1 Friday, 4 April 2008

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

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

6 JUDGE MOLOTO: Good morning to everyone around the courtroom.

7 Madam Registrar, could you please call the case.

8 THE REGISTRAR: Good morning, Your Honours, good morning everyone

9 in the courtroom. This is case number IT-04-83-T, The Prosecutor versus

10 Rasim Delic.

11 JUDGE MOLOTO: Thank you very much. We'll have appearances for

12 today, starting with the Prosecution.

13 MR. MUNDIS: Good morning, Mr. President, good morning, Your

14 Honour, my learned colleagues from the Defence, General Delic, and

15 everyone in and around the courtroom. For the Prosecution, Daryl Mundis

16 and Laurie Sartorio, assisted by Laura Greer, our intern, and

17 Alma Imamovic, our case manager.

18 JUDGE MOLOTO: Thank you very much. For the Defence.

19 MS. VIDOVIC: [Interpretation] Good morning, Your Honour, good

20 morning to the colleagues from the Prosecution, to everyone in and around

21 the courtroom. I'm Vasvija Vidovic and together with Nicholas Robson I'm

22 representing Mr. Delic and together with us is our legal assistant Lejla

23 Gluhic.

24 JUDGE MOLOTO: Thank you very much, Madam Vidovic.

25 Before we come to you, good morning, sir, we'll come to you just

1 now. Just one or two points.

2 I realise I did not even bring it with me. This morning on my in

3 tray there was communication from the Italian government. It's all in

4 Italian, I don't understand a word of what they say, and unfortunately I

5 didn't bring it and would have had the benefit of Judge Lattanzi's

6 presence here to tell us what it says. But I will make sure that in the

7 next break I bring it with me.

8 That's the one thing. Yes.

9 MR. MUNDIS: Sorry to interrupt, Mr. President. I also received

10 some correspond from the Italians last evening. I don't know if it the

11 same. I do have copies.

12 JUDGE MOLOTO: I suspect so, because mine is -- it is addressed

13 to you as well.

14 MR. MUNDIS: It is four pages.

15 JUDGE MOLOTO: Something like Tahto.

16 MR. MUNDIS: I do have some copies if you'd like those

17 distributed now or we can wait until the next break.

18 JUDGE MOLOTO: If you can distribute them now, I would appreciate

19 it very much, Mr. Mundis.

20 MR. MUNDIS: There's one copy for Defence and three for the Trial

21 Chamber.

22 JUDGE MOLOTO: At least one for Judge Lattanzi. Okay. That was

23 the little point.

24 The next point is that exhibit 1353, that was the map yesterday

25 that the witness was making markings on, and he made three markings and

1 then later made two more that came five. Apparently because of the

2 technical problem that we had yesterday just around that time, the last

3 two markings four and five have not been -- have been deleted or

4 something like that. And the request is we should get the witness to

5 make those markings again and then remove the exhibit that is already in

6 on which the two markings are deleted.

7 I don't know how that is going to be done, whether it is going to

8 be done during cross-examination or during re-examination, I don't know.

9 Any -- yes, Madam Sartorio.

10 MS. SARTORIO: Your Honour, I think I have solved that problem.

11 I have brought some hard copies of maps with me today that are better

12 representative of the area and I think we'll just proceed with a

13 different map. So we will just keep that as an exhibit as it is if

14 that's -- that's --

15 JUDGE MOLOTO: But it is not a proper exhibit now because the

16 transcript talked about five places to be marked but it shows only three

17 marked on it.

18 MS. SARTORIO: All right. Well, then I will ask the witness to

19 re-mark those two other places.

20 JUDGE MOLOTO: If you will, thank you very much, Madam Sartorio.

21 MS. SARTORIO: May I do that at the appropriate time and not at

22 the beginning?

23 JUDGE MOLOTO: Sure. Do that when it can be convenient.

24 Okay. Thank you very much.

25 Good morning, sir, and let me just remind you that you are still

1 bound by the declaration you made at the beginning of your testimony to

2 tell the truth, the whole truth and nothing else by the truth, okay.

3 Thank you very much.

4 Madame Sartorio.

5 THE WITNESS: [Interpretation] Fine.

6 MS. SARTORIO: Thank you, Mr. President, Your Honours.

7 WITNESS: IZET KARAHASANOVIC [Resumed]

8 [Witness answered through interpreter]

9 Cross-examination by Ms. Sartorio: [Continued]

10 Q. Good morning, Mr. Karahasanovic.

11 A. Good morning.

12 Q. I'm going to be asking you some further questions this morning

13 about the 11th of September 1995 and when you were at Kesten.

14 Now, sir, if this had been a normal situation, in other words,

15 the persons had not taken the prisoners, can you tell us what the normal

16 procedure would have been in terms of transporting the prisoners, by whom

17 and to where?

18 JUDGE MOLOTO: Yes, Mr. Robson.

19 MR. ROBSON: I apologise for interpreting immediately. Your

20 Honour, in the first part of the question it was put to the witness, "I'm

21 going to be asking you further questions this morning about the 11th of

22 September, 1995, and when you were at Kesten." I just want it noted for

23 the record that the witness said that he was at Kesten on the 10th of

24 September and all of the evidence that he gave yesterday related to the

25 10th of September. I just wish to point that out.

1 MS. SARTORIO: Thank you, I apologise. The 10th of September.

2 JUDGE MOLOTO: Thank you very much. The 11th of September was on

3 the report.

4 MS. SARTORIO: Yes, that's correct, sorry.

5 Q. So, sir, could you tell us what the normal procedures would have

6 been in the instance when there was a capture of enemy soldiers?

7 A. Well, if enemy soldiers are taken prisoner I as the assistant

8 commander for security, the first thing that I should do was to search

9 them if they hadn't been searched before to check whether they had any

10 weapons or anything concealed on their persons. I was supposed also to

11 take their documents, personal IDs that I could then collate with the

12 formation that they provided me with. I would ask them for their full

13 names and I would make a list in my notebook or a piece of paper or

14 anything, and after that if I had enough time and if I was dealing with a

15 smaller number of people I would ask them about their unit, where they

16 were deployed, what they were doing, things like that.

17 After this questioning on my part and before all this, it would

18 be my duty to report to the military police in the brigade to tell team

19 that we had prisoners so that they could come and take over those

20 prisoners from me, take them to the brigade, where they would face

21 further questioning.

22 Q. And where was the military police located, the brigade military

23 police?

24 A. The brigade military police was in Zavidovici because the brigade

25 command was in Zavidovici.

1 Q. In fact, on this day, didn't you in fact make a request for the

2 military police to bring a truck to pick up the prisoners?

3 A. Yes, I did that, through my commander. I notified my commander

4 that we needed assistance, that we needed means of transport for the

5 prisoners to take them from that location, because the distance between

6 Zavidovici and Kesten was too big for them to go there on foot, so a

7 vehicle, an appropriate vehicle was supposed to come to Kesten, pick them

8 up, and take them there. And my commander then notified the assistant

9 commander for security, the assistant commander for security notified his

10 commander in turn and it was their duty to notify the police because it

11 was his demand to the military police to go there and to pick those

12 prisoners up.

13 Q. Now, do you know if that demand was made? In other words, were

14 you told that, yes, the police -- military police had been telephoned and

15 a truck is on its way?

16 A. As I said yesterday, I was in Kesten until night-fall. The

17 military police did not come, the truck didn't come. They had already

18 learned that the prisoners of war had been taken away, and probably they

19 thought there was no need for them to go to Kesten or maybe there was

20 some other reason for their failure to appear, but at any rate, neither

21 the military police nor the truck ever appeared in Kesten.

22 Q. Okay. Now, with regard to the three Serbian women, you said on

23 direct examination that the last time you saw these women they were being

24 escorted by a soldier, moving from Kesten to Malovan Greda on the

25 footpath. Is that what you -- is that what your testimony was?

1 A. Yes.

2 Q. Now, if you know, who was at the command in Marici to receive

3 these women?

4 A. Well, there were some officers there from the battalion, for

5 instance and they would have received them, because the commander himself

6 was at the battalion. Ahmet Sehic, the battalion commander. And he was

7 in a position to receive them and wait for our arrival and then we would

8 have taken in their information, but since I only passed them by, we just

9 exchanged a couple of words, I told him, Are you taking them to the

10 battalion command? Wait for us there until we come back.

11 Q. Now after the Arabs took the other POWs did you called commander

12 Sehic to -- to discuss the women? In other words, the women are walking

13 along this footpath. Were you concerned about the women once the men

14 were taken away?

15 A. Well, the commander -- after this incident, the commander also

16 came to Kesten. I spoke to him, and he relayed to me this information

17 before the soldier did, but I did ask the soldier because he took over

18 from the company commander those captive women, and he was leading them

19 away. When I came to Marici to check what had happened, I asked the

20 soldier, What had happened to the women, where did you take them to, what

21 happened, and he told me the things that I told you yesterday.

