered unnecessary.
15 Finally, the Trial Chamber has indicated the purposes for which
16 the exhibits challenged by the Gvero team are being admitted, and the
17 Trial Chamber stresses that they will be viewed exclusively from that
18 perspective. Thank you.
19 Now, documents with evidence of Zvonko Bajagic. Prosecution --
20 first of all, Mr. Haynes or Mr. Sarapa. I don't know who.
21 MR. HAYNES: I might as well deal with it. I think there's only
22 the one, which is the statement, which is on the schedule.
23 JUDGE AGIUS: Yes, Mr. Sarapa.
24 MR. SARAPA: [Interpretation] This is Mr. Bajagic's statement
25 provided on the 27th. That's the only document that we would like to
1 tender for admission.
2 JUDGE AGIUS: I'm under the impression - I stand to be corrected
3 - that we admitted it yesterday, soon after you read it and asked for its
4 admission. So there is nothing else. Okay. Thank you.
5 MR. SARAPA: [Interpretation] There's nothing else. No other
6 documents but that one.
7 JUDGE AGIUS: Okay. Mr. Mitchell, you have circulated a list.
8 MR. MITCHELL: We have, Mr. President and there are a few
9 exhibits which I need to clarify. 65 ter 4413, the Karadzic 1994 diary,
10 we're only seeking the admission of the two pages which I showed the
12 JUDGE AGIUS: Okay.
13 MR. MITCHELL: And that was page --
14 JUDGE AGIUS: 5486, isn't it?
15 MR. MITCHELL: I can give the e-court page numbers if that helps.
16 JUDGE AGIUS: Yes. I think we have them.
17 MR. MITCHELL: Okay.
18 JUDGE AGIUS: It's the pages -- the ERN number indicates the
20 MR. MITCHELL: Okay. Thank you.
21 JUDGE AGIUS: No, they don't. No, they don't. They don't. You
22 have to indicate them.
23 MR. MITCHELL: It was pages 25 and 29 in B/C/S, and pages 16 and
24 18 in English.
25 JUDGE AGIUS: Okay.
1 MR. MITCHELL: The next exhibit is 3876, which was the 1995
2 diary, and again, we're only seeking the admission of the three pages
3 which were shown, and that was pages 38, 41, and 44 in English, and pages
4 85, 91, and 100 in the B/C/S.
5 JUDGE AGIUS: Okay.
6 MR. MITCHELL: And two more, Mr. President. 65 ter 4416, there
7 was a series of intercepts, but we're only seeking the admission of the
8 intercept that was discussed with Mr. Bajagic, which was the one at
9 1955 hours; and similarly with 65 ter 4417, we're only seeking the
10 admission of the intercept at 1005 hours.
11 JUDGE AGIUS: One moment. I have to ask you a question. If I
12 look at the document that's circulated by you in relation to
13 Exhibit 4416, 65 ter 4416, there you indicate two intercepts; one at
14 1955 hours and one at 2105 hours. Then under 4417, you indicate
15 intercepts dated 7 June. Now, you said you are limiting it to intercept
16 at 1005 hours; is that correct?
17 MR. MITCHELL: That's correct, Mr. President. That was my
18 mistake that that went out with those other ones on it. That's why I
19 wanted to clarify that this morning that we're limiting it to --
20 JUDGE AGIUS: So under 4416, you're limiting it to one, not to
22 MR. MITCHELL: Correct.
23 JUDGE AGIUS: Okay. And under 4417, only to the one of the
24 7th June that allegedly happened at 1005 hours.
25 MR. MITCHELL: Correct, Mr. President. Thank you.
1 JUDGE AGIUS: All right. Before I ask for reactions from the
2 Pandurevic Defence team, we are sitting today pursuant to Rule 15 bis as
3 I intimated yesterday. I'm also informing you that due to some problems
4 that we have, today's schedule will revert to what it was during the
5 testimony of General Pandurevic; that is, we'll have the first break at
6 10.20 and the second break at 12.10. Got me? All right.
7 Shall we start with the next -- Mr. Haynes, do you object to any
8 of these documents?
9 MR. HAYNES: No. This has all been the subject of correspondence
10 and agreement. It's a matter for you whether the, as it were, edited
11 exhibits need new 65 ter numbers.
12 JUDGE AGIUS: Okay.
13 MR. HAYNES: But there's no objection of substance.
14 JUDGE AGIUS: All right. Thank you. So all these documents are
15 being admitted. Madam Registrar, you will verify what Mr. Haynes has
16 just said; if there is a need to create new numbers, you will let us
17 know. And you have the go-ahead to proceed after that unless you get
18 instructions to the contrary.
19 Last of these documents, I understand, still needs translation,
20 so it will be MFIed pending translation thereof.
21 All right. We still have the Pandurevic exhibits pending. Do
22 you wish to proceed with the testimony now and leave them until later, or
23 what's your preference? I recognise Mr. McCloskey.
24 MR. McCLOSKEY: Ms. Stewart tells me we are ready to go. I've
25 talked with her about it, but I'm --
1 JUDGE AGIUS: Mr. Haynes.
2 MR. HAYNES: I hesitate to say I think we all are because it
3 involves more than two of us, but we're certainly ready to go again.
4 It's been something that we've been corresponding about heavily, I think,
5 over the last few days.
6 JUDGE AGIUS: All right. Okay. So do you anticipate big
8 MR. HAYNES: I don't anticipate any.
9 JUDGE AGIUS: Okay. That's even the best music I could hear this
10 morning. So we are going to do the exhibits pertaining to the Pandurevic
11 testimony. We have a whole list of documents circulated by the -- the
12 one I have is revised. You have another one.
13 [Trial Chamber and registrar confer]
14 JUDGE AGIUS: So we start with you, Mr. Haynes. You circulated a
15 list of, I think, 89 documents.
16 MR. HAYNES: Yes, that should be right because it started off
17 with 91, and I think we withdrew two.
18 JUDGE AGIUS: It's the one -- I have supposedly the revised one,
19 but I stand to be corrected. They keep coming in.
20 MR. HAYNES: I think we're down to this. There are three problem
21 documents which are 7D944, 946 and 948. 7D944 is a collection of regular
22 combat reports between January and March of 1995. The sole purpose of
23 them was to prove who signed them, and I think we can deal with that by
24 stipulation. 7D946, again, a number of interim combat reports -- not
25 interim, regular combat reports. I think only one or two was used in
1 evidence, and we will isolate those, give them new 65 ter numbers, and in
2 due course tender them for evidence rather than the whole batch. 948 are
3 what I call the Morillon combat reports. The majority of them were used,
4 not all, but I would tender them all into evidence subject to any
5 comments anybody's got to make. Other than that, no problems I don't
7 JUDGE AGIUS: All right. Let me start with the other Defence
8 teams. Any objections on the part of any one of you? We hear none.
9 Mr. McCloskey, any objections?
10 MR. McCLOSKEY: No, Mr. President. This has been the subject of
11 our discussions, and the first one with the Obrenovic signatures, we just
12 -- to save translation, resources will -- the stipulation of Mr. Haynes
13 will work. It shouldn't be a problem, just -- because they just wanted
14 Obrenovic being the signatory, didn't want all the substance of it. So
15 that should be no problem, and the last two, we don't have a problem
17 JUDGE AGIUS: All right. Thank you. So all these documents are
18 admitted. Any -- I'm leaving the matters raised as regards 46 and 48 --
19 946 and 948 to be dealt with by Mr. Haynes and cooperation with the
20 Prosecution, but particularly with the Registrar. Okay. And you have
21 authorisation at the end of the day once you have isolated the documents
22 out of 946 that you want to tender to substitute what you are indicating
23 here with the ones you wanted to tender.
