1 THE INTERNATIONAL CRIMINAL TRIBUNAL CASE NO. IT-94-1-T

2 FOR THE FORMER YUGOSLAVIA

3 IN THE TRIAL CHAMBER

4 Wednesday, 26th June 1996

5 (10.00 a.m.)

6 THE PRESIDING JUDGE: Mr. Tieger, yesterday my fellow Judges here, Judge

7 Stephen and Judge Vohrah, explained to me what you were trying to

8 explain to me yesterday evening, and that is that you would prefer not

9 to have a witness who would begin his or her testimony and then that

10 testimony be interrupted and not be concluded considering the two week

11 recess that we are going to have. That is what you were asking me. I

12 apologise for not understanding better. I did not hear it that way.

13 So, the answer is that we agree that should be avoided because

14 there, I gather, would be a need to put up a witness, to provide for

15 lodging etc. over this period of time, or incur the expense of sending

16 the witness back to wherever the witness is from. That is

17 not the best procedure.

18 So let us see how we proceed today and it might not happen,

19 but if it appears that we are going to get to a point where you would

20 call a witness and we would not complete the witness, then you will

21 simply not call that witness. Is that acceptable?

22 MR. TIEGER: Yes, your Honour, thank you very much.

23 THE PRESIDING JUDGE: Very good.

24 MR. TIEGER: Your Honour, the Prosecution's next witness is Kemal Susic.

25 ^^ MR. KEMAL SUSIC, called.

1 THE PRESIDING JUDGE: Sir, would you take the oath that is being given to

2 you?

3 THE WITNESS [In translation]: I solemnly declare that I will speak the

4 truth, the whole truth and nothing but the truth.

5 (The witness was sworn)

6 THE PRESIDING JUDGE: Thank you, sir. You may be seated.

7 Examined by MR. TIEGER

8 THE WITNESS: I also ask you to have it a bit louder because I can barely

9 hear.

10 THE PRESIDING JUDGE: Mr. Usher, will you turn up the volume? Will you

11 turn up the volume, please? Can you hear me now, sir?

12 THE WITNESS: Yes, it is slightly better.

13 THE PRESIDING JUDGE: Can you hear me well?

14 THE WITNESS: Yes, now is all right. Now it is all right.

15 THE PRESIDING JUDGE: Mr. Tieger?

16 MR. TIEGER: Thank you, your Honour. Sir, your name is Kemal Susic?

17 A. Yes.

18 Q. Where were you born?

19 A. I was born in Kozarac, on 20th October 1945.

20 Q. Did you live there your entire life until the outbreak of the

21 conflict in 1992?

22 A. Yes.

23 Q. What is your nationality?

24 A. Muslim.

25 Q. On what street in Kozarac did you live?

1 A. I lived on the street of Marsala Tita bb.

2 Q. Was that in central Kozarac?

3 A. Yes.

4 MR. TIEGER: Your Honour, if I may have this photograph marked next in

5 order for identification which, I believe, is 241? Mr. Susic, do you

6 recognise what is shown in that photograph?

7 A. Yes, to explain -----

8 Q. Let me ask you quickly if that shows the Kozarac area?

9 A. Yes, and this is my town Kozarac before the war.

10 MR. TIEGER: I am going to ask to have that exhibit tendered for

11 admission and if there is no objection and if it is admitted, I would

12 like it called up as Z5-31 on the monitor.

13 THE PRESIDING JUDGE: Any objections?

14 MR. KAY: No objection, your Honour.

15 THE PRESIDING JUDGE: Exhibit 241 will be admitted.

16 MR. TIEGER: Mr. Susic, can the home in which you lived be seen in this

17 photograph?

18 A. This is this one, the biggest building. I lived on the second floor

19 of that building to the left facing Mountain Kozara. That is the

20 second floor. It was a four storey building.

21 Q. Mr. Susic, are you referring to the multi-storey building which

22 appears slightly to the right of centre in the photograph? You can

23 see the small arrow, does that -----

24 A. Yes, I can see this mark here and it is indicating that particular

25 building in which I lived.

1 Q. Can you also see any of the mosques of Kozarac in this photograph?

2 A. At the moment I see three mosques here, Mutnik Mosque, a mosque in

3 the very heart of Kozarac, and I can see the mosque in Brdjani and I

4 see also the mosque in Stari Grad, in the old town, also in the heart

5 of Kozarac. So I see three mosques here. I think that this

6 photograph was taken from the minaret of another mosque which is in

7 Kalate. That is what this looks like, the vista, that is before me, I

8 think, could be from the minaret of that mosque which I believe was

9 destroyed.

10 Q. Sir, I am going ask to have the photograph placed on this machine to

11 your right so can you quickly point out these mosques?

12 A. Could you please focus it? Thank you. Now it is all right. This

13 mosque here is ---

14 Q. Mr. Susic, excuse me.

15 A. -- Mutnik Mosque.

16 Q. If you could point to the actual photograph, we will be able to see

17 where you are pointing. Then you can use the pointer, if you want.

18 A. This is Mutnik Mosque. This is Stari Grad mosque, old town mosque.

19 This is the mosque in Brdjani, this one here.

20 Q. So going from left to right in the photograph, on the left side we

21 see the Mutnik Mosque in the middle and ---

22 A. Yes.

23 Q. -- up toward the top we see Brdjani mosque and toward the right we

24 see the Stari Grad mosque?

25 A. Yes, to the right. Yes, you are quite right.

1 Q. Thank you. If I may, I would like to show you a very brief portion

2 of a video. I would like you to tell me if you can find your home on

3 that video. So if we could show that small portion of Exhibit 195,

4 please?

5 (Exhibit 195 was shown)

6 Can you tell us to stop when you see your house?

7 A. Stop, please. This is the building I lived in. This is a four

8 storeyed building, and a few months before the war a supermarket was

9 opened there, but the entrance is from the other side. On this shot I

10 can see that the flats had been put on fire. What happened on the

11 other side, I do not know.

12 Q. Thank you.

13 A. Should I add something more?

14 Q. Yes, if you wish.

15 A. No, I mean, if you want me to.

16 Q. No, that is fine, sir. Thank you. Sir, did your family live in

17 Kozarac for some generations?

18 A. Yes.

19 Q. We have seen some photographs of the police station on Marsala Tita.

20 Do you know what that building was or who it belonged to before it

21 was the police station?

22 A. The building belonged to my grandfather, that is, my mother's father,

23 and after World War II it was confiscated through nationalisation and

24 not only that building but several more buildings in Kozarac. When we

25 were children we lived in that building, and on one occasion the then

1 Mayor of the municipality, Bozo Dragicevic, a man of Serb origin, came

2 to our house and said we had to leave the house because it would

3 become a school. At that time in Kozarac there were also other

4 buildings which could serve the purposes of a school.

5 However, the events then evidently meant that we had to leave

6 the house that we lived in and we took it very hard. At that time my

7 mother's father was still alive, but that old man in a very advanced

8 age could not do anything. He was simply helpless. Should I add

9 something?

10 Q. No, that is fine, thank you. Mr. Susic, what was your occupation

11 before the conflict?

12 A. I worked the primary school Rade Kondic in Kozarac. I am an

13 educator. I teach physical education.

14 Q. How long did you teach physical education?

15 A. I began to work for the primary school in Kozarac in '68, in August,

16 until practically the outbreak of the war, practically to the last day

17 I was with my pupils. The problems that preceded the war and then the

18 war circumstances took us gradually out of the school rooms, both the

19 teachers and pupils. It was not possible any more to conduct any

20 instruction. It was really very hard to describe. We were all very

21 worried, both children and teachers. We spent more days talking and

22 discussing than working.

23 Q. We will get to those segments of the conflict. Let me ask first,

24 however, if you know Dusko Tadic?

25 A. I do.

1 Q. For how long have you known him?

2 A. Dusko Tadic's family, that is, his father Ostoja Tadic, is in the

3 very heart of Kozarac, and from my father's house it is at some 100 to

4 200 metres away from my father's house. So, Dusko, his mother, his

5 father, lived in Kozarac and we knew each other very well. Dusko

6 Tadic was also a pupil of mine. When I came to work there I believe

7 he was in the fifth grade of the primary school.

8 At that time how I remember Dusko, Dusko was a very nice boy,

9 like all the other children. He was not distinguishable from others.

10 He grew up normally. We lived normally, and we befriended each

11 other. We socialised, regardless whether those children were of Serb

12 or of Muslim origin. I also know Dusko's brothers, Mladen, Ljubomir,

13 and Stojan. Stojan was a school fellow of mine and I know him very

14 well. I also know his mother, Staka. She is a very fine woman.

15 Dusko Tadic's father in World War II fought in World War II.

16 He fought from the beginning of the war. He was a war veteran and a

17 man who joined the fighting in the early days of the war and after the

18 war he had a good -- he thus earned a good pension after the war. So

19 they were never bad off. They lived there. They lived nicely.

20 Should I add something?

21 Q. No, that is fine. Did you know Dusko Tadic's wife and children?

22 A. I did know his wife and she was also a pupil of mine. I would not be

23 able to say whether for a year or two, but she was my pupil. His

24 elder daughter I also know in the fifth grade. She was my pupil too.

25 His younger daughter, I do not because she simply was not in one of

1 the grades I taught. She was too young for that. Dusko's wife's name

2 is Mira.

3 Q. You indicated you were a physical education professor. Did Dusko

4 Tadic use the gym at your school to train young people in karate?

5 A. Yes, I mean, in Kozarac that gym was the only gym. There were quite

6 a number of people interested in using that gym because we have

7 different sections, a school, then the Fire Brigade that we had, the

8 football club in Kozarac. It was very difficult to get time there,

9 and Dusko himself knows that I was one of the people who helped him

10 get access to that hall, to that gym, so as to coach our children,

11 children of Kozarac, in marshal arts.

12 I thought it was natural and normal and that was all right

13 because they were all our children and Dusko was one of our children,

14 and I never thought, I could never think about any problems or any

15 difficulties that might arise which would not allow Dusko to use that

16 gym. As far as I know, the school asked for no compensation, for no

17 fee. Dusko Tadic did not have to pay anything for the use of the gym.

18 Q. When Dusko Tadic built his cafe, did any members of your family help?

19 A. Dusko Tadic's family, as far as I know, his brother Ljubomir and

20 Dusko were building the house and the coffee bar together. The coffee

21 bar was added slightly later. First, the house was completed and a

22 large number of young people in Kozarac, especially those who were

23 coached in karate by Dusko, neighbours and friends, came to work there

24 and help to build Dusko's house and Dusko's cafe. As far as I know,

25 those people asked for no remuneration and even my younger son went to

1 help, I know that.

2 Q. Did any member of your family loan money to Dusko Tadic to help

3 finance the building of the cafe?

4 A. Yes, in Kozarac I had an uncle, a man who was well off, who was a

5 wealthy man, and Dusko borrowed from him a certain sum, a certain

6 amount of money, so as to complete his coffee bar. I could not tell

7 you the exact amount of money that was borrowed. All I do know is that

8 there were not any particular problems regarding the returning of that

9 money. Whether Dusko returned all this money to this uncle of mine, I

10 would not know.

11 Q. During the years in which you knew Mr. Tadic, I take it you became

12 quite familiar with his appearance. Can you describe quickly his

13 general build during the time you knew him, his physique?

14 A. As an athlete, a sportsman, Dusko Tadic is well built, athletic

15 build, strong muscles. He is of a medium height, and he walks -- he

16 has a very firm step.

17 Q. In the years you knew him did he sometimes have a beard?

18 A. Sometimes he did, sometimes he did not, so, so. I guess it depended

19 on the mood. Sometimes he had a beard and he shaved it off and so.

20 That was a natural phenomenon everywhere and with us too a fad,

21 perhaps. He was not often with a beard. After all, it was his own

22 free choice, his free will.

23 Q. Did you ever see or hear of anyone in the Kozarac area or opstina

24 Prijedor generally who looked enough like Dusko Tadic that he was

25 mistaken for Dusko?

1 A. I could miss -- that I could be wrong about it, I think it would be

2 very difficult because I have known Dusko Tadic almost since the day

3 he was born. They grew up almost before my eyes. They used the same

4 street that I used. I could recognise that man even at a bigger

5 distance, even in the darkness perhaps, and even if he were turn -- he

6 had his back turned on me, I could always recognise him because he has

7 a rather characteristic gait and his build is also rather

8 characteristic. He also speaks in a rather characteristic manner. I

9 do not really see that I could easily mistake some other man for Dusko

10 Tadic. I am quite positive about that.

11 Q. Mr. Susic, let me ask you what relations were like between Serbs and

12 Muslims in the time you were growing up and up to the time preceding

13 the conflict, just in general, were they good or bad?

14 A. Let me point out straightaway that relations were good, and to go

15 back in time a little, while I was a little younger, in our homes, as

16 far as I know at least, in the homes of Muslims and especially in my

17 home and the home of my father, we never said of somebody that he was

18 of Serb ethnicity or Croat ethnicity or anything else. We played

19 together. We grew up together. We went to school together and we

20 were very good friends.

21 I was a very good friend with his brother Stojan, for

22 instance. We were of the same age, the same generation. Dusko is

23 younger. Ljubomir is younger, so is Mladen. I was also a good friend

24 and grew up with Simo Miskovic, I and my brothers and the other

25 children of Kozarac. Simo Miskovic would come often to visit my home

1 and when he grew up, got married and moved to Prijedor, he would talk

2 about the wonderful days he had in Kozarac as a boy which he could not

3 forget. We would play together. Afterwards we would go to my

4 mother's who would serve food for all of us, give us fruit, regardless

5 of what ethnic group we belonged to. We felt free, we grew up

6 normally. Simo Miskovic's brother Ranko was also there. That man has

7 died. On one occasion -- no, let me not tire you with the details

8 because one could write a novel.

