1 Friday, 2 April 2004
2 [Open session]
3 --- Upon commencing at 9.03 a.m.
4 [The accused entered court]
5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, will you please
6 call the case.
7 THE REGISTRAR: Your Honours, case number IT-01-47-T, the
8 Prosecutor versus Enver Hadzihasanovic and Amir Kubura.
9 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.
10 Can we have the appearances for the Prosecution, please.
11 MR. WITHOPF: Good morning, Mr. President. Good morning, Your
12 Honours. Good morning, Counsel. For the Prosecution, Chester Stamp,
13 Ekkehard Withopf, and our -- today's case manager, Mr. Hasan Younis.
14 JUDGE ANTONETTI: [Interpretation] And for the Defence, please.
15 MS. RESIDOVIC: [Interpretation] Good morning, Mr. President.
16 Good morning, Your Honours. On behalf of General Enver Hadzihasanovic,
17 Edina Residovic, lead counsel; Stephane Bourgon, co-counsel; and Muriel
18 Cauvin, legal assistant. Thank you.
19 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours. On
20 behalf of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and Nermin
21 Mulalic, legal assistant.
22 JUDGE ANTONETTI: [Interpretation] Thank you. The Chamber bids
23 good morning to everyone present and greets specifically the
24 representatives of the Prosecution, the Defence counsel, the accused, and
25 all the personnel in this courtroom.
1 We have a planned witness for today. But before beginning his
2 testimony, the Chamber wishes first to render a decision regarding the
3 question of documents and, also, to address the question of the duration
4 of the cross-examination.
5 Regarding the latter, the Chamber requests that when there is a
6 cross-examination, that for both Defence teams the cross-examination
7 should not exceed the time accorded and used by the Prosecution plus 50
8 per cent.
9 By way of example, if the Prosecution took one hour, the Defence
10 counsel together would have one and a half hours. This is a rule of
11 principle, of thumb. But should the need arise to extend that time limit,
12 the Defence will tell us that for this or that reason they need some
13 additional time beyond this rule. All this is designed in order to
14 economise our energy and to avoid any unnecessary waste of time.
15 The decision that we are rendering - and I have provided a copy
16 to the interpreters and I'm going to read the decision, and I ask the
17 parties to take note of it.
18 In order to enable the proceedings to evolve in the best possible
19 conditions and in order to economise with the time, and bearing in mind
20 the interests of justice, the Chamber has asked the Defence to convey its
21 position regarding the admission into evidence of documents consisting of
22 several hundred examples.
23 The Chamber had earlier asked the Prosecution to provide a
24 consolidated list of documents. It was thus that Annexes A and B were
1 The Chamber was informed in writing by -- of the fact that more
2 than 600 documents are challenged. The Chamber was also informed by the
3 Defence that some of the documents are contested on the basis of
4 relevance, some on the basis of their authenticity, and others on the
5 basis of the chain of custody. The Chamber has taken note of the position
6 of the Prosecution, which wishes to have these documents tendered into
7 evidence as part of its case.
8 The Chamber wishes to underline that introducing documents solely
9 through witnesses would result in a considerable extension of the time
10 needed for hearing witnesses and would have adverse effects on the
11 efficiency of the process, of the proceedings.
12 In order to resolve any potential -- avoid any potential
13 difficulties, the Chamber will discuss the admissibility of documents
14 after having asked the Defence to reason their challenges. For that
15 purpose, the Chamber requests that the Prosecution provide it as soon as
16 possible with a copy of the documents so that they may be given a number,
17 that is, that they be marked for identification.
18 The Chamber also requests that the Defence elaborate in writing
19 the grounds for contesting the documents, document by document, following
20 the order of those documents in Annex A and Annex B, and indicating its
21 arguments regarding relevance, authenticity, the chain of custody of the
22 said documents, or any other grounds. Consequently, the Defence will
23 communicate its submissions in writing before Thursday, 8th of April, 2004
24 at 1600 hours. The Prosecution for its part will have until Monday, the
25 19th of April, 1600 hours, to respond. Should the Defence have any
1 problems regarding this timetable, it will be allowed - that is, the
2 Defence - to have an additional week, which would mean the date will be
3 delayed until Thursday, the 15th of April, and then of course under those
4 conditions the Prosecution will also get an additional week. But it is up
5 to the Defence to indicate any difficulties if it is unable to respect the
6 deadline of the 8th of April that has been decided by the Chamber.
7 Finally, should the destiny of certain documents not be resolved
8 by written submissions, the Chamber will subsequently hold a special
9 hearing to address those particular documents. Therefore, the Chamber
10 would kindly ask you to read through this decision carefully.
11 Therefore, to summarise: The Prosecution needs to provide us
12 with one copy of each document, not three, to save time. And the Chamber
13 wishes to thank in advance the Prosecution for all the efforts it will
14 have to make. The Chamber is fully aware of all the efforts being
15 invested by all the parties in order to facilitate all our tasks. And
16 also, the Defence is being asked, as indicated in the decision, to tell us
17 document by document why they are challenging the admissibility of those
19 And then on the basis of the written submissions of the Defence
20 and those of the Prosecution, we will rule regarding the 655 documents.
21 And if we are unable to make a decision regarding certain documents on the
22 basis of those submissions of the Defence and the Prosecution, we will
23 have a separate hearing to deal with those documents.
24 So without any further ado, I should like to ask the witness to
25 be brought into the courtroom. Would Madam Usher be kind enough to go and
1 fetch the witness.
2 Should the Defence during the break find that the deadline of the
3 8th of April is too soon, let us know and we will grant you an additional
4 week. But it is up to you. As there's going to be a break of several
5 days, you will have plenty of time to prepare your submissions in writing
6 referred to in my ruling of a moment ago.
7 [The witness entered court]
8 JUDGE ANTONETTI: [Interpretation] Good morning, sir. Let me
9 first check that you can hear the translation of my words in your own
10 language. Please say yes if that is the case.
11 THE WITNESS: Yes.
12 JUDGE ANTONETTI: [Interpretation] The Chamber bids you good
13 morning. You have been called as a witness by the Prosecution, and you
14 will be subject to the procedure of the testimony of a witness, and I will
15 explain the procedure in a moment.
16 I first need to ask you your first and last name, please.
17 THE WITNESS: Andre Kujawinski.
18 JUDGE ANTONETTI: [Interpretation] When were you born, please.
19 THE WITNESS: 19th September, 1965.
20 JUDGE ANTONETTI: [Interpretation] And where were you born? In
21 which town and which country?
22 THE WITNESS: Liverpool, England.
23 JUDGE ANTONETTI: [Interpretation] What is your current profession
24 and position, please?
25 THE WITNESS: I'm a warrant officer, Class 1, in the British
2 JUDGE ANTONETTI: [Interpretation] And in 1993, that is, more than
3 ten years ago, what was your position in 1993?
4 THE WITNESS: I was a platoon sergeant in the British Army.
5 JUDGE ANTONETTI: [Interpretation] Have you ever testified before
6 an international or a national court regarding the facts related to 1993?
7 THE WITNESS: Yes.
8 JUDGE ANTONETTI: [Interpretation] You have testified before this
9 International Tribunal within another case?
10 THE WITNESS: Correct, yes.
11 JUDGE ANTONETTI: [Interpretation] Do you remember the name of the
12 case in which you testified?
13 THE WITNESS: I've done two. Blaskic and -- I can't remember the
14 name of the other one.
15 JUDGE ANTONETTI: [Interpretation] Fine. Thank you.
16 I am going to ask you to please read the solemn declaration that
17 Madam Usher is going to hand you.
18 THE WITNESS: I solemnly declare that I will speak the truth, the
19 whole truth, and nothing but the truth.
20 JUDGE ANTONETTI: [Interpretation] Thank you, sir. You may be
22 WITNESS: ANDRE KUJAWINSKI
23 JUDGE ANTONETTI: [Interpretation] As you have already testified,
24 you are perfectly aware of the procedure applied in this International
25 Tribunal. You will be answering questions that will be put to you by
1 representatives of the Prosecution, who are seated to your right. After
2 that stage of the proceedings, that is, the examination-in-chief, you will
3 be asked questions by the Defence counsel, as the cross-examination, and
4 the Defence counsel are seated on your left. There are six of them at
5 present, but only two will have questions for you.
