Tribunal Criminal Tribunal for the Former Yugoslavia

Page 771

1 Thursday, 24 January 2002

2 [Open session]

3 [Prosecution Opening Statement]

4 --- Upon commencing at 9.00 a.m.

5 JUDGE AGIUS: Good morning. Please admit the defendants.

6 [The accused entered court]

7 JUDGE AGIUS: Mr. Brdjanin, can you hear me in a language that you

8 can understand?

9 THE ACCUSED BRDJANIN: [Interpretation] Yes, Your Honour.

10 JUDGE AGIUS: Mr. Tadic, can you hear me in a language that you

11 can understand?

12 THE ACCUSED TADIC: [Interpretation] Yes, Your Honour.

13 JUDGE AGIUS: Appearances?

14 MS. KORNER: Joanna Korner for the Prosecution, assisted by Denise

15 Gustin, case manager.

16 JUDGE AGIUS: Mr. Cayley is still with Dr. Donia?

17 MS. KORNER: Mr. Cayley is attempting to try and shorten the

18 evidence before Your Honour at the moment.

19 JUDGE AGIUS: I was going to suggest that.

20 Appearances for Mr. Brdjanin?

21 MR. ACKERMAN: I'm John Ackerman, and with me is my co-counsel

22 Milka Maglov, legal assistant Milos Perec and translator Ratislava

23 Mirkovic.

24 JUDGE AGIUS: And for General Talic?

25 MR. DE ROUX: [Interpretation] I am Xavier de Roux, with

Page 772

1 Michel Pitron and Natasha Fauveau for Mr. Talic.

2 JUDGE AGIUS: So I think we can continue with the opening

3 statement of the Prosecution. I thank you.

4 Ms. Korner?

5 MS. KORNER: Your Honour, before I continue with what I have to

6 say, may I just mention that there are -- at the end of what I have to say

7 in opening, there are a couple of matters which arise still out of what

8 Your Honour said yesterday about the way that the proceedings would be

9 conducted, which I would like to return to, before we call Dr. Donia.

10 JUDGE AGIUS: Yes. Will you come to those at the end of your

11 opening statement?

12 MS. KORNER: I will, Your Honour.


14 MS. KORNER: Your Honour, I was about to deal yesterday with the

15 theme, as it were, of religious and cultural destruction and destruction

16 of property that took place in this area during the period that Your

17 Honours will be considering. If Your Honours have in front of you now on

18 the screen a map -- again, I'm afraid it really -- it was there and it's

19 gone again on my screen.

20 THE INTERPRETER: Could you speak into the microphone, please?

21 MS. KORNER: The map was there, but it seems to have gone again.

22 Obviously, me and the technological miracles of this Court are not

23 compatible. However, Your Honours, again, it sets out in form the places

24 where religious destruction took place.

25 I said yesterday that it is the Prosecution's case that it wasn't

Page 773

1 enough simply to drive out the non-Serb population. The attempt -- the

2 objective of the Bosnian Serbs was to try and ensure that they never came

3 back to the area, and in order to do that, they had to destroy their homes

4 but, almost more importantly, any traces of their culture or religion.

5 The number of damaged or destroyed mosques -- and may I say that I'm using

6 mosques as a generic term. Your Honours will be hearing from an expert

7 who will explain to you that a mosque is a particular type of Muslim

8 building. There are other proper words to describe smaller religious

9 institutions but I'm just using it as a generic term. Your Honour, we

10 listed the majority of the mosques and religious -- and Roman Catholic

11 churches in paragraph 47(b) of the indictment. I have to say that it is

12 not an exhaustive list. Your Honours will be hearing about other damaged

13 mosques which simply fell through the net.

14 These religious buildings were destroyed or damaged, both by

15 shelling during attacks, and by the setting of explosions, the use of

16 mines and the like and grenades. When destruction took place through the

17 use of explosives, this was usually at night and it is rare that any

18 witness is able to give more of a description of the people who caused the

19 explosions than to say they were men in uniform. But in many cases, the

20 destruction was extremely skillful and therefore it is suggested that the

21 persons who were doing the deed were familiar with explosives.

22 Of all the municipalities that we will be dealing with in this

23 case, really only Banja Luka in 1992 escaped serious damage or destruction

24 to the -- its mosques. The most famous mosque, the Ferhadija mosque which

25 was the subject of so much trouble last year, was in fact damaged and

Page 774

1 virtually destroyed in 1993, not 1992. In fact, as Your Honours will

2 hear, Banja Luka is virtually an exception to all the municipalities for a

3 reason that we will suggest later on.

4 The municipalities with the highest total of damaged or destroyed

5 mosques and churches were Prijedor and Sanski Most. In nearly all of the

6 events, these two municipalities figure high on the list.

7 The Prosecution suggest that the period of intensive destruction

8 of mosques that Your Honours will hear about was between roughly May and

9 October of 1992. There were fewer Roman Catholic churches and religious

10 buildings damaged or destroyed simply because there were fewer buildings.

11 And as we've already pointed out, the Croats were a much smaller

12 proportion of the population in this area than the Muslims. However, if

13 one looks at the overall picture, the appearance, we suggest, is that of a

14 deliberate campaign of devastation, not accidental, not the sort of thing

15 that would happen because a village was being fired upon or that there was

16 fighting going on. We suggest that this was deliberate targeted

17 destruction.

18 We suggest that it would be impossible for anyone who was in that

19 area at that time, let alone persons in authority, not to have realised

20 what was happening. In fact, numerous people brought it to the attention

21 of General Talic, not least the bishop of Banja Luka, Bishop Komarica, who

22 in fact wrote a book publishing the letters that he had written to the

23 various people in charge, complaining about what was happening not only to

24 religious buildings but also to Catholic priests and the like. And as a

25 result, no doubt because of this pressure, on the 23rd of June, 1992,

Page 775

1 General Talic issued an order.

2 And I wonder if we could have that put up on the ELMO, please, so

3 that Your Honours could see this. It is a document, disclosure number

4 4.646.

5 Your Honour will see that it is headed "The 1st Krajina Corps

6 Command," dated the 23rd of June, 1992.

7 JUDGE AGIUS: [Microphone not activated]

8 MS. KORNER: Oh, it hasn't appeared on your screens.


10 MS. KORNER: Your Honours will see "1st Krajina Corps Command."

11 And if we could draw back for a moment. Thank you.

12 "Preventing the desecration of religious buildings. Order. In

13 accordance with the views of the Serbian Republic of Bosnia-Herzegovina

14 Army Main Staff, and in order to provide guidance for members of the 1st

15 KK, Krajina Corps, so that they continue fighting the war in a military

16 and honourable manner, I hereby order, ensure at all levels of command

17 that religious buildings or cemeteries of any religion are not desecrated

18 in combat operations or any other situations.

19 2. In combat operations, fire may be opened on religious

20 buildings only when our forces are being engaged from such buildings or

21 when it has been determined that they house an armed enemy who refuses to

22 surrender. The intensity of fire and the type of weapons used should be

23 such as to destroy or neutralise only enemy personnel, without destroying

24 the building.

25 In this connection, members of the Corps are hereby informed that

Page 776

1 the SR BH Army will fight the war against the enemy in a military and

2 honourable manner, consistently abiding by the provisions of the Geneva

3 Convention.

4 3. I hereby forbid harassment or maltreatment of clerics. Such

5 persons who are known or suspected of being on the side of the enemy

6 should be arrested and taken into custody by the military police..."

7 Can you just slow down for a moment.

8 " service, or Ministry of the Interior organs. The

9 civilian population should be treated in the same manner.

10 I shall hold all unit commanders, also all Corps members,

11 responsible for consistent execution of this order."

12 "To achieve this" -- and this is in his handwriting -- "unit

13 commanders shall ensure that this order reaches every single individual."

14 And it's signed commander Major General Momir Talic.

15 And as far as I'm aware, there's no dispute that this was an order

16 actually signed by General Talic.

17 Your Honour, on the 3rd of August - that order was in June - at

18 the same time as he was issuing - that is, General Talic - instructions,

19 you will recall, to clean up the camps in anticipation of the visit of the

20 international persons and the media, he issued a second order in respect

21 of places of worship.

22 I actually thought I was going rather slowly. Apparently not.

23 JUDGE AGIUS: That's what I thought. Actually, I thought it was

24 addressed to me, because you're definitely going slow.

25 MS. KORNER: I think it's probably when one is reading a document,

Page 777

1 we tend to speed up.

2 I wonder if that document could now be put up, please, on the


4 JUDGE AGIUS: [Microphone not activated] The first one was dated

5 when?

6 MS. KORNER: 23rd of June.

7 JUDGE AGIUS: And this is 3rd August?

8 MS. KORNER: This is dated the 3rd of August.

9 JUDGE AGIUS: Yes, okay.

10 MS. KORNER: It's the same day the order was issued in respect --

11 JUDGE AGIUS: So when there's a reference to order number 536-2 of

12 23rd June, it's specifically referring to the one we've just seen before

13 this one.

14 MS. KORNER: Exactly.


16 MS. KORNER: And you will see, as Your Honours have already read,

17 despite the order with the number of 23rd of June, 1992, we are still

18 witnessing instances of demolition of places of worship.

19 "We warn all unit commanders to prevent such irresponsible acts.

20 Failure to abide by my order represents a criminal act and shall be dealt

21 with accordingly. You are required to submit a detailed report and an

22 explanation whenever a place of worship is demolished."

23 And obviously a copy of the order was enclosed.

24 I should add -- it's not on Your Honour's screen, but attached to

25 both orders is a list, a distribution list, to the various units to which

Page 778

1 it was sent.

2 Now, the motive behind these orders, the timing of these orders is

3 a matter that Your Honours will have to decide on when listening to the

4 evidence.

5 What is absolutely clear from that evidence is, despite those two

6 public orders, the destruction continued and no action seemed to have been

7 taken in respect of the persons who were committing that destruction.

8 It wasn't only the military who had the matter brought to their

9 attention. In Teslic, a report was issued by the public prosecutor on

10 what had happened in Teslic between June and September, 1992. It would

11 appear that these reports were a regular part of the duties of public

12 prosecutors who had to submit reports on activities on a regular basis.

13 I'm going to ask that part of that report be placed, again, on the ELMO.

14 If Your Honours look at the first paragraph, it states this:

15 "The destruction of religious buildings is a war crime against

16 civilians because of the way and circumstances in which it was

17 perpetrated. The Serbian people will carry a heavy burden of historical

18 responsibility until the perpetrators of these and similar criminal acts

19 are brought to justice."

20 If we could go back just to the previous page, although it's

21 slightly off the point -- perhaps I could hand it in. Your Honour, for

22 the purposes of Defence counsel, this document was disclosed as 4.285.

23 That part of the report that I just looked at with Your Honours is

24 actually part of a paragraph headed "Actual Crime Situation."

25 "Recorded crime is a fraction of the real crime existing in

Page 779

1 society today. Most criminal acts remain undiscovered, and many crimes

2 are tolerated by the authorities for various reasons. The Prosecutor's

3 Office has knowledge of the day-to-day looting of property, houses and

4 business premises being set on fire and destroyed, armed robbery and

5 murder being committed for base motives, socially owned flats and private

6 houses being occupied unlawfully."

7 I omit the next part.

8 "There is no criminal prosecution for most of these acts. In ten

9 days alone, there were three murders for base motives and several cases of

10 arson and armed robbery. In only one case were the perpetrators arrested

11 and criminal proceedings initiated against them. The perpetrators of the

12 other two murders have not been arrested to the present day. The public

13 prosecutor and the president of the court personally demanded that the

14 command of the Teslic Serbian Brigade arrest one accomplice on suspicion

15 of murder. It is inexplicable why these people have not been arrested."

16 Your Honour, Teslic came under the area of responsibility of

17 General Talic.

18 MR. PITRON: [Interpretation] Mr. President, ladies and gentlemen,

19 Madam Prosecutor, when we are referring to an exhibit that has been

20 summarised by Madam Korner, we see that it is drafted in Serbo-Croat. We

21 notice that it is a document that doesn't have a heading, no stamp, no

22 signature, drafted on white paper, and we contest its authenticity.

23 JUDGE AGIUS: Okay. That's something that will -- we will come to

24 later on, but for the purposes of the opening statement, we are adopting

25 the same procedure we adopted yesterday: Everything will be done without

Page 780

1 prejudice to problems such as the one you just mentioned now. In any

2 case, this is a document which has been disclosed and you have been given

3 the reference number, so we will be able to deal with that later. Thank

4 you.

5 Yes, Ms. Korner, please go ahead.

6 MS. KORNER: Your Honour, the Prosecution suggest that it is not

7 inexplicable, that a deliberate policy was taken by the military and

8 civilian authorities not to prosecute for these type of crimes,

9 particularly when committed against non-Serbs.

10 The destruction of housing and property belonging to non-Serbs was

11 far greater. It's almost incalculable how much was destroyed. The

12 destruction can still be seen by those who travel to Bosnia today, the

13 programme of rebuilding notwithstanding. That it was targeted destruction

14 - particularly when it was not caused by shelling or attacks but by

15 persons blowing up those houses, or in some way destroying them by fire,

16 nearly always after looting and after the population had been removed -

17 becomes extremely obvious in the areas where the villages or towns were

18 mixed, in other words there were Serb population, Serb churches --

19 Orthodox churches, and those belonging to non-Serbs.

20 Your Honour, this was very clearly shown in a broadcast made by

21 ABC news, in a programme called "Nightline" in November of 1992 when the

22 reporter visited the town of Kozarac in the Prijedor municipality.

23 Your Honour, I'm going to ask that a short clip be shown. May I

24 say that the reporter talks about ethnic cleansing. Of course, as with

25 newspapers we all know that reporters are there to take news and we do not

Page 781












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 782

1 rely on obviously what the reporter himself says. It's the pictures we'd

2 like Your Honour to look at.

3 [Videotape played]

4 [Reporter: "... come from the same village in northern Bosnia, an area

5 dominated by two cities, Prijedor and Banja Luka, and a once-thriving

6 Muslim town called Kozarac. We visited the ethnically cleansed Kozarac in

7 northern Bosnia last week. We were closely supervised by the local Serb

8 militia, restricted to just a few blocks of the town once home to about

9 15.000, men, women and children. Today, there are no Muslims there, none,

10 and none of their X-marked homes is intact. Other homes in Kozarac have

11 been marked "To survive," this one with the colours of the Serbian flag.

12 This one says, "This is Serbia." They stand undamaged, like the remaining

13 Serb residents of Kozarac, surrounded in silence, deadly silence."

14 MS. KORNER: Thank you. Your Honour, what that reporter saw there

15 in November, 1992, was exactly like that in the early part of 1996 when

16 the area was first visited by representatives of this Tribunal.

17 Your Honours, can I now turn to the topic of the killings, about

18 which Your Honours will hear evidence? The major killings in this case

19 are set out in paragraphs 38 and 41 of this indictment. When I say "major

20 killings," it is killings that are really on the most -- I'm sorry, at the

21 least, three or four people in one incident. They do not include, for

22 obvious reasons - because otherwise we would go on for page after page

23 after page - the many instances of single killings which took place when

24 villages were taken over by the Serb forces.

25 The Prosecution do not suggest that either accused personally took

Page 783

1 part in any of these killings, in other words, that they were holding the

2 gun or whatever the implement was that caused death. But we do allege

3 that they bear responsibility for these killings, in that they were a

4 direct result of the policies that they were pursuing in the area of the

5 Autonomous Region of Krajina. And additionally, in the case of Talic,

6 where the perpetrators were known to be members of the forces under his

7 control, he took few, if any, steps to bring them to justice.

8 It has been a matter raised on a number of occasions by counsel

9 for Talic during the pre-trial proceedings that we do not name the

10 perpetrators of the actual killings. In many cases, the majority, we

11 would say, the identity of the actual killers is not known. People who

12 survived the killings or witnessed the killings are only able to say that

13 the people who committed them were Serb soldiers. And that, of course,

14 covers a number of possibilities: that they were members of the regular

15 VRS, or that they were people, reservists, in the territorial units who

16 had been called up, or that they were nothing more than local Serbs who

17 had put on uniform.

