Tribunal Criminal Tribunal for the Former Yugoslavia

Page 171





5 Wednesday, 3rd April 1996






11 Before:



14 (The Presiding Judge)










24 -v-


Page 172











11 behalf of the Prosecution



14 ________________






20 Wednesday, 3rd April 1996

21 THE PRESIDING JUDGE: We are continuing with Case No. IT-95-12-1. Is the

22 Prosecutor ready to continue from yesterday evening?

23 MR. OSTBERG: Yes, your Honour. We have just one more witness to

24 introduce in this 61 hearing, Lieutenant Colonel Koet of the Dutch

25 Army, and Mr. Cayley will examine him.

Page 173


2 THE PRESIDING JUDGE: Do you have an oath? Would you please stand and

3 give the oath?

4 THE WITNESS: I solemnly declare that I will speak the truth, the whole

5 truth and nothing but the truth.

6 (The witness was sworn)

7 THE PRESIDING JUDGE: Thank you. You may be seated.

8 MR. CAYLEY: Can I proceed, your Honour?


10 Examined by MR. CAYLEY

11 Q. Thank you very much indeed for coming this afternoon, Colonel. If I

12 can just confirm a few preliminary matters with you? Your name is

13 Jan Koet; is that correct?

14 A. That is correct.

15 Q. I believe you are a Lieutenant Colonel in the Dutch Army; is that

16 also correct?

17 A. That is correct.

18 Q. I think in 1971 you attended the Royal Dutch Military Academy; is

19 that correct?

20 A. That is correct.

21 Q. From 1976 to 1978 you were a cavalry platoon commander in Germany;

22 is that correct?

23 A. That is correct.

24 Q. From 1978 to 1980 I think you were the second-in-command of a

25 cavalry squadron in Germany; is that correct?

Page 174

1 A. That is right.

2 Q. From 1980 to 1982 you commanded a squadron of tanks in Holland; is

3 that correct?

4 A. That is correct.

5 Q. From 1982 to 1984 you were a staff officer?

6 A. Yes.

7 Q. Then in 1984 you attended the Dutch Army Staff College; is that

8 correct?

9 A. That is correct.

10 Q. Then in 1986 I understand you were allowed by the Dutch Army to

11 study law full-time at Leiden University; is that correct?

12 A. That is correct.

13 Q. I believe in 1990 you were assigned as legal adviser to the

14 commander of the 41st Dutch Army Brigade stationed in Germany; is

15 that correct?

16 A. That is correct.

17 Q. I think it is correct that in 1993 you were assigned as the legal

18 adviser to the commander of the UN Protection Force of

19 Bosnia-Herzegovina headquartered in Kiseljak who was at the time

20 Lieutenant General Briquemont; is that correct?

21 A. That is correct.

22 Q. I think it was a fairly large headquarters; how many people did it

23 consist of?

24 A. We had about 600 people in that hotel from, I think, 10

25 nationalities.

Page 175

1 Q. I think you said in your statement that within two months of

2 arriving in the town of Kiseljak you noticed a change, and I

3 wondered if you could explain to the court what you noticed?

4 A. We were allowed in the beginning to leave the compound, not to go

5 shopping, but, well, if we had to do something we were allowed to go

6 out. We were, for instance, allowed to do jogging around the hotel.

7 But so now and then there was some shooting and that those incidents

8 increased, and I think after two months we were not allowed to leave

9 the compound at all except for on duty, and always all the time the

10 two of us, at least.

11 Q. Around 23rd or 24th October 1993, I think, you attended an important

12 meeting at the headquarters in Kiseljak. I think Colonel Alstrom,

13 who was the Assistant Chief of Staff in G3 Operations was there. I

14 think, were you given a briefing by a UN military observer; is that

15 correct?

16 A. That is correct.

17 Q. Could you explain to the court what that briefing was about?

18 A. We had to meet with several people and the legal adviser, Colonel

19 Alstrom, as you mentioned. I think the G2 was there.

20 Q. Could you explain to the court what the "G2" is?

21 A. He is responsible for intelligence information gathering and, of

22 course, the UNMO, Patrick Martin -- Lieutenant Colonel, I think was

23 his rank -- and he said: "There is something

24 very badly happened in a small village called Stupni Do. I was

25 there today and I am very

Page 176

1 much afraid that people will become aware of that. At the moment we

2 have still 10 to 12 UNMOs over there, and I am afraid that if the

3 Bosnian Croats are becoming aware of the fact that they are still out

4 there, they might be endangered".

5 So he said: "I do not want you to talk about these

6 things", and then he explained how he went to Stupni Do in the end

7 with the commander mentioned, Ivica Rajic, and he explained how he

8 did that. Do you want me to .....

9 Q. Yes, if you could explain that to the court, please carry on.

10 A. He knew that something terrible had happened in that village, and he

11 also knew that Ivica Rajic was the responsible commander. He knew

12 him before, so he went to the place where he was and he asked him

13 permission to go in Stupni Do, the village. Well, at first, Ivica

14 Rajic said: "Well, it is not possible". It was a very tense

15 situation, and he looked very nervous -- I remember he said it to me

16 -- and then he asked if it was possible to enter that village, to go

17 into that village, with one of his officers.

18 Ivica Rajic said: "No, well, it is not possible but, no,

19 we cannot do that". Then interpreter suddenly said: "Well, why do

20 you not go yourself?" And, to their surprise, he said: "OK, I will

21 go with you". So they went, I do not know whether it was in one car

22 or more car, they went to the village and when Patrick Martin came

23 there he saw that everything was burning, still burning and then

24 smelling and there was smoke. He asked permission to enter a house.

25 At first Ivica Rajic did not want him to do that, but in

Page 177

1 the end he said: "OK, you can go into one house". So Patrick Martin

2 went into one house and he did not see anything. Yes, he said he saw

3 that things were burned and demolished, etc. Then he asked for

4 permission to go into a second house and there he discovered a dead

5 man, I think, behind a door, a wooden staircase -- I cannot remember

6 precisely.

7 So he was very much afraid when he saw that and went back

8 to Ivica Rajic and he, Ivica Rajic, asked: "Well, what did you

9 see?" He said: "Well, I did not see anything". "OK" After that,

10 they left Stupni Do.

11 Q. I think on the afternoon of 26th October you had a meeting in

12 Kiseljak with a local lawyer. In your statement you say something

13 about the atmosphere in Kiseljak at that time. I wondered if you

14 could explain to the court how the atmosphere felt to you in the

15 town?

16 A. I was there, it was a meeting in the police station, and I met there

17 Mr. Marjanovic. He was the Prosecutor in the Kiseljak, and I met him

18 before because we had to sort something out concerning the status of

19 the force agreement. So I knew that place before, and different from

20 the first time that I went there. I saw a lot of, I do not know if

21 they were soldiers or policemen. It is very difficult to see the

22 difference between policemen and soldiers and sometimes with

23 civilians, because they are very often clothed in kind of devil

24 dress. But it was very tense around the station, and in town I saw

25 rifles, more than usual, and I cannot other than express that I felt

Page 178

1 the tense much more than before.

2 Q. You say Marjanovic was the local Prosecutor?

3 A. Yes.

4 Q. Where did he take his instructions from?

5 A. Well, when we had to -- when we talked before about status of force

6 agreement, I think I have to explain that, what is a status forces

7 agreement.

8 Q. Please do, yes.

9 A. The status of forces agreement is a kind of document where the legal

10 position of UN soldiers, where it all is arranged in those papers.

11 It is a basic document how, to be there, in fact, to be in that area.

12 The problem was that status of forces agreement was signed

13 by President Izetbegovic and, of course, we had to do officially only

14 with the Republic of Bosnia and Herzegovina, but in fact we had to

15 deal with three parts, the Republic of Herceg-Bosna, the BiH

16 government, of course, and the Republic of Srpske.

17 We had to sort something out from that status of forces

18 agreement, and in that meeting that we had, so before 26th October,

19 they told me that they did not recognise that status of forces

20 agreement because of the fact that the President Izetbegovic had

21 signed it; they had nothing to do with President -----

22 Q. Who told you that?

23 A. The Prosecutor and the people who were present down there.

24 Q. From whom was the Prosecutor taking his instructions?

25 A. Mostar.

Page 179

1 Q. From Mostar?

2 A. Yes.

3 Q. From Mostar which was the capital of the Croatian community?

4 A. Well, in fact, I had to deal over there with the Republic of

5 Herceg-Bosna.

6 Q. Not with Sarajevo?

7 A. No, no, no, not at all.

8 Q. I think on 26th October 1993 in the evening there was another

9 meeting which took place in the UNPROFOR headquarters; indeed, I

10 think were you going on leave and you sent your assistant, Lieutenant

11 Mike Albers; is that correct?

12 A. That is correct.

13 Q. I think Brigadier General Angus Ramsay, the Chief of Staff, was at

14 that meeting as well, was he not?

15 A. That is true.

16 Q. I think you say in your statement that your assistant came back

17 sweating?

18 A. Yes.

19 Q. I think he instructed you that you have to cancel your leave or, in

20 fact, not instructed you because he was your subordinate, but said:

21 "Colonel, I think you had better cancel your leave"; is that correct?

22 A. No, that is not quite correct, but the end result was the same; I

23 decided not to go on leave.

24 Q. Indeed, I think the next day at 9 o'clock in the morning you set off

25 for Stupni Do in an armoured convoy from Kiseljak; is that correct?

Page 180

1 A. That is correct.

2 Q. I think you picked up armoured personnel carriers in Visoko from the

3 Canadian battalion; is that correct?

4 A. That is correct.

5 Q. And also the press?

6 A. Yes.

7 Q. I think you, first of all, went to Dabravine which is a small

8 village nearby Stupni Do; is that correct?

9 A. That is correct.

10 Q. Where you were briefed by local Bosnian government officials on what

11 they thought had happened in Stupni Do; is that correct?

12 A. That is correct.

13 Q. Can you just explain to the court what they said to you?

14 A. I remember that a female mayor was there. She told us what had

15 happened, and there was someone from the Bosnian Army, and, well,

16 they both explained what had happened

17 down there. They said: "Well, a massacre had took place in that

18 village of Stupni Do, and we are very much afraid that many people

19 have been killed down there". They knew

20 that the several people, well, that a lot of people might have been

21 able to fled to the forest and perhaps still were there, but they

22 explained to us what in their view had happened.

23 Then Colonel Alstrom and me, myself, we told them who we

24 were, and specially I remember that we told that we would collect all

25 the information to hand it over later on to the commission of

Page 181

1 experts. I remember that they were very pleased with that

2 information.

3 Q. I think a girl or a young woman arrived at the scene; is that

4 correct?

5 A. That is correct. I do not know exactly the age.

6 Q. What was she doing?

7 A. She was crying. She was terribly upset and I heard, I did not ask,

8 but I heard, that she escaped from that massacre.

9 Q. I think you then left Dabravine and proceeded to Stupni Do; is that

10 correct?

11 A. That is correct.

12 Q. I think on the way you state that there were was shelling and you

13 said something about that shelling in your statement?

14 A. Well, it was very much nearby and we had to stop, and at the same

15 time I had the impression that the Bosnian Croats were trying, well,

16 to stop us and to prevent us from going on. But it stopped and,

17 well, we went, we went on.

18 Q. I understand. I think you came to Stupni Do or, in fact, outside

19 Stupni Do to a tunnel under a railway; is that correct?

20 A. That is correct.

21 Q. I think there you were stopped at a checkpoint?

22 A. Yes.

23 Q. Who was controlling that checkpoint?

24 A. There were two HVO soldiers under that tunnel, and they both had a

25 rifle. We were allowed to carry on but without press. The press had

Page 182

1 to leave. But I think that near the tunnel, the soldiers of NORDBAT

2 took the escort over from CANBAT or the Canadian battalion. I

3 remember that the first car was an armoured carrier from the Danish

4 platoon. The platoon's commander said: "OK, we have to, everybody,

5 all the cars are going to" -----

6 Q. Go in a convoy?

7 A. To go in a convoy, so ---

8 Q. Very close?

9 A. -- very close together and then he said: "We go, regardless what

10 those soldiers will say, we go" and we went. So the soldiers were a

11 little bit surprised because of that attitude because they were not

12 quite used to that.