24 MR. HAYNES: Yes, I'm sorry. I should have done it yesterday,
25 but I was caught up with other things.
1 JUDGE AGIUS: That's okay. That's quite understandable. Other
2 Defence teams? Mr. Gosnell.
3 MR. GOSNELL: Perhaps I'm speaking out of turn, but we have a
4 tender list that was distributed on the 3rd of March; 23 items on that
5 list, three documents, and then all the other documents are maps or
6 essentially extracts from the video that we played in the court and
7 showed to the witness. So I must say I haven't had any conversations
8 with the Prosecution. I don't know what their position is.
9 JUDGE AGIUS: Okay. Thank you. Let's start with the Pandurevic
10 Defence team first.
11 MR. HAYNES: No difficulty at all.
12 JUDGE AGIUS: Other Defence teams? Thank you, Mr. Haynes and all
13 the others. Mr. McCloskey?
14 MR. McCLOSKEY: No objection.
15 JUDGE AGIUS: All right. So all the documents are admitted. Any
16 which are pending -- are awaiting translation will be MFIed in the
17 interim. So, who else? Mr. Zivanovic?
18 MR. ZIVANOVIC: I sent my tender list last week as far as I
20 JUDGE AGIUS: Yes, you did. Mr. Haynes?
21 MR. HAYNES: No problem.
22 JUDGE AGIUS: Other Defence teams? Mr. McCloskey?
23 MR. McCLOSKEY: No objection.
24 JUDGE AGIUS: All right. All your documents are admitted, Mr.
25 Zivanovic. Mr. Ostojic.
1 MR. OSTOJIC: Thank you, Mr. President. We've also tendered our
2 list with the documents, and I've heard no response or objection from
3 either side.
4 JUDGE AGIUS: Mr. Haynes?
5 MR. HAYNES: I'll wait on one document. Sorry for being
6 enigmatic, but some of the discussion that I was having with the
7 Prosecution revolved around 2D639, which we withdrew from our list but
8 remains on the Beara list, which is the interview with Mr. Beara's
9 driver. I'll wait to hear what the Prosecution have got to say about
11 JUDGE AGIUS: Yes, Mr. McCloskey.
12 MR. McCLOSKEY: Yes, and as we sent in the e-mail to Mr. Ostojic,
13 though - there's been many, many e-mails - we had sent our objections to
14 three exhibits. The first one is 2D639, the interview with
15 Milos Tomovic. That's an interview, and that witness should be called or
16 it should be 92 bis or something. So I think based on what you have
17 established here over the last three years, that is not admissible. The
18 same thing with 2D645. That's another Milos Tomovic statement dated 1
19 February, and then the same thing with the Bruce Bursik statement on
20 information used during Milos Tomovic interview. That's another form of
21 a statement. So those should not be admissible under the rules as
22 established by the Tribunal and this court in particular.
23 JUDGE AGIUS: Okay. Thank you. Mr. Ostojic, do you wish to
25 MR. OSTOJIC: Thank you, Mr. President. I've heard their
1 conclusion, but I'm not sure if I understand the basis of their
2 objection, but I believe still that they should be admitted into evidence
3 as the practice has been with other witnesses when we've shown them
4 interviews that the Prosecution has and as, of course, the Defence has.
5 The court has accepted those interviews in part or in whole as evidence,
6 so I stand by submitting these documents in evidence.
7 JUDGE AGIUS: All right. Thank you. I would suggest that we
8 come down in due course in order not to waste more of our court time.
9 We'll hand down an oral decision later on. Okay.
10 So any other Defence team? Ms. Nikolic.
11 MS. NIKOLIC: [Interpretation] Good morning, Your Honours. Our
12 tender list was distributed on the 3rd of March of this year with the
13 documents that we used during the examination of Mr. Pandurevic. So far,
14 I've not heard any objections from any of the sides about any of the
15 documents tendered for admission.
16 JUDGE AGIUS: Yes. Mr. Haynes.
17 MR. HAYNES: No objection.
18 JUDGE AGIUS: Other Defence teams? Mr. McCloskey?
19 MR. McCLOSKEY: Yes. We have two objections that we did send to
20 their team by e-mail. The first is 3D00555, and that is the accused --
21 the convicted Radislav Krstic's testimony, and part of that was read in
22 to the record in cross-examination, and I'm sure the Court can do with
23 that what they wish, but the testimony itself without General Krstic
24 should not be admissible. There are no -- General Krstic was available
25 to be called to testify as far as I know. No one chose to call him.
1 That's a rather significant person that should be called and for the same
2 reasons as the previous person, Milos Tomovic, an alibi witness, a key
3 witness that could have been called. This would violate the rules of
4 this Tribunal to bring in something like that.
5 The same thing with 3D00556, testimony of Hadzihasanovic, Enver
6 Hadzihasanovic, and just bringing in the testimony like that would be in
7 violation of the rules, 92 bis and others, so we object to that as well.
8 JUDGE AGIUS: Okay. Thank you. Yes, Ms. Nikolic.
9 MS. NIKOLIC: [Interpretation] Your Honour, both these exhibits
10 3D555 and 3D556 are only relevant pages from the testimony. We are not
11 tendering the entire testimony of these two witnesses, Radislav Krstic
12 and Enver Hadzihasanovic, just the relevant pages used in
14 JUDGE AGIUS: My question is, you asked questions; if I remember
15 well -- I don't remember exactly, but if I remember well you even read
16 out parts from those testimonies. So they are in the record. Do you
17 need the document, as well, if they are in the record, if the relevance
18 part has been read out? Because in one case, I even made a point that
19 this is not to be taken as testimony.
20 MS. NIKOLIC: [Interpretation] Yes. I believe these pages were
21 read into the record, but let me check once again and see that indeed
22 everything on these pages is on the record.
23 JUDGE AGIUS: Okay. Thank you. For the time being, same
24 decision as in the Beara case. We'll postpone our decision on these two
25 documents until later. In the meantime, because I apologise to you,
1 Mr. Ostojic, I forgot to proceed with admitting the rest of the documents
2 which were not being contested. Same applies to you, Ms. Nikolic, rest
3 of the documents are being admitted.
4 Anyone else? Mr. Krgovic? Mr. McCloskey, you have also a
5 revised list, which has been circulated. Any remarks, Mr. Haynes,
7 MR. HAYNES: None at all.
8 JUDGE AGIUS: Other Defence teams? Mr. Gosnell.
9 MR. GOSNELL: Mr. President, we object to P4104.
10 JUDGE AGIUS: One moment. Let me find it. P?
11 MR. GOSNELL: P4104.
12 JUDGE AGIUS: Yes. The RS MUP order. Yes.
13 MR. GOSNELL: So we'll be objecting to that. I propose to handle
14 this in written submissions with your permission.
15 JUDGE AGIUS: Okay. But when?
16 MR. GOSNELL: Mr. President, I'll be in a position to file today
17 or tomorrow.