6 The three Judges, who are in front of you, may if they feel it
7 necessary to ask you questions, whenever they feel it necessary, either
8 directly related to questions put to you by the Prosecution or by the
9 Defence during the cross-examination or because simply the Judges feel
10 that it is in the interest of justice to ask you to clarify certain points
11 that you may not have mentioned or that require further clarification.
12 If the questions are put to you clearly, try to answer them as
13 fully and precisely as possible. If you don't understand the meaning of a
14 question, please ask the person putting it to you to rephrase it. If you
15 don't know the answer, say so; if you do, please answer the question to
16 the best of your knowledge.
17 I need also to draw your attention to two other points. The
18 first is that since you have taken the solemn declaration, this implies
19 that you are bound to tell the whole truth. Should a witness be prompted
20 to lie, he could be prosecuted for false testimony.
21 A second point that shouldn't apply to you is that should in the
22 course of the examination or cross-examination the witness be led to
23 provide information that could be used against him, in that event the
24 witness may refuse to answer, but the Chamber may compel him to answer,
25 and if it does so, the Chamber guarantees a kind of immunity, which means
1 that the evidence given cannot be used against the witness.
2 Those would be in broad lines the procedure. However, as you
3 have already appeared as a witness, you are accustomed to this procedure.
4 Without wasting any time, and as it is Friday and we wouldn't
5 wish you to spend another weekend in The Hague, I turn to the Prosecution
6 and give them the floor for the examination-in-chief.
7 MR. STAMP: Thank you very much, Mr. President and Your Honours.
8 And good morning. May it please you.
9 Examined by Mr. Stamp:
10 Q. Good morning, Warrant Officer Kujawinski. Can you tell us where
11 and within which unit you were deployed between November 1992 and May
13 A. I was deployed in Vitez with the 1st Battalion, the 22nd Cheshire
14 Regiment, and from there we worked out of Vitez into an area called
15 Kladanj and up into Tuzla, and then for the final part I moved back to the
16 Vitez area.
17 Q. What -- briefly, in outline form, were the responsibilities of
18 your unit?
19 A. They changed whilst we were there. We'd been the first unit into
20 the area. But in very short terms, we were escorting food convoys through
21 the country to warehouses, where they were then distributed out to the
22 areas within Bosnia.
23 Q. Now, on the 26th of April, 1993, in the morning of that day, did
24 you set off for any particular assignment?
25 A. Yes. I was tasked by the ops room, which was in Vitez --
1 Q. By the ...?
2 A. Ops room, operations room, which was in Vitez, to go with the
3 UNHCR lady.
4 Q. You need not call her name.
5 A. Okay.
6 Q. Just tell us her -- what was her position?
7 A. She was high ranking in the UNHCR, as far as I'm aware. And I
8 went with her vehicle, her driver, and an interpreter, and two of my
9 armoured vehicles to a village we called Miletici.
10 Q. Were you -- what was the task? Why were you told that you needed
11 to accompany her?
12 A. There was reports given to her that atrocities had been done in
13 the area. As to what, we were unaware. And we'd never been up this area
14 before, so it was all new to the soldiers as such but not to the UNHCR.
15 So we set off that day with the two armoured vehicles, with the Land Rover
16 belonging to the -- to the UNHCR in the centre, which was a customary
17 thing to do for protection at this time now because the area had developed
18 into a worse state.
19 I recall driving up the valley, passing through a roadblock,
20 which was manned. By whom, I don't know. But we just drove straight
21 through it. They just waved us through. And then we came to the village
22 which was high up in the mountains. We could see roughly the -- the edge
23 of the village, which was in a bend in the road and to the left was a
24 river. We turned right, went up the mountain track, which was okay at
25 this point, until we got to a very sharp left turn, where we then couldn't
1 negotiate it with our armoured vehicles too -- too good. So as the
2 commander, I decided then to leave one of the vehicles down at this point,
3 also the border of the -- of the fighting was closing north anyway at this
4 point. So I left that there for a tactical reason. And I then
5 disembarked from the vehicle and continued to walk the ground in front of
6 the vehicle to ensure in that it was steady on the ground. As I walked
7 up, the ground was sloping away very sharply to the left and the vehicle
8 was just about making it up in the track, in the sense of it falling off.
9 We then came to what I believe was the village at the time of
10 Miletici. It was a very small outcrop of houses.
11 Q. About how many in the heart of the village, the centre of the
13 A. In the centre of the village? Ten, ten houses.
14 And then we came into what -- what I would call -- I still call
15 it -- a square, which was just a clearing with the houses around it. We
16 were closely followed obviously by the Land Rover of the UNHCR. We then
17 tried immediately to turn the Warrior vehicle around, but it was quite
18 impossible to do at this moment, so we just left everything, turned off,
19 instead of making our presence too loud at this moment.
20 Q. About what time you arrived there in Miletici?
21 A. It was late morning. It was late morning.
22 Q. Very well. So what happened after you arrived?
23 A. Everyone got off the vehicle, all nice and polite, as normal, to
24 get a good hearts' and mind relationship going. And we leave one man on
25 the vehicle and the remainder of us walk around, some five people.
1 I then stuck very closely with the lady of the UNHCR, her
2 Interpreter, and the driver of the Land Rover stayed with his vehicle.
3 And we just continued -- or we just started walking round the village. I
4 told the soldiers of mine, I just wanted them to be nosey as such, which
5 means go for patrol around and let me know what you see.
6 During this, the lady of the UNHCR started talking to several
7 people in the village, which I noted at this point there was only old
8 people there. There was no young people. They were all old.
9 One of the soldiers then came back to me and informed me that
10 he'd seen some dry blood on the floor, several pools of old dry blood, and
11 said it was by a building over there, which we then called -- we then
12 called from then on "the pink house," because it was painted pink.
13 So discreetly I went over to the pink house, had a look towards
14 the entrance, and at the entrance, which was at the rear of the square,
15 and there was large pools of -- of blood there. So I came back to the
16 lady of the UNHCR and through the interpreter - she was now talking to an
17 old lady - and the conversation was going just about what -- what had
18 happened. And the old lady was -- also, the group at this time were
19 continuing to say that nothing had happened -- nothing had happened.
20 After a long period of time - I couldn't recall how long - a very
21 old lady then spoke out. She was very distraught. She was shaking. So
22 we gave her a cup of tea because our vehicles can do all this facility.
23 We then took her to the side, where she told us that people had been
24 killed in the house, she told us. So at that point I tried to get a look
25 in the window, which I did, after getting a lift up. I looked into the
1 window, and I could see the walls were painted very light pink, compared
2 to the outside, and inside there was blood strewn all over the walls.
3 I -- what looked like it had been done with something sliding down the
4 wall, whether it be clothing or whatever.
5 From then on, my focus turned on to this house. No one else
6 could see in the house at this point. So I asked the UNHCR lady -- or
7 sorry, I informed the UNHCR lady what I'd saw, and we carried on with this
8 lady all the time.
9 It was now getting on very late in the day, and we hampered the
10 lady to -- could we get into the house to find out more of what had
11 happened. But she still wouldn't let us go anywhere near the house or
12 wouldn't tell us anything.
13 Eventually, a large period of time later, we were allowed into
14 the house, but she only let myself and the UNHCR lady in. She just
15 wouldn't let anyone else in. So we went into this house. I recall the
16 door opening, after passing the blood. To the left was a cloakroom,
17 clothes, shoes, coats hanging up and thrown on the floor. We then entered
18 the main room of the house, which was the room I could see from the
19 window. The window was now on the right. And on the left, there was a --
20 a wall, and on that wall there was a -- a crucifix and a picture of the
21 Last Supper.
22 At this point then I noticed a couch, which was below the window
23 that I'd looked through, and this couch had large amounts of dark red
24 blood, clots of blood and hair and pieces of bone scattered on the floor
25 and on the couch, and cushions, and the cushions, after looking at them,
1 had holes in them, and the holes had released feathers, which were on the
2 settee also. I presumed at this point that they'd been used to -- to
3 muffle explosion -- or gunshot wounds.