22 Q. Well, how long was it from the time you saw the women to the time

23 you first saw the Arabs?

24 A. Well, approximately half an hour, something like that. Because

25 the time it took me to get down there, I was probably halfway there. It

1 was downhill. It may have taken me about ten minutes to get to Kesten,

2 then the making of the list that I described yesterday. I think half an

3 hour, 35 minutes, something like that.

4 Q. And now -- at the time that you saw the women, how long would it

5 have taken them to get to Marici on the footpath?

6 A. Well, as I said yesterday, 30 to 35 minutes, something like that.

7 That's what I said yesterday.

8 Q. So technically at the time you saw the women, they should have

9 arrived in Marici at the same time you arrived at the Kesten hall.

10 A. No. It would have been a bit later for them. I arrived at

11 Kesten before they did, because their trip was longer because I was able

12 to go downhill to Kesten from the place where I was.

13 Q. Yes, I'm sorry, I'm corrected. About the same time that you saw

14 the Arabs would have been the same time had they been walking straight to

15 Marici that they would have arrived there. In other words, it was half

16 an hour before you saw the Arabs, and it would have taken them a

17 half-hour to walk to Marici. So something happened between the time you

18 saw the Arabs and you don't know any details about what happened?

19 JUDGE MOLOTO: Yes, Mr. Robson.

20 MR. ROBSON: Your Honour, there were a number of elements to this

21 last question put by the Prosecution. I'm not sure how the witness is

22 supposed to respond. Perhaps it could be broken down into question by

23 question.

24 MS. SARTORIO: I will do that, Your Honour. Thank you.

25 Q. Okay. You told us a minute ago that when you saw the women on

1 the footpath, at that point it would have taken them approximately 30

2 minutes to get to Marici, right? And it took you ten minutes to get to

3 the Kesten hall, approximately?

4 A. Yes.

5 Q. And then approximately 20 minutes later you -- that's

6 approximately when -- the first time when you saw the Arabs?

7 A. Yes.

8 Q. So nowhere during this time-period were you ever -- were you ever

9 notified by the soldier or anyone that these women had been taken, were

10 you? You weren't notified of that, at all?

11 A. No.

12 Q. And these women were in the custody of a 5th Battalion soldier,

13 were they not?

14 A. Yes, that's right.

15 Q. All right. Now, when you say -- I believe you said yesterday

16 that you were frightened that day when you saw the Arabs with their guns.

17 Is that correct?

18 A. In the room where I was, given their behaviour, of course, I was

19 afraid for my own life, the life of my soldiers, and the lives of the

20 prisoners, because they were quite rough. They were yelling, they were

21 brandishing their weapons, training the weapons at us, throwing their

22 weight about. They were just walking around, strutting around.

23 Q. Now, apart from what you -- what you saw that day, had you heard

24 anything about the behaviour of Arabs or Mujahedin in terms of treatment

25 of prisoners or just in terms of their general behaviour? Did you hear

1 anything negative about them?

2 A. I didn't hear anything negative about them. I was simply

3 surprised by their behaviour. I didn't expect them to behave the way

4 they did at that time, because I had thought those were normal people,

5 people who behaved normally as we did in the BH army, but on that day,

6 they did not act like normal people at all.

7 Q. Now, do you know if Commander Sogolj saw the Arabs and if

8 anything took place between he and the Arabs, did you ever hear anything

9 or did you ever see anything?

10 A. Commander Sogolj, Commander Sogolj commanded a company and Ahmet

11 Sehic was the commander. Who are you interested in now?

12 Q. Sogolj. Was he present in Kesten at the same time that you were

13 present?

14 A. He was in Kesten when I arrived. That's what I stressed

15 yesterday. He waited for me to get there. He told me what had happened,

16 how it had happened and then he moved on with his unit. He moved away.

17 I remained in Kesten and three or four soldiers. That's what I said

18 yesterday. And Muhamed Omerasevic, the assistant commander arrived

19 later. Those are the people who were in Kesten at that time.

20 Q. Okay. Thank you. But when you just said that, "He waited for me

21 to get there, he told me what had happened, how it happened and then he

22 moved on with his unit," what did he tell you, what had happened and how

23 it happened, what is that that he told you?

24 A. Well, he told me that this group had come out of the forest, that

25 they had surrendered to them, that they had taken this group with them,

1 disarmed them, seized the documents and all those documents were in a

2 heap there. He told me that those two men had tried to seize the

3 weapons. That's what I described yesterday. They tried to grab the

4 weapons from our soldiers and they were disarmed, in turn. And this was

5 not the whole company. This was just an element of the company that took

6 them in. I don't know whether these two people thought that they could

7 simply kill all our soldiers and that's what led them to attempt that,

8 but they were killed at the end. The rest were taken to the hall and

9 that's where I came in. And he told me as I've already indicated that

10 four other enemy soldiers had been captured by the Arabs. That's what he

11 told me.

12 Q. So he told you that four other enemy soldiers had been captured

13 by Arabs and did he say where these Arabs were?

14 A. Well, some were there in Kesten. He didn't tell me, because when

15 I came, there were no Arabs there. He also told me that they had two

16 children, two underage children and they had let them go, and he told me

17 that they had taken away three women and I said that I had met them on

18 the way down and that I had instructed them to go to the command.

19 Q. Okay. Let's just break it down, sir, one -- perhaps one point at

20 a time.

21 "He also told me that they had two children, two underage

22 children and they had let them go." This was the ABiH soldiers had two

23 underage children? Is that what you're talking about?

24 A. No. Those were probably Serb children who had surrendered

25 together with the 51 people that I listed, and the three women. So

1 children -- the children were with them and they were let go by the BH

2 army soldiers.

3 Q. Yes, thank you. That was my question. My question wasn't

4 articulate enough.

5 The soldiers released from their custody those children.

6 That's -- that's correct, right?

7 A. Yes.

8 Q. Well, where did the children go to?

9 A. Well, as he described it to me, they had gone back into the

10 woods, and as to what happened to them in the end, I don't know.

11 Q. Now, this area around Kesten, you would agree with me, wouldn't

12 you, that it had several land-mines, didn't it, and it still does today?

13 A. I think that there were land-mines laid only between our lines

14 and the enemy lines and in the depth of the enemy territory there were

15 less land-mines because I don't really believe that they would lay mines

16 in the areas where they moved, but between our two lines, the -- our line

17 and the enemy line, that's why land-mines were laid. And once you passed

18 that line you feel safer moving around because you can't image that

19 somebody would actually lay mines in -- that they would do it in their

20 own rear, where they were moving around.

21 Q. But I have to go back to the point about the underage children.

22 It's not plausible, is it, that the underage children just left and

23 walked into the woods, is it?

24 JUDGE MOLOTO: Yes, Mr. Robson.

25 MR. ROBSON: Objection, Your Honour.

1 JUDGE MOLOTO: Yes.

2 MR. ROBSON: It's a call for speculation and the witness has told

3 the Trial Chamber what he was told about the children and he said that he

4 didn't know what happened to them.

5 JUDGE MOLOTO: Yes, Madam Sartorio.

6 MS. SARTORIO: Well, I will put the question a different way.

7 Q. Sir, you were the assistant commander for security for the

8 5th Battalion. That means that you were responsible for at the first

9 level of prisoners of war. Isn't that correct?

10 A. Yes. I was responsible for taking in those prisoners and to

11 transfer them on to the brigade. That's where my responsibility ended.

12 But since it never happened that way, I never handed them over to the

13 brigade. Because of this incident I was unable to do so. I was unable

14 to transfer them to the brigade because the military police did not

15 arrive.

16 Had the military police arrived at the time when the Arabs were

17 in there, that would have been a different story, because there would

18 have been more of those military police and it would not have ended the

19 way that it had ended in the end.

20 Q. But -- and you never made any further inquiry about what happened

21 to the underage children, did you?

22 A. Well, I actually never saw the children. I didn't know who they

23 were. They were from the other side, from Republika Srpska, and I didn't

24 know and I didn't have anyone to ask about them, because I don't know who

25 knew more, who would be in a position to know more about what had

1 happened to them. They were allowed to go. I didn't hear about them

2 being recaptured. I simply didn't have any information about them.

3 Q. Okay. Now, let's go back to what Commander Sogolj told you.

4 What -- tell us everything you recall that he told us [sic] about

5 the Arabs that he met or seen.

6 A. Well, he simply told me that that morning, in that area, either

7 close to the hall or maybe a bit further away, it's a rather large area,

8 that he told me that they had seen the capture of four Serb soldiers.

