Tribunal Criminal Tribunal for the Former Yugoslavia

Page 255

1 Tuesday, 16 December 2003

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 12.03 p.m.

5 JUDGE PARKER: [Microphone not activated] Good afternoon to

6 everybody. Would you please call the case for hearing.

7 THE REGISTRAR: Case number IT-01-42-T, the Prosecutor versus

8 Pavle Strugar.

9 JUDGE PARKER: [Microphone not activated] The accused is present.

10 Appearances for the Prosecution. For the trial.

11 MR. WEINER: Good afternoon, Your Honour. To my right is

12 Nicholas Kaufman. To my left is our trial manager, Victoria McCreath.

13 And my name is Philip Weiner. Thank you.

14 JUDGE PARKER: Thank you. And, Mr. Weiner, we understand that

15 you have some problem with your back at the moment. Please, if it is

16 more comfortable, remain seated.

17 MR. WEINER: Thank you very much.

18 JUDGE PARKER: For the Defence.

19 MR. RODIC: [Interpretation] Good afternoon, Your Honour. My name

20 is Goran Rodic, and my colleague is Vladimir Petrovic.

21 JUDGE PARKER: Thank you very much, Mr. Rodic and Mr. Petrovic.

22 Now, we plan this morning to hear -- this afternoon to hear the

23 opening address of counsel for the Prosecution.

24 Is there something, Mr. Rodic?

25 MR. RODIC: [Interpretation] Your Honour, in keeping with the

Page 256

1 Pre-Trial Conference that was held yesterday, I would kindly ask for five

2 minutes to present an issue to this new Trial Chamber, the Chamber that

3 will be in charge of this case. This has to do with my submission on the

4 physical and medical condition of General Strugar.

5 This is the first time we are addressing the Trial Chamber, which

6 is going to be rendering all the decisions important for

7 General Strugar's case. So far we have seen that there has been concern

8 for an expeditious trial and the cost effectiveness in using the

9 resources, bearing in mind a very serious problem that the Defence team

10 is facing and a serious concern about the overall health condition and

11 the ability of General Strugar to follow the procedure which was fully

12 explained in our submission submitted to you on the 15th of December.

13 In keeping with Rule 74 bis, we are kindly asking the Trial

14 Chamber to render a decision that will have a huge bearing on the outcome

15 of this trial. We kindly ask for this issue to be dealt with before we

16 start this procedure.

17 The Defence has presented enough evidence to prove that there is

18 a serious concern about the accused's ability to follow this procedure.

19 We have submitted medical evidence --

20 [Trial Chamber confers]

21 JUDGE PARKER: We are happy to hear you at this point, Mr. Rodic,

22 on the issue. If you'd please turn directly to that.

23 MR. RODIC: [Interpretation] Thank you very much.

24 We have expressed our serious concern based on the medical

25 documents and our immediate contact with our client. In our

Page 257

1 jurisdiction, when we are faced with such a problem, the Defence usually

2 asks for a delay for the Trial Chamber to engage a forensic expert who is

3 best called to answer some questions. It is the same case in the practice

4 of this Tribunal.

5 Just immediately before this trial, this was what was done in

6 the case of Vladimir Kovacevic, who is also charged with the shelling of

7 Dubrovnik. Verbally, the Defence is asking for a delay. We don't think

8 it would be prejudicial for this procedure, because the delay that we are

9 asking for is three days before the three-week recess that we have. We

10 believe that during that period of time all the medical expert's opinion

11 can be obtained. Therefore, the Defence would like to request a

12 three-day delay, and we are kindly asking the Trial Chamber to render a

13 decision on that.

14 As we heard yesterday at the Pre-Trial Conference, the next

15 witness -- the first or the second on the list that is about to appear

16 before this Trial Chamber is Mr. Stringer. In his testimony, he is going

17 to mention a number of verbal and written contacts with our client during

18 the year 1991. It is our objective problem that the general does not

19 recall this witness at all. So what is the Defence going to be facing

20 when we start to cross-examine? Are we going to hear that there were no

21 contacts? Are we going to hear that the contents of the contacts are not

22 what they were? So this is just one illustration, one example. We

23 checked that with the General at the end of the day yesterday, when the

24 trial was announced.

25 Once again, I would kindly ask the Chamber to take this motion

Page 258

1 into account and to render a decision pursuant to Rule 74 bis.

2 Thank you very much.

3 JUDGE PARKER: Thank you, Mr. Rodic.

4 Mr. Weiner, is there anything that you would wish to add?

5 MR. WEINER: Yes, Your Honour. I would just want to state for

6 the record that yesterday, when Judge Orie questioned the accused, that

7 he spoke eloquently, his statements demonstrated a fine memory, his

8 answers were responsive, his statements demonstrated a functioning mental

9 process, and his statements did not show any proof of a person suffering

10 from a serious problem of dementia.

11 Judge Orie has already decided this motion. And as a result, the

12 Prosecution would ask that the motion be denied and that we move ahead

13 for trial. Thank you.

14 JUDGE PARKER: Thank you, Mr. Weiner.

15 Mr. Rodic.

16 MR. RODIC: [Interpretation] Your Honour, I apologise. I would

17 like to make a suggestion. With all due respect, nobody in this

18 courtroom, none of us legal experts is able and capable of judging the

19 medical opinion that was given for General Strugar. I believe that other

20 people are better equipped for that -- I'm talking about medical experts.

21 So the medical experts are the only ones who could tell us whether

22 General Strugar is indeed capable of following the procedure, and if he

23 is capable, then on what conditions. And this is exactly what we are

24 mentioning in our submission, that this is what we are asking for. Thank

25 you very much.

Page 259

1 JUDGE PARKER: Thank you, Mr. Rodic.

2 [Trial Chamber confers]

3 JUDGE PARKER: As counsel will be aware, the three members of

4 this Trial Chamber were present throughout yesterday's hearing and had

5 the opportunity of hearing the careful submissions that were advanced by

6 counsel for Mr. Strugar and of hearing and considering for ourselves the

7 medical reports that have been provided in support of the motion, which

8 is to delay the commencement of the trial for the three days that remain

9 of this week and thereby to have advantage of the three-week break that

10 will follow for the purpose of collecting additional medical examination

11 and reports.

