Tribunal Criminal Tribunal for the Former Yugoslavia

Page 438

 1                           Thursday, 17 September 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.05 a.m.

 5             THE REGISTRAR:  Good morning, Your Honours; good morning everyone

 6     in and around the courtroom.  This is case number IT-08-91-T, the

 7     Prosecutor versus Mico Stanisic and Stojan Zupljanin.

 8                           [The witness takes the stand]

 9                           WITNESS:  ROBERT DONIA [Resumed]

10             JUDGE HALL:  Good morning.

11             THE WITNESS:  Good morning, Your Honour.

12             JUDGE HALL:  Dr. Donia, I would first remind you, you are still

13     under your oath.

14             Is counsel ready to continue his cross-examination of Dr. Donia?

15             MR. CVIJETIC: [Interpretation] Yes, Your Honour.  May I begin,

16     Your Honour?  May I begin, Your Honour?

17             JUDGE HALL:  Yes, please.

18             MR. CVIJETIC: [Interpretation] Thank you.

19                           Cross-examination by Mr. Cvijetic: [Continued]

20        Q.   Mr. Donia, yesterday we broke off as we were discussing the

21     relevance of a piece of information that evolved during the course of the

22     work of the Tribunal and that is the number of the casualties in the war

23     in Bosnia and Herzegovina.  Do you recall that we talked about that?

24        A.   Yes.

25        Q.   I am not going to discuss the numbers back and forth with you.

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 1     Nobody would like to do that.  However, I with like to point to the

 2     importance of such a piece of information and how important it is for the

 3     Tribunal, at the beginning of its work, to have such a fact and that all

 4     historical facts are important, including this one, so that the Chamber

 5     could reach adequate and proper decisions, and this is the reason why I

 6     was dealing with the number of casualties.  For example, the first piece

 7     of information that was taken as some sort of basis, and you agreed that

 8     you had heard about that, the figure of 20.000 Muslims killed and

 9     40.000 Muslim women raped, points to the kind of war that was waged in

10     Bosnia and Herzegovina.  However, the second piece of information towards

11     the end of the work of the Tribunal on which the demographers agree, and

12     I have received the exact figures, you know the approximate ones just as

13     I do but now we have the exact figures, 63.000 Bosniaks -- 63.000

14     Bosniaks, 24.000 Serbs, and 7.700 Croats, giving a total figure of

15     97.207 victims, when we break it down to the ethnic structure, they are

16     arranged in order according to the ethnic structure of Bosnia and

17     Herzegovina's population, perhaps not quite exactly but more or less in

18     that order.  All three peoples had civilian casualties of the war.  The

19     Tribunal tried civilian Bosniaks, Croats, and Muslims, and in all

20     indictments and in all judgements all the accused were charged with

21     committing criminal acts against civilians.  So this particular piece of

22     information changes the character and the nature of the war.  This piece

23     of information, among other data, indicates that there was an ethnic

24     civil conflict in this area in which all three peoples suffered losses.

25             My question to you, Mr. Donia, can you confirm one fact for me?

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 1     In this I'm going to call this Bermuda triangle of three peoples, Serbs,

 2     Croats and Muslims, when I say the black Bermuda triangle, I mean the

 3     participation in the war.  In that triangle all possible combinations of

 4     mutual conflicts occurred.  If you permit.  Serbs waged war against

 5     Muslims -- or, rather, Muslims and Serbs against each other, Muslims and

 6     Croats waged war against each other.  You know about that part of the

 7     war.  Croats and Serbs waged war against one another.  Muslims,

 8     supporters of Alija Izetbegovic waged war with the followers of

 9     Fikret Abdic.  Also, Muslims waged war together against the Serbs.

10             I tried to find some more combinations, and I established that

11     the only option is that the Serbs and Muslims did not wage war against

12     Croats and Serbs against Serbs.  They did -- that did not happen.  So are

13     you aware of --

14             MS. KORNER:  I'm so sorry.  Your Honour, I'm really am sorry but

15     I think I'd better say it now, once and once only.  It's not a question,

16     it's long speech giving evidence.  One of your guidelines, I've just been

17     reminded, was the parties are to avoid lengthy, complicated or combined

18     questions.  Please so that I don't have to interrupt again, can I ask

19     Mr. Cvijetic to ask simple, one-fact questions, that's all.

20             JUDGE HARHOFF:  We would agree, Mr. Cvijetic, and certainly it's

21     normally for the witnesses to bring evidence and not the counsel.

22             MR. CVIJETIC: [Interpretation] Okay.

23        Q.   Mr. Donia, do you agree with this combination of conflicts

24     between the parties, that question -- that part of the question at least

25     was short and clear.

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 1        A.   It was not to me.  I would have to go back piece and piece and

 2     see which of that was -- I would agree with and which I would not.  I'm

 3     afraid I don't understand it as a direct question and can't really --

 4     can't really answer it.

 5        Q.   I'm going to divide the question.  Did Serbs and Muslims wage war

 6     against one another?

 7        A.   Yes.

 8        Q.   Did Muslims and Croats wage war against one another at a certain

 9     point during the war?

10        A.   Yes.

11        Q.   Did Croats and Serbs wage war against one another?

12        A.   Yes, mm-hmm.

13        Q.   Did Muslims and Croats wage war together against the Serbs?

14        A.   At times, yes.

15        Q.   Did Muslims and Muslims wage war against one another, the

16     followers of Alija Izetbegovic and the followers of Fikret Abdic, at one

17     point during the war?

18        A.   At several points, yes.

19        Q.   So we have reached the ultimate answer which could have been

20     given right away, but that doesn't matter.

21             Mr. Donia, yesterday we agreed that in history it's happened

22     frequently that a historical fact that was considered to be absolutely

23     accurate later is established to be inaccurate or twisted and so on and

24     so forth.

25             So my question to you is:  Is it possible that after a certain

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 1     period of time has passed, the court or the judgement of history which

 2     you are working on, theoretically the court can base its decision on a

 3     fact that can later be proved as inaccurate or not quite true?

 4        A.   If you're speaking of one fact, I think yes, it is possible that

 5     any body judging anything could mistake one fact at any point in time and

 6     later be -- have that demonstrated not to be the case.

 7        Q.   Okay.  I would like to move to a different topic now.  Mr. Donia,

 8     you don't need to be an expert historian for this but just somebody who

 9     watches television and reads the press regularly for this introductory

10     part of my question.

11             Did you have the opportunity while reading the papers and

12     watching television to hear some well-known public figure, a politician

13     or a figure from show business, music, sports, and so on, an artist

14     denies their own statement that had been published in the press or on

15     television by asserting that the statement was misconstrued by taking

16     parts of the statement out of context and that such a distorted statement

17     was given a completely different meaning than the one intended?  Have you

18     ever come across such things?

19        A.   Yes.

20        Q.   Then probably you know the old journalistic rule that a denial

21     never has the same range as the -- or impact as the initial piece of

22     news?

23        A.   Is your question --

24        Q.   Have you heard of that old journalist rule?  All right.  I'm

25     going to put it simply, but a denial would equal the attempt to pick up

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 1     feathers that were thrown all around from the tenth floor.  I'm just

 2     using this as an illustration to show what a denial is considered to be.

 3     I'm also going to say that a denial occurs after a certain period of time

 4     has passed.  It's not topical anymore, and journalists being rogues can

 5     put that denying on the tenth page, for example, instead of on the front

 6     page.

 7             So analogous to this journalistic theory, in your science one

 8     major historical fact or an event, is it possible to take out specific

 9     incidents or occurrences using a specific methodology and then put these

10     things together in order to form a particular picture or image?

11        A.   Yes.

12        Q.   Mr. Donia, you testified in several cases before this Tribunal.

13     You testified by being issued a specific assignment by the Prosecution,

14     which is quite normal, and then you would be provided with documents in

15     order to reach your conclusion.  Then you would be given an indictment

16     with one or two accused, one or two municipalities, and then would you do

17     your work on that basis.  You would get the same thing in the second

18     case, third, fourth, fifth, sixth, tenth case.

19             Mr. Donia, by dealing with history in this matter, treating it

20     bit by bit, would there be a danger of what we referred to earlier and

21     that is to get a distorted picture of the whole event rather than what

22     would be the result of looking at the event as a whole?

23        A.   I wouldn't agree with your characterization of what I have been

24     asked to do nor what I have done in response to the commissions I've

25     received in the various cases.  In a number of those cases I've been

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 1     asked to do exactly that process that you just described, which is to

 2     place events alleged in the indictment in a much broader context as part

 3     of more general trends or developments within the region.  So I guess I'd

 4     have to say I don't see that problem arising in at least some of the work

 5     that I've done in -- in previous cases.

 6        Q.   Mr. Donia, you did not have the job in any cases before this to

 7     give a general context or overview that was not strictly related to a

 8     particular case.  You were not tasked with providing a general overview

 9     of the -- of the events or to deal with the situation in general without

10     this being related to some particular case.  Is this correct or not?

11        A.   Without it being related to some particular case, yes, that would

12     be the case.

13        Q.   All right.  Well, do you know what the principle et altera pars

14     means?  It's a shortened version of that saying, but do you know what

15     that means?

16        A.   No.

17        Q.   It's the principle which says that one always needs to listen to

18     the other side first, and that is the principle on which the work of this

19     Tribunal is also based, including the methodology of allowing both sides

20     to put forward their views and theories.

21             The Defence has the right to state their counter-arguments to

22     your arguments according to that principle, that one needs to hear the

23     other side too.

24        A.   Is that a question?

25        Q.   What I would like to ask you is:  Can it happen that a Defence,

Page 445

 1     because they are lacking resources, time, or do not believe this

 2     historical context to be relevant, do not take that opportunity and that

 3     you present your views on the basis of what you yourself have and what

 4     the Prosecution has given to you in terms of material?

 5        A.   Could it happen that the Defence -- if I understand your question

 6     correctly, you're asking could it happen that a Defence would not be able

 7     to present a different history?  Yes, it could happen.

 8        Q.   This is just what I wanted to ask.  Very well.  Mr. Donia, I'm

 9     going to finish my introductory part that I indicated, and now I'm going

10     to focus now on specific work of yours.

11             Mr. Donia, it was not your task to make a concrete report for

12     this case; is that right?

13        A.   That's correct.

14        Q.   You did make a number of reports, and we have concluded that the

15     one that is the most general, which would be relevant for all the cases,

16     including this one, from a historical context and not from a perspective

17     of the guilt or innocence of our clients, this work is called

18     "The Origins of Republika Srpska in the Period From 1990 to 1992."  Do

19     you have that work in front of you?

20        A.   I don't believe I do, no.

21             MS. KORNER:  Can I -- Mr. Donia -- Dr. Donia wasn't given any

22     copies of his own reports, just documents that he was going to refer to.

23     So the answer is no, he hasn't, unless the Defence have got a copy for

24     him.

25             JUDGE HARHOFF:  Is the Prosecution in possession of a copy that

Page 446

 1     we can lend to --

 2             MS. KORNER: [Microphone not activated]

 3             THE INTERPRETER:  Microphone, please.

 4             JUDGE HARHOFF:  I think our legal assistant has a copy that can

 5     be made available.

 6             MS. KORNER:  I think in future it would help if the --

 7             THE INTERPRETER:  Microphone, please.

 8             MS. KORNER:  I'm sorry.  In future, if the Defence want a witness

 9     to have a copy of a statement or report, could they notify us and we'll

10     have one in court.

11             MR. CVIJETIC: [Interpretation]

12        Q.   Mr. Donia -- ah, here it is.  Perhaps they do have a copy.  Okay.

13     Now you have a copy in front of you.

14             Mr. Donia, since your work is not divided into paragraphs and so

15     for the interpreters and the benefit of the Chamber, I'm going to refer

16     to the pages in English and in B/C/S.

17             So we are in the introductory part of the report, and that's on

18     page 1 of both the B/C/S and the English, although in the English version

19     it does go on to the next page.  You are explaining the reasons for the

20     break-up of the Yugoslav Federation, which consisted of six republics, as

21     we all know, and the Republic of Serbia had two autonomous provinces too.

22     The attempts by certain republics after the fall of Communism to secede

23     is something that you defined in the first passage of your report as

24     separatism.  However, the attempts of the Serbian leadership, which, as

25     you say, is led by Slobodan Milosevic, you define as hegemony.  So my

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 1     question is --

 2             MS. KORNER:  Your Honour, I'm told by Mr. Smith that the report

 3     is in e-court so that you can have a look at it if the Defence call it

 4     up.  It's 65 ter 10001.

 5             MR. CVIJETIC: [Interpretation] May I continue, Your Honours?

 6        Q.   My question that relates to this relationship between separatism

 7     and hegemony, you define the attempts to preserve Yugoslavia's hegemony.

 8     Does that mean that Abraham Lincoln who attempted to preserve the

 9     federation of the United States of America as hegemony when faced with

10     the idea of the -- attempt to secede by the 13 states of the

11     United States when they tried to preserve slavery in -- from 1861 to

12     1865?

13             THE INTERPRETER:  Microphone, please.

14             MR. CVIJETIC: [Interpretation] Can we see this document?  I'm

15     talking about the introductory part of the report, practically the first

16     page.  Can we please look at that on e-court, because I see that it has

17     not been shown on e-court.

18             This is on page 03082476.  Yes.  This is the cover page.  Can we

19     look at the next page, please.  Can we turn to the next page, please.

20     Very well.  Yes.  We can see it now, and we can follow both the Serbian

21     and the English version.

22        Q.   Mr. Donia, have you heard my question?  Do you remember what I

23     asked?