4 Q. You mean the sounds of gunshots?
5 A. Yes, the sounds, the sounds of gunshots.
6 I continued to look around the house. The -- that room had
7 another door, which was in the top left corner. I looked in there. There
8 was nothing in there. I came back out. We comforted the old lady again,
9 and -- and then we came out of the house. The door got locked behind us,
10 and we thanked the woman and then we tried to get on to the lady to ask
11 her where the bodies were, how many there was. But she wouldn't let any
12 of that go.
13 This day was now coming to a close. And a gentleman, young, not
14 seen before, came to us unarmed and told us that we should leave the area
15 very quickly. There was a large amount of soldiers making their way north
16 to the border, BiH soldiers, he told us.
17 Q. To the border? What do you mean by "border"?
18 A. The border where the fighting was taking place at this moment in
20 Q. The confrontation line.
21 A. Yes.
22 Q. Okay.
23 A. Yes. So it was my decision, then, rapidly to leave the area.
24 So --
25 Q. Before you left, did the villagers or the old lady give you any
1 inkling as to what had transpired in the pink house?
2 A. She -- she told us that -- she had now informed us that young men
3 had died. And what -- the way it came about, we asked her about the house
4 and she said that that day -- that day soldiers had came into the village.
5 And when she said the next word, we then all sort of, like, looked
6 surprised. She said Mujahedin had come into the village. And they'd
7 taken all the villagers and put them into a ruin. The ruin was just off
8 the square and opposite the pink house. When they got them there, they
9 segregated them and basically made two groups: A group of people who
10 could fight and a people -- and a group of people that couldn't fight.
11 And they let them go, that couldn't fight.
12 According to the lady then, they got taken into the house, after
13 being told to take up arms, which they refused. They got taken into the
14 house and were tortured and executed.
15 Q. Did she say how many?
16 A. No, she did not, not at this point. Not at this point.
17 We were then still asking her how many, which is when this
18 gentleman arrived, and it was my decision then to move out of the area.
19 Q. Very well.
20 A. At this point, then, we made our way quicker down the track, met
21 up with the other armoured vehicle, and went back to the main road
22 junction, which had turned right to go up to the village by the river.
23 And just as we got there, lots of trucks passed, crowded, packed. There
24 were trucks. There was buses. There was every form of transport there.
25 And it was making their way north full of BiH soldiers with the flags,
1 waving the flags, waving all their -- all their guns, and cheering,
2 joyful, because they were going into battle. So we just waved at them,
3 and we turned off to the left and made our way back to Vitez, and it was
4 now dark.
5 We got to Vitez. I reported all what had happened to the ops
6 room. Because prior to leaving -- sorry, I forgot to mention -- I put it
7 to the interpreter that we could bring coffins to bury these people in the
8 morning. And she agreed to that.
9 So back to your last question: I did say to her, "How many
10 coffins should we bring?" And she said, "Five."
11 Q. And who were you speaking to when you asked that question?
12 A. The UNHCR lady. I was speaking to her and she was speaking
13 through the interpreter to the old lady again.
14 Q. Before we move on, I think you said that the old lady told you
15 through the interpreters that the soldiers, the Mujahedin, had come that
16 day. Is that what she said? Did she say they came that day or did she
17 say they came before that day?
18 A. They came before that day. Sorry. They -- yes, they came before
19 that day.
20 Q. So that night you reported what had transpired to your operations
21 room. And were you subsequently tasked?
22 A. Yes. They -- they decided that I should go back the next day
23 with the same composite of vehicles, some extra men, and a -- a wheeled
24 vehicle with the coffins in them, inside, which we picked up before
25 departing to Miletici. We picked them up from a large warehouse in -- in
2 I decided at that point actually to pick up crosses as well,
3 which were also in the same warehouse, due to the house having a crucifix
4 and a picture of the Last Supper there, so I picked up crosses at that
5 point, and then returned to the house -- or to the village the next
7 Q. What happened when you returned to the village that morning?
8 A. We'd done the same set-up, where we left the vehicle at the
9 bottom. But this time the extra wheeled vehicle came up to this now very
10 small square. And once we got there, we found the old lady again, spoke
11 to her in more detail, made her comfortable first, and then we started to
12 ask her about the -- where the bodies were. And initially, again, she
13 wouldn't tell us. She wouldn't let us go into the pink house again.
14 That -- that had now passed. So we asked her where the bodies were. And
15 again, after a period of time, she pointed to a house which was now on the
16 far side of the square and -- with, like, a large veranda in front of it.
17 Myself, one of my soldiers, and a gentleman who I'd brought with
18 me, whose job now had changed and he was -- initially he was in charge of
19 all the food distribution. He now also got put in charge of -- for want
20 of a better word, body counting, if that's the right phrase to use. And
21 he kept records of that. And him and the soldier and myself, with the old
22 lady and the UNHCR lady and the interpreter, opened the door of the house
23 and went into the house, where we believe these five bodies were laid.
24 Upon opening the door, the smell was horrendous, and the bodies
25 were laid out nice and -- nice and uniformly, in a straight line, all five
1 of them. And we removed the five coffins one at a time, placed them on
2 the veranda, and we placed a body into each coffin one at a time before
3 loading it onto the vehicle.
4 I only got to see closely three of the bodies. The first one I
5 saw was -- had its knuckles, fingers, elbows, and even to one point a knee
6 had been severely damaged, to the point that the finger had even been bent
7 backwards. It was just unnatural, if that's the right word. It was
8 unnatural. It was bent the wrong way.
9 The other two bodies, one of them which was very bloated by this
10 time, had had its -- or had had their throats cut with a -- a blunt
11 instrument all the way around, completely around the throat.
12 Q. You say cut -- cut with a blunt instrument.
13 A. Yes.
14 Q. What do you mean by that? Just tell us exactly what you saw.
15 A. A large mark -- not mark. A large indentation around the whole
16 of the neck. The head -- the head was still on the body. This instrument
17 just didn't get through the neck bone, that's all. But then it was cut
18 completely around. That was -- that was the second and third body.
19 As they were getting onto -- or as the third one was being put
20 onto the vehicle, I went outside the building and got hold of the
21 interpreter to ask her to get around the village with this old lady to
22 find out the names of these people. And she then came back to me with one
23 piece of paper with all the names on it. I then -- I then wrote their
24 names on individual pieces of paper and then asked the interpreter to
25 check them off with the locals to make sure I'd spelt them right and not
1 done anything wrong with them.
2 At this point, then, it was all done, and we placed each piece of
3 paper of the right person into the coffin before placing the lid on top,
4 which was just -- it wasn't screwed down or nailed down anyway.
5 We had the four -- the five crosses at this point. And before we
6 got -- or as we got to the location where they were going to be buried,
7 which we didn't know yet, I was going to write the names on with a
8 permanent pen onto the crosses. So all the bodies now were on the
9 vehicle, in the coffins, and we asked -- we asked the villagers - who in
10 particular, I can't remember - we asked them, "Where should we take them?"
11 And they told us to take them down the road to -- to a large church.
12 There was a very -- it's a beautiful church, actually. And we made our
13 way down the village -- down the road the way we'd come, off to this
14 village. And as we got to the village, we were met by two monks who came
16 Q. Do you remember the name of the village?
17 A. It begins with "B." It's on the left-hand side as you drive
18 down. I can't remember exactly.
19 Q. That's okay. It's not an issue.
20 Okay. So what did you do with the bodies?
21 A. The monks met us. They told us could we reverse the truck back,
22 and we'd done so. And then one by one -- no, sorry, two at a time we took
23 the coffins to the side of the church, where lo and behold there was
24 already graves dug for them. So someone had told someone that these
25 bodies were coming.
1 I also noted at this point that the village had lots of flags
2 flying from lampposts, telegraph poles, rather, and trees, et cetera, and
3 these were Croat flags, one of which I took off a tree.