13 Q. How did you know that they were HVO soldiers?

14 A. Oh, I could see it on their signs.

15 Q. The badge?

16 A. Yes, with the red spots.

17 Q. The badge with the red spots?

18 A. Yes.

19 Q. The checkerboard?

20 A. Yes.

21 Q. The Croatian checkerboard flag?

22 A. Yes.

23 Q. I think, as you say, you proceeded on your way in a close convoy

24 into Stupni Do. What was your immediate impression of the village

25 when you got there?

Page 183

1 A. When I saw that village I saw that it was, it was a complete

2 massacre, well, all the houses were burned down and torn down and it

3 was not a nice view. At the same time I looked around and I thought,

4 well, it is very easy to do that because it was a kind of, it was a

5 kind of bowl, completely hidden from the outside world. You had the

6 impression that people could do anything in such a place without

7 knowledge of the outside world.

8 Q. Without anybody, indeed, seeing what had happened there?

9 A. Yes.

10 Q. Who else was in Stupni Do when you arrived?

11 A. There were soldiers of, Swedish soldiers ---

12 Q. Swedish soldiers?

13 A. -- yes, with armoured carriers and I saw soldiers from BRITBAT.

14 Q. BRITBAT being the British battalion?

15 A. Yes, BRITBAT, sorry.

16 Q. I think you also met the French UNMO to whom you earlier referred,

17 Lieutenant Colonel Patrick Martin, and I understand that he showed

18 you around the village; is that correct?

19 A. That is correct.

20 Q. Could you tell the court what he showed you?

21 A. Well, the first thing that he showed me was a house and we went in.

22 I remember that there was something, a kind of a room with food, and

23 it was rather dark, and there was a kind of sweet smell and I smell

24 the burning things, the smell of fire, and sweet smell, I do not

25 know, it is very difficult to -- I went in and in the end someone had

Page 184

1 a torch and then I saw three women in a corner in a kind of box. I

2 do not remember if it was a hole in a corner or it was -- but I

3 remember there was a lid to it.

4 Q. So you do not remember whether it as was a box standing on the

5 ground?

6 A. Yes, or on the same level, or under it, a cellar or something, I do

7 not know.

8 Q. I understand. Did you see anything else in the village at all? I

9 know you have described the destruction but did you see any more

10 remains of human bodies?

11 A. Yes. I remember that there was a kind of a house without a roof.

12 We were able to look inside because there was a kind of road, and the

13 road was on the same level as the roof. The roof had disappeared.

14 So we were able to look inside and there we saw, I think, four burned

15 bodies. There was another house where I saw, where I saw a burned

16 body as well. They told that it was a child, but it was not to be

17 seen. I saw the man, a man before a house with a kind of wooden tree

18 over him with a beard. He was lying on his back. I see a man who

19 was up the hill. He lay on his, on his breast, an old man. Of

20 course, if you ask me about human beings, that is what ---

21 Q. That is what you saw?

22 A. -- I remember, yes.

23 Q. How long did you spend in the village?

24 A. The whole afternoon.

25 Q. Then, I think, you returned from Stupni Do to Kiseljak?

Page 185

1 A. Yes.

2 Q. Indeed, I think you then went on leave back to the Netherlands; is

3 that correct?

4 A. The next day, yes.

5 Q. I think you returned from the Netherlands to Kiseljak on 15th

6 November 1993; is that correct?

7 A. That is correct.

8 Q. I think, am I correct in saying, that you were made aware that

9 representations had been made from the HVO, the Croatian Defence

10 Council General Staff in Mostar; is that correct?

11 A. Could you repeat that question?

12 Q. I believe that you had been made aware that certain representations

13 had been made by the HVO, the Croatian Defence Council, to the

14 headquarters in Mostar regarding Stupni Do; is that right?

15 A. I do not quite understand the word "representations".

16 Q. "Representations" means a message or -----

17 A. Oh, yes, that is correct.

18 Q. Are you aware of this?

19 THE PRESIDING JUDGE: Mr. Koet says you are talking like a lawyer!

20 MR. CAYLEY: I apologise, your Honour.

21 THE WITNESS: You know I am a lawyer as well, so .....

22 MR. CAYLEY: I will rephrase the question. Did the HVO general staff in

23 Mostar make some form of communication with the headquarters in

24 Kiseljak?

25 A. Oh, yes, regularly.

Page 186

1 Q. I believe they made a communication about Stupni Do; is that right?

2 A. That is correct.

3 Q. What did they say about Stupni Do?

4 A. When I came back I heard that the HVO would like to co-operate with

5 -- they were, of course, very much aware of the fact that we did a

6 lot of investigations in that massacre, and they wanted to co-operate

7 with us in that investigation.

8 Q. I understand. I think, indeed, you actually had a meeting at 10

9 o'clock on 22nd November at 1993 at the UN Protection Force

10 headquarters in Kiseljak. With whom was that meeting?

11 A. The Liaison Officer, Vinko Lucic, who was regularly as HVO

12 representative in headquarters, was there together with a man in

13 uniform, in a kind of battle dress, whose name was Ivan Bandic. Mr.

14 Bandic appeared to be the legal adviser of the headquarters in

15 Mostar. We had an interpreter named Renata.

16 Q. So let me get this absolutely correct. The two people at that

17 meeting were, firstly, the liaison officer from the HVO who was

18 permanently based at Kiseljak, that is, Vinko Lucic?

19 A. Yes, but not based on the headquarters -- at least not when I was

20 there.

21 Q. Right, so he would come to the headquarters and liaise?

22 A. Yes.

23 Q. Ivan Bandic who was a Legal Officer from Mostar, from the HVO

24 General Staff headquarters in Mostar; is that correct?

25 A. That is correct.

Page 187

1 Q. I think you kept notes of this meeting, did you not?

2 A. I did.

3 Q. Indeed, I think you produced a memorandum of that meeting; is that

4 right?

5 A. That is correct.

6 Q. If the witness could be shown Prosecutor's Exhibit 21? 21. Do you

7 recognise that document?

8 A. I do.

9 Q. How do you recognise it?

10 A. Because of my signature, because I remember I made this document

11 myself.

12 Q. Thank you. Indeed. I think this is a memorandum produced from the

13 notes of your meeting on 22nd November; is that correct?

14 A. That is correct.

15 Q. Could you read it out to the court, please?

16 A. Yes. "Subject: First report meeting in connection with the Stupni

17 Do incident".

18 THE PRESIDING JUDGE: 21 will be admitted then.

19 THE WITNESS: "On November 22, 1993, I had a meeting with Colonel Vinko

20 Lucic and an investigator from HVO headquarters in Mostar, Mr. I.

21 Bandic. They wished assistance in investigating the Stupni Do

22 incident. HVO was willing to cooperate with UNPROFOR.

23 After I had introduced myself, Mr. Bandic did. He was a

24 military lawyer. He advised the army staff on military legal matters

25 such as war crimes and abuse of human rights.

Page 188

1 I told them that extensive investigations had been taking

2 place and still were going on. An interim report had already been

3 forwarded to the War Crimes Commission in Geneva. I asked them then

4 if they already had received an extract of that report (without

5 names, with only general circumstances). As they had not, I promised

6 them a copy of this extract in the English language.

7 Mr. Bandic stated that the attack on the village of

8 Stupni Do ought to be seen in a military setting. He would give a

9 further statement on this subject in a second meeting. He agreed,

10 however, that this could not justify the things that had happened in

11 the village.

12 I asked Mr. Bandic what happened with Mr. Rajic, the

13 commander of the unit that committed the war crimes. I was told that

14 he was revoked, that he was given some 'advisory jobs'. I then said

15 that even Croatian newspapers declared that the army staff of the HVO

16 took the responsibility for the attack on Stupni Do. The name of

17 Ivica Rajic was to be the responsible commander.

18 According to Mr. Bandic, it was not sure if Mr. Rajic was

19 aware of the attack on the village.

20 We agreed to meet again on November 27th 1993."

21 Q. Then I think it is signed "J W Koet", indeed by yourself?

22 A. Yes.

23 Q. What did you understand the meaning of the word "revoked" when Mr.

24 Bandic said that to you?

25 A. Well, that he was being sacked.

Page 189

1 Q. That is how you understood that to mean?

2 A. Yes.

3 Q. Did you believe that at that time?

4 A. No, not at all.

5 Q. Why did you not believe it?

6 A. Because we heard already that he was walking around in Kiseljak in

7 his military outfit and that he still was in charge.

8 Q. In Kiseljak?

9 A. Yes.

10 Q. Thank you. I think a second meeting took place on 27th November

11 1993; is that correct?

12 A. That is correct.

13 Q. I think, indeed, you kept notes of that meeting as well; is that

14 correct?

15 A. That is correct.

16 Q. I think you put those notes again into the form of a memorandum. If

17 the witness could be shown Prosecutor's Exhibit 22? If you could

18 look at that document? Do you recognise it as a photographic copy of

19 an original document?

20 A. Yes, it was a document that I wrote myself and it is signed by me as

21 my document, a copy of that.

22 Q. Could the Prosecutor's Exhibit 22 be admitted into evidence please,

23 your Honour?

24 THE PRESIDING JUDGE: Yes, Prosecutor's Exhibit 22 will be admitted, a

25 letter dated November 30th 1993 signed by Lieutenant Colonel Koet.

Page 190

1 MR. CAYLEY: Could you read the memorandum out to the court, please,

2 Colonel Koet?

3 A. "Subject: Second report meeting in connection with the Stupni Do

4 incident.

5 Reference: First report meeting in connection with the

6 Stupni Do incident No. 241101 jwk dated November 24th 1993.

7 On November 27th 1993 a second meeting took place between

8 Mr. Bandic and Colonel Lucic on the one side and the undersigned on

9 the other side in connection with the Stupni Do incident.

10 First, Mr. Bandic handed over a handwritten letter about

11 alleged war crimes committed by MOS 'attached'.

12 Then Mr. Bandic said that he had statements of soldiers

13 who took part in the attack on Stupni Do. He then explained that

14 Stupni Do was important for the HVO from a military point of view:

15 Stupni Do was controlled by BiH. The village was situated on the

16 road between the Croatian villages Vares and Mir/Planica.

17 Before the beginning of the war 50 Serb inhabitants were

18 expelled by the Muslims.

19 In August 1993 a man called Miocevic, nickname 'Beli',

20 was killed in Stupni Do by A Janovic, from BiH, from the village

21 Myakovici. From then on the situation apparently worsened.

22 The BiH started to fortify the elevation of BOGOS

23 (trenches and so on). From here one has a view of Stupni Do. From

24 this hill they fired weapons into HVO controlled areas so now and

25 then.

Page 191

1 During the same time the village of Kopjari as well as

2 the elevation of Lijesnica was taken over by BiH. The western part

3 of the Vares community was controlled by MOS and (from Kakanj).

4 The village of Stupni Do is situated south of Vares.

5 Taking this all into account, HVO wanted to take over Stupni Do.

6 The initial plan, however, was to take over the elevation

7 of Bogos.

8 The attack on the elevation of Bogos started on October

9 22nd 1993, and lasted about four hours. In the meantime the BiH as

10 well as the inhabitants of Stupni Do were able to leave the village.

11 The HVO had information that the BiH from Stupni Do requested their

12 HQ in Budozelje to withdraw, which was refused.

13 From the top of the elevation Bogos it was to be seen

14 that the defence was less strong than had been expected.

15 The attack started in the morning of October 23rd 1993.

16 Mr. Bandic admitted that, apparently, phosphorus ammunition was used.

17 However, he stated, HVO soldiers saw citizens of Stupni Do set fire

18 to their own houses, apparently, to prevent HVO from using these.

19 Women were shooting on HVO soldiers and in some cases BiH

20 soldiers killed themselves to prevent them from being arrested.