9 Q. You said that people did not distinguish between Muslims and Serbs.

10 Was it possible to distinguish between a Serb and a Muslim based on

11 the way that person looked physically?

12 A. Well, you see, I think it is very difficult to say. After all, we

13 are all the same. Only the people in the villages, on the slopes of

14 Kozara, differed in so much that the Muslim women differed from the

15 Serb women, because they wore typical costumes, a long skirt and black

16 scarves. This was worn by Serb women. So this could be noticed. We

17 spoke the same language. The Ijekavac dialect and not the Ekavac

18 dialect, which is characteristic of the Republic of Serbia. But my

19 colleague who worked with me at school, Milos Radulovic, though he had

20 spent some 30 years in Bosnia, never changed his dialect, the Ekavac

21 for Ijekavac. He worked with children in the school yet he still

22 spoke the Ekavac dialect. Sometimes I would make a joke as we were

23 good colleagues, I said, "How come you have not accepted our way of

24 speech?" He would say, "I just speak like that. I come from Serbia".

25 This did not bother anybody. These were our normal conversations.

1 But people born in Kozarac coming from these parts all spoke the

2 Ijekavac dialect. There were no differences between us.

3 Q. Could you tell who was a Serb and a Muslim sometimes based on that

4 person's name?

5 A. Of course, the names of Muslims and Serbs differ. They are typical

6 names, so that in that respect or by that we knew whether someone was

7 a Muslim or a Serb by their names. If somebody is called "Muhamed",

8 then he is a Muslim, we know that. But if is somebody is called

9 "Miko", "Ranko" or "Jovan", then we know that he is a Serb; only by

10 that could we tell, in no other way.

11 Q. In the period of time between the elections in 1990 and the outbreak

12 of the conflict in 1992, was there the beginning of a change in the

13 relations between the ethnic groups and the beginning of tension?

14 A. Well, let me see. Marked tension began to be noticed immediately

15 prior to the aggression against the Republic of Bosnia-Herzegovina

16 because some towns in Bosnia-Herzegovina had already experienced on

17 their own hide, they had personal experience of the growing Serb

18 nationalism, linked with the former Yugoslav People's Army.

19 Q. Actually, Mr. Susic, I wanted to focus you a little closer to Kozarac

20 at the moment, and ask you if you saw some signs of growing tension in

21 your own school?

22 A. When we are talking about my school in particular, the school I

23 worked in, as I had a specific post, I had my own office next to the

24 gymnasium for physical education, going to the teachers' room I could

25 see that gradually groups began to be formed, on the one side teachers

1 of Muslim ethnicity, on the other teachers of Serb ethnicity.

2 I knew what that meant, and it bothered me a little. There was

3 nothing I could do. What is more, I did not know what they were

4 talking about, but it was already clear to me as soon as I saw that

5 they were separate that something was not in order, that something was

6 wrong.

7 One of the colleagues working with me of Serb ethnicity, a

8 teacher of general technical education, Milos Radulovic, said on one

9 occasion that he, as a Serb in Kozarac, was in jeopardy. I did not

10 like that. I wanted to ask him what was wrong. I asked him to come

11 to my office for us to have a chat and I asked, "What is the problem?"

12 He simply could not give me a specific answer why he felt

13 endangered as a Serb in Kozarac. I told him, "Mico, you are probably

14 in jeopardy because you came to Kozarac with a wooden suitcase, and

15 then the Rade Kondic school provided a studio for you, after that a

16 two-room apartment, after that you built yourself a beautiful house,

17 and probably that is why you are in jeopardy, because many of the

18 people of Kozarac came to your aid to help you build your house".

19 People would bring him sand, building material, timber, for free. He

20 and others like him who spread alleged fears were simply looking for

21 reasons for a separation. They wanted differences in views and

22 positions to surface and gradually that rift became deeper and

23 gradually we moved away more and more, one from another. That is as

24 much as I could say now.

25 Q. Shortly before the attack on Kozarac, did you become involved in a

1 group that was attempting to resolve issues peacefully, become

2 involved in a peace group?

3 A. When Sarajevo was attacked, we saw that something terrible was about

4 to happen in Bosnia. At that time the Party of Democratic Action in

5 Prijedor at the regular elections won and came into power in Prijedor.

6 However, the events that preceded this led to a gap being formed, the

7 already formed Serbian Democratic Party on the one hand and the

8 Muslim party, the SDA.

9 Any dialogue or normal human conversation or a joint meeting

10 between representatives of those parties could hardly be organised.

11 That is why several of us people from Kozarac, on our own initiative,

12 met and talked and set up a group which we freely decided to call the

13 League for Peace. We thought, since we did not belong to any Party,

14 the SDA or the Serbian Democratic Party, that we would most probably

15 be able to do something, to meet with both sides, to see what the

16 problem was.

17 Q. Mr. Susic, before we discuss more about the League for Peace and what

18 it did, I want to ask you a couple of questions about the

19 circumstances at the time the League was formed. First of all, was the

20 League for Peace organised after the takeover of Prijedor by Serbian

21 authorities?

22 A. Yes.

23 Q. Were you aware of a demand or ultimatum by Serbian authorities, by

24 the new Serbian authorities, in Prijedor that Kozarac surrender

25 weapons and that the police take an oath of allegiance to the new

1 Serbian authority?

2 A. I knew of that ultimatum because they had forwarded it through the

3 local community in Kozarac to the Party of Democratic Action asking

4 for weapons to be surrendered, either legally or illegally obtained,

5 so that the police, both the regular and extraordinary members, that

6 is, the reservists, together with the Territorial Defence, should hand

7 over their weapons to the army of Republika Srspka in Prijedor.

8 I wish to point out that the Territorial Defence which

9 numbered some 100 people had received weapons from that same Yugoslav

10 Army. It had been equipped by that army. For six or seven months it

11 had been active in Kozarac which was quite normal. Apparently, it

12 was armed to avoid any incidents occurring. What kind of incidents

13 they had in mind, I did not know because there were no incidents in

14 Kozarac. However -- yes, I am sorry.

15 Q. I do not want to cut you off but that was a sufficient answer to the

16 specific question I asked. I also wanted to ask you if at the time

17 the League was formed you and the other members were aware of the

18 gathering of Serbian troops and heavy weaponry in the area of Kozarac?

19 A. We all knew. We all knew. This was no secret. The people in the

20 villages, people in Kozarac, I also knew. I can mention that before

21 going to my job to teach in the morning about 6.30 or 7.00, I

22 personally counted 45 military trucks full of army, full of personnel.

23 These were not young soldiers because they passed slowly through

24 Kozarac. I counted one by one the trucks. They were unshaven people,

25 irregularly dressed. They were dragging guns with the trucks, and on

1 the cabin roofs they had machine guns installed. The canvas was

2 lifted from the trucks and I could see that they were all armed. On

3 the doors, not on all the doors of the trucks but on some of them, in

4 red paint it said, "Wolves from Pakrac". That was the inscription. On

5 the first truck a bull's head with horns was drawn, it was not drawn,

6 the actual head was stuck to the truck so you could see the blood

7 still running. So, believe me, this was shocking to me.

8 They passed through Kozarac and they went off in the direction

9 of Mrakovica. When I went to school, I talked to my colleagues.

10 Everybody in Kozarac was aware of this and gradually we were swept by

11 fear. Something was happening.

12 Q. The translation that we were given said that the trucks were

13 "dragging guns". What kind of weapons were being towed by the

14 military trucks you saw?

15 A. I am not a military expert, but these were light cannon with two

16 large wheels, one tube, I saw that, and each truck had one of these

17 behind it. I could see this.

18 Q. In addition to Serb soldiers, were you aware of Serb civilians being

19 armed?

20 A. I must be sincere, I personally did not see armed Serb civilians, but

21 the Muslim peasants living on the slopes of Mount Kozara would come to

22 the Local Commune claiming that they had seen in Podgradje in the

23 localities with the majority Serb population that the army was

24 distributing weapons even to children and that every home was armed.

25 We simply did not know why. We simply did not believe that this was

1 happening and what for, for what reason. Kozarac at that time was

2 sleeping.

3 Q. Who were the members of the group, the members of the League for

4 Peace?

5 A. The members of the League for Peace were independent people, people

6 who were not affiliated with any party. They were not members of the

7 SDA or any of the other parties. I was a member of the League for

8 Peace. Hamdija Kahrimanovic, Nagib Mahmuljin, Dr. Pasic Jusuf, Jasim

9 Fazlic, Hamdija Balic, Kemal Fazlic.

10 Afterwards, as representatives for the League of Peace to have

11 in our view some legitimacy, we asked representatives of other local

12 communes, Kozarusa and Kamicani, to delegate people of Serb ethnicity,

13 so that we should be homogenous, a mixed League, and on behalf of

14 Kozarusa people proposed Djuro Pupevac, an older man, a fine man, and

15 on behalf of Kamicani, Milenko Zigic. Unfortunately, this Milenko

16 Zigic proved to have participated in the war operations in Kozarac,

17 that he had committed a lot of evil. He stayed behind. Whether he is

18 still alive, I do not know.

19 Q. Let me ask you. This is a bit of an interruption, but I do not want

20 to do this at the end, but I want to ask you a couple of questions

21 about the members of the League whom you mentioned. Did Dr. Pasic

22 survive the war?

23 A. I think not.

24 Q. Did Jasim Fazlic?

25 A. Jasim Fazlic was killed in a convoy moving in the direction of

1 Vlasic.

2 Q. Was Hamdija Balic?

3 A. Hamdija Balic also disappeared in Omarska.

4 Q. What about Nagib Mahmuljin?

5 A. He also disappeared in Omarska.

6 Q. Did the League for Peace arrange a meeting with the Serbian

7 authorities in Prijedor?

8 A. Through the Local Commune, through a man called Nagib Mahmuljin,

9 contact was established with the Serb authorities in Prijedor, and

10 after a great deal of insistence on our part that we be received for

11 talks to see what the problem was, because an aggression was obviously

12 being prepared against Kozarac, they said they did not wish to receive

13 a delegation of the SDA party. The reasons, I can only assume what

14 were the reasons; only if an independent group would come, perhaps

15 they would be ready to talk to them.

16 We held a meeting at the school. Hamdija Kahrimanovic was

17 present, and the idea occurred to me that if we go, regardless of the

18 fact that we were not SDA members, after all we were Muslims, because

19 the Serbs had already organised several checkpoints and we were not

20 sure that we would be allowed to pass those checkpoints, so I proposed

21 that we should have some Serbs with us, that that would be wise and

22 normal because they too were people of Kozarac. They live in Kozarac.

23 Kozarac is their place, their town too, and they should fight for

24 Kozarac, just as we should in a normal democratic way.

25 Then Hamdija asked me, "OK, who do you have in mind?" I had

1 good relations with Dusko Tadic's family and so I said, "I propose

2 Dusko Tadic". Hamdija said, "I do not believe he will be ready to

3 go". We were still meeting there and I saw Dusko through the window

4 and I said, "I am going straightaway to ask him". I asked him and, to

5 be quite frank, he was not overenthusiastic about going, but he did

6 say to me, "If you are going, I will go too". "OK", I said, "thank

7 you". We exchanged a few more words.

8 We were going to go to go tomorrow. I came in the morning to

9 pick him up. He had changed his mind. He did not want to go. So I

10 said, "Now that would not be really fair. You said you would go. You

11 cannot back away now". So we went. We went by car to Prijedor. We

12 were met there by repesentatives of the Serb army in Prijedor, and

13 Simo Drljaca was already in uniform -- a man who had absolutely

14 nothing to do with the army before. He was the secretary of our

15 Centre for Elementary Education. He was in uniform. Radmilo Zeljaja,

16 several officers whom I did not know. The minutes were kept by Pero

17 Kovacevic, as far as I can remember, a man who was a principal of the

18 Kozarac school for a time, afterwards he moved to Prijedor, and he

19 worked in the communal administration. That does not matter anyway.

20 We met there, maybe some 20 men in all. They received us.

21 Q. Mr. Susic, excuse me, I want to make sure we identify who was there.

22 In addition to Zeljaja and Mr. Drljaca, were other Serbian officials

23 there and specifically was -----

24 A. SDS in Prijedor.

25 Q. I am sorry, sir, you were speaking but we were not receiving a

1 translation. I do not know if there is a technical problem or not?

2 THE PRESIDING JUDGE: The answer says "SDS in Prijedor". You mean before

3 that previous answer?

4 MR. TIEGER: Yes.

5 THE PRESIDING JUDGE: Why do you not ask him again?

6 MR. TIEGER: Mr. Susic, you had mentioned a couple of other Serbian

7 officials who were present at the meeting in Prijedor, but we did not

8 receive the translation. Can you repeat their names, please?

9 A. Yes, of course. Radmilo Zeljaja was at the meeting, a man who was

10 Commander of the military barracks in Prijedor; Slobodan Kuruzovic,

11 Commander of the Trnopolje camp; Simo Miskovic, President of the SDS

12 Party in Prijedor, and representatives of military authorities who

13 were not familiar to me. They were wearing uniforms of the Yugoslav

14 Army and, to be quite frank, they received us with some reserve. They

15 were not friendly and we felt very awkward. We sat in a room. I had

16 never been there before. It was probably a meeting place, a meeting

17 room. The meeting started out without any proper order or any

18 introduction. I can just say, if you wish, what the main aim was?

19 Q. I do want to hear about that, I know the court does. Let me ask you

20 first, however, did the members of the League for Peace come to make a

21 specific proposal or for the purpose of discussing things generally

22 and opening a dialogue and expressing their wish for peace?