4 We then placed the coffins into the graves, and the -- one of the
5 soldiers labeled all the crosses up with the names, put the lids back on,
6 and then we said thank you to the monks and then we left at that point.
7 Q. Very well. The bodies, were they all male or otherwise?
8 A. Yes, they were all male. And the ones that I saw -- the three
9 that I saw were young, in the sense of not over 30, not -- not over 30
10 years of age.
11 Q. And when you went there the first day, how long did you spend in
12 Miletici that day, that is, the 26th? Approximately.
13 A. Eight hours-ish. Approximately eight hours.
14 Q. And what was the condition of the buildings and the structure
15 there is -- structures there?
16 A. It was a very left-alone village, so words to say. Out of the
18 Q. Don't tell us a conclusion. Tell us what you saw about the --
19 the buildings.
20 A. All right. I saw a very peaceful village, a very village -- a
21 village that was out of the way, left alone. Again, as I say,
22 approximately 10, 20 houses. They were just very happy getting on with
23 themselves and that were ...
24 Q. Did you notice in way of damage to the structures there?
25 A. No, there was no -- there was no -- at this moment in time at the
1 area we were working, no, this was a village that was different, to say
2 the least; because there was no burnt-out houses. The only damaged house
3 was one they called the ruin, but that was a ruin through age. There was
4 no roof on it. The walls were falling down. But it wasn't damaged
5 purposely. That was just age that had damaged it.
6 Q. Now, you mentioned that the old lady told you about the
7 Mujahedin. Did you know who she was speaking of? Had you been briefed
8 about them or had you become aware of who she was referring to?
9 A. We, all of us, knew who she was speaking about because we had
10 daily briefs on what was happening. Bosnia at this moment -- at that
11 particular time had had mercenaries working in there, et cetera, and we
12 all -- we got told about Mujahedin, and they were in the area, but no one
13 had seen any. No one had heard of anything at this moment -- or at that
14 moment in time.
15 Q. When you say "no one," you mean you had not seen or --
16 A. No.
17 Q. -- seen them.
18 A. Well, our soldiers had not seen them.
19 Q. Okay.
20 A. We had not seen any.
21 Q. And your tour of duty in Bosnia ended when?
22 A. It ended in the May of that year.
23 Q. Thank you very much.
24 MR. STAMP: I have nothing further, Mr. President, Your Honours.
25 Thank you very much.
1 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Stamp.
2 I'll now turn to the Defence team for their cross-examination.
3 MR. BOURGON: [Interpretation] Good day, Your Honours. Good day,
4 Mr. President.
5 Cross-examined by Mr. Bourgon:
6 Q. Good morning, Mr. Kujawinski. Let me introduce myself. My name
7 is Stephane Bourgon, and together with my colleagues, Mrs. Residovic and
8 Mrs. Muriel Cauvin, we represent General Hadzihasanovic. I have a few
9 questions for you based on both the context and exactly what you saw when
10 you travelled to Miletici.
11 Can I confirm, Mr. Kujawinski, that you were a platoon sergeant
12 with BritBat and that you were a member of the Cheshire Regiment at that
14 A. Correct.
15 Q. And that you were deployed in Bosnia from November of 1992 until
16 May of 1993?
17 A. Correct.
18 Q. And that your headquarters or where you were located was in Vitez
19 and that was the area where both "A" Company and "C" Company were located?
20 A. Correct.
21 Q. On the 26th of April, when you received that tasking to travel to
22 Miletici, this came from the ops room, the operations room of your
23 battalion; is that correct?
24 A. Correct.
25 Q. Now, you yourself, Mr. Kujawinski, had never travelled to
1 Miletici before.
2 A. Correct.
3 Q. Now, however, you had been at that moment for five months on the
4 ground, and you were familiar with the roads and how to get to Miletici;
5 is that correct?
6 A. Yes. Our vehicles were equipped with a satellite navigation
7 equipment, and we also have maps, so -- to find your way around. You find
8 your way anyway, yeah, there's no problems.
9 Q. And by that time, you had done a considerable amount of
10 travelling in the area.
11 A. Yes.
12 Q. Now, can you confirm that Miletici is approximately 20 kilometres
13 north of Vitez?
14 A. Yes.
15 Q. And that Miletici is a very small and remote village way up in
16 the hills?
17 A. Correct.
18 Q. As a matter of fact, Mr. Kujawinski, the hill to Miletici, as you
19 described it, is a very steep, and the very is kind of a dead-end.
20 There's no road further after the village.
21 A. Correct. From -- from the square. From the square there's no
22 more roads out.
23 Q. And the path leading to Miletici is very narrow, and as you
24 described it, it was difficult for your vehicles to make it up the road.
25 A. Correct.
1 Q. And when you travelled to Miletici at that time, initially there
2 were two Warriors and one Land Rover, and for protection purposes and
3 because of the nature of the track you decided to leave one Warrior at the
4 bottom of the hill.
5 A. Not at the very bottom. Midway. It was midway, yeah.
6 Q. Would you agree with me that the distance between the bottom of
7 the hill and where the village of Miletici is located is approximately 1
9 A. Yes. Yeah.
10 Q. When you arrived in the village, you described that you arrived
11 to a small square. Would you agree with me that it was very difficult if
12 only to turn around your vehicles to that you could face back down ready
13 to leave the village?
14 A. Correct.
15 Q. And at that time, you did not notice any battle damage or houses
16 destroyed in any way, other from that house that was in ruins.
17 A. Correct.
18 Q. When you arrived in the village, you said it was mid-morning.
19 A. Approximately.
20 Q. And you also mentioned in one of your previous statements that
21 you could not tell from what you saw arriving in Miletici whether the
22 village was under the control of any one of the armies.
23 A. Correct.
24 Q. And Miletici, based on your military knowledge, is not a place
25 where you would expect a military attack to take place.
1 A. No.
2 Q. And upon your arrival in Miletici, as you mentioned, there were
3 no young people, no young men, and all you could see was very old people.
4 A. Mm-hm. Correct.
5 Q. And the people you met at that time told you that you were the
6 first ones or the first international patrol to make it there for quite
7 some time.
8 A. Correct. And I could tell that from the use of the track as well
9 I was coming up.
10 Q. Now, you mentioned to my colleague that you remained until it was
11 getting dark. What time would that have been?
12 A. An estimate, 7.30.
13 Q. Thank you, Mr. Kujawinski.
14 Now, the woman you spoke to, there was one old -- very old woman
15 you spoke to, and you mentioned she was very distressed by the whole
16 situation. She mentioned to you that the Mujahedin had come into the
17 village and had gathered everyone into the centre. Is that correct?
18 A. Into the ruin, yes.
19 Q. And again, I'm just taking some statements or some lines from
20 your statement that you provided the Office of the Prosecution. The
21 Mujahedin segregated the group, and they let go the woman and the males
22 who were too old to fight.
23 A. Correct.
24 Q. And the Mujahedin at that time were not from the local area, from
25 what they could tell you.
1 A. Yes.
2 Q. And the men who remained in the village were then asked to take
3 up arms and fight for the Mujahedin, but these men refused; is that
5 A. Correct.
6 Q. And upon refusing to fight for the Mujahedin, then they were
7 taken into this house, where they were somehow killed.
8 A. Correct.
9 Q. Eventually you yourself, Mr. Kujawinski, made it into the pink
10 house. And one of the things you saw was the cushions or the pillows,
11 which you assumed had been used to muffle gunshots.
12 A. Correct.
13 Q. Now, I'm curious. When you mentioned "to muffle gunshots," is
14 that based on your military knowledge? And my question is as follows:
15 Based on what you know of using a cushion to muffle a gunshot, would a
16 person standing around 100 to 200 metres from that house, could they hear
17 the shots being fired through that cushion?
18 A. Well --
19 Q. If you know.
20 A. I don't know the answer. I've -- I've never shot a -- a rifle
21 through a cushion.