9 That's the only thing he told me in this regard. And I simply made this

10 note for the record, so that we know that Arabs had captured those

11 people, because I was supposed to draft this report and I had to put that

12 in.

13 Q. Well, if these Arabs who captured those four prisoners were not

14 part of the ABiH, then wouldn't you have had to make a report or call for

15 assistance or try to find out what happened to those four soldiers?

16 A. Well, I simply can't see who I was supposed to go to, to ask for

17 the information, because they had been take away in the morning before my

18 arrival. That's what I heard about. I didn't see that. How far they

19 could have been taken, whom I was supposed to ask about the identity of

20 these people. It was a war. You cannot conduct an investigation because

21 there is gun-fire all over the place. You simply have to try and keep

22 yourself alive, and as for making any kind of inquiries or

23 investigations, this was simply impossible.

24 Q. I can understand the situation, sir, and being war and shooting

25 all around you. But, again, you are the assistant commander for security

1 and you learn of four Serb soldiers being taken by Arabs and you don't

2 make a call to commander Malicbegovic or commander Sehic or anyone?

3 A. Well, when I learned that, I didn't have that because I was not

4 the assistant commander of those Arabs. I did not collaborate with them

5 and I was not in charge of their case. I was in charge of this case or

6 incident that happened in the 5th Battalion and I tried to deal with what

7 had happened in the 5th Battalion and I couldn't process stuff from any

8 other units that were present there.

9 Q. Well, Commander Sogolj was the commander of the 2nd Company. Is

10 that correct?

11 A. Yes.

12 Q. And the 2nd Company is in the 5th Battalion, isn't it? It was in

13 the 5th Battalion.

14 A. Yes.

15 Q. So ultimately --

16 A. It remained there.

17 Q. So ultimately those four Serb prisoners were within your

18 jurisdiction.

19 A. I don't know how they could have been. They were not taken

20 prisoner by my soldiers. Those four Serbs therefore were not under my

21 jurisdiction. Had they been captured by my soldiers they would have

22 been, but since they were captured by some other soldiers, they could not

23 have been under my jurisdiction.

24 Q. So it's fair to say, then, that those other soldiers who captured

25 those prisoners were part of the military, otherwise it would have been a

1 crime for them to just walk away with the soldiers?

2 A. I didn't understand the question.

3 Q. The question is: Those Arabs who took those Serbs must have been

4 part of the army of Bosnia-Herzegovina for them to be able to just take

5 those prisoners and walk away without any consequences.

6 JUDGE MOLOTO: Yes, Mr. Robson.

7 MR. ROBSON: Again, Your Honour, it's a call for speculation.

8 The witness can only -- has told the Trial Chamber what he was told by

9 Mr. Sogolj about the events which resulted in four VRS soldiers being

10 taken away, and again, in my submission I don't think it is a proper

11 question to put this witness.

12 JUDGE MOLOTO: Yes, Madam Sartorio.

13 MS. SARTORIO: I disagree, Your Honour. I'm trying to find out

14 what his responsibilities were and I think he has made it clear in his

15 position as assistant commander of security for the 5th Battalion he is

16 informed of a situation by a subordinate commander, and I think that the

17 question is a fair question.

18 Wait.

19 JUDGE MOLOTO: Just a second, sir.

20 The question is allowed. Thanks.

21 MS. SARTORIO: Thank you.

22 Q. Do you want me to re-ask the question, sir, or do you recall the

23 question and can you answer it?

24 A. I recall the question.

25 How should I know whether those Arabs belonged to the army of

1 Bosnia-Herzegovina? I don't know what army they belonged to. They could

2 have been a paramilitary formation belonging to no one.

3 JUDGE MOLOTO: The logic of the question is if you didn't know

4 who they were, what did you do to make sure that you re-take the

5 prisoners of war from them because they have now taken people from you

6 for whom you are responsible.

7 THE WITNESS: [Interpretation] I wasn't responsible for those

8 prisoners, as I said. They were taken away by the Arabs. As to where

9 they took them, I don't know. I didn't see that. And my unit did not

10 stop that. I couldn't go and search for the prisoners, where they were

11 and with whom, I had no time or space for that. I based my --

12 JUDGE MOLOTO: You have answered, you have answered that. You

13 said they were not your responsibility. That answers the question.

14 MS. SARTORIO:

15 Q. So -- so if they were strangers in the AOR of the 5th Battalion

16 who took prisoners of war, then you had no responsibility with regard to

17 that situation. Is that your testimony?

18 JUDGE MOLOTO: Sorry, Mr. Delic. Do you have anything to say?

19 MS. SARTORIO: Not in the presence of the witness, Your Honour, I

20 would object, please.

21 JUDGE MOLOTO: Just a second, Mr. -- I guess if you have

22 something to say, sir, say it to your lawyers. Okay?

23 You may proceed, ma'am.

24 MS. SARTORIO: Thank you.

25 Q. So I would like an answer to my previous question, sir.

1 A. They were not within the AOR of the 5th Battalion. They were in

2 the AOR of the 328th Brigade. It comprised several battalions. I don't

3 know from what direction they came. They could have come from the AOR of

4 the 1st, 2nd, or the 4th Battalion, not only from the AOR of the

5 5th Battalion to be under my jurisdiction. They may have simply gone

6 through Kesten. It needn't necessarily mean that they were within our

7 AOR, maybe they were just passing through. As to where they came from

8 and what was the direction they were going to, I don't know.

9 Q. Well, if the 2nd Company commander is telling you about this, did

10 he hear it from a commander of another company or another battalion, or

11 did this happen to him?

12 A. I don't know who he heard it from or what he saw. He only told

13 me that four Serb prisoners had been taken by the Arabs. I don't know

14 whether he saw that, heard that, or anything of the sort.

15 Q. Did he say --

16 MS. SARTORIO: Sorry, Your Honour.

17 JUDGE LATTANZI: [Interpretation] I have a question. I would like

18 to clarify something pertaining to your penultimate answer.

19 You said, namely, at page 17, line 11, that it was not the duty

20 of the 5th Battalion to deal with it. After that, it seems as if you

21 were saying, two lines below, that they may have been within the AOR of

22 the 1st, 2nd or the 4th Battalion rather than the AOR of the

23 5th Battalion alone. This is a somewhat different answer from the

24 previous one.

25 I would like to clarify the following, whether they were or were

1 not within the AOR of the 5th Battalion. Are you absolutely certain of

2 that and did you know anything about it at the time?

3 THE WITNESS: [Interpretation] We were focussing our activity on

4 Kesten and they passed through. I'll try to explain this. They could

5 have come from the area or from the AOR of the 1st Battalion and then

6 just passed through our area or maybe they had taken those people

7 prisoner somewhere else. The person who talked to me told me that he

8 heard or saw that there were four captured soldiers held by the Arabs.

9 As to whether they had been taken prisoner in Kesten or at another

10 elevation, village or location, I don't know. They merely passed through

11 that area of responsibility.

12 JUDGE LATTANZI: [Interpretation] However, wasn't it within your

13 competence to check whether those people had been taken prisoner in your

14 area of responsibility?

15 THE WITNESS: [Interpretation] I didn't think it was necessary for

16 me to go about checking it and to investigate. As I said, it was --

17 there was war and we couldn't conduct investigations. You can do that in

18 peacetime but at that time it was impossible.

19 JUDGE LATTANZI: [Interpretation] I understand now that you didn't

20 see it fit or necessary to determine that. Thank you.

21 MS. SARTORIO: Just a few more questions before I leave this

22 area.

23 Q. Did Commander Sogolj tell you, did he ever meet or speak with any

24 of the Arabs?

25 A. No.

1 Q. Okay. Now, when the -- when you first saw the Arabs and you were

2 in the hall -- well, first, let me back up a second.

3 How many -- how many companies are in the 5th Battalion or were

4 in the 5th Battalion?

5 A. There were four companies.

6 Q. And there are approximately how many men to a company?

7 A. Around 120 or between 100 and 120, depending on whether everyone

8 was there. Some people were absent due to illness or so, but in any

9 case, a company should have had between 100 and 120 soldiers.

10 Q. So is it fair to say that in the area of responsibility of the

11 5th Battalion on the 10th of September, there may have been approximately

12 400 soldiers?

13 A. No. The battalion was not deployed at the lines. That is to

14 say, not all of it was there. For example one company was at the lines,

15 another one was ready to go, the third one was on leave, and so on and so

16 forth.

17 I would say that at the lines at any given time within our AOR

18 there were between 100 and 120 soldiers. It never happened that the

19 entire battalion was at the lines or within the AOR at the same time.

20 Q. Okay. Now -- but there were other battalions operating alongside

21 the 5th Battalion, weren't there?

22 A. Yes, certainly. We had the neighbouring units on both sides.

23 The lines of defence were interconnected. There were no gaps. You would

24 have one battalion to the next. They were all linked up and the line was

25 uninterrupted.