18 Nothing in the ARK area reached the scale, in terms of numbers,

19 that the massacre that the world now knows about which took place in

20 Srebrenica, that the numbers were nothing like that. But across the

21 board, there were killings of substantial numbers of men in single

22 incidents, which we suggest show a pattern again.

23 In Kljuc, on or about the 1st of June of 1992, about 100 men were

24 ordered together in the village of Velagici. They were taken to the local

25 school by Serb soldiers. Three men were immediately killed in the front

Page 784

1 of the school. The remainder were then ordered to leave the building.

2 There was then indiscriminate fire, and nearly all of them were killed.

3 In the same municipality, on the 10th of July - so just over a

4 month later - Serb soldiers -- and on this occasion, there is no doubt who

5 they were. They were members of one of the territorial units which had

6 been brought under Talic's command and were the 17th Light Infantry

7 Brigade. They collected a number of men from a village called Biljani.

8 Again, they were taken to the school. That is a theme that runs across.

9 It was nearly always the school. It may be because simply that was the

10 largest building available. The man in charge of the unit is also known

11 by name, a man named Marko Samardzija. He was recognised by some of the

12 people who actually survived or saw the massacre.

13 At the school, some of those men again were shot in front of the

14 school. Some of them were shot in buildings -- outside buildings near the

15 school. The remainder were taken away in buses and killed elsewhere.

16 Some men were arrested. It was a notorious event. And an investigation

17 was carried out. But the records show that nothing ever happened to those

18 men. They were simply returned to their units. As to the commander, he

19 resigned. He is still alive and well and, as far as we know, walking the

20 streets today.

21 In Prijedor, on the 24th of July of 1992, the infamous Room 3

22 massacre, with which I have already dealt, took place.

23 On the 25th - so a day later - some 90 men who had been kept in

24 the Ljubija football stadium, as a detention camp, were taken to a nearby

25 iron ore pit. They were being guarded by ten or so Serb soldiers. At the

Page 785

1 pit, they were taken off in groups of three and executed. Dead and dying

2 men were thrown into the pit.

3 I will deal with exhumations in a little while, but very recently,

4 as Your Honours may have heard, there has been an exhumation taking place

5 at that site.

6 On the 21st of August, 1992, some 200 non-Serbs - because they

7 were mixed on this occasion - were in a convoy being taken to Travnik.

8 They were in two buses, packed into two buses. Their escort was made up

9 of Serb police. The buses were stopped. The men were taken off. And

10 they were murdered. It is what is now known as the Mount Vlasic

11 massacre. Very few of those 200 or so men survived. But Your Honours

12 will be hearing from at least one of those survivors.

13 In Kotor Varos, in November 1992 - as I told Your Honours, the

14 events in Kotor Varos started later than elsewhere in the region - men who

15 had been resisting the Serb attack in the town of Velagici decided to

16 flee. They split into two groups. One group decided to go to Travnik.

17 The group consisted of men, women, and children. This group was captured

18 by members of the VRS. They were taken to a school at Grbavica. There

19 were something like 167 men. The women and children were separated. They

20 were taken off in buses. And Your Honour will hear from one of the

21 then-children or young boys, now an adult, of the gauntlet that they were

22 forced to run before they were able to get on the buses or lorries that

23 had been provided. Those men who were left in the school have never been

24 seen again. And although no bodies have been recovered, the Prosecution

25 suggest that the circumstances are such that they can have only been

Page 786

1 killed that day.

2 Your Honours, that is a brief description of some of the major

3 killings that took place in this area, but there were, as we say, numerous

4 other, smaller - if that's the right word - killings, leaving aside those

5 that were killed in the attacks. Can I just deal with some of these

6 so-called smaller killing incidents?

7 For example, in Sanski Most, on the 31st of May of 1992, the Serb

8 army attacked the predominantly Muslim village of Vrhpolje. Again, women

9 and children were separated from the men. The men were taken to the

10 Vrhpolje bridge. Killings occurred on the way to the bridge and at the

11 bridge itself. On the same day, men from another village, called

12 Hrustovo, were sheltering in a garage. There were approximately 20 of

13 them. All of those men were killed. In Kljuc, again, on the 1st of June,

14 the village of Prhovo was attacked. Serb soldiers separated the men from

15 the women and children, and the men were taken towards a village called

16 Peci. On the way to that village, on the road, about 20 men were killed.

17 That type of pattern, particularly killings on the bridge or

18 people being forced to jump from the bridge into the water, was repeated

19 over and over again across the municipalities.

20 Was anyone ever prosecuted? Persons in military uniform, whether

21 paramilitary, territorial or professional members of the VRS, came within

22 the jurisdiction of the military court in Banja Luka, not the civilian

23 courts. And what was General Talic's attitude towards prosecution? There

24 were a great many serious crimes committed against the non-Serb population

25 by soldiers under the command of General Talic. Aside from the killings,

Page 787

1 there were also instances of rape, robbery and theft. Unfortunately, in

2 virtually all cases, the perpetrators of these crimes were not brought to

3 justice. There was a military prosecutor's office attached to the 1st

4 Krajina Corps, and some cases of serious crimes committed by Serb soldiers

5 against the non-Serb population were referred for prosecution. It was

6 basically those that achieved a notoriety which it was impossible to

7 ignore. But in practice, few, if any, Serb perpetrators were actually

8 convicted, let alone punished, for the crimes committed against

9 non-Serbs. Even in cases of mass murder, as in the ones I've just

10 described, Serb soldiers were routinely released back to their units

11 following arrest, and never faced trial or punishment.

12 The commanders of the 1st Krajina Corps would intervene in the

13 judicial process to make sure that their men were not punished. I have

14 dealt with the case of the massacre at Biljani. In respect of the

15 Velagici killings, there the soldiers who were prosecuted and convicted

16 were simply -- the convictions were quashed and the defendants given their

17 freedom with no consequences for their actions. And these miscarriages of

18 justice often occurred in the face of overwhelming evidence of guilt that

19 was available to the prosecution and court. Some of these cases are

20 technically still open today. In contrast to this, Serb soldiers who

21 murdered other Serbs were subject to aggressive and efficient prosecution,

22 and that typically resulted in significant periods of imprisonment for the

23 offenders.

24 The crimes which I suppose could be said to affect good military

25 discipline, such as desertion or armed rebellion or illegal possession of

Page 788

1 weapons, those were -- desertion really, as far as the Serb soldiers were

2 concerned, they were prosecuted properly. And many of the non-Serb

3 population were themselves prosecuted for possession of the illegal

4 weapons after the orders had been issued or other crimes. They themselves

5 were efficiently prosecuted and convicted.

6 And so we say, Your Honours, the only reasonable conclusion to be

7 drawn, as I said earlier on, particularly in relation to General Talic, is

8 that there was no serious effort or will to prosecute soldiers for crimes

9 they had committed against non-Serbs.

10 Your Honours, may I deal briefly now with exhumations? There, I

11 hope, should be, coming up on Your Honour's screen, a map just showing --

12 one doesn't need to look at the places -- I think it's maybe because the

13 document is still on the ELMO. That's what's occupying my screen. Yes.

14 Do Your Honours have it?


16 MR. ACKERMAN: [Microphone not activated]

17 JUDGE AGIUS: [Microphone not activated]

18 MS. KORNER: Your Honours, in due course -- this obviously doesn't

19 -- the colouring makes it very difficult to scan properly, but it's just

20 to give a general idea of the number of sites.

21 Your Honour, some idea of the extent of the killing of civilians

22 which occurred in the ARK area during the indictment period can be gained

23 by examining the evidence of bodies exhumed since the end of the conflict,

24 and also certificates of death which have been issued by the Bosnian

25 courts. In due course, Your Honours will be hearing evidence from a judge

Page 789

1 who has dealt with quite a lot of this. The system appears to be that it

2 is possible for a family member to go to court to obtain a declaration of

3 death after a period of time, which, by my recollection, is five years and

4 not seven, which it is in a number of jurisdictions, and Your Honours will

5 hear about the procedures that are followed.

6 The exhumations, as I say, are still, in fact, continuing. There

7 was one very recently at the Ljubija pit area. In the 16 municipalities,

8 some 2.364 bodies have been exhumed from 462 mass and individual graves.

9 Of those 2.000 persons exhumed, about half of them, around just over

10 1.022, are known to have disappeared in 1992. Of the remainder, some 3.6

11 per cent disappeared between 1993 and 1995, so after the period of the

12 indictment, but for the remainder of the exhumed remains, no year of death

13 can be determined.

14 Now, of the 31 killings which we have listed in paragraph 38 of

15 the indictment, 452 persons coming from 20 of the incidents, have been

16 exhumed and identified. Of the killings set out in paragraph 41, which is

17 the killings that occurred in detention facilities, 240 remains have been

18 exhumed relating to 4 of the actual killings.

19 Court records have been received from eight municipalities

20 producing certificates of death. They relate to some 1.589 individuals

21 who have been missing since 1992 but for whom no bodies have ever been

22 recovered.

23 Your Honours, I have very nearly concluded what I have to say.

24 Before I return to effectively summarise the overall picture that we say

25 represents the two accused's activities, can I just very briefly explain

Page 790

1 the structure by which we will call the evidence.

2 As Your Honours know, for the sake of coherence, the evidence will

3 be called on a municipality-by-municipality basis, roughly we hope in a

4 chronological order of the events. It can to a certain extent create an

5 uneven picture because, as we say, the -- one of the telling facts in this

6 case is the pattern that emerges. But we hope at the end of that evidence

7 to be able to present that to Your Honours in some kind of diagrammatic

8 schedule form. Obviously, we will have to wait until the evidence has

9 been heard.

10 I have looked in this opening at the thematic elements of the

11 evidence because this is not a case where the accused are the actual

12 physical perpetrators of the crimes. Their responsibility arises from

13 their roles in the planning, the instigation, the ordering, the execution

14 of this campaign that we say existed to permanently remove non-Serbs by

15 the condition of the crimes alleged in this indictment.

16 The case will start with evidence from the municipality of Banja

17 Luka, because it was the base for the ARK Crisis Staff, it was where the

18 headquarters of the 1st Krajina Corps were located.

19 As I've already referred to that municipality, it is perhaps the

20 exception to the rule. The pattern that is discernible across the other

21 municipalities during the course of 1992 is not seen so strongly in Banja

22 Luka. Many of the lesser persecutory elements are present: the denial of

23 rights, the removal of non-Serbs from their work, the removal from their

24 residences, and the like. And certainly there were police forces or

25 paramilitary forces, in particular -- Your Honours will hear about what is

Page 791

1 described as the red kombi, a red van, which went round the streets of

2 Banja Luka, pulling in people of non-Serb ethnicity, beating them, and

3 taking them to the police station where further beatings took place. But

4 it never reached the heights in Banja Luka in 1992 of any of the other

5 municipalities.

6 There may be many reasons for this: It was too visible for the

7 crude, not to say brutal, techniques which were applied in many other

8 municipalities; it had constant visits from members of the International

9 Community -- David Owen, as he then was, Lord Owen, and Mr. Vance went

10 there when they were negotiating -- relief organisations providing

11 humanitarian aid or aid to refugees operated from there.

12 Accordingly, many of the witnesses who come from the ethnic --

13 from the non-Serb ethnic make-up did survive 1992, without perhaps more

14 than harassment or some kind of occasionally beatings. But they were

15 allowed to survive and remain during 1992. One of the aspects that Your

16 Honours may think emerges from the evidence that -- what was actually

17 taking place was a gradual encirclement of Banja Luka, as one municipality

18 after another came under complete Serb control.

19 What about the witnesses themselves? Many of them will be giving

20 evidence of crimes which were perpetrated upon them or upon family members

21 or crimes to which they were witnesses, crimes of an egregious nature.

22 Others will give evidence of the political aspects of what happened, more

23 of an overview. It is worth remembering that all of them are describing

24 now events which happened ten years ago. And I don't think one needs to

25 have an expert to come and tell us that memories fade after ten years.

Page 792












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 793

1 In addition, the Prosecution will call persons with expertise in

2 fields which are relevant to this indictment where they have conducted

3 analyses of the evidence. For example, there will be expertise or expert

4 evidence called about command and control issues which arise in relation

5 to the military; about religious destruction; demographers - and as Your

6 Honours know, the first witness will be the historian, Dr. Donia - and

7 constitutional experts, very briefly, just to give the expert view on the

8 crisis staff and to explain some of the terminology that does come up over

9 and over again in the documents and from the witnesses in this case. And

10 of course, apart from the testimony of witnesses, the Prosecution rely on

11 documentary evidence which was either seized by way of a search warrant

12 some years ago now in the area or provided by witnesses or other

13 organisations.

14 Your Honours, finally, can I come back, then, to what is of course

15 the issue in this case, the responsibility of the accused. This has been

16 set out in the pre-trial brief in relation to each accused in respect of

17 each municipality.

18 What I propose now is simply to summarise that.

19 The Prosecution say that both of the two accused were in positions

20 of responsibility. Both were close to the persons who, first of all,

21 through the medium of the political party, the SDS, and then when the SDS

22 became the government, which was established in the areas now known as

23 Republika Srpska, they were the main public figures in this enterprise to

24 create the Serbian state.

25 Radoslav Brdjanin, from September of 1992, was directly involved

Page 794

1 in that government as a minister. General Talic, as Commander of the

2 1st Krajina Corps, reported directly to the main staff of the VRS and

3 effectively to its chief, General Mladic. Certain of the persons to whom

4 these two accused were close and closely linked have been indicted and so

5 are specifically named in this indictment - that is to say Radovan

6 Karadzic, not yet arrested, Momcilo Krajisnik and Biljana Plavsic - but of

7 course there were others not indicted and not named. The Prosecution in

8 this case does not have to prove the guilt of any of the others named.

9 They are not charged in this indictment. The Prosecution, we submit, has

10 to prove that there was a criminal enterprise and that these two accused

11 knowingly and wilfully joined that enterprise and within that enterprise

12 played the roles that their positions assigned them to.

13 As far as Radoslav Brdjanin is concerned, the Prosecution say that

14 from early 1991, and in particular from the time that the Association of

15 Bosnian Krajina Municipalities was formed, from that time, he was a

16 leading figure, not only in the politics of the Krajina but on a wider

17 front through his activities as an SDS deputy to the Assembly of Bosnia

18 and Herzegovina. That is before the creation of the Serbian Assembly.

19 But he was one of the founding members of that Assembly of the Serbian

20 People.

21 Intercepted telephone communications show direct contact with

22 Radovan Karadzic in the lead up to the cataclysmic events of 1992.

23 On the 12th of July of 1991, the SDS held a meeting in Sarajevo.

24 Brdjanin attended as a delegate from the Bosnian Krajina, together in fact

25 with Vojo Kupresanin. And during the discussions or speeches, he set out

Page 795

1 what the Prosecution suggest was his personal creed: "I am a man who

2 abides by two principles. I obey and respect those who are above me. All

3 those who are under my command must obey me." We suggest these are not

4 the words of a man who was, or would be prepared to be, no more than a

5 figurehead, a puppet. His words and actions demonstrate not only a man

6 committed to the creation of a Serbian state but a man ready to use, and

7 encourage others to use, unlawful methods, violence, to achieve that

8 goal.

9 In June or July of 1992, whilst so-called combat operations were

10 under way in Kotor Varos, being undertaken in fact by units of the 1st

11 Krajina Corps, Brdjanin visited the area and he was interviewed on

12 television. Your Honours, I'm going to ask that be played but we have for

13 Your Honours a transcript, an English version.

14 JUDGE AGIUS: Is this the paper which was handed out yesterday by

15 any chance?

16 MS. KORNER: It is, if Your Honours have that. And I think

17 Defence counsel have been given a copy. If that video clip --

18 JUDGE AGIUS: [Microphone not activated] I want to verify with the

19 Defence, this was one sheet of paper that was circulated yesterday. You

20 don't have a copy of it?

21 MR. ACKERMAN: I didn't get it yesterday, Your Honour.

22 JUDGE AGIUS: So I would suppose if it was handed to the Tribunal,

23 it should be handed also to the Defence, if you have any spare copies

24 before you proceed, please.