22 Q. So that assumption that you made at that point was based on what?
23 A. On -- on what I'd saw with my eyes but from seeing things on TV
25 Q. And by that time you were not aware of how many bodies had been
2 A. Correct.
3 Q. And the lady you were with and yourself, you succeeded in
4 convincing the old lady or -- sorry, maybe -- I'll take that again. You
5 did not convince the old lady to show you the bodies, but you convinced
6 her to visit the pink house.
7 A. Correct.
8 Q. And it is where you saw that scene in the pink house.
9 A. Mm-hm.
10 Q. Now, it is at that moment that the man approached you to inform
11 you about the huge number of soldiers travelling on the road which you had
12 taken to go up to that house.
13 A. Once we came out of the house, yes. Yes.
14 Q. Now, you actually met these soldiers after you had made your way
15 back down and had reunited with the vehicle that was left midway up the
17 A. Mm-hm. Correct.
18 Q. And this man did not tell you which soldiers they were or which
19 units they belonged to.
20 A. No.
21 Q. He did mention, however, that they were going to fight towards
22 the Serb front line.
23 A. Correct.
24 Q. And when you met these people, they were basically friendly.
25 They seemed to be in high spirits. And there was actually no reason for
1 you to be rushing anywhere because of these soldiers.
2 A. Correct.
3 Q. And the next day, you returned to -- to Miletici, and at that
4 time you were accompanied by Sergeant Major Arthur; is that correct?
5 A. Correct.
6 Q. The sergeant major was not there the day before.
7 A. No.
8 Q. Was the lady from UNHCR present that second day?
9 A. Yes.
10 Q. She was there.
11 And so you saw the bodies. You placed them in coffins. You took
12 pictures. And then you took them down to a church.
13 A. Correct.
14 Q. Now, to -- in answer to a question from my colleague, he asked
15 you the name of the town where you took the bodies.
16 A. Mm-hm.
17 Q. And you mentioned earlier on that you did not remember. From the
18 material I have on your previous testimony, once you said it was Guca
19 Gora, once you said it was Brajkovici. Would that help you in determining
20 where, to what village you took these bodies?
21 A. Guca Gora. Yes.
22 Q. And the villagers that morning, they saw that you were UNPROFOR,
23 that you were there to help, and they started to speak a little more.
24 A. Yes.
25 Q. And again, they told you that the Mujahedin had killed the five
1 men and that they had never seen these individuals before.
2 A. Correct.
3 Q. And where you took the bodies - now you mentioned Guca Gora - you
4 determined that this was a Croat village because there were Croatian flags
5 all over the place and on the lampposts around Guca Gora; is that correct?
6 A. I wouldn't determine it was a Croat place, because at that moment
7 in time in Bosnia flags were everywhere and it didn't necessarily mean
8 that that area was Croat. It -- it meant that Croats had either passed
9 through the area, had left their sign everywhere.
10 Q. Now, you yourself, Mr. Kujawinski, at that time had not
11 determined whether the five bodies you were carrying, to what religion
12 they were from.
13 A. Correct.
14 Q. And when you got back to your battalion on both days, the initial
15 day and the second day, all of this information was reported to the ops
17 A. Mm-hm. Correct.
18 Q. For the benefit of the Trial Chamber, can you explain how this
19 information is reported to the ops room.
20 A. Okay. Before you go out on a -- on a mission or on an operation,
21 you're briefed up. You're told what your task is to do. You then ask
22 your questions. You then book out, which means log report going out and
23 where you're going to. You then keep in communications via the radio
24 whilst you're out. You do the task at hand. And then when you return
25 back to the camp, you report back into the ops room straight away as a
1 commander. And then you are -- or you debrief the people on what you've
2 seen. You go to the int cell, you tell them if things have changed, et
3 cetera. And therefore, everything is kept up to date.
4 Q. And such a debriefing would be done orally with the ops room or
5 the intelligence cell.
6 A. Yes, and logged down in some cases. For example, if you were
7 talking over the radio whilst you were out, it would be logged, it would
8 be written down.
9 Q. Now, Mr. Kujawinski, the -- my colleague asked you a question
10 concerning the knowledge you had about the Mujahedin at that time.
11 A. Mm-hm.
12 Q. Now, I recall when you testified in the Blaskic case you
13 basically gave the same answer as you did today. You said that the
14 information you had at the time was that there were mercenaries, they
15 operated in small pockets, they were ruthless people who would stop at
16 nothing to get what they want. And that's basically the knowledge you had
17 of what was a Mujahedin.
18 A. Correct.
19 Q. A few more questions. The bodies when you saw them that morning,
20 the second day, was your conclusion that these bodies had been there for
21 quite some time?
22 A. Yes. Upon walking into the house, there was a -- a rancid smell.
23 And the -- one of -- I think it was the third body of the five was very
24 bloated. It was -- his legs, his arms, his stomach, everything was
25 bloated about him, which told me --
1 Q. These events were not recent, at least to you.
2 A. No, they weren't recent.
3 Q. And when you testified in the Kupreskic case, a question was put
4 to you concerning your knowledge that people had been expelled from the
5 village or driven out of the village. And your answer at that time was
6 that you had no knowledge of this. Is that correct?
7 A. Correct.
8 Q. Would I be right in saying also that you had no knowledge that
9 some of those people wanted to move to Nova Bila and that in fact there
10 was some people moved to Nova Bila at some point in time?
11 A. No, I have no knowledge.
12 Q. Now, on both of these occasions when you were in Miletici, the
13 first day and the second day, no one else from the British Battalion
14 travelled up there; is that correct?
15 A. To my knowledge, no.
16 Q. And you did not see anyone from ECMM or the European Community
17 Monitoring Mission?
18 A. No.
19 Q. And you did not see anyone up there from the joint command.
20 A. No.
21 Q. Thank you very much, Mr. Kujawinski. I have no further
23 A. Thank you.
24 Q. Thank you.
25 MR. BOURGON: [Interpretation] Thank you. Mr. President, this
1 concludes the cross-examination on behalf of the accused General
3 JUDGE ANTONETTI: [Interpretation] Thank you.
4 I'm now addressing the other Defence team. Do you have any
5 questions for this witness, Mr. Dixon?
6 MR. DIXON: Thank you, Your Honours. We don't have any questions
7 on behalf of Mr. Kubura for this witness. I'm grateful.
8 JUDGE ANTONETTI: [Interpretation] Mr. Stamp, do you have any
9 additional questions?
10 MR. STAMP: Thank you, Mr. President, Your Honours. We do not.
11 JUDGE ANTONETTI: [Interpretation] Thank you.
12 The Chamber has a few questions for the witness.
13 Questioned by the Court:
14 JUDGE ANTONETTI: [Interpretation] When you arrived the first time
15 and you met the old lady and you were about to discover that something
16 happened, you said that you were on the radio. Did you warn your
17 superiors by radio that there had been a problem in that village?
18 A. No. No, we had no -- we had no radio communication between
19 ourselves and our ops room at this point. We were speaking directly to
20 the vehicle below, who were then relaying the message back to our ops
22 JUDGE ANTONETTI: [Interpretation] When you arrived with the
23 person who represented the UNHCR and who, according to what you said, had
24 certain information, when one travels with someone or accompanies someone
25 it is normal to exchange a few words. Did she tell you where the
1 information had come from? Because you were on that mission because UNHCR
2 knew that something had happened there.
3 A. No. No, I wasn't told what I might encounter within the village.
4 All I was told was that I was going to this village because there had been
5 reports of atrocities in the area, not in that particular village.
6 JUDGE ANTONETTI: [Interpretation] But the lady from the UNHCR who
7 was with you, she didn't tell you anything more? She didn't know
8 anything, in fact? Or maybe she did know but she didn't tell you
10 A. Maybe -- maybe so. She didn't -- she did not tell us.
11 JUDGE ANTONETTI: [Interpretation] My last question: You said
12 that a young man told you that you should leave because forces were
13 arriving and that they were numerous. Why did you leave? What were you
14 afraid of? Why did you leave? What were the risks? If you were there,
15 since -- if the regular army was arriving, why go away?
16 A. Many risks. The first one was that it was a -- it was a practice
17 that we never stayed out overnight. For what reasons, operational, I
18 don't know, but we never stayed out overnight.