23 A. When we came to the first meeting, Kozarac was already blocked,

24 nobody could leave Kozarac and we knew that the situation was highly

25 problematic. We simply came to ask them what we should do, what the

1 problem was, what had Kozarac done for them to ask us to give up

2 legally obtained weapons; our hunters who had certificates to show

3 that they had guns obtained early on or as security. The Federal

4 Secretariat for Security in Prijedor had issued these certificates.

5 They asked us to surrender all our weapons and that it should be

6 stored in Prijedor.

7 We were afraid of this, and we tried to find some kind of an

8 alternative solution, but it was not possible to find any other

9 solution except what they requested. They made it clear that their's

10 was an ultimatum. We would either surrender our weapons or they would

11 take them away themselves.

12 In view of the fact that many towns in Bosnia had fallen

13 according to the same scenarios, that many towns and villages had

14 surrendered their weapons thinking that the army of Republika Srpska

15 would act normally, however, they only facilitated their job for them.

16 They entered, they set on fire, they killed, they raped, they took

17 people to detention camps.

18 So we knew that the same awaited us, whether we surrendered

19 our weapons or not. If we had surrendered our weapons, we would have

20 made it easier for them because they would know that none of their

21 soldiers would get killed then. So we proposed that we would put our

22 weapons away in the police station in Kozarac, and then have mixed

23 guards to look after it, but to take it to Prijedor and to offer the

24 people of Kozarac to the Serb paramilitary on a plate, as we say,

25 no-one from the League of Peace felt authorised to do such a thing

1 without asking the people of Kozarac. Have I made myself clear?

2 Q. Yes, sir. During that meeting, did any of the Serb leaders say that

3 they had taken power in Prijedor because the Muslims planned a

4 takeover and that the Muslims were planning to liquidate prominent

5 Serbs and had marked the houses of Serbs?

6 A. You see, this was another form of propaganda, so that -- so as to

7 take power, the power over in Prijedor in a brutal way. The army of

8 the Republika Srpska and the SDS removed the executives of the Party

9 overnight who had been regularly elected and even though the majority

10 of the population was Muslim, that we had simply gained more seats in

11 the Municipal Assembly, in the court and so on and so forth, they were

12 simply bothered by this and said they had to leave, that Muhamed

13 Cuhajic could not be the Mayor of the municipality any longer and they

14 took the power over by means of military force.

15 It is not true, and I know it and I would have heard it, that

16 anyone at any time marked Serb homes or compiled lists for the

17 liquidation, for the elimination, of some Serbs. They did this to us

18 because that is what turned out later, that is known. There are

19 documents on that. During the war and in the camps at Keraterm and

20 Trnopolje, in Omarska, they killed our intellectuals, prominent

21 members of the SDA who had done absolutely nothing to bring about

22 armed conflicts between Serbs and Muslims, and that is what they did.

23 Q. In any event, did the Serbian leaders say to the League for Peace

24 members at the meeting that that had happened and that was why they

25 took power?

1 A. You see, they were looking for, not a reason because there was no

2 reason, but any ----

3 Q. Mr. Susic, I am probably not making the question clear. I simply want

4 to know if that was said at the meeting or not, not what the reasons

5 behind that propaganda might be.

6 A. No.

7 Q. When the meeting was over did any of the Serbian leaders speak to

8 you?

9 A. The meeting ended in a very troublesome discussion, a very heavy

10 atmosphere. As a matter of fact, we did nothing there. They also

11 asked that our police puts on insignia of the army of the Republika

12 Srpska and we had to take this proposal to Kozarac to explain that

13 both to our police and to our people.

14 However, when the meeting was over Simo Miskovic, President of

15 the SDS, the man with whom I had grown up, stopped me and said,

16 "Kemal, what you are doing are all of no use, nothing can save

17 Kozarac". He also said, unless he was doing it to justify himself

18 before me, that if I cannot do anything for Kozarac, then I will take

19 my family and go to Belgrade. Simo did not go to Belgrade because I

20 saw him in Omarska. Kozarac had already fallen. Kozarac had already

21 been destroyed by then, and after a month, during the month when I was

22 at the pista, Kozarac was burning day and night. I know that.

23 Q. You mentioned Djuro Pupevac who was a member of a Local Commune who

24 was a Serb. Did he speak up at the meeting on behalf of Kozarac?

25 A. Yes. Djuro Pupevac, as far as I could judge and some colleagues who

1 were with me, Djuro Pupevac spoke very favourably. He is a man of

2 modest scope, modest knowledge, but what he said was that in Kozarac

3 there were no problem, that people of Serb origin did not have to fear

4 anyone, that they could move freely, that they could go to work and

5 that he did not understand why was Kozarac the place which was

6 suddenly causing problems? He himself could not see what the problem

7 was about. He raised this before the authorities of the Republika

8 Srpska. There was no answer to that.

9 Q. Did Dusko Tadic speak up on behalf of Kozarac at the meeting?

10 A. I do not remember. He certainly was with us but I do not remember.

11 Q. Did Dusko Tadic tell you that he had met with the Serbian leaders

12 immediately before the meeting?

13 A. Could you please repeat the question?

14 Q. Did Dusko Tadic tell you that he was going to talk with Serbian

15 leaders immediately before the meeting, or did he tell you sometime

16 afterwards that he had talked with the Serbian leaders immediately

17 before the meeting?

18 A. I believe he said that he would talk to Serb leaders, I would not

19 know with whom specifically, he did not mention any name, and whether

20 he did, whether he did talk to someone, I do not know. I do not know

21 that.

22 Q. I am sorry.

23 A. Perhaps had I paid more attention to that during all that, perhaps I

24 might have learned whether he had done that or not. But after that

25 there was nothing to tell me that it had been done.

1 Q. Did he tell whether he regarded the meeting as potentially useful or

2 as a waste of time before it had happened?

3 A. Regrettably, his comment was almost identical to Simo Miskovic's one.

4 After that meeting I went to his coffee bar. We sat down, had some

5 juice and he said, "Kemal, Kozarac is going to be shelled". I was

6 shocked. I was surprised.

7 Q. I am sorry. I did not mean to interrupt you.

8 A. That is OK.

9 Q. Was there a second meeting a few days before the attack on Kozarac in

10 Prijedor?

11 A. Yes, there was another meeting.

12 Q. Was it attended by basically the same people?

13 A. More or less. However, this meeting was hardly different from that

14 first one. The status quo continued because no one side, neither of

15 the sides could or wanted to make a single concession. Serbs on one

16 side because they were demanding that the arms be turned over, that

17 our police put their insignia on; we on the other side in Kozarac did

18 not absolutely want to turn over those few weapons which we had, to

19 turn them into their hands and to be at the mercy of those people who

20 had come to Kozarac and attack us, because we knew that because it

21 already happened in too many places around Bosnia. Sarajevo was on

22 fire already at that time.

23 Q. Were the results of those two meetings and ultimatum by the Serbian

24 authorities communicated to the people of Kozarac?

25 A. Yes, they were communicated. After the second meeting, we organised

1 a citizens' meeting, rally, in our hall. It was filled to capacity.

2 All the people that could get in did get in, and we explained to our

3 townsmen what we were being asked for, and we asked the citizenry to

4 decide because they were the only ones authorised to do such a thing.

5 They then cast vote and indicated that they did not want to surrender

6 their weapons and fall bare-handed in the arms of Serb soldiers

7 because they thought it would be fatal. That was the answer of

8 Kozarac people.

9 Q. Was Kozarac in a position to defend itself militarily?

10 A. The SDA and the League for Peace at a meeting set up jointly a Crisis

11 Committee, what we called that. There were about 10 people there, and

12 we had all the information, what kind of weapons there were in Kozarac

13 and what could we use to defend ourselves if we were attacked by the

14 Serb army. To be quite frank, to make, to draw a comparison, it was

15 David and Goliath game, because what we had were mostly hunting

16 rifles. The automatic rifles, they were had by the police, the

17 regular and the Reserve Police. Old hunting rifles and very old ones

18 were in the hands of the Territorial Defence, but they were

19 practically unusable, those rifles. Some, perhaps, had a pistol or a

20 revolver and that is all that I knew about.

21 So at one of the meetings I asked a man who had undertaken to

22 organise some kind of defence of Kozarac, how to organise if Kozarac

23 were attacked, Sead Cirkin. So I asked, "Sead, how much ammunition

24 do we have if we are attacked?" and he said, "We have ammunition to

25 last us for two hours of fighting", and I laughed then and he asked

1 me, "Why do you laugh?" "Sead, we are finished. Do you know, Sead,

2 what kind of force they are bringing against us? There are cannon,

3 heavy guns in Mrakovica, heavy trucks are there. Around Prijedor, the

4 place is called Crna Dolina, and their tanks are positioned there.

5 Kozarusa, there are also tanks positioned. There is no way out for

6 us. There is no chance of escaping that", and we all knew that, but

7 we could not and we should not have left our women, our children, our

8 old folk, at the mercy of Serbs who would come to Kozarac, and we knew

9 they would come, because on 23rd May, on Saturday already, the village

10 of Hambarine was set on fire, was burning. We saw that from Kozarac.

11 Everything was burnt down. People were killed. At that time, even

12 at that time, Omarska was a topical matter. Keraterm was already

13 open.

14 Q. You were in Kozarac when the attack began?

15 A. Yes.

16 Q. Did you spend two days and two nights in the centre of Kozarac in a

17 basement?

18 A. I and my family and a large number of Kozarac inhabitants from the

19 heart of the town which we call Carsija, hid in the cellar of the

20 building across the building in which I lived. There was a subsidiary

21 of the Privredna Bank of Sarajevo and with our families we hid there.

22 We organised ourselves a little, had some food, had some

23 blankets with us, believing that after that shelling they were

24 preparing for us after two or three days some kind of truce would be

25 there. There would not be a full scale war. We thought it would last

1 for a couple of days and then we would be able to come up with a

2 solution, but something completely different happened. I saw that.

3 Q. On the third day when people from Kozarac began to surrender in

4 columns, you and your family joined the column and went to surrender?

5 A. The shelling lasted for two days and two nights from Sunday to

6 Tuesday morning, May 26th. On the radio station, the army of the

7 Republika Srpska communicated that all the Kozarac people had to

8 surrender, and that those who did not would be liquidated, regardless

9 whether we had any weapons or not, that we had to take out white flags

10 and form an echelon and leave from Kozarac to the highway

11 Prijedor/Banja Luka taking the direction of Prijedor. So we set off.

12 But only those who were in the centre of the town set off. A great

13 many people who lived on the outskirts, in the villages, they stayed

14 because they knew nothing about that. They stayed, unfortunately,

15 because very many were killed.

16 We reached the highway towards Prijedor. We then reached a

17 bus station. There we were met by soldiers of the Republika Srpska

18 and I heard it with my own ears how they shouted, fire, beat, kill

19 them, do not wait anything. We heard our mothers, our children and we

20 were bare handed. I could not believe my ears. I could not believe

21 that this man was saying things like that. I was wondering why.

22 Another one was saying, "No, wait, we have not received our orders

23 yet". So there was quite a confusion among them and we were slowly

24 moving towards Kozarusa and there we were met by buses.

25 We saw a large number of tanks, very many men, troops there,

1 and guns and cannons. They were heavily armed, thinking that Kozarac

2 would put up resistance. However, Kozarac absolutely had no chance,

3 had no opportunity to resist them. Kozarac had simply hidden before

4 them. So we came down, women and children, and then they started

5 separating them from men or minor boys, boys of 12 or 13. In the

6 crudest way possible, in the most brutal way possible, they put us on

7 to the buses and took us by the old road towards Trnopolje.

8 Q. Were you able to leave Trnopolje on that same day with the assistance

9 of a colleague of your sister?

10 A. We arrived in Trnopolje and the situation there was very hard. My

11 younger sister at the time was employed in the Secretariat for the

12 Interior in Prijedor. She had her boyfriend who was a Serb, so he

13 approached him and asked him if it will be possible for her family and

14 mine to leave Trnopolje because we were afraid. We realised that some

15 ugly things would happen there and he said to wait. So he found a

16 small truck and we boarded that one and headed for Prijedor.

17 So, that night we spent with friends again, and the next day

18 my family went to the old town in Prijedor, to some relatives of mine,

19 somewhat removed. There we were until the fatal May 30th, the morning

20 when Prijedor and Stari Grad were attacked, when that Stari Grad, when

21 old town was burnt to the ground and that is when they took us to

22 Omarska.

23 Q. Just to clarify. You were taken to Trnopolje on one bus, your wife

24 and children were taken on another bus and then you met in Trnopolje

25 with the assistance of this friend and were taken to Prijedor?

1 A. Yes, upon our arrival in Trnopolje, the army separated men from women

2 and put them into an old hall, a cinema. It is the same kind of a

3 hall as the one in Kozarac except that it is slightly older and that

4 is where they put us. However, when some fire started, some

5 uncontrolled, I think, some random fire, we were scared because we

6 thought that they were firing at our women and children. So we all

7 rushed out of that hall and that is how we got mixed again with the

8 women and children. After that they did not try particularly hard to

9 put us back, but started to accommodate us around the school rooms in

10 that old school in Trnopolje. There we found that man and then left

11 for Prijedor and it was around sunset, it was dusk already, I think.

12 Q. You say you were in Stari Grad on May 30th when the cleansing of

13 Stari Grad began. Did that begin with shelling in the early morning?

14 A. The attack on Stari Grad started in the morning of May 30th. First,

15 one could hear individual pistol shots and then it grew stronger and

16 stronger and we realised something was happening. The houses began

17 to burn, and then into those small streets in the old town so-called

18 Pitzgauers, military vehicles, entered with soldiers on and they had

19 machine guns on them, and they were firing at buildings and houses,

20 absolutely wanton fire. They did not check whether there were any

21 women or old people or children.