12 We also had the advantage of hearing the observations made by the

13 accused himself yesterday in the course of the hearing, and we made note

14 ourselves of the general tenor of his remarks and the capacity which they

15 demonstrated for an understanding of what was occurring and for some

16 considerable clarity of recollection of past events.

17 It is the view that we presently hold that there is a nothing in

18 the medical certificates that have been advanced in support of the motion

19 which would justify or require the delay of the commencement of the

20 trial. We will give further consideration to whether it might be

21 desirable to order some further medical examination during the three-week

22 break. I have to say that at the moment the reports and the condition of

23 the accused do not suggest to us that that will be essential, but we

24 appreciate that it is a matter of concern to Defence counsel and it may

25 be prudent, it may be wise, as a precaution, to have further medical

Page 260

1 examination undertaken. And we will consider that and come to a decision

2 on that matter before we break in three days' time. Thank you.

3 Yes, Mr. Weiner.

4 [Prosecution Opening Statement]

5 MR. WEINER: Good afternoon, Your Honours. Again, I apologise

6 for being seated. It's not any show of disrespect.

7 The case before you against the accused, Pavle Strugar, revolves

8 around the unlawful attacks directed against civilians and civilian

9 objects in the old town of Dubrovnik, Republic of Croatia, on 6 December

10 1991.

11 On the monitors in front of you, you have a view of the ancient

12 walled city of Dubrovnik.

13 With modern communications allowing people to watch events in

14 realtime, the people of the world --

15 [Trial Chamber and registrar confer]

16 MR. WEINER: The people of the world witnessed on their

17 television sets the sustained, senseless shelling of the old town of

18 Dubrovnik by forces under the command and control of the JNA, also known

19 as the Yugoslav People's Army. The unlawful attacks went from the early

20 morning hours until late in the day. They proved to be deadly to the

21 civilians in the old town and devastating to the structures, monuments,

22 and works of art and sciences located within the ancient walls.

23 The accused, Pavle Strugar, born on 13 July 1933, was 58 years

24 old when he assumed the command of the 2nd Operational Group of the JNA.

25 He is an ethnic Montenegrin who became commander of the Territorial

Page 261

1 Defence forces in Montenegro.

2 Over the course of this trial, the Prosecution will demonstrate

3 through military experts and other witnesses that the accused, Pavle

4 Strugar, created and allows to flourish a command climate of impunity for

5 violations of orders not to damage or engage the old town of Dubrovnik.

6 In support of this theme, the Prosecution will demonstrate:

7 1. That certain orders, directives, instructions, and JNA

8 doctrine which prohibited attacks on cultural property and/or

9 specifically prohibited attacking the old town were in effect.

10 In addition, that there was a consistent failure at multiple

11 levels of command, including the level of the accused Strugar, as

12 commander of the 2nd Operational Group, to implement these orders and

13 directives and to impose discipline when these orders and directives were

14 violated.

15 That the shelling of the old town in October 1991, during which

16 the Museum Rupe was hit and a civilian was injured, went uninvestigated

17 and accordingly unpunished, despite orders prohibiting this conduct.

18 That the shelling of the old town in November 1991 by JNA forces

19 under the control of the accused Strugar, which attacks included the use

20 of Maljutkas or wire-guided missiles - and if you look on the monitor,

21 you see a rocket which is a Maljutka or wire-guided missile - that the

22 use of Maljutkas or wire-guided missiles went uninvestigated, and

23 accordingly unpunished, despite orders prohibiting this conduct.

24 That the best predictor of future behaviour is past behaviour.

25 As direct and foreseeable consequence of the accused Strugar's failure to

Page 262

1 investigate and/or discipline for violations of orders prohibiting

2 attacks on the old town of Dubrovnik, the accused gave a green light on

3 the 6th of December, 1991 to forces under his control who he knew had

4 previously shelled the old town with impunity to, once again shell it,

5 this time with unprecedented ferocity from the early morning till late in

6 the day.

7 Forces under the JNA under the control of the accused Strugar for

8 an extended period of time pounded mercilessly the old town of Dubrovnik

9 with mortars, with wire-guided missiles called Maljutkas, and with other

10 heavy weaponry.

11 We now look at the nature of the liability in this case. There

12 are two grounds to the culpability of the accused, Lieutenant General

13 Pavle Strugar. One ground arises from his failure to carry out his duty

14 as the commander of the 2nd Operational Group, commonly referred to as

15 the "2 OG," to ensure units subordinate to him complied with the laws of

16 war.

17 The second ground arises from his giving imprecise orders to

18 attack Dubrovnik knowing that there was a high risk that his subordinates

19 would attack civilians and civilian objects in the old town during this

20 attack.

21 The Prosecution will present evidence from Admiral Miodrag Jokic,

22 the immediate subordinate of the accused Pavle Strugar and an

23 intermediate commander between the attacking units and the accused

24 Strugar, that there was a casual -- or a causal connection between the

25 previous incidents of attacking the old town and the unlawful attacks on

Page 263

1 6 December with their predictably deadly, and damaging consequences.

2 This case deals with a body of law called "jus in bello." These

3 laws regulate the actual conduct of armed conflict. It looks at the way

4 warfare is waged or hostilities are conducted. It does not address the

5 causes of the conflict, but rather, just what happens during the

6 conflict.

7 The law governing this case is derived from Common Article

8 3(1)(a) of the Geneva Conventions of 1949; Additional Protocol I and

9 Additional Protocol II to the Geneva Conventions of 1949, other treaty

10 law and customary law.