24        A.   Yes, I did.

25        Q.   [No interpretation]

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 1        A.   Your question was would I describe Abraham Lincoln's efforts as

 2     hegemonic, and no, I would not.  I would point out that I have taken

 3     these two words or concepts from Raif Dizdarevic who was president of the

 4     Yugoslav Presidency at the time, and he was describing two tendencies,

 5     one to strengthen or firm up the federation and the other to weaken it,

 6     and I wouldn't view Abraham Lincoln's efforts to strengthen the federal

 7     state of the United States but, rather, to maintain it.  So the dichotomy

 8     that is positioned here by Mr. Dizdarevic, I wouldn't characterize --

 9     extend that same characterization to Lincoln's efforts in the US.

10        Q.   Very well.  Let's move on to page 2 in B/C/S, and that's still

11     page 2 English.  In English it would be paragraph 2.

12             The sub-heading is "The mobilisation of Serbian nationalism."

13             Dr. Donia, I'll try to move through this section about the

14     Yugoslav crisis more quickly, and please answer me with a yes or no.

15             You quote here the words of Slobodan Milosevic, who says, "Nobody

16     shall beat you."  And that's in the context of Serbian nationalism.

17             If you put this in the context of his entire speech, would it be

18     an attempt to calm down the passions, the condemnation of Albanian

19     nationalism and separatism and the condemnation of police violence

20     against the Serbian people?  Would it be a proper qualification of his --

21     of the tenor of his entire speech?

22        A.   I'm sorry, what -- I didn't understand your question.

23        Q.   Can these words also mean an attempt to calm down the passions

24     and the condemnation of police brutality against Serbian people down

25     there in Kosovo?

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 1        A.   In the context I don't see how that would be a possible

 2     interpretation.

 3        Q.   All right.  I am talking about the broader context, but obviously

 4     we don't agree.

 5             Do you know when the tensions in Kosovo started?  In other words,

 6     to the best of your knowledge, when did the first demonstrations of

 7     ethnic Albanians in Kosovo begin with the demand for Kosovo to become a

 8     republic?

 9        A.   Well, the quest for an independent Albanian state goes back to,

10     say, the 1870s, and those demonstrations occurred periodically over the

11     next hundred years.

12        Q.   All right.  On the same page you say further down:

13              "Six months later, Milosevic was elected president of the

14     League of Communists of Serbia, giving him undisputed control in Serbia."

15             And this is a quotation from an author, Crnobrnja.  Is that

16     correct that's the last line in this paragraph?

17        A.   Yes.

18        Q.   Mr. Donia, such a position in the League of Communists does not

19     exist.  That post does not exist, and Slobodan Milosevic, thus, did not

20     hold it.  Do you know that?

21        A.   No.

22        Q.   All right.  We'll move to page 3 in B/C/S, and I think we're

23     already on page 3 English.

24             Here you discuss demonstrations in Vojvodina.  Do you know who

25     led the protesters in Vojvodina?

Page 450

 1        A.   No.

 2        Q.   If I say that it's Mihajl Kertes, an ethnic Hungarian, was

 3     leading the protests, would it sound strange to you that it would be an

 4     ethnic Hungarian?

 5        A.   Would it sound strange that Kertes would lead those

 6     demonstrations?  No, not at all.  And his ethnicity would not be

 7     relevant.

 8        Q.   If you say so.  I can only say I don't agree, but let's move on.

 9             You mentioned that the authorities in Bosnia and Herzegovina

10     learned of a plan that a grenade should be thrown into Cvijetin causing

11     or disturbing the demonstration and provoking a police reaction.  Where

12     did you get this information?

13        A.   This is -- this is in Raif Dizdarevic's book of memoirs,

14     "Od smrti Tita do smrti Jugoslavije."

15        Q.   Concerning events in Montenegro, you say that again about these

16     demonstrations you are describing, and we are now on page 4 in English,

17     you say that 40 buses and a large number of passenger cars moved towards

18     Montenegro to attend these demonstrations.  Do you know from where these

19     people set out?

20        A.   No.

21        Q.   If I say that they set out from Niksic, a town in Montenegro, not

22     Belgrade, would that mean something to you?  Yes or no?

23        A.   No.

24        Q.   All right.  I'd like to move to page 5 of your report now,

25     paragraph 1.  Towards the end you say:

Page 451

 1             "On the 28th of March, the Assembly of the Republic of Serbia

 2     adopted constitutional amendments that eliminated most of Kosovo's

 3     autonomy within the republic."

 4             Mr. Donia, do you know exactly what it was that the Assembly

 5     enacted that day?

 6        A.   No.  I pretty much said here what I know of those amendments.

 7        Q.   Okay.  I'll just present one fact and you tell me if I'm right.

 8     According to the then-constitution of Serbia, amendments could not happen

 9     without the consent of the two autonomous provinces, Vojvodina and

10     Kosovo.  So these provincial assemblies practically had the right of veto

11     and could block the process of amending the constitution.  Now, this

12     amendment only abolished their right of veto, not the autonomy of Kosovo

13     and Vojvodina which remained intact.  You said you did not have detailed

14     knowledge about this and you were not a constitutional expert, but we

15     will invite one later and deal with the issue.

16             Mr. Donia we're still on page 5.  Here you deal with the

17     nationalism of the Serbian and Montenegrin people, and you say:

18             "By the spring of 1989, Serbian nationalism prevailed in the

19     official government bodies of the republics of Serbia and Montenegro, and

20     the Serbs outside these two republics were constantly still receiving

21     messages of nationalist tenor."

22             THE INTERPRETER:  Could counsel -- could counsel repeat the

23     question, please.

24             MR. CVIJETIC: [Interpretation]

25        Q.   Which people live in Montenegro?

Page 452

 1        A.   That's a question people argue about a lot.  The ethnic

 2     composition, which I take it is what you are asking about, in most recent

 3     times is about evenly divided between those who identify themselves as

 4     Montenegrins by nationality and those who identify themselves as Serbs.

 5     There are also significant numbers of other peoples, principally

 6     Albanians but also Bosniaks and Roma and a few other minority peoples.

 7        Q.   All right.  Concerning protests in Bosnia and Herzegovina, you

 8     say that the authorities in Bosnia and Herzegovina prohibited the display

 9     of nationalist symbols.  We're on page 6, paragraph 2, now.

10             Would the display -- was the display of other ethnic symbols in

11     Serbia prohibited, such as the display of Albanian symbols in Serbia, for

12     instance, at rallies and gatherings?

13        A.   This ban I'm speaking of is -- was for the purpose of this

14     demonstration.  It was not a general ban on display of symbols of any

15     nation or people.  I don't think there were in Yugoslavia at that time

16     any -- any such general bans on the display of those symbols.

17        Q.   Let us go back for a moment it page 5.  You claim that

18     Mr. Milosevic invoked the rights of other ethnicities, and you say that

19     that would become the most common goods.

20             THE INTERPRETER:  Could counsel give a reference, please.

21             JUDGE HARHOFF:  Counsel, the interpretation is asking if you

22     could guide them to the reference in the document where you are, which

23     page and paragraph.

24             MR. CVIJETIC: [Interpretation] Page 5, paragraph one, the last

25     line.  Sorry, second paragraph, the last line.

Page 453

 1        Q.   "And he urged toleration and respect for the rights for other

 2     nationalities, rhetoric that would become a staple in the lexicon of

 3     Serbian nationalism."

 4             What kind of staple are you talking about, Mr. Donia?

 5        A.   What I mean is that it became a standard, routine part of Serbian

 6     nationalist rhetoric.

 7        Q.   All right, Mr. Donia.  We'll move back to page 6 in English.

 8     Let's see which paragraph it is.  It's the third full paragraph.

 9             Here you talk about the Serbian Orthodox Church, which also

10     spread the Serbian nationalist message by moving the earthly remains of

11     Prince Lazar.

12             Do you know what such relics are, and do you know that in

13     Catholic temples the shroud that allegedly covered the body of

14     Jesus Christ is preserved, and the spear that was held -- that was

15     carried through the Crusades by Barbarossa, et cetera, do you consider

16     that a symbol of nationalism, and do you consider the display of symbols

17     of faith and traditional costumes, do you consider that to be the marking

18     of territory?

19             Let me give you a very blatant example.  Here in the Netherlands

20     we see a variety of traditional costumes.  Would all the people wearing

21     them marking their own territory?

22        A.   No, not necessarily.  I think you point out that the specific

23     circumstances and context it makes all the difference in the, let's say,

24     public -- the public theatre associated with the deployment of relics

25     and -- and symbols.

Page 454

 1        Q.   All right.  Let's turn to page 7 in English, paragraph one.  Here

 2     you claim that the exhumed remains did not belong exclusively to Serbs.

 3     Would that mean that Catholic Croats and Muslims were also thrown into

 4     those pits?

 5        A.   My statement in the report is it was unclear, and I would hold to

 6     that.  It wasn't clear to -- at the time that they were thrown in,

 7     necessarily, who those folks were and probably not clear at the time that

 8     they were exhumed.

 9        Q.   Yes, but then you contradict yourself in another paragraph where

10     you say:

11             "Local Serbs often knew of those corpses, and they remembered

12     that those were Serbs who were victims of the Croat slaughter in the

13     Second World War."

14             So the local Serbs knew who those dead people were.

15        A.   Yes, I think that's the case.

16        Q.   We're still on that page.  You characterize those burials as

17     pompous reburials.  Would you then consider the throwing of those bodies,

18     in the first place, a proper burial?

19        A.   No.  The word in English, by the way, is "ostentatious."

20        Q.   Yes, we followed this passage in English.  It's a matter of

21     interpretation.

22             Further down the page, page 7, there's another interesting

23     paragraph.  You discuss the multi-party elections in various republics.

24     Do you know who prevent the holding of Yugoslav multi-party elections

25     into Yugoslav bodies?  Not republic but Yugoslav bodies.

Page 455

 1        A.   Yes.  My understanding was it was a combination of the Slovenes

 2     and Serbs who opposed that taking place.

 3        Q.   Where did this combination of Slovenes and Serbs take place?

 4        A.   Within the discussions in the federal bodies, but I -- more

 5     specific I can't be than that.  I just don't know the specific

 6     discussions.

 7        Q.   All right.  Then you would not agree that it was the Croat and

 8     Slovene separatists, although you deal in your report with the Croatian

 9     and Slovene separatists.

10        A.   To the extent of my knowledge, no.  It was a combination of

11     Slovene leaders and Serb leaders who opposed that.

12        Q.   All right.  Obviously we can only agree to disagree and we'll

13     have to lead further evidence.

14             Well -- we're on page 7 in English, paragraph four.  There you

15     say that the Assembly of Slovenia, in July 1990, made a key step towards

16     independence by adopting the resolution proclaiming the sovereignty of

17     Slovenia.

18             Do you know that the Slovene Assembly actually adopted amendments

19     to the existing Slovenian constitution establishing its independence?

20        A.   They did indeed adopt amendments to the constitution at that

21     time, yes.

22        Q.   Mr. Donia, what do you know about the history of Slovene

23     statehood?  And my question more specifically would be:  Was Slovenia

24     ever a state?

25        A.   Prior to 1991 it was not an independent state, no.

Page 456

 1        Q.   Would it mean something to you if I said it has never been a

 2     state?

 3        A.   I would agree until 1991.

 4        Q.   All right.  Can you then agree with me that its external borders

 5     were the borders of Yugoslavia, not the borders of Slovenia?

 6        A.   Yes.

 7        Q.   Whereas its internal borders dividing it from other parts of

 8     Yugoslavia were administratively established after World War II in 1945.

 9        A.   I don't know what you mean by "administratively established."  If

10     we characterize them as internal borders or boundaries, yes, they were

11     established after World War II by the Tito regime.

12        Q.   Correct.  Finally we agree on something.  Mr. Donia, under the

13     prevailing constitution at the time, was any change in the external

14     borders by unilateral decisions of a republic or province prohibited, and

15     therefore was this act of the Slovene Assembly contrary to the federal

16     constitution?

17        A.   That leads me to an area that I'm not competent to answer in, as

18     I'm not a constitutional lawyer nor specialist on constitution law.

19        Q.   All right.  I asked you this because you deal quite a great deal

20     in your report with constitution issues, but, however, one thing may be

21     indisputable.  Would you agree that the Yugoslav People's Army's job was

22     to protect the territorial integrity, the unity of Yugoslavia and its

23     external borders?

24        A.   Yes.

25        Q.   And you noted that in your report.  I underlined that.

Page 457

 1             Are you aware that unconstitutional change of external borders of

 2     Yugoslavia or secession was qualified in the Criminal Code as a serious

 3     crime?

 4        A.   That's a question of constitutional interpretation that I

 5     can't -- I'm not qualified to answer.

 6        Q.   All right.  We'll move on.  Can you tell me what you know about

 7     the history of Croatian statehood?  Had Croatia ever been a state?

 8        A.   Yes.

 9        Q.   Tell us when?

10        A.   From about 800 to -- it remained a state until 1102 at the very

11     earliest, and certain elements of its statehood, specifically the diet,

12     actually survived until 1918.  It then became a state again in 1941 until

13     1945, or a state under the name of Croatia existed during that period.

14        Q.   This statehood between 1941 and 1945 is something I'll deal with

15     later.  Let me ask you this:  Studying the history of Yugoslav peoples,

16     did you come to the conclusion that in both previous states of Yugoslavia

17     Serbs invested their statehood and suffered the greatest losses in order

18     to create that joint state?

19        A.   No.

20        Q.   You would not agree?

21        A.   No.

22        Q.   Very well.  Do you know, Mr. Donia, that the Federal

23     Constitutional Court proclaimed the Slovene amendments unconstitutional,

24     and if you know that, why did you not write that in your report?

25        A.   Do I know it?  Yes.  There's actually a book that treats it by

Page 458

 1     Bob Hayden.  I generally didn't include in the report the Constitutional

 2     Court pronouncements on various acts, I think with perhaps one exception,

 3     mainly because I didn't find them of much consequence in the actual

 4     development or evolution of events.