19 Secondly, that the -- the young -- or the man told us that lots
20 of soldiers were coming. He didn't say how many. But when we got to the
21 bottom of the hill, I'm glad we did leave. But upon seeing them and the
22 mood they were in, the joyful mood they were in, they -- they weren't a
23 threat at that time. But we left purely because night-time was falling.
24 JUDGE ANTONETTI: [Interpretation] So those who were arriving,
25 according to what you are saying, you did see them coming.
1 A. We saw them coming as we got to the bottom of the hill. They
2 were just passing us on the bend where we had turned right to go up to
3 Miletici. And as I explained, they were in several -- lots of vehicles of
4 different kinds, packed.
5 JUDGE ANTONETTI: [Interpretation] And the soldiers that you saw,
6 were they in camouflage uniform or in civilian clothing? How would you
7 describe the men you saw at the bottom of the hill?
8 A. The majority were in uniform, but then amongst them there was a
9 lot of mixed -- mixed uniform, which is maybe a military top with a
10 civilian pair of trousers or vice versa.
11 JUDGE ANTONETTI: [Interpretation] And there must have been
12 officers or commanders with them. Why didn't you inform the commander of
13 those arriving soldiers what you had established, that there had been a
14 serious incident in a certain house and that you had seen traces of blood?
15 Why didn't you inform members of the army of what you had seen on the
16 spot, since you were not at war against the people you saw?
17 A. Communication between us, the -- the British soldiers, and the
18 two factions at this time wasn't there. We -- we as the soldiers on the
19 ground had very, very, if any, communication with the soldiers. So to me
20 it wasn't worth telling them what had gone on anyway. No. I wouldn't
21 have spoken to them.
22 JUDGE ANTONETTI: [Interpretation] Very well.
23 Does the Defence have any additional questions following the
24 answers given by the witness?
25 MR. BOURGON: [Interpretation] Thank you, Mr. President. Just two
1 very short questions.
2 Further cross-examination by Mr. Bourgon:
3 Q. [Previous translation continues] ... To the questions put to you
4 by the Presiding Judge of the Trial Chamber. Can you confirm that the
5 soldiers you met at the bottom of the hill were not travelling to Miletici
7 A. No. No, the soldiers we met at the bottom of the hill were going
9 Just as we got to the bottom of the hill, one or two vehicles had
10 just passed us and they stopped, or they slowed down, and they -- they
11 were carrying on north through the valley, going to their front line.
12 Q. To try and picture the scene, would I be right in saying that
13 there's a road leading north to the front line and you were coming kind of
14 a T-junction going towards Miletici?
15 A. Yeah, a Y-junction, to my -- to my recollection. They were
16 coming up the valley, a steep -- obviously, a valley, steep sides. The
17 river is on the left. And we were coming down to meet this road and we
18 had to do a very sharp left turn to go back down the valley the opposite
19 way to what they were travelling.
20 Q. And you knew, Mr. Kujawinski, that the front line with the Serbs
21 was further north, about 7 to 8 kilometres?
22 A. Yeah. I think it was 10 kilometres at the time, which rings a
23 bell. Correct.
24 Q. And it wasn't unusual for you to see troops going towards the
25 front line because troops at the front line were changing regularly.
1 A. This amount of troops that I saw that day was the biggest, was
2 the largest amount of troops I'd seen in Bosnia in one collective group.
3 I saw another large group which was several days, in fact, or -- if not a
4 week later in the Zenica area. But this was the largest amount of troops
5 in one collective group I'd seen to that date.
6 Q. Thank you very much. Mr. Further questions.
7 MR. BOURGON: [Interpretation] Thank you, Mr. President.
8 MR. STAMP: Nothing, Mr. President, thank you.
9 JUDGE ANTONETTI: [Interpretation] The Judges have some more
10 questions for the witness.
11 Questioned by the Court:
12 JUDGE SWART: Just a few questions, Mr. Kujawinski, on your
13 second visit to Miletici, on the 27th, if I understood you well, you came
14 back with the lady from the UNHCR and you entered the house and you saw a
15 number of bodies. The way you described it implicated, I would say, that
16 you had the impression that some crimes had been committed, that these
17 people were murdered. Is that your impression?
18 A. Yes. Yes, my belief is they were -- they were executed, killed,
19 some of them, after being tortured in the pink house, which also the old
20 lady told us would now become a shrine, the pink house. And they had then
21 been moved to the building opposite the square, where we then saw them for
22 the first time.
23 JUDGE SWART: So the place where you saw they were murdered was a
24 different place from the place where you then found the bodies; is that
1 A. Yes, correct.
2 JUDGE SWART: At that point did you or any other person from your
3 company or maybe the lady from the UNHCR make notes or make -- make
4 drawings or make pictures from the situation?
5 A. I -- everywhere I went for the six-month tour of Bosnia, I
6 carried a camera, a small -- at the time. I think they're now extinct. A
7 C110 film camera, and I took photographs everywhere. I also kept a diary
8 for the six months, all of which I've handed over -- over to the court.
9 And over reading my statements over the past few days, I've actually -- as
10 I was reading my statement, before I got to the part of mentioning all
11 this, I -- in fact, I've got it in front of me here now, I think. I drew
12 the courtyard itself and where the houses were, et cetera. That is still
13 very much so alive in my -- in my head still. But at the moment in time
14 there, no, I didn't draw anything. I don't recall -- I don't recall the
15 lady doing anything like that neither.
16 JUDGE SWART: I'm not sure whether I understand you. Did you
17 take drawings or photographs at that moment?
18 A. Yes.
19 JUDGE SWART: Yes.
20 A. At that moment, I took photographs.
21 JUDGE SWART: Yes. And you said you handed them over to the
23 A. Yes.
24 JUDGE SWART: This Tribunal, you mean?
25 A. Yes.
1 JUDGE SWART: To the investigators?
2 A. Yes.
3 JUDGE SWART: And when was that, if you can recall?
4 A. I can't recall. I can't recall exactly when it was.
5 JUDGE SWART: Was it years after the event or ...?
6 A. Oh, yeah -- well, yes, two years after. Three years after. Yes.
7 JUDGE SWART: Two years after the event.
8 When you came back to your base in Vitez, I understand, you did
9 report your findings to the intelligence officer or to -- to another
10 person. Do you know whether BritBat itself, you yourself, or any other
11 person informed also the local authorities there?
12 A. That, I cannot answer. I mean, our -- my chain of command is --
13 is to -- once you get into the -- into the camp, is for the commander,
14 which was myself, to disembark the vehicle, tell everybody what to do.
15 For example, the driver. You check the vehicle. You check the
16 ammunition. So on and so forth. Whilst they do so, "Don't move. I'll be
17 back in a minute." I then go to the ops room. First thing I do is book
18 back in or report back in, my call sign. I'm now back in. I then tell
19 them briefly what has happened, in the sense of where I've been, what I've
20 done, et cetera, although they should have kept all that from the radio
21 log. I then go next door, which is the intelligence room, and sit down
22 and be debriefed by the intelligence cell about what I saw and then they
23 update things from the -- and everything, to my knowledge, is then logged,
24 recorded. Whether they tell other authorities, I cannot answer that
1 JUDGE SWART: Okay. So, you're not aware of steps being taken by
2 BritBat on the basis of your report in the way of informing other
3 authorities or international organisations or whatever?
4 A. No, I'm not.
5 JUDGE SWART: Thank you very much.
6 JUDGE ANTONETTI: [Interpretation] I have an additional question
7 for you. But in view of the nature of the question, I should like to ask,
8 Mr. Registrar, that we go into private session.
9 [Private session]
21 [Open session]
22 THE REGISTRAR: Your Honours, we are in open session.
23 JUDGE ANTONETTI: [Interpretation] Mr. Stamp.
24 MR. STAMP: Just a couple questions in respect to the
1 Further examination by Mr. Stamp:
2 Q. You said that you handed over the photographs you'd taken to
3 officers of this Tribunal a couple years after the incidents that you just
4 described. You -- is it correct that you handed them over in respect to a
5 different investigation of another case and not this case?
