1 Wednesday, 6 November 2013
2 [Open session]
3 [The accused entered court]
4 [The witness takes the stand]
5 --- Upon commencing at 9.02 a.m.
6 JUDGE KWON: Good morning, everyone.
7 Please continue, Mr. Nicholls.
8 MR. NICHOLLS: Good morning, Your Honours. Thank you.
9 Just before we continue. A little bit of clean-up from
10 yesterday. I'd move to tender 65 ter 04397 and 04398. Those are the two
11 documents I used in cross yesterday. I apologise for not tendering them
12 at the time. They weren't they on my list so I forgot.
13 JUDGE KWON: Any objections?
14 MR. ROBINSON: No, Mr. President.
15 JUDGE KWON: We'll admit them both.
16 MR. NICHOLLS: Thank you.
17 JUDGE KWON: Now shall we give the numbers.
18 THE REGISTRAR: 65 ter number 04397 receives Exhibit Number
19 D3996 --
20 JUDGE KWON: I'm sorry, we should assign P numbers.
21 THE REGISTRAR: P numbers, excuse me.
22 65 ter number 04397 is P6496, Your Honours. 65 ter number 04398
23 is Exhibit Number P6497, Your Honours. Thank you.
24 MR. NICHOLLS: Thank you.
25 Could I have P00195, please.
1 WITNESS: VUJADIN POPOVIC [Resumed]
2 [Witness answered through interpreter]
3 Cross-examination by Mr. Nicholls: [Continued]
4 Q. And what I'm going to do now, just briefly before we get back
5 started, is touch on the issue of the Bratunac Brigade soldier wounded at
6 Kravica which we talked about a bit yesterday.
7 MR. NICHOLLS: These documents weren't on my list, but I sent
8 them to Mr. Robinson this morning.
9 So P00195, please. Okay, there we see it. This is a log of
10 wounded soldiers. If we go to page 2, please, of both. We'll see when
11 the English comes up, on the first line, yeah, 13 July 1995 at
12 1730 hours, date and time of wounding, Miroslav Stanojevic, Red Beret,
13 wounded at Kravica. If we look at the one just below him, we see
14 Rade Cuturic, wounded at Kravica ten minutes later, and this is the
15 special police person whose hands were burned that we've spoken about a
16 lot. So same time, same place. And now if we could have 65 ter --
17 JUDGE KWON: Was this exhibit admitted through a 92 bis witness
18 as an associated exhibit?
19 MR. NICHOLLS: I believe so, Your Honour.
20 JUDGE KWON: Thank you.
21 MR. NICHOLLS: Now if I could have 65 ter 25596. And just very
22 quickly, this is again a registration sheet for the same soldier in the
23 Bratunac Brigade, Miroslav Stanojevic. And if we go to page 3 of the
24 English, page 2 of the Serbian, we just see report of wounding of this
25 man at Kravica on 13 July.
1 Q. If you look at number 14, Mr. Popovic, you see wound of the right
2 elbow, serious wound, wounded while taking captured Muslims into custody.
3 So you agree with me, Mr. Popovic, that this shows there was a
4 Bratunac Brigade member wounded at Kravica on the 13th?
5 A. Yes, yes. Yes.
6 Q. Thank you.
7 MR. NICHOLLS: May I tender that, please?
8 JUDGE KWON: Yes, this will be admitted as Exhibit P6498.
9 MR. NICHOLLS:
10 Q. Mr. Popovic, what's that big book you brought with you today?
11 A. Mr. Nicholls, I brought Milan Vujaklija's book, he was a
12 lexicographer in the former Yugoslavia. He was the best, and it is a
13 lexicon of foreign phrases, and if you don't mind, I'd like to read out
14 what the entry for "balija" says. This edition is 1991. Will you allow
15 me to read that out?
16 Q. No, sorry. You can do that on re-direct if Mr. Karadzic would
17 like you to.
18 Now we're still on the 13th of July back at the Hotel Fontana
19 that night where you stay, according to your statement, and Mr. Beara is
20 also in Bratunac that night with you, correct, 13 July?
21 A. Yes. That was the first time on that day that I saw him during
22 my stay in Bratunac.
23 Q. Okay.
24 A. Before that we did not have any contact.
25 THE INTERPRETER: Interpreter's note: Could the witness please
1 come closer to the microphone when speaking. We can barely hear him.
2 Thank you.
3 MR. NICHOLLS:
4 Q. Now, as Drina Corps security chief you would have known and you
5 would have had to know that the town of Bratunac was -- the town centre
6 was literally flooded with thousands of prisoners that night; correct?
7 A. As far as I know, in the centre there weren't these thousands. I
8 parked the car in front of Fontana. There's a big parking-lot there and
9 then I entered Fontana. Well, I did not notice when I passed by then --
10 well, maybe but then it wasn't in the centre, not there.
11 Q. Okay. The Trial Chamber's been to Bratunac so I'm not going to
12 bring up an aerial. You knew that Muslims were being held in the
13 Vuk Karadzic school, a hangar behind the school, in the stadium, and in
14 buses parked outside Vihor garages, and in front of the municipality
15 building, and all around the centre, right, when you were in the
16 Hotel Fontana that night; right?
17 A. Mr. Nicholls, when I passed by, the prisoners stayed behind at
18 Sandici, Livade. As far as I know, in Bratunac, there were only the
19 people who had been separated from Potocari and they probably arrived
20 just after me.
21 Q. Okay. Let's be very clear. When you spent the night of 13 July
22 in Bratunac, you were not aware that thousands of men who had been
23 captured along the Bratunac-Konjevic Polje road had been brought to
24 Bratunac and kept in those places I just read out, Vuk Karadzic school,
25 et cetera, you didn't know that that night?
1 A. I knew that they were taken prisoner and that they were
2 transported there, but I did not see them. At night I was at the
3 motel --
4 THE INTERPRETER: Interpreter's note: We can no longer hear the
6 JUDGE KWON: Mr. Popovic, if you could speak to the microphone.
7 THE WITNESS: [Interpretation] I'm saying that I knew they were
8 there but I did not see them. At 9.00, I mean, after that I didn't leave
9 the motel. I went to sleep.
10 MR. NICHOLLS:
11 Q. Okay. Now let's be clear. You knew they were there. Are you
12 now saying you admit that you know that all the men captured along the
13 road were there, not just what you said a minute ago, the men separated
14 in Potocari?
15 A. In my statement I put it very clearly. I don't know actually if
16 it entered my statement. I know full well, I remember as I was passing
17 through Kasaba that Malinic was already stopping some buses and there
18 were about ten buses there, parked, and that's why I couldn't park right
19 next to him. I had to park further down --
20 Q. Sorry --
21 A. -- that is to say that it was already being prepared, the
22 evacuation, from there.
23 Q. Okay. Answer my question, please. On the night of the 13th, did
24 you know that in addition to the men separated in Potocari and brought to
25 Bratunac, that thousands of men who had been captured along the
1 Bratunac-Konjevic Polje road were also brought to Bratunac?
2 A. I tell you that I knew, but I did not see them. This is the
3 third time I'm saying that: I did not see them.
4 Q. All right. Okay. So you knew that men from the road were
5 brought to Bratunac, not just those separated, which is what you said a
6 few minutes ago, that you thought it was just the men separated in
8 A. Yes.
9 Q. Okay.
10 A. No, no. I'm saying, when I arrived, I knew that they had come
11 too. But after talking to Beara and all the rest, the column probably
12 went in front of him. I'm not sure now. I cannot calculate now, but the
13 column arrived but I did not see them --
14 Q. I'm not --
15 A. -- it's not that I saw them.
16 Q. Okay. I'm not asking what you saw. All right. Not at the
17 moment. Try to answer this with a yes or no if you can. Did you know
18 that thousands of Muslim prisoners, thousands plural, were held in
19 Bratunac on the night of the 13th? While you were there I'm speaking
21 A. I'm saying for the third time that I did know.
22 Q. Okay. Let's talk about how those men were treated, and I'll just
23 briefly go over the trial judgement in your case. Paragraph 400 talks
24 about the extremely cramped conditions in the Vuk Karadzic school and the
25 hangar behind the school. Paragraph 401 talks about how at the
1 Vuk Karadzic school, the prisoners were forced to leave their bags and
2 food outside the building and were not interviewed or asked to give their
3 names. Paragraph 402 said that the prisoners asked for food and water.
4 They were given some water but no food, and when they complained, the
5 guards fired over their heads and threatened them. Paragraph 403 says
6 that in the vehicles parked at various locations through Bratunac town,
7 the prisoners were provided with little or no food and when water was
8 provided it was not sufficient. Paragraph 404 states that some prisoners
9 detained in various locations in Bratunac town were beaten by members of
10 Bosnian Serb forces. Screams, moans, and bursts of fire were heard in
11 the vicinity of the places of detention. In the Vuk Karadzic school,
12 prisoners were beaten on way to the toilet and therefore chose to relieve
13 themselves where they were.
14 And there's testimony in this case at P00769, e-court page 69,
15 about people being taken out of the buses and trucks behind the
16 Vihor garage and this witness heard screams, people yelling: "Stop that,
17 stop that," and bursts of fire.
18 So men beaten, men taken out, and screams heard, IDs taken,
19 inadequate, if any, food and water. Is this standard procedure for the
20 way the VRS treats its prisoners? I'm asking you as Drina Corps security
21 chief. Is that standard procedure to beat, kill, starve, and deny water
22 to prisoners?
23 A. That was not standard procedure.
24 Q. Okay. If that's not standard procedure, since you're in the
25 centre of town, five-minutes' walk from all of these places of detention
1 where all of these terrible things were happening, as a trained security
2 chief and operative, didn't that tip you off that something might not be
3 quite right since the prisoners are being beaten and killed all around
5 A. Mr. Nicholls, I repeat, I did not see them. How could I know
6 then at that moment when that was happening? I did not know then that it
7 was happening at all.
8 Q. Okay. Thank you. You've answered. You didn't know. Let's go
9 to the 14th of July. I want to move through this quite quickly. Please
10 put your statement down and don't read it. Thank you.
11 I'm not going to go through your statement again. You describe
12 what your alleged movements are in the morning and where you go, but you
13 were in Bratunac in the morning. Very early you go to Zvornik Brigade.
14 You come back to Bratunac. And according to you, around noon that day,
15 you, with the convoy of prisoners, set off from Bratunac to Zvornik;
17 A. Correct.
18 Q. Now, that means you drive past the Kravica warehouse again;
20 A. Correct.
21 Q. Mr. Karadzic's witness here, Aleksandar Tesic, at T 35324 to
22 35326, says he left Bratunac at about 11.00 that day. He's not exactly
23 sure, between 10.00 and noon, and he sees 200 to 300 bodies stacked up a
24 metre and a half high in front of the Kravica warehouse. Did you happen
25 to notice that when you were passing by the Kravica warehouse for the
1 third time in these two days?
2 A. Well, you see, I remember that day as we were passing that the
3 corpses were covered with hay. Now, was it at that moment or when we
4 were returning from Zvornik, I cannot say for sure. But the corpses were
5 covered with hay. Perhaps this left some impression on him that this was
6 a heap and all the rest, but it was hay. I think this was done on the
7 evening of the 13th -- no, not on the 13th in the evening, but the 13th
8 immediately afterwards or on the 14th because of the transportation on
9 the road. And I remember for sure that the corpses were covered with
10 hay. So please -- anyway I'm telling you all of this to the best of my
12 Q. Okay. And you also know that your superior, Colonel Beara, on
13 the night of the 13th ordered that the bodies from the Kravica warehouse
14 be buried in Glogova.
15 MR. NICHOLLS: That's at P00345, e-court pages 12 to 13,
16 Your Honours.
17 Q. You know that, night of the 13th, while you were asleep, I guess,
18 according to you, Beara ordered somebody to take all those bodies out of
19 the warehouse and bury them in a pit in Glogova?
20 A. Mr. Nicholls, how can I know that at that point in time, that he
21 ordered that and -- I mean, I did not know then.
22 Q. Okay. So -- just so I try to understand, I think what you're
23 trying say is that -- well, you don't dispute that he ordered that, do
24 you? That was proven in your own trial. Are you disputing that he
25 ordered the bodies to be buried?
1 A. I cannot confirm it or deny it because then I did not know about
3 Q. Okay. So -- so you and Beara are in Bratunac. You and Beara are
4 staying at the Hotel Fontana on the night of the 13th. Beara is ordering
5 all the bodies buried who had been murdered at Kravica warehouse that
6 day. You are his direct subordinate in the professional line and you're
7 isolated in some kind of bubble where you don't know what's going on.
8 That's the story; right?
9 A. Not my story, Mr. Nicholls. If you read the statement and if you
10 look at the sequence of events that followed and the statements of other
11 people, that's it. I went to sleep. I had barely slept the previous
12 night. Now, he was there with Pecanac, and where he went after that and
13 who he saw and what he did, I don't know. As a matter of fact, it was
14 only here at the trial itself that I found out that he was asking for
15 some machine and these talks, and I simply don't know. I was asleep at
16 the time.
17 Q. Just so you know, you keep referring to it's in your statement.
18 I've read it. I don't accept what's in your statement. I'm just giving
19 you our position. We don't accept that you were truthful in your
21 All right. Now, let's go further on on the 14th -- sorry, one
22 more question on that.
23 The other evidence in this case is that the civilian protection
24 knew the bodies were being buried, that Miroslav Deronjic and the
25 authorities in Bratunac knew that the bodies were being buried in
1 Glogova. You drive right past the Glogova mass burial site on the 14th,
2 which is the day they're being buried there, and you're still saying you
3 didn't know about it; right?
4 A. We have to clarify the bit before that and then we're going to
5 deal with this. First of all, you know during the investigation who
6 talked to Beara when and you know that I did not attend these
7 conversations. You can say that you're not taking my statement into
8 account, but you know that I was not present during these conversations.
9 Secondly, on the morning of the 14th, there weren't -- there
10 wasn't any digging going on at that time. I did not notice this on the
11 other side of the road, about 100 metres away, 200 metres away, I really
12 wasn't paying attention. I was leading the convoy. Well, in the morning
13 it wasn't, maybe it was in the afternoon, but I did not notice. So why
14 say that?
15 Q. Okay. 14th of July, Orahovac, that's what I'm going to talk to
16 you now about, the 14th of July, Orahovac, the school. In your trial,
17 you contested evidence that placed you at the school in Orahovac, and
18 that's laid out in your final brief in that trial at paragraphs 493 to
19 495, where you challenged the testimony of a military policeman who said
20 you were there. And that didn't work. In the judgement at
21 paragraphs 1108 to 1112, the Trial Chamber, the honourable Trial Chamber,
22 found that you were present at Orahovac. And so what you've done in this
23 statement now, now that your Defence said, "I wasn't there at all,"
24 didn't work, is come up with a story to fit your presence at the Orahovac
25 school, once again as an innocent bystander; right?
1 A. I don't remember that at all, that we claimed, yes, no. I said
2 to the best of my recollection what the time was when I was there and for
3 how long I was there. That can be confirmed.
4 Q. Okay. Now I want to talk about how you describe the conditions
5 and the way the prisoners were treated at the school, and you can look at
6 it if you want. This is paragraph 50 of your statement.
7 "I arrived in front of the school in Orahovac at about 1.00 in
8 the afternoon. There were many people dressed in civilian clothes and
9 military uniforms there. The prisoners of war had already been put in
10 the school sports hall. I looked into the hall from the door and saw
11 that some prisoners were sitting on the floor, while others were standing
12 or moving about. There were between 400 and 500 prisoners in the hall.
13 In front of the school, there were between six and eight buses and some
14 people were still on them because the security guards thought they would
15 lose control of the prisoners if they too were put in the sports hall.
16 These buses were sent to some other place."
17 That's what you say in your statement. Some prisoners are
18 sitting on the floor, others are walking around, and that the remaining
19 prisoners were sent somewhere else. Now, I'm putting it to you, you are
20 not telling the truth. That you are saying there was plenty of room and
21 people were walking around and comfortable and then the remaining
22 prisoners were taken somewhere else in order to hide the terrible,
23 terrible conditions those prisoners were kept in in that gym before they
24 were executed?