 5        Q.   All right.  We're still on the same passage.  You deal with

 6     multi-party elections, including in Croatia.  That's page 8,

 7     paragraph two.  And you say:

 8             "Out of the total of 356 seats, 206 were won by Croatian

 9     nationalists, and out of the 24 Serb MPs, only 5 were from the national

10     ticket, meaning the SDS."

11             Is this quotation correct?

12        A.   I believe so, yes.

13        Q.   And you would agree with the conclusion --

14             MS. KORNER:  I think the problem is that the pages that

15     Mr. Cvijetic is referring to don't appear to be -- I've been having some

16     difficulty in following which paragraph he's quoting in English.  I think

17     Dr. Donia's having the same.  And I think Dr. Donia needs to be shown the

18     actual quote in English, even though he does speak the language, if he's

19     going to agree or disagree that's what he said.

20             MR. CVIJETIC: [Interpretation] Your Honours, Mr. Donia found this

21     piece of information very quickly that I referred to.  I said it was in

22     passage two on page 8.  I cannot define it any more specifically than

23     that.

24             May I continue, Your Honours?  And I'm going to try to be even

25     more precise when I'm citing the passages in English.

Page 459

 1        Q.   You're talking about the elections in Serbia and Montenegro,

 2     page 8, one-but-last paragraph.  And you speak about the address by

 3     Mr. Slobodan Milosevic.

 4             Does it not seem to you, Mr. Donia, that you ascribed the

 5     election campaign address by another leader of a Serbian party, the

 6     Serbian Renewal Movement, Vuk Draskovic, with that of Slobodan Milosevic?

 7     I can remind you of what Vuk Draskovic said.  He used extreme nationalist

 8     rhetoric claiming that:

 9             "The Serbian borders lay where the Serbian graves lie."

10             THE INTERPRETER:  Could the counsel please slow down.

11             MR. CVIJETIC: [Interpretation] I apologise.  I'm going too fast.

12        Q.   "And his calm rhetoric has contributed to his victory in those

13     elections."

14             In other words, in December 1990, in Milosevic's public addresses

15     there was not any trace of nationalism.  Do you agree with my assertion?

16        A.   No.

17        Q.   Very well.  Mr. Donia, is the data correct that only in Serbia

18     and Montenegro the victories were not claimed by parties with a

19     nationalist or ethnic tone?

20        A.   There were some local areas in which non-nationalist parties

21     prevail even in Bosnia-Herzegovina and in -- in other republics as well,

22     and the victories of the nationalists were -- they were not uniform

23     across the other republics of Yugoslavia.

24        Q.   Mr. Donia, can we move on?  Page 9, paragraph three, last line.

25             My question is:  Did you have the Constitution of Serbia of the

Page 460

 1     28th of September, 1990, in your hands?

 2        A.   No.

 3        Q.   Then I cannot ask you about -- or perhaps I can ask you.  How do

 4     you draw the conclusion that you draw in this last line?

 5        A.   Well, as you've -- as you can see, I have footnoted and quoted

 6     Robert Hayden who has studied that constitution and the whole question of

 7     constitutional law.  He's an attorney and an anthropologist of law.  I've

 8     relied on him for this information.

 9        Q.   So this is not your conclusion then.

10        A.   It is my conclusion based on his study of the question.

11        Q.   I am going to put the opposite assertion to you, that these

12     changes did not abolish the autonomy of Kosovo or Vojvodina, but they

13     actually kept the autonomy that they had under previous constitutions

14     from 1973 [as interpreted] and also 1969.

15        A.   That's wrong.  The autonomy that Kosovo and Vojvodina was firmly

16     established in the 1974 Constitution, and taken away, withdrawn in the

17     constitutional amendments and ultimately the changes that we're talking

18     about in 1990.

19             MR. CVIJETIC: [Interpretation] We would just like to ask for a

20     correction to the transcript.  I had said 1963, not 1973.

21        Q.   Let us continue, Mr. Donia.  On page -- let me just find the

22     English version.  Page 10, paragraph three, you deal with the addresses

23     of Mr. Jovan Raskovic.  We all know this was a Serb who was leading the

24     Serbs in Croatia.  Is that correct?  And you assert that in spite of the

25     insightful rhetoric, he limited his demands to cultural autonomy for the

Page 461

 1     Serbs of Croatia and resolutely opposed territorial separatism.

 2             So I need to ask you whether this conclusion is opposite to the

 3     footnote on page 39 where Mr. Raskovic literally says:

 4             "We are not going to be creating another Serbian state in the

 5     territory of the Republic of Croatia.  This is being imputed to us.  We

 6     do not want to have a Serbia in Croatia.  We just want the autonomy and

 7     sovereignty of a Serbian ethnic identity."

 8             Mr. Donia, do you know what the word "sovereignty" means?  That's

 9     the specific question.

10        A.   Let me answer one question at a time, if I may.  Your question

11     was:  Is there a contradiction?  And my answer is no.  There -- I don't

12     see a contradiction between what you just quoted from page 39 and the

13     statement that Raskovic favoured a cultural autonomy.  That was a

14     consistent position of his, albeit stated with a great flourish and a

15     great deal of rhetoric.  And I -- to my knowledge, it never changed.

16             As to the question of what "sovereignty" means, I think

17     "sovereignty" means different things to different people, and I couldn't

18     give you the dictionary definition the world, but it clearly assigns to a

19     polity a primary position in decision-making about at least some of its

20     own policy matters.

21        Q.   Very well.  Do you know that the word was first used by

22     Jean Bodin in his work six books about state, and this is where he gives

23     the first definition of that word?

24             All right.  If you're not aware of that, may I continue?

25        A.   Certainly.

Page 462

 1        Q.   Okay.  Okay.  All right.  We're now on page 11, paragraph four.

 2     You assert here that Milosevic and Borisav Jovic agreed about the

 3     proposal to expel Slovenia and Croatia from the Yugoslav Federation.  You

 4     also quote from Jovic's diary, but when you read the diary itself, you

 5     can see that only the -- this has to do -- that only members of the

 6     Presidency of Croatia and Slovenia be excluded from ruling on a specific

 7     issue, not that Slovenia and Croatia be expelled.  Do you see the

 8     difference between those two things?

 9        A.   I certainly see the difference.  I would have to go back to the

10     diary to see if that is the exact point that -- that was being made

11     there.  I'm sorry, I don't have the B/C/S in front of me, so I couldn't

12     do that.

13        Q.   All right.  All right.  Let us move to page 14, paragraph two,

14     please.  You deal with conflicts in Borovo Selo, that incident which you

15     claim was caused by the men of Mr. Vojislav Seselj.

16             Mr. Donia, the proceedings against Mr. Seselj are underway and

17     there is a war being waged in the courtroom in relation to whether this

18     is true or not.  Don't you think that it is too early for you to be

19     drawing conclusions on a case that is still underway?  And you are also

20     citing different sources.  Are they reliable enough for you to be able to

21     reach the conclusion that you reach?

22        A.   Well, that's two questions at least.  I was -- when I wrote these

23     words, I don't believe Mr. Seselj was in the midst of a court proceeding.

24     In fact, I believe he was not in -- not in the custody of the ICTY.  So I

25     would only say the disposition of that matter in the court would be of --

Page 463

 1     of value and interest in determining the full true story of -- or more

 2     complete story of what happened in -- in Borovo Selo.

 3             The account that I've given is based in part on the journalist's

 4     viewing of Belgrade television account of the event, and I would try to

 5     avoid the very controversial allegations that have arisen surrounding

 6     Borovo Selo and simply stick to the fundamental basic facts of what

 7     happened as it was reported at the time.

 8        Q.   Mr. Donia, since you say that you're not an expert on

 9     constitutional matters, then on page 14, this conclusion of yours that

10     Milosevic and Bulatovic were in favour of strengthening the current

11     constitutional order, I wanted to ask you, did you look at constitutional

12     projects from that period?  You said you did not, so I'm going to abandon

13     that question and move to page 14, paragraph five now.

14             You interpret here the conversations between Mr. Tudjman and

15     Mr. Milosevic in Karadjordjevic, and you also quote Mr. Milic on this.

16     It says:

17             "Mr. Milic, do you know that those are minutes of those talks?"

18        A.   No.

19        Q.   In order to make a serious historical conclusion on this, would

20     it be a useful exercise to study those minutes, do you think?

21        A.   Yes.

22        Q.   We're now on page 16, paragraph three.  Page 16, paragraphs two

23     and three.  You quote the words of Stipe Mesic here where he complains

24     that immediately after the elections for the president of the Presidency

25     and until the end, no one from the military leadership came to see him

Page 464

 1     when he was the president of the Presidency.  Do you know why this was?

 2        A.   Well, I think I answered that question in the next sentence here

 3     and quoting General Kadijevic who said, "We deliberately treated him that

 4     way."

 5        Q.   Why?

 6        A.   Mesic did not represent a direction that the JNA Supreme Command

 7     or high command wanted to go.

 8        Q.   Mr. Donia, can this be linked with his statement that he was

 9     going to be the last president of Yugoslavia?

10        A.   Certainly.  Yes.

11        Q.   And the Yugoslav People's Army was entrusted with preserving that

12     state, that Yugoslavia.  Is that perhaps the cause of the conflict?

13        A.   It's one cause.

14        Q.   Very well.  Now that we're on the topic of Mr. Mesic, do you know

15     anything about his statements about transferring the war from Croatia to

16     Bosnia and Herzegovina, that he openly announced that Croatia intended to

17     transfer the war from Croatia to Bosnia and Herzegovina in order to

18     unburden or to lift the burden on the Croatian fronts?

19        A.   No.

20        Q.   You don't know about that statement of his.  Do you know anything

21     about the involvement of Croatia in the war in Bosnia and Herzegovina

22     through the direct participation of the Croatian armed forces and

23     assistance in manpower and weapons to the Muslim forces?

24        A.   Yes.

25        Q.   Would we agree, and you wrote that in your report, that the first

Page 465

 1     major war crime against the civilian population took place in the village

 2     of Sijekovac, and it was committed by Croatian forces who killed

 3     civilians in that Serbian village?

 4        A.   That's not what I wrote.  I did report on -- in my paper on the

 5     attack on Sijekovac, but I also, at least if not this report, elsewhere

 6     reported on the attack on the village of -- in Herzegovina in

 7     October of 1991 by the JNA.  I'm sorry, I'm forgetting the name of the

 8     village.  Ravno.  Which I viewed as the first serious armed incursion

 9     against civilians in Bosnia-Herzegovina from outside the republic.

10        Q.   Very well.  I'm just going to remind you that I took this from

11     your testimony in the Brdjanin case, and it was in response to a question

12     by my learned friend Mr. Ackerman.  The Trial Chamber can confirm that.

13             In any case, it's about an awful -- an awful crime which was

14     widely reported on television, and there is a lot of footage about that.

15     So I guess we would agree on that.

16             MS. KORNER:  If this was from the Brdjanin testimony, could we

17     have the reference, please, to the page number and the day of the

18     transcript.

19             MR. CVIJETIC: [Interpretation] Your Honours, I can provide that

20     later.  Since I don't know English, I'm listening to the transcripts from

21     Mr. Donia's testimony, so I wrote the transcript references, and we can

22     confirm that later.

23             MS. KORNER:  I appreciate in a Mr. Cvijetic doesn't read, speak

24     English, but others on his team do, and if assertions are going to be

25     made to a witness, it's important that we have the context in the sense

Page 466

 1     of where we can find it so that we can check it's an accurate

 2     representation.

 3             MR. CVIJETIC: [Interpretation] Your Honours, we will easily

 4     clarify this with Mr. Donia.

 5        Q.   Would you agree, Mr. Donia, that a major war crime was committed

 6     in the village of Sijekovac against Serb civilians by Croatian forces?

 7        A.   Yes.

 8        Q.   That is my final question there.  Mr. Donia, I'm now going to

 9     move to page 17 of your report, and you have a heading there, "The

10     Bosnian Context."  Does that imply, Mr. Donia, that that is also the

11     Herzegovinian context?

12        A.   Yes.

13        Q.   Thank you.  You cover the formation of the party established by

14     the then-prime minister Mr. Ante Markovic, and that he decided to form

15     the party at Kozara; is that correct?  This is page 19, paragraph two.

16     And you place that in the context of major sacrifices that were made in

17     that area.  So before that I would like to ask you when did Mr. Markovic

18     form that party in relation to the elections in Croatia?  Was it before

19     the elections or after?

20        A.   Well, it was founded after the elections in Croatia.

21        Q.   Would you agree with my assertion that Mr. Ante Markovic wanted

22     to avoid or did not wish to interfere with Mr. Tudjman's victory in

23     Croatia and wanted to rally the Croatian voter base in Bosnia in order to

24     assure a victory for them there?

25        A.   I don't -- I don't know.  I don't have the information to agree

Page 467

 1     or disagree with your assertion.

 2        Q.   Very well.  Mr. Donia, I think --

 3             MR. CVIJETIC: [Interpretation] Your Honours, it's time for a

 4     break now, is that correct?

 5             MS. KORNER:  Your Honours, just before we do break --

 6             THE INTERPRETER:  Microphone, please.

 7             MS. KORNER:  -- can I just remind again Mr. Cvijetic of

 8     guideline 17:

 9             "The parties are to avoid paraphrasing previous testimony or

10     statements of witnesses but shall quote the directly relevant passage and

11     indicate the exact page numbers and relevant lines."

12             MR. CVIJETIC: [Interpretation] Your Honours, I withdrew that

13     question.  I rephrased it, and you realised that the whole matter was

14     corrected; right?

15                           [Trial Chamber confers]

16             JUDGE HALL:  Before we take the adjournment, I just wish to

17     remind counsel that Dr. Donia, because of his previous commitments, that

18     you would only have an hour with him when we return at quarter -- quarter

19     of 11.00.