25 MS. KORNER: Your Honour, I don't. I think the reason was that we

Page 796

1 understood it would be translated but we can get it -- we've got one

2 copy. It's disclosure number 3.33, but I don't imagine that any of the

3 Defence counsel --

4 JUDGE AGIUS: Can we have four photocopies -- or seven photocopies

5 made before you proceed, Ms. Korner?

6 MS. KORNER: Certainly. I do apologise.

7 JUDGE AGIUS: I realise this was circulated yesterday, and between

8 then and today, it will not be the first time it may have been mislaid,

9 but I would like you to proceed only when the Defence team have it in

10 front of them, and it's only going to take one minute maximum to ...

11 Do you require more copies? This is why I said seven.

12 MS. KORNER: [Microphone not activated] I don't think co-counsel

13 can --

14 JUDGE AGIUS: [Microphone not activated]

15 MS. KORNER: Absolutely. Perhaps we can just read.

16 JUDGE AGIUS: I think you can go ahead, Ms. Korner.

17 MS. KORNER: Right. If we could just play the video clip, then,

18 please.

19 [Videotape played]

20 THE INTERPRETER: [Voiceover]

21 "REPORTER: Tell us, Mr. Brdjanin, about the reasons of your

22 arrival and how would you assess the most recent events in the region of

23 Kotor Varos?

24 MR. BRDJANIN: It was my duty as the President of the Crisis Staff

25 of the Autonomous Region to visit all the theatres of war. However, I

Page 797

1 must admit that I was visiting the corridor most of all of the time. But

2 the reason for my arrival is that every Monday I have to report to all the

3 presidents of the Crisis Staff on the political situation in this region.

4 We have to sweep through our region, that is through Kotor Varos and

5 Jajce, and the most important ongoing battle I saw yesterday is the battle

6 for penetration towards Serbia. We realise that negotiations with the

7 enemy side have become impossible, for those who have taken up weapons

8 must be defeated. They have to hand in their weapons and total Serbian

9 authority must be imposed here."

10 MS. KORNER: Thank you.

11 Your Honours, it would appear that the person Your Honours saw

12 briefly at the beginning of the clip firing -- or on a tank was in fact,

13 as the translation suggests, Radoslav Brdjanin.

14 Your Honour, the importance, we say, is what he's actually

15 saying. And it encapsulates his attitude and really the role of the

16 crisis staff.

17 "It is my duty as the president of the crisis staff of the

18 Autonomous Region to visit all of the theatres of war; however, I must

19 admit that I was visiting the corridor most of the time. But the reason

20 for my arrival is that every Monday, I have to report to all the

21 presidents of the crisis staffs on the political situation in this

22 region. We have to sweep through our region, that is, through Kotor Varos

23 and Jajce, and the most important ongoing battle I saw yesterday is the

24 battle for penetration towards Serbia. We realise that the negotiations

25 with the enemy side have become impossible, for those who have taken up

Page 798

1 weapons must be defeated. They have to hand in their weapons, and total

2 Serbian authority must be imposed here."

3 Your Honours, it may be as well to remind ourselves that the

4 municipality of Kotor Varos had a 38 per cent population that declared

5 itself Serbian, 30 per cent Muslim, and 29 per cent Croatian.

6 The Prosecution say that Radoslav Brdjanin was rightly regarded as

7 an extremist and that in the positions that he occupied, particularly as

8 president of the ARK Crisis Staff, he was at the very least - and we say

9 it went a great deal further than that - able to influence the decisions

10 and the actions taken at the municipality level at which the -- at which

11 level the crimes were being committed.

12 Your Honours will hear evidence about the actual involvement of

13 members of those crisis staffs in the commission of crimes, in particular

14 in places such as Sanski Most and Kljuc. We say those people who actually

15 took part in the actual crimes were doing so with the full knowledge and

16 indeed with the -- if one can put it this way, at the instigation of the

17 president of the regional crisis staff.

18 Your Honour, with respect to General Talic, to sum up his role --

19 I spent some time yesterday dealing with his role, but what one can say is

20 this: The 1st Krajina Corps was the largest and most experienced corps of

21 the Bosnia Serb army, the VRS. From its establishment, it undertook a

22 mobilisation and expansion process that continued during the summer of

23 1992. It took control of all the Serb Territorial Defence units and other

24 armed formations that were not already operating as units of the corps.

25 The VRS was organised around a comprehensive military document --

Page 799

1 doctrine - I'm sorry - and a series of laws. The application of those

2 doctrines and laws was codified in the rules and regulations which

3 governed all levels and organs of the military. General Talic had been in

4 the JNA, as it was, the VRS, as it became, for over 30 years by the time

5 of these events and we suggest was well suited and well understood the

6 obligations that his role as commander of this corps imposed upon him.

7 If one looks briefly at just a few of the municipalities in which

8 his corps operated, just to remind ourselves of what was happening there.

9 From the documents, from his own corps documents, it becomes plain. But

10 for example, in Prijedor, he commandered the military operations against

11 the Muslim armed groups and the Muslim population, in particular, in

12 Hambarine and Kozarac. We say from those documents he knew at this time

13 that soldiers under his command were taking revenge on the civilian

14 population in Prijedor.

15 When Hambarine, a predominantly Muslim village, was attacked by

16 his forces, civilian housing and the civilian population became the target

17 of the attack. General Talic knew that units under his command had

18 "sealed" the town of Kozarac that Your Honours saw in that brief video

19 clip. He reported that 80 to 100 Muslim men were killed and 1.500 had

20 been captured. It would appear that the numbers killed were considerably

21 higher. And Your Honours will be hearing evidence to the effect that he

22 was told that these numbers were higher but reduced the numbers when

23 reporting it to his superiors.

24 And from the end of May into June, both members of the VRS and the

25 Serb police forces continued to disarm, to capture, and to liquidate

Page 800

1 members of the non-Serb population. In fact, General Talic reported to

2 his superiors that something like 7.000 Muslims from the Prijedor area had

3 been detained in the Omarska and Trnopolje camps. Security around the

4 Trnopolje camp was provided by units who came under Talic's command. And

5 I don't need to remind Your Honours again of his connection with the

6 Manjaca prison camp.

7 As far as Sanski Most is concerned, by the end of April of 1992,

8 all the key installations in Sanski Most had come under the control of the

9 6th Partisan Brigade, the Serbian Territorial Brigade, and the police.

10 In May, he reported that forces under his command were controlling

11 Sanski Most. Serb forces, the VRS, shelled the predominantly Muslim

12 villages of Hrustovo, a Muslim area in Sanski Most; Mahala; and the Muslim

13 village of Vrhpolje. There was large-scale looting and plunder of Muslim

14 and Croat property carried out by members of his units. Units under his

15 command were engaged, we suggest, in the destruction of housing and

16 religious buildings that were in the Sanski Most area.

17 And throughout May and June, there were many arrests of Muslim and

18 Croat men in Sanski Most. Those arrested were interrogated, and many of

19 them, if not most, were severely beaten. It was units under his command

20 that were responsible for bringing in nearly all these people to the

21 Sanski Most Detention Centres. Again, they provided security at those

22 centres. And the crisis staff in Sanski Most resolved - they actually

23 drafted a resolution which we have a copy of - to send the prisoners who

24 were politicians, nationalist extremists, or unwelcome in Sanski Most to

25 the VRS camp in Manjaca. That had to be arranged through Talic's

Page 801

1 command. And throughout the period, he reported on what is described as

2 "mopping up and disarming" through June of 1992.

3 Celinac, which we haven't really dealt with, because it was a

4 municipality with an overwhelming Serb majority. And by and large in

5 those municipalities, the events of 1992 were not so dramatic or so

6 devastating. But even there - and came within Talic's area of

7 responsibility - he was aware that in August of 1992 attacks had taken

8 place on villages called Velagici and Samac. And he was aware that

9 civilians had been killed and that houses belonging to Muslims had been

10 destroyed.

11 And in August he was aware that a light infantry brigade under his

12 command, was, as he put it, taking its revenge - those are the words of

13 the English translation of the words that were used - on the Muslim

14 population around Celinac, and he knew that this type of conduct was

15 becoming exceedingly frequent.

16 Your Honours, I could go on but Your Honours have seen it in the

17 pre-trial brief. I've just selected three municipalities as an example.

18 Your Honours, in respect of General Talic, we say that he was

19 ideologically committed to this cause. He was not just a military officer

20 obeying orders. We say that he shared the intention of his co-accused,

21 Radoslav Brdjanin, to, as it were, expel from the areas that were regarded

22 as properly belonging to the Serbian state that was to be created by the

23 use of unlawful criminal methods. And, Your Honour, we say that becomes

24 apparent from his own documents, what was said and everything that we know

25 about General Talic.

Page 802

1 At the end of the day, as I said when I started this opening

2 yesterday, it is Your Honours who decide on what is the proper evidence in

3 this case, what the evidence shows, and whether the Crown -- whether the

4 Prosecution proved its case. Your Honour, we say at the end of the

5 evidence, Your Honours can be satisfied so that you are sure that the

6 Prosecution has proved its case.

7 JUDGE AGIUS: Yes. Thank you, Ms. Korner.

8 Yes, Mr. Ackerman?

9 MR. ACKERMAN: Your Honour, I have one very brief objection that I

10 would like to lodge that I did not want to interrupt her for.


12 MR. ACKERMAN: Ms. Korner seems to be taking the position that

13 Mr. Brdjanin was at the very least a person of influence, a man of

14 influence, who could have influenced certain events. I want to object to

15 any suggestion by Ms. Korner that that has legal significance. That issue

16 was raised by the Prosecution, argued vigorously and decided against them

17 by the Appeals Chamber in the Celebici case. They were alleging that one

18 of the persons in that case should have been convicted because he was a

19 person of influence and could have influenced persons over whom he did not

20 have a superior relationship - they were not his subordinates - just

21 because of his influence, and that was soundly rejected, and that decision

22 is binding not just on the Prosecutor and me but all of us, including the

23 Trial Chambers. To the extent she is suggesting that is the law, it's

24 not. Thank you.

25 JUDGE AGIUS: Thank you.

Page 803












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 804

1 MS. KORNER: Your Honour?

2 JUDGE AGIUS: Yes, Ms. Korner? If you want to rebut this, you

3 can, and please try, in as short a time as possible, also to touch upon

4 the other two matters that you wanted to raise. Thank you.

5 MS. KORNER: Your Honour, we have set out the legal modes of

6 liability, and I thought I had made it clear we do not suggest that it's

7 influence. We suggest it is instigation, ordering and all the other modes

8 of liability that we have set out. If I used -- if it was taken that I

9 was suggesting that mere influence was sufficient to found a conviction,

10 then I'm sorry, it was never intended so to do. Clearly, the modes of --

11 by which these offences can be committed are set out.

12 Your Honour, very briefly, then, two matters that I wish to

13 raise. Firstly this: When Your Honours -- when Your Honour yesterday was

14 talking about treating a witness as a hostile witness, in, I think, Your

15 Honour's jurisdiction and my jurisdiction, that arises when a witness, who

16 is expected to give evidence in accordance with the statement they've

17 made, suddenly departs from it and shows an attitude which is hostile to

18 the person calling them. And it is, I think in our jurisdictions, you

19 cannot call a witness that you know doesn't wish to give evidence and will

20 not give evidence in that effect. Now, it's different, I know, in the

21 United States, where the person calling a witness is allowed to call a

22 witness whom he knows is hostile but then allowed to treat him as a

23 hostile witness virtually ab initio. I was unaware that there was any

24 provision really in this Tribunal whereby one could deal with that, but if

25 there is, it might assist if Your Honour were to make it clear which kind

Page 805

1 of system --

2 JUDGE AGIUS: Well, the system that this Trial Chamber opts for is

3 that if you bring forward a witness, you are expected not to attack the

4 credibility of that witness. In other words, we are talking of your

5 witness. And therefore, you are expected to bring forward witnesses that

6 you have consulted with beforehand, that more or less you know what kind

7 of evidence they are going to produce. Now, if that witness, at any point

8 in time in the course of the testimony, turns against you and disrupts

9 what you had planned to get from that particular witness, him or her being

10 your witness, then obviously you are going to be faced with a difficult

11 situation and it may well be that you would prefer to bring forward

12 previous statements made by that witness that are contradictory to what

13 that witness would be stating during these proceedings. This is what I am

14 referring to.

15 You will not be allowed to contradict the witness until you first

16 obtain the permission of the Trial Chamber to do so. In other words, once

17 you have taken the decision to produce that witness as your witness in

18 support of your case, then the practice ought to be that you do not try to

19 discredit your own witness. But if you need to discredit your own witness

20 at any point in time, obviously, you will be allowed to do that provided

21 the Tribunal, the Chamber, is satisfied that that witness has turned

22 hostile.

23 MS. KORNER: Yes. That is very helpful.

24 JUDGE AGIUS: That's the position. Have I made it also clear --

25 yes?

Page 806

1 MR. DE ROUX: [Interpretation] Mr. President, I must say I am not

2 familiar with the Anglo-Saxon method. What does this mean to discredit

3 the witness? To contradict him in order to discredit him? Or is it

4 necessary to attack his honour and his integrity? I'm a bit lost in these

5 concepts which are quite alien to me.

6 JUDGE AGIUS: They are not as alien as you think, Mr. de Roux. It

7 can happen to the Prosecution; it can happen to the Defence. There may

8 come a time when you produce a witness and -- thinking that that witness

9 is going to state certain facts which would go in favour of your client,

10 and in actual fact, to your surprise, that witness all of a sudden becomes

11 a hostile witness, that witness will say exactly the opposite, or that

12 witness will refuse to answer questions to which you know, and your client

13 knows, he or she has got a very straightforward answer. You may need at

14 that point in time to justify the fact that you have brought forward that

15 witness, because no one expects you, as a competent Defence lawyer, to

16 bring forward witnesses that will harm rather than help the cause of your

17 client.

18 So the rule is that once you have chosen to bring forward a

19 witness, it's because you believe in the credibility of that witness.

20 Otherwise, as I pointed out to you yesterday, you have a duty not to bring

21 forward witnesses that are not going to say the truth. That is a duty

22 which each counsel has. If you, in other words, produce a witness, it's

23 because you know, you're confident, that he or she is going to tell the

24 truth and that truth is going to go in favour of your client, or at least

25 benefit the course of justice, the search for truth. If that doesn't

Page 807

1 happen, you are in a difficulty, and it may well be that you will need to

2 discredit your own witness, in other words to say that that -- to prove to

3 the Court or show to the Court that that witness is telling a lie now

4 because he is used to telling lies, that that witness is telling a lie now

5 because you have ample evidence that on previous occasions, he had stated

6 this and that, which is exactly the opposite of what he or she is stating

7 now, and that would justify also your decision to bring forward that

8 witness to testify in front of this Tribunal in favour of your client.

9 Otherwise, it doesn't make sense.

10 So this is not actually -- it is given more emphasis and more

11 importance in Anglo-Saxon and common-law practices, but it is also a

12 problem that has arisen before this Tribunal in other cases, and on which

13 there has been more or less a practice that has been adopted. In other

14 words, you will be, as such, entitled to treat that witness as a hostile

15 witness and also try to discredit that witness and also bring forward

16 prior, contradictory statements only if you first seek the permission of

17 the Tribunal, and the Tribunal will give that permission if that -- if

18 there is relevance to the evidence that you would like to bring forward.

19 MR. DE ROUX: [Interpretation] I understand fully, Mr. President.

20 After all, all systems resemble one another eventually. It's just a

21 manner of expressing ourselves that differ.

22 JUDGE AGIUS: I obviously used a term which is more -- more or

23 less belongs and is used more in common law jurisdictions. You know, I

24 mean -- but I hope I have made myself understood. I mean, it will not

25 create big problems. More or less it's a rule that follows -- it's a

Page 808

1 consequence to the rule that you should not bring forward witnesses that

2 you know are not going to say the truth. And as a consequence, him or her

3 being your witness, I have to -- you have to cover yourself and you have

4 to cover also the whole proceedings.

5 Yes, Ms. Korner.

6 MS. KORNER: Your Honour, the only other matter I want to raise --

7 and perhaps I know it's time to the break. If I can just bring it to Your

8 Honour's attention. Your Honour did not deal with the Rule which is

9 90(H)(ii). And I think Your Honour perhaps ought to deal with it because

10 it's not a rule that is familiar, as I understand it, to the civil

11 systems. And indeed, I think even in the United States it's not an

12 obligation to put your case.