1 Q. Well, can you explain for us, for myself and the Chamber what

2 those other battalions were, if you can?

3 A. The 1st, the 2nd, the 3rd, the 4th and the 5th.

4 Q. Can you tell -- thank you. That makes sense.

5 Those are the five battalions in the 328th Brigade, right?

6 A. Yes.

7 Q. Do you know approximately how many soldiers all of those

8 battalions -- how many soldiers were -- participated in the operation on

9 the 10th of September?

10 A. I don't know. I know that we had our own lines and our own axis.

11 I can tell you how many soldiers our battalion had and what -- whether --

12 the things we were doing. As for the other battalions, I had no

13 opportunity to go there and check, and I wasn't interested.

14 Q. What my next series of questions or my next question, though, is

15 when this incident happened in the Kesten hall, why didn't you radio the

16 commander of the 5th Battalion or the brigade and ask for assistance from

17 soldiers, other soldiers who were in the area?

18 A. I did notify the commander. I called him on the phone. When I

19 saw how many prisoners there were, I went out of the hall and I called my

20 commander. I conveyed to him what was going on and I told him that I

21 needed assistance, since it was impossible for me to escort them with the

22 three or four soldiers I had. I needed the military police and a vehicle

23 to transport them. I did notify him.

24 Q. But assistance never arrived, did it?

25 A. That is correct. It never arrived in Kesten.

1 Q. Did it arrive anywhere?

2 A. I don't know that. I didn't go anywhere from Kesten. I was in

3 Kesten and it didn't arrive there. As for whether they arrived anywhere

4 else, I don't know. I couldn't see that, since it is a forested area.

5 There is just a small clearing with a few houses. It's a rather small

6 village, and I couldn't see anything beyond that. It is in a gorge of

7 sorts.

8 Q. But when -- when the Arabs left Kesten hall with the prisoners,

9 they were on foot. Correct?

10 A. Yes.

11 Q. And there was no -- no army Bosnia-Herzegovina soldiers ever --

12 were ever called to your knowledge to come and confront this group of 20

13 to 30 Arabs?

14 A. No. As I said, the unit had already left. They went further,

15 since they cleared that part of the terrain up, leaving the prisoners

16 behind in the hall. They left behind the basic security that we thought

17 would be sufficient to secure that group of people. However we did not

18 see any of the things that happened subsequently coming. We thought,

19 since we had taken those people prisoner, that they were our prisoners

20 and that they would be sent on to the brigade. However, we didn't know

21 that the things would develop the way they did.

22 Q. And when the things developed, sir. I guess I'm puzzled why you

23 had the whole army there fighting a major operation on the 10th of

24 September and there is no, to your knowledge, action taken against 20 or

25 30 what you've described as Arabs.

1 A. I don't know. We had our troops on the lines and some of them

2 had gone through that territory. As for the other troops, some were at

3 home, on leave, and others were in the other parts of the AOR at the

4 state of ready. We called our commanders. I notified my commander, the

5 assistant commander of the brigade was notified, and they were supposed

6 to send in the military police alongside a vehicle. We didn't have a

7 vehicle to transport the prisoners in.

8 Q. Operation Farz, though, was a major operation, you would agree

9 with me, and that it actually ended the war, didn't it?

10 A. The war did not end with that operation, as far as I know. That

11 operation merely served to liberate the corridor between Zenica and Tuzla

12 and a general area around Vozuca. However, the war was still ongoing.

13 It ended in December 1995, if I'm not mistake.

14 Q. But the victory of the ABiH on the 10th was a major victory,

15 wouldn't you agree with that?

16 A. I wouldn't say it was a victory. On that day, the army liberated

17 a large part of the territory. As for the issue of victors, we know

18 nowadays that no one won in Bosnia and Herzegovina.

19 Q. Now, I'd like to discuss for a moment when the group left, the 20

20 to 30 Arabs and the prisoners.

21 Now, again, would you agree that this was a dense -- a forest

22 area, mainly, around Kesten?

23 A. Yes.

24 Q. And you would also agree that there were some land-mines in the

25 forest area.

1 A. Not in Kesten itself, I think, but further on, if one goes

2 between the lines, that area must have been mined.

3 Q. Okay. And there was combat going on on the 10th of September.

4 As you indicated earlier there was firing going on all around you, right?

5 A. Yes.

6 Q. So this group of Arabs that took the prisoners, you would agree

7 with me, wouldn't you, that they would have to know the terrain, they

8 would have to know where the land-mines were and they would have to know

9 where the combat operations were taking place in order to just wander off

10 from the Kesten hall?

11 JUDGE MOLOTO: Yes, Mr. Robson.

12 MR. ROBSON: It is a clear call for speculation.

13 JUDGE MOLOTO: Madam Sartorio.

14 MS. SARTORIO: Your Honour, I'm testing the credibility of the

15 witness and what he has testified to with reality, and I think it is a

16 fair question for him to answer.

17 [Trial Chamber confers]

18 JUDGE MOLOTO: The question is allowed.

19 MS. SARTORIO: Thank you, Your Honour -- Your Honours.

20 Q. So, sir, would you please answer the question?

21 A. I doubt that anyone knew what was mined and what wasn't. For

22 example, our AOR was a mystery to us. We didn't know whether there was a

23 minefield in front of us or not. We used paths to stay safe. I don't

24 think anyone in the area knew what was mined and where. We couldn't get

25 our hands on any documents or papers indicating minefields. We moved

1 about trying to stay safe.

2 Q. But certainly you, the army, the units, had equipment and had

3 intelligence information and had knowledge about where to go or not go.

4 Otherwise, it would be chaos. Everyone would just be getting blown up

5 and shot at. So there had to be some sort of information that the

6 soldiers had in order to move about and carry out the operations with

7 regard to land-mines and other combat operations. Isn't that true?

8 A. When we moved to the lines and back we counted on our luck. We

9 tried to assess where minefields could be. In a number of cases our

10 soldiers came upon minefields, they lost limbs, were getting killed by

11 mines. Had we known where the land-mines were, we would not have sent

12 them there. We would have circumvented the fields, but we counted on our

13 luck. There were instances though in which we had soldiers whose limbs

14 were blown off or people were being killed.

15 Q. Let's move away from land-mines. What about the different

16 operations that were going on being performed by the five different

17 battalions. Each battalion would have to know what was going on in order

18 to avoid cross-fire or being killed by their own soldiers. Isn't that

19 true?

20 A. I don't understand the question. What do you mean not being

21 killed by their own soldiers?

22 Q. You've got -- you're in a war and there's shooting going on.

23 There are five battalions operating during this war in different areas of

24 responsibility. Now, one person from one battalion would have to know

25 the area of where another battalion was operating in order not to enter

1 that area or in order to understand and -- to understand the situation so

2 there's no killing of each other. Isn't it true?

3 A. Commanders assigned axes. It wasn't me who was doing it. I

4 wasn't responsible to command and control. Commanders would determine

5 the line of action. The line, as I said, was uninterrupted, and we used

6 the line. No battalion went ahead of any others. We moved all together

7 in one particular direction, and it couldn't happen that we were shooting

8 at each other.

9 Q. Right. So you would know which direction each other were going

10 sow wouldn't be shooting at each other. Is that correct?

11 A. It was known, as I said, commanders set up axis. At the level of

12 command they must have agreed on their respective areas in order to

13 liberate the terrain and to carry out searches of terrain in order to

14 arrive at certain locations. I don't know what those were though. I

15 wasn't present at their meetings and wasn't privy to their discussions.

16 It was above my level.

17 Q. And in an area of war, it's not appropriate -- or you would take

18 all precautions to ensure that persons who were not engaged in the

19 warfare such as civilians or random groups would not just be wandering

20 around in the area of combat?

21 A. As far as I know, there were no civilians there. Our villages

22 were away from the lines, and our civilians couldn't have been there.

23 Once combat begins and if there were any civilians on the other side,

24 well, I didn't see any civilians in the villages nearby. It means that

25 they could not have been in any of the places where there was combat.

1 Q. And the same would apply for any just random group that were not

2 part of the army of Bosnia and Herzegovina. They couldn't just be

3 wandering around in the middle of a combat, could they?

4 A. I don't know what you mean.

5 Q. All right.

6 A. To have a random group. Who do have you in mind?

7 Q. I have in mind the group of Arabs, sir.

8 A. How they got there, I don't know, and where from, but they did.

9 Q. But you would have to agree with me wouldn't you, that they would

10 have to know what was going on in the area in terms of combat in order

11 not to be shot at?

12 JUDGE MOLOTO: Mr. Robson.

13 MR. ROBSON: Again, calls for speculation. How could the witness

14 know what was in the minds of the Arabs, what they knew or didn't know.