11 The protections afforded to civilians and civilian objects

12 pursuant to the law just described reflect what is referred to as the

13 "principle of distinction," which is a fundamental principle in

14 international humanitarian law. This principle of law requires parties

15 to armed conflict to distinguish at all times between civilian population

16 and combatants and between civilian objects and military objectives, with

17 the obligation to direct their operations only against military

18 objectives.

19 The special protections which apply to the old town of Dubrovnik,

20 with its unique and remarkable cultural heritage, reflected in its

21 monuments, structures, and the contents of its institutions, are rooted

22 in various sources of international humanitarian law which have been

23 referred to.

24 The Prosecution will demonstrate that these international legal

25 obligations were reinforced and re-emphasised by Federal Yugoslav and JNA

Page 264

1 regulations and directives.

2 Additional Protocol I states that attacks are to be limited

3 strictly to military objectives. It goes on to refer to military

4 objectives as those objects which by their nature, location, purpose, or

5 use make an effective contribution to military action and whose total or

6 partial destruction, capture or neutralisation, in the circumstances

7 ruling at the time, offer a definite military advantage. The principles

8 prohibiting attacks on civilians or civilian objects discussed in

9 Articles 51 and 52 of Additional Protocol I and Article 13 of Protocol II

10 are also principles of customary international law. Customary

11 international law establishes that a violation of these principles

12 entails -- entails individual criminal responsibility.

13 The Prosecution will demonstrate that the attacks directed

14 against the old town of Dubrovnik on 6 December 1991 were flagrantly in

15 violation of the above provisions of the law.

16 The Prosecutor submits that there was no acceptable military or

17 legal reason or justification for firing the shells and rockets which

18 landed in the old town of Dubrovnik on 6 December 1991.

19 All military operations, including the firing of projectiles such

20 as mortar bombs, which are inherently imprecise weapons, or wire-guided

21 missiles, which are highly precise weapons, must be directed at

22 legitimate military objectives. Further, attacks directed against

23 military objectives must be based on reliable intelligence indicating

24 that the military objective is present at the attack location when the

25 attack occurs. It is not enough to assert that a mobile target such as a

Page 265

1 combatant, a military vehicle, or a mobile mortar, was present at the

2 location some time before the attack was launched.

3 We know from testimony or from speaking with witnesses that there

4 was no outgoing fire from the old town on 6 December 1991. Nothing in

5 the old town posed a threat to the attacking forces. The attack on 6

6 December was simply and conspicuously unlawful, because it was directed

7 against civilians and civilian objects. Unlawful attacks include

8 indiscriminate attacks; that is, attacks where, in the circumstances, the

9 weapons which are used are not sufficiently precise to allow for

10 distinction between civilian -- civilians or combatants or between

11 military objectives or civilian objects.

12 Even if, for the sake of argument, which the Prosecution does not

13 concede, it is -- it were to be established that there were military

14 objectives in or close to the old town on the 6th of December, the

15 Prosecution submits that those ordering an attack directed against

16 military objectives are compelled by law and by sound and reasonable

17 military practice to weigh the military advantage derived from such an

18 attack against the death or injury to civilians and the damage to

19 civilian objects. If the expected loss of life or injury to civilians or

20 damage to civilian objects is excessive in relation to the concrete and

21 direct military advantage derived from the attack, then that attack

22 should not be carried out. Reasonable commanders have a duty to refrain

23 when the circumstances dictate.

24 The Prosecution will demonstrate that civilian losses in human

25 lives and property in the old town of Dubrovnik caused by the attack on

Page 266

1 the 6th of December were indeed excessive and provide an evidentiary

2 basis from which this Trial Chamber can conclude that the attack was in

3 substance directed against civilians and civilian property.

4 Further, the status of the old town of Dubrovnik as a repository

5 of cultural monuments and institutions dedicated to arts and sciences, as

6 further evidenced by the UNESCO designation, legally obligated JNA

7 attackers to exercise particular care before firing shells which might

8 have an impact in the old town. These legal requirements ensure that

9 civilian losses are not excessive and to exercise particular care when

10 cultural property is at risk must be -- these requirements must be taken

11 into account at all times, under all circumstances, but particularly when

12 weapons such as mortars, which are imprecise area weapons, not precision

13 weapons, are used. Most of the projectiles which landed in the old town

14 on 6 December appeared to have been mortar bombs fired from 82-millimetre

15 and 120-millimetre mortars.

16 By way of example, let us suppose that there was a small military

17 objective such as a fixed machine-gun located in the old town on the 6th

18 of December. Let us further suppose that the location of this objective

19 could be identified and that the objective posed a threat to the

20 attacking JNA forces under the command of the accused. JNA forces under

21 the command of the accused would view this and let us suppose that these

22 attacking forces, as they did in fact, had 120-millimetre mortars

23 available to them to suppress the machine-gun in the old town.

24 "Suppress" is a military term of art which means to destroy 20 to 30 per

25 cent of a target. There are prepared mathematical tables which indicate

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1 how many rounds of ammunition should be fired before a particular target

2 is likely to be suppressed. In our machine-gun example, it would usually

3 take the JNA over 100 mortar bombs to suppress - meaning, to destroy 20

4 to 30 per cent of that single machine-gun. The vast majority of these

5 120-millimetre bombs fired in theory at a small military objective at a

6 fixed location would inevitably miss the target and hit something else.

7 In the old town, that something else could only be civilians and civilian

8 objects.

9 During the course of this trial, the Prosecution will demonstrate

10 through expert and other witnesses the technical aspects of artillery,

11 mortars, and other infantry support weapons. The discussion will address

12 doctrine for the use of fire support weaponry, including principles of

13 planning, command and control, coordination, and communication which

14 direct the use of artillery and mortar fire during military operations.

15 The Prosecution bases its case on individual criminal

16 responsibility, including superior responsibility. The accused Strugar,

17 as overall commander of the 2nd Operational Group, had a

18 superior-subordinate relationship with Admiral Jokic, head of the

19 9th Naval Sector, commonly referred to as the 9 VPS, and with Captain

20 Vladimir Kovacevic, the commander of the 3rd Battalion of the

21 472nd Motorised Brigade or Trebinje Brigade. By or on the 6th of

22 December, the 3rd Battalion of the 472nd Trebinje Brigade was

23 subordinated to Admiral Jokic and both Kovacevic and Jokic were

24 subordinated to the accused Strugar.