21 The HVO soldiers were told not to shoot at civilians. Two

22 of them did not obey the orders. Those names are known.

23 Mr. Bandic stated that they had a video tape with

24 trenches and fortifications of Stupni Do just before the attack.

25 If he became aware of further details, he would inform

Page 192

1 us.

2 I then asked if it was possible to speak with soldiers of

3 the HVO unit that attacked Stupni Do. That was not possible.

4 After this I asked if he could give me the names of the

5 two soldiers that shot at civilians. He could not give me the names.

6 When I told Mr. Bandic that especially the details

7 concerning the attack on Stupni Do did not seem very plausible, he

8 just said that those were the statements of the soldiers that were

9 involved.

10 In the end, I repeated our concern about role of Mr.

11 Rajic. Mr. Bandic still stated that he was revoked but that he was

12 given advisory jobs.

13 It appeared to me that HVO could not miss his (pure)

14 military skills.

15 We agreed to meet again, if necessary.

16 Gl Legal

17 J W Koet, Lieutenant-Colonel", and signed.

18 Q. Signed by you?

19 THE PRESIDING JUDGE: May I ask just two questions?

20 MR. CAYLEY: Please do.

21 THE PRESIDING JUDGE: What is "MOS"? What does that stand for?

22 A. I do not know, not any more the abbreviation. It is an abbreviation

23 of a kind of extreme Muslim group.

24 Q. OK. Bogos -- B-O-G-O-S -- was that a part of the village of Stupni

25 Do, just an area

Page 193

1 within Stupni Do, only higher up or a different ------

2 A. I do not know, yes, I think it was something higher -- I do not

3 know, I do not know

4 exactly.

5 MR. CAYLEY: I can assist you there, your Honour. It was, in fact, a hill

6 above Stupni Do, Bogos.

7 THE PRESIDING JUDGE: But a part of Stupni Do?

8 MR. CAYLEY: It was a part of Stupni Do. It was a hill that overlooks the

9 village. Yes. (To the witness): Colonel Koet, referring to

10 paragraphs 13 to 15 of that memorandum, which is where Mr. Bandic

11 states that -- in fact, correction, paragraphs 12 and 13 -- in fact,

12 the citizens of Stupni Do set fire to their own houses; women were

13 shooting on HVO soldiers and, in fact, Bosnian soldiers killed

14 themselves to prevent them from being arrested. I think you got

15 rather angry at this point, did you not?

16 A. Yes.

17 Q. Why did you get angry?

18 A. Well, if you are trying to find an excuse for a massacre as such,

19 you have to find a very good excuse and this was very much made up.

20 They tried to give a kind of justification

21 for what they did, and this was a really ridiculous one, what they

22 told, what they told us, what they told me, and it was very hard for

23 me just to write that down and to do as if nothing special had

24 happened.

25 Q. So because it sounded so ridiculous you thought it was made up; is

Page 194

1 that what you are saying?

2 A. Exactly.

3 Q. Did Vinko Licic saying anything at this meeting?

4 A. No, he looked very much -- he was very, well, he pretended as if he

5 was not interested at all.

6 THE PRESIDING JUDGE: Let me ask one question. Why did you think it was

7 ridiculous? Why do you think it was made up?

8 A. Well, we saw the result of that massacre, and there were a lot of

9 people killed. We discovered, I think, 16 dead bodies in that

10 village there. There was not any sign that soldiers killed

11 themselves and it does not make any sense.

12 Q. Not kill themselves, what about burning down their houses so that

13 the HVO would not occupy them; why did you consider that to be

14 ridiculous?

15 A. Well, I think that the first thing you try to do is to flee and not

16 to set fire in your own house -- under those circumstances then.

17 Q. Was Stupni Do, in your opinion, important from a military point of

18 view.

19 A. None at all.

20 Q. Why was that?

21 A. Because it was totally isolated, a totally isolated place.

22 Q. It was not on the main road?

23 A. There was no main road, not at all. It was, as I told you, it was

24 in a bowl. It was a farming community.

25 Q. Was it on the road from Vares to Tuzla, for example?

Page 195

1 A. No, there was no main road. It was, if you come out of this region,

2 you can -- you do not expect villages like that. It was in the middle

3 of nowhere. The village was in the middle of nowhere. That is what

4 I thought.

5 Q. Did the G2 intelligence person you mentioned earlier tell you

6 anything about the attack upon which you based your conclusion that

7 it was ridiculous, what Mr. Bandic was telling you?

8 A. No, it was not discussed and, as far as I know, they did not try to

9 find out -- they did not even try to find out if it, if that made up

10 story made sense.

11 THE PRESIDING JUDGE: I have no further questions. Thank you.

12 MR. CAYLEY: I think there the meeting ended, did it not, Colonel? I do

13 not think you had any further meetings with representatives of the

14 HVO General Staff in Mostar; is that

15 correct?

16 A. That is correct.

17 Q. I think you then returned to the Netherlands. When did you return

18 to the Netherlands

19 from ---

20 A. From my mission?

21 Q. -- your mission in Kiseljak?

22 A. I think about 1st 1994.

23 MR. CAYLEY: Thank you very much, Colonel. No further questions, your

24 Honour.

25 THE PRESIDING JUDGE: We have no further questions. You may be excused,

Page 196

1 Colonel -- is it Colonel?

2 THE WITNESS: Yes, Lieutenant Colonel.

3 THE PRESIDING JUDGE: Lieutenant Colonel, thank you so much for coming.

4 A. Thank you.

5 (The witness withdrew)

6 MR. CAYLEY: We have no further witnesses, your Honour. I was going to

7 propose to the court that I close now, unless you specifically want

8 me to read out in public the measures that were taken by the

9 Prosecutor to serve the indictment and arrest warrant?


11 JUDGE SIDHWA: I imagine that you are also relying upon all the other

12 statements in the first batch and in the second batch as supporting

13 your prima facie case, am I correct?

14 MR. CAYLEY: That is correct, your Honour.

15 JUDGE SIDHWA: May I ask one question? Are the witnesses A to G alive?

16 MR. CAYLEY: A to G are, indeed, alive, yes, your Honour.

17 JUDGE SIDHWA: Did you have any summons served on them for Rule 61

18 proceedings?

19 MR. CAYLEY: No, we did not, your Honour.

20 JUDGE SIDHWA: Why not?

21 MR. CAYLEY: Because it was decided at the time that, indeed, the security

22 risks to them for this hearing are far too extreme. Indeed, for the

23 trial it would be our intention to call

24 them, but in order to make these people live through the nightmare of

25 23rd October 1993,

Page 197

1 I would only recommended to this office that we do that once and only

2 once. Those are my views.

3 JUDGE SIDHWA: Please explain to us. There is a matter regarding the

4 question of the Rule

5 61 which I would like now to discuss with you. How I look at the

6 matter, I will explain. I may be wrong. If I am wrong, you will

7 kindly correct me, all right.

8 MR. CAYLEY: Yes, your Honour.

9 JUDGE SIDHWA: My reading may be distorted perhaps, you know,

10 somewhat rigid on conventional lines or something like that. As I

11 read the rules regarding prima facie case, when it comes for first

12 confirmation and it comes before the three judges in an open court

13 for further reconfirmation, I would understand it something like

14 this, that the word "witness" there means a witness who is the

15 witness whom you will be producing at the trial for the proof of the

16 case. Mr. Ehsan Bajwa is only an amanuensis. He is not a witness.

17 He has only just recorded a statement. But he has come and he has

18 given his statement as if he was speaking like a witness. How do you

19 account for that?

20 You could have said: "The witnesses A to G are very

21 important. I am sorry, we do not want to produce them here for

22 security reasons. We would like that they

23 should remain alive at least until the day the accused decides to

24 turn up and a formal trial will begin. For the present, we rely upon

25 their statements", and that would be sufficient. But how does Ehsan

Page 198

1 Bajwa come in as an amanuensis and says: "He told me this, he told

2 me that, she told me that", and he is giving testimony, almost a

3 secondary testimony, of

4 the same witness. That, I think, is not permitted under Rule 61.

5 You are permitted to say: "Yes, here is their statement;

6 it is secret".

7 MR. CAYLEY: With respect, your Honour, I disagree. The reason why Mr.

8 Bajwa was called to give his evidence is because he was the

9 investigator who took the statements. I agree with you, from a

10 common law point of view, what he said before this Chamber was

11 hearsay; it was the repetition of something that had been said to

12 him. However, I believe that by him giving evidence, it brings those

13 statements alive before the court because he had an experience of

14 those individuals from whom he took the statements.

15 Indeed, I could have read those statements out before the

16 court, but I was not at the interview. It was my view that it would

17 lend some form of credibility to those statements by calling Mr.

18 Bajwa, the investigator, to testify as to what those witnesses

19 had told him in Central Bosnia.

20 JUDGE SIDHWA: Does that not make it an invidious distinction, because in

21 that case the statements of the other witnesses are also there. Why

22 did you not call every investigator to say: "He said the same, he

23 said the same, he said the same"? Then you are now having two sets

24 of statements; one at the higher level because Mr. Bajwa has come and

25 of other witnesses who are more important witnesses, perhaps, but for

Page 199

1 whom no investigator has come.

2 MR. CAYLEY: You are right. I mean, I would have liked to have called the

3 actual witnesses themselves but, as I have said to you before, the

4 safety considerations were such that I simply did not want to place

5 people's lives at risk by calling them for what is, in effect, a

6 pretrial hearing. The other witnesses were perfectly prepared to

7 come here and testify as

8 to what they had said to the investigators. Indeed, I could have

9 called investigators for every single one. But, you are quite right,

10 your Honour, the live witness is a much better person to have here.

11 JUDGE SIDHWA: Is there any Rule which permits such a type of situation

12 like this? Do the Rules permit you to call an amanuensis to

13 strengthen something -- you could straightaway say -----

14 MR. CAYLEY: I think the Rules of Evidence for the Tribunal, as we

15 discussed before in the original confirmation hearing, are fairly

16 broad. Indeed, in fact, Rule 89(C) states that, "A Chamber may admit

17 any relevant evidence which it deems to have probative value". In

18 fact, I noticed with some interest this morning that under Rule

19 89(D): "A Chamber may exclude evidence if its probative value is

20 substantially outweighed by the need to ensure a fair trial", which

21 would seem to indicate that in the Rule 61 proceedings the court has

22 no power to exclude evidence.

23 JUDGE SIDHWA: We are not excluding evidence in that sense. I did not

24 say I was wanting to exclude evidence. What I was thinking is this,

25 that statements of witnesses are there recorded by one of your

Page 200

1 officers. It is assumed that he has the power and ability to record.

2 So all the statements which are on the record are statements which

3 we definitely will read if you have produced them.

4 What is the probative value will depend on what he has

5 stated. The only

6 thing which seems somewhat a little strange was this, that an

7 amanuensis had to come only to just repeat something else, merely

8 because it was your contention that for certain

9 serious reasons of concern regarding their security you did not want

10 to produce them, and you did not produce them. We are not binding to

11 you produce everybody, and that if you did not we would hold

12 something out against you and, therefore, to protect yourself you are

13 saying: "Well, let us call, you know, an investigator to protect

14 ourselves and say: 'Yes, yes, I recorded their statement'." It was

15 this feature which was worrying me.

16 MR. CAYLEY: I understand your concerns, your Honour.

17 JUDGE SIDHWA: It is not that we are saying it has no probative value.

18 The statement is

19 there. We are accepting the whole statement as it is. These are,

20 basically, I would say

21 that your statements of A to G, as they are recorded, have stronger

22 probative value, perhaps, than the somebody to which they are given.

23 But since they have come, we have that type of feeling that it is

24 supportive, that the gentleman has come himself.

25 MR. CAYLEY: It certainly gives corroboration, does it not, that the

Page 201

1 actual investigator is here.

2 JUDGE SIDHWA: But not in amanuensis; he cannot add more to the probative

3 value than the statement itself, nor grant credibility because he has

4 recorded it.