15 MS. SARTORIO: I will lay a foundation, Your Honour.

16 JUDGE MOLOTO: Sure. Let me just put my problem to you too. My

17 problem is now you're classifying these Arabs as a random group. They

18 seem to have been armed. They seem to have been part of some kind of

19 army. So they were not just a random group.

20 MS. SARTORIO: Okay. Thank you for correcting that.

21 Q. So, sir, any unit in the area of combat would have to know what

22 was going on in order to avoid any type of friendly fire. Is that

23 correct?

24 JUDGE MOLOTO: Yes, Mr. Robson.

25 MR. ROBSON: Your Honour, it's the same objection as before,

1 although now it has been put as any units in the area of combat. Again

2 how can this witness speak for other units particularly when it's been

3 put so vaguely.

4 MS. SARTORIO: Your Honour, this gentleman is assistant commander

5 for security and one of his main responsibilities is security of the

6 troops. I think it is a fair question to put to the witness.

7 JUDGE HARHOFF: Madam Sartorio, I don't -- I'm not sure I

8 understand fully how you're going to test the truthfulness and the

9 credibility of this witness but putting these questions, which I would

10 agree with the Defence are quite speculative.

11 MS. SARTORIO: If I just may ask a few more questions and if it

12 doesn't become clear then I will leave this area.

13 JUDGE MOLOTO: What are you doing about that question?

14 MS. SARTORIO: I'll withdraw that question.

15 JUDGE MOLOTO: Thank you very much, ma'am.

16 Q. Sir, and I can bring up your former, your previous statement if

17 you want, but I have a quote here from paragraph 27 of Exhibit 1354 which

18 was a statement you gave on the 18th of September of 2006. You said:

19 "As far as I can remember, I or my unit never had any orders to have any

20 surveillance on El Mujahedin or to follow them closely. They only came

21 to our area of responsibility now and then and it's a -- it's a two-on

22 reconnaissance --" that's what the statement says "-- and so I could not

23 follow them. They only reported into the area and then the soldiers were

24 informed so that nobody shot at them."

25 So, what you said was that when the El Mujahedin came into the

1 area the other soldiers had to be informed so that nobody shot at them.

2 So my question is how would this group of Arabs be able to walk around

3 the area of combat without getting shot at unless someone knew where they

4 were and who they were and they were part of the army?

5 JUDGE MOLOTO: Yes, Mr. Robson.

6 MR. ROBSON: It's the same point, Your Honour. Again, it's a

7 call for speculation.

8 JUDGE MOLOTO: Madam Sartorio.

9 MS. SARTORIO: Fine, I'll move on, Your Honour.

10 Q. Now, I'd like to get to the list of names. Now you already told

11 us and I believe you told your commander that there were too many

12 prisoners to handle and that you needed assistance, and you've also told

13 us that you never got assistance. Is that correct?

14 A. Yes.

15 Q. Now, how long were you in the Kesten hall, before the prisoners

16 were taken away?

17 A. Well, as I've already said, the time it took me to make the list

18 with 51 names and that's how long I stayed in the hall with the prisoners

19 in Kesten, because I stayed there for as long as it took me to make the

20 list. It may have been half an hour, I don't know, something like that.

21 Q. Well, in -- in a previous statement, you told the investigator it

22 took 15 minutes to take down the names. Do you recall saying that?

23 A. Well, I remember having said that or actually I remember that I

24 told him that it took me as long as it takes one to write down 51 names,

25 years and places of birth. Whether it's 15, 20 to half an hour, 15

1 minutes, 20 minutes, half an hour, at any rate that's how long I stayed

2 there. I didn't have a watch on me to check how long I actually was in

3 there.

4 Q. But you weren't there very long, were you?

5 A. Well, not very long. I made the list and as soon as I -- or

6 actually, after I made the list there was five minutes of the discussion

7 with the Arabs and then after the five minutes quarrel with the Arabs

8 after they forced me to leave the hall, I left the hall and that is the

9 sum total of the time that I spent in the hall.

10 Q. And you never checked the names against the identification that

11 had been confiscated from these prisoners, did you?

12 A. I didn't check it against documents, but at that time I was not

13 in a position to do so, because the prisoners were taken away. The only

14 thing that I had left was this heap of paper and it would to me no good

15 to check it. But yesterday when I saw the other list, the one that was

16 sent on, I could see that it tallied with my list and that they provided

17 me with the correct information. There were just some really minor

18 discrepancies. They told me the truth because they didn't know what I

19 would do, whether I would check what they told me against their

20 documents. They knew that I had their documents. I would most probably

21 have done that had this incident not occurred.

22 Q. I have a couple of more questions, Your Honours, and then I'd

23 like to take a break and then we can do the map, if that would be okay.

24 Sir, isn't it true that the 5th Battalion had a training facility

25 or a training place at the 9th kilometre school?

1 A. The 5th Battalion did not have any such facilities. The

2 5th Battalion had a private family home and on the ground floor there was

3 the office of the battalion commander and the offices of us assistant

4 commanders and the battalion did not have anything at the ninth

5 kilometre. They did not go up there at all.

6 Q. And -- but isn't it true that they were trained by the

7 El Mujahedin Detachment?

8 A. The 5th Battalion, the troops in the 5th Battalion, when I joined

9 them in early September, the soldiers never went to train with the

10 El Mujahed unit, as far as I know.

11 Q. And one more question on this. It's true that on several

12 occasions, members of the 5th Battalion were subordinated to the El

13 Mujahedin Detachment?

14 A. As far as I know, no.

15 MS. SARTORIO: I have no further questions on this. If we could

16 take an early break, Your Honour, so I can set the map up.

17 JUDGE MOLOTO: What do you mean set it up?

18 MS. SARTORIO: We need to bring it up and I need to look at the

19 places again and ask the witness the appropriate questions in order to

20 redo the map.

21 JUDGE MOLOTO: Why can't you do that in the next seven minutes

22 before we take the break?

23 MS. SARTORIO: Okay. Let's bring it up.

24 It is exhibit 1353, please.

25 JUDGE MOLOTO: Yes, Mr. Robson.

1 MR. ROBSON: Your Honour, for the record, just to note this is

2 not an exhibit that's been admitted into evidence. It was identified as

3 an MFI document yesterday.

4 JUDGE HARHOFF: That's correct.

5 MS. SARTORIO:

6 Q. Sir, do you see the map on the screen?

7 A. Yes.

8 Q. And yesterday I asked you to -- if you could identify two other

9 places on the map. One was Kosa village.

10 A. I see Duga Kosa here. Greda, that's not the village. I don't

11 know. Where do you see that?

12 Q. Well, if you look to your -- oh, sorry, Kosa is named. Sorry, I

13 apologise for that, it is circled. I asked you where Duga --

14 A. Kosa is, yes, Kosa is --

15 JUDGE MOLOTO: [Previous translation continues] ...

16 MS. SARTORIO: Yes, yes.

17 Q. The place that I asked you about yesterday was Djurica Vis, if

18 could you circle that for us.

19 A. Yes, I can see that.

20 Q. Thank you.

21 A. [Marks].

22 Q. And then I asked you -- oh, sorry. Could you put a number 4

23 beside that, please.

24 A. [Marks].

25 Q. And then I asked you to circle Gornja [sic]. If you look up

1 north, sir, you might be able to find it.

2 A. Gornjani, not Gornja.

3 Q. Sorry. Just a couple of questions before we leave that -- oh,

4 sorry. Could you mark that as number 5, please.

5 MS. SARTORIO: We ask that this be admitted in evidence, Your

6 Honour.

7 JUDGE MOLOTO: Yes Mr. Robson.

8 MR. ROBSON: Your Honour, I object on the same grounds as I did

9 yesterday and the reason is that in respect of numbers 1, 2, and 3, the

10 witness was shown a document yesterday and simply asked to read out the

11 names of three locations on that document. He wasn't asked any questions

12 about those places and no link was established. He then marked those

13 locations on this map as 1, 2, and 3. He is now been asked about two of

14 the locations, Djurica Vis and Gornjani, and again no questions have been

15 asked about those locations. All of us in this courtroom, given time,

16 could have performed that exercise so I fail to see the relevance of this

17 document.

18 JUDGE MOLOTO: Madam Sartorio.

19 MS. SARTORIO: Well, Your Honour, I have another map that I'm

20 going to ask the witness to put these places on again that's more clear

21 and then I will ask questions, but I was told I had to do this because of

22 yesterday so I have asked the witness the questions. But I intend to

23 open up that area of examination in more detail using another map.