25 Kovacevic's troops had a history of violating with impunity the

Page 268

1 orders not to attack the old town. On 6 December 1991, in the early

2 morning hours, history repeated itself. This problem unit, commanded by

3 Captain Vladimir Kovacevic, had been left in place by Admiral Jokic and

4 the accused Strugar. Kovacevic launched an attack against the Croatian

5 stronghold on the high ground of Mount Srdj, from the JNA high ground at

6 Zarkovica, which had an unobstructed view of the old town. Predictably,

7 this attack quickly evolved into an unlawful directed attack against the

8 old town.

9 The Prosecution submits that it was virtually mandatory for the

10 accused as a commander, in the circumstances prevailing at the time, to

11 have anticipated the range of foreseeable problems which could interfere

12 with the realisation of the cease-fire and to have taken measures to

13 prevent those occurrences. It was unreasonable to leave within range of

14 the old town units commanded by Vladimir Kovacevic, which had in fact

15 been involved in the shelling of the old town on two prior occasions with

16 impunity and without so much as an investigation, despite orders

17 prohibiting such conduct. This was a foreseeable risk. The consequence

18 of this foreseeable risk was yet another act of insubordination, the

19 attack on Mount Srdj, with the result that the old town again fell victim

20 to JNA unlawful attacks.

21 The accused Strugar had a duty as commander to be aware of the

22 disciplinary problems with units under his control. This duty applied to

23 the shelling of the old town in October of 1991 and the shelling of the

24 old town again in November of 1991. The accused was aware of the

25 measures that needed to be taken to impose and maintain discipline. He

Page 269

1 was aware that he was responsible for setting the tone of the command

2 throughout the 2nd Operational Group and all of its subordinate units.

3 The accused knowingly encouraged an environment in which breaches of

4 discipline were regularly tolerated with impunity.

5 This pattern of failure to impose discipline or sufficient

6 discipline became the green light referred to earlier, for continued

7 breaches of discipline. These breaches of discipline were allowed to go

8 unchecked through a pervasive climate of indifference towards or

9 avoidance of responsibility for dealing with them at the command level,

10 as required by doctrine, regulations, and the law. Despite his very

11 senior rank in the JNA, the accused Strugar demonstrated a consistent

12 failure to create and to maintain an environment in which discipline

13 prevailed and in which orders were fully complied with.

14 The evidence will demonstrate that Admiral Jokic did not

15 authorise or order the attack against Srdj. Evidence from insiders,

16 however, who were with Kovacevic's battalion will demonstrate that

17 Kovacevic the night before the attack gave the order to attack Srdj, a

18 lawful military objective. From this attack, however, the unlawful

19 attacks -- the unlawful attacks on the old town followed.

20 The Prosecution will show that the unlawful attacks shattered the

21 scheduled implementation of a comprehensive cease-fire to end hostilities

22 in Dubrovnik, scheduled to take place on the 6th of December, 1991. This

23 long-awaited cease-fire had been negotiated by Admiral Jokic representing

24 the JNA, and three Croatian cabinet-level ministers. The importance of

25 this comprehensive cease-fire is underscored by the level of the

Page 270

1 negotiators: Up to this point, the Croatian negotiators had only come

2 from the local level. The restoration of necessities - electricity,

3 water, fuel - was at stake for the civilian population of Dubrovnik, who

4 had suffered during the previous three months. The delay in signing this

5 cease-fire, which resulted from Admiral Jokic's consultation with

6 Belgrade, provided Kovacevic with a window in which to throw the whole

7 process into chaos and to wreak havoc on the people and the structures of

8 the old town.

9 The Prosecution will present through its expert testimony a

10 report on Dubrovnik addressing principally the historical and

11 contemporary significance of the old town. The information contained in

12 this report is offered to assist the Trial Chamber by providing the

13 following: Background to the place -- to place the old town with its

14 geographical context; a brief review of the reasons why the town has come

15 to be regarded as a place of exceptional historic interest and cultural

16 value; an exploration of the manner in which the historic core of

17 Dubrovnik has come to, in more recent times, to serve -- its use as

18 serving for the social and economic development in its region, and the

19 impact which the events in the indictment had upon the old town. The

20 economic aspects of the old town for Croatia and for the region are also

21 discussed in that report.

22 The special status of World Heritage Site conferred upon the old

23 town of Dubrovnik in its entirety by UNESCO will be discussed by UNESCO

24 staff, who were assigned to look after the sites in Croatia, and they

25 were assigned to look after these sites in the face of the armed conflict

Page 271

1 which was occurring. Dr. Colin Kaiser of UNESCO was on assignment in

2 Dubrovnik on 6 December 1991 and will present evidence as to the damage

3 done to the structures in the old town, as well as the methodology for

4 cataloguing the damage in collaboration with local persons.

5 The Prosecution will also present evidence from persons who

6 witnessed the death of civilians in the old town resulting from the

7 unlawful JNA attacks and from persons who can discuss the destruction and

8 devastation to the structures and civilian objects set forth in the

9 indictment. Evidence as to injuries of three civilians will also be

10 presented.

11 The testimony of members of the European Community Monitoring

12 Mission, ECMM, who were in Dubrovnik from October to December 1991, will

13 present the Chamber with a history of negotiations between the Croatian

14 authorities and the JNA and a chronology of the events of December 6th.

15 The Prosecution will seek to admit relevant documents from the ECMM.

16 The Prosecution will present evidence that the date of Croatia's

17 independence is 8 October 1991. The Prosecution submits that a state of

18 international armed conflict existed as of 8 October 1991 and, therefore,

19 the entire body of law applicable to international armed conflict applied

20 as of that date. The Prosecution submits that the Trial Chamber should

21 make the finding of Croatian independence taking place on 8 October 1991.