13 JUDGE AGIUS: Yes. But Ms. Korner, I think the life of this

14 Tribunal risks -- already has an inherent risk in matters of

15 cross-examination, not because counsel like you coming from jurisdictions

16 where cross-examination is part of advocacy and is an art in itself but

17 because we have other lawyers here, other counsel, coming from a

18 jurisdiction where cross-examination as such is not institutionalised.

19 And this is perhaps one reason why this paragraph is included in the

20 Rules.

21 I think I do not need to explain it. I would suppose that

22 Mr. de Roux and Mr. Pitron are fully aware of it, and I would suppose that

23 Mr. Ackerman also is aware of it, although, as you say, it is not quite

24 akin to the -- or does not form part of the jurisdictions around the

25 various states in the US.

Page 809

1 It's one Rule that has to be observed. But I don't need to

2 explain it. I mean, all I need to explain is that you're not expected to

3 make a whole speech to the witness before you start your

4 cross-examination, and a witness may have given evidence on a particular

5 event, and you are to address the cross-examination on what actually has

6 been stated by the witness in examination-in-chief. That is the main rule

7 of the cross-examination. Anyway, the Rules are there. You have (H)(i),

8 and (H)(ii), and (H)(iii), and more or less you are expected to follow

9 those Rules.

10 What I can tell you is that I will not allow across -- an

11 across-the-board cross-examination dealing with cabbages and kings. I

12 mean, the Rules have to be observed. If paragraph 1 says that

13 "Cross-examination shall be limited to the subject matter of the evidence

14 in chief and matters affecting the credibility of the witness and where

15 the witness is able to give evidence relevant to the case for the

16 cross-examining party to the subject matter of that case," that's what the

17 cross-examination has to be limited to. Then obviously there may be

18 instances where we have to open a little bit or restrict a little bit.

19 But again, I think we will have to play it by the ear. I don't

20 know as yet how it's going to go. I still have to wait and see what kind

21 of cross-examinations we will have. And I will direct -- conduct the

22 orchestra as we go along. But I would imagine that -- I'm not going to

23 explain to experienced lawyers coming from -- from --

24 MS. KORNER: Your Honour, I wasn't asking Your Honour to explain

25 it. I was simply asking Your Honour to draw the attention to -- of

Page 810

1 counsel to this. And Mr. Ackerman I know has practiced here for a number

2 of years.

3 But it has -- it is a problem that has arisen in other cases

4 because it is not a feature of the civil law system to say to a witness

5 when your case is -- "I suggest to you," or however you put it, "that what

6 you are saying is not the truth," or "you are mistaken," or however you

7 wish to put it. And so witnesses go away without that feature ever having

8 been put and then have to be brought back at vast expense, extending the

9 trial, if it's important enough, for that matter to be dealt with. And

10 that's the only reason I'm raising it.

11 JUDGE AGIUS: Okay. Anyway, we will break now until 11.00. And I

12 understand we will resume with the evidence of Dr. Donia.

13 MS. KORNER: Yes. Your Honour -- I'm sorry, may I just say

14 Mr. Ackerman gave me a document this morning which he is going to ask

15 Dr. Donia about.

16 JUDGE AGIUS: Yes. Do you want two days?

17 MS. KORNER: And I want two days, yes -- no, I just wanted an

18 opportunity -- I don't know if Dr. Donia has been brought down here yet,

19 but I wanted him to have an opportunity to look at that document before

20 he's called.

21 JUDGE AGIUS: Okay. So are you suggesting that we start a little

22 bit later than 11.00?

23 MS. KORNER: Yes. Could Your Honours say five past 11.00.

24 JUDGE AGIUS: Okay. Let's start at five past -- or let me have --

25 please send me a message whether five past 11.00 is okay or whether you

Page 811

1 prefer ten past. It depends.

2 In the meantime, may I confirm -- have a confirmation from

3 Mr. Ackerman and Mr. de Roux that you are not going to make your opening

4 statements. That's the indication you gave last Friday or last Monday.

5 So do you confirm it, that you are not going to make your opening

6 statement now?

7 MR. ACKERMAN: I confirm that, Your Honour.

8 MR. DE ROUX: [Interpretation] I confirm that also, Mr. President.

9 JUDGE AGIUS: And Mr. Brdjanin, and General Talic, I put the same

10 question to you last time. I advised you that you have a right to make a

11 statement yourselves not as a solemn declaration and you cannot be asked

12 questions. You told me that you prefer not to make a statement at this

13 point. Do you confirm that position? Mr. Brdjanin?

14 THE ACCUSED BRDJANIN: [Interpretation] Yes.

15 JUDGE AGIUS: And General Talic?

16 THE ACCUSED TALIC: [Interpretation] Yes.

17 JUDGE AGIUS: All right. So we will break until ten past 11.00.

18 --- Recess taken at 10.42 a.m.

19 --- On resuming at 11.12 a.m.

20 JUDGE AGIUS: Can we proceed with the evidence of the first

21 witness?

22 MR. CAYLEY: Yes, Mr. President, we can. There was just a

23 preliminary matter - actually a number of preliminary matters - which

24 hopefully will not give rise to any kind of dispute between the parties

25 but --

Page 812

1 JUDGE AGIUS: You hope.

2 MR. CAYLEY: I hope, I hope. The numbering of exhibits. You had

3 alluded to the matter yesterday during -- I think just before Ms. Korner's

4 opening, and you had stated that we would use P for Prosecution exhibits

5 and D for Defence exhibits, but in terms of the numbering system, I've had

6 a short conversation about this with Mr. Ackerman - I have not spoken to

7 my French colleagues - but if we are to use the disclosure numbers of the

8 Prosecutor, we are going to find that the order in which the exhibits

9 proceed in the case will obviously not be sequential - you will have

10 P7.221, P1.4, P1.5 - because obviously the order of calling exhibits is

11 not going to be the same as the order in which they were disclosed. What

12 I was going to suggest is that we add another number. I know Mr. Ackerman

13 did state yesterday that we have got so many numbers we don't know whether

14 we are coming or going, but if we start with P1, P2, P3, and if we call

15 the B/C/S version P1 Alpha, and then the English version P1 Bravo, and

16 then if there is a French version P1 Charlie - or we can have the French

17 version before the English version, it doesn't matter - in that way, it

18 will be clearer for all of us. Certainly in our disclosure log we keep,

19 we can simply add another column which would be the exhibit number as

20 opposed to the disclosure number.

21 I don't know if my colleagues have comments.

22 JUDGE AGIUS: I personally do not have an objection provided,

23 number 1, that a proper record is kept of how this goes along; secondly,

24 that it does not cause too much trouble and problems and work for the

25 Deputy Registrar, and that, in other words, it's something that they can

Page 813

1 cope with; and thirdly, I would also like to hear the Defence first on

2 whether they have any particular objection. I wouldn't imagine. But

3 what's more important for me is, first, that this would not cause more

4 confusion; secondly, that it is not too much for the staff to cope with.

5 If that is okay, if it's okay with the staff to go along, I mean, I have

6 -- and I would understand that my colleagues here don't -- you don't have

7 an objection about this?

8 [Trial Chamber confers]

9 JUDGE AGIUS: You can go ahead. We don't foresee this causing you

10 any undue problems.

11 THE REGISTRAR: No, Your Honour. In the Registry, we are very

12 flexible.

13 JUDGE AGIUS: Thank you. So you can do it that way, yes. The

14 Chamber doesn't have any objection to that.

15 MR. CAYLEY: Thank you, Your Honour.

16 In respect of Dr. Donia, just before he comes in, what I have done

17 to assist my colleagues opposite is to have our staff prepare a binder of

18 the documents which he will be referring to in his evidence. All of those

19 documents are referred to in the footnotes of his report. One of the

20 documents has not been disclosed to the Defence. I've already informed

21 Mr. Pitron and Mr. Ackerman about that. I will not be using that document

22 in his evidence but I've put it in the binder so that they know it is

23 there. We will be essentially going through the binder in the order of

24 the tabulation numbers on the side of the file as opposed to the footnote

25 numbers or the disclosure numbers on the document, although those two

Page 814












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 815

1 numbers are there. We will at times have to go backwards and forwards but

2 I hope since everybody has a tabulated copy they will be able to follow

3 where we are going.

4 You mentioned, I think it was yesterday, that - actually, it may

5 have been in the Status Conference last week - that you did not want a

6 summary of the history of Yugoslavia from the 6th Century, and I have

7 tailored his evidence accordingly. Of course, we can offer him for

8 cross-examination on that subject but that part of his report will be

9 abbreviated and he will only touch upon those matters which he believes

10 are relevant to this particular case.

11 JUDGE AGIUS: Let me clarify myself on that. I have read the --

12 Dr. Donia's report in its entirety. The first 23, 24 pages, frankly, I

13 mean, there is a lot of material which was interesting to know and

14 interesting to read, but to be frank with you, I don't know how relevant

15 it is for the purpose of -- purposes of this trial. Then there are a

16 couple of pages especially when he deals with certain cultural and

17 religious aspects, that may be important to know. It also gives his own

18 personal view on the matter and also passes judgement on the judgement

19 passed by other people on what actually caused whatever happened in the

20 territory of ex-Yugoslavia where you may encounter problems in the course

21 of his evidence. I think for the present moment, I would invite you to

22 conduct your examination-in-chief of Mr. Donia in a sense as to restrict

23 it as much as possible as to what is really relevant for the purposes of

24 this trial. This trial covers, first of all, the jurisdiction of this

25 Tribunal is limited to a certain -- to certain events that happened in the

Page 816

1 territory of ex-Yugoslavia in a particular period, and this trial then is

2 further limited. So I leave it up to you for the moment. I mean, use

3 your good judgement. Maybe I will have to stop you in due course if I

4 think that you are moving out of what I think ought to be the parameters

5 of the evidence of Dr. Donia. But please feel free to conduct your

6 examination-in-chief without the fear of being interrupted repeatedly and

7 repeatedly and repeatedly. I will leave you as much freedom as you wish.

8 But then, of course, there may be limitations to that.

9 MR. CAYLEY: Thank you, Your Honour. And this map -- I know

10 yesterday you were saying that the map was too small, so we've got a

11 slightly larger map. I don't intend to offer it into evidence, but the

12 witness will be referring to it briefly during the course of his

13 testimony.

14 JUDGE AGIUS: Can I see on the monitor how that map would appear,

15 because it's not in a position which can be seen by the Defence counsel,

16 and I want --

17 Can you see it from there?


19 JUDGE AGIUS: You can see it from there. Okay. So okay, go

20 ahead.

21 MR. CAYLEY: We can call the witness, with your permission,

22 Mr. President.

23 JUDGE AGIUS: Yes, please. Call Dr. Donia in, please.

24 [The witness entered court]

25 JUDGE AGIUS: Dr. Donia, do you solemnly declare to say the truth,

Page 817

1 the whole truth, and nothing but the truth?

2 THE WITNESS: Yes, I do.

3 JUDGE AGIUS: You may sit down.

4 THE WITNESS: Thank you.

5 WITNESS: Robert J. Donia

6 JUDGE AGIUS: Yes, Mr. Cayley.

7 MR. CAYLEY: Thank you, Your Honour.

8 Examined by Mr. Cayley:

9 Q. Dr. Donia, could you spell your name for the transcript, please,

10 your full name.

11 A. Yes, it's Robert J. -- middle name is J-a-y, last name is Donia,

12 D-o-n-i-a.

13 Q. Dr. Donia, you're an American citizen; is that correct?

14 A. Yes, I am.

15 Q. Dr. Donia, if you could very briefly give to the Judges a summary

16 of your academic qualifications and positions that you have held and a

17 summary of your publications, both books and articles that you have

18 written in connection with your particular expertise.

19 A. I first became involved in the history of the former Yugoslavia in

20 1972 when I began a Ph.D. programme in history at the University of

21 Michigan. I spent the academic year 1974/1975 in Sarajevo doing research

22 in preparation for a doctoral dissertation, and completed that

23 dissertation in 1976. That work with revisions became a book in 1981

24 published under the title "Islam Under the Double Eagle: The Muslims of

25 Bosnia and Hercegovina, 1878 to 1914."

Page 818

1 After completing the doctoral dissertation, I taught for two years

2 at the Ohio State University Lima Campus as an assistant professor, for

3 one year at the University of Oregon, and at that point left the academic

4 work completely and spent the next 18 years employed by the securities

5 firm of Merrill Lynch. During that time, I had no relationship with the

6 former Yugoslavia, except that in 1994 Professor John Fine and I together

7 wrote a book which was a survey history of Bosnia and Herzegovina called

8 "Bosnia and Herzegovina: A Tradition Betrayed."

9 I retired from Merrill Lynch in 1998, and since then have been

10 working on a study of the city -- history of the city of Sarajevo since

11 1878.

12 Q. You've published a number of articles very recently in connection

13 with your interest in Yugoslavia. What current academic positions do you

14 hold at the moment?

15 A. I currently have two affiliations. I am affiliated with the

16 Centre for Russian and East European Studies at the University of

17 Michigan, and I'm a visiting scholar at the Department of History of the

18 University of California at San Diego.

19 Q. In the last ten years, how much time have you spent in the former

20 Yugoslavia?

21 A. Until my retirement, I probably was somewhere in the former

22 Yugoslavia only about three weeks a year. Since then, it's perhaps been

23 about three months a year, in the last, say, three years.

24 Q. Now, you've testified before the Tribunal before. Can you tell

25 the Judges which cases you've appeared in as an expert.

Page 819

1 A. I testified in the Prosecutor v. Tihomir Blaskic and prepared a

2 presentation or paper and testified in the case of the Prosecutor versus

3 Dario Kordic and Mario Cerkez. I submitted a written -- I made a written

4 submission in the case of the Prosecutor v. Miroslav Kvocka, the Omarska

5 case. And I testified and prepared a written presentation in the case of

6 the people -- or the Prosecutor v. Blagoje Simic, the Bosanski Samac

7 case.

8 Q. Dr. Donia, do you have any personal or ethical problems which

9 would preclude you from testifying in any particular case?

10 A. No.

11 Q. Would you consider testifying for the Defence in any particular

12 case?

13 A. I would consider any invitation to work with -- with the Defence,

14 yes.

15 Q. Now, in respect of the report that we asked you to produce in this

16 case, can you explain to the Judges exactly what we requested from you.

17 A. The Office of the Prosecutor requested from me a background

18 report --

19 JUDGE AGIUS: One moment. Let me interrupt you.

20 Was this request a written document?

21 MR. CAYLEY: No. It was --

22 JUDGE AGIUS: Did you specify your needs and your request by means

23 of a letter, by means of a written document?

24 MR. CAYLEY: No. The report was essentially the product of

25 discussion between staff in the OTP and Dr. Donia.

Page 820

1 JUDGE AGIUS: No. Because if it was the result of a written

2 document, then obviously I would ask you to bring it forward.

3 MR. CAYLEY: Of course, Your Honour.

4 JUDGE AGIUS: Okay. Please go ahead.

5 A. In discussions, the Office of the Prosecutor asked me to prepare a

6 report on the historical background to events alleged in the indictment,

7 to include the pre-history of the period and also the immediate political

8 and social developments in the period from 1990 until about the middle of

9 1992.


11 Q. Now, I know in our discussions, there are a number of

12 typographical corrections which I think we should do now, and there are

13 some factual corrections that we should also put in, so if you could -- I

14 can direct you to the pages and you can explain to the Court the

15 corrections that need to be made.

16 A. Well, I apologise for these -- there are a number of typographical

17 errors. A few of them have substance or are the result of an actual error

18 in information, and I'd like to at least correct the latter, starting on

19 page 44, the fourth line. I believe his name is Dr. Dusko Jaksic, not

20 Drago. Apologies to him as well.

21 JUDGE AGIUS: Which line?

22 THE WITNESS: The fourth line on page 44, Mr. President. On that

23 same page, the -- after the indented quote, on the fourth line of the next

24 paragraph, it says, "On April 10, 1992." That should be, "April 10,

25 1991."

Page 821

1 And also on that page, in the next paragraph, the fifth line,

2 there is a sentence that begins, "The nine members." That should be,

3 "Most members."