24 So I --

25 JUDGE MOLOTO: Another map of exactly the same areas.

1 MS. SARTORIO: Yes, and others.

2 JUDGE MOLOTO: To point exactly the same five --

3 MS. SARTORIO: These five will be on there, yes, Your Honour, but

4 --

5 JUDGE MOLOTO: And you want him to point those five out.

6 MS. SARTORIO: Yes.

7 JUDGE MOLOTO: The objection, Madam Sartorio, is what are we

8 supposed to make of this document. You are saying you are marking four

9 and five today because you've been asked to do so by us. Yes, you are

10 being asked to do so by us because you did it yesterday. Why did you do

11 it yesterday?

12 MS. SARTORIO: Your Honour, this document illustrates places that

13 the witness has been asked about, to ask him just to identify the places.

14 JUDGE MOLOTO: Well, the objection is anybody who is literate can

15 look at this map and make the circles that the witness made without ever

16 having been on the scene. There have been no questions put to the

17 witness in relation to these places that have you asked him to mark. If

18 you ask me to take this map and mark Gornjani, circle it, I would have

19 circled it too. But I know nothing about Bosnia-Herzegovina.

20 MS. SARTORIO: Thank you, Your Honour. I will just ask that this

21 be marked for identification for the present time.

22 JUDGE MOLOTO: It is already so marked, ma'am.

23 MS. SARTORIO: Okay. Then I will move on to a series of

24 questions or we can take a break.

25 JUDGE MOLOTO: We will definitely take a break at this stage --

1 MS. SARTORIO: Thank you.

2 JUDGE MOLOTO: -- and you can move on to your questions.

3 [Trial Chamber and registrar confer]

4 JUDGE MOLOTO: Okay. Now, the map that was tendered yesterday

5 that -- from which 4 and 5 were deleted will be removed and this one will

6 be taken as MFI 1353.

7 Court adjourned, come back at quarter to 11.00.

8 --- Recess taken at 10.14 a.m.

9 --- On resuming at 10.46 a.m.

10 JUDGE MOLOTO: Yes, Madam Sartorio.

11 MS. SARTORIO: Thank you, Your Honours.

12 Q. Sir, I'm going to ask you some questions now about what, if

13 anything, you knew about the operations that took place on the 10th of

14 September, and my first question, which is just setting some foundation

15 is, in September of 1995, the 328th Brigade was subordinated to the

16 3rd Corps. Is that correct?

17 A. Yes.

18 Q. And the 5th Corps -- 5th Battalion, excuse me, was subordinated

19 to the 328th Brigade?

20 A. Yes.

21 Q. And one of your main duties as assistant commander for security

22 was to maintain the security of the area where the troops were operating.

23 Isn't that true?

24 A. It was my duty to take care of my soldiers at the defence line

25 where they were. It was my duty, for instance, if a trench or a dug-out

1 was unsafe, it was my duty to order that the soldiers move out because of

2 the safety of those soldiers. Because if that position was too far

3 forward, it might be targeted by the enemy, by mortar fire and so on. So

4 I was to take care of the safety and security of the soldiers and of the

5 battalion command.

6 Q. And in order to be able to do that, you would agree that you

7 would have to visit the front line and, in fact, you did visit the front

8 line almost on a daily basis during Operation Farz, didn't you?

9 A. No, not in the course of Operation Farz, because there was no

10 defence line during the operation. Once the operation was launched, a

11 line was in motion, but up until Operation Farz, we had a stable line, a

12 line that I visited regularly to see how things were. I said that I had

13 come in in early September, I think somewhere around the 1st of

14 September, that's when I joined the unit. I wasn't familiar with the

15 unit, and in order to acquainted myself with them so that the soldiers

16 knew who their assistant commander for security was and since this was a

17 new line for me, I wasn't familiar with it, I toured the line to see what

18 the situation was like, to see whether my predecessor had done his job

19 properly. Things like that.

20 Q. And after having visiting the front line you would normally

21 report on the security of the front line, wouldn't you?

22 A. Yes. I would report to my commander if there was any need for

23 any changes to be made, I would speak to the commander either orally or I

24 would submit something in writing, but because we were both in the

25 battalion and we would see each other practically every night, I was able

1 to just tell him such-and-such a thing was not all right, it has to be

2 changed, things like that.

3 Q. And you also work fairly closely with your counterpart assistant

4 commanders in the intelligence department for the battalion, wouldn't

5 you?

6 A. Yes. All the assistant commanders were there and in the evening,

7 after all the tasks were completed, tasks that either were set to us or

8 that we ourselves decided we would have to do, we would meet up in the

9 evening.

10 Q. And you also met frequently with other battalion commanders and

11 exchanged information about the security that they had gathered on their

12 front -- in their areas of responsibility, didn't you?

13 A. Not with the battalion commanders, no. I didn't meet with them.

14 Q. Well, perhaps then if I refresh without bringing up your

15 statement, you did say in a previous statement, quote, that you had --

16 oh, I apologise, I don't have the quote.

17 MS. SARTORIO: If we can bring it up.

18 Q. If you said in your previous statement that you met with other

19 battalion security commanders, is that not correct?

20 MS. SARTORIO: It is paragraph -- yeah, we can bring up the

21 statement.

22 JUDGE MOLOTO: Mr. Robson? But -- yeah.

23 MS. SARTORIO: Exhibit 1354, please, paragraph 13.

24 MR. ROBSON: I was just going to say it wasn't a proper question

25 and I think in fairness to the witness my learned friend should put to

1 him what he's supposed to have said in the statement so he could comment

2 fairly.

3 JUDGE MOLOTO: I also would say that your first question, madam,

4 talked about battalion commanders. Now you're talking become battalion

5 security commanders.

6 MS. SARTORIO: Yes. I meant security commanders, assistant

7 security commanders.

8 JUDGE MOLOTO: So when he said he never met with battalion

9 commanders, are you still disputing that?

10 MS. SARTORIO: No. Thank you.

11 Q. So, sorry, sir, my question is, did you meet with other battalion

12 assistant commanders for security?

13 A. Well, that's a fair question. I did meet with the assistant

14 commanders for security at the brigade assistant commander for security

15 when we had the monthly briefings. That's where we met, but, otherwise,

16 no.

17 Q. Were you -- did you attend any meetings in preparation of

18 Operation Farz?

19 A. No. Only the commanders attended those meetings, not us. I

20 don't know whether the brigade assistant commander for security did

21 attend, but, at any rate, we did not.

22 Q. But I guess I'm curious, how could you perform your duties of

23 maintaining security on the front line if you didn't have -- attend the

24 meetings or -- well, strike that.

25 Did you learn in any other way, by reading orders or speaking

1 with the commander, about what operations were going to take place?

2 A. When an operation was supposed to take place in the area of

3 responsibility of that brigade, the assistant commanders were not given

4 this information for one reason, lest this information should leak and

5 reach the soldiers. That is why only the battalion commanders would know

6 that. And since we did not participate in combat we only held the

7 defence line. There was no need for us to know that. The commander took

8 care of that, not us.

9 Q. But, so I'll go back to the question I was going to ask. How

10 were you able to maintain security on the front line if you don't know

11 what is going on from an operational standpoint?

12 A. Well, I took care of the security of what is already there,

13 because we didn't move anywhere that would enable me to take any other

14 measures. We held a position, that's the position where we were, until

15 this area was liberated and until the unit moved on. And once a unit

16 reaches a certain position, the commander knows where the position is,

17 then it is supposed to fortify the position and then I would come in and

18 I would say, This is okay, this is not okay, commander, sir, can we maybe

19 make some changes here, things of that nature.

20 Q. And the AOR, I believe you've testified that the AOR of the

21 5th Battalion was from around Paljenik to Malovan Greda. Is that

22 correct?

23 A. Yes. Our area of responsibility held by our battalion was from

24 the right-hand side of Paljenik and then over to Malovan Greda. That was

25 the area that we held with our battalion.

1 Q. Can you tell us approximately -- well, the area of that

2 responsibility is about two kilometres, isn't it?

3 A. Yes, approximately. I never measured it, but that would be it.

4 Q. I'm just asking for your approximation.

5 And approximately how far is Kesten from Malovan Greda?

6 A. Well, it takes about 20 minutes to get down from Malovan Greda

7 because you don't take a detour. When we went down we went down in a

8 straight line towards Kesten.

9 Q. So that's 20 minutes by walking?

10 A. Yes.

11 Q. Now we looked at a document yesterday which is Exhibit 466 and

12 from this document I asked to you mark some places on the map.

13 MS. SARTORIO: And we can bring up that document, if you want.

14 Q. But do you recall the document that mentioned the El Mujahedin

15 being used or being on standby as an intervention in a certain area,

16 including the Kesten village?

17 A. No.

18 Q. So you weren't aware of this unit that was operating

19 approximately 20 minutes from the front line of your unit?