22 The offences alleged in the indictment, however, have a sound legal

23 foundation irrespective of the date of Croatian independence and

24 irrespective of the classification of this conflict.

25 By the close of this case, the Prosecution submits that the Trial

Page 272

1 Chamber -- to the Trial Chamber that the evidence and all reasonable

2 inferences drawn therefrom will establish the elements for all the

3 offences charged in the indictment and the guilt of the accused beyond a

4 reasonable doubt.

5 We would now like to show a 15-minute video which shows the area

6 of Dubrovnik, the buildings within, the day of December 6th, the

7 destruction which occurred, and the restoration.

8 JUDGE PARKER: Thank you, Mr. Weiner. Yes.

9 [Videotape played]

10 MR. PETROVIC: [Interpretation] Could we interrupt the video for a

11 moment, please. The accused is not receiving interpretation into a

12 language that he understands, so he cannot follow the videotape. So can

13 we start from the beginning and can the videotape be interpreted so that

14 the accused may follow.

15 [Trial Chamber and legal officer confer]

16 JUDGE PARKER: Thank you for your interjection, Mr. Petrovic. It

17 is a problem which is be investigated now. We will pause in the hope

18 that the solution can be found immediately.

19 MR. PETROVIC: [No interpretation]

20 THE INTERPRETER: May it be noted that the interpreters do not

21 have the transcript of the videotape. In a situation when the transcript

22 is not provided, videotapes are not interpreted simultaneously.

23 MR. WEINER: Your Honour, if we could have a few minutes, we

24 could get a transcript of the film upstairs, and if we could have a

25 few-minute break and bring it down and provide it to the interpreters.

Page 273

1 JUDGE PARKER: If you could make those arrangements immediately,

2 Mr. Weiner.

3 While that's happening, we might deal with another matter that

4 can be done with. So we will pause while you get those arrangements

5 underway.

6 Thank you for arranging that. While we are waiting, we won't

7 continue with the video until there is a translation available.

8 But while we are waiting, it would be convenient perhaps for this

9 Trial Chamber to deal with matters which were raised yesterday by Mr.

10 Weiner.

11 In the course of the final pre-trial hearing, he indicated that

12 it would be of help to counsel for the Defence and the Prosecution to

13 have an indication of the view of this Trial Chamber on certain matters.

14 We are happy to give that indication and hope it will assist counsel for

15 both parties.

16 As I noted them, it was first asked by Mr. Weiner what would be

17 the attitude taken to objections. It is our view that if there are

18 serious objections, whether to the admissibility of evidence or to the

19 propriety of a question that is being put to a witness, then it would be

20 preferable for objection to be made at that time, that is, when the issue

21 actually arises. We can then determine whether the evidence should

22 continue and the objection ruled on later or whether it would be

23 preferable to rule on the objection at that time.

24 It was further asked whether there would be allowed objections

25 during opening and closing addresses. We would not consider it to be

Page 274

1 proper to object during an opening address or a closing address. If

2 there is some matter of difficulty which is raised by what is said during

3 the opening or the closing address, then that can be made the subject of

4 a specific comment at the end of the opening or the closing address. But

5 we think it proper for counsel to be allowed to make their opening and

6 their closing address without interruption.

7 It was then asked what our position about the forms of evidence

8 would be. As you would expect, we would understand the normal to be that

9 a witness should be examined by the party calling that witness, should be

10 cross-examined by the opposing party, and maybe briefly re-examined by

11 the party that called them.

12 There was then a question raised by Mr. Weiner whether there

13 might be re-cross-examination. That is something that I'm afraid I need

14 to have explained to me. Perhaps you can indicate, Mr. Weiner, what it

15 is that you had in mind.

16 MR. WEINER: Sometimes -- let me sit. Occasionally one party

17 might feel that additional cross-examination might be necessary, based on

18 what occurred during re-examination.

19 As an example, a party has a examination-in-chief. On

20 cross-examination, briefly an issue is touched upon which opens the door

21 on redirect examination to further delve into that particular issue. At

22 that point a party would -- could request re-cross-examination. It

23 doesn't happen very often, but it's just a question.

24 JUDGE PARKER: Thank you for that clarification. We would

25 certainly not regard that as a normal feature that we would expect or

Page 275

1 encourage, but we would certainly not take an absolutely fixed position

2 because it could be that counsel either for the Defence or for the

3 Prosecution finds themselves with a very particular difficulty. If that

4 should occur, we would certainly hear counsel as to whether they might be

5 given leave to further cross-examine or whatever. But normally no;

6 understand that.

7 It was asked then whether there would be any special rules about

8 cross-examination. We know that the rule governing this has been the

9 subject of amendment at least once during the life of the Tribunal. Our

10 present position and understanding is that there is no absolute legal

11 barrier to a leading question being asked in cross-examination. Having

12 said that and having heard Mr. Weiner's explanation that in the

13 jurisdiction from which he comes that is normal, let us indicate that we

14 would regard it as not normal and, that therefore, while there might be

15 an unusual occasion when it could occur it should not be taken as the

16 normal. And we would especially point out to both counsel that if

17 evidence is obtained by leading questions, naturally the weight that we

18 can attach to that is less than if the evidence is volunteered by the

19 witness directly. So there is a significant disadvantage to falling into

20 the pattern of cross-examining by leading questions. We simply would not

21 be able to give the evidence as much weight as if the evidence had been

22 volunteered by the witness to a proper, non-leading question.

23 It is then asked whether there would be time limits on

24 cross-examination. The course of this trial is one in which I am sure

25 counsel both for the Defence and the Prosecution would be anxious to

Page 276

1 observe, that the hope that the trial could be concluded with all proper

2 speed. We do not plan at this stage to impose formal time limits of any

3 type, but we will certainly watch the progress of the trial, and if it

4 appears to us that the proper progress of the trial would be facilitated

5 by formal time limits, then we will give consideration to that.