25 A. Mr. Nicholls, that is absolutely not correct. I have no reason
1 to hide that because that's really the way it was. That's really the way
2 it was. You were there and you saw it, that 2 and a half thousand people
3 fit in that room, that is simply impossible. And I brought 30 buses.
4 Nobody was standing there. And one longer bus. Quite simply, it's not
5 correct. This hall was not crowded. Some were sitting there, some were
6 standing, some were walking. A school desk was in there too. It was a
7 bit in front of the door, and water was distributed through that desk.
8 They would take water, empty the other vessels, and so on. Simply, that
9 is not correct. There is always exaggeration on the other side too, you
10 have to understand that.
11 Q. Okay. That's really the way it was. That's what you said.
12 Let's hear what the people who were kept in the hall said about the way
13 it really was.
14 MR. NICHOLLS: KDZ039, Your Honours, protected witness. His
15 statement is P03940, I'm talking about e-court pages 34 to 35 now.
16 Q. "While there were just a few of us, the ones who arrived with the
17 four buses" - and, I'm sorry, I'll say this man arrived on the night of
18 the 13th - "the conditions were all right. But when the warehouse got
19 full and when the last trucks and buses had been -- brought people in and
20 when no more could enter the gym, then we were told to stand up, to face
21 the door, and to step backwards, and then we were stepping backwards.
22 And they were firing over our heads and saying: Back, back, back, we
23 will shoot you. And that's what we kept doing until we made rooms for
24 even the last ones to enter. And then when they entered, we were told to
25 sit down. And then when we sat down, those who managed to sit down first
1 were able to sit down. The others could only sit in our lap. There was
2 no more floor space for others to sit and that's when it got very stuffy,
3 tight, and we wanted to suffocate."
4 I'll read you one more. KDZ064, who was there on the 14th,
5 convoy you brought.
6 "How full was the sports hall when you entered it?
7 "When I entered, over half of it was full. And when everybody
8 entered, there was very little space left, but we all sat down crunched
9 and squeezed. We were sitting so tight that we could not move from the
10 place that we were assigned. Nobody offered us any food. Some prisoners
11 were asked to bring water but there were just too many of us. If they
12 started from one end, they could only give water to two lines of people,
13 so we were always thirsty. If you didn't experience that, then you can
14 never know that water was the most beautiful thing in the world. Nobody
15 wanted bread, but if somebody had brought you water, I believe that we
16 would have drank 2 litres at once. That's how important water is. And
17 that's why I'm saying today that water is even more important than bread.
18 We were thirsty, and if you have never been thirsty, you don't know the
19 feeling. You cannot imagine the feeling."
20 MR. NICHOLLS: That's at P00769, Your Honours. E-court page 98.
21 Q. That man couldn't walk up to a table and get a glass of water.
22 Are you saying these men in that school you took them to are not telling
23 the truth?
24 A. I have no comment to make on this. Maybe there are truthful
25 things in that, but I'm telling you the hall was not so overcrowded. We
1 gave them water. They took it over the heads of other people and
2 returned the jugs. I believe there were five to six or eight guards
3 there, and it was a problem for them to guard all these people. And
4 everybody who gets out exaggerates their story a little. I mean,
5 everybody exaggerates, why not? I'm really sorry that any of this
6 happened, but some of these things really don't hold water. They're not
8 Q. All right. So you're saying those statements -- all right. All
10 Rocevic school where you also admit to being on the 14th. We're
11 not to your 15th alibi yet, 14th, Rocevic school. You basically try to
12 paint the same picture. This is your statement, paragraph 52.
13 "... I saw about 200 or 300 prisoners. I noticed canisters with
14 water at the front door. Some locals had brought some bread."
15 Testimony in this case from Srecko Acimovic, P00343, e-court
16 page 10, he's talking about being at the school on the 14th.
17 "I heard shouts from the gym. People were screaming for water.
18 They wanted to go to the bathroom. The temperatures were running very
19 high around that time."
20 MR. NICHOLLS: And if I could go to private session for one
21 moment, Your Honours.
22 JUDGE KWON: Yes.
23 [Private session]
11 [Open session]
12 THE REGISTRAR: We are in open session, Your Honours.
13 MR. NICHOLLS: Now we may need to be careful. We're in open
14 session. I don't know what Mr. Karadzic is going to say to clarify.
15 JUDGE KWON: Mr. Nicholls, the purpose of going into private
16 session was to tell the name of the witness in question?
17 MR. NICHOLLS: Also that --
18 JUDGE KWON: The situation that may identify the witness.
19 MR. NICHOLLS: Yes.
20 JUDGE KWON: Yes, I now see the point.
21 MR. NICHOLLS: Yes.
22 JUDGE KWON: Yes, Mr. Karadzic.
23 MR. NICHOLLS: And, sorry, Your Honours, that testimony --
24 that -- what I read out was in private session in the previous case, I
25 believe, that's why as well.
1 JUDGE KWON: The transcript was admitted?
2 MR. NICHOLLS: Yes.
3 JUDGE KWON: Pursuant to Rule 92 bis?
4 MR. NICHOLLS: Yes.
5 JUDGE KWON: Yes, Mr. Karadzic.
6 THE ACCUSED: [Interpretation] In the interpretation -- I mean,
7 the interpreters did not catch what five to a square metre was. We did
8 not get in interpretation -- I mean the witness did not get in
9 interpretation what it means.
10 MR. NICHOLLS: Five persons per square metre. I think I can say
11 that in public session, prisoners inside the gym.
12 Q. Now, you are again not telling the truth about the conditions in
13 those schools because the way those prisoners were kept in those schools
14 when you were there indicated that they were not being sent for exchange,
15 that they were not being treated the way prisoners who were going to
16 exchange are going to be treated, that they were treated as people who
17 were going to be killed, which is why you're minimising those terrible
19 A. Mr. Nicholls, when he says five to seven people per square metre,
20 I know very well when we learned at school, at demonstrations, how many
21 people can fit in a square metre, three to four. Five to seven is simply
22 impossible. And I'm telling you, in that hall there were no more than 2
23 00 to 300 people because they were walking around the hall. And I know
24 there were problems with water, and I said that big canisters should be
25 provided and water distributed because the water-supply was off at the
1 hall. It was summertime. There was some problem with the water-supply,
2 so I ordered water to be provided. And I'm telling you it's not true
3 that there were more than 2- to 300 people. I have no reason to lie and
4 I'm not -- I have no reason to exaggerate the numbers.
5 Q. Well, I'll let that pass.
6 You realise that the people held in the Rocevic school, the ones
7 you just admitted you were dealing with and deciding how much water they
8 should get, were executed at Kozluk; you know that, right, on the 15th?
9 A. I learned that.
10 Q. And you know that over a thousand people were murdered at Kozluk
11 and they all came out of that gym?
12 A. I am telling you again and I can swear before any god, there were
13 no more than 2- to 300 people in the hall. There's no question of 500 or
14 a thousand. I formed a convoy of 30 buses, one trailer-truck, and one
15 longer bus. So many people cannot fit in that number of vehicles.
16 100 buses would be needed, and there's no reason to inflate anything.
17 Q. Well, you keep saying -- and I have to put this to you. You keep
18 saying you have no reason to lie. You've been sentenced to life in
19 prison. You don't have much to lose by coming here with a whole new
20 story that puts you as an innocent bystander at virtually every detention
21 and execution site, do you?
22 A. Precisely for that reason I want to tell the truth, that things
23 are not so black and white as they are represented.
24 Q. Let's finish up the 14th. And talking about presenting the
25 truth, at your trial, for the 14th of July in the afternoon, you
1 presented a false alibi to cover up your participation, direct
2 participation, in the Orahovac executions. Do you remember that you
3 called Gordan Bjelanovic as your witness? Do you remember calling him?
4 He's your alibi witness for --
5 A. Yes.
6 Q. He couldn't even keep his story straight about where he was
7 during the week of 9 to 15 July, do you remember that? That was at
8 T 22094 in your trial, where Judge -- the honourable Presiding Judge in
9 that case, Judge Agius asked your alibi witness:
10 "But when you made the statement to Mr. Petrusic," which
11 conflicted with the statement he made for you, "did you lie to him, when
12 you said that you were near Potocari on the 12th of July? And if you
13 did, why? What interest did you have to lie to him?"
14 The witness gave a completely incoherent answer:
15 "No, I did not lie. When I used to come there with
16 General Krstic because ... I used to go to Vlasenica but not only in his
17 car and not only General Krstic, and I know that I was bringing some
18 pills, not with his car. We used to come with another car. So it's not
19 like that day --"
20 And then he trailed off. And the Trial Chamber in your case,
21 paragraphs 1114 and 1115, found that.
22 "... Bjelanovic's uncertainty about times and dates, the
23 Trial Chamber finds that Bjelanovic's testimony does not raise a
24 reasonable doubt that Popovic was in the Zvornik area on 14 July."
25 And that's true, isn't it, you provided a completely false alibi
1 in your case that didn't work?
2 A. What you have just put, I don't understand half of it. There's
3 one date, 12th, 14th, then back to 13th. I don't remember really
4 everything that this gentleman, Bjelanovic, stated. But I know that on
5 the 14th I was up there. And if he was uncertain about the date, it's
6 quite normal after so many years had passed. And after all, it was not
7 my intention to put forward a false witness. My Defence team was the
8 only one that didn't do things like that.
9 Q. Let's move on to the 15th of July now, the next day. And in
10 paragraph 58 of your statement, you talk about going to the
11 10th Sabotage Detachment base in Dragasevac with Dragomir Pecanac. He
12 asked you to accompany him. You sit and wait in the car for 10 to
13 15 minutes and do nothing, and then you leave. Then following on on your
14 statement, paragraph 59, you go to Sekovici to see your brother, the vet.
15 You go -- agree to meet in a restaurant in Lovnica. You go to the
16 restaurant. Your brother doesn't show up so you just have lunch. Then
17 you go back to the Drina Corps command.
18 Now, unless my memory is very -- unless I'm mistaken, you didn't
19 call your brother in your case, did you, to come up with an alibi for the
20 15th, that you were wandering around Lovnica by yourself, waiting for
21 your brother to show up for lunch?
22 A. Why would I call my brother to testify to my alibi if we had a
23 witness who said that on that day, around that time, he told me -- he saw
24 me outside, and Pecanac was there for a while and after that he left.
25 And second, I know -- I can imagine what you would have to say if only I
1 had called my brother. There would be even more talk about false alibis
2 and false witnesses. That's why I didn't call him.
3 Q. Well, I'm saying this is a false alibi because on the
4 15th of July, you want to find some way to say you weren't at Rocevic
5 where you were seen on the day that the prisoners were taken from Rocevic
6 and murdered; right?
7 A. Before that I'd like you to tell me who saw me there.
8 Q. Just --
9 A. So it's not correct.
10 Q. Just so you know - and you know who saw you there - you can't ask
11 me questions. Okay? I ask the questions, you answer them. It's not a
12 conversation. Unfortunately, that's the way trials work. So let me tell
13 you, though, I will tell you because that was my next point. This is at
14 paragraph 1118 from your trial judgement. Srecko Acimovic, who I know
15 you attack, but Srecko Acimovic testified they found that you were there
16 at Rocevic asking for soldiers to carry out the executions on the
17 15th of July. And my -- I'm putting it to you that's exactly what you
18 were doing.
19 A. Unbelievable. If I could have cheated the laws of physics, then
20 at the time when I was at the Dragasevac, I could have been at the same
21 time somewhere else with Srecko Acimovic. And Srecko Acimovic invoked
22 two other witnesses to confirm it. Those witnesses came and said it's
23 nonsense. They said they had seen a tall man near a Campagnola, whereas
24 I was sitting in the Golf. They didn't mention Popovic. Those were the
25 men who he invited to corroborate his testimony. And we can discuss the
1 logics of his testimony.
2 Q. I won't -- I'm not talking about you going to Dragasevac to the
3 10th Sabotage base that morning. But according to your testimony, on the
4 15th of July, in the heart of the murder operation, right when the column
5 of Muslims is heading towards Zvornik, you essentially have the whole
6 first half of the day off, that's what your statement says, because you
7 go on a trip to Dragasevac and sit in the car for 10 to 15 minutes and
8 then you go for a long lunch with your brother who doesn't show up.
9 A. What are you trying to say? A column is moving and then Popovic
10 gets out and stops the column? There are other people who are doing
11 their jobs. Popovic was doing his job. On that day he was at his
12 office, doing his job. A man comes up. We go out for a drink to get
13 some rest, and then we go on. I worked from Saturday to Tuesday
14 sometimes until 1.00 or 2.00 a.m., many days in a row. Please.
15 Q. And I'm -- what I'm putting to you is on that day, the 15th, you
16 were doing your job and your job was to make sure that all the prisoners
17 in custody at Rocevic were killed?
18 A. Mr. Nicholls, let's try to be a little logical in our discussion
19 about the 15th. According to you, Popovic was twiddling his thumbs.
20 There's no ammunition, no men, no vehicles. He doesn't know where the
21 executions would take place and he came to do something. What kind of
22 officer is he? What does he know? Who orders the ammunition? Who
23 orders the trucks? Who indicates the place where the executions would
24 take place? Srecko Acimovic. Let's just try to be a little bit logical
25 and then everything will be easy.
1 Q. Well, I'll move on, but since -- I may need a moment to bring it
2 up, but there was very clear evidence, since you asked who ordered the
3 ammunition, that crates of ammunition went from the Zvornik Brigade
4 logistics department and were delivered to Rocevic on the 15th of July
5 and they were then used to execute the prisoners. So it came right out
6 of the Zvornik Brigade command, and I'll try to find the cite for that.
7 Let's move on to the 16th of July. This is in paragraphs - you
8 don't need to read them, I'm just saying for the Trial Chamber - 66 to 75
9 of your statement. And on the 16th of July, according to you, you were
10 at the school, and we agree, you were at the school at Pilica that day
11 with Colonel Beara; right?
12 A. Right.
13 Q. And even by your own statement, paragraph 63, which, again for
14 the record, I don't accept, but according to your statement, this is a
15 day after you've learned that all the prisoners who were at Orahovac,
16 Rocevic, and Petkovci had been murdered; right? So the 16th of July,
17 you're at the school in Pilica with Beara and you've been told by Trbic,
18 according to you, that all the prisoners have been murdered from the day
19 before; right?
20 A. That was on the evening of the 15th.
21 THE ACCUSED: [Interpretation] Can I just ask for more precision.
22 Is it said in the statement that all -- I can't find this term "all
24 MR. NICHOLLS: This is paragraph 63:
25 "On this occasion Trbic" --
1 THE INTERPRETER: Mr. Nicholls is kindly asked to read a little
2 more slowly, please, for the interpreters.
3 MR. NICHOLLS: My apologies. Paragraph 63 --
4 JUDGE KWON: It just says "prisoners." It neither says all nor
5 part of the prisoners.
6 MR. NICHOLLS: No. But what it --
7 JUDGE KWON: Shall we continue?
8 MR. NICHOLLS: It does say "the prisoners."
9 Q. Well, let me just ask you that: Do you dispute that all the
10 prisoners at Orahovac, Rocevic, and Petkovci had been executed, other
11 than the few survivors who we know about? That's what Trbic, according
12 to you, told you; right?
13 A. I learned that from Trbic on the evening of the 15th when I came
14 to the command of the Zvornik Brigade.
15 Q. Thank you. Now let's look at your story for the 16th of July.
16 We already talked about you being at the school at Pilica. Paragraph 70
17 and 71 of your statement, you see corpses outside the school.
18 Paragraph 70, you see the prisoners being put on buses. You hear about
19 an escape of prisoners, this is in paragraph 71. So Beara tells you to
20 go check that out, find out about it. Sorry, paragraph 70, not 71. And
21 so you go to the 1st command. You ask a local man who's chopping wood if
22 he's seen any strangers. You stop for a cup of coffee. You have a
23 little rest. Then you go back to the school and you find out that Beara
24 has gone to Pilica.