18 JUDGE AGIUS: All right. That's fine. Yes, Mr. Josse.
19 MR. JOSSE: Well, Your Honours, in the light of the recent Prlic
20 appeal decision, it's arguable that significant number of these documents
21 should not be admitted. But on behalf of General Gvero, we're going to
22 stick to the one that we are concerned about, which is P4402. And as
23 I've already said, relying on that decision in the Prlic case, we contend
24 that that document, if admitted, should only be admitted as to the
25 credibility of the witness, Mr. Pandurevic, and should not be admitted as
1 to substance. Fleshing that out, it really should have been adduced
2 earlier in the case if the Prosecution were relying upon it in any other
4 JUDGE AGIUS: Thank you, Mr. Josse. Mr. McCloskey?
5 MR. McCLOSKEY: Yes, Mr. President. I think we'll all agree the
6 underlying holding of the Prlic case was that these decisions are in the
7 discretion of the Trial Chamber. So after three years of your
8 discretion, I think it's pretty clear what that practice is. This
9 document, you may recall, is a notebook that was believed to be written
10 by President Karadzic and is believed to be notes that he took during a
11 meeting with the Drina Corps. I think it was the day -- a day or two
12 after Directive 4 was enacted, which set out the famous line of removing
13 the Muslim population. And the Directive 4 has been mentioned in this
14 indictment, and it's been contested throughout for many of the years. So
15 this is a particularly important document that puts Vinko Pandurevic at
16 that meeting and establishes how important this area was, and it happens
17 to mention General Gvero being there as well. And so I think this is a
18 particularly important document. There's no reason not to accept it, and
19 I think it should be admissible.
20 JUDGE AGIUS: Thank you. Mr. Josse.
21 MR. JOSSE: Well, if, as is accepted, that Directive 4 has been
22 mentioned in the indictment and it's been contested throughout for many
23 years, and if this is a particularly important document, then why was it
24 not adduced in the Prosecution case? The Prosecution are not allowed to
25 deal with matters in this way, in our submission, save for credibility
2 JUDGE AGIUS: Thank you. Yes, Mr. McCloskey.
3 MR. McCLOSKEY: To answer the specific question, we didn't know
4 about it. This was not held for some kind of last-minute ambush. We
5 didn't find out about it until relatively recently, and that's why we
6 used it.
7 JUDGE AGIUS: Okay. Thank you. We can't have a ping-pong game
8 here. I mean, it's --
9 MR. JOSSE: Your Honour, in my submission, I am allowed the last
10 word as the person raising the objection. But more to the point, I am
11 allowed to answer what he has just said. It's on the face of the
12 schedule, found 25th to 26th of May, 2005.
13 JUDGE AGIUS: If I give you the floor again, he will request the
14 last word, and I don't want anything to go on record as famous last words
15 which never were.
16 MR. McCLOSKEY: I won't say who found it, but perhaps we should
17 do it the way the other team is doing it, to file -- you know, if he's
18 serious about it, he should file something.
19 JUDGE AGIUS: I think we've heard enough about it. We'll
20 postpone our decision. We don't need any further filings. We have
22 Okay. All other documents are tendered are being admitted. Any
23 pending translation will be MFIed in the interim. The rest that have
24 been contested, the two that have been contested, we'll decide later on.
25 At some point in time, we'll come down with one oral decision dealing
1 with all the contested documents that we've heard about today. Okay.
2 Now, walking into the courtroom this morning, Madam Registrar
3 indicated that there was some discussion amongst you as to who was going
4 to start giving evidence today. Have you come to a conclusion, Mr.
6 MR. HAYNES: Yes. Mr. Thayer and I have been organising the
7 court schedule, and I think Mr. Thayer is going to call a witness this
9 JUDGE AGIUS: Okay. Thank you. That means we have to deal with
10 the issue of protective measures straightaway. To cut it short, we have
11 -- we are seized with the motion for protective measures that you are all
12 aware of. For your information, Mr. Zivanovic for accused Popovic has
13 filed his reply, which we are aware of. Is there any other Defence team
14 that wishes to make submissions on this? Mr. Josse.
15 MR. JOSSE: Just to say that during the course of the Prosecution
16 case, there were a large number of witnesses that sought protection. A
17 number of those applications were opposed by the Defence; the vast
18 majority were not, and unsurprisingly and quite properly in those
19 circumstances, the Trial Chamber granted the application. A number of
20 Defence teams sought protection for witnesses in the vast majority, if
21 not all cases, some form of objection was raised; and my understanding
22 was that it then became the practice and the habit of this Trial Chamber
23 to test carefully any application for protection. In our submission,
24 that is what should happen so far as this witness is concerned. The
25 Court should test whether this is a proper and well-founded application
1 and decide whether all the types of protection that is sought are in fact
2 necessary in the case of the witness who is about to testify.
3 JUDGE AGIUS: Thank you, Mr. Josse.
4 [Trial Chamber confers]
5 JUDGE AGIUS: Of course, Mr. Josse, we thank you for having
6 pointed these matters which are always on our mind. I can assure you
7 that with every motion for protective measures, we always discuss whether
8 we take for granted what is being alleged in the motion or whether we
9 should investigate further for two reasons; one is because a motion is
10 based on basically what the mover is informed by the person seeking
11 protective measures; and secondly, because sometimes on the face of it,
12 the reasons given are not always very convincing, and so we want to
13 explore further.
14 In this particular case, when we discussed, that was before we
15 received Mr. Zivanovic's response. We came to the conclusion that there
16 were at least two clear instances which we have no reason to doubt on the
17 basis of which we don't need any further -- to elicit any further
18 information from the witness. If, however, because fairness is our major
19 quest here, if you or anyone else for that matter have any shred of doubt
20 about what is being alleged, then please come forward and let us know,
21 and we'll do our job.
22 MR. JOSSE: Could I make it clear on behalf of our client that we
23 are not pursuing this further. This witness has little, if any, bearing
24 on his case.
25 JUDGE AGIUS: Thank you, Mr. Josse. So having considered, you
1 don't need to -- having considered the motions and the reasons brought
2 forward for seeking protective measures, the three protective measures
3 applied for, and having also seeing the Popovic Defence response, we
4 grant the motion and order that the protective measures sought be put in
6 Do you need a short break, or we'd only need to bring down the
7 curtains? Yes.
8 MR. THAYER: Good morning, Mr. President.
9 JUDGE AGIUS: Good morning.
10 MR. THAYER: I just wanted to alert the Court that this witness
11 requires a caution.
12 JUDGE AGIUS: Yes, I was going to ask you myself, in fact.
13 So for the information of the general public in the gallery, you
14 will soon notice the curtains coming down and this kind of a big board
15 being placed in front of you. The reason is that we are protecting a
16 witness. However, you will be able to follow the testimony, although you
17 will not be able to see the witness or hear his real voice. You will
18 hear another voice, an interpreter's voice.
19 Yes. Curtains, please. Mr. Josse is not cooperative as usual
20 this time. Further sign of protest against granting of protective
21 measures in this case.
22 MR. JOSSE: I'll make sure I do the job in reverse, Your Honours.
23 [The witness entered court]
24 JUDGE AGIUS: Good morning to you. I'm the presiding judge. My
25 name is Agius. I welcome you. You are about to start giving evidence.
1 Before you do so, you need to take the oath in the form of a solemn
2 declaration here. Mr. Usher is going to give you the text. Please read
3 it out aloud, and that will be your solemn undertaking with us.
4 THE WITNESS: [Interpretation] I solemnly declare that I will
5 speak the truth, the whole truth, and nothing but the truth.
6 WITNESS: WITNESS PW-172
7 [Witness answered through interpreter]
8 JUDGE AGIUS: Okay. Thank you. Please make yourself
9 comfortable. I will explain to you a few things.