6 We would prefer at this stage to leave counsel for both the

7 Defence and the Prosecution with some freedom, some liberty to deal at

8 greater length with an important issue, if it arises, but we would expect

9 also that counsel would not waste time with minor issues and would

10 conclude their cross-examination quickly if there was nothing of

11 significance to be pursued with a particular witness. So it's in that

12 hope that we would not at the moment suggest any formal time limit, but

13 we will watch how the matter progresses.

14 Naturally, we would expect that cross-examination would not take

15 as long as the evidence in chief in the ordinary case. As I think the

16 Pre-Trial Judge indicated yesterday, his expectation would be an average

17 of something like 60 or 70 per cent. We don't disagree with that, but we

18 don't want to be trying to confine counsel at this stage by any such

19 rule. What will be important is that an important issue be properly

20 explored. It will be equally important for us that an issue that is not

21 important is quickly dealt with and put aside.

22 It was asked whether the Prosecution might interview Defence

23 witnesses before cross-examining them. Our position is against that; no.

24 The last matter raised was the question of authentification,

25 matters such as the chain-of-custody witnesses and so on. In the normal

Page 277

1 course, we would regard authentification as not likely to be a critical

2 issue and we would, therefore, allow some flexibility in that matter.

3 But if there is a matter which becomes absolutely critical, naturally the

4 party who -- which depends upon that matter would need to give special

5 attention to their authentification evidence.

6 Now, I think that disposes of the matters which you raised,

7 Mr. Weiner. Was there anything else?

8 MR. WEINER: No. That takes care of it. Thank you very much.

9 JUDGE PARKER: Is there anything that you, Mr. Rodic, would wish

10 to raise at this point on that matter? Mr. Petrovic?

11 MR. PETROVIC: [Interpretation] No, Your Honour. Thank you.

12 JUDGE PARKER: Thank you very much.

13 Now, I think I detected the transcript arriving. Are we in a

14 position to continue with a replay of the videotape with translation? I

15 am being told the answer is yes. So we will continue with the videotape.

16 Thank you very much.

17 [Videotape played]

18 THE NARRATOR: Dubrovnik. Whether she is viewed from the north

19 or the south, from east or west, she is never anything less than a finely

20 balanced result of the work of both men's hand and his irrepressible

21 spirit. Tenacity, ingenuity, an inherent instinct for survival, wisdom,

22 and perseverance; all these have coalesced on this, the dividing line,

23 between two quite distinct civilisations.

24 Through long centuries, while other Croatian lands formed part of

25 other states, the skill of Dubrovnik's diplomats and the impregnability

Page 278

1 of its mighty fortifications began its independence and freedom that it

2 remained the republic of high international stand, both as a commercial

3 power and a significant maritime force. Many of Dubrovnik's citizens won

4 world renown, and world-famous artists travelled to the city to enhance

5 it still further through the trust industry and their works.

6 Dubrovnik is a monument city. Its medieval structure which grew

7 out of the principles of Statute of 1272, has been preserved to this day.

8 The focal point of its legal and administrative power, the of government

9 was the Ducal Palace. Another palatial building, the Sponza Palace, once

10 the state mint and customs office, today houses the city's Historical

11 Archives, one of the richest of its kinds in the whole of the

12 Mediterranean. All this is lovingly protected by the patron saint,

13 St. Blasius, whose statues and images are to be seen on the city gate, on

14 its walls, fortresses, and other public buildings. Relics of the

15 much-revered saint are housed in the cathedral's treasury.

16 In 1979, Dubrovnik, its priceless beauty and the state of

17 preservation of the city's monumental entity was designated a World

18 Heritage Site by UNESCO. Its singular beauty and charm has made

19 Dubrovnik one of the best-known tourist destinations in the world, the

20 traditional Summer Festival being just one element of its attractions.

21 It is said that the streets with elegance and allure of

22 Dubrovnik's Stradun, the city's main thoroughfare, are to be seldom seen

23 anywhere. This mirror of stone lives on through humanity's touch through

24 men's tread and its laughter. It abandoned itself to the casual

25 stroller.

Page 279

1 From the fall of 1991 to the summer of 1992, Stradun was

2 mercilessly bombarded and shelled by units of the Yugoslav People's Army

3 who wreaked terrible destruction upon Dubrovnik. During the most

4 devastating attack on December 6, 1991, something like a thousand shells

5 rained down on the old town within the walls, and in its immediate

6 vicinity. At the end of 1991, Dubrovnik was listed as an endangered

7 world heritage site by UNESCO.

8 But it was not only the city's ancient core which suffered

9 damage. The whole of Dubrovnik wider area, Konavle, Zupa, Dubrovacka,

10 Rijeka, Dubrovacka and the Dubrovnik littoral was occupied by the

11 aggressors and systematically ravaged and desolated. The local

12 inhabitants were banished from their homes, their property plundered,

13 their homes destroyed. Many priceless, irreplaceable cultural and

14 natural monuments were either devastated or badly damaged, as was

15 communal infrastructure, hotels, industrial and residential areas.

16 Spring has burgeoned once more. It is now 1995 and Dubrovnik is

17 displaying its normal image. Details show that restoration work is

18 underway but the city cannot in any way be described as a building site

19 and nor should it be made to look like one. Allowing for the rules

20 governing the individual professions involved, and the specific nature of

21 the task, restoration, of monuments is a long-term ongoing process.

22 Generally speaking, the city's appearance has not been greatly

23 marred and many buildings and details have already been restored. The

24 city's Clock Tower shows the correct time as usual. The cupola and the

25 section of the stone tower, which suffered direct hits, have now been

Page 280

1 repaired. The roof of the Sponza Palace have been restored and people

2 are again able to use the flight of stairs called "Uz jezuite," or

3 "Alongside the Jesuits." The old well in the convent of St. Clare's

4 Cloisters as well as the major part of the roof has also been restored.

5 No longer is there a gaping hole to detract from the beauty of

6 the Great Onofrio Fountain. Damaged sections of the stone balustrade of

7 the bridge at Pile had been replaced. During the shelling of Dubrovnik,

8 111 projectiles pounded Europe's best-preserved fortification systems.