25 So that's the Pilica school story; right? You show up there,
1 knowing about the murder operation, see some dead bodies, and just kind
2 of wander around for a bit, have a rest, have a cup of coffee, and then
3 come back?
4 A. And the question is?
5 Q. That's correct, right, what I just summarised? That's what you
6 do that day at the school?
7 A. Well, it's a rather liberal reinterpretation with a dose of
8 irony. For the most part that's it, but it's your own very liberal
10 Q. Thank you. But for the most part it is it, you say.
11 Then you go to Pilica and Beara's at the restaurant right across
12 from the Pilica Dom or cultural centre. And there are prisoners held in
13 the cultural centre, and Beara wants you to get the keys -- he wants the
14 keys to the local commune building so he sends you to get them. You go
15 to this person's house. He's not there. You wait for a while because
16 his mother says he'll be back from work soon, and then she gives you the
17 keys because you're being quite polite. This is all in paragraph 71.
18 And then at that moment you hear a burst of gun-fire from the direction
19 of the cultural centre. And you run back to the cultural centre after
20 hearing this burst of gun-fire, and Beara tells you, he's in the
21 restaurant: These drunken idiots killed the prisoners; right? That's
22 what happened?
23 A. Yes.
24 Q. Okay.
25 A. But again, I can say you are reading it the same way you did
2 Q. Now, the scene at the Pilica Dom, which just so you know -- well,
3 you do know because it happened in your case, but also in this case the
4 honourable Trial Chamber has been to the Pilica Dom, just so you know.
5 Let me describe the scene to you there at the Dom. And we have no
6 survivors from that execution site that we know of, nobody survived, so
7 there's no testimony I can read to you about the conditions. But this is
8 what the clean-up crew described the scene as.
9 This is Jevto Bogdanovic in this case, 92 bis, P00385 at e-court
10 pages 16 to 23, describing the scene inside, the bodies.
11 "Well, some were curled up, some were stretched out. There was
12 this huge pile and they were piled up, one over the other. They were
14 "Q. Were you drinking ... that day to sustain yourself?
15 "A. Yes. We did." And he says they were drinking rakija.
16 "Q. Where did you get that?
17 "A. Neighbours, the locals, brought it -- that to us. We drank
18 for courage, to be able to sustain looking at the blood and the bodies
19 and the brains of the people."
20 Now, he and the other members of his workers' platoon, according
21 to the evidence in your case, loaded the bodies onto two trucks, two
22 truckloads of bodies come out of the Pilica Dom. And loading the bodies,
23 he said they worked from morning to 3.00 p.m. That's 22 of that case.
24 And your trial judgement - the question is in a moment, I'm describing
25 the scene to you in case you don't remember - paragraph 543, the
1 Trial Chamber found that two tipper trucks were used and that inside the
2 Pilica cultural centre there were corpses piled up on each other, lying
3 scattered all over the place.
4 Two truckloads of corpses, and your story is that you heard a
5 burst of fire?
6 A. I'm sorry, maybe you didn't read it well. I heard bursts of
7 fire. It was not one or a burst of fire. It was firing that lasted for
8 several minutes, 10 to 15, 10 for sure. So bursts of fire was rather
9 what I said. How it was translated to you, that's something I wouldn't
11 Q. Well, what your statement says at paragraph 22 is:
12 "At that moment, a burst of gun-fire was heard from the direction
13 of the cultural centre."
14 Well, you tell me, if you've got -- if you've got 500 men crammed
15 into the Pilica Dom, you were there, how long does it take to shoot
16 500 men?
17 A. How would I know how long it takes? I did not make the norms.
18 Never in my life did I, that's why -- but you're not right when you
19 say -- that you say that from paragraph 79. I will read it out to you
20 from my statement which I believe to be authoritative. It says: "Bursts
21 of fire were heard at the moment." That's how it reads in my version,
22 not "a burst of fire." As the men were crowded --
23 JUDGE KWON: Just a second.
24 THE ACCUSED: [Interpretation] 72 --
25 JUDGE KWON: Yes, it's 72.
1 MR. NICHOLLS: I --
2 JUDGE KWON: Shall we upload the -- both versions.
3 MR. NICHOLLS: And, Your Honours, I'll accept that possibly it
4 says "bursts." It doesn't change my cross a whole lot so we don't need
5 to spend too much time on it.
6 JUDGE KWON: Very well. Then let's continue.
7 MR. NICHOLLS: Your Honour, Mr. Popovic has a question.
8 THE WITNESS: [Interpretation] Mr. President, if you would allow,
9 it has been quoted again wrongly. It doesn't say "bursts of fire," but
10 it says "bursting fire," that's what it literally says. There is no
11 limitation. It wasn't a burst of fire, but it was firing coming in
12 bursts, which denotes that it came from a number of weapons.
13 MR. NICHOLLS:
14 Q. Okay --
15 JUDGE KWON: Just a second.
16 I said to upload the document a minute ago but it's not there
17 still. Okay. Let's continue.
18 MR. NICHOLLS: All right. And maybe we should have it because
19 I'm going to continue reading from paragraph 72 in a minute.
20 Q. Your statement, I'm reading the English, Mr. Popovic, you say:
21 "We were surprised because we did not know who was shooting in a
22 populated area. I went outside to see what was happening and went
23 towards the restaurant from which we had come. In the restaurant I found
24 Beara who told me, 'These drunken idiots killed the prisoners.'"
25 So I'll go back to my question. You've clarified it wasn't just
1 a burst. You were there. How long did it take to kill all 500 men in
2 the Pilica Dom? How long were people shooting those prisoners?
3 A. Mr. Nicholls, I really don't know for how long they were
4 shooting, but I know that it wasn't a single burst of fire. It was heavy
5 firing from automatic weapons which lasted for some time. And I think
6 that to the best of my recollection perhaps one grenade may have been
7 thrown. I don't know. But that was certainly that.
8 Q. I was just going to ask you about grenades, but you've confirmed
9 that you heard at least one grenade. Now, I have a little -- I won't
11 How is it that you're at a mass execution site, if we're to
12 believe you, you're innocent and have nothing to do with it, and you
13 can't remember how long it took to kill these 500 men? You would think
14 you would remember how long. I think you're minimising -- you're
15 minimising the time because you were there. You were there while they
16 killed 500 men.
17 THE ACCUSED: [Interpretation] Objection.
18 THE WITNESS: [Interpretation] No, no, no.
19 JUDGE KWON: Mr. Karadzic.
20 THE ACCUSED: [Interpretation] Objection. The witness is not
21 defending himself. He is stating what he knows.
22 JUDGE KWON: It's not a proper intervention.
23 Do you remember the question, Mr. Popovic?
24 THE WITNESS: [Interpretation] I would like Mr. Nicholls to repeat
25 it, please.
1 MR. NICHOLLS:
2 Q. I'm going to ask you again. I'm putting it to you you're
3 minimising or being wishy-washy on how long it took to kill these men
4 because you were there and so you don't want it to be a long time when
5 you could have done something about it. You're -- what you're saying is
6 that you hear the gun-fire and you rush back and by then it's all over,
7 and you're saying that because you're there at the execution site.
8 That's why I'm asking you: How long did it take to kill all those men?
9 How long did you hear bursts of gun-fire for?
10 A. To answer you, I really did not look at my watch, but those
11 bursts of fire, the firing certainly lasted for 10 or 15 minutes. I was
12 not at the very location. I came to the cafe restaurant and that was why
13 I asked: What happened? And he said: The drunken idiots that we had
14 found there -- they had already been drunk. I can even describe one who
15 was swaying on his feet next to the bar and he had an M84 machine-gun.
16 So he said: Those drunken idiots killed them, and that's it. I'm not
17 defending, I'm not minimising in any way. I just remember about this
18 grenade. Was it one or two? I don't know. But I remember that there
19 was a detonation.
20 Q. Okay. Well, from the places we do have survivors from, Orahovac
21 execution site, Kravica execution site, we know and the pattern is that
22 it's very hard to kill 500 or a thousand men all in one go. So at those
23 execution sites -- and, excuse me, Branjevo, what happened is after the
24 bursts of fire, somebody had to walk around shooting the remaining living
25 prisoners and killing the ones who had survived. So while you were at
1 the Pilica Dom restaurant right across the street, who was going around
2 shooting the survivors? Or how were the survivors killed?
3 A. I suppose that those who had shot were doing this. I don't
4 suppose that an officer went out and went around, but those who had been
5 shooting anyway, they went there and then finished it off. I don't have
6 a different answer to that.
7 Q. And were you having a coffee or a beer or a rakija in the
8 restaurant while these unknown soldiers were finishing it off? Because
9 your statement doesn't say: After I heard these bursts of fire and came
10 back, I heard isolated shots, or anything like that.
11 A. Mr. Nicholls, a statement can never contain everything. You
12 might recollect something later on, but I told you the main things. I
13 can suppose that they finished the task that they had. But whether we
14 were drinking coffee or beer at that time, I really wasn't drinking.
15 Some people did and they were half drunk, if not completely drunk.
16 Q. Okay. Now, just like Kravica, if we're to believe your story
17 that you're not part of this, what do you do to go into that Dom and try
18 to get medical help for any survivors? What did you do to try to save
19 anybody there if you were innocent and not part of this? Nothing, right?
20 A. No.
21 Q. Thank you.
22 A. But maybe I could explain a little. I did not try -- because,
23 look, when you are in the presence of your superior, then usually you
24 look at what your superior is doing. He assumes the responsibility, and
25 it would turn out that I was acting as if I was his superior and taking
1 initiative on myself. The one who is the superior assumes complete
2 responsibility. At the moment I simply didn't -- it was also a moment of
3 shock, and at this moment I simply couldn't, when he was there, take any
5 Q. And just to be very clear for our record, when you say "he," you
6 mean Colonel Beara?
7 A. Yes.
8 Q. Okay. Let's look at some of the evidence from the trial about
9 you on this day.
10 MR. NICHOLLS: Could I have P05077.
11 Q. You know all about these from your trial, no surprises. This is
12 the intercept of your conversations that day. Not your conversations, I
13 apologise, conversations about you. All right. This is 16 July 1995,
14 1358 hours. Zlatar, who we can agree is Zvornik Brigade, duty officer
15 calling Palma -- sorry, Zlatar, Drina Corps, speaking with Palma,
16 Zvornik Brigade. And Palma, Zvornik Brigade, calls and says:
17 "Hello ... give me the duty officer.
18 "A. Yes?
19 "Palma duty officer speaking. 500 litres of D2 /diesel fuel/ for
20 Lieutenant-Colonel Popovic.
21 Drina Corps: "For Lieutenant-Colonel Popovic?
23 I don't have that much time so I'll try to move through this
24 quite quickly. If we go further down, after the line disconnects, we see
25 the second conversation, again between Drina Corps and Zvornik Brigade.
1 "Hello! Is that Basevic?
2 "Yes, it is.
3 "The guys at Zlatar didn't understand well. I asked for the duty
4 officer, you know?
6 "Lieutenant-Colonel Popovic is here at Palma, you know?
8 "Popovic is at Palma.
10 "500 litres of D2 are urgently being asked for him or else the
11 work he's doing will stop."
12 Basevic: "Well, fuck him, don't you have 500 litres of oil?
13 They're asking for 2 tonnes loaded.
14 "Well, I don't know. He just called me from the field. He told
15 me to pass the message over to you."
16 If we can go over to the next page. And I'll go to the third
17 conversation here.
18 "Give me the operations duty officer. Is Major Golic there by
21 That's Pavo Golic, right, Mr. Popovic, Pavo Golic is at
22 Drina Corps?
23 A. Majo Golic, yes.
24 Q. "Golic, Pop just called and told me to contact you. 500 litres
25 of D2 have to be sent to him immediately, otherwise his work will stop.
1 "500 litres or else his work will stop. Go on right away.
2 "... a bus loaded with oil is to go to Pilica village. That's
4 "500 litres."
5 And then they talk about the tank.
6 So on the 16th of July, you're in Zvornik Brigade AOR and you're
7 requesting 500 litres of D2. And before I ask you the question about it,
8 let's just look at the duty officer notebook which also refers to this
9 same conversation.
10 MR. NICHOLLS: That's P04585, e-court page 81 in the Serbian,
11 82 in the English, and it needs to be the second translation of the duty
12 officer notebook if that makes sense.
13 THE ACCUSED: [Interpretation] May I just ask the learned
14 Mr. Nicholls, I do not want to meddle, but I'm afraid that perhaps too
15 many elements may accumulate in one question. Perhaps he could deal with
16 them one by one.
17 JUDGE KWON: Yes --
18 MR. NICHOLLS: I think it will be a very simple question.
19 JUDGE KWON: Yes, let's deal with these intercepts first. We'll
20 come back to the duty officer's log-book.
21 MR. NICHOLLS: All right.
22 Q. Well, what these intercepts show, don't they, Mr. Popovic, is
23 that that day, 16 July --
24 JUDGE KWON: Shall we go back to the intercept.
25 MR. NICHOLLS: Yes, sorry. 05077 is the intercept.
1 Q. While it's coming up, you've read this intercept many times for
2 your trial. Zvornik Brigade duty officer, who we say is Trbic at this
3 time, is calling Palma saying that you've requested 500 litres of D2 or
4 your work will stop at 2.00 and it needs to go to Pilica. Your story is
5 that you're kind of tagging around behind Beara in Pilica, not really
6 doing anything. Why do you need 500 litres of D2 fuel while you're in
7 Pilica on the 16th?
8 A. Well, let's explain now. It's obvious from this conversation
9 that the duty operations officer is asking for 500 litres of fuel in my
10 name. Now, I wonder if I called the duty officer and told him that, I
11 would have had to call the communications centre in the Zvornik Brigade
12 and ask for the duty operations officer. As soon as I got in touch with
13 the communications centre in the Zvornik Brigade, I could have in the
14 same manner called the communications centre of the Drina Corps, because
15 that was the man I needed, and ask for the oil. I claim that somebody
16 was asking for the oil in my name. I certainly didn't need it, and later
17 on we'll see where it was used. Because to request something and not to
18 use it, why?
19 Q. Well --
20 A. Where was it poured? When did it arrive?
21 Q. So you don't dispute the authenticity of this intercept? You're
22 saying somebody else called in your name, but you don't dispute that this
23 is an authentic intercept of a phone conversation that day?
24 A. Well, in essence, we tried to show that it was not valid when we
25 presented our defence. What I deny is that I was requesting that
1 personally in my name. Why would I take the longer route when I could
2 have taken the more direct one, and when I was supposed to go up to
3 Parlog I called directly the duty operations officer. Why wouldn't I
4 have called directly in this case? I think that someone used a bit of --
5 we'll see in the end where it was poured, who received this oil.
6 MR. NICHOLLS: Now could we go to the duty officer notebook,
7 please, unless Your Honours have questions about the intercept. So
8 e-court page 82 of the English of the second translation, that's correct,
9 and 81 of the Serbian.
10 Q. All right. Zvornik Brigade duty officer notebook for
11 16th of July, same day as the intercept, 1400 hours is written there, two
12 minutes after the intercept we just looked at. It states:
13 "At 1400 hours Popovic requested a bus with a full tank and
14 500 litres of D2" --
15 JUDGE KWON: Just a second. Is it the correct page in B/C/S?
16 THE WITNESS: [Interpretation] It's not here.
17 MR. NICHOLLS: No. It's ERN 02935766, so three pages earlier in
18 the Serbian.
19 JUDGE KWON: No.
20 MR. NICHOLLS: Oh, no, sorry, 66. My mistake.
21 JUDGE KWON: 02935766.
22 MR. NICHOLLS: That's right.
23 Q. So, Mr. Popovic, what was written in the duty officer notebook on
24 the 16th of July, that you -- it says:
25 "... Popovic requested a bus with a full tank and 500 litres of
1 D2 ..."
2 And then just as we saw in the intercept, it says:
3 "... Zlatar duty officer and Golic informed."