20                           --- Recess taken at 10.26 a.m.

21                           --- On resuming at 10.47 a.m.

22             MR. CVIJETIC: [Interpretation] Your Honours, before we begin, I

23     would kindly ask the Registrar could check how much time I've already

24     spent out of my total allocated time.

25                           [Trial Chamber confers]

Page 468

 1             JUDGE HARHOFF:  You have spent one hour and 30 minutes.

 2             MR. CVIJETIC: [Interpretation] Yesterday and today together,

 3     which means that for this cross-examination I have how much time left?

 4     Two hours and 30 minutes; correct?

 5             JUDGE HARHOFF:  I don't think that a final ruling has been made

 6     on the extent of time for this, because we knew that we wouldn't complete

 7     today anyway, but we said yesterday that it would be somewhere between

 8     three and four hours.

 9             MR. CVIJETIC: [Interpretation] I would be very grateful if you

10     would give me an indication, because today I cannot finish at any rate,

11     and when Mr. Donia is recalled, I would like to know how much time I

12     would have.

13             JUDGE HARHOFF:  You will be given our ruling as soon as possible,

14     but I suggest that we spend the time now in getting as far as we can with

15     Dr. Donia, and then when Dr. Donia has left this morning, we still have

16     some time for procedural matters, and we'll get back to it by then.

17             MR. CVIJETIC: [Interpretation] Okay.

18             JUDGE HARHOFF:  So hurry up and get on with the ...

19             MR. CVIJETIC: [Interpretation]

20        Q.   Mr. Donia, I would like to move to page 20 -- 21, 21 in English.

21     Last paragraph.

22             This is about the decision of the Constitutional Court which

23     judged that the Serbian National Council is an illegal body usurping the

24     constitutional authority of the constitutional government.

25             Mr. Donia, you dealt with this issue, and from the Constitution

Page 469

 1     of Bosnia and Herzegovina, the council of peoples was abolished.  That

 2     exists in many multi-ethnic communities.  There is a council in which all

 3     the various ethnicities are equally represented, and the mechanism of

 4     voting prevents out-voting in matters of vital national interest.  You

 5     deal with this and you say that this body after that date did, in fact,

 6     no longer exist.  Is that correct?

 7        A.   I believe you misinterpreted what I wrote here.  I wrote that the

 8     Constitutional Court ruled the Serbian National Council, which was this

 9     body that was proclaimed by Karadzic on October 13, 1990, as a purely

10     Serbian body to be unconstitutional, and then that it referred the issue

11     to the -- or to the Bosnian Assembly for further action, and this

12     self-proclaimed or Karadzic-proclaimed body really never really

13     functioned in Bosnia, whereas its counterpart in Serbia did.

14             I wasn't speaking here about the actual Chamber of Peoples of the

15     Assembly of Bosnia-Herzegovina but, rather, this body that was proclaimed

16     by Karadzic and never really -- there was never any life breathed into

17     it.

18        Q.   Correct.  And I asked you only in that context, because you did

19     deal with the issue of the absence of the Chamber of Peoples from the

20     Bosnian Assembly in your report.

21        A.   What's the question?  What is your specific question?

22        Q.   My question was the existence of such a chamber in multi-ethnic

23     communities, in parliaments, is something quite usual, especially when

24     vital national interests and issues of vital national interests are voted

25     on.  Is that correct?

Page 470

 1        A.   Frequent but I don't know that it's the norm for multi-ethnic

 2     societies.  I just really don't know how many societies that you would

 3     call multi-ethnic actually have such a Chamber of Peoples.

 4        Q.   Very well.  But you will admit that the existence of such a

 5     chamber ensures a solid mechanism for protecting the vital national

 6     interest of each people?

 7        A.   It can function that way.

 8        Q.   I'll deal briefly with page 22, paragraph two.  This is the time

 9     of elections in Bosnia and Herzegovina.

10             At multi-party elections in Bosnia and Herzegovina, mainly

11     nationalist parties took part; right?

12        A.   Are you reading a passage?  I'm not finding --

13        Q.   No, no.  I'm -- this is just an introductory remark, an

14     introduction to a question that will have to do with paragraph two on

15     page 22.

16             Three nationalist parties appeared.

17        A.   More than that.  There were total of, I think, 62 parties, of

18     which many were nationalist in orientation and a good number were either

19     non-nationalist or anti-nationalist.

20        Q.   But nationalist parties were predominant.

21        A.   In the outcome of the election that would be the case.

22        Q.   At those multi-party elections people also voted for the

23     Presidency of Bosnia-Herzegovina; correct?

24        A.   Yes.

25        Q.   The Presidency consisted of two representatives of each people,

Page 471

 1     and there was a possibility for electing one member of the category

 2     called "Others"; correct?

 3        A.   Yes.

 4        Q.   And now let's go back to paragraph two on page 22.  You mention

 5     Ejup Ganic, who entered the Presidency as a representative of this

 6     category "Others."  My question is how did he declare himself in terms of

 7     ethnicity at those elections?

 8        A.   He didn't declare himself by ethnicity for the election.  He

 9     entered as a candidate in the category of "Other" on the grounds that he

10     had declared himself a Yugoslav in 1981.

11        Q.   And that's the point of my question.  He declared himself as a

12     Yugoslav.  Do you know how Ejup Ganic declared himself during the war?

13        A.   I assume he declared himself as a Bosniak.

14        Q.   Bosniak Muslim.  At that time, in fact, it was Muslim, because

15     the category of Bosniak had not yet been introduced.

16        A.   Well, the category of "Bosniak" was formally adopted by the

17     Bosnian Muslims in September of 1993, so when I say "Bosniak," I'm really

18     saying the same thing as Bosnian Muslim prior to September 1993.  That's

19     correct.

20        Q.   Well, how, then, do you interpret the fact that somebody who

21     declared himself as a Yugoslav and comes into the category of "Other"

22     goes back into the category of "Muslim" during the war?  Does that mean

23     that he originally lied about his identity?

24        A.   No.  He declared himself, as many people did, in the census of

25     1990 -- 1981 as a Yugoslav, and from 1981 to 1991, if you look at those

Page 472

 1     census results, the number of people who declared themselves as Yugoslavs

 2     declined considerably.  People, in other words, shifted their sense of

 3     identity, their national identity, and there is no reason to believe that

 4     he was lying in 1981 anymore than those other people were who underwent a

 5     shift of identity in their own feelings.  I tried to make that point in

 6     the paper that I had written for the Karadzic case that this is a --

 7     national identity is, in fact, a contingent element.

 8             So my answer to your question is, no, I don't believe he lied.

 9        Q.   Mr. Donia, I suppose you wouldn't agree, then, with my theory

10     that it was an election swindle.  Mr. Ganic changed this identity very

11     quickly.  He enters the Presidency as a representative of "Others" and

12     then soon thereafter declares himself as a Muslim and enters the SDA

13     party.  You wouldn't agree, would you, that he deceived the electorate?

14        A.   You're correct, I do not agree.

15        Q.   The law on political parties of 1990 allowed multi-party

16     organisation in Bosnia and Herzegovina after a long period of one-party

17     rule; correct?

18        A.   Yes.

19        Q.   That law prohibited the establishment of parties with nationalist

20     platforms and symbols that would rally only members of one people;

21     correct?

22        A.   Yes.

23        Q.   Do you know who was -- sorry.  Do you know that the

24     Constitutional Court declared -- do you know that the Constitutional

25     Court of Bosnia and Herzegovina declared that law unconstitutional?

Page 473

 1        A.   I don't believe that's quite a correct characterization of the

 2     court's decision, but the effect of their ruling was to give a green

 3     light to the organisation of parties based on religious and national

 4     grounds.

 5        Q.   Who was the -- the president of the Constitutional Court?

 6        A.   Kasim Trnka.

 7        Q.   A Muslim.

 8        A.   Yes, he was.

 9        Q.   Did Mr. Kasim Trnka later become a prominent member of the SDA

10     party, Izetbegovic's party?

11        A.   Yes, he did.

12        Q.   Mr. Donia, at presidential elections where members of the

13     Presidency were to be elected, Mr. Alija Izetbegovic did not win the

14     greatest number of votes, did he?

15        A.   No.

16        Q.   What about Fikret Abdic?

17        A.   Yes, he did.  He won -- he won the most votes in -- overall, and

18     in the category, obviously, of "Muslims."

19        Q.   How did it come about that Alija Izetbegovic became president of

20     the Presidency rather than Fikret Abdic?

21        A.   As I testified yesterday, formally Izetbegovic was selected by a

22     vote of all members of the Presidency.  Prior to that vote, the three

23     national parties reached an agreement which resulted in him being elected

24     president, and the SDA itself elected -- or selected Izetbegovic to be

25     the SDA's candidate for the president of the Presidency.

Page 474

 1        Q.   Would you agree with my idea that Fikret Abdic conceded this

 2     position under serious threats by other members of the SDA party?

 3        A.   No.

 4        Q.   All right.  Would you agree with the theory that the course of

 5     historical events in Bosnia and Herzegovina would have been entirely

 6     different had Fikret Abdic been member -- been president of the

 7     Presidency?

 8        A.   I don't know.

 9        Q.   Did you answer in the affirmative to the same question when

10     testifying previously in a different case?

11        A.   It's possible.  I don't -- I don't recall having answered that

12     question previously, but it -- I'd have to know.

13        Q.   I will not insist any further until I'm able to provide a

14     reference for your testimony in the Brdjanin case, and then I will come

15     back to it.

16             Mr. Donia, you continue to discuss regionalisation.  That's

17     page 21, paragraph two.  The first full paragraph, in fact.  Can you see

18     this?  It's 23 in English, actually, and the sub-heading is

19     "Regionalisation."  Twenty-three.

20             Can you see it now?  May I continue?

21        A.   Yes.

22        Q.   Are you aware that inter-municipal co-operation and association

23     was something that was allowed by the Constitution of Bosnia and

24     Herzegovina?

25        A.   Yes.

Page 475

 1        Q.   Is it true that both Croats and Muslims had their own versions of

 2     regionalisation?

 3        A.   Well, there were -- there were regional associations established

 4     and in existence in 1990, but they were not ethnic or national in

 5     composition.

 6             MR. CVIJETIC: [Interpretation] Your Honour, for the sake of

 7     expediency, I will go through Mr. Donia's report and tender certain

 8     things into evidence later, or perhaps I should tender 1D003801 -- 3810.

 9     1D003810.

10             JUDGE HARHOFF:  And what is that exactly?

11             MR. CVIJETIC: [Interpretation] That's one document of the SDA

12     party on the establishment of a separate municipality within Banja Luka,

13     populated mainly by Muslims.

14             I don't know if you -- if this document has been called up.  It's

15     in e-court.  Yes, that's it.

16             MS. KORNER:  Sorry, just a moment.  I -- we were given yesterday

17     a bundle of documents from the Defence, but I don't see one that's

18     1D003810.

19             MR. CVIJETIC: [Interpretation] We know it's in e-court because it

20     was on the screen a moment ago.

21             MS. KORNER:  I'm sorry, Your Honour.  I've spotted it.

22             MR. CVIJETIC: [Interpretation] May I continue?  That is the

23     document.  It's on the screen now.

24        Q.   Mr. Donia, can you see the document?

25        A.   Yes.  My affection for e-court grows by the moment.

Page 476

 1        Q.   There are other electronic dinosaurs.  You're not the only one.

 2             So you see the document.

 3        A.   Yes, I do see the document, mm-hmm.

 4        Q.   Does it confirm what you said a moment ago, that there were

 5     instances of regional organisation on all sides?

 6        A.   That's not what I said a moment ago.  I said there were regional

 7     associations in existence that had been created in the 1970s and before

 8     that were in existence in 1990 but were not national or ethnic in

 9     character.

10             The document that you're showing me validates what I've known

11     about for some time and is referred to in many other documents, which was

12     this rather fleeting attempt of the SDA to form a separate municipality

13     within Banja Luka.  I believe there was also an effort to establish one

14     in the Sarajevo area.  There were a few isolated instances of forming

15     separate municipalities by -- by Muslims.  But this was not

16     regionalisation.  This was a different phenomenon than you asked about.

17        Q.   Okay.  Okay.  I will lead evidence on that.

18             MR. CVIJETIC: [Interpretation] May I tender this now as a Defence

19     exhibit?  Our number is D13.

20                           [Trial Chamber confers]

21             JUDGE HALL:  Yes.

22             THE REGISTRAR:  Exhibit 1D1, Your Honours.

23             MR. CVIJETIC: [Interpretation]

24        Q.   Mr. Donia, I'll show you another document for -- 1D002854.  It's

25     on the screen now.

Page 477

 1        A.   Yes.

 2        Q.   We see that this is about Herzegovina Regional Community and the

 3     Travnik Regional Community under the Croatian Democratic Union.  Do you

 4     know about the existence of this regional community?  Are you aware of

 5     this?

 6        A.   Yes.

 7        Q.   What is of interest to me here are the dates.  The previous

 8     document was September 1991, and this one is dated 12 December --

 9     12 November 1991.  So these are not the old regional communities.  These

10     are some new regional communities.

11        A.   Yes.  This was part of several associations of municipalities

12     that were proclaimed -- I thought it was the 9th of November, 1991, by

13     Mate Boban and the separatist wing of the HDZ of Bosnia-Herzegovina, and

14     clearly under the influence of Franjo Tudjman and the Zagreb leadership

15     of the HDZ.  I've written about this in previous reports for other cases.

16        Q.   Very well, Mr. Donia.  You've just answered -- you've just

17     anticipated my next question.  There were communities established based

18     on the national criterion; correct?

19        A.   Yes.  There were communities established by Serbs and Croats on

20     the national basis.