4 On page 45, after the first indented quote, "SDS spokesmen" should

5 be "SDP spokesmen."

6 On page 48, the title for table 2 should be "Nationality in

7 Municipalities Invited to Join Bosnian Krajina" instead of "That Joined."

8 On page 55 is another error of date. In the first full paragraph

9 of the section, The Arms Buildup, right after footnote 167, "On June 10,

10 1992" should be, "June 10, 1991."

11 And finally, on page 67, the first full paragraph, second line,

12 "Agreement reached in Brussels" should read "Lisbon."

13 And on page -- there is the same error on page 66, where it reads

14 "Brussels" and it should read "Lisbon."

15 MR. ACKERMAN: I got lost --

16 JUDGE AGIUS: On page 57, it is in the first paragraph, full

17 paragraph, starting with --


19 JUDGE AGIUS: 67, yes, second line, "Brussels" should be

20 substituted with "Lisbon."


22 JUDGE AGIUS: I can't find "Brussels" on page 66.

23 THE WITNESS: On page 66, "Brussels" is at the fourth-to-last line

24 on the page. I said it correctly the first two times and then changed it.

25 JUDGE AGIUS: Yes. "Lisbon" as well.

Page 822

1 THE WITNESS: Thank you.

2 JUDGE AGIUS: Is that all?

3 THE WITNESS: That's all I can find.

4 JUDGE AGIUS: You're a good professor, very few mistakes.


6 Q. Dr. Donia, your report is essentially structured into four parts,

7 and if you could just very briefly explain to the judges what those four

8 parts are?

9 A. The first part of the report is a brief snapshot of the situation

10 in Bosnia-Herzegovina and the former Yugoslavia in 1990-1991, just before

11 the outbreak of armed conflict. The second section is a brief discussion

12 of a widely-held misunderstanding of the history of the region, known as

13 the ancient-tribal-hatreds myth. The third section, which starts on page

14 5, is a historical survey from the migration of the South Slavs up to

15 1990. And the fourth section of the paper is the developments after 1990,

16 1990 and after, in other words after the fall of communism and the

17 developments in that decade.

18 Q. If you can turn to the first page of your report, Part I, and in

19 your written report, you essentially identify two events which you state

20 lead to war in the former Yugoslavia, and I wonder, could you explain that

21 to the judges, exactly what you set out there, just summarise what you

22 said?

23 A. Well, I'd say they preceded war. The first was the collapse of

24 the Yugoslav League of Communists in January, 1990. The second was the

25 elections, multi-party elections, that occurred in each republic of the

Page 823

1 former Yugoslavia in the course of 1990. And the third significant

2 development for understanding the situation was the completion of the

3 decennial census in the spring of 1991, which gives us the best profile of

4 the population composition of the republics of the former Yugoslavia.

5 Q. Now, Yugoslavia in 1990, and what -- the places that concern this

6 case are Bosnia-Herzegovina, Serbia and Croatia - principally

7 Bosnia-Herzegovina, less so Serbia and Croatia. Can you give the Judges

8 some sense of the population distribution in those three places, very

9 briefly Serbia and Croatia, and then obviously more fully

10 Bosnia-Herzegovina?

11 A. The population in the Republic of Serbia, to the east of Bosnia

12 and Herzegovina, was of course a majority of those of Serbian

13 nationality. In the so-called autonomous region, or the province of

14 Voyvodina, there was a substantial Hungarian population.

15 Q. Dr. Donia, if it would assist the Court, you can briefly refer to

16 this map, if you wish to stand up and use the pointer.

17 A. Do I have one? Here, okay. This is -- the Republic of Serbia as

18 it existed in 1990 includes all this area. The area of Voyvodina to the

19 north with the substantial Hungarian population is here, and to the south

20 of course is the area of Kosovo known by many Serbs as -- referred to by

21 many Serbs as Kosovo Metohija and by many Albanians as Kosova. The

22 population in this region is majority Albanian, a little over -- a little

23 under 90 per cent Albanian as of 1991.

24 The Republic of Croatia, since wrapped around the shape of Bosnia,

25 had a majority population of those of the Croatian nationality but it also

Page 824

1 had a substantial minority of Serbs, about 600.000, a little less, about

2 12 per cent of the population. Some of those Serbs lived in the cities of

3 Croatia. Others were in the area to the north where there were some

4 villages and areas of Serbian population, and also in this highland area

5 here, in the hinterlands of the Dalmatian coast.

6 Q. So to be specific for the Court's record, you're stating that

7 there were people of Serbian ethnicity living to the north of the

8 Bosnia-Herzegovina border and to the east of that border?

9 A. Yes.

10 Q. Sorry, to the west of that border?

11 A. Yes. And the developments of the late 1980s and 1990 led, in

12 Serbia, to the rise of -- to power of Slobodan Milosevic, first as

13 president of the League of Communists of Serbia and later as the President

14 of Serbia, and in 1990 to the election of Franjo Tudjman as President of

15 Croatia, so that each of these neighbouring republics, the people in power

16 had cultivated an interest in their kin populations within Bosnia and

17 Herzegovina.

18 Bosnia and Herzegovina itself was a mixed republic. It was the

19 only one of the six republics of the former Yugoslavia that did not have a

20 single nationality in the majority. And the --

21 Q. You can take a seat now, Dr. Donia.

22 And since you're moving on to the ethnic distribution in Bosnia,

23 do you have map two of your report? If you don't, you can use my copy.

24 It's a composite part of the entire report.

25 A. I do not have the maps in front of me.

Page 825












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 826

1 MR. CAYLEY: If that could be placed on the ELMO.

2 Q. Now, you stated to the Court that Bosnia-Herzegovina was the only

3 essentially truly mixed population of any -- it was the only republic that

4 had a truly mixed population. I wonder if you could just briefly explain

5 to the Judges how the different ethnic groups were distributed throughout

6 the country.

7 A. Most of the country was a population mix of two or, in many cases,

8 three of the nationalities, that is, the Serbs, Croats, and Bosnian

9 Muslims. There were very few areas where one could define a population

10 that was purely of one single nationality. But there are a few worthy of

11 note. The first one is the area in blue to the kind of lower left side of

12 this map.

13 Q. Could you point that out.

14 A. This area here, which is -- particularly a couple of the

15 municipalities, a virtually 100 per cent Croat area; an area of

16 north-western -- extreme North-Western Bosnia, which is nearly 100 per

17 cent Muslim; and then this border area adjoining Croatia with a

18 population -- it's not a very dense population. It's largely rural

19 territory. But it's virtually 100 per cent Serb.

20 Q. And that's the --

21 JUDGE AGIUS: One moment, Mr. Cayley. Let me interrupt you for a

22 second.

23 I take it that this map is not one that you prepared yourself?

24 THE WITNESS: That's correct.

25 JUDGE AGIUS: You have borrowed it from the census that was

Page 827

1 prepared?

2 THE WITNESS: Yes, the 1991 census. And this is --

3 JUDGE AGIUS: This is an official map?

4 THE WITNESS: No, it's not. It's one of many that was prepared by

5 individual companies after the 1991 census. I believe I have a source

6 notation in the appendix.

7 I must say that it's -- it's extremely difficult to capture on any

8 map the ethnic picture of Bosnia. I happen to believe this perhaps does

9 the best.

10 JUDGE AGIUS: I think it is important for us at this juncture to

11 know exactly the exact -- the proper origin of this map. Who prepared

12 it? Just to make sure that this was prepared by someone who had no

13 interest in presenting a map which does not represent the truth or which

14 twists the facts.

15 MR. CAYLEY: It's referred to Dr. Donia's map two in Appendix B.

16 JUDGE AGIUS: Yes. But it is obviously not a map prepared by

17 him.

18 MR. CAYLEY: No, it's not, Your Honour.

19 Q. If you want to go to the appendix, you can state on the record --

20 A. Yes, it was prepared by a group called Ultramedia in Sarajevo,

21 published in 1991.

22 JUDGE AGIUS: Okay. Please go ahead.

23 MR. CAYLEY: Thank you.

24 Q. Now, Dr. Donia, you just indicated that the area in red

25 essentially on the Croatian border was an area that was inhabited

Page 828

1 predominantly by people of Serbian ethnicity. Are there any other

2 comments you'd like to make about this map or about ethnic distribution in

3 Bosnia-Herzegovina?

4 A. There are specific historical reasons why these enclaves

5 developed. But I think we can cover that momentarily.

6 Q. Do you wish to mention that now, or do you wish to mention --

7 A. Sure. The northern one-third of this area, roughly this region

8 here, is known as the Bosnian Krajina. And the Bosnian Krajina shared a

9 destiny --

10 JUDGE AGIUS: [Microphone not activated] One moment.

11 THE INTERPRETER: Microphone for the Judge, please.

12 JUDGE AGIUS: Yes, it's on, my microphone.

13 Dr. Donia, could you please just repeat what you just stated and

14 indicate the same portion of the territory on the map over there, please.


16 JUDGE AGIUS: For the benefit of Defence counsel.

17 A. The northern one-third, roughly northern one-third of

18 Bosnia-Herzegovina constitutes an area known as the Bosnian Krajina. The

19 term "Krajina" means borderland or boundary area. And this is an area

20 that developed a specific -- has had a specific history within

21 Bosnia-Herzegovina and has in some sense a counterpart region on the other

22 side of the boundary with Croatia.

23 Namely, starting in the seventeenth century, that boundary became

24 the border with Austria, the Austrian Empire, and the Ottoman Empire. And

25 during that time, the authorities of those respective empires, the

Page 829

1 Ottomans and the Austrians, wanted to fortify these border regions. And

2 to do so, they established incentives for those of Serbian Orthodox

3 religion to migrate to the areas that are in these two Krajinas, the

4 Croatian -- the Krajina on the Croatian side and the Bosnian Krajina.

5 Consequently, there were historically a large number of Serbs that

6 moved into this region. There were also fortifications on the extreme

7 north-western area, starting in the seventeenth century, of castles and

8 fortifications by Muslims, who -- in service of the Ottoman Empire. So

9 that goes quite a ways to explain this enclave of Muslim concentration

10 here and these enclaves or the enclave of Serbian concentration, both here

11 and in some of the borderlands along the northern part. It also, of

12 course, explains the presence of a substantial number of rural Serbs in

13 the Krajina area across the border in Croatia.

14 Q. Dr. Donia, if we can move now to page 5 of your report. And you

15 have a paragraph which is headed "The Myth of Ancient Tribal Hatreds."

16 And if you could explain what you mean to the Judges in respect of those

17 three paragraphs in your report.

18 A. Well, this notion that the South Slav peoples have been killing

19 one another for centuries and living in perpetual hatred arose in the

20 early 1990s among western observers as something of a myth of

21 convenience. It enabled them to distance themselves from events in the

22 Balkans. It was welcomed by some nationalists among the South Slavs who

23 wished to portray the history of their own nations as a series of

24 repressive acts or violence undertaken against them. But I find little

25 evidence for this kind of religious or national animosity until the very

Page 830

1 nineteenth century and twentieth century. For -- over most years, in most

2 times prior to that, the people in the very broad mixture of

3 Bosnia-Herzegovina lived side by side together without substantial armed

4 strife. There was plenty of violence, but it was typically of a social

5 variety or wars concerning the establishment of boundaries, for example,

6 medieval feudal lords fighting over territory and other territorial

7 disputes over the centuries.

8 JUDGE AGIUS: Mr. Cayley, I would suggest to you to restrict this

9 part as much as possible, because we are not interested much in what

10 happened in the last century and in the centuries before. I mean, try to

11 direct your witness to what is relevant to this -- to this case.

12 MR. CAYLEY: Your Honour, there are --

13 JUDGE AGIUS: Without dedicating much time and effort on the myth

14 of ancient tribal hatreds. I don't think anyone coming from the territory

15 of Yugoslavia needs to receive any lessons on that.

16 MR. CAYLEY: Your Honour, in terms of the history, there are one

17 or two matters which I believe are relevant --

18 JUDGE AGIUS: Come to those.

19 MR. CAYLEY: -- in the indictment, and that's where I'm going

20 now.

21 JUDGE AGIUS: Come to those, please.


23 Q. Dr. Donia, in part 3 of your report, you do a historical survey to

24 1990. And the areas that particularly interest me are page 13 - if you

25 could turn to that page - which is the rise of nationalism. But prior to

Page 831

1 that, you sort of broadly refer to it. Within the Krajina region, what by

2 1990 were the three confessional groups, the three ethnicities living in

3 that region?

4 A. Well, the three nations were the Bosnian Muslims and the Serbs and

5 then also some Croats. Fewer Croats, but some Croats.

6 Q. Now, can you explain very briefly from a historical perspective

7 why there was a rise in nationalism amongst these groups seeking some form

8 of national identity.

9 A. The rise of nationalism is, in fact, the articulation of a

10 political programme that can be dated to the nineteenth century, in the

11 case of Serbs and Croats, and to the twentieth century, in the case of the

12 Bosnian Muslims. And in espousing these political goals and searching for

13 some sort of state structure in which their group would find either

14 autonomy or independence, the Serbs and Croats each developed something of

15 a historical understanding or narrative which emphasised certain events.

16 Q. Can you explain -- and we'll deal with each of the ethnic groups,

17 but can you explain how the Serb national identity began to form in the

18 region.

19 A. Well, the Serbian national understanding really focused on a close

20 relationship with the Serbian Orthodox Church, and the Battle of Kosovo in

21 1389 is particularly important in this understanding. And in folk poetry

22 and broad popular understanding, at that battle, the leader of the Serbs,

23 Prince Lazar, was offered a choice of a heavenly kingdom and an earthly

24 kingdom, and in opting for a heavenly kingdom was promised that an earthly

25 kingdom would be restored at some future point in time. And this became a

Page 832

1 -- it was something that was very frequently referred to, even in the

2 1990s, in terms of Serbian nationalist national belief.

3 Q. So in essence what you're saying to the Court is that these

4 beliefs reflect -- reappeared in the early 1990s in Bosnia-Herzegovina?

5 A. Yes, reappeared or were elaborated again as part of the Serbian

6 historical understanding.

7 Q. Can you deal also briefly with the Muslims and Croats, their need

8 to find some form of national identity within Bosnia-Herzegovina?

9 A. The Croatian understanding focused on their participation in a

10 state which was linked with Hungary for many centuries. The Bosnian

11 Muslims, who had converted to Islam at the time -- first century and a

12 half after Ottoman rule, began articulating their sense of being a secular

13 nationality comparable to the other groups in the 1960s, and so were the

14 last of these three groups to develop a national programme and national

15 understanding.

16 Q. Let's move briefly to the Second World War, and again

17 concentrating primarily on the Krajina region. Can you explain to the

18 Judges what happened in Bosnia during the Second World War and how that is

19 relevant to what subsequently happened in the early 1990s?

20 A. There are a number of terms or labels that were used in World War

21 II that came to characterise the national dialogue in the 1990s. In 1941,

22 Bosnia-Herzegovina and Croatia were awarded by Hitler to a group of

23 extreme Croatian nationalists, known as the Ustasha or rebels, and they

24 established a very brutal regime in Zagreb. They engaged in atrocities

25 and killings against Serbs, against Jews, against gypsies, and killed, at

Page 833

1 the very least, tens of thousands and probably hundreds of thousands of

2 Serbs within the territory. And those atrocities were particularly brutal

3 in the Bosnian Krajina. The term "Ustasha" subsequently came to be used

4 in 1990 to refer to this form of Croatian nationalism which was perceived

5 as a threat to Serbs.

6 At the same time, the two resistance movements in World War II --

7 one was the Chetnik movement headed by a former Yugoslav royal army

8 officer, Draza Mihajlovic, became a term in the 1990s that was used in

9 reference to extremist Serbs who were advocating or perpetrating

10 atrocities. Because some of the Bosnian Muslims were flattered by the

11 inclusion in the definition of the Croatian nationality by the Ustasha,

12 this term "Ustasha" was often used in reference to the -- say, the

13 combination of Croatian nationalists and those -- some Bosnian Muslims who

14 joined the Ustasha cause.

15 Q. Now, in your report, you state - and I can't remember the exact

16 page for the moment - but that there was a particular Chetnik who had an

17 idea of a Greater Serbia, and you referenced that in your report. Can you

18 explain to the Judges what exactly is meant by Greater Serbia?