5 MR. CAYLEY: Thank you, your Honour. I will bear that in mind for the

6 future.

7 THE PRESIDING JUDGE: Let me just state what I feel about the

8 applicability of the Rules of Evidence. The Rules of Evidence,

9 89(A), provides: "The Rules of evidence set forth this Section shall

10 govern the proceedings before the Chambers. The Chambers shall not

11 be bound by national rules of evidence.

12 I personally consider that a Rule 61 proceeding is a

13 proceeding and I think

14 that the Rules of Evidence apply. The Rules of Evidence, Rule 89, is

15 in the Section of the Rules of Evidence regarding proceedings before

16 the Tribunal. Rule 61 is not in that Section. It is in an earlier

17 section, but I consider this to be a Rule 61 is a proceeding

18 before a Trial Chamber, and I think that the Rules of Evidence, at

19 least it can be argued, should apply.

20 The problem though, and they may not apply, well, the

21 problem is not that they may not apply, but the problem is that this

22 is basically a public confirmation of the indictment. When you then

23 present the indictment to a confirming judge, of course, that

24 is not a proceeding. Then, of course, the Rules of Evidence, I

25 presume, would not apply when you, for example, presented the

Page 202

1 evidence to Judge Sidhwa, the Rules of Evidence.

2 Now, though, we are here at a public proceeding and the

3 question then becomes whether the Rules of Evidence apply. I think a

4 good argument can be made that they would apply, but I do not know

5 whether that would mean that we would exclude the testimony of the

6 investigator because of any our 10 Rules of Evidence.

7 The problem that I have is that Rule 61 says that, "The

8 Prosecutor may also call before the Trial Chamber and examine any

9 witness whose statement has been submitted to the confirming judge".

10 The statement of the investigator had not been submitted to the

11 confirming judge. But then in 61(C), the first sentence says: "If

12 the Trial Chamber is satisfied on that evidence", referring to the

13 previous paragraph, "together with such additional evidence as the

14 Prosecutor may tender, that there are reasonable grounds for

15 believing that the accused has committed all or any of the crimes

16 charged in the indictment, it shall so determine".

17 So that seems to envision that there is the possibility

18 of additional evidence that may be offered. Whether that "additional

19 evidence" phrase modifies that contained in the last sentence of

20 61(B) is a question, but it is something that we discussed among

21 ourselves, as a Trial Chamber, before we began. I personally think

22 that it does, but I agree with Judge Sidhwa that, from a technical

23 point of view, having an investigator here to summarise what is said

24 really does not lend more credibility. It does, though, make a

25 better presentation of evidence, because if you are going to read at

Page 203

1 length from these statements, sometimes it is difficult to hold the

2 attention of the court.

3 MR. CAYLEY: Yes, your Honour.

4 THE PRESIDING JUDGE: But, in terms of credibility -- not credibility, but

5 in terms of the weight that should be given to the evidence, I agree

6 with Judge Sidhwa; it does not really lend anything. But I think

7 that we need to look at the juxtaposition -- is that the term that

8 intellectuals use -- between 61(B) and 61(C) to see where we are. I

9 think it is his testimony, though, was admissible as additional

10 evidence, even though, clearly, he did not have a statement that had

11 been submitted to the confirming judge. That also applies to the

12 statement of Lieutenant Colonel Koet because was that not a new

13 statement? That had not been submitted ---

14 MR. CAYLEY: There is a slight problem there.

15 THE PRESIDING JUDGE: -- and the photographer, Bernard Petterson.

16 MR. CAYLEY: Bernard Petterson, indeed, there was not a statement

17 submitted with the original bundle. With Lieutenant Colonel Jan

18 Koet, there was a summary statement submitted that was originally

19 taken by the United Nations Protection Force. But, indeed,

20 at the last hearing Justice Sidhwa made an observation that he was

21 only prepared to

22 accept statements that had been taken -- I think, actually this was

23 specifically in respect of eyewitnesses by Tribunal investigators.

24 Indeed, these UN Protection Force statements were summaries and they

25 were not really very satisfactory. So we corrected the position by

Page 204

1 taking a full statement ourselves from Lieutenant Colonel Jan Koet.

2 So the court was, in fact, on notice of the existence of

3 the witness, Colonel Koet, but indeed had not seen the full

4 statement.

5 THE PRESIDING JUDGE: We certainly have the full statements of Petterson

6 and Koet now and coming in as additional evidence under 61(C) --

7 under 61(C), I am sorry.

8 JUDGE SIDHWA: The evidence of Koet and the photographer is correct,

9 because you are stating: "They are our witnesses" and you are

10 producing them. I was only just referring

11 to the fact of the amanuensis in that sense, nothing more.

12 MR. CAYLEY: I do understand, your Honour.

13 JUDGE SIDHWA: It does not add to the weight of value or anything, and I

14 would have been content to say: "Here are the statements. We are

15 keeping it secret. We do not want to produce them for security

16 reasons". We would read them. You do not have to read it

17 out if you think that identification would be disclosed, but they are

18 based on the

19 statements. They are statements of ocular witnesses. What more can

20 you get?

21 MR. CAYLEY: Which is what you required last time, your Honour, yes.

22 JUDGE SIDHWA: We are not throwing out your evidence. What I am saying is

23 how does this chap figure in as an amanuensis, trying to -- you were

24 perhaps more afraid of yourself, you see, than anything.

25 MR. CAYLEY: I understand your point, your Honour.

Page 205

1 JUDGE VOHRAH: I think I ought to also to add my voice to what has been

2 said. We had a discussion on this matter and I would like to

3 associate myself with the remarks made by Judge Sidhwa on the

4 technical nature of evidence which you have submitted through the

5 investigator. I think it is something, perhaps, you will have to

6 consider for future proceedings. But, following on that, I would

7 like to find out from you whether the type

8 of evidence which the investigator gave in our proceedings was given

9 also in previous

10 Rule 61 procedures?

11 MR. CAYLEY: I believe it was, your Honour, yes.

12 MR. OSTBERG: It was, indeed.

13 JUDGE VOHRAH: Thank you.

14 THE PRESIDING JUDGE: I think we would like to hear from you, Mr. Cayley,

15 regarding your efforts to effect service on Mr. Rajic.

16 MR. CAYLEY: Madam President, your Honours, a report on measures taken by

17 the

18 Prosecutor for personal service of the indictment and warrant of

19 arrest was served on the court on 6th March 1996. I think, possibly,

20 the most appropriate thing for me to do is to simply read out in

21 public the measures that were, indeed, taken by the Prosecutor. That

22 begins at paragraph 5, Registry page 296.

23 The measures taken to effect service and the facts

24 pertaining to this issue are the following: On 29th August 1995, an

25 indictment against Ivica Rajic was confirmed by Judge Rustam Sidhwa

Page 206

1 and warrants for the accused's arrest were issued being directed to

2 the Republic of Bosnia and Herzegovina and the Federation of Bosnia

3 and Herzegovina. Registrar document Nos. 220 to 224 inclusive and

4 Registrar document No. 230 to 234 inclusive.

5 On 8th December 1995, a warrant for the accused's arrest

6 was issued by Judge Vohrah being directed to the Republic of Croatia,

7 Registrar document Nos. 240 to 244 inclusive.

8 At the time of filing this report, no State to whom an

9 arrest warrant has been transmitted has responded. Following a

10 request by the Prosecutor, the Registrar on 29th January 1996

11 requested the Minister of Justice of the Federation of Bosnia and

12 Herzegovina and the diplomatic representatives of the Republic of

13 Bosnia and Herzegovina to arrange for the publication of the

14 indictment upon Ivica Rajic in newspapers having wide circulation in

15 these States.

16 On 8th February 1996, the Minister of Justice of the

17 Republic of Bosnia and Herzegovina notified the Registrar that the

18 indictment against Ivica Rajic had been advertised on the radio

19 television of Bosnia-Herzegovina, Independent Radio Studio 99,

20 Independent Television 99, Independent Television Hyatt and in

21 Oslobodenje and in

22 Avaz; these last two being daily newspapers with a wide circulation

23 in Bosnia and Herzegovina.

24 On 31st January 1996, Mr. Zvonimir Hodak, a lawyer of

25 Pavla Hatza,

Page 207

1 Zagreb, in the Republic of Croatia informed the Registrar that he had

2 been instructed to

3 act for Ivica Rajic, and a power of attorney, purportedly signed by

4 Ivica Rajic in Kiseljak

5 on 19th January 1996, was filed at the same time in which Mr. Rajic

6 appointed the said Zvonimar Hodak to act as his lawyer in case No.

7 IT-95-12-1 before the Tribunal. At the time of filing this report,

8 Ivica Rajic has not been arrested.

9 Indeed, the final paragraph simply states that the

10 Prosecutor submits that the requirements of Rule 61(A) of the Rules

11 had been satisfied. That is dated 6th March 1996 and, indeed, signed

12 by my learned friend Mr. Ostberg and by myself.

13 THE PRESIDING JUDGE: Mr. Cayley, there has been a power of attorney filed

14 in this case, has there not, on behalf of Mr. Rajic?

15 MR. CAYLEY: You are quite right, your Honour, yes.

16 THE PRESIDING JUDGE: By Mr. Hodak, is it, H-O-D-A-K?

17 MR. CAYLEY: That is right, H-O-D-A-K, yes.

18 THE PRESIDING JUDGE: The record should reflect that the Registry sent a

19 letter to Mr. Hodak notifying him of this proceeding, advising him

20 that the proceeding is ex parte, and sending him a copy of the Rules,

21 most particularly Rule 65. The Registry has not heard from Mr.

22 Hodak, have we?

23 THE REGISTRAR: No. He has been present at the Tribunal because he is

24 representing another accused at the Tribunal.

25 THE PRESIDING JUDGE: But with respect to this proceeding, has he filed

Page 208

1 anything?

2 THE REGISTRAR: No, with respect to this, I can just confirm that he

3 filed a power of attorney and we sent -- that he has been notified.

4 MR. CAYLEY: Indeed, I think, your Honour, he was actually occupying one

5 of the front row seats yesterday at the proceedings, but I do not

6 think he is here today.

7 THE PRESIDING JUDGE: Have you heard from Mr. Hodak, the Office of the

8 Prosecutor?

9 MR. CAYLEY: We have because, in fact, my learned friend Mr. Ostberg did,

10 in fact, send him a copy of the indictment in respect of Rajic.

11 Indeed, he acknowledged that indictment, so that was as well as the

12 Registry sending him notification of this hearing.

13 MR. OSTBERG: But beside that we have not heard anything from him in this

14 case.


16 MR. OSTBERG: We have not heard anything else from him.

17 THE PRESIDING JUDGE: And a warrant for arrest has not been executed?

18 MR. CAYLEY: That is correct, your Honour.

19 JUDGE SIDHWA: The fact that he has been served does not figuratively make

20 the accused present in court for us.

21 MR. CAYLEY: No, I understand not, your Honour, no, because it is an ex

22 parte proceeding so .....

23 THE PRESIDING JUDGE: Mr. Cayley or Mr. Ostberg or both, you may proceed

24 to present your closing, if you wish.

25 MR. CAYLEY: Your Honours, this is fairly irregular, what I am about to

Page 209

1 do, but if I can ask for your permission? I understand there was

2 probably yesterday some misunderstanding about brigades and

3 structures. Indeed, the evidence is contained in the bundles. I

4 wondered if could I try to explain to you, do you mind if I step over

5 to the board and try to explain to you the structure of the military

6 units?

7 THE PRESIDING JUDGE: No, no problem. I welcome all of the assistance I

8 can get.

9 MR. CAYLEY: I am not actually giving evidence before the Tribunal because

10 all of the statements which actually support what I am about to tell

11 you are, indeed, contained in the original bundle and the subsequent

12 bundle. The unit that we have been talking about is this, the

13 Bobovac Brigade.

14 THE PRESIDING JUDGE: Can that be seen? Can the public see that? I think

15 there is some concern.