6 A. Correct. When I -- on the first interview that I was -- or
7 that -- on the first interview that I'd undertaken, I was asked to produce
8 anything that I had, and I produced this photo album.
9 Q. All right.
10 A. Which is the six months in a book. I can tell you now. And I
11 handed that over.
12 The diary I was never returned for approximately four years, but
13 I did get the original back. And the photographs, they took them out the
14 book, copied them, and returned everything back to its normal way, and
15 that's the way I have it now.
16 Q. Thank you.
17 MR. STAMP: Thank you, Mr. President.
18 JUDGE ANTONETTI: [Interpretation] I turn for the last time to
19 Defence counsel to ask them whether they have any questions. If not,
20 Witness -- some more questions, Mr. Stamp?
21 MR. STAMP: Not a question. But I think that you are about to
22 release the witness, Mr. President.
23 Before he's released, may I just indicate that of the photographs
24 he took three are copies of three that were relevant to Miletici remain
25 here. The rest were given back to him. Instructions had been given that
1 he be asked to carry what he had for this case, but there was some
2 misunderstanding because the Victims and Witnesses Unit, not knowing about
3 photographs or anything like that, in their instructions to him told him
4 that he needed not bring anything, that he would be taken care of when he
5 arrived. So when he was came and he was asked about these photographs he
6 told us that he was told not to bring anything. But the Victims and
7 Witnesses Unit told him not to bring anything for a different purpose.
8 So -- but there are three photographs here. They are not on the exhibit
9 list, so they were not produced.
10 However, Mr. President, Your Honours, having indicated some
11 interest in the photographs, perhaps if -- if efforts were made, they
12 could be brought before the Court before he's released. It's really a
13 possibility I leave open to the Court. That is all I have to say on the
15 JUDGE ANTONETTI: [Interpretation] Does that mean that the
16 Prosecution would like to tender these three photographs and to tender
17 them they have to be identified by the witness, and also you have to have
18 them in your hands. So the first questions: Do you have those
19 photographs or do you not have them?
20 MR. STAMP: No, I do not have them in my hands. They are in the
21 building. They can be found.
22 We had no intentions, we did not propose to tender them. I just
23 am making the information available to the Court, since the Court did
24 express some interest in the photographs.
25 [Trial Chamber confers]
1 JUDGE ANTONETTI: [Interpretation] Regarding this matter, we will
2 deliberate subsequently. We consider the examination to be over. We
3 thank you for coming. We wish you a safe journey home.
4 And I'm going to ask Madam Usher to accompany you out of the
6 THE WITNESS: Thank you very much, sir.
7 [The witness withdrew]
8 JUDGE ANTONETTI: [Interpretation] As we have a few minutes left
9 before the break, and perhaps even the adjournment, could the Prosecution
10 tell us what the schedule is for next week, in view of the latest
11 information that they have.
12 MR. WITHOPF: Mr. President, Your Honours, for this purpose could
13 we please go into private session?
14 JUDGE ANTONETTI: [Interpretation] Let us go into private session,
16 [Private session]
12 Page 5473 redacted, private session
12 Page 5474 redacted, private session
12 Page 5475 redacted, private session
25 [Open session]
1 THE REGISTRAR: Your Honours, we are now in open session.
2 MR. BOURGON: [Interpretation] I apologise, Mr. President. I'll
3 start again.
4 We would like to thank the Trial Chamber for allowing us to
5 rapidly analyse the decision rendered earlier this morning, the decision
6 that has to do with the admissibility of documents.
7 During the break, we analysed the consequences of this decision
8 for the Defence. And at this point in time, Mr. President, we would like
9 to make some comments. We don't want to go back on the decision, but we
10 would like to comment on this.
11 Our comments will consist of two parts: There are over 650
12 documents, Mr. President, that have to do with admission into evidence and
13 have to do with the relevance and the authenticity of the documents.
14 These things have to be justified for each document. We will need, I
15 think, about half a page. We believe that the request the Trial Chamber
16 has made for our response is a document that would have between 200 and
17 300 pages. We don't think that we can draft such a document by the
18 deadline indicated by the Trial Chamber; namely, the 8th of April.
19 We believe that we will need about six weeks in order to produce
20 such a document. Six weeks at least.
21 As far as the comments that the Defence would like to make, we've
22 had the opportunity of examining the decision, but we would need a little
23 more time to analyse the legal consequences and the legal position of the
24 accused in relation to such a debate. We believe that there might be
25 consequences for the accused. It has to do with the burden of proof that
1 is to be borne by the Prosecution. And with regard to the position of the
2 accused in all criminal proceedings.
3 For these reasons, Mr. President, we would like to have a few
4 days to carefully analyse the decision and to carefully analyse the legal
5 consequences. At the moment, we haven't made any decisions, but we might
6 make some subsequent comments to the Trial Chamber, which might take the
7 form of a request for a clarification of this decision or re-examination
8 of this decision.
9 As I have said, we believe that the consequences might be quite
10 important for both accused in this case.
11 With regard to the documents, this is a matter that the Chamber
12 has been interested in from the very beginning of the trial. We think it
13 might be useful to make some written comments and submit these comments to
14 you, Mr. President, in order to take a decision about this subject, given
15 the consequences.
16 JUDGE ANTONETTI: [Interpretation] Mr. Dixon and then Mr. Withopf.
17 Mr. Dixon.
18 MR. DIXON: Thank you, Your Honours. The only additional point I
19 wish to make in supporting Mr. Bourgon's submissions, Your Honours, is the
20 point that was highlighted when we first addressed Your Honours on this
21 matter, and that is the one -- of the difficulty we face in being able to
22 when we have so many documents understand what reliance the Prosecution is
23 placing on these documents in order for us to respond in accordance with
24 Your Honours' order.
25 We have the pre-trial brief, which mentions some of these
1 documents, but only a handful of -- of the over 600 documents. And we
2 would -- and this may be a matter that we put forward to Your Honours in
3 further submissions. But we would request that some consideration be
4 given to the Prosecution outlining the way in which they wish to use these
5 documents, what reliance they wish to place upon them, so that we can
6 respond to them accordingly.
7 It's of course not unreasonable to ask the Defence to respond to
8 what the Prosecution's case is. But if we do not know what it is at this
9 point in relation to those documents, us in responding, it might mean we
10 are not responding to the correct issues. But in addition to that, we
11 might be putting forward our defence way before our Defence case is in
12 fact due to be presented, which is after the Prosecution case. And that
13 is a matter which we are concerned about. If the order that Your Honours
14 have made could take that point into account and request the Prosecution
15 as part of their case to indicate what the use will -- or what use will be
16 made of these document, we would be most grateful. Thank you,
17 Your Honours.
18 JUDGE ANTONETTI: [Interpretation] Mr. Withopf.
19 MR. WITHOPF: Mr. President, Your Honours, the issue of tendering
20 the documents and all related issues have been discussed since months and
21 they have been discussed in each and every detail possible during court
22 sessions, outside court sessions, in informal meetings. The Chamber has
23 now after having had all information before it, has now rendered an
24 informed decision.
25 Defence is now telling us that they wish - and there are very
1 clear indications - that they wish to file a motion for reconsideration.
2 If they file a motion for reconsideration, the Prosecution would have the
3 right to respond to this motion. That would mean another two, three weeks
4 will pass by without any further decision on this issue.
5 The Prosecution anticipates that the Prosecution's case will be
6 finished by early June 2004 at the very latest. If Defence is telling us
7 now that they are not in a position to elaborate on the reasons why they
8 challenge the Prosecution's documents not prior to six weeks from now on
9 and the Prosecution would have the right to respond obviously, and the
10 Chamber would then have to make a decision, that would be, what is quite
11 obvious, after the closing of the Prosecution's case.