22 Then they started entering houses, breaking into homes. They

23 were asking for keys of the cars. Women were taking off whatever

24 jewellery they had, so they were looting, they were pillaging. They

25 were taking money and telling us all, "Leave all that is valuable.

1 Just leave it behind. You will not need it any more". They would not

2 even allow us to dress. My wife left the house bare footed, and not

3 only I, but everybody else as well.

4 So they made us move towards the Balkan Hotel. There they

5 separated us once again, women from men, brought a large number of

6 buses and with those buses we were taken to Omarska.

7 Q. When you arrived in Omarska where were you first held?

8 A. I see this model of Omarska. We were brought by buses here, to this

9 administrative building, and for the first three or four days I was in

10 one of those rooms in the back. We entered through this main

11 entrance. One goes into the restaurant a soldier met us one by one

12 and took down our first names and family names. There were incredibly

13 many of us in that room. One could hardly breathe.

14 So that at our own initiative we started to look for some

15 other rooms. People were opening doors and going into other rooms,

16 and then the orders came that we all had to abandon those rooms and

17 that we had to go out to the asphalted space which, I do not know for

18 what reason, was called "pista". Why is it called pista? I do not

19 know to this day, and it does not matter anyway, but that is the name

20 which we also adopted and I spent a month on that pista. We spent

21 that day and night, we even slept there. In the rain or not, when it

22 rained, if it was cold, if there was puddles of water, we still had to

23 lie there. We could not even crouch or stand up because if you stand

24 up, we were all surrounded by amoured vehicles of the army of the

25 Republika Srpska, there were machine guns which fired over our heads,

1 so we simply had to lie down.

2 We were terribly cold. So we tried to be close to each other.

3 Some elderly people cried. There were children too. It was very

4 hard. During the first five days and five days they would not -- they

5 gave us nothing to eat, nor did they give us any water to drink. We

6 were physically crushed. When we did have an opportunity to stand up,

7 which was not very often allowed, many people fainted. Simply, you

8 would see all dark in front of you. You either had to grab the one

9 next to you or fall down. It is unimaginable. We could not speak.

10 My lips were all parched. I was bleeding. I could not understand

11 that a man was doing this on to a man that people with whom we had

12 worked together, played together, could do this, married with, went to

13 funerals together, attended funerals together.

14 It was terribly hard. I mean it was hard on our souls. We

15 were terribly affected. We really found it very hard on us, believe

16 me. I do not really want to tax your patience with these stories, so

17 if you have any questions, of course, I will listen to them.

18 MR. TIEGER: I think this is actually a time for a break now.

19 THE PRESIDING JUDGE: We will stand in recess for 20 minutes, please.

20 (11.30 a.m.)

21 (The court adjourned for a short time)

22 (11.55 a.m.)

23 THE PRESIDING JUDGE: Mr. Tieger, you may continue.

24 MR. TIEGER: Thank you, your Honour. Mr. Susic, you were on the pista

25 area for approximately one month?

1 A. Yes.

2 Q. Then you were transferred to the large hangar building which is also

3 shown on the model?

4 A. Yes.

5 Q. Were you first on the ground floor of the hangar building in an

6 enclosed area on the floor of the hangar where large mine equipment

7 was normally kept?

8 A. Yes.

9 Q. That area was fenced in with wire where the prisoners were?

10 A. Yes.

11 Q. At some point after that, did you manage to sneak away from that area

12 and get to a room in the upstairs portion of the hangar?

13 A. Yes, I managed to get out. When we entered the hangar -----

14 THE PRESIDING JUDGE: The transcript is not appearing -- it appears to be

15 operative. Mr. Tieger, you need to begin again.

16 MR. TIEGER: Mr. Susic, I am going to ask you the same questions I asked

17 you a few moments ago because the transcription of what you were

18 saying was not appearing. You were on the pista for about a month?

19 A. Yes.

20 Q. After that you were transferred to the large hangar building?

21 A. Yes.

22 Q. And were held with other prisoners on the floor of the hangar

23 building in an area where the large mining equipment was normally

24 kept?

25 A. All prisoners from the pista were transferred to the hangar. Old

1 mining machinery that was inoperative was thrown out. We were put

2 there and wired in. I spent several days there. I did my best to get

3 away as soon as possible because every evening soldiers would come,

4 take men away, kill them, beat them up heavily, and seeing that my

5 life was in danger, I sought an alternative solution and one occasion

6 when the electricity failed, I managed to get out.

7 Q. You went into a room in the upstairs portion of the hangar?

8 A. Yes.

9 Q. You remained there until the time of your transfer to Manjaca camp?

10 A. Yes.

11 Q. During the time you were in Omarska were you interrogated?

12 A. I was interrogated only once.

13 Q. Do you know the person who interrogated you?

14 A. Yes, I do. His name was Dragan Radakovic, with several other men

15 that I did not know. In addition to him there were two soldiers of

16 the Republika Srpska who with beatings forced the detainees to give

17 them information they wanted to hear. The treatment was very cruel.

18 Q. Were you beaten during your interrogation?

19 A. They did not beat me.

20 Q. Did you see the conditions of other prisoners before and after their

21 interrogations?

22 A. I did see that. When I was taken for interrogation I was at the

23 pista at the time. Mostly when interrogations occurred we were asked

24 to face the hangar so as not to see the condition in which people were

25 coming out after interrogation. They were severely beaten up, so they

1 sought a jacket or a blanket to be brought upstairs so that the beaten

2 up person, even those who gave no sign of life, to be taken out, to be

3 laid down on the grass in front of the restaurant. This happened

4 daily. Things like this happened daily.

5 In the case of my interrogation, a soldier called Milan Pavlic

6 approached me, put a bayonet under my throat, he threatened me saying

7 that I must answer the questions put to me by Mr. Radakovic, and

8 afterwards he asked me, "How do you want me to cut your throat?" I

9 said, "In the way that it is easier for you". Then Radakovic gave him

10 a sign with his eyes to let me go and told me to go back to the pista,

11 that he would think about me, but that most probably I and my two

12 brothers would be liquidated. Why, I did not know. I returned to the

13 pista.

14 Q. You indicated before the prisoners were beaten on occasions other

15 than interrogations. Did you see the condition of prisoners who were

16 held in the white house?

17 A. The white house was for us a kind of purgatory. People would go

18 there but they were carried out severely beaten up and in most cases

19 already dead. The knowledge that you would have to go to the white

20 house was terrible, because if they told you you had to go there, it

21 would in most cases mean the end. I saw those people that were beaten

22 up, that were maimed, with open fractures of their extremities, their

23 limbs, their arms and legs with severe injuries on the face so that

24 some people I had known I could no longer recognise. One of those

25 people was the President of the SDA party in Kozarac, Becir

1 Medunjanin. He was severely beaten up as well as his son who

2 survived, in roughly about that time he was liquidated in Omarska. He

3 begged the soldier to kill him, just not to beat him any more. I

4 heard this myself, and I watched it.

5 Q. Did you ever see any Serbian officials from Prijedor in Omarska?

6 A. In Omarska on a couple of occasions I saw Simo Miskovic and Simo

7 Drljaca. I saw the two of them in broad daylight. Simo Drljaca was

8 wearing a camouflage uniform. He knew and saw what was happening, the

9 kind of treatment we were exposed to. I believe he did nothing to help

10 or change the situation because the situation remained the same.

11 Q. Who was the Commander of Omarska camp?

12 A. The Commander of the Omarska camp was Zeljko Meakic.

13 Q. Did you see Simo Drljaca talking with Zeljko Meakic?

14 A. Usually, when Simo came to Omarska at the very entrance to the

15 building or the restaurant, he was met by Mejakic or a number of the

16 officers with whom he would have a five-minute talk outside and then

17 he would go upstairs. They had their own offices upstairs where they

18 probably discussed future activities and developments. I do not know

19 about that, but I saw them talking.

20 Q. Did officials, Serbian officials, from outside Prijedor come to

21 Omarska?

22 A. Representatives of Serb authorities outside Prijedor, I can mention a

23 specific case of Radoslav Brdjanin, a man who was the pillar of the

24 SDS party in Banja Luka. He came on one occasion by helicopter. I

25 remember well the helicopter landed just behind the restaurant

1 building. The man came out. Everybody said it was Radoslav Brdjanin.

2 He introduced himself later on. We were lined up and we were ordered

3 to sing Chetnik songs. Many people, so as not to be killed, sang and

4 cried. At the end he said to us with a lot of sarcasm, "Why did you

5 need all this?" and Kozarac by then had already been destroyed and

6 burnt.

7 Q. During the time you were held in Omarska camp, did you see Dusko

8 Tadic in Omarska?

9 A. Believe me, in view of all the developments before the war, the fact

10 that I knew the family, I personally would have liked not to have seen

11 him. I saw Dusko Tadic only once in Omarska. He came with a group of

12 soldiers of the Republika Srspka. When I saw him that day, it was a

13 sunny, light day. Dusko was not carrying weapons. I did not see any

14 weapons on him. He was talking to some people. He entered the

15 administrative building and went upstairs because I was sitting on the

16 pista then, and then through the glass you can see the people climbing

17 up the stairs or coming down the stairs. That day I did not see him

18 coming down.

19 In the evening, those of us on the pista were obliged to leave

20 the pista and we were put, 600 or 700 of us, in the restaurant to

21 spend the night because it was easier for them to keep check of us, so

22 that no-one could get away or make an incident or anything. It was

23 terrible for us because we were one on top of the other. We could not

24 breathe. At the same time they would come in and beat us up or take

25 some away somewhere, we did not know where. We would spend the night.

1 In the morning we would go back to the pista again and spend the

2 whole day there until the moment when we left it. I am talking of the

3 pista.

4 Q. I am going to ask you to stand up in just a moment and point out the

5 spot where you were sitting on the pista when you saw Dusko Tadic,

6 and then also point out the spot where he was when you first saw him.

7 I will also ask you -- perhaps you can take that pointer with you --

8 can you first point out the spot on the pista where you were?

9 A. This area here between the administrative building and the restaurant

10 and this building where the offices were, the offices of the hangar.

11 We, prisoners, called it the "pista". It was limited with flower pots

12 we were ordered not to go beyond, and this area behind was also used

13 when we were lined up for lunch, that infamous lunch. Dusko was

14 coming along this side. I was here somewhere, roughly. It was in

15 broad daylight. The weather was sunny and I could not have replaced

16 him for someone else. He moved slowly, talking with some soldiers and

17 he entered here.

18 Q. Can you put a couple of yellow tabs which I believe are on the model,

19 left side of the model, and should be marked "T" and "W" -----

20 THE PRESIDING JUDGE: Miss Sutherland, it might be better if the witness

21 uses those earphones and he will be able to move further over.

22 MR. TIEGER: Using the tab marked "W", can you place that in the

23 approximate area where you were when you first saw Dusko Tadic?

24 THE INTERPRETER: Sorry, we can barely hear.

25 MR. TIEGER: Mr. Susic, if you are going to speak, you will have to be a

1 little closer to the microphone for the interpreters to hear what you

2 are saying.

3 A. I apologise. This tab with "W" shows where I was roughly. It is very

4 difficult to say exactly -- roughly there.

5 Q. Can you use the marker that is marked with a "T" to show

6 approximately where Dusko Tadic was when you first saw him?

7 A. Dusko was about here somewhere. He was moving, I think, from here.

8 I could not see. I did not pay any attention until he appeared.

9 This part here and this part is in glass, so that it is possible to

10 see this side through the glass. Whether he was a little more forward

11 or backward, but roughly here somewhere. I did not pay attention to

12 the actual distance because, of course, I did not think about such

13 things at the time.

14 He was moving slowly, talking all the time, and noticing him,

15 in view of our mutual friendly relationships from before, I

16 spontaneously raised my hand in a wish to give him a sign to tell him

17 I was there, hoping that he could help me. My brother-in-law was

18 sitting next to me. He pulled my hand down and said, "Don't do that,

19 Kemal. You do not know what could happen to you". These mixed

20 feelings and being disappointed, I lowered my hand. I sometimes think

21 about that event, perhaps Dusko maybe even noticed me, but he gave no

22 sign of it, no real sign of recognition and he went in.

23 Q. Mr. Susic, you can resume your seat now.

24 A. Thank you.

25 Q. How were the soldiers who were with Dusko Tadic dressed?

1 A. At the time the army of the Republika Srpska had diverse uniform.

2 Some were wearing camouflage pants and ordinary jackets of the former

3 Yugoslav People's Army, some wearing blue shirts, some were wearing

4 civilian clothes. They were very disorderly, unshaven. According to

5 my judgment, it was an army without discipline, without order. They

6 behaved like hooligans. They were swearing.

7 Q. How were these particular soldiers with Mr. Tadic dressed, if you

8 recall?

9 A. They were also dressed differently. They were armed with automatic

10 rifles.

11 Q. If you recall, how was Dusko Tadic dressed?

12 A. Dusko had camouflage pants and a shirt without a jacket. He was not

13 armed.

14 Q. Camouflage shirt?

15 A. No, an ordinary shirt.

16 Q. You indicated that he and the people he was with moved slowly across

17 the front of the restaurant building and then entered the restaurant

18 building. Were you able to see him going upstairs through the glass

19 on the stairway?

20 A. Yes, I was because the glass panes were very visible and the whole

21 part was in glass, maybe plastic glass, I do not know, so that anyone

22 climbing or descending the stairs could be seen well and one could

23 easily tell who was who. It was not a large distance. They would

24 often have three or four people there observing the people on the

25 pista to see who was sitting with whom, who was communicating with

1 whom, whether there were any connections among the people. In a

2 certain area from the restaurant there was a point with a man with a

3 machine gun who was guarding the people sitting on the pista. These

4 are just some details. I do not know whether they are important. I

5 just want to explain.