4 A. I do not deny that that is what it says here, but I really
5 wonder, why would I need a bus with a full tank? And another thing, I
6 repeat once again, I did not request the fuel, I personally. What would
7 I use it for?
8 Q. Well, what you would use it for is transporting --
9 A. Yes.
10 Q. -- and murdering the Muslims in Pilica and Branjevo that day,
11 bringing them from the school where you were that day, you admit, to
12 Branjevo Farm and murdering them. You were using that fuel for the
13 murder operation. That's what you would use the fuel for, what you were
14 found guilty for.
15 A. Mr. Nicholls, to the best of my recollection, as I remember some
16 of the statements, the transport of prisoners from the school in Pilica
17 was finished around after 2.00. And when the fuel arrived, who needed it
18 then? And another thing, Mr. Nicholls, it's visible, and you showed it
19 from vehicle work logs of machines, that they were filled up with fuel at
20 their own gas stations. And thirdly, if these buses, if their tanks were
21 filled with this fuel, then the vehicle logs would have to include this
22 information, that their tanks were filled, because otherwise they would
23 have to show what they did with it. You said, I think yourself, that it
24 was black gold for us. And here it seems: Well, you use up 500 litres,
25 never mind, just give it to me. So there are vehicle work logs, both for
1 the buses and for construction machines. So we can look at that and then
2 check if it's true what you are claiming.
3 MR. NICHOLLS: P04669, please, quickly, before the break.
4 JUDGE KWON: Shall we deal with it after a break?
5 MR. NICHOLLS: Of course, Your Honour.
6 JUDGE KWON: Yes. The Chamber will have a break till 11.00.
7 MR. TIEGER: Mr. President.
8 JUDGE KWON: Yes, Mr. Tieger.
9 MR. TIEGER: Excuse me --
10 MR. NICHOLLS: Sorry.
11 MR. TIEGER: I know the Court wishes to break now, so I will
12 defer my comments, but I wish to be heard on a courtesy copy of a motion
13 for leave to reply which we received before the Court considers that. I
14 can do that at the beginning of the next session.
15 JUDGE KWON: I would like to hear you now.
16 MR. TIEGER: Certainly. Let me begin by noting that I once noted
17 to this Court that the nature of direct cross and re-direct examination
18 normally result in a funnel process, and that in the hands of the
19 accused, it often was ballooned into an elaborate reversal of that. Same
20 thing is happening here and we object to that. In this instance, the
21 Defence claims that it's the Prosecution which is conflating
22 parliamentary privilege and parliamentary immunity with the latter of
23 which he asserts is inapplicable. Our response to the motion was based
24 on the materials and provisions that he provided in his motion which
25 indeed included lengthy annexes on parliamentary immunity. Even more
1 specifically in paragraph 5 he states:
2 "Similar provisions for non-liability of statements made by
3 members of parliament exist in virtually every country in the world,"
4 which is an implicit reference to an immunity and, indeed, the footnote
5 at the end of that sentence refers to provisions on parliamentary
6 immunity. So any alleged "conflation" of privilege and immunity is his
7 own doing and he should not be permitted to attempt to rectify those
8 errors in a reply.
9 Secondly, he wants to make submissions on the universality of
10 parliamentary privilege in civil and common law jurisdictions, but he
11 already argued in paragraph 5 of his motions that such provisions for
12 non-liability allegedly exist in virtually every country of the world,
13 and this is not a new issue. He should not be able to supplement his
14 submissions and thus gain the last word in the fashion that we constantly
15 see and that I think the Court has discouraged.
16 And finally, I would note that whatever Mr. Krajisnik has
17 communicated to him concerning his intention to invoke some privilege is
18 irrelevant to the issue of Karadzic's standing. And those -- that's the
19 information I wanted to provide with respect to that. Thank you.
20 JUDGE KWON: The Chamber will have a break till 11.00.
21 --- Recess taken at 10.28 a.m.
22 [The witness stands down]
23 --- On resuming at 11.13 a.m.
24 JUDGE KWON: Yes, Mr. Robinson.
25 MR. ROBINSON: Thank you, Mr. President. I'd just like to
1 introduce to the Chamber Kathryn Heslop, who is a lawyer from Perth in
2 Australia who has been assisting our team as pro bono legal assistant.
3 Thank you.
4 JUDGE KWON: Thank you. I apologise for the delay. The Chamber
5 wanted to make some photocopies of documents, but the copy machine was
6 out of order and that took a while.
7 The Chamber thought it important to resolve the issue regarding
8 the motion to preclude questioning of Krajisnik on statement made in
9 parliament before he comes to testify. But before we go on, I have to
10 note a couple of things.
11 First, the Chamber notes that a motion such as this should not be
12 filed a mere two days before the start of the witness's testimony. The
13 Prosecution had to respond within a day, putting an unnecessary strain on
14 its resources which should have been avoided, given that Mr. Krajisnik
15 has been listed on the accused's Rule 65 ter list since August 2012.
16 And secondly, as to the substance of the motion, the Chamber is
17 disappointed that the accused would think that requesting the serious
18 relief sought in the motion it would be sufficient to present such a
19 poorly argued motion as this one, without even attempting to demonstrate
20 in which manner this purported privilege applies in international
21 criminal proceedings. However, having said that, in light of the subject
22 matter, the Chamber decided that it would be helpful to hear the parties.
23 In that sense, the Chamber will allow the Defence to reply and we'll hear
24 you orally now.
25 MR. ROBINSON: Very good, Mr. President. I'm ready to do that.
1 Mr. President, we can start with the English Bill of Rights from
2 1689, that says that the freedom of speech and debates of proceedings in
3 parliament ought not to be impeached or questioned in any court or place
4 out of parliament. Then we have the United States Constitution,
5 Article 1 -- excuse me, Article 1, Section 6, that says that for any
6 speech or debate in either House, they shall not be questioned in any
7 place. And it's our position that that parliamentary privilege or Speech
8 and Debate Clause privilege as we call it in the United States applies to
9 the testimony -- the questioning of Mr. Krajisnik in this court. And as
10 a member, indeed, president of the Assembly, both of Bosnia and
11 Republika Srpska, he has the right not to be questioned about anything he
12 said during proceedings in those bodies.
13 I apologise for the way the issue was brought to your attention.
14 It actually came up on Sunday evening when I met with Mr. Krajisnik and
15 we filed it on Monday morning, as soon as we could possibly file it. I
16 apologise that it wasn't well argued, but I hope that you can understand
17 the point because I think it is a very important one and I think we're
18 right about this.
19 So, first of all, the Prosecution says that Dr. Karadzic has no
20 standing to raise this. Well, Mr. Krajisnik, when he comes here, will
21 assert the privilege that he has and so that's one basis for dealing with
22 this issue. And it's our position also that Dr. Karadzic has the right
23 under Rule 95 to have excluded any evidence whose admission would be
24 antithetical to or would seriously damage the integrity of the
25 proceedings. And we believe that for this Court, whether it be
1 international or domestic, to require a member of parliament to justify
2 or to be questioned about statements he made on the floor of that
3 parliament would be antithetical to and seriously damage the integrity of
4 these proceedings.
5 Now, the Prosecution says that Dr. Karadzic has waived the
6 privilege, but Dr. Karadzic can't waive Mr. Krajisnik's privilege,
7 neither can another witness, such as President Dodik who came here and
8 testified about his statements in parliament and was willing to do so.
9 So there's no waiver that can preclude the operation of the parliamentary
10 privilege. Neither has Mr. Krajisnik by testifying in his own case
11 waived his right to later claim that privilege in other proceedings, just
12 as a witness or suspect who's questioned by the Prosecution before the
13 trial can't be called to repeat those statements or questioned about
14 those statements in violation of his privilege against self-incrimination
15 at a trial --
16 JUDGE KWON: Did he not testify in the Popovic case?
17 MR. ROBINSON: Yes, he did. Although I don't know that he
18 testified about his statements. But in any event, this is a privilege,
19 like many other privileges, that can be asserted at any time. For
20 example, a war correspondent in the Brdjanin case published an article
21 about the very thing that he was to be questioned about, yet claimed the
22 privilege successfully during the Brdjanin case against being compelled
23 to testify about that very same topic.
24 There's no authority for the proposition that the Prosecution
25 indicates that parliamentary immunity or parliamentary privilege is
1 limited to domestic proceedings. Other privileges, such as that of the
2 International Committee for the Red Cross, the war correspondent
3 privilege, the lawyer/client privilege, the physician/patient privilege,
4 and even the penitent/clergy privilege are all recognised in
5 international tribunals, whether it be this one or the International
6 Criminal Court.
7 Now, it's true that in international tribunals the immunity from
8 prosecution of a head of state or a member of parliament may not
9 necessarily apply, as in the case of President Taylor,
10 President Milosevic, and others. But this is not an immunity that's
11 being asserted; this is an evidentiary privilege. And the question
12 before the Chamber is whether this evidentiary privilege ought to be
13 respected or disregarded. The materials that we appended to our motion
14 show that this privilege is almost universally accepted, not only in
15 common law countries like the United Kingdom, the United States,
16 Australia, and Canada, but even in civil law countries that came out of
17 the French Revolution as one of our documents show.
18 JUDGE KWON: I'm sorry to interrupt.
19 Could you tell us what that privilege is like in actual terms?
20 Does it mean that we cannot use the transcript or the record of the
21 parliament debate at all?
22 MR. ROBINSON: No, not at all. No. That may have been an issue
23 that could have been raised by Mr. Krajisnik in his own case, whether
24 materials that -- things that he said could be used -- introduced against
25 him. What we're talking about in this case, in this context is a much
1 more narrower part of the privilege which is that -- a privilege not to
2 be questioned in a court about what you've said. So we don't ask that a
3 statement that [overlapping speakers] --
4 JUDGE KWON: So we have no difficulty using Krajisnik's words in
5 the parliament?
6 MR. ROBINSON: We can --
7 JUDGE KWON: In written -- as written evidence?
8 MR. ROBINSON: That's correct. As long as he's not questioned
9 about that, then I don't think in this context the privilege is violated
10 by admitting it against Dr. Karadzic. But if it were to be a trial of
11 Mr. Krajisnik, it might be a different situation, but we don't have to
12 deal with that.
13 JUDGE KWON: I'm waiting for the ...
14 Yes, I was waiting for the translation.
15 What's the effect of that privilege in actual terms? Take the
16 privilege against self-incrimination. The witness is entitled to invoke
17 his privilege not to testify against his self-incrimination,
18 notwithstanding that, the Chamber in international tribunal has the power
19 to compel the witness to answer the question with certain caveats.
20 MR. ROBINSON: Yes, that's because the -- then it's no longer
21 incriminating because it can't be used, so it's no longer -- the
22 privilege against self-incrimination is -- no longer comes into play in
23 the sense that the statements are not being used against the person.
24 Now, I don't know of any other privilege --
25 JUDGE KWON: I wanted to compare those two kinds of privilege,
1 how is it -- how are they different from each other.
2 MR. ROBINSON: Yeah, that's a good question. And I don't know of
3 any other privilege that can be overcome in that way. For example, you
4 couldn't compel a person who had a lawyer/client communication to
5 reveal -- you couldn't compel the lawyer to reveal that communication or
6 you couldn't compel a physician. You couldn't compel the ICRC to come in
7 here and give evidence if it was stated that it wouldn't be made public,
8 for example, or you couldn't compel a war correspondent if the
9 qualifications for the privilege existed to give evidence with the
10 assurance that it wouldn't be made known to those in the field that he
11 had given that evidence. So I think self-incrimination is a special
12 thing in which immunity -- a use immunity essentially overcomes that
13 privilege, but I'm not sure in any other context that it can be done.
14 JUDGE MORRISON: Just for future research, and I'm working just
15 from memory here, I think it would be worth looking at the provisions of
16 the Criminal Justice Act of 2003 in the United Kingdom and the dicta of
17 Lord Mustill in Regina versus Director of Serious Fraud Office, I think,
18 Ex parte Smith 1992. There Lord Mustill made some very cogent
20 MR. ROBINSON: Very well. I will do that.
21 JUDGE KWON: Still we do not have the copy of your motion so
22 that's why I'm asking you this question. Could you define the privilege
23 as it is provided in the Statute. What is it like?
24 MR. ROBINSON: Okay. I'm -- we're -- this is a very, very narrow
25 application of the privilege. There's a lot of litigation over
1 peripheral parts of this privilege, whether an aide to a congressman or
2 to a parliament member can refuse to -- can invoke the privilege, whether
3 it includes acts --
4 JUDGE KWON: Could you read out the provision of the Statute or
6 MR. ROBINSON: Yes. First --
7 JUDGE KWON: Definition.
8 MR. ROBINSON: Yes.
9 "... the freedom of speech and debates or proceedings in
10 Parliament ought not to be impeached or questioned in any court or place
11 out of Parliament," that's the English Bill of Rights of 1689.
12 And the Article 1, Section 6 of the United States Constitution,
13 the relevant clause simply says:
14 "... for any speech or debate in either House, they shall not be
15 questioned in any other place."
16 And just as an example, in the United States, the US Supreme
17 Court dealt with this in 1972 in the case of Senator Mike Gravel who had
18 read parts of the Pentagon Papers into the record during Senate
19 proceedings, and a Federal Grand Jury was convened in Washington DC to
20 investigate aspects of his conduct. And the US Supreme Court held that
21 Senator Gravel and more particularly his aide could not be questioned
22 during the Grand Jury proceedings about anything he said on the floor of
23 the Senate, even though he could be questioned about other aspects of how
24 they published later the Pentagon Paper excerpts and things like that.
25 So --
1 JUDGE KWON: Was that not an issue of immunity?
2 MR. ROBINSON: No, that was an issue of testimonial privilege.
3 So -- because the issue of immunity is separate. Whether -- at that time
4 there was no prosecution. It was just questioning of a witness. That's
5 the very narrow issue that we have in this case. We're not talking about
6 immunity because the person asserting the privilege isn't on trial here.
7 So we're just talking about whether a person can be questioned about what
8 they said on the floor of a parliament or assembly. That's the only
10 And if I can just make the last point about customary
11 international law, and that is that the customary international law
12 exists to protect the rights of individuals and an accused so that rules
13 aren't applied in an international tribunal that would be unfair because
14 either they weren't in existence at the time or they're somehow being --
15 operating to the disadvantage of an accused and make a trial otherwise
17 So it's to the Prosecution to show that customary international
18 law allows for a witness to be questioned about the statements he made in
19 parliament, not for the Defence to show that customary international law
20 would prohibit such questioning.
21 That concludes my reply, unless you have any questions.
22 JUDGE KWON: Mr. Tieger, are you ready to respond to this or do
23 you need some more time?
24 MR. TIEGER: I'll respond very quickly and I would need more
25 time. I think the Court's earlier point is a very fair one, and that is
1 that it was raised inappropriately, argued perfunctorily, and now
2 expanded on in the broadest of terms in a manner that handicaps the
3 Prosecution obviously. But a couple of quick points, number one -- and
4 reserving the right to respond further especially by those who have had
5 an opportunity to research this a little more thoroughly. Number one, we
6 still don't really know the extent of the privilege in domestic
7 jurisdictions, much less in international usage. The Defence takes the
8 broadest of provisions and then leaps forward hugely to simply adopt the
9 most favourable interpretation to them.