20 A. No, I was not aware of them operating there, because I didn't

21 know what units of were actually operating there. As I said, those

22 meetings were held by the commanders, and they decided and they did not

23 relay their decisions to us, it would be this unit there, that unit

24 somewhere else. We had our own area of responsibility and let me repeat,

25 we were part of the defensive system. Once the defence line moved, then

1 we would take that. We would simply man the new positions that had been

2 taken initially by somebody else.

3 Q. Sir, on the 10th of September, do you have any knowledge of where

4 the 2nd Manoeuvre Battalion operated?

5 A. No.

6 Q. Do you have any information as to where any other units that were

7 in the 35th Division operated?

8 A. I don't know who operated where and who was included. I only

9 told you what was held by the battalions. As for what units

10 participated, I don't know.

11 Q. And by -- when you say "battalions," can you tell us -- "I only

12 told you what was held by the battalions," not sure I recall that. Can

13 you tell us again what was held by which battalions?

14 A. I mean the battalions in that area of responsibility next to us.

15 It was the 1st, 2nd, 3rd, 4th and we were the 5th. We held the defence

16 lines. As for who participated in the operation, I don't know.

17 MS. SARTORIO: May I have a moment, Your Honour? Just one

18 moment, Your Honour.

19 JUDGE MOLOTO: You do have it.

20 [Prosecution counsel confer]

21 MS. SARTORIO:

22 Q. Just for some clarification, when you just mentioned 1st, 2nd,

23 3rd, 4th, now, with regard to the 2nd is that the 2nd Manoeuvre Battalion

24 that you're talking about?

25 A. No, it was the battalion of the 328th Mountain Brigade.

1 Q. Okay.

2 MS. SARTORIO: I have no further questions, Your Honours.

3 JUDGE MOLOTO: Thank you very much, Madam Sartorio.

4 Mr. Robson, any re-examination?

5 MR. ROBSON: Just a few questions, Your Honour.

6 Re-examination by Mr. Robson:

7 Q. You've just been asked about Exhibit 466, which was a document

8 from the 35th Division dated 10th of September, 1995, and it mentioned

9 the locations of Kesten, Kosa and Prokop. Prior to coming to The Hague,

10 had you ever seen that order before?

11 A. I have not.

12 Q. Do you have any knowledge of whether the El Mujahedin Detachment

13 received that order?

14 A. No. How would I know that? I don't know why I was asked the

15 question or to mark those locations. I wasn't there. As one of Their

16 Honours noted, it could have been marked down by anyone. I don't know

17 why I was asked for that location, since I never went there.

18 Q. Okay. You were also asked some questions about the statements

19 that you gave to the Office of the Prosecutor. When you were interviewed

20 by an investigator of the Office of the Prosecutor in 2006, do you

21 remember what term you used to describe the men, the 20 or so men, that

22 came into the Dom when you were taking down the names of the prisoners of

23 war?

24 A. Yes. I said that a group of Arabs arrived. Then he asked me

25 whether it was the El Mujahid Unit. I said I don't know, and then he

1 insisted - excuse me - that it was the El Mujahid Unit, since it was the

2 only unit there, as he said, meaning that it could have been -- it could

3 have not been anyone else. I also didn't know whether there were any

4 other units, save for the El Mujahid Unit, and I consented to what he

5 said, following his assistance.

6 Q. Did the investigator act fairly when he insisted upon using the

7 term "El Mujahedin Unit"?

8 JUDGE MOLOTO: Isn't that for the Court to decide?

9 MR. ROBSON: I'll leave it for you, Your Honour.

10 Q. You were asked about four VRS soldiers that were taken by Arabs

11 earlier on during the 10th of September, 1995. You told us that you were

12 told about this information about Mr. Sogolj. Can you tell us, where

13 were you exactly when Mr. Sogolj told you about those four VRS soldiers?

14 A. In front of the Kesten hall.

15 Q. At that point in time, were you aware that there were 51 Serb

16 prisoners of war inside the Dom?

17 A. At that point in time, I did not. First, he told me what was

18 going on, he told me there were some captured persons. However, he

19 didn't specify what the number was. I said what I said. He told me that

20 three women had been captured as well as two children, and after he told

21 me all that, I went inside.

22 Q. You've told us that you did find out that there were Serb POWs

23 inside the Dom. Would it have been possible for you to go off and

24 investigate what had happened to the four Serb POWs captured earlier that

25 day?

1 A. I had no possibility to investigate that. If I turned to anyone,

2 they would probably have asked me what I was doing there and under what

3 authority I was acting. If someone was captured by anyone, they were

4 supposed to take care of that. They would probably ask me, Who are you

5 to come here from the 5th Battalion to try and investigate this?

6 Q. Now we know that you took a list of the names of the 51 prisoners

7 of war inside the Dom, and on the 11th of September, you prepared a

8 further list that we've seen as an exhibit during the course of your

9 evidence.

10 On that list, you mentioned the words "4 Arapi," and you

11 explained to us the meaning of those words. When you sent your report to

12 Mr. Malicbegovic, the assistant commander for security in the 328th

13 Brigade, did you mention in that report that four Serb prisoners of war

14 had been captured earlier during the day?

15 A. Yes, I mentioned that. I wrote down that in that area, four

16 captured persons were observed. I wrote down what I was told by the

17 commander of the 2nd Mountain Company. He told me that four soldiers

18 were seen being taken away by the Arabs. The list was merely there to

19 provide information it contained. However, the other document sent

20 alongside the report was expanded, including all of the events, since I

21 wasn't able to write all that down originally.

22 Q. And in the report to Mr. Malicbegovic, did you also mention that

23 two children had been released?

24 A. Yes.

25 Q. And then, finally, you told us that on the 10th of September,

1 when you found out what had happened -- when you found out that there

2 were Serb prisoners of war in the Dom at Kesten, you informed your

3 commander, and he told you that he would be sending military policemen to

4 Kesten. In your view was there anything else that you could have

5 reasonably done that day?

6 A. After I informed my commander, it was his duty to pass it on, and

7 he did. He informed the brigade. They have their own military police

8 battalions, do not, meaning that it was up to the brigade to do

9 something. I thought that these were merely prisoners who had been

10 disarmed, probably had surrendered. I thought there would be no

11 resistance and that the few men I had were sufficient to provide

12 security, and before the prisoners were taken over by the military

13 police. They were supposed to provide means of transport. I believe the

14 truck was supposed to be sent to transport them, since Zavidovici is

15 rather far from Kesten. It was impossible for them to walk. When the

16 incident took place, I couldn't do anything. I believe I did everything

17 I could. I avoided any firing, any killings. I saved the lives of

18 myself and those of my soldiers and the captured people. Had I done

19 anything else, and as I said, I did not wear any weapons throughout the

20 war, since we were short on weapons, meaning that commanders and

21 assistant commanders did not have weapons. The three or four soldiers

22 did, and when Muhamed came in, he did not have any weapons either. Had I

23 done anything, say, to shoot them or anything, they would have probably

24 been able to kill one or two Arabs, but that would have been it. All of

25 us would have been killed.

1 Q. Thank you.

2 MR. ROBSON: I have no further questions.

3 JUDGE MOLOTO: Thank you, Mr. Robson.

4 [Trial Chamber confers]

5 Questioned by the Court:

6 JUDGE HARHOFF: Thank you. Actually I do have a few questions.

7 First, one to Madam Sartorio, because we are still left with the

8 exhibit 1353, and I'm not sure that I understood the reason why these

9 extra names had to be pointed out on the map. You promised, us,

10 Madam Sartorio, that you would get back to the map so as to explain to us

11 why you had asked the witness to point out these areas for us. And I'm

12 asking because if you don't explain that, then I think we should just not

13 admit the map.

14 MS. SARTORIO: I agree, Your Honour. I -- for reasons -- we'll

15 just keep the map either marked for identification or withdraw it.

16 JUDGE HARHOFF: Your choice.

17 MS. SARTORIO: Yeah. I think we just to keep it marked, Your

18 Honour, if we could -- may.

19 JUDGE HARHOFF: We will then keep it for identification.

20 MS. SARTORIO: Thank you.

21 JUDGE HARHOFF: Mr. Witness, one little question about the ID

22 cards that were gathered from the 51 Serb prisoners in the hall in

23 Kesten.

24 Do you know what became of those identity cards afterwards?

25 A. It wasn't only IDs. There were military booklets there, health

1 insurance cards, any documents found with the prisoners were on -- in a

2 single pile. I put it all in a bag and it stayed with me until the next

3 day when I drafted the report on the 11th. I sent the bag together with

4 the report to my superior, the assistant commander at the level of the

5 brigade.

6 After that, when we met at a brigade meeting, I remember seeing

7 those documents in the assistant's office. Therefore, I know they

8 reached him, but I don't know what he did with those.