16 MS. FEATHERSTONE: Excuse me, I think the concern may also be that you may

17 not be going through the microphone for the interpretation and

18 recording.

19 MR. CAYLEY: The HVO, effectively, the military wing of the Croatian

20 community of Herzeg-Bosna, as we understand it and, indeed, as the

21 evidence is in the bundles before you, had a Central Bosnian

22 Operational Zone. The headquarters of the Central Bosnian

23 Operational Zone was in Vitez which is a small town near Zenica.

24 JUDGE SIDHWA: How do you spell that?

25 MR. CAYLEY: V-I-T-E-Z. The Operational Zone had three groups underneath

Page 210

1 it, so the three groups were with the constituent military units of

2 the Central Bosnian Operational Zone. We know that Ivica Rajic was

3 the commander of the second operational group whose headquarters was

4 based at Kiseljak where, indeed, Lieutenant Colonel Jan Koet said he

5 was stationed with the United Nations Protection Force headquarters.

6 Interestingly, they were co-located, not in the same building, I

7 hasten to add, but indeed in the same place.

8 The second operational group had three brigades

9 underneath it; one in Sarajevo, one in Kiseljak, and one in Vares.

10 The one in Vares was called the Bobovac Brigade. I cannot remember

11 off the top of my head the number of the statement in the first

12 bundle, but the individual that Colonel Henricsson referred to, Major

13 Hakan Birger, who was Colonel Henricsson's Company Commander in Vares

14 -- so he was in charge of the local UN military unit in Vares -- he

15 met the commander of the Bobovac Brigade on 7th October. He says in

16 his statement that the commander of the Bobovac Brigade was a man

17 called Emil Hara.

18 If you remember, Colonel Henricsson said that this unit,

19 it was understood at the time, formally came under the command of the

20 Bosnian Army, of the Army of the Republic of Bosnia and Herzegovina.

21 But, in reality, it came under the command of the second operational

22 group. It does sound peculiar, but the reason for it, from what

23 Major Birger says, is because this was an isolated area, and the

24 Bosnian Croats, for whatever reason, felt that they needed to be in

25 an alliance with the Bosnian government. But, in reality, Colonel

Page 211

1 Henricsson said to you yesterday that, in fact, the Bobovac Brigade

2 came under the command of Ivica Rajic in Kiseljak.

3 Indeed, you heard the evidence that Ivica Rajic came to

4 Vares on or about 23rd October and, in effect, took direct command of

5 a subordinate unit that was in the area.

6 THE PRESIDING JUDGE: Rajic took over then the Bobovac Brigade command;

7 when would that have been?

8 MR. CAYLEY: On the evidence, your Honour, and obviously without me giving

9 evidence, but based on the statements before you, that would be on

10 or before 23rd October.

11 THE PRESIDING JUDGE: And the commander before, was he a Bosnian Croat?

12 MR. CAYLEY: He was.

13 THE PRESIDING JUDGE: But at some point before, I gather, before he was

14 the commander of the Bobovac Brigade, you are saying that that

15 brigade was controlled by the Bosnians?

16 MR. CAYLEY: He was always the brigade commander but, in effect -- if I

17 could sort of draw a line in -- the command went to the 2nd Bosnian

18 corps. I think it is the 2nd -- it is in Henricsson's testimony --

19 that was based in Tuzla. So the Republic of Bosnia and Herzegovina

20 had a corps headquarters that was based in Tuzla, and Emil Hara

21 acknowledged then, it seems, from what he told the witnesses that we

22 have interviewed, that the Bobovac Brigade was under this command

23 although, in reality, as Henricsson said, it came under the command

24 of Ivica Rajic in Kiseljak.

25 THE PRESIDING JUDGE: That is when the Bosnian Croats and the Bosnians

Page 212

1 were allies?

2 MR. CAYLEY: That, I cannot answer because there is nothing in the

3 statements to that effect.

4 THE PRESIDING JUDGE: But, at least, Colonel Henricsson does say that the

5 commander before Rajic ---

6 MR. CAYLEY: Emil Hara.

7 THE PRESIDING JUDGE: -- reported -- Hara -- to the 2nd Bosnian ------

8 MR. CAYLEY: That is what he believes. That is what he was told.

9 THE PRESIDING JUDGE: That is what he believes. I am sure he believes all

10 of what he said, OK, that is for sure. OK, but certainly after the

11 time that Rajic took over, there was not that reporting to the

12 Bosnian?

13 MR. CAYLEY: Absolutely, your Honour. Does the Bench have any questions?


15 MR. CAYLEY: Has that made things clearer?

16 THE PRESIDING JUDGE: Yes. It makes something clearer in that in

17 Ekenheim's statement -- I think it was in Ekenheim's statement -- he

18 said that he felt that the attack on Stupni Do -- correct me if I am

19 wrong -- was to create dissention, to use a mild word, between the

20 Bosnian Croats and the Bosnians.

21 MR. CAYLEY: Indeed, that is what was suggested.

22 THE PRESIDING JUDGE: That he believed that, in fact, they were close, too

23 close, and if the predecessor to Rajic was reporting to the Bosnian

24 corps, 2nd Bosnian corps, that would seem to fit in with his

25 testimony; that there was a relationship at that time between the

Page 213

1 Bosnian Croats and the Bosnians. But when Commander Rajic took over

2 that was not the case, and at least it is Mr. Ekenheim's belief that

3 that is why Stupni Do was attacked, but in any case go ahead.

4 MR. CAYLEY: In closing, I, first of all, intend, your Honours, to give a

5 brief summary of the evidence you have heard, and then, indeed,

6 address the questions of International Humanitarian Law and -----

7 JUDGE SIDHWA: Can I ask one question before your begin your arguments?

8 What is the effect of this group of people being in Kiseljak? You

9 call them occupational force or something?

10 MR. CAYLEY: Which force?

11 JUDGE SIDHWA: Croat occupational force? What is the position of this

12 Kiseljak territory ---

13 MR. CAYLEY: Kiseljak?

14 JUDGE SIDHWA: -- or Vares which is, basically, in Bosnia-Herzegovina?

15 MR. CAYLEY: That is correct, your Honour.

16 JUDGE SIDHWA: Now some group is there after the Croats, you call it a

17 pocket group, you know.

18 MR. CAYLEY: In reality, the position was -----

19 JUDGE SIDHWA: Will you treat this group as not in occupational force of

20 Croats or as an occupational force of Croats? I want the technical

21 position from you, because the question then would arise, who is the

22 protected person and things -----

23 MR. CAYLEY: You are absolutely right, your Honour. I am going to cover

24 this in my closing. Could I please do it in order?

25 JUDGE SIDHWA: So long as you are on notice.

Page 214

1 MR. CAYLEY: I am aware, yes.

2 THE PRESIDING JUDGE: May I have just one question as it relates to your

3 outline? The Bobovac Brigade, you have under that Vares, but that

4 includes the area of Stupni Do?

5 MR. CAYLEY: That is correct, your Honour. I think, as Lieutenant Colonel

6 Koet indicated to you -- I mean, I have indeed been, I know I should

7 not be giving evidence before this court, but it is, in fact, off a

8 track off the main road, that is the reality, although it was in the

9 municipality of Vares, because Vares itself was not only the town of

10 Vares, but the municipal area. In fact, Vares was the municipal

11 town. It was like the state, sort of, the municipal capital for that

12 area.

13 THE PRESIDING JUDGE: You are not really give evidence. You are giving

14 now, as far as I am concerned, your closing summary. At least in my

15 system, we always tell the jurors, at least, that what the lawyers

16 say is not evidence; they are just giving their version of what the

17 evidence showed. So, as far as I am concerned, I am listening to

18 what you consider to be your version of what the evidence showed and

19 it is helpful to me, but I will look at the statements, that is for

20 sure, and recall the transcript.

21 But I just wanted to add (and also not giving evidence),

22 that you say

23 Bobovac Brigade, Vares, but that is the area from the testimony, as I

24 recall, that would cover Stupni Do.

25 MR. CAYLEY: That is correct, your Honour, yes.

Page 215


2 MR. CAYLEY: Firstly, I will give the court a very brief, what I hope is a

3 brief, summary of the evidence. Firstly, you heard from Mr. Ehsan

4 Bajwa. I will not be too long, your Honour.

5 THE PRESIDING JUDGE: It was so interesting; we were just going to go

6 ahead and we forgot that, perhaps, a recess might be in order

7 particularly for the reporter there who is busily at work, so we will

8 stand in recess for 15 minutes.

9 (The hearing adjourned for a short time)

10 (4.20 p.m.)

11 THE PRESIDING JUDGE: Mr. Cayley, you may proceed.

12 MR. CAYLEY: Thank you, your Honour. Madam President, your Honours, first

13 of all, I will give you a brief summary of the evidence that you have

14 heard and then move on to deal with other matters.

15 Firstly, you heard from Mr. Eshan Bajwa, a Tribunal

16 Investigator. He recounted to you the statements of six eyewitness

17 survivors from the attack on Stupni Do. I know that concerns have

18 already been expressed by you about introducing this form of

19 evidence. I had dealt with it in my closing, but I believe we have

20 now discussed all the matters you have raised already, so I will not

21 continue with that.

22 So what did Mr. Bajwa tell you? Firstly, he recounted to

23 you the statement of Witness A contained in the additional bundle of

24 evidence served as an exhibit by the Registry on the court. Witness

25 A, as you remember, was the President of the local community in

Page 216

1 Stupni Do. He was shown an aerial photograph of Stupni Do and

2 identified the photograph as being of Stupni Do, and in fact

3 identified virtually every structure on

4 the photograph together with the owner of that structure. That

5 photograph is

6 Prosecutor's Exhibit 1. I know yesterday there was some confusion

7 between the words "village" and "hamlet". "Hamlet" unfortunately is a

8 very English word. The distinction is simply this. A village is

9 larger than a hamlet. When indeed I was referring to "hamlet" I was

10 referring to a part of the village. In fact in Witness A's statement

11 he first of all describes a part of the village as being a "hamlet"

12 and then he describes it as "part of", but that indeed is the

13 distinction that was intended between "village" and "hamlet". Indeed

14 Witness A identifies 13 different hamlets within this village.

15 I know, Justice McDonald, you were particularly

16 interested in the number of dwellings in the village. Witness A

17 identified 66 separate dwellings and numerous stables and utility

18 buildings belonging to the residents. I do not believe that Mr.

19 Pettersen was mistaken when he provided to you a lower figure

20 yesterday. I think that simply when he arrived there was utter

21 devastation in the village and it was very difficult for him to

22 assess properly the number of buildings in the village. Second, there

23 was a part of the village called Lipa which was in the direction of

24 another Croat village called Mir, and that could not actually be

25 seen where from Mr. Pettersen took that photograph. It certainly

Page 217

1 would not have been immediately visible to him in the locality of the

2 village where he was

3 situated.

4 Witnesses B to F all confirm the time and date of the

5 attack: 8 o'clock in the morning on 23rd October 1993. Witnesses B, C

6 and D provide compelling evidence of events in the hamlet of Pricado.

7 You will remember Mr. Pettersen referring to this area of the

8 village as an "upper part" of the village of Stupni Do; it was raised

9 above the rest of

10 the village.

11 These three witnesses state that a group of civilians

12 were forced from the basement shelter of Witness A's house by

13 soldiers. Witnesses C and D both identified the soldiers as

14 displaying the Croatian checkerboard flag, and Witness C clearly

15 remembers seeing the letters "HVO" on the soldiers' shoulder badges,

16 at least on one of the soldiers' shoulder badges.

17 Witness B states seeing a white ribbon around the upper

18 arm of the soldiers entering the basement. You will recall that

19 Sergeant Ekenheim stated yesterday that he had been told by a

20 survivor that soldiers from outside the area carried out the attack

21 on Stupni Do. Sergeant Ekenheim further stated that the unit was

22 dressed either in camouflage or black and wore ribbons so that they

23 could recognise each other in combat. Witnesses C and D speak of

24 soldiers in camouflage-style uniforms. Witness F recalls seeing

25 soldiers in black uniforms with a white ribbon tied around their

Page 218

1 upper arm. All these witnesses recount in detail the murder of three

2 men and one woman. All victims are similarly identified by name.