19 A. In the 19th century, each Balkan nation developed a desire to have

20 a state which incorporated all those peoples living in neighbouring states

21 as well. Consequently, the first nation to develop this programme was the

22 Greeks. It was a programme for a Greater Greece. Likewise, there was a

23 programme for a Greater Romania and Greater Bulgaria. And the Serbs, also

24 in the process of expanding their state, developed a programme or

25 objectives which are referred to as Greater Serbia. This really means

Page 834

1 that all Serbs in -- regardless of the political entity that they are in

2 at the time, should ultimately be united in one state.

3 Q. Did the ideal of Greater Serbia emerge in 1990?

4 A. Yes, it did.

5 Q. What evidence have you come across that it was referred to, relied

6 upon, by Serbian nationalists during that period?

7 A. Well, it is a theme that recurs many, many times in the public

8 rhetoric and kind of closed discussions in private conferences. Not the

9 term "Greater Serbia;" that's very rare to find. But the notion of

10 Serbia, of a Serb state that would include all Serbs, is frequently

11 referenced in propaganda, in public pronouncements and in closed sessions.

12 MR. CAYLEY: Mr. President, you'll be pleased to here that we have

13 finished the historical part of Dr. Donia's evidence, and we can now move

14 to the early 1990s and Part IV of your report.

15 JUDGE AGIUS: [Microphone not activated]


17 Q. Dr. Donia, in a nutshell, what kind of society existed in

18 Bosnia-Herzegovina in 1990?

19 A. Well, I think it's best described as a very late socialist

20 society. After 45 years of socialism, all the republics of the former

21 Yugoslavia were in a severe economic crisis. The social sector was large,

22 much larger than the private sector. The government system was highly

23 developed, and starting in the 1960s, a kind of participatory socialism

24 had developed, which meant that most people participated in one or several

25 social, political, economic institutions.

Page 835

1 The legal system was particularly developed and there was a good

2 functioning -- up until late 1980s, a good functioning system of courts

3 and extremely elaborate constitutional systems that had been in existence

4 for really ever since the early days of the socialist state.

5 Q. Now, in the 1990s, you've already said at the beginning of your

6 evidence that the League of Communists collapsed, and you've also

7 identified the fact that there were leaders with nationalist tendencies

8 who were elected in Croatia and Serbia. Can you just very briefly, for

9 the accuracy of things, explain what happened in Slovenia and Croatia

10 before we get to Bosnia?

11 A. Well, very briefly, Croatia and Slovenia, their parliaments issued

12 declarations of independence on June 25th, 1991. In a brief, ten-day war

13 -- after a brief ten-day war, the JNA, the Yugoslav National Army, left

14 Slovenia and allowed it to go its own way. This was mediated by the

15 European Community, which reached an agreement between the JNA and

16 Slovenia known as the Brioni Accord, which postponed the effective date of

17 these two declarations of independence until October of 1991. But in the

18 meantime, a war broke out in Croatia, a war that was characterised by

19 atrocities against civilians on both sides, and the -- I'd say

20 deterioration of federal Yugoslavia was accelerated by this war which

21 lasted for the rest of 1991.

22 Q. The war in Croatia -- and obviously the Croatian people were on

23 the one side. Who was against them in Croatia?

24 A. The Croatian army and its police units were opposed by the JNA, by

25 local paramilitary groups organised by Serbs, and by some paramilitaries

Page 836












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 837

1 who came from Serbia to support local Serbs and the JNA.

2 Q. Now, you stated that in that war, atrocities were committed by

3 both sides in the war in Croatia. Did that have any bearing on the events

4 that subsequently took place in Bosnia?

5 A. I think it had a great deal of bearing because the members of the

6 respective kin populations in Bosnia, particularly in the Bosnian Krajina,

7 identified with those nationalities. The Serbs of the Bosnian Krajina

8 were eager to, in many cases, volunteer or support the cause of the Serbs

9 in the -- that were battling the Croatian state across the border in

10 Croatia.

11 Q. How did the war in Croatia come to an end?

12 A. After many failed ceasefires and finally one that actually held,

13 an agreement was signed on January 2, 1992, between the JNA and Croatia.

14 And at the same time, there was an agreement to deploy United Nations

15 forces to protect the -- essentially to maintain a dividing line between

16 Croatian and Serbian forces.

17 Q. Now, you stated earlier that there were JNA units in Slovenia and

18 in Croatia. After their withdrawal from those respective countries, what

19 happened to those JNA units?

20 A. Most of the JNA units that had been operating or stationed in

21 Croatia withdrew into Bosnia-Herzegovina. The prior military organisation

22 of the JNA had placed a headquarters of a military district in Zagreb as

23 of December, 1988. With the end of the war in Croatia, it was necessary

24 to restructure the JNA. And so Sarajevo was elevated from a corps

25 headquarters to the headquarters of the 2nd Military District, and at the

Page 838

1 same time, the troops of the five corps that were reporting to it were

2 largely repositioned in Bosnia and Herzegovina.

3 Q. So in essence what you're saying is that the military headquarters

4 in Sarajevo became larger because the number of military formations that

5 was under its command increased.

6 A. Yes.

7 Q. And that's because of the withdrawal that you mentioned from

8 Croatia.

9 A. Because of the withdrawal and the restructuring of the JNA.

10 Q. Now, on the page of your report which is numbered page 31, you

11 talk about changes in the ethnicity of the JNA in Bosnia and Herzegovina.

12 Do you have that page in front of you?

13 A. Yes.

14 Q. Could you explain to the Judges what happens to the make-up -- the

15 ethnic make-up of the manpower of the JNA in Bosnia towards the end of

16 1991.

17 A. Well, the JNA prior to the war in Croatia had been a genuinely

18 multinational force. In the course of that conflict, due to the departure

19 of many non-Serbs and the overt support for the Serbian cause that the JNA

20 exercised in Croatia, it became essentially a Serbian army. And in the

21 course of very late 1991, we have evidence that the Serbian President

22 Milosevic sought to do the same thing with the JNA in Bosnia.

23 Specifically, his colleague and advisor, presidency member Borislav Jovic

24 reported that Milosevic ordered the JNA to take all recruits who were

25 Bosnians and concentrate them in the Bosnian republic; and likewise, to

Page 839

1 take those recruits who were not Bosnians and transfer them to units

2 outside of Bosnia. And later, this -- the JNA commander is quoted as

3 saying that this was largely completed. Consequently, in the course of

4 this transformation of the JNA, it became a -- both a more Serbian force

5 and a more Bosnian force in the late months of 1991 and early 1992.

6 Q. Just to be absolutely clear about this, what do you base that

7 opinion on?

8 A. The most -- the specific information is contained in the Jovic

9 diary, which was published a couple years ago; and there's also

10 information to that effect in the -- a couple of the memoirs of other

11 Yugoslav army officers from that time; and the observations of some people

12 who were observing it from the Bosnian side.

13 Q. Now, if we can move ahead to the elections in the early 1990s.

14 Now, before those elections actually took place in former Yugoslavia - and

15 I want you to particularly concentrate on Bosnia-Herzegovina - certain

16 constitutional changes had to happen. Can you explain to the Judges

17 exactly what those constitutional changes were.

18 A. Within Bosnia-Herzegovina, there were two sets of constitutional

19 amendments that were enacted, the first in February of 1990. And those

20 constitutional amendments stripped away some of the socialist era language

21 and institutional suprastructure and allowed parties to be formed to

22 compete with the League of Communists in elections yet to be scheduled.

23 At the same time, that legislation prohibited parties based on national or

24 religious grounds.

25 In June of 1990, the constitutional court of Bosnia-Herzegovina

Page 840

1 ruled those prohibitions to be unconstitutional. And in the wake of that

2 decision, national leaders rapidly formally formed and registered

3 political parties in preparation for a -- an election in the fall.

4 The second set of constitutional amendments were passed in -- on

5 July 31, 1990. And those defined the nature of the offices and

6 institutions for which people would be voting in the November election.

7 MR. CAYLEY: Mr. Usher, if you could remove that map, please, and

8 put this map up. Thank you.

9 Q. Now, you state in your report that these constitutional changes

10 didn't just affect the national government of the Republic of

11 Bosnia-Herzegovina but also affected the governance of the country at a

12 local or municipal level. And this is highly relevant to this case. If

13 you could just briefly explain to the Judges the levels of government that

14 existed in the country and the significance of what in English is known as

15 "the municipality" within the country.

16 A. The legislation or the constitutional amendments essentially

17 ratified the existing situation in terms of municipalities, which in the

18 Serbo-Croatian language -- local language is the term "opstina." And that

19 meant that in Bosnia-Herzegovina, there would be elections both at the

20 level of the Republic of Bosnia-Herzegovina and at the level of the

21 municipality, the opstina. Those municipalities were essentially the

22 basic local governing unit in Bosnia since the Ottoman times, since

23 certainly the end of the Ottoman times. Each of those municipalities had

24 a municipal assembly. Some of them were huge. They actually ranged in

25 size from 27 members to 130, in the case of Banja Luka, the largest one.

Page 841

1 So in ratifying that existing situation, the Bosnian Assembly mandated the

2 election of thousands of deputies to these municipal assemblies. They

3 also mandated the election of 230 members of the Bosnian Assembly, divided

4 into two chambers, and to seven members of a collective presidency.

5 Q. And just for clarification - you don't need to get up to do this -

6 but the essentially the internal black border marks on that map identify

7 the constituent municipality borders within Bosnia-Herzegovina as they

8 existed, I think, in the early 1990s.

9 A. Yes. Without counting them, there should be 109 there. Yes.

10 Q. Did the borders of these municipalities always remain the same?

11 A. They were in fact changed from time to time. And the number of

12 municipalities tended to increase, particularly during the period of

13 socialism.

14 Q. Now, the multiparty elections. There were a number of parties,

15 but what were the principal parties that emerged before those elections?

16 A. The three victorious parties in the election were all formed along

17 national lines. And the first of these for the Bosnian Croats was known

18 as the Croatian Democratic Community, HDZ. The party of the Bosnian Serbs

19 was known as the SDS, Serbian Democratic Party. And the party of the

20 Bosnian Muslims was known as the Party of Democratic Action, or SDA.

21 Q. Could you just deal briefly with some of the principal actors who

22 were involved in these political parties.

23 A. The founder -- initial founder and president of the Social

24 Democratic Party was Radovan Karadzic. And the leader of the Muslim --

25 Bosnian Muslim, SDA, was Alija Izetbegovic. Each of them were from

Page 842

1 Sarjevo. Karadzic was a trained psychiatrist, and Izetbegovic kind of

2 gained fame as a dissident who had been in prison twice in the course of

3 the socialism.

4 The Croatian party, HDZ, had one president early on, Davor

5 Kavenovic [phoen], and he was replaced shortly after the formation of the

6 party in Bosnia by Stjepan Kljuic.

7 Q. Now, these national parties, how far did they extend into the

8 country as a whole?

9 A. Well, each of them was active in every municipality in which there

10 were any significant numbers of the nationality living.

11 Q. What was the -- in brief, what was the platform of these three

12 parties? What was their manifesto?

13 A. The three parties each developed programmes in the course of the

14 electoral campaign. Early in the campaign, they reached an agreement

15 among them, known as the interparty agreement, not to attack one another.

16 Consequently, there is relatively little rhetoric during the election

17 campaign in which one party directly attacks the leader of another party.

18 Most of the rhetoric and criticism was directed at the reformed

19 League of Communists and the reformists that the nationalists wanted to

20 make sure were excluded from power after the November elections. The

21 parties, however, did disagree on one fundamental point that was regularly

22 debated in the campaign, and that was the future constitutional

23 relationship of Bosnia-Herzegovina to the Federal Republic of Yugoslavia.

24 The HDZ supported a loosening of the federal relationship between

25 Bosnia-Herzegovina and the federal state. The Serbian Democratic Party

Page 843

1 took a very firm position that the federal arrangement could not be

2 tampered with, the federal Yugoslav state arrangement had to be maintained

3 in exactly the fashion it was at that time.

4 In between these two extremes was the SDA, which essentially

5 sought to postpone a decision on this constitutional relationship until

6 after the election. And so one finds all kinds of efforts to avoid coming

7 to terms with this constitutional issue within the SDA.

8 Q. Why did the Muslim party, the SDA, take this ambiguous position on

9 the relationship of Bosnia-Herzegovina with the federal government?

10 A. Well, they were the middle party that favoured retaining

11 Bosnia-Herzegovina as a -- an integral entity. And consequently they

12 opposed any suggestion of partition or division and wanted to find a way

13 that would allow everyone to be happy within the Yugoslav federation or

14 Yugoslav arrangement on a long-term, stable basis.

15 Q. Now, you state in your report that in the middle of the campaign,

16 the Serbs, the SDS, formed an organisation called the SNV. Can you

17 explain to the Judges exactly what the SNV was and what the reaction of

18 the existing legal structures in the country was to the establishment of

19 that organisation.

20 A. The SDS founded the Serbian National Council in a large rally in

21 Banja Luka in October of 1991. They did so in response to their

22 disappointment with the failure of the constitutional amendments to

23 provide for a third chamber of the legislature known as the Chamber of

24 Peoples. And in establishing the SNV, they proposed that this council

25 would exercise the same kind of role that the Chamber of Peoples would

Page 844

1 have exercised in this situation had it been approved by the Bosnian

2 assembly before the election.

3 Q. What did the constitutional court within Bosnia-Herzegovina do

4 when this organisation was established?

5 A. Well, the constitutional court --

6 JUDGE AGIUS: [Microphone not activated]

7 THE INTERPRETER: Microphone, please. Microphone.

8 JUDGE AGIUS: It's okay. It needn't be recorded. Go ahead.

9 MR. CAYLEY: If it's a criticism, Your Honour, it's an expert and

10 he's written it in his report. I could ask non-leading questions but we

11 would be here for weeks.

12 JUDGE AGIUS: [Microphone not activated]

13 THE INTERPRETER: Microphone, Mr. President, please.


15 Q. Sorry, Dr. Donia, where were we?

16 A. Trying to give a leading answer. The constitutional court

17 subsequently declared this formation to be unconstitutional, on grounds

18 that it was a -- it was usurping a state or governmental function.

19 Q. What, in your expert opinion, was the significance of the

20 formation of the SNV?

21 A. Well, in the long run, it had very little practical effect because

22 it was not really activated much beyond that date of the 11th of October.

23 But I think it signalled the fact that the SDS was unprepared to live with

24 the outcome of the electoral process and insisted on some institution or

25 institutions that would guarantee an absolute right of veto to the Serbian

Page 845

1 people.

2 Q. Was there a reaction by the SDS to the decision of the

3 constitutional court?

4 A. Well, there was no official response from the party. The party

5 leaders responded -- some of the party leaders responded by criticising

6 the very existence of Bosnia and Herzegovina, going back to its

7 constitutional roots at Partisan conferences back in 1943.

8 Q. Now, let's talk about the time immediately after the national

9 elections in Bosnia. What were the results of the elections at a national

10 and municipal level?

11 A. The nationalist parties, HDZ, SDA and SDS, between them won an

12 overwhelming majority of the vote. That was true in the presidency in

13 which all seven members were members of the national parties, in the

14 assembly in which the vast majority of elected members were from those

15 three parties, and in almost all municipal assemblies as well. The one

16 exception was Tuzla, in which Social Democratic -- Social Democratic Party

17 prevailed. But in most mixed municipalities, that is municipalities with

18 a mixed population, there was some combination of two or three national

19 parties that commanded a majority in the local assembly, in the municipal

20 assembly.

21 Q. Dr. Donia, my colleague has asked me to clarify something, which

22 is actually when the President interrupted me for asking a leading

23 question, but in respect of the SNV, what did the constitutional court

24 state about the formation of that organisation?

25 A. I don't have the -- that particular citation at hand, I'm sorry.

Page 846

1 I can't give it to you.

2 Q. Now, going back to the results of the elections -- and you've

3 explained how it affected representation in the national and municipal

4 level. In your report, you also refer to the division of executive

5 positions at a national and municipal level that was actually linked to

6 the results of the election. Can you explain to the Judges how political

7 positions were divided between the three parties within the country?