10 The Prosecution on your behalf a couple of days ago filed a
11 motion for the issuance of protective measures intended to protect your
12 identity for reasons that were indicated in the same motion. The Popovic
13 Defence team did not object to the granting of these protective measures;
14 and also because of that, we have decided to grant you the protective
15 measures you sought, namely the use of a pseudonym and facial and voice
17 I take it that these have already been explained to you before
18 coming into this courtroom?
19 THE WITNESS: [Interpretation] Yes, thank you.
20 JUDGE AGIUS: All right. Before we proceed any further, I also
21 wish to alert you to a right that you have under our rules of evidence
22 and procedure, and you should keep this in mind in the course of your
24 There may be instances in the course of your testimony when you
25 may be asked questions which if you answer truthfully could possibly
1 expose you to criminal proceedings, could possibly incriminate you.
2 Now, in such cases, you have a right to draw our attention to
3 this and ask that you be exempted from answering such questions. This is
4 a right that you have. It's not an absolute right. In fact, we can
5 decide in one of two ways, either to grant you the exemption, exempt you,
6 dispense you from answering such question, or order you to answer the
7 question. If we force you to answer such questions, such incriminatory
8 questions, you have a further right, this right being that whatever you
9 then say in your reply to these incriminatory questions cannot be made
10 use of in any future proceedings against you. Have I made myself clear?
11 THE WITNESS: [Interpretation] I understood. Thank you.
12 JUDGE AGIUS: All right. And were you informed about these
13 rights before you came to the courtroom?
14 THE WITNESS: [Interpretation] I was.
15 JUDGE AGIUS: You fully understand the import of these rights?
16 THE WITNESS: [Interpretation] I understand.
17 JUDGE AGIUS: Okay. Thank you. Mr. Thayer will go first.
18 Presumably, you will then be cross-examined by others.
19 Mr. Thayer.
20 MR. THAYER: Thank you, Mr. President. Good morning again to you
21 and Your Honours. Good morning, everyone.
22 Examination by Mr. Thayer:
23 Q. Good morning, sir.
24 A. Good morning.
25 Q. We met for the first time -- let me formally introduce myself for
1 the record, although, again, we met yesterday. My name is Nelson Thayer.
2 I'll be asking you questions on behalf of the Prosecution. Before we get
3 underway, we need to take care of one formality.
4 MR. THAYER: If we could have 65 ter 4436 on e-court, please, and
5 this should not be broadcast.
6 Q. I think I mentioned yesterday, sir, that I would be handing you a
7 sheet of paper. We're going to do this electronically.
8 JUDGE AGIUS: Do you recognise your name there on that sheet of
10 THE WITNESS: [Interpretation] I do.
11 JUDGE AGIUS: Thank you. That will remain under seal.
12 MR. THAYER: Thank you, Mr. President.
13 JUDGE AGIUS: Thank you.
14 MR. THAYER: Mr. President, if we may go into private session.
15 JUDGE AGIUS: Let's go into private session, please.
16 [Private session]
11 Pages 32566-32568 redacted. Private session.
3 [Open session]
4 JUDGE AGIUS: We are in open session, Mr. Thayer.
5 MR. THAYER: Thank you, Mr. President.
6 Q. Now, sir, without revealing any particulars about yourself in
7 answering my question, did you ever serve in the (redacted)
8 (redacted); and
9 if so, can you tell the Trial Chamber when?
10 A. I'm afraid I did not understand your question.
11 Q. I'll break it down a little bit, sir.
14 JUDGE AGIUS: Mr. Haynes.
15 MR. HAYNES: It's a leading question.
16 MR. THAYER: I'm just trying to help him out, Mr. President.
17 JUDGE AGIUS: Let's proceed. Let's proceed.
18 THE WITNESS: [Interpretation] (redacted)
22 MR. THAYER:
23 Q. Do you recall approximately when that was, sir?
24 A. I believe that this was in the (redacted)
25 Q. Sir, I want to turn your attention now to July of 1995 and the
1 period after the VRS took over the Srebrenica enclave. I want you to
2 take your time. I know it's not easy for you, but I want you to take
3 your time and tell the Trial Chamber in as much detail as you can about a
4 particular assignment that you received in July of 1995 after the fall of
6 A. Approximately ten days after the fall of Srebrenica, my commander
7 called me and told me what I was supposed to do with the lorry, what job
8 I was supposed to do with the lorry. I was issued with a travel log that
9 I filled out according to his instructions, which means that I was
10 supposed to go to the Susica prison, collect some prisoners, detainees
11 that were kept there, and I was supposed to take them to be exchanged.
12 He assigned two other young foot soldiers who were supposed to accompany
13 me on that journey. That's what I did.
14 I started the engine of the lorry, and I went to the Susica
15 prison. I moved the lorry close to the prison. The prison security
16 loaded the prisoners onto the lorry, and we set off to the place where
17 the prisoners would be exchanged as I was told. (redacted)
20 When those prisoners were loaded onto the truck and when we set
21 off in the direction of Sekovici, I'm not sure - as I've already stated -
22 where the somewhat smaller column started forming. In other words, there
23 was another lorry and another passenger vehicle in that column. This
24 means that we set off from Vlasenica in the direction of Sekovici, and
25 sometime after Tisca or sometime before Vlasenica on the left-hand side
1 of the road we pulled over. There was a restaurant there. And in --
2 Q. Let me just interrupt, sir. I don't like to do this. Just for
3 the sake of the record, you said that you: "... set off from Vlasenica
4 in the direction of Sekovici, and sometime after Tisca or sometime before
5 Vlasenica on the left-hand side of the road we pulled over."
6 Did you mean to say before Vlasenica or some other location, sir?
7 I just want to make sure we clarify the record upfront on that.
8 A. Before Sekovici, that's what I meant. Sekovici.
9 Q. Okay. Thank you, sir. You were telling us about arriving at a
10 restaurant before Sekovici. Can you pick up what happened from there,
12 A. Yes. That restaurant which I noticed at the time, I saw that
13 there was a unit of the army there and that there were a few more
14 prisoners there to be loaded onto the lorries. Since I was the last in
15 that column of vehicles, the lorry that preceded me entered the area, and
16 the prisoners were loaded onto that lorry.
17 I don't know if anybody was loaded onto my lorry at that point in
18 time. I really don't know. They were there, some people were loaded
19 onto a lorry there, but I did not pay too much attention to the details
20 of the situation.
21 I noticed a somewhat larger number of soldiers as I arrived
22 there, and amongst them, which would turn out when everything was over,
23 there were five people there in front of the restaurant. Are you with
24 me? People were loaded onto the lorries, (redacted)
3 (redacted) I really don't know because I had never been there
4 before or since. In any case, we turned (redacted), and that was already a
5 dirt road, a village road. I don't know what to call it. It was a
6 macadam road. It was summer, so there was a lot of dust rising from the
7 road. I was the last in that convoy of vehicles, and it was very hard
8 for me to see the lorry in front of me. It was very hard for me to
9 follow it.
10 And after awhile, that column came to a halt. I saw where I
11 arrived, but I didn't know where I was, and at that moment as we pulled
12 over, (redacted)
18 So as we pulled over, somebody ordered us to provide security for
19 the lorries, to line ourselves up around the lorries. That's why I
20 retreated some 20 metres back along the road that we had come from, and
21 the two young soldiers who were with me all the time, who were sitting in
22 my lorry, they were also deployed together with the others. I never knew
23 who drove the first lorry in front of me and if there was anybody but the
24 driver in that lorry.
