Tribunal Criminal Tribunal for the Former Yugoslavia

Page 32546

 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

Page 32547

 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

Page 32548

 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

11     witness.

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

19     page.

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.

Page 32549

 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

21     two.

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.

Page 32550

 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 --

Page 32551

 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

 7     problems?

 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

Page 32552

 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

 6     think.

 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

16     with.

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.

Page 32553

 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

19     remember.

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.

Page 32554

 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

10     that.

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

24     comment?

25             MR. OSTOJIC:  Thank you, Mr. President.  I've heard their

Page 32555

 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.

Page 32556

 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

13     cross-examination.

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,

Page 32557

 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

Page 32558

 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

 3     way.

 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

Page 32559

 1     purposes.

 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

21     enough.

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

Page 32560

 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.

 5     Haynes?

 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

 8     morning.

 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

Page 32561

 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

Page 32562

 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

 5     place.

 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.

Page 32563

 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

16     distortion.

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

23     testimony.

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

Page 32564

 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

Page 32565

 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

 9     paper?

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]

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 32566











11 Pages 32566-32568 redacted. Private session.















Page 32569

 1     (redacted)

 2     (redacted)

 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.

12     (redacted)

13     (redacted)

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)

19     (redacted)

20     (redacted)

21     (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

Page 32570

 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

 5     Srebrenica.

 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)

18     (redacted)

19     (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

Page 32571

 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,

11     please?

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)

25     (redacted)

Page 32572

 1     (redacted)

 2     (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)

13     (redacted)

14     (redacted)

15     (redacted)

16     (redacted)

17     (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

Page 32573

 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.

18     (redacted)

19     (redacted)

20     (redacted)

21     (redacted)

22     (redacted)

23     (redacted)

24     (redacted)

25     (redacted)

Page 32574

 1     (redacted)

 2     (redacted)

 3     (redacted)

 4     (redacted)

 5     (redacted)

 6     (redacted)

 7     (redacted)

 8     (redacted)

 9     (redacted)

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)

12     (redacted)

13     (redacted)

14     (redacted)

15     (redacted)

16     (redacted)

17     (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,

22     please.

23                           --- Recess taken at 10.21 a.m.

24                           --- On resuming at 10.54 a.m.

25             JUDGE AGIUS:  Yes, Mr. Thayer.

Page 32575

 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

12     belonged?

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)

15     (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

20     (redacted)

21     (redacted)

22     (redacted)

23     (redacted)

24     (redacted)

25        Q.   And how did you know that they existed?

Page 32576

 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

 4     where.

 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

 9     witness.

10             JUDGE AGIUS:  All right.  So let's go into private session for

11     awhile, please.

12                           [Private session]

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 32577











11 Page 32577 redacted. Private session.















Page 32578

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

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.

Page 32579

 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

22     original?

23        A.   For the most part.

24        Q.   And do you recognise your handwriting anywhere on this page?

25        A.   Yes.

Page 32580

 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.

11     Sorry.

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

15     you.

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)

24     (redacted)

25        Q.   And there are three drivers that we can see listed on this first

Page 32581

 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

 5     which.

 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]

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 32582











11 Page 32582 redacted. Private session.















Page 32583

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 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

20     ahead.

21             MR. ZIVANOVIC:  Thank you.

22                           Cross-examination by Mr. Zivanovic:

23        (redacted)

24        A.   Good day.

25             JUDGE AGIUS:  Your microphone is off.  Yes, but your microphone

Page 32584

 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?

Page 32585

 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

 4     shock.

 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

 7     back?

 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.

12     (redacted)

13     (redacted)

14     (redacted)

15     (redacted)

16     (redacted)

17     (redacted)

18     (redacted)

19     (redacted)

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.

Page 32586

 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'

Page 32587

 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

Page 32588

 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)

 7     (redacted)

 8     (redacted)

 9     (redacted)

10     (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.

20     (redacted)

21     (redacted)

22     (redacted)

23     (redacted)

24     (redacted)

25        A.   As I arrived up there and as I got off the lorry, they did engage

Page 32589

 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

 4     tell.

 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

Page 32590

 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)

11     (redacted)

12     (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

Page 32591

 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)

14     (redacted)

15     (redacted)

16     (redacted)

17     (redacted)

18     (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

Page 32592

 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]

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 32593

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 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

17     question?

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.

Page 32594

 1        Q.   Could you elaborate?  What plenty people who would not like your

 2     story?

 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   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 32595











11 Pages 32595-32596 redacted. Private session.















Page 32597

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 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

17     know.

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

Page 32598

 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)

 4     (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)

10     (redacted)

11     (redacted)

12     (redacted)

13     (redacted)

14     (redacted)

15     (redacted)

16     (redacted)

17     (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,

Page 32599

 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]

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 32600

 1   (redacted)

 2   (redacted)

 3   (redacted)

 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)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (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].

Page 32601

 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)?

 5     (redacted)

 6     (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)

Page 32602

 1     (redacted)

 2     (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?

10     (redacted)

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?

Page 32603

 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)

11     (redacted)

12     (redacted)

13     (redacted)

14     (redacted)

15     (redacted)

16     (redacted)

17     (redacted)

18             What I'm saying is that there was nothing resembling military

19     command or order.  (redacted)

20     (redacted)

21     (redacted)

22     (redacted)

23     (redacted)

24     (redacted)

25     (redacted)

Page 32604

 1     (redacted)

 2     (redacted)

 3     (redacted)

 4     (redacted)

 5     (redacted)

 6     (redacted)

 7     (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)

17     (redacted)

18     (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

Page 32605

 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

 5     re-examination?

 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

19     documents.

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

Page 32606

 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

21     list.

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.

Page 32607

 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.

Page 32608

 1             JUDGE AGIUS:  Okay.  You still intend to?

 2             MR. HAYNES:  Yes.

 3             JUDGE AGIUS:  All right.  You will not change your mind by

 4     tomorrow?

 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

10     10.30.

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.