21        Q.   Aren't you mistaken?  I showed you two documents, one about a

22     Muslim regional community and another about a Croat regional community.

23        A.   I may have missed it, but I saw nothing in the document that you

24     showed me suggesting a Muslim regional community of municipalities, which

25     is -- but then what you -- you've been asking me about.  The document

Page 478

 1     referred only to the -- as I -- as I recall -- or what I saw, referred to

 2     the proclamation of a separate municipality, Banja Luka-Stari Grad, and

 3     not an association of municipalities as a regional phenomenon.

 4             JUDGE HARHOFF:  Can I just ask a clarifying question, because I

 5     think you mentioned that this was attempted in Banja Luka and also in

 6     Sarajevo.  And so my question would be:  Did any of those attempts

 7     actually succeed?  Were any Muslim municipalities ever created in either

 8     Banja Luka or Sarajevo?

 9             THE WITNESS:  Neither of those ever came to life in any

10     significant way.  The one that did ultimately was formed and had actually

11     a significant role was the Western Bosnia association around Bihac, which

12     was headed by Fikret Abdic.  That was created some months later than

13     the -- after the war was -- was already underway.

14             JUDGE HARHOFF:  Thank you.

15             MR. CVIJETIC: [Interpretation] Your Honours, may I tender the

16     previous document as a Defence exhibit.  Sorry, this document we are

17     discussing now.  I'm already holding the next one, and I misspoke.

18             JUDGE HALL:  Yes, it may be tendered and admitted.

19             THE REGISTRAR:  Could I please have the document ID or the 65 ter

20     number.

21             MR. CVIJETIC: [Interpretation] 1D002854.

22             JUDGE HARHOFF:  It has, actually, a different number on the

23     bottom.  It says 2856.

24             MR. CVIJETIC: [Interpretation] 54 is what I have.

25             JUDGE HARHOFF:  I apologise.

Page 479

 1             THE REGISTRAR:  It will become Exhibit 1D2, Your Honours.

 2             MR. CVIJETIC: [Interpretation]

 3        Q.   Mr. Donia, since you've touched upon the issue of Sarajevo, I'd

 4     like to tender -- to introduce another document, 1D002778.  I think we

 5     have it on the screen now.

 6             What's interesting about this document and why I'd like to tender

 7     it later is the final part, the paragraph 4 on page 2.  Could we turn to

 8     page 2.  Paragraph 4.  It's the SDA party, the Democratic Action Party,

 9     invoking the constitutional provision about regionalisation.  You have

10     already spoken about Sarajevo.  I'd just like to tender this as another

11     Defence exhibit.  1D002778.

12             JUDGE HALL:  Yes, it maybe admitted and marked.

13             THE REGISTRAR:  As Exhibit 1D3, Your Honours.

14             MR. CVIJETIC: [Interpretation]

15        Q.   1D003828 is another document in support of this.  Mr. Donia, can

16     you see the document now?

17        A.   Not well, but yes.

18        Q.   It's the statutory decision on the organisation of a

19     Stari Grad-Banja Luka Municipal Assembly in the process of establishment.

20     This is a follow-up on the previous decision.  Now we have a statutory

21     decision.

22             Since you've already commented, I would like to tender this

23     document as well.

24             JUDGE HALL:  Yes.

25             THE REGISTRAR:  Exhibit 1D4, Your Honours.

Page 480

 1             THE WITNESS:  What is the date on this document?

 2             MR. CVIJETIC: [Interpretation]

 3        Q.   17 November 1991.  Correct?  Do you agree that this is in fact an

 4     implementation, a step toward implementing the previous decision?

 5        A.   Yes.  If I could just note, it says "Illegible" on the English.

 6     I don't see anything illegible about the date on the B/C/S.  It's clearly

 7     11th of November.

 8        Q.   17 November; correct?

 9        A.   Yes.

10        Q.   Okay.

11        A.   And yes, I agree it is a -- implementing.

12             MR. CVIJETIC: [Interpretation] Your Honours, may I tender this

13     document as well or has it been admitted already?

14             JUDGE HALL:  It already has been.

15             MR. CVIJETIC: [Interpretation] Okay.

16        Q.    I'll now show you a very interesting document, 1D003749.

17     Mr. Donia, do you see the document?

18        A.   Yes.

19        Q.    It's quite a curious document in which all the participating

20     parties in Banja Luka municipality issue a proclamation regionalising

21     that area.  Serbs, Croats, and Muslims alike regionalise the area and

22     write this whole study.  Correct?

23        A.   I can't accept your characterization of it until I've read it and

24     seen specific --

25        Q.   Okay.

Page 481

 1        A.   And if you're asking me to agree, I need to be able to read it.

 2        Q.   Of course.

 3        A.   Okay.  I'm done with the first page.

 4        Q.   All right.  Can we tender this document, 1D00 -- sorry.

 5        A.   I would -- I don't accept your characterization of the document.

 6     This is not regionalisation as it was defined and applied by the SDS.

 7     This is simply the division of one municipality into several.  It's a

 8     different process than what you are referring to as regionalisation.

 9        Q.   We don't have to agree, Mr. Donia.  I can call this document

10     joint Variants A and B agreed upon by Serbs and Croats.

11             MR. CVIJETIC: [Interpretation] Can I tender this document,

12     Your Honours?

13             JUDGE HARHOFF:  Hold on, Mr. Cvijetic.  I'm not sure about what

14     this document is supposed to show.  What is it that you want to bring to

15     the Court's attention with this document?  I don't have page 1 on the

16     screen anymore so I can't see it.

17             MR. CVIJETIC: [Interpretation] This offsets the assertion of the

18     Prosecution that the SDS, with its A and B variants, divided

19     municipalities based on the majority population.  Now we see a similar

20     decision agreed upon by all the parties in that region, and this is what

21     the document confirms, nothing more.

22             JUDGE HARHOFF:  But is it an invitation to sign up between the

23     different parties for purposes of an election or ...

24             MR. CVIJETIC: [Interpretation] This applies only to the

25     territories of the municipalities listed here.

Page 482

 1             JUDGE HARHOFF:  Okay.  I see on the bottom of page 1 that:

 2             "The inhabitants of all local communes, settlements and villages

 3     are called upon at meetings to vote for the foundation of each their

 4     municipalities because by," and then it turns over to page 2, "voting in

 5     favour they will be voting for the prosperity of their neighbourhood and

 6     a harmonious social and economic development overall."

 7             MS. KORNER:  Your Honours, if it assists -- if it assists, we're

 8     not objecting to it.  We don't think it's got anything to do Variant --

 9     any type of Variant A and B.  It seems to be a community of

10     municipalities, rather likely, but we're quite happy to have it admitted

11     if the Defence want it.

12             JUDGE HARHOFF:  The Chamber has no objections to admitting it,

13     it's just that we want to be sure that we understand what the document is

14     purporting to bring.

15             MR. CVIJETIC: [Interpretation] To put it briefly, Your Honour,

16     this is an agreement between parties that preceded the later -- the

17     subsequent statutory decision already admitted concerning

18     Stari Grad-Banja Luka.  This decision was made based on an agreement

19     among parties.  That's 1D003749.

20             JUDGE HALL:  We'll let it in.

21             THE REGISTRAR:  Exhibit 1D5, Your Honours.

22             MS. KORNER:  Your Honour, can I just say it doesn't seem to

23     appear on transcript that I said we don't think it's got anything to do

24     with Variant A or B, on line 18.

25             THE WITNESS:  Your Honours, may I respond to the question that I

Page 483

 1     was asked earlier about this document?

 2             JUDGE HARHOFF:  Yes.

 3             THE WITNESS:  I believe, sir, you've mischaracterized the

 4     document.  It is a draft of an agreement.  It is not signed.  And it was

 5     very common practice in these Assembly meetings to -- for someone to

 6     arrive at a meeting with a draft just like this and ask that it be

 7     approved by everyone present.  Common practice pretty much in any city

 8     council or so.  But there are no signatures or stamps on the document

 9     that indicate that it's been approved by these parties.  I would assess

10     it as highly unlikely that the SDS in particular would -- would agree

11     with this document, and in fact the SDS's name isn't even listed there.

12     And I think the other parties would be unlike to -- unlikely to approve

13     it as well.  And I just -- in the absence of signatures, very much doubt

14     that it represents an agreement that was actually reached.

15             JUDGE HARHOFF:  Counsel, can you clarify?  Was this document ever

16     adopted?

17             MR. CVIJETIC: [Interpretation] Your Honours, this is an inference

18     we are draw based on the fact that this was followed by the statutory

19     decision proclaiming municipalities.  That's how we draw the inference,

20     and we found this document among the disclosed material.

21             JUDGE HARHOFF:  Thank you, Counsel.  My question was whether this

22     document had been adopted or not.

23             MR. CVIJETIC: [Interpretation] We suppose that it was, because it

24     says the analysis is adopted in full, and then this was followed by that

25     statutory decision.  So we infer, we conclude, that it must have been.

Page 484

 1     This was also followed by an identical decision of the SDA.

 2             MS. KORNER:  Your Honour, just for the first [indiscernible], can

 3     I say we'd ask for those documents to -- counsel's just giving evidence

 4     at the moment.

 5             MR. CVIJETIC: [Interpretation] Your Honour, I was answering your

 6     question.

 7                           [Trial Chamber confers]

 8             JUDGE HALL:  Perhaps in response to the observation that

 9     Ms. Korner has made I should indicate the Chamber's view as to this

10     document, Counsel, that it is -- bearing in mind that you are not

11     entitled to give evidence, it is the witness who is giving the evidence,

12     that the document, although we have admitted it, that having regard to

13     the arguments that -- that in effect you're advancing, that is something

14     that we would have to revisit at the appropriate stage.

15             MS. KORNER:  I'm sorry, can I just ask.  I'm not clear from that.

16     Is Your Honour ruling that they must provide the documents that

17     Mr. Cvijetic has referred to?  Because that's what we're asking for,

18     because Mr. Cvijetic has just made certain assertions.  I'm simply

19     inquiring whether Your Honour has made the ruling that the Defence must

20     provide us with the documents that Mr. Cvijetic says surround these.

21                           [Trial Chamber confers]

22             JUDGE HALL:  Ms. Korner, could you repeat the question that you

23     had posed to the Chamber, please?

24             MS. KORNER:  I'm so sorry, Your Honour.  Your Honour, my -- you

25     referred to my objection, and I simply objected that Mr. Cvijetic was

Page 485

 1     giving evidence and that we would like to see the documents that he

 2     referred to, namely, the decisions that followed he asserted, before this

 3     went any further, and I was asking whether Your Honour was ruling that

 4     the Defence must provide us with those documents rather than Mr. Cvijetic

 5     telling the Chamber that they exist, that that was -- I was merely asking

 6     will Your Honour rule that the Defence, if they wish this document to be

 7     taken any further, should provide us with copies of the other documents.

 8     That -- that's all.

 9             JUDGE HALL:  I'm not sure that we have to formally rule on that

10     at that stage.  You made an objection which -- and I characterize it as

11     an observation but obviously it was an objection, and that is where

12     matters stand.  If counsel seeks to take the Chamber where he has

13     indicated he expects that he could be having regard to how he has

14     characterized that document, then obviously he would have to lead the

15     relevant evidence, but I don't think it is necessary for the Chamber to

16     rule at this stage that he must provide the supporting evidence.  It

17     would be up to him if he intends to rely on it to that extent, I would

18     have thought.

19             MS. KORNER:  Thank you, Your Honour.

20             MR. CVIJETIC: [Interpretation] Your Honours, this must be a

21     misunderstanding.  Before this document, both the documents I'm referring

22     to were admitted, 1D0038 -- in fact, they were called 1D1 and 1D4, and

23     the document I'm tendering now precedes them.  I suppose I don't have to

24     provide a rationale for something that's already been admitted into

25     evidence.  The admitted documents are a result of the one I'm holding in

Page 486

 1     my hand.

 2             JUDGE HALL:  We accept the logic of that, and perhaps I didn't

 3     explain our view sufficiently clearly.  What we are saying is that, as

 4     you have just correctly indicated, that having regard to the connection

 5     between this document and the previously tendered documents,

 6     notwithstanding any technical objection that could have been taken that

 7     it should only have been marked for identification, we have allowed it as

 8     an exhibit, and that is as far as we are going at this stage.  The rest

 9     of it are matters for argument at the appropriate stage.

10             Does that clarify?  Does that address your concern?

11             MR. CVIJETIC: [Interpretation] Yes, Your Honour, and I think that

12     is in keeping with paragraph 4 of your guidelines.  But I would like to

13     move on.  That's document 1D003691.

14        Q.   Mr. Donia, do you see the document?

15        A.   Yes, I do.

16        Q.   Are you able to read it?

17        A.   Yes.

18        Q.   Can we agree - I'm going to paraphrase the text - that a group of

19     citizens of the Neum inhabited place is asking for instructions from the

20     democratic party -- Democratic Action Party from Sarajevo, that they are

21     under pressure from Croats, that Muslim children have to obtain textbooks

22     from Croatia and study from those textbooks.  And I'm speaking about this

23     as proof of the functioning of another large community, the Croatian

24     Community of Herceg-Bosna?

25        A.   Since the Croatian Community of Herceg-Bosna was founded in

Page 487

 1     November of 1991 and this document is dated September of 1991, that is a

 2     highly unlikely relationship.

 3        Q.   Mr. Donia, we are going to come back to the formation of

 4     Herceg-Bosna, but I think Their Honours are looking at the clock.

 5     Perhaps I can just ask --

 6             MR. CVIJETIC: [Interpretation] Can I continue?  Do I have time to

 7     continue?  The Croatian community of Herceg-Bosna is a separate topic

 8     that I will be dealing with.  So obviously I'm running out of time.

 9     Perhaps it would be better for me not to even begin.  I don't know if you

10     agree request that?