9 JUDGE HARHOFF: Thank you.

10 JUDGE MOLOTO: Sir, I just wanted to -- one issue I'd like to

11 raise with you but before I raise the issue, let me just explain to you

12 that I understand that you said you -- when you got to the hall in Kesten

13 you did call for transport to come and pick up your -- these prisoners; I

14 understand that.

15 My question relates to the next stage. When the Arabs took or

16 ordered you out of the building and took possession of these prisoners of

17 war forcibly, did you do anything, did you report this to your superiors,

18 to ask for backup, to come -- because these prisoners of war were your

19 responsibility. I'm talking about the 51, not the four.

20 A. Yes. I said I had informed my commander. He knew what was going

21 on, and he said they were to come to Kesten and -- so he did. I cannot

22 command troops. I cannot order troops. That was supposed to be done by

23 the commander or someone similar, who had the power of command. In terms

24 of my position, I couldn't order soldiers to do this or that.

25 JUDGE MOLOTO: Sir, okay, sorry, sir. We don't have much time.

1 Don't go and explaining to lots of things. I haven't asked you whether

2 you had -- you could command troops. I'm asking whether you could -- you

3 did -- you did ask for help from your commander, backup, then he can

4 order the troops to come and help you to take these prisoners away from

5 these Arabs.

6 Did you do that? Did you ask for that assistance, as the person

7 responsible for the security of these prisoners of war?

8 A. I informed my commander that a group of Arabs took them away by

9 force. I didn't know what to do next, and I didn't know what he -- what

10 steps he was to take. I just told him that they were taken away from the

11 Kesten hall. He said he would arrive there to see. As for what he did,

12 I don't know.

13 JUDGE MOLOTO: Thank you very much.

14 Yes, any questions arising, Mr. Robson.

15 MR. ROBSON: Just one question.

16 Further re-examination by Mr. Robson:

17 Q. His Honour Judge Harhoff asked you about ID cards and you said at

18 a brigade meeting you remember seeing those documents in the assistant's

19 office. Just so we're clear, whose office was it in which you saw those

20 ID cards?

21 A. The office of the assistant commander for security of the 328th,

22 Enes Malicbegovic.

23 MR. ROBSON: Thank you.

24 JUDGE MOLOTO: Madam Sartorio.

25 MS. SARTORIO: No further questions, Your Honour.

1 JUDGE MOLOTO: Thank you very much.

2 Sir, that brings us to the conclusion of your testimony. Thank

3 you very much for taking the time off to come and testify at the

4 Tribunal. I hope you have a safe trip back home. You are now excused.

5 You may now stand down.

6 THE WITNESS: [Interpretation] Thank you, Your Honour.

7 [The witness withdrew]

8 JUDGE MOLOTO: Madam Vidovic.

9 MS. VIDOVIC: [Interpretation] Your Honour, as we had informed

10 you, we decided not to call Mrs. Saracevic who was supposed to appear

11 today. I believe we advised you of that early this week as well as the

12 Prosecutor's office. We have no further witnesses therefor, since we

13 couldn't find any replacements, given that those other witnesses are

14 supposed to testify longer, and that, in turn, would mean that any

15 witnesses would have to stay for at least three or four days.

16 The witnesses we have for the next two weeks were also quite

17 occupied with other matters and none of them were unable to arrive today.

18 JUDGE MOLOTO: Thank you very much, Madam Vidovic.

19 With respect to that correspondence from the Italian, government,

20 we're trying to get it translated so that we can tell the parties what it

21 says. And now that you are saying that we are -- you don't have any

22 other witness, I don't know whether you would like to come back at the

23 next session to hear what they said or you prefer to hear what the

24 correspondence says at the next hearing on the date to which we will

25 postpone.

1 I think you, Madam Vidovic, it is an urgent matter on your side.

2 You've got to tell us how urgent it is that you know what the content of

3 the letter says.

4 MS. VIDOVIC: [Interpretation] Your Honour, it is a very urgent

5 matter for us. I'm afraid if we wait another few days, it will put us in

6 a situation that we don't know what the result is going to be and we'll

7 have to worry about when we will be getting the documents to translate

8 them. As you could see from our motion, we asked the Bench to be able to

9 show those to another witness, and this would disturb the entire plan we

10 had.

11 JUDGE MOLOTO: Thank you very much, Madam Vidovic. We will

12 then --

13 MS. SARTORIO: I have another, Your Honour. Sorry.

14 JUDGE MOLOTO: Yes, ma'am.

15 MS. SARTORIO: Thank you. I knew you were just going to say

16 we're adjourned and that's why, I apologise for interrupting. We do have

17 one matter we'd like to raise, Your Honour, with respect to an exhibit

18 that was admitted with this last witness, so may I be heard?

19 JUDGE MOLOTO: Yeah.

20 MS. SARTORIO: With respect to exhibit 651 which was the typed

21 list of names, I'm not sure if Your Honours recall but the Defence

22 attempted to get in this document through witness Goran Krcmar, who

23 was -- testified on the 26th of October, and this witness renounced

24 any -- this document, and as a result of that, Your Honours did not admit

25 the document and subsequent do that testimony, we filed a motion on the

1 7th of November to -- for leave to amend the exhibit list to add

2 documents which we believe cast doubt on the validity of that list and

3 was contained -- some of the information that's contained in that

4 document. We would like to -- those documents -- there are 13 documents

5 and they are on my exhibit list for this witness but obviously this

6 witness can't testify about these documents, they are correspondence

7 between the Office of the Prosecutor, counsel for the Defence, the BiH,

8 the Republika Srpska government, and there's 13 documents and

9 back-and-forth discussion about that exhibit 651 and the ultimate result

10 is P06240 and it explains some of the discrepancies and what we argue

11 invalidates some of the information contained in that document.

12 So we would like to move to admit those documents from the bar

13 table, either orally today for if you prefer we can file a written

14 motion. But we think it is important that have you these documents and

15 the Defence has had these documents. The Defence knows what is the

16 Prosecution's position is.

17 [Trial Chamber confers]

18 JUDGE MOLOTO: I don't know how the Chamber would -- is in a

19 position to assess whether to admit or not admit because we haven't seen

20 those documents, including P06240.

21 MS. SARTORIO: They were attached to the motion that we asked to

22 amount the exhibit list so they -- there are --

23 JUDGE MOLOTO: Yeah, but I'm not sure -- I don't know what it

24 is -- what are the 13 documents that you are talking about.

25 MS. SARTORIO: Well, again I can resubmit this. Instead of a

1 motion to amend it will be a motion to admit but it will be virtually the

2 same argument but there is a list, there is an annex, an appendix which

3 describes each of the documents. Each of the documents is attached to

4 the motion.

5 JUDGE MOLOTO: Thank you very much.

6 Madam Vidovic, you were on your feet?

7 MS. VIDOVIC: [Interpretation] Your Honour, I was about to ask

8 about something I overheard when you seem to have forgotten to turn the

9 microphone off. I believe the Prosecutor is bound to submit a written

10 motion since we have numerous arguments that we want to put forth

11 concerning the possibility of exhibits being admitted at this late stage

12 of the Defence case, given the Rule 85, which defines strictly the

13 possibility of presentation of evidence and admitting of exhibits as well

14 as describing the procedure.

15 Therefore, we ask that the Prosecutor submit a written motion; if

16 not, I am quite ready to present oral arguments countering their request.

17 JUDGE MOLOTO: Thank you very much, Madam Vidovic. I wish I knew

18 what it is you overheard that I said.

19 MS. VIDOVIC: [Interpretation] Your Honour --

20 JUDGE MOLOTO: I would suggest that you file a written motion

21 specifically for those 13 documents, Madam Sartorio, and let's whatever

22 you want -- whether it is an amendment or admission, whatever you want to

23 call it.

24 MS. SARTORIO: Yes, Your Honour, will do.

25 JUDGE MOLOTO: Thank you very much. You don't have to tell me.

1 I just wish I knew, but I don't want to you tell me. Thank you very

2 much.

3 We'll then have to take an adjournment, and I'm being advised

4 that we're adjourning to the 8th of April. Indeed, at quarter past 2.00,

5 Courtroom II, 8th of April.

6 Sorry.

7 MR. MUNDIS: Sorry, Mr. President. I was under the impression

8 that the Defence wanted to the know the translation of the Italian

9 document and we were going to hopefully get that today.

10 JUDGE MOLOTO: Thank you so much. We'll then come back at half

11 past 12.00. We will take our normal break up until half past 12.00 to

12 give the translator to finish, and then we will reconvene at half past

13 12.00.

14 Court adjourned.

15 --- Recess taken at 11.28 a.m.

16 --- On resuming at 12.29 p.m.

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17 --- Whereupon the hearing adjourned at 1.08 p.m.,

18 to be reconvened on Tuesday, the 8th day of April,

19 2008, at 2.15 p.m.

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