6 Q. You remained on the pista until darkness when you were put in the

7 restaurant building, is that correct?

8 A. Yes.

9 Q. On the day you saw Dusko Tadic?

10 A. Yes.

11 Q. You did not see him leave the restaurant building?

12 A. No.

13 Q. Sir, can you look around the courtroom, please, and tell us if Dusko

14 Tadic is in court?

15 A. Yes.

16 Q. Can you point him out, please, and tell us what he is wearing?

17 A. It is the man sitting in the middle. He has a blue jacket, a tie and

18 a white shirt.

19 THE PRESIDING JUDGE: The record will reflect that the witness identified

20 the accused.

21 MR. TIEGER: Thank you, your Honour. Nothing further.

22 THE PRESIDING JUDGE: Cross-examination Mr. Kay?

23 MR. KAY: Yes, your Honour.

24 Cross-examined by MR. KAY

25 Q. Mr. Susic, I first of all want to ask you some questions about the

1 time before Kozarac was attacked. You have told us about you being

2 involved with the peace group who went to Prijedor to negotiate on

3 behalf of Kozarac. You told us that Dusko Tadic was a member of that

4 group when you went on the two occasions. You recollect your

5 evidence?

6 A. Yes.

7 Q. You also told us that it was your idea to suggest him to the group

8 and that you happened to leave the room that you were in because you

9 saw him on the street outside and put the idea to him. Have I

10 understood that correctly?

11 A. Yes.

12 Q. Do you recollect, before you spoke to him about those arrangements,

13 whether, in fact, there had previously been discussions between you

14 and he about this meeting in Prijedor to meet members of the Crisis

15 Staff there?

16 A. I think not.

17 Q. Can you recollect, in fact, also at one of those meetings did Bosko

18 Dragicevic also accompany you?

19 A. Bosko Dragicevic was proposed to go with us. However, he refused, he

20 did not want to go with us.

21 Q. Present at the meeting in Prijedor was there a man called Mehmet

22 Ilijaz who was President of the SDA in Prijedor?

23 A. Mehmet?

24 Q. Mehmet Ilijaz.

25 A. No, I do not remember.

1 Q. Not accompanying your delegation, but being someone from Prijedor who

2 was also there with the other people from Prijedor, some of whom you

3 have named? Can you remember?

4 A. Just a moment ---

5 Q. Of course.

6 A. -- please? At that meeting, Dedo Trnalic was present, as far as I

7 remember. I am not an inhabitant of Prijedor. I do not know many

8 people from Prijedor. What is more, I knew very few people who were

9 linked to the SDA party in Prijedor, so that I cannot give you

10 reliable information on the names of the people attending that

11 meeting.

12 Q. Thank you. As far as that meeting was concerned, do you recollect if

13 any notes were taken?

14 A. As far as I know, notes were being taken by a man called Pero

15 Kovacevic. On what basis he was entrusted with this task, I do not

16 know. I think that he was doing that, however. Those notes were not

17 given to us to see what had been taken down. This was simply taken

18 away.

19 Q. Just a couple of other matters prior to the attack on Kozarac: I do

20 not know whether you recollect a man who used to live in Kozarac

21 called Adem Kahrimanovic?

22 A. I remember.

23 Q. Before the attack took place on Kozarac, is it right that he moved to

24 Banja Luka?

25 A. Yes.

1 Q. Do you recollect, in fact, if he went to stay with his sister in

2 Banja Luka?

3 A. No, he went with his wife and he went to stay with my sister in Banja

4 Luka who was then living in Banja Luka.

5 Q. Yes, you are probably right about that and I am interpreting

6 something that is given to me and I accept what you said. It was with

7 your sister?

8 A. That is correct. That is true. That man is my uncle and his wife my

9 aunt, and they lived with my sister in Banja Luka for a time.

10 Q. Do you recollect, in fact, that Dusko Tadic as well as his brother

11 Ljubo helped Adem to move from Kozarac?

12 A. That they had helped him directly, they did not, but Dusko did advise

13 him that it would be wise to leave Kozarac probably knowing what could

14 happen to Kozarac; most probably again out of gratitude because that

15 man had lent him a certain sum of money to complete his building and

16 my uncle went to Banja Luka. I personally drove him to the junction

17 with the main road Prijedor/Banja Luka, and he went to Banja Luka by

18 bus from there and he stayed there.

19 Q. Did you hear from Adem at all during the time that you were either at

20 Trnopolje or Omarska? Did you have any messages from him?

21 A. I was in Trnopolje for only one day until dusk. In Omarska I spent

22 two months and seven days. I never received any message from him.

23 Q. Thank you. I would like to deal with some other matters as well

24 concerning Dusko Tadic. First of all, you are a man who has always

25 worn a beard, is that right?

1 A. Not so frequently. I would shave sometimes but sometimes it was like

2 a fashion, a fad, and I thought there was nothing bad to wear a beard,

3 for me to wear a beard is a normal thing, a democratic choice of any

4 individual. Everyone is free to clothe as he will or to wear a beard

5 if he wants to.

6 Q. I was not criticising it!

7 A. I did not understand you to be criticising. I just thought I owed

8 you an explanation.

9 Q. Yes, but as part of your democratic choice I suppose you also had to

10 carry an identification card, is that right, in the former Yugoslavia?

11 A. Yes, I did.

12 Q. In that identification card would be the photograph of the person who

13 was the bearer of the card? The translation needs to pick up your

14 answer rather than nodding, sir. If you can answer yes or no?

15 A. No, I will tell you. I am listening to you. I had an ID card. I

16 still have it with me in [redacted] I can show you the photograph. On

17 that photograph I wore a beard as a document.

18 Q. My question was not actually proposed to be about that, but if you

19 changed your appearance having not worn a beard but then started to

20 wear a beard on a more permanent basis, is it correct that you had to

21 change the photograph inside the identification card?

22 A. According to the rules, yes, but our authorities in Bosnia were not

23 so strict, especially in the locality where we were living. It was

24 sufficient to show our ID card. Whether we were clean shaven or with

25 a beard they knew my identity and who I was and that everything was

1 in order. There were no sanctions or consequences.

2 Q. As far as Dusko Tadic was concerned, you have referred to whether he

3 had a beard or not, but can you recollect that there was in fact a

4 period shortly before the conflict in 1992 when he did have a

5 permanent full beard?

6 A. I do.

7 Q. You have known him, as you have told the Court, for many years.

8 There were times, though, in fact when he had lived away from Kozarac,

9 perhaps the 1980s you may remember that he went to Libya, is that

10 right?

11 A. Yes, I do not know whether he was in Libya, but I do know for a while

12 he was not in Kozarac and I know he spent some time in Banja Luka.

13 But, believe me, this is the first time I hear that he had lived in

14 Libya. Kozarac is a small place, perhaps I would have heard of that,

15 but, after all, I do not think it is particularly important and why

16 should I or somebody else know if Dusko Tadic was in Libya or not?

17 Q. What it comes to is this, though, that you recollect that there were

18 periods when he lived away from Kozarac; where he was living you

19 cannot say?

20 A. I think he lived in Banja Luka because he had a car with Banja Luka

21 plates of Visa make. I think I can even remember the colour of his

22 car. It was a grey colour. He would frequently come with that car to

23 Kozarac and then he would go to Banja Luka. What he did in Banja Luka

24 I do not and, after all, it is really his private business.

25 Q. Aside of that period in Banja Luka, do you in fact recollect him

1 working elsewhere in the former Yugoslavia in a different region?

2 A. I do not remember. I only know that he often went to Germany to his

3 brother Mladen who lived in Munich at the time. Whether he worked in

4 Germany or did something in Germany or not, whether he had a regular

5 job there, I do not know that either, but I think not, since I saw him

6 often enough and those visits of his were usually of a short duration.

7 So he often was in Kozarac and he mostly moved between Banja Luka and

8 Kozarac.

9 Q. Do you recollect in fact, again before the attack on Kozarac, that he

10 had put on a lot of weight, he was heavier than he had been in the

11 past?

12 A. I do. I remember that too.

13 Q. You would notice those changes in how he looked?

14 A. Yes, I remember. I noticed that also.

15 Q. Again, he is not someone that you used to see dressed in army

16 clothes. That was not the kind of clothing that you would have seen

17 him wearing?

18 A. Before the war I did not see him wearing that uniform in Kozarac.

19 Q. No.

20 A. Whether somebody else saw him in it I do not know, but I did not.

21 Q. Yes, when you saw him he would be wearing just ordinary clothes?

22 A. Civilian clothes.

23 Q. Yes. I would like now to ask you some questions about Trnopolje and

24 the first one is one of enquiry. You mentioned being helped in

25 Trnopolje by someone called Bozo?

1 A. Yes, I think his name was Bozo and that man worked, as far as I know

2 from what my sister told me, for the Secretariat of the Interior in

3 Prijedor. I think that at the time he was already retired, but when

4 the war broke out he had been reactivated. What his family name is I

5 do not know.

6 Q. Was that Bozo Karajica?

7 A. Karajica or Karajica, no.

8 Q. One other matter. When you were in Omarska did you receive food from

9 a guard who helped you called Merko Vidovic?

10 A. Yes.

11 Q. That is all I ask about those matters and I now want to go to the

12 occasion you were on the pista. You say that you saw Dusko Tadic.

13 Can you recollect when that was, how long you had been at Omarska by

14 that time?

15 A. I was brought to Omarska on May 30th '92, and to be able to specify

16 the date when I saw him, at that time I thought -- no, I did not even

17 give it a thought at the time, but I should say it was sometime in

18 June, I should say the latter half of June. It was relatively warm at

19 the time. It must have been around noon. It was sunny. We were all

20 sitting on the pista facing -- well, it depended. We were slightly

21 relaxed at that particular moment and it just happened that I was

22 facing the restaurant, the administrative building, more out of

23 curiosity because many things were going on in front of that entrance.

24 New people came, new prisoners were brought, they were beaten at that

25 entrance and distributed around different rooms and so on and so

1 forth.

2 Q. Was that the time when you stayed the night in the hangar or the

3 restaurant building or when you were out on the pista during the night

4 time?

5 A. At the time by and large we would spend the whole evening and often

6 every, all the evenings we stayed outside, but often for security

7 reasons they forced us to enter the restaurant because that was how

8 they could keep the eye on us easier. Then we would be thrown out in

9 the morning at 6 or half past, we would be thrown out and each of us

10 looked for a place on the pista to take up for the day. I do not know

11 what you have in mind, but it is absolutely impossible of a mistaken

12 personality. I could have perhaps been wrong about someone whom I had

13 known for a month or two, but for somebody who grew up before my eyes,

14 who was my pupil, whose walk, whose characteristic walk,

15 characteristic step I knew, whose gestures I knew, whose manner of

16 speech I knew, it was very hard to be mistaken about such a person.

17 To be quite frank, his appearance there was a great disappointment to

18 me personally because I thought he would distance himself from this or

19 at least that he would not come to Omarska which was the evil itself,

20 and it was proven in the end.

21 Q. You see, what I suggest to you is that a mistaken person such as you

22 can believe their mistake, and that is what I suggest, that you are

23 mistaken about this identification. Perhaps you would like me now to

24 look at some of the details with you whilst I ask some questions so

25 that we can judge this matter. You referred to flower pots between

1 the ----

2 MR. TIEGER: Mr. Kay, I am sorry to interrupt you, but before we get too

3 close I want to ask for a redaction on the time delay.

4 THE PRESIDING JUDGE: What do you mean a redaction on the time?

5 MR. TIEGER: There is a reference earlier in the transcript and it occurs

6 at 12.31.32 on page 41/15. So if that could be communicated to the

7 technicians.

8 THE PRESIDING JUDGE: What time did it occur, 12?

9 MR. TIEGER: It refers to a location the Court may recall.

10 THE PRESIDING JUDGE: What time did it occur?

11 MR. TIEGER: At 12.31.32.

12 THE PRESIDING JUDGE: OK. Is there any objection -- do you have that on

13 your screen, Mr. Kay?

14 MR. KAY: I have been told by Miss de Bertodano what the matter is.

15 THE PRESIDING JUDGE: Look and you will see at 12.31.32, the location. No

16 objection to it being redacted?

17 MR. KAY: Absolutely not.

18 THE PRESIDING JUDGE: Very good, it will be redacted. Thank you.

19 THE PRESIDING JUDGE: Mr. Kay, you may continue.

20 MR. KAY: Thank you, your Honour. (To the witness): Can I then ask you

21 about certain details concerning this matter. The first is this, that

22 you mentioned flower pots that existed as a boundary on the pista.

23 Were they placed like a channel between both of the sides of the

24 hangar stretching down to the restaurant building?

25 A. Those were flower pots and they looked nothing like a channel. They

1 were simply put there as a decoration, and formerly there were flowers

2 in them. I should like to ask you to explain to me why do you infer

3 and also to show me a document and on the basis of what do you draw

4 your conclusion that I mistook him for another person and could I make

5 this mistake? This is what you told me.

6 Q. Please, I think that things will proceed more easily for the Court if

7 you allow me to ask the questions and you answer the questions I ask

8 you. Then if any other matters need to be raised by Prosecution

9 counsel they will do so. So, if you just, please, answer my questions

10 we shall not be very long. All I wanted to know was the position of

11 the flower pots that you said bounded the pista?

12 A. I would have to stand up to show it.

13 Q. Please do so and if Mr. Bos can give you the pointer just mark where

14 these pots were so that we can see you in court.

15 A. (The witness indicated on the model). I do not know how many of them

16 there were exactly, but this is how they were towards the restaurant

17 and on the other side. True, of course, there was room between them,

18 there was a certain space between them, so one could walk between them

19 and we who were on the pista were ordered not to leave the area beyond

20 the flower pots.