11             MS. KORNER:  Your Honour, Dr. Donia can be here to 12.00 if it

12     assists.  That will enable him to get his flight.

13             MR. CVIJETIC: [Interpretation] Then, Your Honour --

14             JUDGE HARHOFF:  Can you finish this up in 15 minutes?

15             MR. CVIJETIC: [Interpretation] No, definitely not.

16             JUDGE HARHOFF:  Well, then it's basically up to you whether you

17     wish to begin.  You may decide that you would rather stop now and then

18     resume with the next item that you wish when Dr. Donia comes back, or you

19     may wish to --

20             MR. CVIJETIC: [Interpretation] Your Honours, I apologise for

21     interrupting, but I would just like to ask for this document to be

22     admitted.  We have just enough time for that.  1D00369, perhaps we could

23     ask for this document to be admitted.

24             MS. KORNER:  Your Honours, I'm sorry, but admitted on what basis?

25     Dr. Donia doesn't say he's seen the document, doesn't agree with the

Page 488

 1     proposition that's been put about it, so on what basis is it being

 2     admitted?  That's all I'm asking.

 3             MR. CVIJETIC: [Interpretation] Your Honours, if I heard Dr. Donia

 4     properly, he did state his position on that document.

 5             JUDGE HARHOFF:  I must admit, Mr. Cvijetic, that I, too, have a

 6     bit of difficulty in fully understanding what it is that this document is

 7     supposed to show.  There's a mother complaining that her kids have been

 8     forced to buy Croatian schoolbooks and that they were Muslim and that she

 9     had already bought those books, and the only comment that Dr. Donia

10     provided was that this event occurred before the creation of

11     Herceg-Bosna, the Croatian Community of Herceg-Bosna.  So with this

12     information, then what do you want the Chamber to understand from this

13     document?

14             MR. CVIJETIC: [Interpretation] Your Honour, that is precisely why

15     I asked to stop here and to deal with Herceg-Bosnia separately, because

16     the day and the time that Herceg-Bosnia was formed I'm going to provide a

17     lot of documents indicating that it existed and that it was formed much

18     earlier.  That is the point.

19             JUDGE HARHOFF:  Then, Mr. Cvijetic, I would suggest that you

20     tender the document when we have completed that exercise, and then we

21     will take a position on whether or not to admit it.

22             MR. CVIJETIC: [Interpretation] I agree.  Then I can complete that

23     and admit this document with other documents.  Of course I accept your

24     suggestion.  Thank you.

25             Your Honours, we were just talking about the possibility of

Page 489

 1     ending the cross-examination as I am just about to deal with two key

 2     topics of my cross-examination for which I will be needing the time

 3     remaining to me, and none of those topics that I wish to deal with can be

 4     dealt with properly in ten minutes.  So if you would permit me, I would

 5     like to continue next time to cover two what I consider crucial topics

 6     for which I will be needing the time that is left.

 7             JUDGE HARHOFF:  I'm not sure if the interpretation came through

 8     to us.  Are you able to do this in ten minutes or would you rather wait?

 9             MR. CVIJETIC: [Interpretation] I would like to put it off,

10     because I cannot even begin properly in ten minutes.

11                           [Trial Chamber confers]

12             JUDGE HALL:  Was there something else, Counsel?

13             MR. CVIJETIC: [Interpretation] If I can just help perhaps to make

14     your decision easier.  My colleague is suggesting that the document must

15     be marked for identification at least, and the Registry probably agrees

16     with that.  Is that correct?

17                           [Trial Chamber confers]

18             JUDGE HALL:  The document -- sorry.  The document will be dealt

19     with at a later stage.  At this point, in the Chamber's view it's

20     premature to even mark it for identification.

21             MR. CVIJETIC: [Interpretation] I agree with your decision,

22     Your Honours.  I can just give you a promise.  You said that Mr. Donia,

23     next time, will be cross-examined on the three chapters of his most

24     recent report, and we were permitted an hour and a half, if I am not

25     mistaken.  We are going to cut short our cross-examination time on those

Page 490

 1     three chapters and then this part of mine that I still have to complete

 2     will fit in with that total hour and a half, perhaps requiring an

 3     additional half an hour or so.  So we're not going to take up more than

 4     two hours in all for all of those matters for cross-examination.  So I

 5     promise we will not need more than two hours to finish, and I think that

 6     is about how much time I have left anyway when we deduct the time that

 7     was spent.

 8             JUDGE HALL:  Dr. Donia, as would have been indicated to you, you

 9     will have to return for the completion of your cross-examination.  We

10     thank you for your attendance today, and you may now withdraw.

11             THE WITNESS:  Thank you, Your Honours.

12             MS. KORNER:  Your Honour, may I just mention one matter, and

13     that's this:  Transport for Dr. Donia.  I understand we have had an

14     e-mail from VWS.  Perhaps, Dr. Donia, just wait a moment.  That they

15     don't arrange transport to and from the airport for expert witnesses.

16     They will do it for non-experts but not for experts.  We are perfectly

17     prepared to have an investigator from our team drive Dr. Donia to -- no.

18     Well, he says no.  All right.  I couldn't speak to Dr. Donia, obviously.

19     That's fine.

20             JUDGE HARHOFF:  Exactly.  Because we should remind you that you

21     are not allowed to have any contact with this Prosecution team during

22     your absence from the Tribunal.

23             THE WITNESS:  Yes, Your Honour.

24                           [The witness stands down]

25             JUDGE HALL:  Now, as we indicated yesterday, there are a number

Page 491

 1     of the matters which must be addressed with the assistance for counsel,

 2     so it is proposed that we take a 20-minute break at this point, returning

 3     at 12.15.

 4             MS. KORNER:  Do I understand Your Honours are going to raise some

 5     matters?  If so, perhaps we could know before the adjournment so that if

 6     we need any paperwork we can bring it.

 7             JUDGE HARHOFF:  There are a couple of rulings we need to make

 8     still, one of which is when should Donia come back, how much time does

 9     the Defence have -- the Stanisic Defence have left.  That has not been

10     decided.  How much time does Zupljanin's Defence team wish to use?  And

11     then I think there are still a couple of issues relating to some of the

12     motions that were filed recently that still haven't been ruled upon.  So

13     I think there are five or six small matters that need to be dealt with.

14             MS. KORNER:  Yes.  Because, Your Honours, we are certain, as we

15     said yesterday, going to deal orally with our response to the application

16     to appeal in respect of Dr. Nielsen, and then we've got a couple of

17     matters, really administrative matters, including the question of

18     Dr. Donia's ability to talk to other members of this office, because he's

19     coming back to testify, I believe it's the end of October, and obviously

20     those members of our office need to be able to speak to him about that

21     testimony, so we need a ruling.

22             JUDGE HARHOFF:  Yes.  We have actually discussed that, and we

23     will hand down our ruling, but you will see that in my instructions to

24     Dr. Donia I told him that he was not allowed to talk to any members of

25     this team.

Page 492

 1             MS. KORNER:  We did.

 2                           --- Recess taken at 11.56 a.m.

 3                           --- On resuming at 12.56 p.m.

 4             JUDGE HALL:  We apologise for keeping the parties and counsel

 5     waiting.  The -- I would now invite Judge Harhoff to deal with the

 6     several matters.

 7             JUDGE HARHOFF:  Thank you.  We have considered a number of

 8     procedural matters which we will now address.

 9             The first issue is the time that the Defence teams have left for

10     the cross-examination of Dr. Donia, and the Chamber originally indicated

11     that -- and that was upon the suggestions made by the Stanisic team, that

12     it would be somewhere between three and four hours of cross-examination.

13     The Chamber has therefore decided that it will grant all together three

14     and a half hours for the cross-examination of Stanisic, and that includes

15     the cross-examination on the Sarajevo report.

16             The Stanisic Defence team, as we understand, has so far taken

17     2 hours and 17 minutes this leaves 1 hour and 13 minutes to add up to the

18     total time of three and a half hours.

19             So Mr. Cvijetic, when Dr. Donia comes back you have 1 hour and

20     13 minutes to complete your cross-examination.

21             As for the Zupljanin Defence team, we have been guided by

22     Mr. Pantelic's own admission that in large part the Sarajevo report would

23     not be of any particular relevance and that Mr. Pantelic would need

24     either one hour or one and a half hours.  The Chamber has granted you one

25     hour.

Page 493

 1             This means altogether that when Dr. Donia comes back, the

 2     Stanisic Defence team will continue and have 1 hour and 13 minutes, after

 3     which the Zupljanin Defence team will have one hour, and then there will

 4     be questions perhaps in redirect from the Prosecution and possibly by the

 5     Chamber, and that will then conclude the testimony of Dr. Donia.

 6             That's the first decision or order that we have rendered.

 7             The next ruling was concerned with the time for Dr. Donia's

 8     return to testify.  The Chamber suggests that he be called to reappear

 9     before this Chamber at the time when he is coming back to The Hague

10     anyway, and we understood that to be by the end of October.  So --

11             MS. KORNER:  I -- sorry.

12             JUDGE HARHOFF:  -- the order that we have issued is that

13     Dr. Donia is to reappear upon his next visit to The Hague in, we

14     understood, late October.  So you can have him call and reappear either

15     here before or after his testimony in those other cases in which he is

16     involved.

17             MS. KORNER:  Yes.  Can I just mention I checked with the lawyer

18     involved.  He will either be testifying in the last week of October or

19     the first week of November.

20             JUDGE HARHOFF:  Thank you, but whatever then we -- that is the

21     time when we wish to see him so as to minimise the travel costs and the

22     trouble for the witness himself.

23             The third order we wish to render is a formalisation of what I

24     think has already been indicated, but the Chamber's ruling is that

25     Dr. Donia is not allowed to have any contact with your team and vice

Page 494

 1     versa.  Nobody from your team is allowed to have any contact with

 2     Dr. Donia.  And it goes without saying that other members of the

 3     Prosecution with whom Dr. Donia will be having contact in relation to his

 4     testimony in other cases are not allowed, of course, to address any issue

 5     relevant to this case.

 6             The fourth motion -- the fourth issue, sorry, that we wish to

 7     address is the question of Dr. Nielsen's expert status, and we will

 8     reserve our ruling on this matter in view of the submissions made by

 9     Mr. Zecevic.

10             MR. HANNIS:  Your Honour, concerning that issue, I was prepared

11     to make an oral submission in term of the Prosecution's response if you

12     were willing to hear that today rather than filing something in writing.

13             JUDGE HARHOFF:  We certainly always prefer the most expedient and

14     adequate ways.  As I said, we have -- we will defer our decision on the

15     matter and hand down a written decision, and we would be happy to hear

16     your submissions when I have completed my order of rulings.

17             May I, in relation to Nielsen, also add that in light of the

18     difficulties that have occurred in relation to translation of the

19     documents which the Defence wishes to confront Mr. Nielsen with, the

20     Chamber strongly advises that Dr. Nielsen or -- be called at a time when

21     the translation issue has been settled, because we think that it is

22     inconvenient to first have him examined-in-chief and then wait for a long

23     time until the translation issues have been solved in November, only then

24     to have him reappear for cross-examination.  So we have discussed whether

25     we should hand down a straightforward order to defer the testimony of

Page 495

 1     Dr. Nielsen until such time as the translation has been issued, or

 2     whether we should recommend this in very, very strong terms, and a

 3     majority in the Chamber found that it would perhaps be crossing over the

 4     lines that must exist between the Prosecution and the Chamber and the

 5     division between judicial powers and prosecutorial powers.  So we thought

 6     it might be perhaps somewhat inappropriate to hand down a straightforward

 7     order.  But if you can read what I'm saying between the lines, what the

 8     Chamber really wants to say is that we shouldn't hear Dr. Nielsen until

 9     such time as we have all the documents ready so that we can have him come

10     and testify in chief and cross at the same time.

11             The fifth --

12             MR. HANNIS:  May I -- may I, Judge Harhoff, come in on that?

13             JUDGE HARHOFF:  Can we just wait until --

14             MR. HANNIS:  Sure.

15             JUDGE HARHOFF:  -- we have -- because you understand we're coming

16     back to --

17             MR. HANNIS:  Okay.

18             JUDGE HARHOFF:  -- Dr. Nielsen, so let's just keep it all

19     together.

20             The fifth matter that we discussed was the suggestion that was

21     made at the Pre-Trial Conference of postponing witnesses to whom the late

22     filings related for a period of two months running from the Pre-Trial

23     Conference.  I think it was on the 3rd of September.

24             This proposal was made and was intended to have a punitive

25     character because we were disturbed by the late disclosure of the

Page 496

 1     Prosecution.  So in light of the fact that the intention and the purpose

 2     of the two months' delay was not only practical purposes but also had a

 3     touch of indicating to the Prosecution this time that we are serious

 4     about the time limits that are set out and we're not prepared to accept

 5     or tolerate nonobservance of these time limits.

 6             In light of this, the order that we now render is the following:

 7     That the late-filed documents cannot be used before expiration of a

 8     two-month period running from the Pre-Trial Conference on

 9     3rd of September, and that the witnesses to whom these documents relate

10     equally and therefore cannot be called.

11             Now, the Prosecution has filed a motion asking for exemptions to

12     be made in relation to two of these witnesses, goes for ST 019 and

13     ST 171.  The Chamber has considered the situation in relation to these

14     two witnesses and we understand that the Defence teams do not have any

15     objections to raise about calling 019 at an earlier time but that they do

16     have objections in relation to 171.  The Chamber has therefore ruled that

17     we will accept that we can -- that the Prosecution can call 019 prior to

18     the expiration of the two-month period that runs from September 3rd until

19     November 3rd, whereas the other witness, 171, shall have to wait until

20     that time.

21             These were the rulings that this Chamber wishes to make at this

22     moment.