8 A. The interparty agreement which had been made in the election

9 campaign was elaborated and implemented in the several months following

10 the election. This proved to be the easiest at the republican level, at

11 the level of Bosnia-Herzegovina, where that party that got the most votes,

12 which was the SDA, was allowed to designate the president of the

13 seven-person presidency, and that party chose Alija Izetbegovic.

14 The next largest party, the SDS, was allowed to select the

15 president of the Bosnian assembly, and that party chose Momcilo

16 Krajisnik. And the HDZ was allowed to designate the president of the

17 executive committee, or effectively, the Prime Minister. At the same

18 time, the interparty agreement was applied to each municipality and became

19 the principal -- it was almost a kind of a -- I call it a

20 crypto-constitution because it dictated the way in which these parties

21 would apportion positions among them within mixed municipalities. The

22 same kind of apportionment took place in all municipalities in which there

23 was some mixture of population.

24 Q. Did this take place in the Krajina region of Bosnia, this division

25 of offices in the municipal governments?

Page 847












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 848

1 A. Yes, it did. It took place in a number of municipalities,

2 which -- kind of typically, this took place in municipalities in various

3 places of Bosnia-Herzegovina. When the local party leaders could not

4 agree, the disputes among them would be resolved by negotiators from

5 Sarajevo, from the party headquarters in Sarajevo, who would dictate

6 exactly how these positions would be apportioned.

7 Q. Were, in fact, positions apportioned according to the vote within

8 municipalities throughout Bosnia?

9 A. With -- they were in most places but often with difficulty,

10 because the understanding of the local leaders often disagreed with what

11 the national leadership had -- or the republican leadership of the parties

12 had come to state. So Prijedor was one place where that disagreement was

13 quite protracted and interfered with the formation of the assembly,

14 municipal assembly, for a period of time.

15 MR. CAYLEY: Mr. President, we are now moving to a new area. I

16 don't know if you wish me to go on.

17 JUDGE AGIUS: [Microphone not activated] I was just about to draw

18 your attention that within the next seven minutes, we will break. If you

19 prefer, for your sake and for Dr. Donia's sake, to have a break now, we

20 can break now and resume in 20 minutes' time.

21 MR. CAYLEY: That would be perfect, Your Honour, yes. Thank you.

22 JUDGE AGIUS: Okay. So we will break now for 20 minutes and we

23 will resume with your evidence, Dr. Donia. Thank you.

24 --- Recess taken at 12.33 p.m.

25 --- On resuming at 12.59 p.m.

Page 849

1 JUDGE AGIUS: Yes, Mr. Cayley, just to give you an indication,

2 I've been informed that they prefer us to finish at quarter to 2.00

3 because they practically need 30 minutes to prepare for the sitting that

4 follows mine, follows ours, which starts at quarter past 2.00, and they

5 have to change tapes and do this and do that, and they say they require 30

6 minutes. So we try to finish at -- with the understanding that of course

7 if we don't finish today we continue tomorrow. That goes without saying.

8 MR. CAYLEY: Thank you, Your Honour. I think in any event

9 Dr. Donia will go on into tomorrow. Perhaps the cross-examination will

10 start tomorrow. I can't tell at the moment.

11 JUDGE AGIUS: That's up to the Defence. We will make an

12 assessment of that -- of the situation tomorrow. Please call Dr. Donia.

13 MR. CAYLEY: Your Honour, Ms. Korner sends her apologies. She is

14 now proofing another witness upstairs, and she may be back with us

15 tomorrow.

16 JUDGE AGIUS: Yes, Dr. Donia, you will continue your evidence now

17 on the same solemn declaration that you made before.

18 THE WITNESS: Yes, thank you.


20 Q. Dr. Donia, I was looking at the transcript in the break and you

21 stated at one point that Radovan Karadzic was the leader of the SDP, and I

22 think that was a lapse on your part.

23 JUDGE AGIUS: He said the founder of the SDP.

24 MR. CAYLEY: Founder of the SDP. Thank you, Your Honour.

25 Q. What is the correct position?

Page 850

1 A. That's the same error I made in the paper once and it should have

2 been SDS, both as the founder and as the president of the SDS.

3 Q. Dr. Donia, if we can go to page 41 of your report, and there is a

4 subtitle within the body of the report that states "Regionalisation." Can

5 you explain to the Judges what the term "regionalisation" meant within the

6 context of Bosnia in 1990 and 1991?

7 A. "Regionalisation" was a term for a campaign that was undertaken,

8 principally by the SDS, to establish areas, territories of the country,

9 under single national and one-party political domination. The term was

10 used in public discussions, in press discussions, and also in party

11 councils of the SDS. It referred specifically to three strategies that

12 were used in varying situations to accomplish this territorial

13 domination.

14 The first was the formation of regional associations of

15 municipalities which had Serb majority populations, which were interposed

16 between the municipal level and the government of Bosnia-Herzegovina.

17 The second strategy was to rearrange the organisation of

18 municipalities such that Serbian majority parts of municipalities would

19 either be broken off as new municipalities or joined with other

20 municipalities that already had a Serb majority.

21 And the third strategy to which this concept referred was to

22 create a kind of a shadow assembly which was called either a Serbian

23 Assembly or a Serbian Municipality, which was a set of parallel

24 institutions to the government of that particular municipality.

25 Those are the three strategies that made up the concept of

Page 851

1 "regionalisation" throughout Bosnia-Herzegovina, principally in 1991 and

2 1992.

3 Q. Did the constitution of Bosnia and Herzegovina ever allow for

4 regionalisation?

5 A. The constitution of Bosnia-Herzegovina did allow for regional

6 associations of municipalities to be formed for certain limited purposes,

7 defined purposes: for economic cooperation, for cultural and informational

8 cooperation. This is a concept somewhat like a school district or a water

9 district. And in fact, as of 1989/1990, there were two associations of

10 municipalities in existence in the Bosnian Krajina area. The first was

11 called the Bihac Municipal Association, and the other was called the Banja

12 Luka Association of Municipalities.

13 Q. Was there any provision within the constitution for municipalities

14 to be associated on the basis of nationality?

15 A. There was no such provision in the constitution, no.

16 Q. Now, concentrating specifically on the Krajina area that is

17 relevant to this case, can you explain to the Judges how regionalisation

18 took place in that area? Pausing for a moment just to make matters clear,

19 so that we're absolutely fair. Did the Muslims and Croats engage in

20 regionalisation?

21 A. Yes, both did. The HDZ did not in the first instance after the

22 election engage in regionalisation. But starting in November of 1991, it

23 promoted regional associations, the most important of which was the

24 Croatian Community of Herceg-Bosna.

25 The Muslims were generally opposed to regionalisation, but in a

Page 852

1 few selected cases, organised municipalities or institutions, largely in

2 response to situations in which they were trying to avoid the consequences

3 of regionalisation, particularly by the SDS.

4 Q. When did the Muslims engage in regionalisation?

5 A. Well, there was a combined Croat-Muslim, very short-lived,

6 regionalisation effort in the Sarajevo municipality of Ilidza. And there

7 was also an effort to -- organisation of a Muslim municipality in Banja

8 Luka. I believe there were one or two others in selected parts of

9 Bosnia-Herzegovina. I can't give you specific locations where that took

10 place.

11 Q. Now, going back to my original question, before I paused.

12 Regionalisation in the Krajina area, did regionalisation take place

13 there?

14 A. Regionalisation really began in the Bosnian Krajina area in 1991.

15 The SDS announced in April of 1991 -- a SDS spokesman announced at a press

16 conference that the party leadership had been discussing and planning

17 regionalisation since starting in January of 1991. And in fact, in April

18 of 1991, the newspaper -- daily newspaper in Banja Luka, Glas, or "voice,"

19 ran a series of articles which were interviews with local political

20 leaders and intellectuals who advocated the development of a regional

21 approach in response to alleged neglect of the region from Sarajevo, from

22 the central government of Bosnia-Herzegovina.

23 And on 10th, 11th, and 12th of April, 1991, the Serbian assemblies

24 of roughly ten municipalities proclaimed themselves or issued decisions

25 saying that they had joined the community of municipalities of Bosnian

Page 853

1 Krajina, which became known by its acronym in the local language of ZOBK.

2 These declarations were publicised in -- they were covered in Glas

3 newspaper, and the proclamations evoked some rather forceful responses

4 from leaders of other parties, other than the SDS.

5 May I just -- if I may, Mr. President, I'd like to disclose that

6 the Office of the Prosecutor invited me to review a limited set of

7 documents on which some of these conclusions are based. And those

8 documents consisted of the minutes and conclusions of the ZOBK and the

9 Krajina and also the transcripts of minutes of the Bosnian Serb Assembly

10 and some related documents to these. In addition, I've looked at a great

11 deal of periodical press and other documentation. I just would like to

12 state that for the record.

13 MR. CAYLEY: And as we're about to move into documents, I can

14 confirm, Mr. President, that the Defence have all of the documents, except

15 for one which we're not going to use, which they now have, which Dr. Donia

16 has looked at to compile his report.

17 Q. If I could just take you back for a moment, Dr. Donia, you've

18 moved ahead to April of 1991 and I want to just go back to January for a

19 moment. The campaign to establish the ZOBK, when did it begin?

20 A. The SDS announced in April that the campaign, or the plans, the

21 discussion, had begun in January of 1991. Now, this was in fact a

22 discussion that had been -- the general concept of regionalisation had

23 been discussed for some time beforehand, and it was discussed intensively

24 in the press starting in March of 1991, but there was no specific

25 organisational prescription or recommendation that came out of this

Page 854

1 discussion at that time. The first indication of a specific organisation

2 really arose on 10 April, 1991, when the first of these municipalities

3 announced their affiliation or membership in the ZOBK.

4 Q. Now, in your report, you cite two various reasons that were given

5 by the SDS as to why this regionalisation was taking place, that there had

6 been a lack of investment in the region by the central government in

7 Sarajevo. Were, in your opinion, the reasons that were given for

8 regionalisation in the Krajina justified?

9 A. The rhetoric, the language that was used, alleged great

10 discrimination, concentration of wealth in Sarajevo and discrimination

11 against this impoverished region. There actually was no evidence

12 presented to suggest any significant difference in the economic

13 development levels in this entire campaign, that I've seen. And in fact,

14 I've quoted Dr. Dusko Jaksic as noting that there really was no

15 statistical evidence in support of this. I do believe that there was a

16 widespread perception of that, in part because all of Bosnia-Herzegovina,

17 and for that matter Yugoslavia, was at this time in a steep economic

18 decline and it was very easy to believe that others were doing better than

19 one's particular region. But there doesn't seem to be much of a --

20 evidence, really, that the Bosnian Krajina was in worse shape than other

21 places in Bosnia-Herzegovina.

22 Q. Now, before we move to the documents, a last point, and if you

23 could turn to page 42 of your report, to the paragraph dealing with a

24 conversation between Mirko Pejanovic and Radovan Karadzic in August 1990.

25 Now, I know we are dealing specifically with regionalisation in the

Page 855

1 Bosnian Krajina but if you could explain the relevance of this

2 conversation between these two men in August of 1992, regionalisation

3 throughout the country, including the Krajina?

4 A. August of 1990, before the election, and Mirko Pejanovic, who was

5 at that time president of the political party that had emerged from the

6 socialist alliance, was then seeking to get all parties contending in the

7 election to agree to a common platform, support the sovereignty of

8 Bosnia-Herzegovina and democratic change. And this was a coincidental

9 conversation that he reports in his memoirs which suggests that from the

10 early days of the party, regionalisation, that is the creation of Serbian

11 municipalities, was very much on the mind and in the plans of the party

12 leadership.

13 Q. You mentioned earlier in your testimony that a number of

14 municipalities decided to join the ZOBK, and I'd now like to show you a

15 number of documents.

16 MR. CAYLEY: If the witness -- the witness has a set of these

17 himself but these exhibits do need to be marked for the purposes of

18 identification. The first exhibit in the binder is a document that is in

19 Serbian. It's in Cyrillic only. You do have a set, Madam Deputy

20 Registrar.

21 JUDGE AGIUS: Do you have a set?

22 MR. DE ROUX: [Interpretation] It is in Cyrillic script, and I

23 don't know that. I cannot read that language.

24 JUDGE AGIUS: [Previous translation continues]... for the Tribunal

25 is to know -- to be assured that you have exactly the same set of

Page 856

1 documentation that we have and that the witness and the Prosecution will

2 be referring to.

3 MR. CAYLEY: This is a problem in a few instances, Your Honour.

4 We don't have a translation of the document into English or French. I

5 think Mr. Ackerman certainly has assistance from individuals who can read

6 Cyrillic, and I think Ms. Fauveau also speaks the language and can read

7 Cyrillic, and certainly the witness can.

8 JUDGE AGIUS: Are there many other documents that are in

9 Cyrillic?

10 MR. CAYLEY: Very few, and we are awaiting translations.

11 JUDGE AGIUS: Mr. Cayley, this is a very short document of barely

12 40 lines?

13 MR. CAYLEY: Correct.

14 JUDGE AGIUS: Perhaps it could be translated orally before we even

15 have questions on it, if there is anyone that could do that before the

16 witness is asked questions.

17 MR. CAYLEY: Well, the interpreters have a set, so they could read

18 it out. It could be placed on the ELMO as well.

19 JUDGE AGIUS: That would make the life of everyone easier -- even

20 Mr. Ackerman's.

21 MR. ACKERMAN: That's true. I'm just a little confused because

22 you said it was tab 1 and what I see at tab 1 -- it must be that piece of

23 paper.

24 MR. CAYLEY: I'm sorry. It's the very first document. That's the

25 way it was tabulated, and I really didn't want to take every tab out.

Page 857

1 MR. ACKERMAN: Tab 1 is really what's in front of tab 1.

2 MR. CAYLEY: Exactly.

3 MR. ACKERMAN: I can get comfortable with that, I suppose, given

4 time, Your Honour. I agree with Your Honour that this ought to be read

5 out or something. Because it's a translation.

6 JUDGE AGIUS: I haven't seen these documents yet because they have

7 only been made available to the Tribunal this morning, but I see that this

8 is not a long document and we could solve this problem easily by having it

9 translated orally before we start the questioning. So I would direct one

10 of the interpreters, provided they have available the document, to

11 translate this document orally to us in English and in French.

12 THE INTERPRETER: Could the witness read it out, please.


14 Q. Dr. Donia, if you read the document slowly, then it will be

15 translated as you read.

16 A. I think the first word is "Mada."

17 [Interpretation] "Even though the municipality assembly of Kljuc

18 at its session held on the 10th of April, 1991 had confirmed its

19 existence" -- [In English] [Microphone not activated]

20 MR. CAYLEY: [Previous translation continues] ... Mr. President.

21 JUDGE AGIUS: Well, I think it would be easier if it's translated

22 by an interpreter or a translator who under Rule 73 has been sworn

23 specifically to the effect of doing that particular duty, honestly. And

24 I'm not saying that the witness will not.

25 But obviously I would imagine you are a qualified historian. They

Page 858












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 859

1 are qualified translators. And I would rather opt for them to translate

2 it direct to us in English and in French and proceed from there.

3 After all, this is not a document that has been prepared by

4 Dr. Donia. It's an official document, as I understand it, and I do not

5 expect Dr. Donia to translate it for us or to read it, because it's --

6 Yes, Mr. Ackerman.

7 MR. ACKERMAN: Your Honour, if the people in the translation booth

8 are more comfortable having someone read it and then translate it, I do

9 have a translator sitting here. She would be happy to just read it as

10 best she can, if that's more convenient for them. I'm just offering

11 that. It makes no difference to me how we do it.

12 JUDGE AGIUS: I appreciate that, Mr. Ackerman.

13 What do you prefer?

14 MR. CAYLEY: I think from my experience the interpreters prefer

15 that it's read, because that is their function. They could easily read

16 this in, but I think it's better that somebody reads it.

17 JUDGE AGIUS: So I take your offer, Mr. Ackerman, and I think the

18 lady can proceed. Thank you.