12 It appears to be a bit odd to proceed in such a manner.
13 One would have thought, Mr. President, Your Honours - and I'm
14 making reference to paragraph 3 of the recent submission, of the recent
15 filing of Defence on this issue in which they have communicated what they
16 think the challenges may be, and they identified at least ten different
17 issues. One would have thought that at this point in time Defence would
18 know which challenges they wish to make in respect to each and every
19 document. The documents are in -- are in possession of the Defence since
20 many months. Quite a number of them, actually, since more than two years.
21 It appears to be a bit difficult to now at the eleventh hour think about
22 what the challenges could be.
23 Therefore, the Prosecution opposes any already-announced motion
24 for reconsideration of this decision. However, if the Chamber allows the
25 Defence to file such a motion, the Prosecution would of course exercise
1 its right to respond to such a motion.
2 Finally, the practice which has now been applied by the decision
3 of the Trial Chamber on this very same issue is very much in consistence
4 with the practice applied by a number of Trial Chambers or by other Trial
5 Chambers in a number of proceedings before this Tribunal. Therefore, the
6 Prosecution respectfully requests the Trial Chamber to not allow the
7 Defence to again and again discuss this issue. We reached a point in time
8 in the course of the proceedings this matter must be finally decided, and
9 the Trial Chamber has decided on this issue in order to allow this trial
10 go in the same speed it has went over the past.
11 Thank you very much, Your Honours.
12 JUDGE ANTONETTI: [Interpretation] Thank you.
13 The Defence has told us that they will reflect on the matter to
14 see whether the decision might not have legal consequences for the Defence
15 that concern the burden of proof, which is placed naturally on the
16 Prosecution. It is not for the Defence to bear the burden of proof. The
17 Defence reminded us of this legal principle, and quite rightly.
18 But that is not the issue. The decision that was rendered, as we
19 have emphasised, states that 650 documents can't be tendered into evidence
20 while the witnesses appear here. So we want to make a distinction. We
21 want to see which documents out of the 650 documents have been contested
22 by the Defence. But the Trial Chamber would like to have more information
23 about why they're contested, information about the authenticity or the
24 relevance of the documents. This would enable everyone to see the matters
25 more clearly.
1 So the Defence has told us that at the moment they think that
2 each document should require half a page. That would be 300 pages if
3 we're dealing with 650 documents. So perhaps half a page is required for
4 some documents but there might be other documents that only require one
5 line. The best thing to do would be for the Defence to continue to
6 reflect about this issue over the weekend, because you have two days
7 before you now, and on Monday, when we start with the hearing, you can
8 inform us of your position. And we will see whether we will give you
9 leave to file a motion requesting that we clarify our decision, because in
10 our opinion the decision was very clear. So you have two days to think
11 about the matter. It would be best to take stock of the matter at the
12 beginning of the hearing next Monday.
13 Mr. Bourgon.
14 MR. BOURGON: [Interpretation] Thank you, Mr. President. The
15 Defence is aware of the fact that the Trial Chamber rendered its decision,
16 and we would like -- we don't want to have the document revised. Or if it
17 is, it should only be done in accordance with the regulations.
18 So our position is to confirm in all respects the decision of the
19 Trial Chamber. But we would like to inform the Trial Chamber that the
20 work involved is considerable. This would require more than two weeks of
21 work to make our first assessment without drafting anything. So we would
22 like to inform the Trial Chamber that this involves a lot of work and it
23 can't be completed by the 8th of April. We wanted six weeks' time to be
25 And as far as the decision itself is concerned, Mr. President, as
1 the Trial Chamber has asked us to do, we will think about this matter over
2 the weekend in order to assess what the legal consequences of the decision
3 might be, and we will inform the Trial Chamber of our position on Monday.
4 We'll inform you whether we would like the decision to be reconsidered or
5 whether other avenues should be explored.
6 But, Mr. President, it's important to say that this issue, in
7 spite of the comments made by my colleague from the Prosecution, from the
8 very beginning of the first -- of the trial we started discussing the
9 admissibility of documents and the difference between the admissibility of
10 a document and the probative value of a document.
11 The Prosecution's position with regard to documents which are as
12 ordinary as maps that show the sites of crimes referred to in the
13 indictment, the Prosecution in respect of such documents also raised
14 objections. So this has a lot of consequences and gives rise to a lot of
16 We believe that the decision rendered by the Trial Chamber is one
17 that requires a lot of time for us to consider its consequences. Then we
18 will be able to inform you of our position next week. Thank you,
19 Mr. President.
20 JUDGE ANTONETTI: [Interpretation] So you have two days until the
21 beginning of next week. As you have said, you spent 15 days to examine
22 the lists. There are documents that you could assess, and you should be
23 able to know which documents will be subject to a debate and which
24 documents could be admitted into evidence.
25 But as you have said, it's necessary to make a distinction
1 between the relevance and the probative value of a document. And
2 sometimes the Trial Chamber has the impression that the parties are
3 confusing these two issues.
4 The fact that a document is admitted into evidence does not mean
5 that this document has been given certain probative weight. A document is
6 assessed on the basis of the quality of its source, the witness, the
7 context, the contents of the document, various testimonies, et cetera, and
8 this is a matter for the Trial Chamber to determine. So I wanted to point
9 this out to you.
10 It would be best for you to think about the matter and on Monday
11 we will take stock of the subject.
12 Mr. Withopf, are there any other comments to be made?
13 MR. WITHOPF: Very briefly, Mr. President and Your Honours. It
14 sounds awful submitting a document of about 300 pages. I think this issue
15 is not that difficult.
16 The Defence in their own submission have identified a number of
17 criteria why they think 650 documents have to be challenged from their
18 point of view. If they apply these criteria to the documents, it could be
19 done in a sort of a tick box. Actually, document number 1, translation
20 issue. Document number 2, ceding authority. And in very brief, in some
21 sort of a bullet-point form, a very brief explanation could be given. I
22 don't think 300 pages are necessary.
23 Secondly, we have during the week after Easter we don't have
24 court sessions, which would allow the Defence to work on this issue.
25 There's a full week in order to cover all these issues. And I still
1 think - and that's at least the conclusion I've drawn from the Defence
2 submission, that they've made up their minds in respect to each and every
3 document - it doesn't appear too complicated to cover this issue within
4 two weeks, one week of the two weeks being no court session. Again, it
5 appears to be highly problematic to revisit the very same issue again and
6 again and again after a decision has been made. We are too far in the
7 course of this trial, and we are actually in -- within two months the
8 Prosecution will finish the presentation of its case to -- not to know how
9 the parties or how the Prosecution is obliged to tender its documents.
10 Thank you very much, Mr. President.
11 JUDGE ANTONETTI: [Interpretation] Mr. Bourgon, you have the floor
12 for the last time.
13 MR. BOURGON: [Interpretation] Thank you, Mr. President.
14 We have serious reservations regarding the statement made by my
15 learned friend from the Prosecution. Who is he to know how much time we
16 need for what we are to do and what we're going to say about our documents
17 and about our decisions? We believe that it is quite unacceptable,
18 Mr. President.
19 The question of documents is a question that we will attach full
20 importance to; however, we need time to evaluate, to assess our position
21 in order to protect the position of the accused, and that is our duty.
22 JUDGE ANTONETTI: [Interpretation] Very well. In any event, we
23 have the weekend, which will give you time to think things over and for
24 your positions to mature, bearing in mind that the procedure that applies
25 to the Prosecution, to which the Defence naturally has to react, will in
1 the future also apply to the Prosecution when the Defence produces its
2 documents. So there is an equality of arms in that respect that is fully
4 In the interest of economy, we need to develop a system when
5 documents that are tendered or will be tendered should be done in the most
6 appropriate manner without any useless debate, which takes time away from
7 the testimony. Because that is after all important, because our procedure
8 is based on oral testimony. And we shouldn't allow these debates on
9 documents to detract from the time we devote to those testimonies.
10 Therefore, you will have two days to think things over. We will
11 start the hearing on Monday by addressing this question once again.
12 If there are no other matters, I thank both parties and all those
13 present, and I invite you to come back here on Monday at 2.15. Thank you.
14 --- Whereupon the hearing adjourned at 11.26 a.m.,
15 to be reconvened on Monday, the 5th day of
16 April, 2004, at 2.15 p.m.