9 Today those magnificent walls have for the most part been repaired and

10 sections are once again open to visitors. Disruption and serious damage

11 was also inflicted on the Franciscan Monastery and the Church of Friars

12 Minor. To date, the Bell Tower, the staircase leading to the entrance

13 and the section of the roof have undergone repair.

14 Work on the roof of the Dominican monastery and St. Dominik's

15 Church has been completed. A large cross that had once stood for

16 centuries above the main altar had to be removed for reasons of safety.

17 Repairs have been carried out to the roof of the Synagogue. The small

18 Church of Sigurata, badly damaged by direct hits, has also been restored,

19 following lengthy and detailed research. Part of the roof, gable, and

20 the bead moulding of the Church of St. Joseph have also been repaired.

21 The colour of the stone, the balustrade, and the medallion of the Church

22 of St. Blasius betray their recent renovation. Only time will mellow the

23 very nuances presently visible on the facade, the roof, and the

24 staircase.

25 The Chapel of the Sacred Heart, located within the Djordjic

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1 Maineri Palace has now been restored. During the worse of the shelling,

2 which occurred on December 6, 1991, the palace of Dubrovnik Festival at

3 number 1, Old Sigurate Street was seriously damaged by fire. So far, the

4 site has been cleared and the roof replaced. Medallions on the first

5 floor have been protected, while work on the damaged stucco has revealed

6 wall murals dating from earlier periods.

7 Repairs to residential buildings began even while Dubrovnik was

8 still under siege. In the city's old core, about 70 per cent of roofs

9 suffered direct hits. As a result of systematic restoration, more than

10 half of the damage has now been put to rights. During repairs,

11 significant and extensive damage to the wooden structures of roofs was

12 discovered, resulting the considerable increase in estimated repair

13 costs. Special arrangements have been made to produce the half-moon roof

14 tiles that are specific to Dubrovnik. Wherever possible, new tiles are

15 covered by the original ones. The roofs of Dubrovnik have ever been the

16 source of pride for the symphony of colourful nuances which play upon

17 their surfaces and care is being taken to retain the vivacity of this,

18 the city's fifth facade through the manner in which the tiles are laid.

19 Fully aware of the significance of Dubrovnik's entity as a

20 monument, whose endangerment was brought sharply to our notice, by the

21 1979 earthquake the Croatian Parliament, the Sabor, constituted a

22 standing committee for the restoration of Dubrovnik. This body comprises

23 leading local and international restoration experts, as well as UNESCO

24 specialists from a number of countries. Also directly involved in the

25 restoration are the Dubrovnik Centre of the State Board for Protection of

Page 282

1 Cultural and Natural Heritage, the Institute for the Restoration of

2 Dubrovnik and The Association of Friends of Dubrovnik Heritage.

3 Following the Croatian war of independence, a special workshop

4 for the restoration of paintings was also founded. It goes without

5 saying that the reconstruction of the city's nucleus is a long-term and

6 highly demanding project. Having begun after the 1979 earthquake, it

7 gradually evolved into an all-encompassing revitalisation of this

8 monument city, based, in its approach and mode of realisation on the

9 latest world standards. This principle is being painstakingly followed

10 in the most ongoing repair and restoration works. The basis of such an

11 approach is good documentation, application of appropriate techniques and

12 the use of traditional materials. Damaged objects are repaired or

13 replaced either by original materials or by those with the most similar

14 properties. In short, it can be said that contemporary know-how in

15 conservation, combined with the participation of experts of various

16 profiles, make the restoration and revitalisaion of Dubrovnik an

17 extremely fascinating interdisciplinary project.

18 At the beginning of May 1995, when this film was being shot, work

19 was continuing on the repair of Stradun, which had received 46 direct

20 hits. Final surveys had been completed and temporary concrete plugs were

21 being replaced by stone slabs. Yet another site to be badly damaged was

22 the Amelin Fountain, situated at Gunduliceva Poljana. Preparatory works

23 are now complete. A new basin has been carved, damaged sections

24 restored, and the fountain is again functioning, much to the delight of

25 both the people and the city's pigeon population. The opening ceremony

Page 283

1 was attended by the major of Dubrovnik, donor's representatives,

2 restoration workers and citizens, such occasions always giving great

3 pleasure.

4 With the tourist season just around the corner, efforts are being

5 concentrated on roof repairs. At the same time, countless footsteps are

6 gradually erasing the shrapnel scars from Stradun's stony face. So many

7 tasks remain to be tackled. Like the damage sustained by the facades,

8 the characteristically slanted entrance doors. And like the Great

9 Onofrio Fountain, on which sections of the stone plastic and the water

10 basin have yet to be restored. Although a part of the Franciscan

11 Monastery has received attention, the balustrades, terrace, cloister, and

12 a section of the roof, and the main portal still await repair. Priceless

13 books stored in cardboard boxes are waiting for repairs to be carried out

14 to the library. The city's archives housed in the Sponza palace have not

15 suffered damage, but considerable volume material is stored in inadequate

16 conditions, for which a permanent solution must be found. Future

17 restoration efforts will be directed at, among other things, the: "Uz

18 jezuite" Staircase. Also planned are repairs of the roof of the Convent

19 of St. Mary and to the facade of St. Mary's church. Even the cathedral

20 suffered damage. One project will address some of the presently deserted

21 and dilapidated palaces at Pustijerna, which are planned to be

22 transformed into luxury tourist suites.

23 One task still under consideration is restoration of the damaged

24 statute of St. Blasius at the Pile Gate. The complexity and specific

25 nature of this work demand that the best possible solution has to be

Page 284

1 formulated. The city walls and fortifications on the other hand, are

2 being continually repaired and restored, with the assistance of experts,

3 donors, and citizens. The 2 kilometres of fortification keep constant

4 guard over this city, Despite tempest and time's thievish progress.