25 And what happened at that moment was this: The five soldiers
1 that I mentioned opened the back door of the lorry, and they took five
2 prisoners off the lorry. They took them to the right from the road where
3 the lorries were parked, and I wouldn't be able to tell you how far
4 exactly they took them, about 30 metres from the lorries. Then I heard
5 shots, and then I saw and realised that this would be no exchange, that
6 this was not the purpose that I was given.
7 I experienced a kind of shock, and the procedure continued at the
8 same rate; five by five people were being taken to be shot. This was
9 happening very fast and as soon as that was done, they went back, they
10 sat in the car, they got into the car, and they left that place.
11 In the meantime, a big construction machine arrived, a buc
12 loader, as they call it, and I imagined that that machine was digging a
13 hole. I never turned around to inspect that place. I suppose that that
14 big machine dug out a hole. In the meantime, while this machine was
15 still not there, when it was still supposed to arrive. The five soldiers
16 who had done that, they left. I don't know what happened with the next
17 lorry when that lorry left.
10 I went away, and in the meantime that construction machine had
11 arrived to dig the hole. The hole was eventually dug out, and (redacted)
18 (redacted) The machine probably covered the
19 hole, I don't know how, and they covered that grave and we went back in
20 the direction of Vlasenica, and that's how things happened on that day.
21 JUDGE AGIUS: We'll have the break now. Twenty-five minutes,
23 --- Recess taken at 10.21 a.m.
24 --- On resuming at 10.54 a.m.
25 JUDGE AGIUS: Yes, Mr. Thayer.
1 MR. THAYER: Thank you, Mr. President.
2 Q. Good morning again, sir.
3 A. Good morning.
4 Q. Just a couple of follow-up questions to your testimony, and then
5 I'll have some documents to review with you. Approximately what time of
6 the day was it when your commander gave you this order to go to the
7 Susica prison (redacted)?
8 A. I don't know exactly, but it was before noon. It was in the
9 morning around 8.00 or 9.00.
10 Q. Sir, you've referred to I think five soldiers who did the
11 shooting at this execution site. Do you know to which unit they
13 A. According to what I saw, they acted as a group, as a group of
14 five, and some of them, I don't know how many of them, (redacted)
16 Q. Did any of those soldiers appear to you to have any rank, sir?
17 A. No, I didn't notice that.
18 Q. So who was the most senior officer at this execution site, sir?
19 A. As far as I could tell from what I knew, it was
25 Q. And how did you know that they existed?
1 A. Well, from my conversations with other soldiers, and I also saw
2 people bearing such insignia around town, and I also heard that they had
3 been billeted somewhere in the vicinity of (redacted), but I don't know
5 Q. Okay, sir. What I want to spend the rest of our time together
6 doing is just going through some documents with you.
7 MR. THAYER: And if we could go into private session, I am
8 afraid, for most of this, Mr. President, because it may identify the
10 JUDGE AGIUS: All right. So let's go into private session for
11 awhile, please.
12 [Private session]
11 Page 32577 redacted. Private session.
12 [Open session]
13 JUDGE AGIUS: Yes, we are now in open session. May I remind the
14 technicians not to broadcast any of the documents that will be showing up
15 on our screens until further notice. Thank you.
16 MR. THAYER:
17 Q. Sir, the -- you've told us that you recognise this document as
18 referring to the truck you drove. What model truck was it, sir?
19 JUDGE AGIUS: One moment, because something is occurring to my
20 mind, that as long as we refer specifically to documents by their exhibit
21 number and those documents are available -- they will be under seal. All
22 right. If they will be under seal, okay, we can go ahead. Otherwise,
23 there will be problems.
24 MR. THAYER: Thank you, Mr. President. I've discussed that with
25 Madam Registrar.
1 JUDGE AGIUS: Thank you.
2 MR. THAYER:
3 Q. Sir, looking at this document, can you identify what the model of
4 this truck you drove was?
5 A. Yes. It's a military lorry, TAM, T-A-M, 110 107.
6 Q. And what is the registration number?
7 A. (redacted)
8 Q. Now, sir, with help from Mr. Usher, I would ask you to take the
9 pen that's on the computer and circle -- and, again, please don't reveal
10 your identity in any way, but I just want you to circle your name if you
11 see it on this document, and we are not being broadcast.
12 JUDGE AGIUS: Is it necessary? I mean, we know who he is. He
13 has confirmed his identity. He can confirm to us that his name appears
14 on this document, and that should suffice.
15 MR. THAYER: Very well, Mr. President.
16 JUDGE AGIUS: All right. Thank you.
17 MR. THAYER:
18 Q. Sir, do you see your name anywhere on this document?
19 A. I do.
20 MR. THAYER: And if we may have the next page, please.
21 Q. And can you read this page well enough, sir, or do you need the
23 A. For the most part.
24 Q. And do you recognise your handwriting anywhere on this page?
25 A. Yes.
1 Q. Can you tell us which entry?
2 A. Line 6.
3 Q. And if you would just read the date on that line just for the
4 record so we know we're doing the counting right here. Just give us the
5 date and the route.
6 A. (redacted)
7 Q. Do you recognise any other handwriting on this document, sir?
8 A. No.
9 MR. THAYER: May we have 65 ter 4432 in e-court, please. And for
10 this document, Mr. President, I think we can go into open session.
12 JUDGE AGIUS: We are in open session. In other words, we can
13 broadcast it.
14 MR. THAYER: Broadcast is what I meant, Mr. President. Thank
16 Q. Take a moment, sir, please, and review this document and let us
17 know if you can identify what it is.
18 A. I can. I can read it.
19 Q. And what is it?
20 A. It's the travel log of the minivan, licence plates (redacted).
21 Q. And do you recognise what this minibus is and to which unit it
22 belonged in July of 1995?
23 A. Yes, I know. I know which minibus this is. (redacted)
25 Q. And there are three drivers that we can see listed on this first
1 page, sir. Do you know who these individuals are -- or let me ask a
2 better question. July of 1995, sir, did you know who these people were?
3 A. I know they are drivers from the (redacted), but I don't
4 know them by name. I know them by sight. I just don't know which one is
6 Q. And just to clarify, sir, in July of 1995 were you familiar with
7 the names themselves? Forgetting about whether you could put a name to a
8 face, were these names that you were familiar with in July of 1995?
9 A. They must have been. I knew these people by sight, but I didn't
10 know which one is which by name. But I knew that these people were
11 drivers of the (redacted).
12 Q. Okay, sir. Just a couple of more questions for you.
13 MR. THAYER: And we need to go back into private session,
14 Mr. President, please.
15 JUDGE AGIUS: Let's go back to private session, please.
16 [Private session]
11 Page 32582 redacted. Private session.
9 [Open session]
10 JUDGE AGIUS: That concludes the direct, the examination-in-chief
11 of this witness.
12 Mr. Zivanovic, do you have a cross-examination?
13 MR. ZIVANOVIC: Yes, Your Honours.
14 JUDGE AGIUS: Yes. How long do you reckon will it last?
15 MR. ZIVANOVIC: I don't know, but --
16 JUDGE AGIUS: I am asking you not to restrict it but to be able
17 to plan better.
18 MR. ZIVANOVIC: Yes. I'll do my best to be as short as possible.
19 JUDGE AGIUS: You always do. I appreciate that. So please go
21 MR. ZIVANOVIC: Thank you.
22 Cross-examination by Mr. Zivanovic:
24 A. Good day.
25 JUDGE AGIUS: Your microphone is off. Yes, but your microphone
1 is off, and we need to redact, and please be careful.