21 Q. Thank you for answering my enquiry and you can return to your seat.

22 What I would like to ask you now is if you can tell us about how many

23 people were on that pista with you in June, are you able to give us a

24 number?

25 A. About 600.

1 Q. Would I be right in suggesting that that is a very crowded area for

2 600 people to have been placed?

3 A. You are quite right. They were packed men next to men. It was very

4 crowded. We could not move but we had to be there. We had been

5 ordered not to leave that area. There was barely room to sit one next

6 to the other.

7 Q. During the day were you required to either lie down or sit down and

8 on a few occasions were you allowed to stand up?

9 A. Often times when soldiers would come from the frontline, when they

10 beat people up severely and killed them, we would then be ordered to

11 lie down faced to the asphalt and we were often one on top of the

12 other, but we could not raise our heads to see who were those people

13 who were taking people away and killing them following a certain

14 scenario, following ready-made lists. We were not allowed to see that.

15 It was enough for a soldier to come up to you and ask you: "Do you

16 know me?" If you said you did you are killed. We would lie in water

17 for five or six hours and we would not be allowed to stand up. If it

18 rained the whole day we were not allowed to move away, so our clothes

19 got soaked and dried on us. It was very hard to lie down. When we

20 were ordered to get up very many people remained lying down. Some

21 elderly people died on the pista because they had already been

22 emaciated, exhausted.

23 Q. Was it the case that on an ordinary day you were required to sit down

24 on the pista with your heads facing the tarmac?

25 A. They asked that on several occasions. Usually and more often than

1 not in the day time when the Commission from Banja Luka, on those days

2 when the Banja Luka Commission came to conduct interrogations, some

3 inspectors who came and some police from the Secretariat of the

4 Interior would take people to the upper floor of the restaurant

5 building, and after those infamous interrogations, during those

6 infamous interrogations of theirs they heavily beat our people,

7 battered them, and we were ordered not to look in that direction, so

8 either to sit down facing in the opposite direction towards another

9 building, or to lie face down to the asphalt. It was enough for one

10 to raise one's head for soldiers, dozens of them, to start running

11 over our backs in their soldiers' boots, to hit us with diverse

12 objects, with metal, iron rods, with cables or whatever they could

13 find. It was enough for one to raise one's head and receive a

14 terrible blow in the head and it happened very often.

15 Q. So are you saying then when nothing in particular was happening in

16 the form of a beating or to disguise who was present at the camp, that

17 in those circumstances you were able to look up and around and did not

18 have to face the ground or the hangar building?

19 A. When there was a relative lull, well, no excesses happened, then we

20 were allowed to sit down facing one another or ask for water.

21 Sometimes we were allowed to drink water from the nearby river which

22 they brought in petrol cans. That water was undrinkable, it was full

23 of insects or mud, but we had to drink it because there was no other

24 water for us. Those were the only moments when we were, so to speak,

25 relatively relaxed or in slight fear, but that happened very seldom.

1 Q. So it seems then on that one occasion when you say you saw Dusko

2 Tadic that that was an occasion when you were able to look around, is

3 that right?

4 A. Yes, then we were free at that moment. We could perhaps walk a

5 little bit, move among us or if somebody had some food over, perhaps

6 biscuits or a small piece of bread after lunch, we had it in our

7 pockets, in the jackets or something, so that at that moment I was

8 facing the restaurant and we often faced the restaurant to see if

9 somebody might bring our friends or relatives or brothers, our wives,

10 mothers, and they did do that. In Omarska some 40 women were brought

11 and they went through the severest treatment and we saw that, we heard

12 that. I cannot ever forget the screams by night and the sobs, the

13 cries for help. In the morning as they would sit in the restaurant at

14 the table I saw there were bruises on their eyes and with the signs of

15 blows, with clothes torn. Those were women who could not utter a

16 single word, they did not cry even. Their faces were white and they

17 stared in some direction, which one, they were completely lost. It

18 was terrible to look at. We on one side all beaten up and maimed and

19 they on the other. These are facts. These are the documents about

20 Omarska.

21 Q. So on this occasion we are talking about, no one had caused you or

22 the other people with you to have to look in any other direction to

23 stop you seeing anything happening or protect anyone's identity, is

24 that right?

25 A. They asked, the soldiers from the frontline often came in combat

1 vehicles, furious, vengeful and they asked that we turn towards the

2 hangar and they would come in amongst us and those who were slightly

3 stronger, who had not lost too much weight, they took away, beat up

4 severely and many of them did not return. There were also such

5 moments, and frequent ones too, when they were taken to the white

6 house and from the white house they returned as invalids, totally

7 disabled or were taken out dead and laid down on the grass in front of

8 the white house. Every morning a yellow truck with an improvised

9 excavator took those people to where the turnings of the mine were.

10 Some of those people even still gave sign of life, they were not dead,

11 yet they took them away and buried them alive. It is not only I who

12 knows that. Very many people know it and many people would confirm

13 that it was like that.

14 THE PRESIDING JUDGE: Mr. Susic, I think the question is, was there

15 anything that interfered

16 with your view, your ability to see Mr. Tadic. Was that the question,

17 Mr. Kay?

18 MR. KAY: Expressed in a slightly different way.

19 THE PRESIDING JUDGE: If you wish you may restate the question. I do not

20 see an answer to it, that is the point.

21 MR. KAY: Your Honour, I will move on.

22 THE PRESIDING JUDGE: No, you need an answer. I think you deserve an

23 answer on this question. The point was, I do not think it was

24 answered.

25 MR. KAY: I am much obliged. (To the witness): What I am asking you

1 about is that on this occasion that you say you saw Dusko Tadic you

2 had no order to turn to the hangar or look to the ground, so you could

3 not see who was there or what was happening, is that right? A simple

4 answer will probably help the Court.

5 A. Explanation, I will tell you. When I saw Dusko nothing particular

6 was happening on the pista. There were no incidents there, so that

7 none of the superiors had ordered us to face the hangar or take up a

8 particular posture so as not to see something. He simply turned up

9 accompanied by several men, passed by and entered the restaurant

10 building. We simply recorded that nothing happened, there was no

11 problem, no incident, because they did not think there was anything

12 terrible, anything bad was happening so that we would have to turn

13 towards the building of the restaurant or turn away from the building

14 of the restaurant. I do not know if I answered your question, but

15 that is how it was.

16 MR. KAY: Your Honour, that would be an appropriate moment.

17 THE PRESIDING JUDGE: Mr. Tieger, cross-examination has not been completed

18 of this witness. Yesterday when we enquired of how much time Mr.

19 Wladimiroff would need for his presentation on the identification

20 question, he had said an hour, I guess a half an hour as I recall, I

21 have not looked at my notes, half an hour for himself and perhaps

22 another half hour for Dr. Wagenaar if he is available. Is Dr.

23 Wagenaar available?

24 MR. KAY: Yes, Professor Wagenaar will be available for between 4 and

25 4.30. Arrangements were made last night so that he could attend the

1 court. So he will be here from 4 o'clock.

2 THE PRESIDING JUDGE: He will be here in this courtroom testifying from 4

3 to 4.30?

4 MR. KAY: That is what we are hoping, your Honour. He is arriving between

5 4 and 4.30. He has just come back from overseas, as the Court was

6 told.

7 THE PRESIDING JUDGE: The point is, I do not think we will need two hours

8 to hear argument on this point either from the Defence or the

9 Prosecution. Maybe we will. In any case, since we have not completed

10 cross-examination with this witness you may release your other

11 witnesses, Mr. Tieger. We will continue and complete Mr. Susic and

12 then we will hear argument on the identification question. If we

13 finish early we will probably find something we can do with that time.

14 MR. KAY: I was hoping to be fairly brief to finish with this witness,

15 your Honour. I was not intending to be a great -- I had hoped to

16 finish before lunch but I was not intending to be much longer.

17 THE PRESIDING JUDGE: We will leave it at that. You may dismiss your

18 remaining witnesses. When we finish with Mr. Susic we will then hear

19 argument and decide how we are going to proceed on this other issue

20 and then adjourn because of the need of this courtroom for the other

21 Trial Chamber. Very good.

22 We will stand in recess then until 2.30.

23 (1.00 p.m.)

24 (Luncheon Adjournment)

25 (2.30 p.m.) PRIVATE

1 THE PRESIDING JUDGE: Mr. Niemann?

2 MR. NIEMANN: Your Honour, at 4 o'clock this afternoon I have another

3 matter that I have to attend to and I wonder if I might be excused?

4 THE PRESIDING JUDGE: Yes. Certainly.

5 MR. NIEMANN: Thank you.

6 THE PRESIDING JUDGE: Mr. Kay?

7 MR. KEMAL SUSIC, recalled

8 Cross-examined by MR. KAY, continued.

9 Q. Mr. Susic, just a few more questions: going back to that time that

10 you say you saw Dusko Tadic whilst you were on the pista at Omarska,

11 can you describe what his appearance was like on that occasion?

12 A. I think I can. On that occasion Tadic was wearing a camouflage

13 military pants and a shirt without a jacket. He had no weapons on

14 him. Several people escorting him were carrying weapons. They were

15 carrying automatic rifles or a pistol at their belt.

16 Q. What about his facial appearance?

17 A. You mean whether he was bearing a beard or not?

18 Q. Yes.

19 A. No, he was not wearing a beard.

20 Q. Was he clean shaven?

21 A. Yes.

22 Q. Just one other matter that I want to ask you. In your time that you

23 have known Dusko Tadic, have you ever seen him riding a motor bike?

24 A. Before the war or?

25 Q. Yes, before the war.

1 THE PRESIDING JUDGE: I see you moving. I will overrule your objection.

2 You may proceed, Mr. Kay.

3 THE PRESIDING JUDGE: Mr. Susic, please answer the question.

4 THE WITNESS: I will. I have not seen Dusko riding a motor cycle.

5 MR. KAY: Thank you very much. I have no further questions.

6 THE PRESIDING JUDGE: Mr. Tieger?

7 MR. TIEGER: No questions, your Honour.

8 THE PRESIDING JUDGE: Very good. I have one question, Mr. Susic, I think,

9 if I can find it. How long were you in Omarska, Mr. Susic?

10 A. I was in Omarska two months and seven days. From May 30th when I was

11 brought there until August 7th when we were transferred to Manjaca,

12 into a military war camp.

13 THE PRESIDING JUDGE: Thank you, additional questions, Mr. Tieger?

14 MR. TIEGER: No, your Honour.

15 THE PRESIDING JUDGE: Mr. Kay?

16 MR. KAY: No, thank you, your Honour.

17 THE PRESIDING JUDGE: Is there any objection to Mr. Susic being

18 permanently excused?

19 MR. KAY: No, your Honour.

20 THE PRESIDING JUDGE: Mr. Susic, you are permanently excused. You are free

21 to leave now.

22 THE WITNESS: Thank you, thank you.

23 (The witness withdrew)

24 THE PRESIDING JUDGE: I had indicated before our recess a few days ago

25 that we would

1 now hear argument on a submission by the Defence to exclude testimony

2 on identification of witnesses who have been shown a photospread by

3 the Prosecution. We have received that submission as well as the

4 attachment, an article by William A. Wagenaar and the Prosecutor has

5 filed its response yesterday evening. Is the Defence ready to

6 proceed?

7 MR. WLADIMIROFF: Yes, your Honour.

8 THE PRESIDING JUDGE: Is the Prosecution ready to proceed?

9 MR. TIEGER: Yes, your Honour.

10 THE PRESIDING JUDGE: Before we hear argument from the Defence, Mr.

11 Tieger, I would like you, please, to explain how you intend to use

12 this photospread evidence. It is still not clear to the Trial Chamber

13 exactly how you will use it. I think we understand that there is a

14 photospread, photos, consisting of 13 individuals -- is it 13?

15 MR. TIEGER: Yes, your Honour.

16 THE PRESIDING JUDGE: That these were then shown to 39 persons. The

17 question becomes if you then show the photospread to an individual, if

18 you did, and that individual made an identification, how do you intend

19 to utilize the identification in court? What are you going to do?

20 What are you going to ask the witness and what reliance will you place

21 on his or her previous selection or non-selection? That would be

22 helpful just to lay the ground work for us. There may be additional

23 questions from Judge Stephen. Go ahead, please.

24 MR. TIEGER: I believe the answer to your question, your Honour, depends

25 on the particular witness involved. So let me discuss the categories

1 of witnesses individually.

2 First of all, with respect to what I might term a classic

3 identification witness, that is, someone who did not know the accused

4 prior to the incident in question and has no way of identifying the

5 accused other than either being shown the accused or shown a

6 photograph of the accused, and in such a case a witness who is then

7 presented with a series of photographs and asked if he or she

8 recognises anyone in those photographs and points to a particular

9 photograph and says, "Yes, that is the person involved in that

10 particular incident", one may then reasonably conclude that that

11 selection is based on the single prior contact with that particular

12 person.

13 In such a case, although we have not discussed it and I do not

14 believe it is the subject of the Defence's concern, there are,

15 presumably, two ways of eliciting that particular selection. One is

16 through the witness and to have him recount his selection of the

17 photograph and the circumstances in which it occurred. The other,

18 presumably, would be to have the investigator who conducted the

19 interview in which the selection was made describe what happened. As

20 I say, it is not my understanding that that has been the focus of the

21 Defence concern. Their issue has been the photographs themselves.

22 THE PRESIDING JUDGE: In your response you, though, have identified -- you

23 focus on the need to make sure that the process itself is fair and

24 cite Biggers, Manson and Denno -- there are a lot of Denno's, I forget

25 the other name. So that is the process.