3 All three witnesses recalled being locked into a summer kitchen or

4 shed which was set on fire. All recall the break-out by Witness B

5 using an axe to open the door.

6 Witness C recalls in his statement that he remembers

7 soldiers throwing the four dead bodies into a burning house. You will

8 remember that it was in this very area where Mr. Pettersen

9 photographed four severely burnt bodies; one being identified as that

10 of a woman and one being identified as that of a man by the Swedish

11 doctor who subsequently arrived in the village. You recall that both

12 witnesses B, C and D state that they escaped to Pajtov Han, a small

13 village near to Stupni Do. Once there they said that they were

14 captured by local HVO. When UNPROFOR, the UN Protection Forces,

15 tried

16 to assist them, the UNPROFOR were told that they needed to seek

17 permission from Ivica Rajic. They variously referred to as both

18 Rajic and Ivica Rajic.

19 Witness E you will remember is the teenage girl who is

20 shot in the side and then hides in a vegetable pit in the basement of

21 a house with her aunt, sister and woman neighbour. Witness E is

22 hidden beneath the three other women. She hears male voices

23 and then gunfire and then silence. She survives. The other three

24 women are murdered. This witness then escapes from the basement

25 saying first to Mr. Bajwa that in the basement when she went to leave

Page 219

1 there was a candle burning on the floor near to the pit,

2 "I picked it and blew it out." You will recall Mr. Pettersen's

3 second, third and fourth photographs. One of those photographs shows

4 three dead women in a pit and a red

5 candle to the side of the pit. He recalled how odd he thought it was

6 at the time that there should be a candle present. Brigadier General

7 Henricsson confirms seeing three dead women in a cellar in Stupni Do

8 on 26th October 1993. Sergeant Ekenheim and Lieutenant Colonel Koet

9 confirm the same.

10 During her escape the young woman is shot at in a

11 presumed intent of killing her to prevent her escaping. She does

12 indeed escape into surrounding woods and climbs a tree where she

13 observes almost the entire village in flames.

14 The last witness you heard about was Witness F who was

15 the 44 year old woman who lost both her husband and her son during

16 the attack. She witnesses the death of an elderly gentleman and then

17 tells the investigator the dreadful circumstances about the discovery

18 of her son's death. After capture by the HVO she is forced to go to

19 the remaining members of the village Guard Force to tell them to

20 surrender. She then makes good her escape. I will come back in fact

21 to the matter of the village Guard Force and the relevant statements.

22 Next you heard from Brigadier General Henricsson. He

23 told you that there was heavy fighting between Muslims and Croats in

24 central Bosnia. I suspect here when

25 he said "Croats" he actually meant "Bosnian Croats". He particularly

Page 220

1 mentioned Gornji Vakuf and Mostar. Fighting broke out between

2 Muslims and Croats, he said, in the Vares area in August 1993. In

3 fact I think he gave a specific date 18th August. You will recall

4 that Brigadier Henricsson was in Vares on 23rd October 1993 and was

5 informed on the way there in the village of Dabravine by Bosnian

6 government authorities of an attack on the village of Stupni Do. You

7 will recall Brigadier General Henricsson met Ivica Rajic in Vares on

8 a number of occasions; in fact on four occasions. Rajic stated to

9 him very

10 clearly that he was the commander of the operational group in Vares

11 and that he was the new commander of the Bobovac Brigade; that he was

12 the commander of the whole area, that is what Brigadier General

13 Henricsson said that Rajic said to him. Brigadier General

14 Henricsson recounted how Rajic refused to let him into Stupni Do;

15 first agreeing to allow entry and then refusing. You recall that

16 Brigadier General Henricsson explained that he had stood on a hill

17 and viewed Stupni Do through binoculars. He observed a burning

18 village and also the sound of small arms fire. Brigadier General

19 Henricsson confirms his entry into the village on 26th October 1993

20 where he observed a totally destroyed village of 54 houses, where

21 there were dead and burnt bodies. He confirms the rescue of persons

22 who had escaped from Stupni Do. He stated at the end of his evidence

23 that he was absolutely certain, those were his words, that Rajic was

24 in charge of the HVO forces in

25 and after the attack on Stupni Do.

Page 221

1 Sergeant Ekenheim, who I have referred to already and

2 indeed a fluent

3 speaker of the Bosnian language, confirmed seeing the burning village

4 of Stupni Do like General Henricsson. In the initial meeting with

5 Rajic in Vares where Sergeant Ekenheim was the interpreter, he

6 confirms that Rajic introduces himself as the Commander of the

7 Bobovac Brigade. Rajic also stated he was from a Special Unit in

8 Kiseljak. At a checkpoint in or near Vares he recalls being stopped

9 and only being allowed to proceed with the express permission of

10 Ivica Rajic. He confirms the rescue of escapees from

11 Stupni Do, the refugees, and he agrees with Brigadier General

12 Henricsson's account when he eventually gets into Stupni Do

13 describing the devastation and death that he saw.

14 He stated that he met Ivica Rajic on six to eight

15 occasions and that Rajic

16 stated on the second night that he met him that troops in Stupni Do

17 were his and that he

18 would do nothing to harm the civilians. In Sergeant Ekenheim's

19 opinion, Stupni Do had no military significance whatsoever. It was

20 not on a main road. I shall return to Sergeant Ekenheim's testimony

21 somewhat later in my closing.

22 Bernard Pettersen: I think this can be dealt with fairly

23 quickly. This gentleman was the photographer, Petty Officer Bernard

24 Pettersen of the British Royal Navy. His testimony indeed speaks for

25 itself; the photographs certainly do. If I could advise you

Page 222

1 certainly to read the statements of Bjorn Borgvall at page 62 in the

2 original bundle of evidence and Thomas Matzsch at page 23 of the

3 original bundle. These men were the doctors who examined the bodies

4 of the dead in Stupni Do and to whom Mr. Pettersen referred in his

5 testimony yesterday.

6 Lastly today you heard from Lieutenant Colonel Jan Koet,

7 another

8 eyewitness in Stupni Do; another man who confirms seeing three dead

9 women in the basement of a house and a number of other burnt bodies;

10 another man who confirms that Stupni Do, in his opinion, as a

11 professional officer of the Dutch Army, had no military significance

12 at all; another individual who confirms that Stupni Do was not on a

13 main road anywhere; it was on a side road some 3 or 4 kilometres from

14 Vares. This witness also most importantly had two meetings with the

15 General Staff of the HVO: the Army and the military government of the

16 Croatian Community of Herceg-Bosna where, in essence, I would submit

17 the HVO accept responsibility for the attack on Stupni Do, and where

18 indeed what were in the opinion of the witness fairly pathetic lame

19 excuses, as Lieutenant Colonel Koet said to you, he became extremely

20 angry because he did not believe what he was being told by this

21 Colonel Bandic, this representative from the Croatian community of

22 Herceg-Bosna from the HVO Headquarters in Mostar.

23 The Village Guard Force: The Village Guard Force is a

24 matter that we have addressed in this investigation. I would say

25 this about it and I think this is borne out by the evidence that is

Page 223

1 in front of you. Stupni Do, as has been indicated to you, lay near

2 the centre of a group of confrontation lines; nearby were Croat and

3 Serb controlled areas. When Bosnia Herzegovina was attacked it was

4 simply not ready to repel its invaders on the broad fronts it had to

5 cope with, let alone assist a small isolated community such as Stupni

6 Do. The villagers realised this and they set up a village watch or

7 guard in the summer of 1992. I would recommend to you the statement

8 of Witness G at page 429 of the second bundle of evidence. He was a

9 member of the Guard Force and explains, in some detail, its original

10 purpose. It was certainly not an offensive unit. It exclusively

11 consisted of Stupni Do villagers and was, indeed, very lightly

12 equipped. You will recall in the evidence of Witness F she provides

13 very compelling evidence about her son and her husband. How indeed

14 they had bits and pieces of uniforms; her son's boots did not fit

15 properly. This was a local village force. It was not, the

16 Prosecution submits, a part of the regular Bosnian Army.

17 The charges themselves: In addition to Article 7(1) of

18 the Statute, Ivica Rajic is also criminally liable under Article 7(3)

19 as the commander of the forces in Stupni Do.

20 He had the power to prevent and, of course, or punish and there is no

21 evidence to suggest that he did either of those things.

22 The international armed conflict aspect of this case: On

23 these aspects, I would refer you to the very full brief that was

24 filed with the court on 1st April 1996. Simply put, the foundation

25 of the Prosecution in respect of charges 1, 2, 4 and 5, the Grave

Page 224

1 Breaches provisions is this. The Appeals Chamber held in the Tadic

2 case that Grave Breaches must be committed within an international

3 armed conflict, and that the persons or property against whom those

4 Grave Breaches are committed must be protected persons or property

5 within the meaning of the Geneva Convention.

6 The Prosecution say that one party to this conflict was

7 the Republic of Bosnia-Herzegovina and the other party was Croatia

8 and the Croatian community of the Herceg-Bosna closely related to and

9 under the control of the Republic of Croatia. Our primary evidence to

10 support this proposition is contained in the brief. In addition to

11 that, you will remember that Brigadier General Henricsson said to you

12 yesterday that there was a lot of fighting between Muslims and Croats

13 in central Bosnia in October 1993, and that particularly fighting

14 broke out in the Vares municipality in August of that year.

15 You will remember that Sergeant Ekenheim stated that in

16 the Spring of 1993 there was fighting in Mostar; Mostar being the

17 capital of the self-proclaimed community of Herceg-Bosna. This was a

18 time of conflict between Muslims and Croats in this area. Sergeant

19 Ekenheim stated that whilst Brigadier General Pellnas, who was the

20 chief UNMO, the chief United Nations military observer in the area,

21 had to negotiate cease-fire agreements in this area of Bosnia, in the

22 Mostar area, it was necessary to contact Zagreb in the Republic of

23 Croatia in order to ensure that local Croats in Mostar agreed to the

24 cease-fire. Sergeant Ekenheim further specifically remembered seeing

25 insignia on troops in Vares either during the events with which we

Page 225

1 are now concerned or shortly thereafter, where those insignia, he

2 stated, belonged exclusively to the HV, the army of the Republic of

3 Croatia, as opposed to the Bosnian-Croat Army, the HVO.

4 Therefore, the Prosecution says that there was Croatian

5 Army involvement in Vares at the time of the attack on Stupni Do and,

6 moreover, the HVO were fighting

7 against Bosnian government forces elsewhere in Bosnia-Herzegovina

8 during 1993. Furthermore, the brief clearly shows the close political

9 links between the Croatian community of Herceg-Bosna and the Republic

10 of Croatia; and also shows the close military relationship between

11 the HV, the Croatian Army and the HVO, the Bosnian-Croat Army, to

12 such an extent that the HVO can be regarded as an extension of the

13 HV, the Croat Army, which renders the conflict international. The

14 property in Stupni Do and the persons present were protected, because

15 civilians connected with one side of the conflict, namely the

16 Republic of Bosnia-Herzegovina, were in the hands of another party to

17 the conflict, namely Ivica Rajic's HVO forces in Stupni Do who are

18 linked to the other side of the conflict which is Croatia and its

19 organs, the Croatian community of Herceg-Bosna and the HVO, the

20 military side of the Croatian community.

21 The violations: This again is dealt with very fully on

22 the last page of the brief and I recommend that to the court. I would

23 only say this. Under counts 3 and 6 are charges under Article 3 of

24 the Statute, violations of the laws and customs of war, in that Ivac

25 Rajic and HVO forces under his command deliberately attacked the

Page 226

1 civilian population of Stupni Do and wantonly destroyed the village.

2 This indeed is prohibited under both customary and conventional law,

3 and I think these charges, as I say, are covered fully in the final

4 page of the brief.