10 Number two, I'm glad Mr. Robinson used the word "conflation"
11 before because that's precisely what he's doing now in connection with
12 Mr. Krajisnik. He posits the situation where somebody is called upon by
13 the Prosecution and then asked about statements made that supposedly are
14 privileged, but what's happening here, in fact, is Mr. Krajisnik made
15 lavish use of the Assembly session statements that he made and others
16 made in his own case in his examination-in-chief. He even independently
17 tendered and produced such sessions. Now that he's been unsuccessful in
18 that effort and confronted by the totality of the statements made in
19 those sessions, he now seeks to come here, testify about matters related
20 to those -- to that previous testimony and to those statements in the --
21 that were made in the Assembly, and insulate himself from the
22 truth-seeking process of cross-examination by hiding from the statements
23 he made, even though he previously testified about them and even though
24 he's testifying -- he purports to testify about matters that implicate
25 those same statements. And finally --
1 JUDGE KWON: Just a second.
2 Yes, please continue.
3 MR. TIEGER: Finally, Mr. President, in this initial submission,
4 which I hope is more than sufficient, Mr. Robinson mentioned that
5 Mr. Krajisnik was the president of the Bosnian Assembly and the president
6 of the RS Assembly. The RS Assembly is no Assembly recognised by
7 international law. What happens here, if you want to analogise to the
8 marital privilege, is there was a marriage and he left it, and now he
9 wants to have the same privilege applied to his new -- whatever he says
10 to his new girlfriend. The RS Assembly was not recognised by any
11 international body, and to assert an international privilege on the basis
12 of a body that was formed by people who left an official body recognised
13 by the international community established for the purpose of destroying
14 that body is quite absurd. And on that basis alone, this should be
15 rejected as inappropriate and frivolous.
16 JUDGE KWON: Having not had enough time, it's difficult to follow
17 your assertion that while we can use the transcript of the debate in the
18 parliament can be -- can be used as evidence, but you cannot ask a
19 question about that when the speaker, one of the speakers, came to
21 Further, Mr. Karadzic, the Defence itself has tendered a vast
22 amount of parliamentary transcripts and also Mr. Karadzic elicited
23 evidence from numerous participants himself. How do you reconcile this?
24 It's difficult to follow.
25 MR. ROBINSON: Well, Mr. President, let's say that you had
1 someone who wished to invoke their right against self-incrimination, say
2 even Mr. Krajisnik wanted to invoke his right against self-incrimination
3 here, the fact that Dr. Karadzic had introduced many of his statements
4 during the trial, would that mean that he wasn't given that privilege to
5 invoke the self-incrimination privilege? Or the fact that he had
6 testified at his own trial would still give him the right to at this
7 trial invoke his privilege of self-incrimination. So I don't think that
8 the fact that we have before us materials relating to the parliament
9 sessions means that he is not able to invoke the privilege that he has
10 not to be questioned about those in any court.
11 JUDGE KWON: Do you have information that Mr. Krajisnik is going
12 to invoke his privilege?
13 MR. ROBINSON: Yes, definitely.
14 JUDGE KWON: Yes, Mr. Tieger.
15 MR. TIEGER: Well, just to note, Mr. President, that the
16 invocation of any privilege, for example, the privilege against
17 self-incrimination during a cross-examination, which effectively shields
18 the witness from being cross-examined and the truth-seeking process from
19 being perfected, may mean that the examination-in-chief has to be
20 rejected also. Defence is aware of that and presumably takes that risk
21 if in -- in pushing what I continue to claim is a frivolous motion.
22 JUDGE BAIRD: Mr. Robinson, can I hear you on Mr. Tieger's point
23 that the RS Assembly is no assembly recognised by international law, so
24 therefore privilege wouldn't apply there at all.
25 MR. ROBINSON: Yes, Mr. President, and Judge Baird. First of
1 all, the laws of war and all the international regulations clearly apply
2 to the officials of the RS, including their obligation to follow the
3 Geneva Conventions and their obligations -- and their liabilities.
4 That's why we're here. So the fact that the Republika Srpska Assembly is
5 not recognised by some international body - I don't know who Mr. Tieger's
6 referring to, perhaps the United Nations General Assembly or the
7 United Nations Security Council - isn't determinative of whether this is
8 a privilege that still applies to that body.
9 I note that the privilege also applies to many other bodies not
10 recognised by the United Nations, including the states of the
11 United States. For example, in Kansas, a state legislator was able to
12 successfully invoke this privilege in a case called People versus
13 Neufeld, in which he was questioned about conduct that took place on the
14 floor of the Kansas legislature. So you don't have to be an official
15 sovereign body to have this privilege apply to you, at least in our
17 JUDGE BAIRD: Thank you.
18 JUDGE MORRISON: Mr. Robinson, this is obviously coming without
19 opportunity for proper research. I've always understood the
20 UK parliamentary privilege to be a form of immunity, and to make the
21 distinction in those circumstances between immunity and privilege seems
22 to be a rather artificial one. But my understanding is that that
23 immunity only applies to defamation, contempt of court, and breaches of
24 the Official Secrets Act.
25 MR. ROBINSON: Actually, I've been spending a fair amount of time
1 reading UK materials last night -- and I know you know it better than I
2 do, but I think that's part of the difference between -- well, that's
3 part of the confusion about immunity and privileges because they do refer
4 to it in UK as parliamentary immunity. But I believe that that
5 encompass -- that broad term encompasses this privilege against being
6 questioned that's in the Bill of Rights. And I have noticed in several
7 of the materials that I've read -- I can't say I've actually read cases.
8 I've been reading treatises essentially, but they seem to say that that
9 parliamentary immunity stems from the English Bill of Rights including
10 the provision that I have read out.
11 [Trial Chamber confers]
12 JUDGE KWON: Very well. The Chamber regards this motion at the
13 moment as moot because it's not clear whether or not the Prosecution is
14 going to put questions about those matters contained in the transcript of
15 the parliament and it's not clear whether Mr. Krajisnik has -- is going
16 to invoke his privilege at the moment. We'll deal with it when it
18 Having said that, should we bring in the witness, Mr. Popovic.
19 MR. NICHOLLS: Excuse me, Your Honours.
20 JUDGE KWON: Yes, Mr. Nicholls.
21 MR. NICHOLLS: I'm a little bit lost for when the next break
22 would be, just for my timing of my remaining topics.
23 JUDGE KWON: We're going to have a break at 12.30 --
24 MR. NICHOLLS: 12.30.
25 JUDGE KWON: -- as usual.
1 MR. NICHOLLS: Thank you.
2 JUDGE KWON: If you'd like to have it earlier or later we'll --
3 MR. NICHOLLS: No, that's fine. We started a few minutes late, I
4 thought, so I wasn't sure if we were going longer.
5 [The witness takes the stand]
6 JUDGE KWON: I take it we are not reaching Mr. Krajisnik today,
7 just for planning purposes?
8 MR. ROBINSON: Actually, I think we are.
9 JUDGE KWON: We are?
10 MR. ROBINSON: I believe the Prosecution has about an hour and
11 five or ten minutes left. So far we have very little re-direct, if any.
12 So we did think that Mr. Krajisnik would be -- I just sent an e-mail that
13 he should be ready at 1.30, but I may be optimistic.
14 JUDGE KWON: But at least we are not going to reach the
15 cross-examination of Mr. Krajisnik?
16 MR. ROBINSON: Definitely not.
17 JUDGE KWON: Please continue, Mr. Nicholls.
18 MR. NICHOLLS: Thank you, Your Honour.
19 P04669, please.
20 Q. Still on Pilica, Mr. Popovic, still on fuel. Another document
21 you're familiar with from your trial.
22 MR. NICHOLLS: E-court page 67, please. This is P04669. That's
23 what I'm looking -- there we go.
24 Now, we already looked at the intercept. We already looked at
25 the duty officer notebook, all of which said fuel for Popovic,
1 Lieutenant-Colonel Popovic, in the intercepts. This is -- if we could
2 have the Serbian. The Serbian is page 68, please, in the Serbian.
3 Sorry, I didn't read that out before.
4 Q. I want to be very quick about this, Mr. Popovic. You've already
5 explained your theory of why all these references to you and the fuel are
6 somehow inaccurate. This is from the 16th of July. We see on the top
7 row, second column, it's a materials list. It's got name, the address
8 station handwritten in, this is on the right, in the second box down, in
9 box 15, for Lieutenant-Colonel Popovic, that's you. And the amount,
10 remarks, out of 500 litres of D2 fuel, 140 were returned.
11 So 500 litres went out to you, just as requested in the
12 intercept, just as noted in the duty officer notebook, just as you said
13 it's a black gold, so the 140 litres that weren't used were returned.
14 And you agree with me, on the right it says Captain S. Milosevic.
15 Sreten Milosevic was a logistics officer in the Zvornik Brigade; correct?
16 A. I really don't know whether Sreten Milosevic -- I mean, I don't
17 know him personally --
18 Q. Okay --
19 A. -- I know from the statement that he gave that he was assistant
20 for logistics, but I personally don't know him, that's for sure.
21 Q. Thank you. You've answered the question. I'm putting it to you
22 that this document shows exactly what I put to you with the other
23 documents. You requested 500 litres of D2 fuel and it was sent to you.
24 A. This document shows exactly what I was saying. See. If somebody
25 is asking for something they had to send the material list in my name.
1 Now, what is missing? What is crucial? That I received it. If it was
2 sent to me, I'm the one who was supposed to receive it. It was received
3 by some Bogicevic, Branko. I'm not Branko Bogicevic; I'm
4 Vujadin Popovic. I was supposed to receive that. If I was not
5 accessible then, let's say I wasn't accessible, then there's my command.
6 They could have brought it on the second day, the third day, whatever, I
7 would have signed it. No problem.
8 Q. Okay. Try to be a little bit realistic here. Branko Bogicevic
9 is the driver who delivered the fuel. You had him testify in your trial.
10 That's why his name is there. It wasn't sent to him for his use; he's
11 the driver.
12 A. But that is the problem. He could not receive it. He's just a
13 driver. I'm the one who was supposed to receive it because it was sent
14 to me.
15 Q. Okay.
16 MR. NICHOLLS: Your Honours, I'll --
17 THE WITNESS: [Interpretation] Now, I don't know, what did he do
18 with that? I can put the question in a justified way, what happened to
20 MR. NICHOLLS: P05118, Your Honours, is the fuel log for
21 Bogicevic. I'm not going to bring it up.
22 Q. But your own lawyer introduced that in your trial to show that
23 the fuel was delivered to Pilica, although there was a story that unknown
24 soldiers received it; right?
25 A. As far as I can remember Mr. Bogicevic's testimony, he said that
1 he brought that fuel there between 7.00 or 8.00, or perhaps even later,
2 in the evening. He said that that fuel was poured out into canisters for
3 some soldiers, and that's it.
4 Q. Is this another frame-up of you that's taking place in July 1995,
5 right in the middle of the murder operation, the duty officers in Zvornik
6 are writing down in the notebook: Popovic requests 500 litres of D2,
7 500 litres of fuel? The intercepts say Popovic need 500 litres of fuel
8 or his work will stop. Are those fabrications? Is that what you're
10 A. That's what the document says. I'm not saying that, but that's
11 what the document says in this statement of this man. I have to admit
12 something to you, it happened sometimes that I would ask for something
13 and not get it and then all right. And then if you would say it was
14 ordered by the commander, then all of a sudden you could get it. These
15 are little tricks that we all resorted to. That's the way it was.
16 Q. Now, there's no combat in Pilica on the --
17 MR. NICHOLLS: Sorry, Your Honour.
18 JUDGE KWON: Was this document, the fuel receipt, not admitted on
19 its own?
20 MR. NICHOLLS: The basis for its admission I have to wait a
21 moment. I don't know if it was a bar table or other --
22 JUDGE KWON: This document is a part of the - what was the
23 name? - intercept authentication binder, Stefanie --
24 MR. NICHOLLS: Oh, yes. Yes, Your Honour, it was in there.
25 That's correct.
1 JUDGE KWON: -- Frease, yes.
2 MR. NICHOLLS: Yes, you're correct.
3 JUDGE KWON: It's included there?
4 MR. NICHOLLS: It is, Your Honour.
5 JUDGE KWON: Not tendered separately?
6 MR. NICHOLLS: No, I don't believe so, Your Honour.
7 JUDGE KWON: Thank you. Yes, please continue.
8 MR. NICHOLLS:
9 Q. When you were in Pilica on the 16th of July, there was no combat
10 going on; right? No pitched battle with the 28th Division?
11 A. No.
12 Q. Thank you. Bisina, I'm going to ask you -- talk to you about
14 MR. NICHOLLS: This is in paragraphs, just for Your Honours'
15 reference, 85 to 88 of his statement.
16 Q. You admit to being present at Bisina at the site of the mass
17 killing in paragraph 88. You admit that you told the soldiers there,
18 unknown soldiers according to you, to bury the bodies of the victims. At
19 paragraph 89. And your story is that, just like Orahovac, just like
20 Rocevic, just like you just explained for Pilica, you're just there,
21 fourth execution site in a row, as a kind of innocent bystander; right?
22 A. Mr. Nicholls, how would you be reacting if I did not have a
23 document filled out in handwriting for the Golf, the work order?
24 Vlasenica, Zvornik, Vlasenica, in the morning, that's what's written
25 there. I really don't know -- well, God almighty, as they say, told me
1 to write down that actual route. Usually we didn't record the routes,
2 but this way you can see that I left. So yes, I cannot say: Yes, I
3 filled out the travel authorisation, said that I would be going to
4 Zvornik, and I went to Vienna. No. I cannot be in two different places
5 at the same point in time. Quite simply, I cannot.
6 Q. Let me be clear, is the story changing? Because what your
7 statement says in paragraph 88 is that Bisina, you were there and when
8 you got there there were the bodies of 30 people you saw. Were you at
9 Bisina or not on 23rd of July?
10 A. Yes, I was, but I'm telling you about that morning when I went
11 there. You want to present this as me being there all the time, being in
12 attendance, and so on. But that's not true. That's the problem. So I'm
13 trying to say that this part of my statement is correct. That's it.
14 As for Bisina, I was there and I wrote that very nicely.
15 Q. Now, you've just explained that you were there and talked about
16 that morning. In your own trial on cross-examination by your lawyer, a
17 credible witness said he was sure you were there at Bisina before the
18 executions actually started.
19 That's PW172, I'm giving the cite from the Popovic case,
20 10 March 2009, T 32585, lines 12 to 19. This is the questioning by
21 Mr. Zivanovic.
22 "Q. Could you tell me, please, you said that in that specific
23 situation you approached Popovic at one point when it was all over and
24 you asked him what you asked him. I won't repeat that. Can you tell me
25 exactly, are you sure that you saw Popovic before this execution
1 happened? Are you completely sure about that?
2 "A. There in that very spot?
3 "Q. Up there in Bisina, where it was happening, that's what I
5 "A. Yes, I'm sure."
6 MR. NICHOLLS: Can we go into private session for one moment,
7 please, Your Honours?
8 JUDGE KWON: Yes.
9 [Private session]
11 Page 43111 redacted. Private session.
24 [Open session]
25 THE WITNESS: [Interpretation] I'm sorry.
1 THE REGISTRAR: We are in open session, Your Honours.
2 MR. NICHOLLS: Could I have P006 --
3 JUDGE KWON: Are you moving away from this topic?
4 MR. NICHOLLS: No. I was going to show another document.
5 JUDGE KWON: Okay.
6 Mr. Popovic, I didn't understand what you just said in private
7 session. What you said you didn't re-dug this grave because -- because
8 of what? Could you repeat your answer again.
9 THE INTERPRETER: And could the witness please speak into the
11 JUDGE KWON: Just a second.
12 Come closer to the microphone, please.
13 THE WITNESS: [Interpretation] Your Honours, it's not that I
14 didn't allow it. It's that I didn't order any grave relocation. I was
15 saying that if I had felt guilty because I had done what Mr. Nicholls is
16 saying, it would be expected that I should try to hide that grave.
17 However, it remained intact. It's the only grave where the bodies were
18 properly laid in. You can see that from the record of exhumations. All
19 the other graves were dug up and relocated.
20 JUDGE KWON: I'm not sure I understood you. You didn't cover the
21 so-called reburial or relocation of bodies in your statement. Were you
22 involved in that reburial?
23 THE WITNESS: [Interpretation] Not personally, Your Honours. I
24 only controlled the use of fuel. I was asked to keep tabs on the use of
25 fuel, but I did not participate directly.
1 JUDGE KWON: But you tried to keep that Bisina grave intact; is
2 that -- was that your evidence?