2 MR. ZIVANOVIC: [Interpretation] I'm sorry.
3 JUDGE AGIUS: Anyone who may have heard that, you are duty-bound
4 not to repeat the name. Mr. Zivanovic.
5 MR. ZIVANOVIC: [Interpretation]
6 Q. I'm sorry. I'll introduce myself, although we've had occasion to
7 meet. My name is Zoran Zivanovic, and in these proceedings I appear as
8 Defence counsel for Vujadin Popovic.
9 In your evidence earlier, you said, among other things, that when
10 you were present at that execution, you mentioned you were in shock.
11 A. Yes.
12 Q. I had occasion to read also your statement given to the
13 Prosecution exactly a year ago on the 10th of March, 2008, and I will
14 quote only that one sentence the way you put it. It's on page 14 in
15 B/C/S. Exhibit 4435, page 14 in B/C/S, 18 to 21 lines. In English, it's
16 page 20, lines 18 to 24. It reads:
17 "Nothing. I was lost. What am I going to do? I never seen
18 anything like that even in a movie. You understand? I didn't dare to
19 look around."
20 Then in B/C/S, it says "unclear" because you must have added
21 something that was unclear. In English, there is no reference to that.
22 First of all, does this reflect the way you really felt?
23 A. Yes.
24 Q. Tell me, please, what was it that scared you so badly that you
25 did not dare turn back and look?
1 A. Well, first of all, I had never seen anything like that in my
2 life, before or after, such killing of people. And I wasn't expecting
3 that to happen, and even if I had anticipated it, it would have been a
5 Q. Can you tell me, please, at that time did you experience fear of
6 someone or something that made you so scared that you didn't dare to look
8 A. It was fear from everything that had just happened. Simply, I
9 saw people taken away. I heard shots, and that meant murder, killing.
10 Q. Were you afraid for your own life?
11 A. Yes.
20 JUDGE AGIUS: Mr. Zivanovic and Witness, you speak the same
21 language, and, therefore, there is always this tendency to overlap. It's
22 mostly you, Witness, that is doing this. So if you could kindly wait a
23 bit after Mr. Zivanovic has finished his question before you start to
24 give your answer, okay?
25 THE WITNESS: [Interpretation] Very well.
1 JUDGE AGIUS: You should look at Mr. Zivanovic's microphone and
2 wait until you see it being switched off before you start giving your
3 answer. Thank you.
4 Mr. Zivanovic.
5 MR. ZIVANOVIC: [Interpretation]
6 Q. Could you please tell me approximately how much time lapsed from
7 the moment when you set out in the direction of (redacted) until the moment
8 when all this happened, the incident that you described for us?
9 A. It took some time, but I don't know how long.
10 Q. Could you perhaps, looking at the document that you had an
11 opportunity to see, confirm that you were there between 8.30 and
12 1500 hours? Maybe you need to see the document again.
13 A. I saw the document, and it's correct.
14 Q. Could you please give us your best estimate as to how much longer
15 did you stay there after the incident had happened?
16 A. I wouldn't be able to give you any specific time. The first
17 statement that I provided, I said that the journey lasted two hours, but
18 later on it dawned on me that it was impossible. I can see from the
19 document how long it lasted, so I wouldn't be able to give you any
20 specific times. I don't know how much it lasted, actually.
21 THE INTERPRETER: Microphone for the counsel.
22 JUDGE AGIUS: Microphone.
23 MR. ZIVANOVIC: [Interpretation]
24 Q. You said in the interview, and you will remember, that this
25 happened after two hours, that you returned to Vlasenica in two hours'
1 time. Do you remember that?
2 A. Yes. I remember having said that, but later on I deny that
3 because it's impossible that this took only two hours. I didn't know the
4 road well, but it is impossible -- even if I had known the road, it would
5 have been impossible for me to make the journey in two hours.
6 Q. I don't know whether we understood each other well. I did not
7 ask you whether it took you two hours from Vlasenica and back. I did not
8 mean that the whole process lasted two hours. Is that how you understood
9 my question?
10 A. Yes.
11 Q. I wanted to ask you something completely different. Could you
12 please give us your estimate as to how much time lapsed from the moment
13 when the whole thing over there was over, when the five soldiers had
14 carried out the execution, until the moment when you returned to
15 Vlasenica. Could you give us that estimate, how much time lapsed, and
16 would that be the two hours that you have just referred to?
17 A. Let me put it this way: I cannot be a hundred per cent sure.
18 However, the work of that piece of construction equipment and the burials
19 must have lasted at least an hour, maybe even more. I'm not sure at the
20 moment. I'm sure that it took me over an hour to return to Vlasenica,
21 but I, again, cannot be sure of that either.
22 Q. While you were at that place, did you have any contact with those
23 five men that you described for us? Did you talk to them? Did they say
24 something to you? Do you remember?
25 A. No. When they got off the lorries, one of them asked us to take
1 our positions, but I believe that that's all that I heard from them.
2 Q. As you were describing the five soldiers, you described their
3 clothes. Could you please be more precise and describe for us a bit --
4 with a bit more detail how they looked like. Did they wear uniforms or
5 civilian clothes or something else?
6 A. As I've already stated, (redacted)
11 Q. Tell me, please, as you observed their actions, could you maybe
12 tell whether any of them had a higher rank than the rest of them? Could
13 you gain such an impression?
14 A. As far as I can remember, among the five of them one was a
15 leader. One could observe that.
16 Q. Could you observe that based on the insignia on their clothes or
17 just on that particular person's behaviour?
18 A. Based only on that person's behaviour and attitude towards
19 others. I did not observe any different insignia.
25 A. As I arrived up there and as I got off the lorry, they did engage
1 in a very brief conversation that I couldn't hear, and it is my opinion
2 and my conclusion as far as I could observe that that did not involve any
3 sort of a command. (redacted) was not issuing any orders, as far as I could
5 Q. You said (redacted) I believe that you misspoke.
6 A. I apologise. I meant (redacted), and I meant to say
7 that I did not see (redacted) issuing any direct orders to them.
8 Q. You said that there were some passenger vehicles at that same
9 place, and you have also told us that one of the vehicles was (redacted)
10 vehicle. Could you please describe that vehicle for us?
11 A. I can. As far as I can remember, it was a (redacted). I can't give
12 you the exact colour, but I just knew that it was (redacted)
13 Q. So you can't remember the colour at all, the colour of the
14 vehicle that you saw up there?
15 A. To be honest, I'm not an expert in colours. I'm afraid that I
16 might make a mistake if I attempt at defining the colour.
17 THE INTERPRETER: Microphone for the counsel, please.
18 JUDGE AGIUS: Your microphone, Mr. Zivanovic.
19 MR. ZIVANOVIC: [Interpretation]
20 Q. In the interview that you provided to the OTP a year ago, you
21 said that you did not remember whether (redacted) had worn a uniform or
22 civilian clothes. Is that still the case?
23 A. I'm still not sure. I'd sooner say that he wore military
24 clothes, but I'm not sure.
25 Q. Likewise, as I am reading your interview I can see that you said
1 that those men immediately after the execution had left the spot. Could
2 you tell us how much time lapsed between the execution and their
3 departure? Did they depart immediately? Did they do something else
4 before that?