23             Now I would invite Mr. Hannis --

24             JUDGE HARHOFF:  Sorry.

25                           [Trial Chamber and Legal Officer confer]

Page 497

 1             JUDGE HARHOFF:  Before I give the floor to Mr. Hannis, I would

 2     like to add, and excuse me for forgetting this additional part of the

 3     last order, namely, that for the other witnesses that fall into the

 4     category of having to wait ask, if the Prosecution can bring it up with

 5     the Defence teams and if the Defence teams will have no objections to

 6     calling any of those witnesses prior to the expiration of the two-month

 7     period, then that's fine with the Chamber, but if any of the Defence

 8     teams have any objections, then the order stands.

 9             Now, Mr. Hannis.

10             MR. HANNIS:  Thank you, Your Honours.  Regarding Dr. Nielsen, the

11     first thing I had wanted to address was the Defence motion for

12     certification for leave to appeal your decision regarding his expert

13     status, and in order to save time because we tentatively had him to be

14     scheduled to be our first witness on the 29th of September, but I will

15     address that in light of your remarks just now when I conclude this

16     issue.  We want to make an oral response to that request for

17     certification.

18             It's our position, Your Honours, that that request should be

19     denied.  As you know, under Rule 73(B), it's a two-prong test, first that

20     the decision should involve an issue that significantly affects the fair

21     and expeditious conduct of the proceedings or the outcome of the trial;

22     and secondly, that an immediate resolution of the issue may, in the

23     opinion of the Trial Chamber, materially advance the proceedings.

24             It's our position, Your Honour, that the Defence meet neither of

25     the two prongs; and even if they did, we suggest that you should exercise

Page 498

 1     your discretion to deny the motion.  And we don't think it would have an

 2     impact on the evidence in the case.  Any concerns regarding Mr. Nielsen

 3     we think can be addressed in deciding what weight to give his evidence at

 4     the end of the case, and we think that's the best way to address it and

 5     we would ask you therefore to deny the motion.

 6             With that -- and then I want to move on to the point you raised

 7     with the suggestion or recommendation --

 8             JUDGE HARHOFF:  Mr. Hannis, I don't know, could I ask you to --

 9             MR. HANNIS:  Yes.

10             JUDGE HARHOFF:  -- address the objection that is raised in

11     Mr. Zecevic's objection.

12             MR. HANNIS:  Concerning his expertise or his closeness with the

13     Prosecution?

14             JUDGE HARHOFF:  Yes, yes, yes.

15             MR. HANNIS:  Well, Your Honour, we would indicate that we think

16     his expertise is set forth in his CV, which is part of the package.  In

17     addition, he has been allowed to testify as an expert in this Tribunal in

18     other cases.  He was an expert witness in the Krajisnik case, and he has

19     also been admitted as an expert witness and his report received as an

20     expert report in the pending case of Stanisic and Simatovic.

21             In the Krajisnik case, Mr. Nielsen's testimony and report were

22     referenced several times in the judgement, and we think it shows that

23     that Trial Chamber found his evidence to be reliable and probative.  So

24     those are factors we think you can take into account.

25             JUDGE HARHOFF:  As I understand Mr. Zecevic's objection, it

Page 499

 1     rather goes to the fact that Mr. Nielsen is an analyst.  He doesn't -- he

 2     doesn't purport to possess any expertise as such, and that for that

 3     reason we should not have him come as an expert but only as a normal

 4     viva voce witness, and would I like to hear you out on that issue.

 5             MR. HANNIS:  Your Honour, we don't have a definition of expert in

 6     our rules in this Tribunal.  In my domestic jurisdiction, an expert is

 7     someone whom by virtue of education, training, experience, has some sort

 8     of specialised knowledge that can be useful in helping the jury or the

 9     Judges, the trier of fact, in resolving a pertinent issue in the case.

10             In my jurisdiction as well, we have another category of a

11     witness, somewhere between the percipient fact witness, the eyewitness to

12     the bank robbery and an expert witness at the top, we have another

13     category of witness that sometimes referred to as a summary witness which

14     oftentimes may be someone like an analyst who reviews large collections

15     of documents and then is able to provide some kind of summary and report

16     about those large collections of documents.  And they're treated somewhat

17     in between how an expert is treated and a fact witness.

18             In many ways some of the experts witnesses that we've had in the

19     Tribunal here who worked in LRT, the Leadership Research Team, MAT, the

20     Military Analysis Team, are what I was familiar with in my jurisdictions

21     as summary witnesses, but would I argue that they do have some expertise

22     because of the amount of time they've spent going over thousands of

23     documents, and they just don't read the documents.  Oftentimes they're

24     familiar with the events from having read newspaper accounts, sometimes

25     from their own personal experiences during the times of the conflict,

Page 500

 1     from reviewing witness statements in some cases, and they do have

 2     information that's helpful to you.

 3             I think the objection raised by the Defence really is a matter

 4     that can be dealt with by you all at the end of the case when you've

 5     heard all the evidence, deciding how much weight to give it, and it

 6     should not bar him being called as an expert.

 7             JUDGE HARHOFF:  Thank you for this clarification.  I mean, for

 8     the Chamber the main issue is that if ultimately Mr. Nielsen ends up

 9     being called as an expert, there's a difference in the manner in which he

10     can be examined both by you as the calling party and by the Defence.  We

11     have raised a couple of times here that one of those differences exactly

12     is the ability of the expert to provide opinions, which an ordinary fact

13     witness would not be allowed to.  So -- so this is why I'm fishing a bit

14     to hear your arguments why we should allow Nielsen to come as an expert

15     with, among other things, the possibility of providing an opinion about

16     the matters that are put to him and of the Trial Chamber's reliance upon

17     his opinion.

18             MR. HANNIS:  I think I understand your point, Your Honour.  I

19     think I've heard it expressed by at least one Judge in talking about some

20     of these experts, that's like, well, what makes him an expert other than

21     the fact that he sat there and read 10.000 documents over the past two

22     years.  I could do the same.  And I say, yes, that's right, Judge, you

23     could, and in my view, then you would be an expert.  If I wanted some

24     information about that issue and you had read 10.000 documents for two

25     years, I would give your opinion more weight than I would somebody who

Page 501

 1     hasn't seen it.

 2             In my domestic jurisdiction as well, we have certain kinds of

 3     issues that lay opinion is permissible on, things that fall within the

 4     common everyday experience of the average citizen.  So in a drunk driving

 5     case in America, a witness can come in and even though he's not an expert

 6     like the police officer who may have -- the highway patrolman who has

 7     training in gauging drunk driving by giving people field sobriety tests

 8     and other things that the average person doesn't, but an average person

 9     has enough experience from everyday life to express an opinion about

10     whether or not a person appeared to be under the influence of alcohol on

11     that occasion.

12             So I think again it's a matter that should to the weight you give

13     his opinion, but I think he can be an expert.  I guess it depends partly

14     on how you define the area of expertise.

15             And his area of expertise is about the MUP because he's examined

16     these thousands of documents about the MUP and has read evidence of

17     statements by people from the MUP and evidence about how the MUP worked

18     during the time-frame.

19             JUDGE HARHOFF:  Well, that's exactly the kind of information I

20     was expecting from you.  You had another issue.

21             MR. HANNIS:  Yes, concerning the timing of calling Dr. Nielsen.

22     I fully understand the point raised by Mr. Zecevic, and as the lawyer who

23     is scheduled to lead Dr. Nielsen's direct exam, I would prefer,

24     personally, to have his testimony all in one block.  I know in my last

25     trial I had the experience sometimes where we had witnesses testify,

Page 502

 1     called by the Defence, and I had to cross-examine where we didn't have

 2     English translations of some of the documents that were used with the

 3     witness.  And it's a very difficult, almost impossible job to do and feel

 4     like I'm doing my job professionally because the witness may read out the

 5     paragraph 5 in the document, and the Defence says, "So that's the part --

 6     that's the part we want."  Well, I can't read the rest of the document.

 7     I can't put paragraph 5 in context, and it's not very satisfying to say

 8     well, when you get the English translation if you find something you

 9     would have wanted, well, maybe we'll call them back later.  That's not

10     very efficient or effective, and I don't think you want to work that way.

11             But I'm on the horns of a dilemma and the Prosecution is on the

12     horns of a dilemma here because in this case where we're prosecuting the

13     minister of the interior and a chief of one of the regional security

14     centres, high-ranking police individuals, we thought it important in our

15     case to try to get you Judges as much information as possible early on in

16     the case about what the MUP was and how it works.  And so I'm torn

17     between those two things:  One, our desire to get you expert evidence and

18     as much evidence as possible about the MUP early in the case, and that

19     ability to be able to have his examination go straight through and be

20     able to do my redirect examination with English translations of the

21     documents that are used by the Defence.

22             What I'd like to do is consult with the rest of my team and take

23     to heart your suggestions about calling him later rather than earlier,

24     but it may cause us problems with scheduling because we've tentatively

25     planned him to be the first witness on the 29th.

Page 503

 1             JUDGE HARHOFF:  Before you consult with Mrs. Korner, I would like

 2     to add that it might actually be beneficial to the Chamber to hear him

 3     later on, because through the next witnesses whom you will then call, we

 4     might, you know, pick up some more information about the MUP.  At this

 5     early stage of the trial, we are very open to the scenery and to the

 6     scope of the indictment, and as we go along with the witnesses, you know,

 7     we learn more about the case, and so postponing Nielsen might not

 8     actually be such a bad idea, because that will make us better prepared to

 9     understand fully and appreciate his testimony when we get it.

10             MR. HANNIS:  I take that point, Your Honour.  I think that was

11     something that came up in our internal discussions, too, and I think

12     that's a valid point.  We will consult and we will let you know as soon

13     as possible what we propose to do.

14                           [Prosecution counsel confer]

15             MR. HANNIS:  The other difficulty has to do with his personal

16     schedule and his teaching schedule, but I will have to speak to him about

17     that.  That's another factor for us.  It's difficult to find a time when

18     he's available, but we'll take that all into account and get back to you.

19             JUDGE HARHOFF:  Thank you, Mr. Hannis.

20             Anyone from the Defence teams wishes to raise any point.

21             MS. KORNER:  Your Honour, I'm so sorry.  Mr. Hannis was going to

22     deal with that but there are perhaps a couple of small points that

23     perhaps I ought to deal with now.

24             JUDGE HARHOFF:  I apologise, Mrs. Korner.

25             MS. KORNER:  It's my fault.

Page 504

 1             JUDGE HARHOFF:  We'll finish with you first.

 2             MS. KORNER:  Thank you very much.  First is this:  I omitted to

 3     ask for Dr. Donia's reports to become exhibits at the end of my

 4     examination-in-chief.  So can I formally ask that that be made, the three

 5     reports, and that part of the Sarajevo report that you've allowed in.

 6             The second matter was this:  And that was the question of the --

 7     the motion that we filed asking for the admission of further documents on

 8     to the 65 ter list, and we then had a hearing in which we dealt with the

 9     Sarajevo report, and Your Honour then ruled that -- from the transcript,

10     and I've forgotten what the date -- yes, 15th of September, Tuesday, the

11     15th of September, golly, only two days ago, that the certain parts of

12     the report would be out, and in relation to the documents, the

13     29 documents included in your motion, it follows from the first of those

14     29 those will go.

15             Now, we read that as meaning that the other documents were in,

16     the ones that you've marked for identification which were part of our

17     application to add these documents to the 65 ter list, and this is where

18     I think the confusion arose.

19             It's right to say that I didn't stand up and Your Honour didn't

20     specifically either say in terms, "And those are the only ones we're

21     excluding," but that's where the confusion arose.  Obviously my

22     application is that those documents which came from his earlier report

23     footnotes should be admitted as exhibits.

24             Now, can I say I'm not asking Your Honour to give a ruling about

25     that straightaway but just to make the position clear, and I think that's

Page 505

 1     where the confusion arose.  Which leads me on to really a general point,

 2     if I may, Judge -- Your Honours.

 3             Unfortunately, particularly in the last week or so, there's been

 4     a lot of confusion because there's been a huge number of motions coming

 5     in, particularly from the Defence, and as Your Honours know and I needn't

 6     remind you, there are still a large number of outstanding matters to be

 7     ruled upon, but we -- at the moment we've been getting sort of rulings

 8     via e-mail as opposed to an order or a ruling, and it's not always easy

 9     to work out from that what it is that's being ruled upon or what we're

10     being told to do.  And one of the examples was we applied for the motion

11     for -- we applied for Your Honours to reconsider your decision that we

12     should reduce the witness list.  We simply got an e-mail from the legal

13     officer saying all deadlines stood without saying the motion for

14     reconsideration therefore was not being granted.

15             The Defence then say, because when we filed our reduced witness

16     list, and we made it clear that we were doing so effectively, I must say,

17     under protest but we were doing it because that was the order, and with

18     the caveats that if we couldn't reach agreement, for example, on

19     exhumations, that we would be reapplying to put these witnesses back in.

20             The Defence then filed a motion saying it's moot, but they object

21     to it anyhow, and we haven't actually had, as it were, a ruling.  And

22     Your Honours, I appreciate it's all because it's been rather chaotic over

23     the last few weeks, but could we make a plea that we get proper orders,

24     however short, but proper orders and proper filed decisions from

25     Your Honours rather than decisions through e-mail from the legal officers

Page 506

 1     obviously forwarding on Your Honours.

 2             JUDGE HARHOFF:  Certainly.  It goes without saying.  May I just

 3     add that for the mail that you received from the legal officer, I don't

 4     think that was an order in any way.  It was an indication of what is

 5     obvious, namely, that the time-limits stand as they were ordered.  Your

 6     motion for reconsideration is still on the table and we'll get to it.

 7             Now, as of today we have ten days of a break, and we will use,

 8     certainly, that time to clear up as many of the outstanding motions as we

 9     possibly can, and the Defence will use the time to prepare for its

10     further re-examination of your witnesses.