3 THE WITNESS: [Interpretation] No, I'm saying if I had wanted to,
4 when the reburials were done, I was aware they were being done, I could
5 have asked them to relocate also the grave in Bisina, but I didn't do it.
6 JUDGE KWON: Then all the graves that had been dug out for
7 reburial, did you do that to hide your responsibility then?
8 THE WITNESS: [Interpretation] No, I was not involved in that.
9 I'm telling you, I just kept tabs on the use of fuel. That went down the
10 chain of command and, of course, it was the security command that
11 controlled this process. I personally did not take part in it. I didn't
12 even know where some graves that were dug up later were located because
13 it was some sort of secret. You cannot keep it completely secret if
14 you're driving through towns. I would have been much happier if it
15 hadn't been done at all. I don't know who ordered it, with what purpose.
16 I mean, I know. We all know who has the right to give orders.
17 JUDGE KWON: Back to you, Mr. Nicholls.
18 MR. NICHOLLS: Thank you. And I'll come back to this a bit,
19 Your Honour. I just ask some other questions first.
20 P0663, please.
21 Q. All right. Now, this is the -- Mr. Popovic, this is kind of the
22 counterpart -- well, I won't say that. This is another -- this is a
23 document of a vehicle log, again by a Drina Corps driver, and it's also
24 related to Bisina. If you look at page 2 in both languages, please, we
25 see on the 23rd of July, Vlasenica, Sekovici, Bisina, Sekovici,
1 eight people carried. And on the right, it's -- I'm not saying it's your
2 signature, but on the right, far right, if we look at the English, it
3 says "Popovic." And the testimony was -- I'm sorry, let me move back.
4 The clear testimony from the driver of this vehicle log is that
5 he went to Dragasevac, picked up some soldiers, brought them to Bisina,
6 and then they killed the prisoners. And your name, Lieutenant-Colonel
7 Popovic, is written there because it was your operation.
8 A. No. It's my signature, yes. I won't deny it. It's my
9 signature, but this signature on a vehicle log, I remember this well,
10 this vehicle log was brought to my desk and I signed at once for all
11 these days. You can see the same pen is used because there were some
12 previous drives for the police before that. Maybe the police person in
13 charge was absent so they brought it to me and I signed it, no problem,
14 for three, four, five days. You can see that it's the same pen --
15 Q. Okay --
16 A. -- I signed them all at the same time.
17 Q. Right. So this van goes to Dragasevac -- remind us, please, tell
18 the Chamber which unit had its base in Dragasevac in July of 1995? Which
19 soldiers of which unit stayed in Dragasevac?
20 A. There were members of the 10th Sabotage Detachment in Dragasevac.
21 Q. 10th Sabotage Detachment, persons with 10th Sabotage Detachment
22 insignia carried out these executions. This truck, the driver said, he
23 picked up soldiers at Dragasevac and took them to the execution site.
24 You -- is your story that it's a coincidence that you signed off
25 without -- you know, just signing documents, you didn't -- you sign off
1 by coincidence on the vehicle log for the driver who brought the shooters
2 to Bisina?
3 A. I'm telling you again, look, look at the dates. Look at all the
4 dates I signed off for at the same time. I signed off for the 19th,
5 20th, 21st -- no, no, 21st is somebody else. Then 23rd, once, twice,
6 thrice. I didn't even look at the routes I was signing off. I just
7 signed them.
8 Q. Okay. Your statement is a bit funny on this point because, from
9 my understanding of it, you get a telephone call that unknown persons
10 picked up the prisoners at Susica and took them to Bisina. That's in
11 paragraph 86. Unknown men came and picked up the prisoners. That's not
12 right. We have the vehicle log. We know exactly who picked up the
13 prisoners. Drina Corps picked up the prisoners, right, from the
14 Drina Corps prison in a Drina Corps bus -- truck.
15 A. Mr. Nicholls, the officer on duty said that those people were
16 unknown to him. And to me. Why would I have to know members of the
17 10th Sabotage Detachment who have absolutely no connection to me? I
18 didn't know those soldiers personally. I knew their commander, only one
19 person, and I knew who -- whose command they were under, and I knew I
20 couldn't take them until they received proper orders. That's why they
21 came from the forward command post because I had no right to command over
23 THE ACCUSED: [Interpretation] Transcript.
24 JUDGE KWON: Yes.
25 THE ACCUSED: [Interpretation] On page 63, line 15, the witness
1 said: "I signed them for them to justify the use of fuel." "To justify
2 the use of fuel" is missing from the record. It would be a good idea if
3 the witness could speak more slowly.
4 JUDGE KWON: Do you confirm that, Mr. Popovic?
5 THE WITNESS: [Interpretation] Yes, yes. That's exactly it.
6 MR. NICHOLLS:
7 Q. Paragraph 58 of your statement you say you go to Dragasevac to
8 the 10th Sabotage base. What do you mean you don't know these soldiers?
9 Is that why your statement says you wait in the car?
10 A. Certainly, that was the statement of the person who saw me in
11 that car. I came to Dragasevac, waited for Pecanac in the car. Pecanac
12 was shouting at those people, why were they asleep, why didn't they wake
13 up. There was no officer on duty. I saw it was a complete ruckus. I
14 didn't even want to go into the building. The man was himself standing
16 Q. Right. I wasn't going to do this, but let's look at
17 paragraph 58. You can look at yours. This is your story on 15 July:
18 "On the morning of 15 July 1995, I went to my office at the
19 Drina Corps command in Vlasenica. Dragomir Pecanac from the VRS
20 Main Staff came to see me at some point between 9.00 and 10.00 in the
21 morning. He asked me to accompany him to Dragasevac. I set off in my
22 car. Pecanac went to the building where members of the
23 10th Sabotage Detachment were housed. I remained in my car for about
24 10 to 15 minutes, and then I left."
25 So your story is: Pecanac comes to you, says: Come with me to
1 Dragasevac and then sit in your car while I go inside and yell at the
2 10th Sabotage for a bit and then you can go home. You're there for no
3 purpose whatsoever. That's what your statement says.
4 A. No, that's not at all what's in my statement. When Pecanac came
5 to me see, I was in my office. I remember I was doing something. Maybe
6 I was viewing a videotape, I cannot remember exactly, but I was doing my
7 normal everyday work. Since we had known each other since Knin, we were
8 good friends, we went everywhere together, he said: Come on, bro, I have
9 some business over there with my people and then we'll go and do
10 something on our own later. We came to Dragasevac. He got out of the
11 car. I had no reason to get out of the car, had no business there. Why
12 would I go out just to listen to the orders he was giving? He had his
13 own job, his own assignment. He had his own purpose for being there. I
14 had my own. That's all. Why would I go out to hear what Pecanac had to
15 say to his men, to be some kind of advertising, promotion, whatever.
16 MR. NICHOLLS: Could I have 65 ter 31461D, please.
17 Q. This is an intercept from 24 July you're familiar with,
18 Mr. Popovic, about a man named Himzo Mujic who was exhumed from the
19 Bisina mass grave. In other words, he was murdered at Bisina and buried
20 there and later found. So this intercept is from the day after. And
21 somebody is calling, X is saying:
22 "He was at our place, I don't know if he still is, Himzo Mujic.
23 "That's what I'm calling you for, man.
25 "Is it possible to find out where he is ..."
1 I don't have time to go through every line of this, but if you
2 look down a bit further, what's clear is that somebody is calling trying
3 to get Himzo Mujic out of where he's being held. And X says, after
4 saying about how he used to work for them:
5 "So that's why he hopes he might be exchanged. But he told Neso
6 almost everything about the area we're from and our people. What they
7 had done and who did what to whom and that sort of thing."
8 And then Y says:
9 "And where is he?
10 And X says: "I" --
11 JUDGE KWON: Do we have correct page in B/C/S?
12 MR. NICHOLLS: No, I think we need to go to the second page.
13 Q. Then there's a discussion about calling the warden at the prison
14 and a discussion saying:
15 "Well, we can take care of it through Crna Rijeka, say that we
16 really need that guy ... we need him down there in the field."
17 Now, you know that Himzo Mujic was pulled out of the mass grave
18 in Bisina; right? You know that as you sit here today, I mean, after
19 your trial?
20 A. Yes.
21 Q. And you know that the prisoners came from -- who were murdered in
22 Bisina came from Susica prison; right? You know that as you sit here
24 A. Yes.
25 MR. NICHOLLS: Your Honours, may that be marked for
1 identification, and I'll -- it's an intercept and we'll try to admit it
2 later. It's not admitted at this stage.
3 JUDGE KWON: Did we not hear about the notebook, authenticity of
4 the notebook in general?
5 Mr. Robinson, if --
6 MR. ROBINSON: Yes, I don't know about this particular notebook,
7 if this was included in -- but was this admitted in the Popovic case?
8 MR. NICHOLLS: This was admitted in Popovic. It was admitted in
9 Tolimir. My recollection is that we tried to admit it through a bar
10 table, but we did not completely cite the transcript, I think, of the
11 decision, which is why it was --
12 JUDGE KWON: Very well --
13 MR. NICHOLLS: -- not admitted previously. Unless there's no
14 objection I would tender it now.
15 JUDGE KWON: No, let's be clear. Let's marked for identification
16 and resolve it at a later stage.
17 THE REGISTRAR: It receives MFI number -- Exhibit Number MFI
18 P6499, Your Honours.
19 THE ACCUSED: [Interpretation] May I? May I ask if there is an
20 audio recording so we can identify it?
21 JUDGE KWON: We discuss the issue when we have the intercept
22 operator or the commander.
23 MR. NICHOLLS: Could I have P --
24 JUDGE KWON: Yeah, it can be sorted out outside the courtroom, if
25 necessary at all.
1 Let's continue.
2 MR. NICHOLLS: Could I have P04776.
3 Q. This is an intercept from the same day, again you're familiar
4 with it, Mr. Popovic, about one hour -- just a little over an hour later.
5 It's the same frequency, same channel. And here X makes it clear that he
6 is in Vlasenica, at the top where he says:
7 "They're falling around us here," bombs.
8 Y says:
9 "No, really? Where?
10 And X says:
11 "Well, around Vlasenica."
12 MR. NICHOLLS: If we go to page 2 of the English. I think we can
13 stay on page 1 for now of the Serbian.
14 Q. We saw that in the intercept an hour earlier on the 24th of July
15 somebody was calling and asking if they could basically save Himzo Mujic.
16 And here X responds:
17 "And another thing. Since I'm having difficulty reaching Kane up
18 there," we saw Kane on the previous exhibit -- intercept, "tell him this
19 Himzo Mujic.
20 "Y: Mujic?
21 "Himzo is no longer in prison here. He should call
22 Lieutenant-Colonel Popovic" --
23 JUDGE KWON: Do we not need the second page.
24 MR. NICHOLLS: Now second page of the Serbian. I apologise.
25 Q. "Himzo is no longer in prison here" --
1 JUDGE KWON: Could you check whether this is correct.
2 MR. NICHOLLS: This is correct, I believe. Yeah.
3 Q. "Himzo is no longer in prison there. He should call
4 Lieutenant-Colonel Popovic.
5 "Y: Lieutenant-Colonel?
6 "X: Popovic. Ask for the switchboard of the Drina Corps and
7 then for extension 91.
8 "Drina Corps switchboard, extension 91.
9 "X: Yes. And he should arrange it personally with him. He's
10 the only one who knows where he went from here and what happened to him.
11 You can do it if you see him somewhere during the day ..."
12 So the person at Vlasenica who knows that Himzo Mujic is gone,
13 calling back to tell Kane it's too late, there's only one person who can
14 say where he went and what happened to him, and that's you because you
15 were in charge of this murder operation, this small murder operation by
16 July 1995 standards?
17 A. Mr. Nicholls, first of all, I was not in charge of that murder
18 operation, as I've told you before, and I think I was clear. Two, these
19 X and Y who are calling suppose that I should know where this person is.
20 Why would I know? If somebody wants a list of these people in prison, I
21 can always get that list from the prison. I don't even remember that
22 Susica was even exclusively our prison. I don't know when these people
23 arrived there and whether I received a list or didn't receive that list.
24 I don't know. I cannot comment on other people's conversations.
25 MR. NICHOLLS: Your Honour, actually -- did you say 12.30 we'd
1 break? I'd prefer now because I'm going to move on --
2 JUDGE KWON: Yes.
3 MR. NICHOLLS: [Overlapping speakers] --
4 JUDGE KWON: We'll have a break. We'll have a break for
5 45 minutes and resume at quarter past 1.00.
6 --- Luncheon recess taken at 12.26 p.m.
7 --- On resuming at 1.21 p.m.
8 JUDGE KWON: Please continue, Mr. Nicholls.
9 MR. NICHOLLS: Thank you, Your Honour.
10 I may at the end of my time be asking for additional 15 to
11 20 minutes. I just wanted to let you know to -- because there's one
12 additional topic that came up that I may try to cover. Just -- thank
14 Q. Okay. Still on Bisina, Mr. Popovic. You said you were not in
15 charge of that murder operation. Let's keep talking about this murder --
16 incidents of murder, 23rd July, which, let's say, you're implementing for
17 the command, not in charge of.
18 MR. NICHOLLS: Could I have 65 ter 25593, please.
19 This is an ICMP report on the Bisina grave-site from 2008. If we
20 could go to English page 9, Serbian page 13, please.
21 Q. And before that comes up, I'll just read to you a part I'm not
22 going to bring up. This is on page 4 of the English, just that it says
23 that 39 bodies were recovered in this mass grave. Okay. 42.
24 "Twenty-seven individuals were recovered with their hands behind
25 their backs in direct association with ligatures made of grey-coated
1 telephone wire on one or both wrists. Four victims had blindfolds.
2 There was no evidence of proper burial."
3 Now, where were their hands tied, Mr. Popovic? At the scene?
4 Before they got put in the truck? Where did they bind these men?
5 A. You're asking me something I don't know. I don't know where
6 their hands were tied.
7 Q. All right.
8 MR. NICHOLLS: Could I have 65 ter 03958 -- oh, excuse me. May I
9 admit this report, Your Honour?
10 MR. ROBINSON: I object, Mr. President. No basis to do that
11 through this witness.
12 MR. NICHOLLS: It's the witness's mass grave. He's going to --
13 he said he put these people in the ground, and I'm sure when I ask him --
14 Q. Mr. Popovic, when you got there, whenever you were there, let's
15 not talk about when you got there, okay, you saw that these victims had
16 their hands tied behind their backs, didn't you, before they were put in
17 the grave?
18 A. No, I didn't see that. I really didn't. Really, I don't
19 remember that at all. I didn't see it. Why? I would say if I did.
20 Q. Mr. --
21 A. I just said: Bury them and --
22 MR. NICHOLLS: Okay. The witness has just commented that people
23 were buried at Bisina. This is a report of the Bisina --
24 JUDGE KWON: But why did the Prosecution not have the time or
25 opportunity to tender this earlier on?
1 MR. NICHOLLS: Well, we could have, Your Honour, but I didn't
2 know that they were going to call the person who was present at the mass
3 execution -- at this execution, which is why I'm using it now.
4 [Trial Chamber confers]
5 THE WITNESS: [Interpretation] This is a new situation for me,
7 JUDGE KWON: The Chamber does not think that we have a basis to
8 admit this document through this witness. We'll not admit this at this
10 MR. NICHOLLS: 03958, please. Could we go to page 2, please.
11 Q. All right, Mr. Popovic, it's the exhumation photo from the Bisina
12 mass grave. You said earlier about this mass grave:
13 "It's the only grave where the bodies were properly laid in. You
14 can see that from the record of exhumation."
15 So these are how you properly laid the men into the grave; right?
16 A. Saying that, I had in mind -- I think that, first of all, you
17 show the report of Amor Masovic - unless I'm mistaken - where that was
18 written. And when I said: Bury them now, I turned away and left. I did
19 not inspect what they would actually do and how. But it's an undisturbed
20 grave and that's what it is. Now, how they did it, they used a machine
21 and then dropped the bodies from it. I really -- I mean, when I said
22 that, I had that report in mind because we had the report, as far as I
23 remember. Maybe I'm mistaken but --
24 Q. Well, wait a minute. You just took credit, you just said in your
25 defence, the way I read it and the way any plain reading would be, that
1 this was the only grave where they were laid out properly and this is a
2 grave where the men are lined up, not piled in a heap.