5 A. They departed immediately. They did not say a word to anybody.
6 They just -- they had done what they had to do, and they left.
7 Q. Tell me, please, we have seen a document about your prison
8 sentence or something to that effect, and as you have described it for
9 us, you were released because of your (redacted). How come you
10 never mentioned that when you were interviewed by the OTP? (redacted)
13 A. I suppose that I did not remember at the time. A lot of time had
14 lapsed, and to be honest, I really didn't know whether it was at all
15 important or not, but then my memory was jogged, and I remembered other
16 things as well.
17 Q. How was your memory jogged? Can you tell us?
18 A. When the investigators showed me the document, then I remembered,
19 of course. It was the document that jogged my memory.
20 Q. Which document was shown to you and reminded you of the (redacted)
21 (redacted) that you had at the time?
22 A. The order on my custodial sentence.
23 Q. When was the document shown to you? Do you remember?
24 A. During my first interview. Yes.
25 Q. And you didn't know at the time, i.e., you did not tell them at
1 the time that you had suffered from a (redacted) and that you were
2 released at your doctor's advice?
3 A. No, I don't remember. I don't know. I don't think I told them
4 that at the time. I didn't state that, no.
5 Q. Why? What was the reason? Is it because it never occurred to
6 you at the moment, you didn't remember, or was there any other reason why
7 you didn't tell them at the time?
8 A. At that moment, I really couldn't remember that detail, and also,
9 as I tried to explain to the Prosecutor yesterday, my psychological
10 state, my mental state throughout 1995 was rather problematic. And I was
11 rather preoccupied by my own problem, and if you will allow me, I would
12 like to explain. Up to then, I had already suffered through a number of
13 dramatic events. (redacted)
19 I was physically present during many events. However, at the
20 same time my mind was not there. I was absent mentally.
21 JUDGE AGIUS: All right. Just one moment, Mr. Zivanovic.
22 [Trial Chamber and registrar confer]
23 JUDGE AGIUS: Okay. Sorry for the interruption, Mr. Zivanovic,
24 but we are just handling an issue that could arise. So let's proceed.
25 And if you put any questions that you think could identify him, ask that
1 we go in private session.
2 MR. ZIVANOVIC: I believe that some part of this testimony
3 requires --
4 JUDGE AGIUS: Let's proceed. In the meantime, we are looking
5 into that.
6 MR. ZIVANOVIC: Thank you. [Interpretation] Maybe we should go
7 into private session.
8 [Private session]
7 [Open session]
8 JUDGE AGIUS: We are still in private session. We are in open
9 session now.
10 MR. ZIVANOVIC: [Interpretation]
11 Q. Reading on in your interview, at the very end of the interview,
12 the last page, I noticed that you said to the investigator and the
13 Prosecutor these words: Am I going on as a witness? And he answered,
14 That's something that we'll have to talk about and think about,
15 et cetera.
16 What was it that you wanted to know, really, when you asked that
18 A. Well, I expected that there would be some consequences for me if
19 I became a witness, just anxiety and fear for my own safety and that of
20 my family.
21 Q. When you say "fear," do you mean that you could possibly be
22 incriminated and accused of something yourself or that kind of fear?
23 A. No, no. I wasn't afraid of being accused or charged with
24 anything. I just thought that there would be plenty people who would not
25 appreciate my story and what I have to say.
1 Q. Could you elaborate? What plenty people who would not like your
3 A. Well, specifically the people who did it. The people who did it.
4 And to be quite frank, the community where I live would probably change
5 their opinion of me, both the Serb and the Muslim side.
6 Q. I think -- I'm sorry.
7 MR. ZIVANOVIC: Private session, please.
8 JUDGE AGIUS: Let's just do that. Let's move into private
9 session, please.
10 [Private session]
11 Pages 32595-32596 redacted. Private session.
9 [Open session]
10 JUDGE AGIUS: Yes, we are in open session. Mr. Zivanovic, shall
11 we remain in open session or do you prefer --
12 MR. ZIVANOVIC: Yes.
13 JUDGE AGIUS: Okay. Then carry on with your questions, please.
14 Let me address myself to the witness. Are you feeling better now?
15 THE WITNESS: [Interpretation] Yes.
16 JUDGE AGIUS: If at any time you wish to stop, please let us
18 THE WITNESS: [Interpretation] Thank you.
19 JUDGE AGIUS: Mr. Zivanovic.
20 MR. ZIVANOVIC: [Interpretation]
21 Q. I have just a couple more questions to ask you, so that shouldn't
22 take long.
23 Bearing in mind that you are not feeling too well, or at least
24 that's my impression, I would like to conclude this examination by
25 sharing the information that we as a Defence team have and what our
1 position is on the event that you've just described for us. So I would
2 kindly ask you to answer my questions to the extent you possibly can;
3 namely, (redacted)
5 (redacted) Could you please tell me whether you can confirm whether our
6 position is correct, whether what we believe is true is indeed correct?
7 A. I believe that you are right there, sir.
8 Q. Thank you. Our second question -- or our second position,
9 rather, is as follows: (redacted)
18 MR. ZIVANOVIC: [Interpretation] Thank you. I have no further
19 questions for you, sir.
20 JUDGE AGIUS: Thank you. Anybody else wishes to cross-examine
21 this witness? Mr. Haynes.
22 MR. HAYNES: I think I've got protective measures.
23 JUDGE AGIUS: Do you wish to change places with someone?
24 MR. HAYNES: Certainly. I'll go and sit next to Ms. Nikolic.
25 JUDGE AGIUS: You don't mind that, Ms. Nikolic. I have to ask,
1 and taking Mr. Bourgon's place is no joke. Mr. Haynes.
2 MR. HAYNES: Maybe something will rub off on me.
3 Cross-examination by Mr. Haynes:
4 Q. Good afternoon, Witness. My name is Peter Haynes, and I just
5 want to ask you a few questions about the events you've described to us.
6 MR. HAYNES: Can we, out of an abundance of caution, go into
7 private session, firstly, please.
8 JUDGE AGIUS: Yes, let's do that.
9 [Private session]
4 [Open session]
5 MR. HAYNES:
6 Q. Your name is obviously on that document. Do you know the other
7 five men whose names are on that document?
8 A. Yes, I do.
9 Q. And were they all part of the same unit as you?
10 A. Yes, they were.
11 Q. So they were all (redacted)?
12 A. (redacted)
13 Q. Thank you. Now, we see who that document is signed by. That was
14 the person you had to go to, was it, to request a transfer as a (redacted)
23 MR. HAYNES: I don't think that's a problem, is it?
24 JUDGE AGIUS: No, go ahead. We are taking care of -- [microphone
25 not activated].
1 MR. HAYNES: Thank you.
2 Q. Now, coming on 18 months from that document, in addition to
3 yourself when you took this trip, you mentioned two foot soldiers. Were
4 they (redacted)?
7 Q. Thank you. Now, your commander on that occasion told you what
8 route you were to drive, but when you arrived there, whose orders were
9 you obliged to obey?
10 A. Nobody ever explained that to us. Nobody told us that.
11 Q. Presumably, you were told where to stop the lorry, were you, and
12 told where to go when you got out, and told when you could leave? Were
13 you told those things?
14 A. As you could see from the travel log, no specific instructions or
15 orders were necessary. It says (redacted) Do you
16 see? So nothing else. No other details were provided to us at the
17 moment when we were leaving.
18 Q. Well, how did you know where to stop the lorry?
19 A. To be honest, I would not have known exactly if there hadn't been
20 somebody leading us there.
21 Q. And who was that?
22 A. Somebody did. At that moment, to me personally it didn't really
23 matter who our leader was, but we did have a leader. Somebody was
24 leading us.