5 Scaffolding on the building housing and the offices of the

6 Dubrovnik Festival is a clear indication that work there is ongoing.

7 Other badly damaged places and building now under temporary protection

8 are being prepared for restoration. The repair of a monument is just the

9 final phase of the numerous preparatory activities, all of which demand

10 high levels of expertise, knowledge, and the dedication of the great many

11 people. Needless to say the restoration and revitalisation of Dubrovnik

12 is an extremely demanding, long-term, and very costly progress. The

13 funds available from the state budget and from other government sources

14 fall far short of what is required.

15 Part of the work is being financed by donations from within

16 Croatia, and by individuals, institutions, and organisations from all

17 over the world. The intention of this film is to present the results

18 achieved to date and to express our deep gratitude for all those who have

19 assisted, financially, with material, effort, or with support in

20 restoring the beauty of our city, and we all know how precious such help

21 can be. The restoration and revitalisation of a town is not merely a

22 construction enterprise. It is, in fact, a subtle art of adjusting

23 historical entity to a modern-day life, taking it step by step to ensure

24 the preservation of its authenticity.

25 It is first and foremost the enhancement of both the quality of

Page 285

1 life of a town and in the town. At the same time, it is the repayment of

2 our debt to the past, which has bequeathed us so much wealth and the

3 sacred obligation to pass it on, enriched by our own efforts, and our own

4 times, to future generations. For them to pass it on, and then on again.

5 JUDGE PARKER: That, I take it, Mr. Weiner, concludes the opening

6 statement?

7 MR. WEINER: Yes, it does, Your Honour.

8 JUDGE PARKER: Do we correctly understand, Mr. Petrovic, that you

9 do not want to make an opening statement at this point?

10 MR. PETROVIC: [Interpretation] I apologise, Your Honours. Yes.

11 The Defence does not intend to make an opening statement at the moment,

12 nor does it intend to ask the accused to address you, in accordance with

13 the Rules of Procedure and Evidence.

14 But at this point in time, the Defence would like to take the

15 opportunity, as you did during the pause, while we were waiting for the

16 transcript of this film, we would like you to allow us to object to what

17 was said in the course of the Prosecution's opening statement after the

18 opening statement. So there are two main objections that we would like

19 to make very briefly to what Mr. Weiner said. With your leave, I will

20 proceed.

21 JUDGE PARKER: Please do so.

22 MR. PETROVIC: [Interpretation] Thank you, Your Honour.

23 First of all, I would like to point out that the practice of the

24 International Tribunal is very clear with regard to the time period for

25 which the accused has been indicted here. The period for which the

Page 286

1 accused -- with which the accused has been charged is clearly specified

2 in the indictment issued by the Prosecution. In many of the judgements

3 and appeal judgements of the Tribunal, this claim has been confirmed on

4 numerous occasions. Someone can be responsible or proclaimed guilty only

5 for something that was done during the period mentioned in the

6 indictment.

7 With regard to the time period in the indictment, it is very

8 clear. Mr. Strugar, the accused, is charged with crimes committed in the

9 time period from the 6th of December, 1991 and the 31st of December,

10 1991.

11 In the Prosecution's opening statement, we had the opportunity

12 to hear certain things which were outside the period during which crimes

13 were charged. So they omitted things from October/November 1991. In the

14 opening statement, it was said in October/November the accused created a

15 situation, He was actively involved in creating a situation which

16 resulted in the 6th of December event. And my learned colleague thus

17 went far beyond the specified time period in the indictment. And in this

18 way, he is trying to extend the time period in the indictment.

19 These events don't come within that specified period. And this

20 is something that I wanted to draw your attention to. I'm sure you will

21 be reviewing this matter throughout the proceedings, but from the very

22 beginning it is necessary to know the time period that is concerned. If

23 we are talking about omissions of the accused in October 1991, we will

24 implicitly be extending the indictment to contain omissions and events

25 that are not contained in the indictment. This is an objection that -- I

Page 287

1 don't think you can render a decision with regard to this objection at

2 the moment, but we would like to draw your attention to this matter at

3 the moment and point out that charges against the accused outside that

4 specified time period should be excluded or their importance should be

5 made minimal. What the accused did in November, what he did or failed to

6 do is not something that should be a matter of debate before this Trial

7 Chamber. That is the first objection I would like to raise.

8 The second objection is not as important as the first one, but I

9 think it's necessary to draw your attention to it too. It has to do with

10 the film that we have just viewed. The Defence would like to know what

11 sort of a film this is. Is this the result of a Prosecution's work? Is

12 it a film that was made by the Prosecution on the basis of evidence that

13 it has collected, or is it a film that was made by a third party? If it

14 was a film made by someone else, we would like to know who made this

15 film, since the film itself contains certain elements which aren't

16 consistent with the allegations the Prosecution has made in the

17 indictment. So the indictment does not mention a war for liberation or

18 for independence or homeland war, et cetera, as this has been translated,

19 and as these terms are used in the Republic of Serbia, which refers to

20 the autumn of 1991. The indictment contains the terms "armed conflict

21 between the JNA and Croatian forces." This film uses terms that are not

22 consistent with the terms used in the indictment.

23 We would like to draw the Trial Chamber's attention to this fact

24 in good time. Thank you.

25 JUDGE PARKER: Thank you if that, Mr. Petrovic.

Page 288

1 I think it would not be practical to ask you to deal with that

2 immediately, Mr. Weiner, but I think perhaps tomorrow it would be useful

3 to the members of the Court to hear your view on each of those

4 objections.

5 MR. WEINER: That's fine, Your Honour. Thank you.

6 JUDGE PARKER: Thank you.

7 That being so, it would appear that we have concluded what needs

8 to be dealt with today and we would, therefore, adjourn until 2.15

9 tomorrow.

10 --- Whereupon the hearing adjourned at 1.25 p.m.,

11 to be reconvened on Wednesday, the 17th day of

12 December, 2003, at 2.15 p.m.