3 JUDGE KWON: Sorry to interrupt, Mr. Nicholls. But, first of
4 all, we need to establish this is the Bisina grave.
5 MR. NICHOLLS: I can make an offer of proof of that. This
6 witness can't say -- I don't think he can say from this photograph.
7 JUDGE KWON: In e-court the title of this exhibit says:
8 Photographs of exhumation at Budak, Kamenica 9, and other grave-sites,
9 and that some photos tells Budak -- I'm not sure whether it is Bisina.
10 Could you establish that first.
11 MR. NICHOLLS: The description may be wrong in e-court, but if
12 necessary I could call our investigator. But we received these as a
13 direct RFA for the Bisina grave-site. And this is the same grave that
14 Himzo Mujic was brought out of. This came from the BH Federal Commission
15 of Missing Persons.
16 JUDGE KWON: Can you explain the date on this -- appearing on
17 this photo?
18 MR. NICHOLLS: No, Your Honour. It's just something with the
19 camera. I don't know why the date --
20 JUDGE KWON: The first page shows 10th of July?
21 MR. NICHOLLS: Yes. I don't know why that date is there. But
22 this is -- if we were to go back to the --
23 THE WITNESS: [Interpretation] I doubt that that's it.
24 MR. NICHOLLS: If we were to go back to the prior exhibit,
25 Your Honour, it describes the location and has some photographs. And it
1 is the same location, the Bisina grave.
2 JUDGE KWON: Yes, I will leave it at that. Please continue.
3 MR. NICHOLLS: Thank you. If we could go to --
4 THE ACCUSED: Just, for the record, thank you, Excellency. I
5 should have done it as well as posed questions about the textile. It
6 doesn't look --
7 MR. NICHOLLS: Objection --
8 JUDGE KWON: That's an improper intervention during the
9 cross-examination. You can take up the issue in your re-examination,
10 Mr. Karadzic.
11 Please continue, Mr. Nicholls.
12 MR. NICHOLLS: Could we go to the next page, please.
13 Q. There we see one of the telephone wire ligatures described in the
14 report, right, Mr. Popovic? You still don't remember that?
15 A. Well, I said no, I don't remember because I didn't see that on
16 the bodies there. I didn't go from one body to another to inspect them.
17 When I came there, I just said nicely, as far as I remember -- there was
18 this small area and bodies were scattered all around and it looked so
19 awful that I felt lost there. I turned around and I said: Come on, bury
20 them. First of all they didn't want to do it. And then I said: Please,
21 do bury them. And then I turned around and left. Now, whether they -- I
22 cannot assert, but I'm telling you that as opposed to the other graves
23 that we were shown, this one is quite different. There everything was --
24 Q. Okay --
25 A. -- intermingled, and here --
1 Q. Okay. And the burial machinery was there, right, right when you
2 were there?
3 A. No. The machine -- or rather, I don't remember how the excavator
4 arrived. When I was passing by, I think it was by the barracks.
5 Q. My point is you were there when the bodies were loaded into the
6 excavator and put in the grave?
7 A. No, no, no. Just the first several bodies. At first they didn't
8 want to do it, as I said, and then they loaded them into the excavator
9 and began moving them further on.
10 Q. That's my point, the --
11 A. But I didn't --
12 Q. -- the excavator was there when you were there. You were there
13 at the same time as the excavator which loaded the bodies; you just said
14 that. Right?
15 A. I said I don't remember when it arrived. I remember that when I
16 passed, it seems to me that it was parked next to the barracks. Whether
17 it arrived after me or -- I don't remember.
18 Q. That's not the question. That's not the question.
19 A. Or before me.
20 Q. You answered the question. You were there when it picked up the
21 bodies. You've answered that.
22 MR. NICHOLLS: Could we go to the next page, please.
23 Q. Okay. This is the orderly burial, it's a bit closer up. You
24 think this is a -- you're saying this is one of the better burials?
25 A. Well, that is why I referred to the report which they made. As
1 far as I remember, in the last sentence of the report it was said that
2 the bodies were neatly placed. When I said and told them to bury them,
3 they started working properly. And then I simply left because I couldn't
4 stand being there any longer.
5 Q. Okay --
6 A. This doesn't look to me -- I have to say, to me this doesn't look
7 like -- if that is really that, if that's the grave, it doesn't look like
8 it, not to me.
9 Q. And -- so you didn't say: Line these people up in a row? That's
10 just a -- you didn't direct the burials to be respectful by lining people
11 in a row rather than piling them in a heap; right?
12 MR. NICHOLLS: Could we go to the last page, please.
13 THE WITNESS: [Interpretation] Am I supposed to answer? I didn't
14 literally tell them: Line them in rows. I told them: Bury them. And I
15 believe that implied how that should be done and they knew how it should
16 be done.
17 MR. NICHOLLS: Page 8, please. Sorry, that's not the one I want.
18 Q. Now, again I'll ask you -- you said the bodies were scattered
19 around all over the place, right, when you got there. You didn't notice
20 that their hands were tied behind their backs with wire ligatures,
21 telephone wire, as we see here?
22 A. No, Mr. Nicholls, because there were ferns and grass growing
23 there quite high, 20 or 30 centimetres, and because of that you couldn't
24 really see. It was in July, when there's so much vegetation growing.
25 Perhaps I might have noticed, but I didn't really look that closely. I
1 didn't focus on any single body. I was just looking at the whole scene.
2 Q. Yeah, and the whole scene was that 27 out of these 39 bodies had
3 their hands bound behind their backs?
4 A. Yes, that's what the report says.
5 Q. So even if we were to accept your story, which, to make clear for
6 the record, I don't for one minute, it's contradicted by the evidence of
7 you being there during the executions, your response to arriving at a
8 scene -- even if we believe you, your response to arriving at a scene on
9 the 23rd of July when there are 39 victims, 27 of whom have their hands
10 tied behind their backs, is just to bury them on the spot; right? You
11 don't --
12 MR. ROBINSON: Excuse me, Mr. President. I think it's -- excuse
14 THE WITNESS: [Interpretation] To be buried on the spot, yes.
15 MR. ROBINSON: Mr. President, I don't believe it's proper for a
16 lawyer to say that: I don't believe your story for one minute. What
17 Mr. Nicholls believes or doesn't believe is completely irrelevant and
18 it's improper for him to have said that. Thank you.
19 MR. NICHOLLS: What I mean is, and perhaps I should have asked it
20 differently, is in asking questions about his story, it does not mean
21 accepting it and the position of the Prosecution is that that story is a
22 lie, which is fair to put to the witness when I'm asking him questions
23 about his story.
24 JUDGE KWON: I think the witness is entitled to answer the
25 question. If you like, Mr. Popovic. Would you like to comment on that?
1 THE WITNESS: [Interpretation] You mean the claim that the whole
2 story is a lie? Only if there is no document that would support that.
3 If there are documents which support what I'm telling, I don't see why
4 that would be a lie. Perhaps it suits the Prosecutor or perhaps it
5 doesn't, but I have come here and I have given the oath that I would be
6 telling the truth rather than that I would be telling what Mr. Prosecutor
7 wants to hear. There have been many such witnesses here who talked what
8 they wanted -- what the OTP wanted to hear.
9 MR. NICHOLLS: Your Honours, I would tender these photographs
10 I've shown.
11 MR. ROBINSON: Mr. President, I think it would be better if they
12 were marked for identification, subject to showing the provenance of
13 those photographs. Then if you're convinced of the provenance, they can
14 be admitted in full.
15 JUDGE KWON: For example, Mr. Nicholls, can you see -- upload
16 page 14 of the previous document, ICMP summary report --
17 THE ACCUSED: [Interpretation] Your Excellency --
18 JUDGE KWON: Just a second. Although we didn't admit it.
19 Page 14, e-court page 14 of 65 ter number 25593.
20 THE ACCUSED: What I wanted to ask to be clarified, whether
21 Mr. --
22 JUDGE KWON: I'll give you an opportunity. Like this. There you
23 see the marking of Bisina.
24 MR. NICHOLLS: Yes, Your Honour.
25 JUDGE KWON: But in this set of photographs, i.e., 65 ter 3908
1 which you are tendering now, I don't see any of them. I see other
2 markings for other places. So how are we satisfied -- we are satisfied
3 that this photo depicts Bisina mass grave?
4 MR. NICHOLLS: Well, the photos that I've shown, Your Honours,
5 separately from this report do not have the same markings, must have been
6 taken at a different time before those markings were put down. We can
7 see there were just red flags there, but there aren't the names of any
8 other locations. And if you were to look, Your Honours --
9 JUDGE KWON: But then why does this set of photos have different
10 marking like Budak or something -- if you go on, you can see Budak or
11 something like that, it is a set of photos seems to be --
12 MR. NICHOLLS: Only page 1 to 8 of these documents -- of the
13 photos are Bisina. I went too far when I went to page 9 before, to the
14 last page, so there is an extra photo in there.
15 JUDGE KWON: Yes, I will hear your objection, Mr. Karadzic.
16 MR. NICHOLLS: Can I make one more point, Your Honour, first?
17 JUDGE KWON: Yes.
18 MR. NICHOLLS: If you take a look at -- I'm sorry, I don't have
19 the e-court page, but what is annex 3 to the Bisina report that we have
20 in front of us -- page 13 in the English. All right. And if we were to
21 look now, if we can do it on the split screen on page 5 of the photos
22 that I was bringing up, 65 ter 03958, we go to page -- photo 5, you can
23 see there that the outline is virtually identical and the machine in the
24 back. It's a different -- it's not exactly the same photograph, but it's
25 the same location. And you can see that even the excavator in the
1 back -- and I'm not saying this is dispositive, but it does link these up
2 and I can, if necessary, as I said, call an investigator. But this, I
3 think, also shows that we're talking about the same spot.
4 JUDGE KWON: Yes, Mr. Karadzic.
5 THE ACCUSED: [Interpretation] I'm going to ask the Colonel about
6 these photographs during the re-examination. Could we please have
7 photograph 8, or rather, page 8 --
8 JUDGE KWON: No, just tell us whether you have any objection to
9 the admission and why.
10 THE ACCUSED: [Interpretation] I just wanted to ask whether
11 Mr. Nicholls claims that it was tied on the back, photograph 8, hands
12 tied on the back. Is that what he is saying? But I cannot ask the
13 witness that. As I dispute this photograph, I am cautioning about this.
14 MR. NICHOLLS: And I can just say I won't be answering any
15 questions from Mr. Karadzic about what these photographs show.
16 JUDGE KWON: No.
17 MR. ROBINSON: Excuse me, Mr. President.
18 [Trial Chamber confers]
19 JUDGE KWON: The Chamber will mark it for -- these photos for
20 identification until it is satisfied with its provenance.
21 THE REGISTRAR: It receives MFI number P6500, Your Honours.
22 MR. NICHOLLS: Thank you, Your Honours.
23 Q. Now, you said just before the break how you were -- why didn't I
24 relocate this? Why didn't I move this with all the other graves? And
25 I'm going to put it to you why you didn't, because the mass graves at
1 Kravica, Orahovac -- well, the execution sites at Kravica, Orahovac,
2 Petkovci dam, Branjevo, all had survivors, all were notorious, and there
3 were reports on these areas soon after and they were huge mass graves.
4 So you didn't - I'm putting to you - move this relatively small mass
5 grave because you felt it would not be discovered. It was 39 people, we
6 don't know of any survivor of this grave -- of this execution, and it was
7 in the mountains in Bisina which is why you didn't move it.
8 A. Oh, Mr. Nicholls, really, you can always take a person by
9 surprise with your conclusions. I mean, after this execution people
10 gathered there further away from that place, towards the hill, that's
11 where the defence line was, I think, of the Sekovici Brigade. And people
12 were passing by. It's close to the road.
13 Q. Well --
14 A. There were people right there who would come there.
15 Q. Yes, local people and that's not who I'm talking about.
16 A. Why?
17 Q. I'm not talking about local people. I'm talking about
18 internationals finding out. And you also said this is the only primary
19 mass grave. What about Cerska, another relatively small one by
20 Drina Corps standards in July 1995, is that a primary or a secondary
22 A. I heard of Cerska when I came here. I have no idea about Cerska.
23 But I repeat, this grave was discovered through the local population as
24 far as I know. So again, I repeat, once again what I said stands. Had I
25 felt responsible, I would have relocated it. Why would that bother me?
1 But you don't want to believe anything I'm saying. Well, you're entitled
2 to that.
3 Q. And you don't -- when you stumble across, according to you, this
4 mass grave, you don't take any steps to identify who these people are.
5 You don't treat it like a crime scene. Even if your statement was to be
6 given any credit, the first thing you do is try to cover the whole thing
7 up; right? Bulldoze the bodies into the grave?
8 A. Well, what could I do at the crime scene where I felt lost, if
9 you will? I simply said what I said, turned around, and left. Really, I
10 was so shaken. I was lost.
11 Q. Another thing you say in your statement, at paragraph 88, is that
12 you were very upset when you came to this execution site and saw that all
13 the prisoners were dead because you'd hoped that they could be exchanged
14 for your cousin Djordje, right? That's in your statement paragraph 88.
15 A. Yes.
16 Q. So that means that on the 23rd of July, 1995, the Drina Corps --
17 you can't find another prisoner for your cousin Djordje. You didn't save
18 anybody from Kravica, Orahovac, Pilica, Branjevo, Petkovci, in order to
20 A. Well, really, that's not what it means. That is not what it
21 means because the commission for exchanges that was conducted by
22 Novakovic and my conversation with Tolimir, you see that I say to him,
23 please -- about this exchange, that's what I meant. And now whether
24 there were others, whether that was being sent, I wasn't thinking about
25 that at that moment.
1 Q. Yeah, but what it says in your statement which you or you wrote
2 in consultation with people recently is that on that day you were upset
3 because you thought: Oh, I could have exchanged these prisoners for my
4 cousin. That's got nothing to do with what you were thinking at the
6 A. Yes. Well, yes. I thought what I wrote.
7 Q. And so would you agree with this statement: It's correct that
8 these people we just saw in those photos were buried in a certain order
9 and in a dignified manner? Do you think that's a dignified way to bury
11 A. Mr. Nicholls, I see this grave. I'm confused by the dates on
12 some of these photographs. At one moment it's the 18th of --
13 Q. Stop, stop --
14 A. -- of October, and some other moment it is --
15 Q. Stop, stop. Forget the photos. Forget the photos. When you
16 were there -- forget the photos. Take that out of my question. Do you
17 think it's a dignified -- do you think the people who were buried in
18 Bisina with heavy machinery were buried in a certain order and in a
19 dignified manner? I'm just asking your opinion on that statement.
20 A. Up until now when I saw this photograph, that's what I thought
21 and I told you why I said that, because I read that report where it says
22 that the bodies were laid in order.
23 Q. Paragraph 1156 of your trial judgement states that:
24 "The Trial Chamber is satisfied that the ten wounded Bosnian
25 Muslim men were killed sometime around 23 July. The Trial Chamber is
1 further satisfied, based on the evidence above, that these men were
2 placed in the custody of Popovic around 23 July."
3 And then it goes on to say:
4 "... the Trial Chamber finds that Popovic killed or facilitated
5 the killing of the ten wounded Bosnian Muslim prisoners from Milici
7 Same day, 23rd July.
8 My only question to you about that, the only question: Would you
9 please tell us where those corpses were dumped because they haven't been
10 found yet, other than one person?
11 A. Sincerely, Mr. Nicholls, if I knew I would have told you. Very
12 frankly. I have no reason to hide that, but I don't know.
13 MR. NICHOLLS: Your Honours, there was some discussion about the
14 provenance. I'd like to have about 15 or so minutes more, please.