25 Q. Very well. (redacted)
3 Q. You'd never been there before or since?
4 A. Never.
5 Q. You didn't know that you were in the defence zone of the
6 Sekovici Brigade at that time?
7 A. No. I really didn't care in whose zone I was.
8 Q. The soldiers from the (redacted), were you aware
9 they were a (redacted) unit?
11 Q. And whose orders did they appear to be obeying?
12 A. I don't know, but as far as I could tell and conclude at the
13 time, they had received various specific instructions from somebody else
14 for the job that they were to do, but I don't know who the instructions
15 had come from.
16 Q. Well, while they were at (redacted) at the site where these people
17 were killed, whose orders were they obliged to obey?
18 A. Of the five of them, as far as I could tell and conclude in a
19 haste, one of the five of them somehow appeared to have the leading role
20 and command.
21 Q. How did he appear to have that?
22 A. The way they were deployed, the way they were set to do their
23 respective jobs.
24 Q. And other than his four colleagues from that unit, did he speak
25 to anybody else while he was there, the one who appeared to be in charge?
1 A. No. When we stopped the lorries, one of the five of them told us
2 to take our positions, and that was all. That was all the communication,
3 and I don't know whether that was that particular man or some other of
4 the five.
5 Q. The two foot soldiers who went with you, what did they do?
6 A. As the convoy stopped, they provided security for the place, and
7 then they loaded the bodies into the construction machine.
8 Q. Who told them to do that?
9 A. The construction machine was turned off by the person who was
10 operating the machine and who had been digging the grave. (redacted)
18 What I'm saying is that there was nothing resembling military
19 command or order. (redacted)
8 MR. HAYNES: I do not doubt it, Witness, but I'm content with
9 your answer, and I have no further questions.
10 JUDGE AGIUS: Thank you, Mr. Haynes.
11 THE WITNESS: [Interpretation] Thank you.
12 JUDGE AGIUS: I notice that the last part of the witness's answer
13 hasn't appeared on this script as yet. It seems to be struck. Is there
14 a problem?
15 [Trail Chamber confers]
16 JUDGE AGIUS: To me, it stops at line 23 after the words: (redacted)
19 MR. HAYNES: Shall I help?
20 JUDGE AGIUS: I don't think you can help.
21 MR. HAYNES: The transcript is jammed.
22 JUDGE AGIUS: The transcript is jammed. If you look at line 19
23 on page 58 on the monitor.
24 MR. HAYNES: Yes. It's okay on the LiveNote.
25 JUDGE AGIUS: There it is okay. But in the transcript on
1 LiveNote -- okay. All right. But what I'm saying is not showing up in
2 any case. Yes, it's showing up on the monitor.
3 All right. Let's continue. Any other Defence team wishes to
4 cross-examine the witness? None. Mr. Thayer, do you have a
6 MR. THAYER: No, Mr. President.
7 JUDGE AGIUS: Thank you. Any questions, Judge? No questions.
8 That means we have come to the end of your testimony. Our staff
9 will assist you to arrange your return home. On behalf of my colleagues
10 and the Tribunal, I wish to thank you for having come over to give
11 evidence, and I also wish you a safe journey back home.
12 THE WITNESS: [Interpretation] Thank you very much, and thank you
13 very much for your understanding.
14 JUDGE AGIUS: Curtains, please. Mr. Josse. Thank you.
15 MR. JOSSE: Glad to be of some assistance.
16 JUDGE AGIUS: Now, what's wrong, the curtains -- okay. They are
17 coming down.
18 Okay, the witness can leave the courtroom, and we get to the
20 [The witness withdrew]
21 JUDGE AGIUS: Mr. Thayer.
22 MR. THAYER: Thank you, Mr. President.
23 JUDGE AGIUS: You have circulated a list.
24 MR. THAYER: We've distributed a list, and I guess, channelling
25 Mr. Bourgon for a moment, I'll note obviously these don't have 65 ter
1 numbers because it's in connection with a re-opening witness. I've tried
2 canvassing my friends, as many as I could, to see whether there would be
3 any objection to simply applying through that technicality orally to
4 place them on our 65 ter list, but I haven't had a chance to speak with
5 everybody. But I do note that none of these documents was on our
6 original 65 ter list.
7 JUDGE AGIUS: Any objection from anyone? No objection. Thank
8 you, Mr. Zivanovic. Any objections to the admission of the documents?
9 None. So these documents are all admitted. I notice that at least one,
10 4425 hasn't been translated into English yet. Do you intend to translate
11 it, Mr. Thayer, to have it translated, rather?
12 MR. THAYER: Yes, Mr. President. I think we actually may have
13 one in house already, and it may just not have popped up, but I'll follow
14 up on that, certainly.
15 JUDGE AGIUS: All right. In the meantime that document will
16 remain MFI'd pending translation thereof.
17 Mr. Zivanovic, any documents that you may wish to tender?
18 MR. ZIVANOVIC: No, Your Honours.
19 JUDGE AGIUS: Thank you. Mr. Haynes, neither?
20 MR. HAYNES: No, I only used P4423, which is on the Prosecution
22 JUDGE AGIUS: Yes, I thought so much.
23 All right. That concludes this witness. Is there any other
24 business that we can transact today? Mr. McCloskey, Mr. Haynes? I don't
25 know who wishes to address the Chamber first.
1 MR. HAYNES: It's probably best if I do.
2 JUDGE AGIUS: Yes, Mr. Haynes.
3 MR. HAYNES: The strong likelihood is that we're not going to
4 transact any business tomorrow, either, I am afraid to say.
5 JUDGE AGIUS: Why?
6 MR. HAYNES: Because it is likely I will withdraw that witness.
7 Well, Mr. Josse believes that the second Besina witness will be ready,
8 but that's not my recollection of what Mr. Thayer told us earlier.
9 JUDGE AGIUS: My recollection was that he will be arriving today,
10 and the Prosecution asked for the sitting of tomorrow to start at 10.30
11 rather than at 9.00. That was my understanding. Yes, Mr. Thayer?
12 MR. THAYER: That's correct, Mr. President.
13 JUDGE AGIUS: Okay. And he will be arriving today? Or she?
14 MR. THAYER: This evening, Mr. President.
15 JUDGE AGIUS: So is there anything else you wish to --
16 MR. HAYNES: No, sorry, and I correct what I had said earlier.
17 I'd forgotten that.
18 JUDGE AGIUS: It happens. So, Mr. McCloskey, I saw you standing
19 before. Do you wish to make a statement or what?
20 MR. McCLOSKEY: No, Mr. Thayer covered it.
21 [Trial Chamber confers]
22 JUDGE AGIUS: So tomorrow we are starting at 10.30. In the
23 meantime, can someone enlighten us on what's going to happen on Thursday?
24 Mr. Haynes?
25 MR. HAYNES: I shall call a witness.
1 JUDGE AGIUS: Okay. You still intend to?
2 MR. HAYNES: Yes.
3 JUDGE AGIUS: All right. You will not change your mind by
5 MR. HAYNES: All things are possible, as has been said many times
6 in this case, but I don't think so.
7 JUDGE AGIUS: Okay. And Friday, we will still be off. We are
8 not sitting Friday. Okay.
9 All right. So we stand adjourned until tomorrow morning at
11 --- Whereupon the hearing adjourned at 1.06 p.m.,
12 to be reconvened on Wednesday, the 11th day of
13 March, 2009, at 10.30 a.m.