11             We expect to hear from you very soon whether you will accommodate

12     our suggestion to postpone Nielsen, and if you do so, then who will then

13     be your next witness, and the Defence will need to start preparing for

14     that and so will we.  So ...

15             MS. KORNER:  Which leads actually on to the next issue and that's

16     the question of timing.

17             Your Honour said in the Pre-Trial Conference -- I had that up

18     some -- yes.  The Prosecution would have 212 hours.  The Defence will

19     altogether be given the same amount of time, 212 hours.  So we're taking

20     it that's the same.  And I'm taking it that, therefore, they get the

21     equal amount of time to cross-examine as we get to call in chief.  It

22     wasn't perhaps altogether clear.  But we do need to know how long each --

23     the Defence are going to get to cross-examine the witnesses before they

24     come, because we get -- we get a lot of problems with VWS about trying to

25     organise the witnesses.

Page 507

 1             JUDGE HARHOFF:  Of course.

 2             MS. KORNER:  And we --

 3             JUDGE HARHOFF:  As soon as we have had a look according to your

 4     motion for reconsideration -- had a second look at the order to reduce

 5     the number of witnesses to 131, then we will also set time for the

 6     Defence.

 7             We would like to have indications from the Defence teams as to

 8     how long they wish to have in relation to the 131 witnesses that have now

 9     been tabled.

10             MR. ZECEVIC:  Well, Your Honours, if I -- if I may be briefly

11     heard on the subject.

12             Now, the situation with the 92 ter witnesses is such that it --

13     that it's going to be and it is in practice on a case-to-case basis.

14     What I mean to say is the following:  The Prosecution, the amount of time

15     that the Prosecution uses in court actually to introduce the witness

16     might be --  might be very short, because the Prosecutor used enormous

17     amount of time talking to the witness, preparing his statement.  Now

18     if -- so the correlation between the time that the Prosecution uses in

19     court actually to bring the witness and to offer his 92 ter statement

20     cannot be compared to the need of the -- of the Defence to cross-examine

21     the witness, because in fact they have been able to talk to the witness

22     for many days and prepare the statement, and there are some -- there

23     might be some really important, relevant issues in his statement that we

24     need to address.  Plus the proofing notes, which usually are coming,

25     plus, of course, some other issues.

Page 508

 1             So I don't think that we will be able to give you a general

 2     number or any estimation on any of the witnesses or generally for all

 3     witnesses, because it is, as I say, on a case-to-case basis,

 4     Your Honours.

 5             JUDGE HARHOFF:  The whole idea behind allowing witnesses to come

 6     under 92 ter is to save time by not having to go through the

 7     examination-in-chief in which or during which the witness would say

 8     everything that is already included in his statement.  So as to avoid

 9     repetition of that kind.

10             The statements have been provided, submitted to the Defence

11     teams.  So they, each of the two Defence teams, are fully aware of what

12     this witness will say.

13             It's possible that proofing notes may come in at a very late

14     stage, but the Prosecution is under an obligation to provide those as

15     soon as possible, and in any case I wouldn't expect proofing notes to

16     depart radically from what is already included in the statements.

17             So my point is this:  The Defence teams know -- the Defence teams

18     know that -- what's coming up from -- from each witness.  We have also

19     told in the procedural guidelines that we will not, in general, allow the

20     Prosecution to spend very much time in introducing the 92 ter witnesses,

21     somewhere between - I can't remember - 15 or 30 minutes is what the

22     Prosecution will have, unless there are particular other grounds for

23     deviating from that, but very short time to introduce the witness and

24     then the witness is transferred to you.

25             I don't see why you cannot, by going through the statements, make

Page 509

 1     an estimation of how much time you wish to have to cross-examine this

 2     witness on the basis of what is in his testimony.  And it is on a

 3     case-by-case basis.  Sometimes you may wish to have only 30 minutes.

 4     Sometimes you may wish to have five hours.  That's fine, but please

 5     indicate to us so that we have something from you when we determine how

 6     much time ultimately will be given.

 7             MR. ZECEVIC:  Well, I understood -- I understood -- I'm sorry.  I

 8     understood, Your Honours, that you wish us to indicate now --

 9             JUDGE HARHOFF:  No, no, no.  I'm inviting you to, as soon as you

10     can, within hopefully the end of this week, if possible, or maybe early

11     next week, but as soon as you can, to give us an indication of how much

12     time you would wish to have with each of the 131 witnesses that are on

13     the table.

14             MS. KORNER:  May I say --

15             MR. ZECEVIC:  I'm sorry -- I'm sorry.

16             MS. KORNER:  Sorry.  All we're asking for at this stage is for

17     the witness we have to notify two weeks in advance to VWS, so we would

18     like an order, please, actually, by Friday or Monday at the latest,

19     depending on whether we have to reschedule because of your indication

20     about Dr. Nielsen, how much time the Defence require for each of the

21     scheduled witnesses who are due to come.  And we'd like that -- we're not

22     asking for the whole lot at the moment, just the next batch.

23             JUDGE HARHOFF:  Well -- thank you very much, Mrs. Korner.  That

24     makes it actually easier.  So if you can have the -- if you can give us

25     the indication of the time you and Mr. Zupljanin wishes to have for the

Page 510

 1     witnesses that will be scheduled to come in the near future.

 2             MR. ZECEVIC:  Well, as soon as we receive the schedule of

 3     witnesses, we might be able to provide, but, Your Honours, again I --

 4     this is going to be in a very general terms.  We don't want to be bound

 5     by -- by our promise, because with can happen is that one of the

 6     witnesses who comes first raises an issue which we have to explore with

 7     the second and the third witness because they might be coming from the

 8     very same municipality.  So it is -- the case is one living thing.  I

 9     mean, it is developing during the case, so the testimony's in the other

10     court -- I know you know that.

11             JUDGE HARHOFF:  Exactly.

12             MR. ZECEVIC:  I'm just trying to give my argument some sense.

13     I'm sorry if I --

14             JUDGE HARHOFF:  Thank you, Mr. Zecevic.  I'm -- we are fully

15     aware of the practical problems, but by the end of the day a decision has

16     to be made, because there is a planning issue that needs to be -- to be

17     issued.  VWS needs to know how many days or -- the witness is going to be

18     here.  So I know it's difficult, but sooner or later a decision will have

19     to be made.

20             What we will do is that we will assess the witnesses as well, and

21     we will have our own opinion as to how much time we think the Defence

22     might need.  In addition to that, we invite the Defence teams to also

23     come forward with their indication.  And when we have that, we'll make a

24     decision.

25             MR. ZECEVIC:  I understand, Your Honour.

Page 511

 1             JUDGE HARHOFF:  Once the decision is made, then the VWS can start

 2     planning for the travels of those witnesses.

 3             MR. ZECEVIC:  Your Honours, we will endeavour in providing the --

 4     and accommodating the Trial Chamber and everybody else in that.  I just

 5     want to say this for the record:  I don't think that -- that there is --

 6     there is a correlation between the fairness of the trial and any kind of

 7     timing needs of VWS or whoever in -- in that respect.

 8             One other matter, Your Honour.  We wanted to be heard on -- on

 9     what -- if we may reply to what Mr. Hannis just raised about Mr. Nielsen,

10     Nielsen's testimony.  Briefly.

11             JUDGE HARHOFF:  If you have some important things to add, then we

12     would invite you to come forward with them right away, but please be

13     short because we're running out of time.  As you can see we have six

14     minutes left --

15             MR. ZECEVIC:  I understand --

16             JUDGE HARHOFF:  -- and we still have one decision to render.

17             MR. ZECEVIC:  Mr. O'Sullivan will do the submission, very

18     shortly, briefly.  Thank you.

19             JUDGE HARHOFF:  Before you take the floor, Mr. O'Sullivan, can I

20     raise another issue which the Chamber discussed previously, namely, about

21     the standing of counsels before the Chamber.  I think that the ordinary

22     rule is -- or the ordinary practice, at least, is that it is only counsel

23     and co-counsel that can address the Court, and that the reason for this

24     is really that we have the power of attorney from the defendants to those

25     counsels.

Page 512

 1             Now, if the counsels wish to have other members of their team

 2     appear before the Court that's perfectly fine with us, but as a matter of

 3     order, I would suggest that whenever you wish Mr. O'Sullivan or anyone

 4     else from your team to address the Court that you ask for permission to

 5     do so.

 6             I am also aware of the fact that Mr. O'Sullivan's position is

 7     special because he's really a reserve counsel, so we will address that,

 8     but -- but as a general rule, I think it is appropriate to just clear it

 9     up with the Chamber before anyone else but yourself and your co-counsel

10     takes the floor and addresses the Court.

11             MR. ZECEVIC:  Your Honours, due to the specific situation, which

12     you are aware of and I would not like to come into, I specifically asked

13     OLAD on the appointment of Mr. O'Sullivan that he be appointed as a

14     co-counsel.  There is no limit how many counsels can one of the

15     defendants have in the rules, I think, because the Prosecution is

16     represented by five or six counsels, so, so can -- so can the Defence as

17     well, I believe.  And I requested that specifically due to the specificum

18     of the situation, as you're aware, and that is why I didn't thought that

19     it -- it needed an additional request -- needed an additional permission

20     from the Trial Chamber to -- but we will act accordingly, yes.  Thank you

21     very much.

22             JUDGE HARHOFF:  Rest assured that we will always be interested in

23     hearing what Mr. O'Sullivan has to say.

24             MR. ZECEVIC:  Thank you very much.

25             JUDGE HARHOFF:  And we give him the floor.

Page 513

 1             MR. O'SULLIVAN:  Your Honour, it's late in the day and I'll be

 2     very brief.  I just wanted to respond to a couple of your questions that

 3     you put to Mr. Hannis regarding the expert.  We share his definition of

 4     what an expert is; it's someone who by virtue of his or her knowledge,

 5     skill or background can assist you in deciding issues, live issues,

 6     between the parties.  But this implies someone who does have this

 7     objective or scientific background which Mr. Nielsen does not have.

 8     That's the first point.

 9             Second point is in relation to his former employment by the

10     Office of the Prosecutor.  There is precedent that says that if current

11     or former employee of the Office of the Prosecutor can testify.  I wish,

12     however, to point out that there is precedent going the other way, in

13     particular in the Milutinovic case, in the case of Mr. Coo.

14             And the third and final point I wish to make is that I must take

15     issue with what Mr. Hannis says, that because someone has read

16     10.000 pages or documents that makes them an expert.  Your Honour, I'm

17     not a civil engineer and I could read 10.000 documents on bridge

18     construction, but I don't think you'd want to drive across the bridge

19     that I told you was safe.  So it's more than just the fact that someone

20     is intelligent and that they can read.  It's by virtue of special

21     knowledge, training, or experience that they can be -- they can be an

22     expert and they should be objective and detached from one of the parties

23     and certainly not an employee who is active in the conduct and

24     prosecution of a case.  Thank you.

25             JUDGE HARHOFF:  Thank you, Mr. O'Sullivan.  We'll take note of

Page 514

 1     your input to this question.

 2             I have one last ruling to make, and that is the ruling to admit

 3     the three -- or the two and a half expert reports by Dr. Donia.  We

 4     hereby agree that they should be admitted, and we ask the Registrar to

 5     provide an exhibit number to them.

 6             THE REGISTRAR:  Those will be Exhibits P30, P31, and P32,

 7     Your Honours.

 8             JUDGE HARHOFF:  Thank you very much, and unless any of the

 9     parties have any other issues to raise -- hold on a minute.

10                           [Trial Chamber and Legal Officer confer]

11             JUDGE HARHOFF:  Our legal officer reminds us that -- and you may

12     sit.  I know of your conditions with your foot, Madam Korner.  You had

13     asked for clarification of the oral ruling that was made the other day

14     regarding what is admitted and what is not admitted from the Sarajevo

15     report.

16             MS. KORNER:  Sorry, from -- from the marked for identification --

17     from the exhibits which came from the footnotes of the others reports.

18     That's what I'm trying to get sorted.

19                           [Trial Chamber confers]

20             JUDGE HARHOFF:  The admission of those three documents was -- was

21     MFI'd because there was uncertainty about whether or not they were

22     included in the ruling.  The ruling was that the documents that were

23     mentioned in the footnotes of the three chapters of the Sarajevo report

24     which we did admit were also admissible, whereas documents in other parts

25     of the Sarajevo report were not admissible, and so we MFI'd the three

Page 515

 1     pieces because we weren't sure of whether or not they were inside or

 2     outside the three chapters, and when we find out whether they were or

 3     not, the MFI status will be settled.

 4             MS. KORNER:  Sorry, Your Honour.  It -- and that's -- that's one

 5     of the difficulties I've been referring to about not having written

 6     [indiscernible].  We put in a motion asking for a lot of the documents

 7     that -- in fact, that all the documents that Dr. Donia specifically

 8     covered should be admitted.  You then gave a ruling excluding from that

 9     long list any documents that came within the chapters of the report that

10     you weren't allowing in.  We therefore assumed that that was a ruling on

11     the whole motion and therefore you were allowing us to add the other

12     documents, nothing to do with the Sarajevo report, but to do with the

13     earlier two reports which were footnoted but hadn't been added to the 65

14     ter list before, and that's what I -- and, as I say, we're quite happy

15     for you to consider it because I see the time, but that's what I'm trying

16     to deal with.

17             JUDGE HARHOFF:  I suggest we rule on it in writing.

18             It's already over the time, and I suggest we adjourn now, and we

19     will reconvene here on Tuesday, the 29th of September, and that is in the

20     afternoon.

21             Thank you very much.

22                           --- Whereupon the hearing adjourned at 1.49 p.m.,

23                           to be reconvened on Tuesday, the 29th day

24                           of September, 2009, at 2.15 p.m.