5 I would remind the court, in conclusion, that the

6 standard of proof required in this hearing is that of Rule 47, that

7 is the definition of a prima facie case for the

8 purposes of this hearing.

9 In conclusion, it has been stated that a purpose of the

10 Rule 61 hearing affords

11 a means of redress for the victims of the absent accused by giving

12 them the opportunity to have their testimony recorded for posterity.

13 I hope that this hearing will serve a much greater purpose than

14 that. Emotion must play no part in these dignified proceedings, but

15 if what has been seen and heard over the past two days results in

16 persons in the international community feeling shock, compassion or

17 righteous anger, then let it be so.

18 If, further, those feelings give rise to the question being put of

19 how any civilised nation could possibly harbour a man accused of

20 these crimes, then let that be so also.

21 The Office of the Prosecutor commends this indictment to

22 you and requests that after due deliberation you will determine that

23 the accused has committed crimes within the jurisdiction of this

24 court and that you will then issue an international arrest warrant to

25 all relevant states and the commander-in-chief of the implementation

Page 227

1 force of NATO.

2 That is the end of my closing, your Honour. The

3 Prosecution rests.

4 THE PRESIDING JUDGE: I have a few questions regarding the facts, if I

5 may, maybe that might be the best way to handle it, and then each

6 judge may want to ask questions about the facts. Then of course we

7 will move to the questions of law.

8 There was mentioned during, well, there was mentioned

9 certainly in the statements about the possibility that this attack

10 may have been conducted by a

11 paramilitary group. Am I reading something into the statements that I

12 did not see?

13 MR. CAYLEY: No, I believe that there was a witness and I cannot recall

14 off the top of my

15 head.

16 THE PRESIDING JUDGE: Then of course we had testimony about the extremists

17 and persons dressing in black, having a knife in their belt, just

18 kind of haphazardly dressed as opposed to being in a formal uniform.

19 There was also testimony, as I recall -- perhaps it was just

20 in the statements -- that there was one wave of soldiers who came to

21 Stupni Do and then there was a second group that kind of cleaned up.

22 MR. CAYLEY: Did the cleansing.

23 THE PRESIDING JUDGE: The cleansing, yes, those words were used. What

24 evidence is

25 there that Commander Rajic was responsible for not only HVO troops,

Page 228

1 troops formerly designated as HVO troops, as well as this group of

2 extremists?

3 MR. CAYLEY: I think the evidence that there is to suggest that Rajic was

4 in command was indeed because he actually stated to both Brigadier

5 General Henricsson and Ekenheim

6 over a period of days that he was in command in the area. He

7 specifically came with a

8 unit from Kiseljak and, as I explained to you earlier, took command

9 in the area which

10 was, in effect, already under his command. He was, as it were, as

11 you can see from that diagram, the commander of the second

12 operational group. By bringing his own troops to the area and sort

13 of augmenting them with the Bobovac Brigade, which is I think what

14 certainly the statements indicate, in no way affects the position.

15 I think you will find as a general observation that many

16 units in the country at the time were often dressed in a haphazard

17 way. It was often very difficult to say specifically that just

18 because a unit was dressed in that way that they not under some

19 formal command structure. Certainly the evidence we present very

20 clearly shows that Rajic was the commander of this second operational

21 group in Kiseljak, that he came from Kiseljak to Vares with a unit of

22 troops under his command, took direct control of the whole of he

23 Vares area, as he said to General Ekenheim, and then, the Prosecution

24 alleges, carried out this attack, utilising both units of the Bobovac

25 Brigade and these other paramilitary units. Indeed, your Honour, you

Page 229

1 will remember that Ekenheim states that trying to get past

2 checkpoints, he identified those as HVO soldiers, and they were

3 saying, "I am terribly sorry we can't let you pass without the

4 permission of Ivica Rajic". So it was very clear, I think, that

5 Rajic was in control of the entire area at the time.

6 THE PRESIDING JUDGE: There was a lot of testimony about soldiers dressed

7 in black as the extremists, I suppose have been described, with

8 knives in their belts, for example, being at the Bobovac headquarters

9 ----

10 MR. CAYLEY: Exactly.

11 THE PRESIDING JUDGE: --- where I gather the HVO for the Bobovac Brigade

12 was formally placed; is that not so?

13 MR. CAYLEY: Yes, I mean as formally as you can say anything was.

14 THE PRESIDING JUDGE: What evidence do you have that phosphorus ammunition

15 was

16 used? It is mentioned in a few of the statements. It was mentioned

17 maybe once as I recall during the testimony.

18 MR. CAYLEY: I think indeed the memoranda that Lieutenant Colonel Koet

19 called, obviously the most compelling evidence, is the fact that the

20 HVO indeed make an admission,

21 because although Colonel Koet, it was not placed in his original

22 memorandum, I believe he actually asked the question, because when

23 these military people went in to Stupni Do the question was asked as

24 to why there was so much burning. I believe, in fact, that although

25 Brigadier General Henricsson did not refer to it in his oral

Page 230

1 testimony, he actually stated in the original statement that he made

2 to us, to the Tribunal investigators, that he saw a lot of white

3 smoke. Indeed a further witness that states this was Patrick

4 Gustaffsson who was a Swedish Military Police Officer. His statement

5 is in the first bundle of evidence. He states from his observations

6 of Stupni Do that he thought that phosphorus ammunition was being

7 used. He was an experienced soldier. He knew what phosphorus looked

8 like. He knew the effects of it. He was convinced in his

9 observations that to get that sort of heat, that sort of smoke, you

10 would need phosphorus ammunition.

11 THE PRESIDING JUDGE: In your indictment, in paragraph 7, I think it is

12 stated that the Prosecutor has been informed that Ivica Rajic is

13 presently in the custody of the authorities of HZ-HB in connection

14 with other crimes which are not the subject of this indictment. Do

15 you have any information that I suppose we could take judicial notice

16 of regarding that indictment?

17 MR. CAYLEY: I am sorry, your Honour, could you repeat the question? I

18 apologise.

19 THE PRESIDING JUDGE: Paragraph 7 simply says that the accused is

20 presently in the custody of the authorities of HZ-HB in connection

21 with other crimes which are not the subject of this indictment. My

22 question is do you have any information that perhaps we can take

23 judicial notice of with respect to the outcome of that indictment?

24 MR. CAYLEY: The current whereabouts and from my own information on

25 talking to representatives of the MUP, the Bosnian Ministry of the

Page 231

1 Interior, Ivica Rajic was in Kiseljak and, indeed, the power of

2 attorney that he filed with the court is signed 19th January in

3 Kiseljak, purportedly signed by Ivica Rajic. They provided us with

4 intelligence that he had then moved to Mostar, and we have some

5 information, I would not call it evidence, that he is now in the

6 Republic of Croatia.

7 THE PRESIDING JUDGE: That is what you had stated in your opening. What I

8 was referring to, was he not indicted by the HZ-HB and was he tried?

9 MR. CAYLEY: He was indeed and he was released. He was tried and

10 acquitted.

11 THE PRESIDING JUDGE: That is something, I suppose, we could take judicial

12 notice of if there was a judgement of acquittal.

13 MR. CAYLEY: There was an acquittal, but it was for a completely separate

14 matter, not connected with these proceedings.

15 THE PRESIDING JUDGE: He was released, but he was in custody at the time

16 that this indictment was issued and I gather at the time of the

17 issuance of the arrest warrant?

18 MR. CAYLEY: That is correct.

19 THE PRESIDING JUDGE: Is that so? On the internationality of the

20 conflict, I suppose: you in your brief, I think you refer to

21 paragraph 67 of the Appeal's brief -- it may be 67 -- do you have the

22 Appeal's opinion?

23 MR. CAYLEY: I do, your Honour. I have it in front of me.

24 THE PRESIDING JUDGE: The Appeal's opinion in the Tadic matter held that

25 or says in paragraph 32, the second full paragraph of paragraph 72,

Page 232

1 that "to the extent that the conflicts had been limited to clashes

2 between Bosnian government forces and Bosnian-Serb rebel forces in

3 Bosnia-Herzegovina as well as between Croatian government and

4 Croatian Serb rebel forces in Croatia, they had been internal".

5 Of course, there Tadic was concerned with the Serb

6 involvement. Here what we are talking about is, I gather, Bosnian

7 Croat, Bosnian Croat versus Bosnians, but the principle would apply.

8 So to the extent that the conflict was between a Bosnian government

9 force and a Bosnian-Serb, then they would be internal, right?

10 MR. CAYLEY: To that extent, if it was purely Bosnian Croat.

11 THE PRESIDING JUDGE: Unless direct involvement of the Federal Republic of

12 Yugoslavia could be proven. If we were to apply then that statement

13 to this situation, would you say that, according to the Appeal's

14 decision, at least, because this, I suppose, was a conflict between

15 Bosnian Croats and Bosnians, unless there was direct involvement of

16 Croatia, this would not be an international conflict, according to

17 the Appeal's decision, paragraph 67?

18 MR. CAYLEY: That is correct, your Honour, but we are saying that there

19 was sufficient involvement of the Republic of Croatia.

20 THE PRESIDING JUDGE: Direct involvement?

21 MR. CAYLEY: Direct involvement, to make this an international conflict.

22 THE PRESIDING JUDGE: The involvement you talked about, as you summarised

23 your evidence, you have mentioned some of what Ekenheim testified to,

24 but you did not mention it all. I suppose we can take a look at it.

25 As I recall, at least in his statement, there was some mention about

Page 233

1 contacts with the Minister of Defence of Croatia. Do you recall

2 that?

3 MR. CAYLEY: I do recall that. Indeed, I think that was in his original

4 statement. It did not actually come out -- he mentioned it very

5 briefly, I think.

6 THE PRESIDING JUDGE: I do not think he testified to it, but I remember

7 reading it.

8 MR. CAYLEY: He said in his original statement that whilst trying to move

9 UNPROFOR vehicles or tanks from the border of the Republic of Croatia

10 into the Republic of Bosnia-Herzegovina and, indeed, crossing in the

11 southern area of Croatia into HVO controlled territory, i.e. the

12 Croatian community of Herceg-Bosna, there were problems in getting

13 past the HVO controlled checkpoints. He said in his statement --

14 indeed, he was a speaker of Bosnian language-- that he simply made a

15 telephone call to Zagreb and he was given

16 free movement into the Croatian controlled areas of Bosnia.

17 THE PRESIDING JUDGE: Is it your position then that there must be direct

18 involvement by Croatia in order to convert this to an international

19 conflict?

20 MR. CAYLEY: That is what we are saying, your Honour.

21 THE PRESIDING JUDGE: Need there be direct involvement in the attack at

22 Stupni Do for there to be an international conflict at Stupni Do?

23 MR. CAYLEY: No, we do not suggest there needs to be direct involvement of

24 Croatia in that attack.

25 THE PRESIDING JUDGE: So, is it your position that direct involvement

Page 234

1 anywhere in the territory of Bosnia-Herzegovina, or is it your

2 position that direct involvement in a smaller area that is closer to

3 Stupni Do would be sufficient?

4 MR. CAYLEY: I think within a smaller area. Certainly the Appeal judgement

5 made it clear that sort of time and geography is an issue in terms of

6 where this international armed conflict

7 is taking place. Indeed, our position is, as Sergeant Ekenheim

8 stated, there were units of the HV locally in Vares at the time of

9 the attack on Stupni Do. He specifically identifies insignia on

10 Croatian soldiers which were, he said, exclusive to the Croatian

11 Army.

12 THE PRESIDING JUDGE: In the second operational group area, I guess, is

13 that what you are saying?