1 Suppose, though, that a person did know the accused before, do

2 you intend to show the photospread to those witnesses and then how

3 would you use that testimony? Specifically, would you merely want the

4 witness to testify, yes, he knew him before, and then you would

5 enquire of how he knew him and what was the contact? Then you would

6 want the person to identify in the photospread if he or she had made a

7 selection, but would you also want that witness to identify the

8 accused in court?

9 MR. TIEGER: I would think if the Prosecution chose to elicit evidence of

10 the selection of the accused from the photo line-up, although I do not

11 know that -- in any event, yes, I think again both of those factors go

12 to the weight to be given to the particular recognition. I think they

13 are both appropriate. Clearly, one does not preclude the other. I

14 cite as a specific example the witness we had before us earlier who

15 made an in-court identification of the accused whom he knew from long

16 before, and whose previous selection of the accused's photograph from

17 a photo line-up was elicited in cross-examination.

18 THE PRESIDING JUDGE: Is it your position that this second proposition,

19 that is, if someone knew the person before and you have used the

20 photospread and you then want them to testify about their

21 identification during the photospread while they were looking at the

22 photospread, is this identification or is it this recognition or is

23 there a difference? Maybe we are getting too deeply into your

24 argument. Maybe I have asked you enough to lay the ground work, have

25 I?

1 MR. TIEGER: If you wish an answer, your Honour, there is no problem. I

2 think, for discussion purposes in particular it is useful to

3 distinguish between what we are starting to call identification and

4 what may be called recognition. I think the distinction is between

5 someone who did not know the accused prior to the incident and someone

6 who did.

7 We can theoretically encounter, and may well encounter in this

8 case, those points where the two points come close to intersecting,

9 and that is with a witness who knew the accused from before the

10 incident but only on the basis of a small number of contacts. In that

11 case, the Defence, for example, may choose to attack the witness's

12 recognition, and assert that in fact the witness's prior exposure to

13 the accused did not give him a sufficient basis for recognising the

14 accused at the time of the incident. In that case, the witness's

15 selection of the accused from amongst a photo array demonstrates his

16 ability to recognise the accused.

17 JUDGE STEPHEN: Of course, the problem there is very obvious and you are

18 well aware of it, that he may be looking at the photo array and

19 identifying, not based on his view of the accused at Omarska, say, but

20 based on prior knowledge. Everyone understands that and there is no

21 problem about it. It is a factor that affects weight.

22 MR. TIEGER: Correct. I do not want to confuse the two concepts, of

23 course. That is why I think it is useful to separate the two issues.

24 JUDGE STEPHEN: Yes, exactly.

25 THE PRESIDING JUDGE: Very good. Mr. Wladimiroff, do you intend or do you

1 want to offer testimony of Professor Wagenaar?

2 MR. WLADIMIROFF: Yes, your Honour. If it will be possible to hear him at

3 half past five or between 4.00 and half past five.

4 THE PRESIDING JUDGE: Between 4.00 and 5.30?

5 MR. WLADIMIROFF: Between 4.00 and half past 4, sorry.

6 THE PRESIDING JUDGE: Between 4.00 and 4.30?

7 MR. WLADIMIROFF: That is right.

8 THE PRESIDING JUDGE: Thank you. Mr. Tieger, is there an objection to

9 hearing from Professor Wagenaar?

10 MR. TIEGER: Yes, your Honour. As the Court may have noticed in the

11 written response, it is the Prosecution's position that the Defence

12 has raised an issue of the admissibility of the photospread. Our

13 position is that there is no precondition or test which the

14 Prosecution in any jurisdiction is required to meet in order to

15 introduce such evidence. To the extent that weighing factor may

16 exist in some jurisdictions, it largely goes to the question of what

17 is going to be in front of the jury. In any event, it is never

18 reduced to the contention that a specific experimental procedure needs

19 to be conducted before the Prosecution can introduce evidence which is

20 clearly probative.

21 The Defence is obviously free after the admission of such

22 evidence, the introduction of such evidence, to attack the weight to

23 which the court will give the evidence, but that is a whole different

24 matter from the admissibility. The fact that Dr. Wagenaar is involved

25 in this instance is simply because the Prosecution attempted, in good

1 faith, to resolve this issue with the Defence prior to trial. We knew

2 at the time, as we know now, that no such test is required, nor does

3 the photo line-up which is very exacting need such a test to be

4 admissible, but in discussions with the Defence, they advised that we

5 could eliminate this as a trial issue if we submitted to Dr. Wagenaar,

6 about whom we both knew, and he approved it. Because we had

7 confidence in the line-up and because we wanted to resolve this before

8 trial we presented it. He did approve it.

9 That is the status of this matter. If we want to take a step

10 back, we are simply back where we were before, which is that there is

11 no prerequisite for the admissibility of this. The Defence in its own

12 case can call appropriate witnesses to attack the Prosecution

13 evidence, but this evidence should simply be heard and the Defence

14 motion is misplaced.

15 In any event, if any test or any sort of test was required,

16 that test was conducted by Dr. Wagenaar and the test was approved.

17 THE PRESIDING JUDGE: Mr. Wladimiroff, do you have anything to add on that

18 point before you go directly on to your argument?

19 MR. WLADIMIROFF: It is not clear to me, to be frank, if the Prosecution

20 is saying, yes, we do object. As a matter of fact, they only made

21 comments. If I may comment on these issues too. We did discuss with

22 the Prosecution something different, that is a video line-up. That is

23 what we discussed last year. It has been confirmed in the letter of

24 October 28th and I wrote to the Prosecution that Mr. Tadic is inclined

25 to co-operate when the Prosecutor's office will produce a video tape

1 for the purposes of confrontation and possible recognition by

2 witnesses, if the Prosecution is able to meet with the following

3 conditions and, indeed, there Professor Wagenaar appears. That letter

4 ended: Once a list of all requirements for the production of the video

5 tape is completed, the Defence will consult its own experts and may

6 formulate additional conditions before it will take its final decision

7 whether it grants to co-operate or not. That is exactly what we did

8 discuss.

9 THE PRESIDING JUDGE: So what you are saying is there really was no

10 agreement.

11 MR. WLADIMIROFF: No, certainly not. At the very beginning of this year

12 we met again with the Prosecution about identification and we told

13 them that we are considering a video tape ourselves. Then they told

14 us they had this photospread and that is all we knew. It was not

15 discussed in terms of, so what is this photospread about? Can we have

16 a look? How was it done and has it been checked by Professor

17 Wagenaar? Nothing of that kind. We just got information that there

18 was a photospread. As a matter of fact, the first time we saw this

19 photospread was on June 7th. So I think there has been some

20 misunderstanding here. We have discussed extensively the issue of a

21 video line-up but not of a photo line up.

22 The second issue then is the evidence to be given by Professor

23 Wagenaar today I think is very helpful for your Court to understand

24 what is the meaning of this test, since he has tested the test. You

25 have read this letter and you will have noticed that his comments are

1 on the assumption that, for example, the ethnic component is not a

2 problem. But, as a matter of fact, Dr. Wagenaar only responded to the

3 question that was put to him. He did not answer to any other question

4 that might arise after reading the letter which had been raised by the

5 Defence and, therefore, I made this objection, at least I made this

6 submission last week.

7 We feel that it would be very helpful for the Court to

8 understand what has been done with this test, what is this meaning of

9 this test, what are the problems here, and what does research learn

10 about the pitfalls in these kinds of things. We would like to have

11 Professor Wagenaar to explain to you what are the problems here, so

12 you can appreciate the arguments of the Defence as well as those of

13 the Prosecution.

14 THE PRESIDING JUDGE: I do agree that it would be helpful. The question

15 is whether it is helpful now. That is the question.

16 (The Judges conferred).

17 THE PRESIDING JUDGE: By a majority of the Chamber we have determined not

18 to hear Dr. Wagenaar at this time. Let me explain why. You are very

19 correct that his testimony will

20 be very helpful to us because he will be talking about this process,

21 but I am sure you yourself have tried many, many a case where

22 statistics particularly, that is what I recall, have been involved. I

23 have heard, for example, from witnesses from one side about all of

24 these statistics and what is the model and what is a standard

25 statistical deviation, etc., and one side takes the position that X

1 is the standard statistical deviation. Then I hear from the other

2 side. I have never heard of Defence interceding I suppose before the

3 moving party offers the evidence with their expert witness to tell the

4 Court, and to tell the Prosecution or the moving party if it is a

5 civil case, that is this is improper.

6 This is why we have and we allow experts to be excluded from

7 the Rule, so that experts on each side can remain in the courtroom and

8 hear testimony about which they may later comment and give at the

9 appropriate time their testimony with respect to that evidence.

10 The other concern I suppose that does not really fit here, is

11 that you do not have a jury. The problem so often with a jury, as we

12 well know, those of us who come from systems where there is a jury, is

13 that you just cannot -- I almost said you cannot unscramble the eggs,

14 I do not mean that. I mean it is difficult to unscramble the eggs,

15 because what you do in a jury situation is you allow sometimes

16 evidence to come in and then you instruct the jury to disregard that

17 evidence. Of course, we all know, particularly as lawyers, that it is

18 sometimes difficult for them to disregard the evidence, although I do

19 believe juries do a good job. You do not have that problem here.

20 We Judges intentionally and specifically in drafting the Rules

21 of Evidence provide for the opportunity in 89(D) I think it is, 89(D),

22 that a Chamber may exclude evidence if its probative value is

23 substantially outweighed by the need to ensure a fair trial. The

24 intent behind that is that obviously this is probative evidence, but

25 it may turn out that notwithstanding it being probative, we may be so

1 convinced after we hear at the appropriate time from other expert

2 witnesses that this is just totally improper, we may make the

3 determination that we should exclude it, but we do that in an orderly

4 process.

5 I would not want to set the precedent of interrupting a trial

6 of a criminal case so that one party can judge the appropriateness of

7 the opposing party proceeding in a certain way. The way it is

8 typically done, as I say, is to have your expert witness here, listen

9 to what has happened and then, if you wish, at the appropriate time

10 challenge it with that expert testimony, but not to give it early on.

11 Also, although it is helpful to us when it comes early on, it is

12 difficult for us to put it in the proper frame. So that we hear from

13 him, and we hear very scholarly, important pronouncements, but until

14 you are able to actually put it in context, the real value is not

15 there.

16 The other matter is that you have submitted to us with your

17 submission a submission from Dr. Wagenaar. We have now from the

18 Prosecutor something from Dr. Wagenaar. We have before us enough at

19 this point from Dr. Wagenaar. Of course, you are free, should you

20 choose, to challenge this evidence in any way, and that may include by

21 calling an expert witness, which is typically the way that it is done,

22 and then challenge the whole procedure and say it is not

23 scientifically probative.

24 So, I will deny that request but we may proceed with argument.

25 MR. WLADIMIROFF: May I draw your attention to an aspect that struck, at

1 least, the Defence. In a proper conduct of proceedings, once the

2 Judge has made his decision or the court has made its decision, it is

3 very likely that the court will be consistent in any further step of

4 the proceedings not to reconsider its decision. It will keep on the

5 same track. That is what we feel. Just as a blanket example, your

6 court ruled that a dock identification is appropriate in this case and

7 so far we have no reason to believe that you will change your rulings

8 on that.

9 THE PRESIDING JUDGE: If there has been an appropriate foundation laid,

10 yes, sir.

11 MR. WLADIMIROFF: Absolutely. We have heard you saying that and we have

12 appreciated that, so that is your ruling. The next time again you

13 will rule in conformity with that ruling.

14 What we feel here is that if we are going to argue today the

15 value of any evidence to be given on the basis of that test, you might

16 give a ruling on that and maybe later on in our case in-chief you will

17 hear evidence from Professor Wagenaar and we fear that it will be

18 quite difficult for you to reverse what you have decided today. So we

19 rather prefer you to understand what is the real meaning of this

20 evidence if it is put to you.

21 THE PRESIDING JUDGE: There will be no dock identification.

22 MR. WLADIMIROFF: No, but I give it just as an example. Once you have

23 decided for a dock identification, every new witnesses you will

24 accept, if he recognised Tadic in court on the basis of a brief

25 knowledge of Tadic, we may object but you will rule consistently.

1 THE PRESIDING JUDGE: I do not believe that if we hear Dr. Wagenaar at the

2 appropriate time, and Dr. Wagenaar in the role of an expert will

3 testify about the procedure and testify that the procedure utilized by

4 the Prosecution is invalid and should not be given and does not have

5 probative value because it was not conducted in accordance with

6 accepted scientific procedures, if that were to be his testimony and

7 we accept it, and we accept it, then out goes that evidence, out goes

8 that evidence, Mr. Wladimiroff. I assure you of that.

9 MR. WLADIMIROFF: But what, your Honour, if someone is recognised here in

10 court in a dock ID, because he also recognised him on the basis of

11 photographs that have been shown to the witness before he identifies,

12 and what implications of that identification will there be? Then you

13 have given judicial notice that there was an identification and you

14 cannot reverse that.

15 THE PRESIDING JUDGE: No, well, I think this, I think the proper way to

16 handle it is what we have done in the past, and that is we have

17 allowed dock identification if a proper foundation has been laid. It

18 seems to me that what you are asserting now is that the foundation

19 would be an identification through a photospread which may be

20 invalidated by Dr. Wagenaar's testimony as a witness of the Defence.

21 If that is the only foundation, then out goes the dock identification

22 as well. It is very simple.

23 MR. WLADIMIROFF: That is very assuring.

24 THE PRESIDING JUDGE: No, for sure, because we have been very clear to say

25 it is a matter of foundation. The witnesses we have heard from,

1 witnesses who have, you know, gone to school with Mr. Tadic or had

2 other contacts, and being satisfied that there was a sufficient

3 foundation we allow the dock identification. It is not that we are

4 allowing dock identification in principle because, of course, you are

5 correct; you look across and you see a gentleman between two officers

6 and, you know, you do not have to be a rocket scientist to understand

7 that it is either one of these officers or it is Mr. Tadic.