19 MS. MIRKOVIC: Do I have to stand or sit?

20 JUDGE AGIUS: No, you can sit. And read it slowly so it is

21 simultaneously translated into the two officials languages of the

22 Tribunal.

23 MS. MIRKOVIC: [Interpretation] The first word is illegible. It's

24 probably "even though" -- "the municipal assembly of Kljuc held at its

25 session held on the 10th of April, 1991 had confirmed its existence and

Page 860

1 expressed its decision to remain within the community of municipalities of

2 Banja Luka and elected its representatives to the community assembly, and

3 because of the earlier transformation of this community into a regional

4 community, "Bosanska Krajina," or Bosnian Krajina, and after that became

5 the autonomous region of Bosnian Krajina, and the recently completed

6 plebiscite of the Serbian people, and particularly because of the repeated

7 denial of the membership of Kljuc municipality in the regional community,

8 by the municipal board, MBO, it is suggested that the municipal assembly

9 at today's decision should adopt the following decision:

10 1. The earlier decision is confirmed on the joining of Kljuc

11 municipality of the community of municipalities of Banja Luka, and it is

12 established that the Kljuc municipality is a component part of the

13 regional community of Bosanski Krajina, Bosnian Krajina, now called the

14 Autonomous Region of Bosnian Krajina.

15 2. It is also established that the participation of

16 representatives of the Kljuc municipal assembly in the work of the

17 assembly of the regional community hitherto has been legal and

18 legitimate. The continued membership in the assembly of the autonomous

19 region is confirmed until the election of new deputies.

20 3. On the basis of this decision, the administrative service of

21 the municipal assembly will draft and submit to the assembly of the

22 autonomous region the appropriate decisions, and the assembly president

23 will sign once again the appropriate documents on membership of the Kljuc

24 municipality in the regional community, that is, the Autonomous Region of

25 Bosnian Krajina.

Page 861

1 4. This decision comes into force on the day of its adoption."

2 There's a stamp: "President of the Municipal Assembly, Jovo

3 Banac," signed. And there's a number on the document, 00403770.

4 JUDGE AGIUS: I thank you.

5 So you can proceed with questioning Dr. Donia on this document.

6 First of all, this document is going to be marked according to

7 your plan P1?

8 MR. CAYLEY: Yes, Mr. President, thank you, P1 -- P1 Alpha, since

9 it's the Serbian version. And hopefully we will have an English

10 translation in due course.



13 Q. Now, Dr. Donia, I'm going to ask you more specific questions on a

14 group of these documents which the others do have English translations.

15 But what is the significance of this document?

16 A. Well, this speaks to the decision of the municipal assembly of

17 Kljuc to associate it, itself, or take membership in the ZOBK and at the

18 same time to retain its membership in the Banja Luka municipal

19 association. It's one of several municipalities that voted on the 10th of

20 April to take that step.

21 Q. I'll show you a number of other documents in a moment. But at the

22 time that this decision was made, did the ZOBK actually exist?

23 A. If the date on this document is correct, that is, the 10th of

24 April, 1991, at that time it did not exist, no.

25 Q. So how would you describe this decision, if the organisation to

Page 862

1 which it's affiliating itself did not exist?

2 A. Well, it's clearly an initiative by a municipality -- municipal

3 assembly.

4 MR. CAYLEY: If the witness could now be shown the exhibit which

5 appears in Tab 2. He has his own set.

6 And if the English version of this document could be placed on the

7 ELMO, moved down a little bit, please, Mr. Usher.

8 THE USHER: Down or up?

9 MR. CAYLEY: I'm sorry, up.

10 Q. What is this document, Dr. Donia?

11 A. This is the decision of the municipal assembly of Titov Drvar to

12 join the ZOBK and subsequent to that, a statement of the reasons that the

13 decision -- or that they made that decision.

14 Q. And what is the date of that document?

15 A. This is also the 10th of April, 1991.

16 I also should note here that on page 2 of the draft translation is

17 a statement that this initiative began on the 25th of January. And the

18 assembly concluded to enter into contact with other municipalities

19 regarding founding the ZOBK.

20 MR. CAYLEY: And Mr. President, with your permission, I'll mark

21 the B/C/S version of this P2 Alpha, and the English version P2 Bravo,

22 although, actually, in the binders, they are double-sided photocopied

23 documents, simply to save paper.

24 Q. If the witness could now look at the document numbered Tab 2 --

25 and we can move quite quickly through these documents, and then I'll ask

Page 863

1 you some questions briefly at the end.

2 Do you have that document in front of you, Dr. Donia?

3 A. This is Tab 2 -- Tab 3? I'm sorry.

4 Q. This is Tab 2. This is the decision by Bosanski Petrovac in this

5 assembly.

6 A. Yes. Yes, I have.

7 Q. Can you explain to the Court what this document is.

8 A. This document dated 10 April 1991 separates the Bosanski Petrovac

9 municipality from the Bihac, that is, the socialist era Bihac community of

10 municipalities.

11 JUDGE AGIUS: One moment. Why are you saying 10 April, 1991,

12 because the document that I have here dealing with the separation of the

13 Bosanski Petrovac from the Bihac is dated 26 April, 1991. The one we had

14 before, which was also referred to as tab 2, was an agreement to join the

15 community of Titov Drvar with the community of -- the municipalities of

16 the Bosanska Krajina. Let's clarify this, because in the case of that

17 particular document, you referred to it as being tabbed at tab 2. This

18 you are referring to also as being at tab 2, when in actual fact it's

19 not. We have to draw a line here where tab 1 starts, as Mr. Ackerman

20 pointed out rightly in the very beginning, because the first document is

21 in front of tab 1, and the second document was in front of tab 2.

22 MR. CAYLEY: You want me to refer to them on that basis?

23 JUDGE AGIUS: It's your choice. I'm not going to interfere in

24 that, but we need to have a uniform practice here.

25 MR. CAYLEY: Well, I mean --

Page 864

1 JUDGE AGIUS: So if you want us to understand that when you say

2 "document at tab 2" means the document in front of tab 2, we will take it

3 as that.

4 MR. CAYLEY: Let's say behind the tab, Your Honour.

5 JUDGE AGIUS: Okay. So this will be document at tab 3 or at

6 tab 2?

7 MR. CAYLEY: This document is at tab 2.

8 JUDGE AGIUS: At tab 2. So again I put the question: Why are you

9 saying it's 10 April, because at least the one I have here is dated the

10 26th of April.

11 MR. CAYLEY: Which document are you referring to?

12 JUDGE AGIUS: The document that the witness just mentioned, that

13 is document -- and you referred to, document on the separation of Bosanski

14 Petrovac municipality from the rest, from the intermunicipal regional

15 community, Bihac intermunicipal regional community.

16 MR. CAYLEY: I'll let the witness answer.

17 THE WITNESS: Thank you, Mr. President. The document that I'm

18 looking at, which is behind tab 2 and before tab 3, is indeed dated 26

19 April, 1991. At the end of the first paragraph, it's stated that this

20 decision was adopted at its session on 10th of April, 1991. It was quite

21 common practice for these decisions to be logged into the official records

22 of the municipality sometime after the session was actually held.

23 JUDGE AGIUS: Okay. That explains it, but because before you said

24 the document was dated date 10th April and that confused the issue.

25 You're clear about this now. Okay.

Page 865

1 Please go ahead, Mr. Cayley.


3 Q. The Bosanski Petrovac document I think also makes clear in the

4 body of the document that the session was held on the 10th of April of

5 1991; does it not?

6 A. Yes, it does.

7 MR. CAYLEY: And I will mark that document, Your Honour, as P3,

8 the English version being P3 Bravo and the original version being P3

9 Alpha.

10 MR. ACKERMAN: Your Honour, I wonder if --

11 JUDGE AGIUS: Yes, Mr. Ackerman.

12 MR. ACKERMAN: I wonder if Mr. Cayley is offering these as

13 exhibits as he goes through them or -- because if I have an objection, I

14 want to know when to lodge it. That's what I'm asking.

15 MR. CAYLEY: From everything I've seen of the dynamics in this

16 court between the Prosecution and the Defence already and having

17 prosecuted two of these cases before, I can see that in this particular

18 case there are going to be a lot of objections, and I think the quickest

19 way to get through the witness's evidence is to let him go through, speak

20 about the documents. He can't comment on where these documents came from,

21 because he got them from us, but what he can provide are certain elements

22 of authenticity because he is an expert on contemporary events and the

23 documents often reflect events at the time. So it's a matter for you as

24 Judges to consider, whether or not you regard that as evidence relevant to

25 authenticity, but I think the best time to raise objection is simply if I

Page 866

1 provide a shopping list at the end of all these exhibits and then

2 Mr. Ackerman can raise his objections and indeed Mr. Pitron and

3 Mr. de Roux can lodge their objections at the end of his evidence, and

4 then it can be a matter for you to decide whether they are admitted and

5 whether we as the Prosecutor are going to have to call evidence in respect

6 of each of these documents as to its origin and authenticity.

7 JUDGE AGIUS: But that was not the question or the point raised by

8 Mr. Ackerman. Actually, Mr. Ackerman was very categoric in his remark.

9 He wants to know what you are actually proposing to do with these

10 documents at this present moment, whether you are exhibiting them now and

11 you are actually giving them an exhibit number, or whether you propose to

12 exhibit them formally later on, and that would affect the moment when the

13 Defence can make objections.

14 On the question of authenticity and that, I mean, yes, we could

15 visit that later on as we go along, taking into consideration what a

16 witness would state in regard in the course of his testimony. But again,

17 that's not the most important at this present moment.

18 MR. ACKERMAN: Mr. Cayley's proposal that we deal with it at the

19 end of the process, based on some list he gives us, probably is

20 extraordinarily convenient but I don't think -- it's up to the Chamber but

21 it seems to me it might make it very difficult for the Chamber because --

22 JUDGE AGIUS: For the Chamber, it would not constitute a problem,

23 if it doesn't constitute a problem for the Defence. The only thing is we

24 are asking a witness to make specific reference to exhibits that are not

25 exactly formally exhibited yet. So this is the whole thing. So I would

Page 867

1 rather find another solution. On the other hand, I realise that if I

2 instruct Mr. Cayley to file these exhibits formally at this present

3 moment, you will come with all sorts of objections at this moment which

4 would, you know, create problems for the Chamber to proceed with the

5 evidence of Mr. -- of Dr. Donia.

6 MR. ACKERMAN: I have --

7 JUDGE AGIUS: I think I could easily live with all these exhibits

8 being presented at one bulk at a time Mr. Cayley has suggested, if that is

9 okay, if that is all right with you.

10 MR. ACKERMAN: I can, Your Honour. We don't have a jury. We have

11 professional judges. And with the understanding that this witness is

12 going to base some of the conclusions you're going to hear based upon

13 documents which may not be authentic, and that's a decision the Chamber

14 will have to make at some point, and I'm confident that if you decide they

15 are not authentic, you can discount his opinion by whatever amount it

16 ought to be discounted on that basis.

17 JUDGE AGIUS: That is obvious.

18 MR. ACKERMAN: That's fine with me. I just want to make sure

19 there will be a point where I will be able to assert my objections and

20 they will be heard.

21 JUDGE AGIUS: Yes. And the problem can be solved, because as you

22 obviously know, I mean, questions as to the authenticity of these

23 documents will not be answered by Dr. Donia. I mean, Dr. Donia may pass

24 comments and give us his opinion sometimes with regard to certain

25 documents, but I don't take it that he is the key witness that will

Page 868

1 provide the Prosecution with the proof of authenticity of these documents.

2 MR. CAYLEY: Can I just make one comment on something Mr. Ackerman

3 has just said, that if a document is not admitted by the Chamber, that

4 therefore Dr. Donia's opinion on that particular matter would be ignored?

5 I think that would be, in my respectful submission, wrong because he is an

6 expert. He is familiar with the events of the time and he knows from

7 other sources that the events referred to in the documents were taking

8 place.

9 JUDGE AGIUS: Legally, you are correct, definitely much more

10 correct than Mr. Ackerman, because admissibility of a document a priori is

11 one thing, a document which has been admitted as a piece of evidence is

12 another, and a question of probative value and authenticity is something

13 that is to be decided after that document has been -- if the document is

14 not proved to be authentic or if there is some doubt as to the

15 authenticity of that document, the document remains in the records of the

16 case but obviously its probative value fizzles into nothing. So it does

17 not amount to the removal of the document from the records of the case.

18 It will remain always there because -- in actual fact, even a decision --

19 our decisions are subject to appeal in any case. So ...

20 MR. ACKERMAN: Mr. Cayley obviously misheard me. I didn't say his

21 testimony should be ignored. Your Honours will recall what I said was

22 that you would be prepared to discount his testimony by whatever amount

23 necessary based upon your finding the document was inauthentic, not that

24 you should ignore his whole testimony.

25 [Trial Chamber and registrar confer]

Page 869

1 JUDGE AGIUS: Mr. Cayley, I think we have a problem to which I

2 referred to earlier and which I had anticipated actually, but at the time

3 the Deputy Registrar assured me of the flexibility and therefore we went

4 ahead. As I understand, if you proceed now with giving these exhibits --

5 what would in future become exhibits, a new reference number, exhibit

6 number, they will not be in a position to cope. They would rather prefer

7 you to refer to these documents now with the original reference number,

8 and then, once they are formally exhibited, they will be given the exhibit

9 number that you require.

10 I told you that in this, it's not a question of preferences. I

11 would rather have the Deputy Registrar and her staff working in a way

12 which, to them, is convenient and does not create unnecessary problems.

13 Maybe I'm using "unnecessary" unduly here, but I think in any case, it's

14 quarter to 2.00 and we have to stop our hearing today here. Perhaps you

15 can find time to discuss this with the Deputy Registrar, and I am sure

16 that tomorrow morning, when we resume, we would have found a solution. In

17 any case, we are only at the third or fourth document and we can reverse

18 -- we can enter a [inaudible] tomorrow morning and we will revert to

19 whatever is needed to be the practice.

20 MR. CAYLEY: I'd like to make some further representations to you

21 tomorrow, if I may, Mr. President. It seems to me it's even more

22 complicated than what I've just suggested.

23 JUDGE AGIUS: This is something that had been suggested -- what

24 you suggested was something that was suggested to me by my legal staff

25 sometime back, and -- well, I had gone into it and I had anticipated some

Page 870

1 problems. When you mentioned it today, and I referred it to you, I

2 understood that there wouldn't be any problems, but obviously, I was right

3 in the very beginning. So please try and find a solution. The important

4 thing is that there will be a uniform marking or numbering of the exhibits

5 as we go along this trial, which will be the same for you, for the Bench,

6 for the Chamber, and for the Defence, because there will be references

7 later on to documents, and I want to make sure that we will be referring

8 to the same document and not have to face a confusion at any given moment

9 and waste half an hour or one hour to dig up the document that needs to be

10 referred to. So I leave it in your good hands. I know how capable you

11 are. And you are also assured of the flexibility of the Deputy Registrar

12 and her staff and I'm sure by tomorrow morning you will have found --

13 anyway, it's not a difficult problem. There is an easy solution to it.

14 THE REGISTRAR: Your Honour, may I please have the OTP at the

15 Prosecution Office and the Defence counsel just to stay with me after the

16 hearing for five minutes to discuss how to monitor all these documents and

17 exhibits, to help us help you?

18 JUDGE AGIUS: Yes. And to complement that, may I say I had

19 refrained from suggesting this system precisely because I had been almost

20 assured that if a new system is adopted, it needs to be one which would

21 create the least possible problems to the Registry because they have great

22 problems with recording the exhibits, and they have a system which has

23 been in place, at which they are used and which could lead to confusion

24 because we are -- we don't always have the same persons in the courtroom

25 or dealing with the documentation. So the system needs to be uniform from

Page 871

1 beginning -- from beginning to end. Okay?

2 So I leave it in your good hands, and tomorrow morning, perhaps

3 you could inform the Chamber formally or informally of the outcome of

4 the --

5 THE REGISTRAR: Your Honour, this afternoon I'm going to report to

6 you the system we are going to use.

7 JUDGE AGIUS: Okay. Thank you. So this hearing is adjourned

8 until tomorrow morning. We will see you again, Dr. Donia. We will start

9 sharp at 9.00 in the morning. Thank you.

10 --- Whereupon the hearing adjourned at

11 1.48 p.m., to be reconvened on Friday

12 the 25th day of January, 2002, at 9.00 a.m.