15 JUDGE KWON: Please proceed. Continue.
16 MR. ROBINSON: Mr. President, would it be okay if I have
17 Mr. Krajisnik come back tomorrow, even though there may be a little bit
18 of time left over?
19 JUDGE KWON: That's a safer option. We may take it.
20 MR. ROBINSON: Thank you, Mr. President.
21 MR. NICHOLLS: Okay. Could I have P04592, please.
22 Your Honours, this is a new document, it wasn't on my list, but I
23 notified my friend that I would be using it.
24 Q. Now just asking you, Mr. Popovic, you talked about the reburial
25 operation and being in charge -- being involved, let me not say "in
1 charge," being involved in the aspect of the use of the fuel. Very
2 simply, there's been other evidence in this case I won't go into on
3 the -- you spoke about that at page 61 today, on the reburial operation I
4 don't want to go into. But very simply, this document concerns the fuel
5 use for that reburial; right?
6 A. Yes.
7 Q. And P04593 which is related to the document we just saw, same
8 thing, right, related to the reburial, it's about the reburial?
9 A. Yes, yes.
10 Q. Thank you. Okay.
11 MR. NICHOLLS: Now, could I have P01473, please. This is a diary
12 of General Mladic -- notebook of General Mladic, not diary. English
13 page 310, please, Serbian 314.
14 I'll go through this rather -- yeah, we were on the right page in
15 the English. 310, please. 314 in the Serbian.
16 And this is 22nd of August, 1995, 1.00 p.m., meeting with
17 General Smith. Present, General Mladic has written down:
18 Colonel Djurdjic, Indjic, Kusic, Krunic, Kosoric, Suka - if we go to the
19 next page in English - Popovic, Furtula, I, and interpreter Tijana.
20 Q. I'm not going to ask you all about the content of this meeting,
21 but do you remember being with General Mladic and these people in Borike
22 and with Mr. Kosoric?
23 A. I do remember absolutely, and then General Mladic had his picture
24 taken with General Smith. They exchanged caps and they were riding
25 horses. And I'll explain why I was present there if you're interested.
1 Q. Not at the moment, thanks.
2 MR. NICHOLLS: If we could go to page 315 in the English and
3 page 319 in the Serbian.
4 Q. I don't want to go page by page, but this is General Smith
5 speaking that Mladic is writing down.
6 "They equate you with people, you are accused of being a war
7 criminal, but that does not necessarily mean you are ..."
8 Do you remember Smith saying that to General Mladic?
9 A. This I do not remember exactly. It went through an interpreter.
10 I really do not remember this. The meeting started in a very vociferous
11 way. There were some heavy words that were heard, and then when things
12 loosened up, then they were roasting a lamb on a spit and so on. But
13 what they were discussing, I cannot remember the details.
14 Q. Okay. Now I want to show you a video you've seen before from
15 this time. We showed this same video to Mr. Kosoric when he was here in
16 this trial. And you'll see yourself with Svetozar Kosoric, the
17 Drina Corps intelligence chief, and Zoran Sarkic, Rogatica security.
18 MR. NICHOLLS: Sorry, P06335.
19 [Video-clip played]
20 MR. NICHOLLS: I don't know why there's no sound, Your Honour.
21 JUDGE KWON: Do you hear any sound, Mr. Popovic?
22 THE WITNESS: [Interpretation] No, Your Honour.
23 JUDGE KWON: Do you remember having watched this video?
24 THE WITNESS: [Interpretation] I remember the video footage very
25 well. I watched it during our trial, and I know even what can be heard
1 in the background. I can explain that --
2 JUDGE KWON: Then why don't you put your question.
3 MR. NICHOLLS: If we could just play the video to the spot I want
4 to stop.
5 Your Honours, I'm sorry, it's without the sound and there are
6 some spots where Mr. --
7 JUDGE KWON: Because Mr. Popovic said he remembered the footage
8 as well as the sound.
9 MR. NICHOLLS: Yeah.
10 JUDGE KWON: I think you can safely put the question.
11 MR. NICHOLLS: All right. Let's continue.
12 JUDGE KWON: I don't see a point of continuing. Just put your
13 question, Mr. Nicholls.
14 MR. NICHOLLS: Let's go to 2.53.2. Go back a bit. Go back a
15 bit. Play it.
16 [Video-clip played]
17 MR. NICHOLLS: Pause.
18 Q. That's Svetozar Kosoric next to you, right, you've got your arm
19 around him. That's you next to him. You're on the right as we look at
20 the screen?
21 A. That's right.
22 MR. NICHOLLS: We're at 2.43.3.
23 Q. This is that same time as that meeting with General Mladic;
24 right? 22nd August?
25 A. Here, in this place? No. This is Rogatica --
1 Q. Rogatica --
2 A. Yes, Rogatica, and it was some celebration. There was some villa
3 there. We had had a few drinks and -- did you see that reference to
4 Mirabeau a moment ago?
5 Q. Yeah --
6 A. I was reciting a poem by Jacques Prevert and ... yeah.
7 Q. Rogatica, exactly, that's what Svetozar Kosoric said as well.
8 MR. NICHOLLS: Keep playing.
9 [Video-clip played]
10 MR. NICHOLLS: Stop. I'll read it out to you:
11 "Come on, the two moustachioed fellows, you know like this.
12 Zoka, come over here, the entire OB is present. The war criminals."
13 Q. We'll play it for one more second and then I'll ask you a
15 [Video-clip played]
16 MR. NICHOLLS:
17 Q. All right. My question to you, Mr. Popovic, you told the truth
18 there in this video, didn't you? That's a truthful statement coming
19 right out of your mouth: You are a war criminal, a war criminal who
20 jokes about it?
21 A. Oh, Mr. Nicholls, I said a moment ago we were at that
22 celebration, we got drunk, we had had a few drinks, and we went outside
23 and I said that, no doubt about that, but you have to understand in which
24 context I said it. Because just on its own it doesn't mean a thing. At
25 the very beginning of the war we had been declared war criminals,
1 Radovan's Chetniks, Radovan's hillbillies. They called us all sorts of
2 names, and this was the allusion that I was making. Come on here, all of
3 us are war criminals. It's certainly not what you said.
4 Also next to me is Svetozar Kosoric and Zoka Carkic. Neither one
5 of them is accused. You see that this is just a joke, a benign joke, a
6 drunken joke, if you will. You see how I'm behaving.
7 Q. Yeah, but the funny thing about it is you make this joke and now
8 you're sitting here convicted of genocide. So it's true, isn't it, what
9 you said here? You are a war criminal?
10 A. Oh, really, I mean if I explain this sincerely, frankly, from the
11 bottom of my heart and soul and you translate it into something
12 different, then I'm speechless. I stand by what I said a moment ago.
13 And now me being here ...
14 MR. NICHOLLS: Thank you, Your Honours.
15 JUDGE KWON: Thank you, Mr. Nicholls.
16 [Defence counsel confer]
17 JUDGE KWON: Mr. Karadzic, do you have any re-examination?
18 THE ACCUSED: [Interpretation] Well, I would like us just to call
19 up that photograph number 8, to establish whether it matches the
20 description. Otherwise, I have no other questions for Colonel Popovic.
21 If you think it is unnecessary, then I'm not even going to ask about
23 JUDGE KWON: No, it's up to you.
24 THE ACCUSED: [Interpretation] Well, P600, could that please be
25 called up, photograph number 8.
1 JUDGE KWON: MFI 6500.
2 THE ACCUSED: [Interpretation] That's the photograph.
3 Re-examination by Mr. Karadzic:
4 Q. [Interpretation] Colonel, sir, does it look like these hands had
5 been tied in the back?
6 A. The picture is self-explanatory. It seems to me that it is in
7 the front.
8 Q. Thank you. Thank you, Colonel, sir. I have no further questions
9 for you.
10 A. You're welcome.
11 JUDGE KWON: That concludes your evidence, Mr. Popovic. Thank
12 you for your testimony. You may be excused.
13 Thank you, Mr. Zivanovic, for your assistance as well.
14 THE WITNESS: [Interpretation] Mr. President, I would like to
15 address you with a few words, if you allow me to do so?
16 JUDGE KWON: What is it about?
17 THE WITNESS: [Interpretation] Well, about some things that the
18 Prosecutor had not raised here. For instance, there is this very
19 interesting intercept that was interpreted in a completely different way
20 in our case and there is not a single person here that can clarify that
21 better, and in my view it was represented in a completely different way
22 there --
23 JUDGE KWON: I don't think it will assist the Chamber. We will
24 not hear you this time.
25 THE WITNESS: [Interpretation] Very well. Thank you. I meant --
1 I mean, there is no one who can deal with it better than I can because I
2 was the one who was speaking.
3 JUDGE KWON: Thank you for your testimony.
4 THE WITNESS: [Interpretation] Thank you.
5 [The witness withdrew]
6 THE ACCUSED: Would the Chamber be interested in seeing what
7 "balija" means?
8 JUDGE KWON: It's up to you, Mr. Karadzic.
9 THE ACCUSED: I tender it by bar table --
10 JUDGE KWON: No, no, no, you will have another opportunity to
11 tender -- to elicit such evidence through a proper -- appropriate
13 Mr. Robinson, Judge Baird has a question for you.
14 MR. ROBINSON: Very well. Thank you.
15 JUDGE BAIRD: Mr. Robinson, should the motion be granted and --
16 JUDGE KWON: It's about Krajisnik.
17 MR. ROBINSON: Yes.
18 JUDGE BAIRD: Yes. And the Prosecution is precluded from
19 questioning the witness on statements he made in parliament, what would
20 be the evidential value of those statements in the absence of
21 cross-examination? I mean, how would you invite the Chamber to approach
22 that evidence?
23 MR. ROBINSON: I think it would be approached in the same way as
24 you would approach evidence from other witnesses whose statements are
25 introduced in transcripts of Assembly sessions but who have not appeared
1 here. So basically you -- I wouldn't be asking you to disregard that
2 evidence simply because the witness had asserted a privilege as to
3 explaining it. So I think you would give it the same weight as if he
4 hadn't appeared.
5 JUDGE BAIRD: Thank you.
6 JUDGE MORRISON: But isn't there a qualitative difference between
7 a witness who is -- does not attend and is not required to attend and one
8 who is specifically called?
9 MR. ROBINSON: Well, there is, but in terms of taking the text
10 of -- let's just take an example of something Mr. Krajisnik said -- well,
11 on the 18th of March, 1992, in an Assembly session, in which his
12 Trial Chamber has found that this was a call to arms. So if he doesn't
13 come and explain -- isn't questioned about that, you are free to
14 interpret from the transcript of the Assembly session in whatever way you
15 believe the other evidence, including other things he may say about the
16 war and the events in general, lead you to conclude. So I don't think
17 that it's -- the fact that he has appeared as a witness here makes your
18 job any different. If that isn't addressed, then you take what evidence
19 you do have in the record and assess it based upon all the other evidence
20 that you have.
21 JUDGE KWON: Mr. Robinson, this is from your summary of
22 Mr. Krajisnik's evidence to be tendered. I quote:
23 "Mr. Krajisnik will describe the significant issues that arose in
24 the Assembly during 1991 and 1992 ..."
25 And further:
1 "He will also testify about the speeches by -- made by
2 Dr. Karadzic to the common Assembly as well as the interventions of
3 others during the Assembly sessions ..."
4 And it goes on:
5 "He will explain that there was never any plan or policy for a
6 pure Serbian entity or to explore -- or expel Muslims or Croats from
7 areas controlled by the Bosnian Serbs."
8 So one can consider that he's being called due to his role as
9 speaker of the Republika Srpska Assembly, and therefore the statements
10 made at these sessions are such an intrinsic part of his testimony that
11 it would not be fair to the Prosecution to proceed without
12 cross-examination on these issues. What would you say to that -- such
14 MR. ROBINSON: Mr. President, the -- as you can see from that
15 summary, it makes no reference to his own interventions at the Assembly
16 session. So he -- his testimony will include statements that are made at
17 the Assembly sessions at which he presided but not his own interventions,
18 because we think the privilege is limited to his own interventions. And
19 so I believe he is -- can testify and can be compelled to testify about
20 what was said at the Assembly by others but not by him.
21 JUDGE KWON: So he cannot be questioned as to the authenticity of
22 the transcript?
23 MR. ROBINSON: I think he can be questioned about the
24 authenticity of the transcript other than as to his own statements.
25 [Trial Chamber confers]
1 JUDGE MORRISON: How could privilege or immunity extend to
2 authenticity? I can see what you might say, that if he testifies that
3 they're authentic then claims privilege. But surely the -- privilege
4 only arises if the Court is satisfied that the transcripts are, in fact,
6 MR. ROBINSON: Well, I think he -- if he's being asked: Did you
7 say something -- here's the recording of what you are reported to have
8 said at the Assembly, is that what you said? I think he has a privilege
9 to -- not to answer that question. On the other hand, if he's asked: Is
10 this -- are these statements made by Assemblymen such and such consistent
11 with your recollection or does the transcript in general, does that
12 appear to be faithful to the discussion as you recall it? Other than
13 dealing with his own statements, I think he could answer those questions.
14 But if he says: Yes, this transcript is -- or if he's required to say:
15 Yes, this transcript is what I said, then we're -- we have essentially
16 questioned him about what he has said in parliament, which is what we say
17 is privileged.
18 JUDGE MORRISON: So you wouldn't draw a distinction between what
19 is said and what is the consequence or object or understanding to be
20 drawn from the words used?
21 MR. ROBINSON: Well, I would say that he can't be questioned
22 about anything about what he said. That's the best I can say from the
23 language of the Bill of Rights and the United States Constitution.
24 JUDGE KWON: I take it the witness has been released?
25 MR. ROBINSON: Yes, Mr. President.
1 JUDGE KWON: Okay. Then unless there's anything to be raised,
2 the hearing is adjourned.
3 Yes, Mr. Tieger.
4 MR. TIEGER: I gathered that the Court didn't want further
5 argument, it's just to add some specific inquiries from Mr. Robinson
6 which it is deliberating about --
7 JUDGE KWON: Well, if you wish to, you can add something.
8 MR. TIEGER: All right. Well, I may raise them again further,
9 but Mr. Robinson has again reverted to arguing that anything he cites
10 from the US Constitution has entered customary international law. That's
11 all he could cite before. Then he attempted to distinguish from the rest
12 of his authorities which involved the conflation of immunity and
13 privilege that he argued against before. Whatever domestic jurisprudence
14 provides, and again, we haven't been provided with an adequate answer of
15 even what the circumstances are in domestic jurisdictions when they apply
16 and whether they would apply in any domestic jurisdiction to a situation
17 like this, we certainly don't have an answer for its applicability in
18 international jurisprudence. We continue to assert that this is a misuse
19 of the invocation of certain limited standards from domestic
21 But in any event, I simply wanted to note the question the Court
22 originally raised, and that was the fairness of using affirmatively in
23 some way the propositions that rely upon the alleged privilege that's
24 being invoked and then running from it when it comes time for
25 cross-examination. So what Mr. Robinson posits is the possibility that
1 you could raise a discussion in which the accused participates,
2 misleadingly characterise it, and then when it comes time to expose the
3 misleading nature of that explanation by pointing to the accused or the
4 witness's participation in that discussion, suddenly curtail the
5 discussion, so that it can't be commented on. That seems to me, as the
6 Court was suggesting in its question, cannot possibly be an approach that
7 is countenanced by international law or any domestic jurisdiction either.
8 JUDGE KWON: If the Chamber comes to a conclusion that the
9 statements he made at these Assembly sessions are such an intrinsic part,
10 there's a possibility for the Chamber to conclude that his testimony
11 should not be allowed at all. What would you say to that?
12 MR. ROBINSON: Well, we would have to discuss that among
13 ourselves, but that may be something we would ask you for leave to
15 JUDGE KWON: Very well.
16 We'll continue tomorrow morning at 9.00.
17 --- Whereupon the hearing adjourned at 2.25 p.m.,
18 to be reconvened on Thursday, the 7th day of
19 November, 2013, at 9.00 a.m.