14 MR. CAYLEY: In the second operational group and, specifically, Ekenheim's

15 testimony was to Vares, but indeed the Prosecution is saying that

16 there was HVO -- HV Croatian Army involvement throughout Central

17 Bosnia during 1993.

18 THE PRESIDING JUDGE: So it is your position that if there was direct HV

19 involvement throughout Central Bosnia during the time of the attack

20 in October 1993 on Stupni Do, that would be sufficient, but that you

21 have evidence of direct involvement of the HV Army, the Croatian

22 Army, in the Vares area? Is that what you are saying?

23 MR. CAYLEY: That is correct.

24 THE PRESIDING JUDGE: Now, that then would be the geographical range; what

25 about the temporal range or the temporal issue? I am not that

Page 235

1 familiar with the dates that Ekenheim and other persons said that

2 they saw Croatian soldiers, that is, HV soldiers, in this area, but

3 how close in time need that be? In other words, need it be on the

4 day of the attack, October 23rd?

5 MR. CAYLEY: I would not say a day; I think it is probably very difficult

6 to set a particular period of time, but certainly a matter of months,

7 I would say, is sufficient. Indeed, again I refer to the Appeal

8 judgement where -----

9 THE PRESIDING JUDGE: Where would you take me to in the Appeal's

10 judgement? Paragraph 67, with respect to the temporal frame of

11 reference?

12 MR. CAYLEY: Yes, if I could read it? "The temporal and geographical

13 scope of both internal and international armed conflicts extends

14 beyond the exact time and place of hostilities". So, indeed, no

15 specifically defined temporal or geographical framework is given. I

16 would imagine that it is simply necessary to apply a degree of common

17 sense.

18 THE PRESIDING JUDGE: Paragraph 67, page 36. Then the next sentence

19 though goes on to say: "With respect to the temporal frame of

20 reference of international armed conflicts, each of the Geneva

21 Conventions contains language intimating that their application may

22 extend beyond the cessation of fighting". So I do not know whether

23 the Appeals Chamber there is talking about, well, it may carry on

24 even though the fighting had stopped.

25 MR. CAYLEY: I think the provisions of the Conventions actually provide

Page 236

1 for that.

2 THE PRESIDING JUDGE: Provide for that.

3 MR. CAYLEY: You are quite right, your Honour.

4 THE PRESIDING JUDGE: But in terms of our making a determination as to

5 whether an international conflict exists, and if we were to have to

6 look for direct involvement from an army outside of the State, and

7 you agree that that would be the case, then my question is, well,

8 when do they have to have been involved? You tell me a period of

9 months.

10 MR. CAYLEY: I would actually go further than saying just an army. I

11 would say there was very close political involvement. I think it is a

12 two-pronged argument. It was a very close degree of political

13 control. I will not go into all the facts. They are fully set out in

14 the brief. Again, in terms of when that involvement commenced, I

15 would simply say, generally, that the Prosecution's case is that in

16 1993 there was a sufficient degree of involvement from both the

17 Croatian Army and political control from Zagreb to make this an

18 international armed conflict.

19 THE PRESIDING JUDGE: One of our law clerks has directed us to the

20 Nicaragua case from the International Court of Justice, where in that

21 case the court found that the United States had been providing the

22 Nicaraguan rebels with weapons trading in money, and yet the court

23 did not determine that the conflict was of an international nature.

24 Certainly, that is more than the political relationship that you have

25 talked about and you have as Exhibit 2, the material that you have

Page 237

1 given us. Are you in a position to deal with the Nicaragua case? It

2 is not mentioned in your brief.

3 MR. CAYLEY: I do not have the case to hand, your Honour, but from my sort

4 of knowledge of that case, I think the same case also held that where

5 the US government had been, I think, paying agents, employees -- I

6 cannot remember the exact definition -- to lay mines, it was held

7 that International Humanitarian Law applied and, indeed, the

8 Prosecution's position is that the links ------

9 THE PRESIDING JUDGE: Common Article 3, that is for sure, applied of the

10 Geneva Conventions applied, but we are talking about Article 2 now.

11 We are talking about the Grave Breaches section, our Article 2.

12 MR. CAYLEY: But what I am saying is that the involvement of the Republic

13 of Croatia and its links with the Croatian community of Herceg-Bosna

14 are much, much closer from a political point and from a military

15 point of view. I think that is evidenced again by the facts set out

16 in the brief and in the oral testimony that you heard, particularly

17 from Ekenheim.

18 THE PRESIDING JUDGE: Maybe you would want to provide the Chamber with a

19 short memo, post Rule 61 memo, if you can, discussing the

20 relationship between the Nicaragua case and the facts in this

21 situation, basically telling us whether or not the Nicaragua case

22 would stand as an impediment to our finding, based on the facts,

23 really, the degree of involvement, that there was direct involvement

24 by Croatia.

25 I think, Judge Sidhwa, you mentioned earlier that you had

Page 238

1 some questions on protected persons? Do you want to explore this

2 area?

3 JUDGE SIDHWA: Yes. Would you treat some part of the regular army and HVO

4 are in territories of Bosnia-Herzegovina, will you consider them to

5 be an occupational force or no, or what is the position?

6 MR. CAYLEY: The position of the Prosecution, your Honour, on I think you

7 are referring specifically to Article 4 is not, in fact, that this

8 organ, this agent of the Croatians, the HVO, were in occupation, but

9 the Prosecution is saying that there was a state of conflict that

10 existed between two separate parties; the government of the Republic

11 of Bosnia-Herzegovina on one side and the Croatian community of

12 Herceg-Bosna and Croatia on the other side, and that the people of

13 Stupni Do, being Bosnian citizens, found themselves in the hands of a

14 party to the conflict -- Ivica Rajic and his HVO troops in Stupni Do.

15 JUDGE SIDHWA: You do not treat that as an occupational force?

16 MR. CAYLEY: No, we do not, your Honour, no.

17 THE PRESIDING JUDGE: Article 4 provides -- this is Article 4 of the

18 Geneva Conventions -- "The definition of protected persons in part

19 provides, nationals of a state which are not bound by the Convention

20 are not protected. Nationals of a neutral state who find themselves

21 in the territory of a belligerent state and naturals of a

22 cobelligerent state shall not be regarded as protected persons while

23 the state of which they are nationals has normal diplomatic

24 representation in the state in whose hands they are".

25 I guess my question relates to the status of Croatia. At

Page 239

1 least at one point you have said today, Bosnians and Croatians were

2 allies, they were not -- they were cobelligerents against the Serbs;

3 is that not so?

4 MR. CAYLEY: Are you saying now the Republic of Bosnia and Herzegovina?

5 THE PRESIDING JUDGE: And Croatia at one point were allies against the

6 Serbs, is that not so?

7 MR. CAYLEY: I should be careful about that. As far as the facts are

8 concerned, I do not know the answer to that question so I am going to

9 be careful what I say.

10 THE PRESIDING JUDGE: OK, at one point, let us put it this way -----

11 MR. CAYLEY: They were certainly both fighting the Serbs.

12 THE PRESIDING JUDGE: At one point you have said (and that is in the

13 statement of, I think, Commander Henricsson) that the Bobovac Brigade

14 -----

15 MR. CAYLEY: Bosnian Croats, sorry, I am making a distinction between

16 Croats from Croatia and Bosnian Croats from Bosnia-Herzegovina.

17 THE PRESIDING JUDGE: OK, the Bosnian Croats at one point before Rajic

18 took over reported to the 2nd Bosnian corps; is that correct?

19 MR. CAYLEY: I think actually I may have overstated that. I think what

20 Brigadier Henricsson meant was that although that is what was being

21 said, that formal nature of command never really existed; that, in

22 effect, the Bobovac Brigade, in reality, came under the command of

23 Ivica Rajic.

24 THE PRESIDING JUDGE: In any case, they were not in conflict; they were

25 not fighting each other. Whether they reported to the 2nd Bosnian

Page 240

1 corps, they certainly were not in a conflict; is that not so.

2 MR. CAYLEY: The Bosnian 2nd corps and the Bobovac Brigade?


4 MR. CAYLEY: Again, there is no evidence to suggest that they were,

5 certainly.

6 THE PRESIDING JUDGE: Of course, when Rajic took over, that situation

7 changed. So at one point, though, you say that the Bobovac Brigade

8 became agents of Croatia, the country; is that not so?

9 MR. CAYLEY: Yes.

10 THE PRESIDING JUDGE: OK. If you can assume then that at one point the

11 Bosnian Croats were operating together as allies, then if the Bobovac

12 Brigade became an agent of Croatia, does that not mean that at one

13 point Croatia and Bosnia were cobelligerents? I am not stating that

14 very well.

15 MR. CAYLEY: I think, if I could say, what I would emphasise here, I think

16 again that has been overstated, this relationship with the 2nd corps.

17 I think that, in reality, there never was a command relationship

18 between them. I think, indeed, the evidence of Brigadier Angus

19 Ramsay (which is a statement in the first bundle) indicates that

20 Muslims and Croats were fighting each other very much at the

21 beginning of January 1993. Again, I simply do not know the extent

22 of the relationship between the Bobovac Brigade and the 2nd corps in

23 Tuzla because there has only been a passing reference to it by the

24 General.

25 THE PRESIDING JUDGE: So certainly by October 1993 they were not

Page 241

1 cobelligerents for sure.

2 MR. CAYLEY: Certainly not.

3 THE PRESIDING JUDGE: OK. So it is your position then that Bosnian Croats

4 were acting as agents of Croatia; is that correct?

5 MR. CAYLEY: It is the correct position. They were so closely related to

6 each other, there was such a degree of political control from Croatia

7 over the Croatian community of Herceg-Bosna, there was such a degree

8 of military involvement that they were, in effect, as agents of the

9 state of Croatia.

10 THE PRESIDING JUDGE: OK, so they were then acting as agents. Then when

11 they attacked -- I think this is what you say in your brief - Stupni

12 Do, then they became, and to the extent that they then took over the

13 inhabitants of Stupni Do, the occupying power of

14 Stupni Do?

15 MR. CAYLEY: We are actually saying, in fact, under Article 4, more

16 specifically, of the Fourth Convention that they were a party to the

17 conflict, the HVO, as agents of Croatia, and that the poor villagers

18 in Stupni Do, as citizens of the Republic of Bosnia-Herzegovina, were

19 indeed the people that found themselves in the hands of a party, the

20 HVO, under Ivica Rajic's command in Stupni Do and, therefore, became

21 protected persons.

22 THE PRESIDING JUDGE: Because the HVO was acting as an agent of Croatia?

23 MR. CAYLEY: Correct.

24 THE PRESIDING JUDGE: And the persons in Stupni Do, through the testimony

25 that we have heard, considered themselves allied with

Page 242

1 Bosnia-Herzegovina?

2 MR. CAYLEY: That is correct, your Honour.

3 THE PRESIDING JUDGE: Now, you have charged Mr. Rajic alternatively with

4 knowing or should have known that the attack -- basically command

5 responsibility, is that not so?

6 MR. CAYLEY: Yes, your Honour.

7 THE PRESIDING JUDGE: Who is ultimately then responsible for the attack in

8 terms of command responsibility, if I accept your agency theory?

9 MR. CAYLEY: Ultimately, if we can prove it, the Republic of Croatia.

10 But, indeed, there is no proof that we have to suggest that, so I

11 would be cautious about drawing -- ultimately

12 ---

13 THE PRESIDING JUDGE: But you contend that you have enough proof ---

14 MR. CAYLEY: -- the chain could go that far.

15 THE PRESIDING JUDGE: But you do have enough proof, you say, to establish

16 agency?

17 MR. CAYLEY: We do, we believe, yes.

18 THE PRESIDING JUDGE: Very good. Thank you very much. We will adjourn

19 until May

20 2nd. We believe that we will be in a position to issue the decision

21 at that time.

22 I did not give you a date on the memo that I had asked

23 you to give us with respect to the relevance of the Nicaragua case.

24 What I am particularly concerned about

25 is, what does Nicaragua tell us about, what factual evidence is

Page 243

1 sufficient to show direct involvement, thus triggering, at least, you

2 would say, Article 2 of the Geneva Conventions? You can do that by,

3 well, Friday and Monday is a holiday -- how about Wednesday,

4 Wednesday about 5 p.m.?

5 MR. CAYLEY: That is fine, thank you.

6 THE PRESIDING JUDGE: Thank you. The court is adjourned.

7 (The hearing was adjourned)