8 So I accept that and I understand your reason for objecting,

9 but we feel compelled to overrule the objection, having found a proper

10 foundation. If the only foundation is something that is demonstrated

11 to us to be improper, then what is based on that foundation goes out

12 of the window as well, I assure you.

13 MR. WLADIMIROFF: I understand the position of the court.

14 I think, your Honour, I wanted to confer with the Defence

15 whether it will be in technical terms wise to argue then what I wanted

16 to argue. I wanted to consider the possibility of dealing with the

17 issue in our case in-chief then, because I think it should be

18 connected with the evidence of Dr. Wagenaar.

19 THE PRESIDING JUDGE: A 15 minute recess, is that enough time?

20 MR. WLADIMIROFF: Yes.

21 THE PRESIDING JUDGE: We will stand in recess for 15 minutes.

22 (Adjourned for a short time)

23 THE PRESIDING JUDGE: Mr. Wladimiroff, would you like to proceed?

24 MR. WLADIMIROFF: Your Honour, we have decided not to pursue the matter at

25 this moment and to keep our submission pending until we will present

1 our case in-chief because we feel we would rather argue the matter

2 with the evidence of Dr. Wagenaar. Therefore, we ask you to keep the

3 matter pending until that date.

4 THE PRESIDING JUDGE: Very good. We have now the submission that you gave

5 us for Dr. Wagenaar and the Prosecution has given us a submission too,

6 but you do not want to stand on your submissions?

7 MR. WLADIMIROFF: We want that submission pending.

8 THE PRESIDING JUDGE: OK, we will take it ---

9 MR. WLADIMIROFF: Under advisement.

10 THE PRESIDING JUDGE: -- we will just keep it under advisement and rule on

11 it after we have had the benefit of whatever other evidence, either

12 evidence you wish to offer, or testimony, or whatever else you wish to

13 offer. Mr. Tieger? I said you could release your witnesses, so now

14 what do we do? Do you have a witness available we could finish with

15 by 5.30?

16 MR. TIEGER: No, your Honour, we do not.

17 THE PRESIDING JUDGE: OK. A couple of matters. The Defence has filed a

18 motion on hearsay just today, I gather, and the Prosecution needs to

19 respond to that within 14 days from today. What we would like to do is

20 to set a hearing on that because you have requested a hearing, I

21 understand, Mr. Wladimiroff?

22 MR. WLADIMIROFF: Yes, your Honour.

23 THE PRESIDING JUDGE: We will have a hearing on that the first day that we

24 are in session again which will be Tuesday, July 16th. So, the

25 Prosecutor is to file a response within 14 calendar days. We will

1 hear this on July 16th at 10 a.m. Are there other matters that

2 counsel would like to bring to the attention of the court at this

3 time?

4 MR. WLADIMIROFF: Yes, your Honour, just a practical matter. I have not

5 checked with my box at this moment but I take it that your decision of

6 7th May will be in that box?

7 THE PRESIDING JUDGE: Yes, it will be by the time you get down stairs if

8 it is not already. Mr. Tieger?

9 MR. TIEGER: No, your Honour.

10 THE PRESIDING JUDGE: Mr. Niemann, may I address a few remarks to you?

11 MR. NIEMANN: Yes, your Honour.

12 THE PRESIDING JUDGE: You recall the other day I congratulated you on

13 using 20 minutes for a witness and I think you estimated that that

14 witness would take to two to three hours I think it was. I appreciate

15 that, although I understand that you need to present your case

16 in-chief efficiently. However, we want it to be done expeditiously as

17 well. So I want just to give you a kind of summary of what I have

18 done, what has been done actually by Miss Featherstone, regarding the

19 witnesses we have heard by count and the number that are left to be

20 heard.

21 For count 1 we have heard, that is for witnesses you have

22 listed who would testify as to count 1 only, we have heard 11

23 witnesses and we have 29 left to be heard. For counts 5 through 11 we

24 have heard one and we have 12 left to be heard. For counts 12 to 14 we

25 have two left to be heard. For counts 15 to 17 we have three left to

1 be heard. For counts 18 to 20 we have one left to be heard. For

2 counts 21 to 23 we have two left to be heard. For counts 24 through

3 28 we have heard three witnesses and we have one left to be heard.

4 For counts 29 through 34 we have heard none and we have six to be

5 heard.

6 So while we are in recess because of the need of the other

7 Trial Chamber to have access to the only courtroom that we have, I

8 would encourage you to take a look at the evidence that you intend to

9 offer, take a look at the witnesses you intend to offer as to the

10 counts, particularly count one -- I understand that a multiplicity of

11 acts are charged and it is persecution in count 1, but you have 29

12 witnesses left to be heard on that and we have already heard -- take a

13 look to see, see what you can do to pare it down, if you can, to what

14 you consider to be absolutely necessary to sustain your burden.

15 I do not mean to be heavy-handed. I know I have asked more

16 than once or twice for the Prosecutor to consider the evidence that

17 you have and perhaps handling it more expeditiously if it is possible.

18 I have heard you say that this is the first case that is being tried

19 and that you have concerns about it, but I will ask that perhaps since

20 you have more than one counsel sometimes it might be nice -- I am not

21 suggesting that you do not --to confer with each other to make sure

22 that you do not have too much overlap.

23 So, having heard that, do you have any remarks or would you do

24 that for me?

25 MR. NIEMANN: Your Honours, we have of course addressed this on numerous

1 occasions among ourselves in an endeavour to pare down the list of

2 witnesses. I think that perhaps can be illustrated by the fact there

3 are two lists: one which is the list we are calling and the other of

4 those witnesses that could be called but they are ones we have

5 sacrificed, in a sense, in an effort to reduce the number. We will,

6 of course, take up what your Honour says and re-examine the position

7 to see whether or not we can reduce the number of witnesses. We do

8 this on an ongoing basis in any event. We will also look at the

9 prospect of keeping the evidence down to its absolute minimum, so that

10 the length of time witnesses take is kept to a minimum.

11 In some instances, your Honours, we certainly take the view

12 that this evidence is very important, very important for the

13 Prosecution case. It is often very difficult when you have a witness

14 that has one central point which is very important and there are other

15 pieces of evidence which are also relevant, it is often difficult, you

16 cannot disband that witness because the witness is important for that

17 point, but it is often difficult to contain the witness to that

18 specific point and simply dismiss at the end of that piece of

19 evidence. This is a problem which obviously occurs from time to time.

20 We are conscious, your Honours, of the amount of time it

21 takes. We are conscious of the number of witnesses. Your Honours,

22 although it is not the biggest case we have presented before this

23 Tribunal, it is very unusual in the sense that most jurisdictions do

24 not normally encounter a case with multiple murders, a multiple

25 variety of types of offences, rapes and serious assaults, which

1 occurred in this case. It is a massive case

2 and massive cases call for a massive amount of evidence to be called.

3 My experience in other jurisdictions is that cases just with 20

4 murders, I know of one that ran for something like eight months. This

5 is a case which is even bigger than that.

6 So we are trying, your Honours, to keep it down but it is not

7 easy. We are trying to be as economical with the Court time as

8 possible, but we will try even harder.

9 THE PRESIDING JUDGE: We looked at one option I guess that you had

10 proposed, and that is additional hours, longer hours, and perhaps

11 hearing the case on Monday. We had indicated that we could not

12 because again we have one courtroom. The other Chamber needs this

13 courtroom on Monday. We need this courtroom on Monday. We have

14 conducted a number of matters in this courtroom while hearing the

15 Tadic case. We now hear testimony I guess of about five and a half

16 hours a day, and the only way for us to extend the hours would be to

17 have two teams of interpreters and we already have six or seven. That

18 would mean that we would have to double that number which would be

19 absolutely astronomical. So there is not too much we can do as Judges

20 to extend it. I am asking you once again to take a look, since we

21 will have this two-week period, take a look to see what can be done.

22 We are patient. Our job as Judges is to sit here and listen, but it

23 is also our job in a sense to direct the parties and to direct them to

24 act in an expeditious and appropriate.

25 JUDGE STEPHEN: Mr. Wladimiroff, can I ask you in relation to this motion

1 on hearsay, you have heard our President say to the Prosecution that

2 they have 14 days with which to respond. I may be misunderstanding

3 the relief you seek, but it seems to me that we could grant the relief

4 you seek and change nothing, because the first item of relief is

5 "refuse to hear hearsay evidence", in effect, and then, secondly,

6 however, "discretion to hear it if it considers

7 its probative value substantially outweighs its prejudicial effect",

8 which is, word for word, Rule 89(D). So I do not see that you change

9 anything by getting the relief that you seek. I just wonder whether

10 it is going to be easy for the Prosecution to respond when your relief

11 is in this form. All I can say is, would you give that some

12 consideration? It may be I misunderstood your application.

13 MR. WLADIMIROFF: I am pleased to do so, your Honour. The Defence takes

14 it that you are not reading our motion in a very cynical way, but

15 simply do not understand what we are heading for. At least, what want

16 is to open the possibility to have the criteria to argue when this

17 balance has to be done, because now on the basis of Rule 89(D) we are

18 not in a position to argue that hearsay is on that balance. In

19 general, each evidence has to be balanced and you accept hearsay

20 evidence, as we appreciate so far. We rather prefer that it should

21 not be accepted unless there are good arguments and reason to do so,

22 and then on the balance of 89(D) you may accept it. So there is a

23 step in between that gives room to us to argue that you should not,

24 because your initial position is not to accept it.

25 JUDGE STEPHEN: I think the very fact that you have said what you have

1 said clarifies the situation as far as I am concerned and may also be

2 of some help to the Prosecution.

3 MR. WLADIMIROFF: I hope so.

4 JUDGE STEPHEN: Thank you.

5 THE PRESIDING JUDGE: I can, if I may just add to that. I am looking back

6 over the evidence, I have not reviewed it, but I do remember really

7 only one, perhaps two,

8 objections that have been made on hearsay by the Defence. One had to

9 do with Mrs. Klipic,

10 I believe who testified, and she was offering testimony about a death.

11 The testimony was that she heard from someone who saw something occur

12 at a camp, and I am not even sure that that person saw something but

13 may have been told by someone else about that. As I recall, the

14 objection was sustained as to anything other than the fact of death,

15 other than the fact that (and you can go back and see) the person was

16 dead, but anything else we did not

17 want to hear. The reason for the ruling really did not relate to

18 hearsay so much, but the fact that it is no longer probative.

19 Probative means that it is supportive of the facts that are asserted.

20 If it is not, then it is not coming in, whether it is hearsay or

21 whether it is some other word that we put. That was one. There was

22 another objection I think that Mr. Kay made because it did involve an

23 identity of Mr. Tadic. I do not recall exactly.

24 MR. WLADIMIROFF: It was the case with the church, you will remember.

25 THE PRESIDING JUDGE: Yes, that is right. That is when we got into the

1 exception as an excited, well, we spoke of it as an excited

2 utterance. Again this all comes from different systems, but the

3 reason why excited utterance is hearsay but is admissible as an

4 exception is that it has probative value, some trustworthiness,

5 because it is assumed that people in that excited manner will not

6 fabricate and that we allow to come in.

7 We do have some time over the recess. You may want to take a

8 look at the transcript and see what you have been dissatisfied with in

9 terms of rulings on the basis of -- I do not want to specify the

10 dissatisfaction, I would limit it to one point, and that has to do

11 with evidence coming in that you would consider not probative, not

12 probative because it is hearsay. If you will do that, then perhaps

13 you can point us to what it is you are talking about, because Judge

14 Stephen is right, as a general matter hearsay evidence is admissible.

15 This is an International Tribunal, three Judges, and believe me it

16 was thoroughly debated as to whether or not hearsay. If I had my

17 druthers the case -- there we go, "druthers", that America saying --

18 might happen differently because of what I am accustomed to and I am

19 accustomed to hearsay evidence not coming in. That is not true in

20 civil systems and that is certainly not true in an International

21 Tribunal where you have three Judges.

22 So I do not want to convince you. I do not know that I can

23 convince you and if you choose to offer evidence I am going to have to

24 convince the other side. But we are listening.

25 MR. WLADIMIROFF: Once again, also in this matter we filed a motion not

1 only reviewing what has been decided so far on those two occasions,

2 but also knowing what may come up with future witnesses. We feel that

3 we should discuss the matter now in order to give structure if you are

4 going to rule next time again.

5 THE PRESIDING JUDGE: Judge Stephen is much quicker than I am and I have

6 not looked at it, but again hearsay evidence in war crimes -- we will

7 look at it. We will look at it. If you are not talking about, if it

8 is not a criticism, a direct criticism of what has happened in the

9 past, but more of a suggestion that we approach matters differently in

10 the future, or certainly in the future, that is fine. But if it is

11 something else, then you need to look at the transcript. I am pretty

12 confident of what we have done thus far and that is, yes, when there

13 is an objection that has been made I think that what has come in in

14 the very few cases where there has been an objection does have

15 probative value. Other hearsay evidence has come in a lot on the

16 policy without objection, but that is background information.

17 So handle it the way you want. Judge Stephen's point was that

18 we certainly do not want the Prosecutor giving us a response saying,

19 well, the Rules say that we can do this. If

20 that is true, then we have not really accomplished too much.

21 MR. WLADIMIROFF: It might be difficult, but we will try to explain that

22 to you after the recess.

23 THE PRESIDING JUDGE: OK. Very good. Then we will adjourn until,

24 unfortunately, until July 16th at 10 a.m.

25 (3.45 p.m.)

1 (The Court adjourned until Tuesday, July 16th 1996)

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