1 Wednesday, 12th January, 2000
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.37 a.m.
6 THE REGISTRAR: Good morning, Your Honours.
7 Case number IT-95-14/2-T, the Prosecutor versus Dario
8 Kordic and Mario Cerkez.
9 JUDGE MAY: Yes, Mr. Sayers.
10 MR. SAYERS: Thank you, Mr. President.
11 WITNESS: CORNELIUS VAN DER PLUIJM
13 Cross-examined by Mr. Sayers:
14 Q. Mr. Van der Pluijm, good morning. My name is
15 Stephen Sayers. I'm one of the attorneys representing
16 Dario Kordic, and I would estimate having about 20 to
17 30 minutes of questions for you today.
18 The first one is this: As I understand it,
19 your tour of duty in Central Bosnia began on January
20 the 12th, 1993; it ended on April the 7th, 1993, with a
21 break for rest and recreation between February the 27th
22 and March the 16th.
23 A. Yes, that's right.
24 Q. So all in all, you spent approximately two
25 months total time in Central Bosnia; is that correct?
1 A. That's correct. I don't know exactly the
2 second date of my holidays. The 16th, you mentioned,
3 the 16th of March?
4 Q. I believe that's correct.
5 A. I don't know exactly. It's almost seven --
6 exactly seven years ago.
7 Q. Now, sir, you were present in Central Bosnia
8 at the time that the cease-fire negotiations occurred to
9 halt the fighting that occurred in the area of Busovaca
10 at the end of January of 1993; is that right?
11 A. That's right.
12 Q. And, indeed, the fighting was halted by a
13 negotiated cease-fire agreement, I believe.
14 A. Yes, it was.
15 Q. The agreement was dated January the 30th.
16 MR. SAYERS: Just for the Court's reference,
17 this agreement has already been marked as D54/1.
18 Q. And I believe, sir, and I can show you the
19 agreement if you do not recall, that the agreement was
20 negotiated by Franjo Nakic, who was the second in
21 command for General Blaskic for the Croats, and for the
22 Muslims, Colonel Dzemal Merdan, the second in command
23 of General Hadzihasanovic.
24 A. That's right.
25 Q. Also, this was in the presence of
1 Lieutenant-Colonel Stewart and Jeremy Fleming who also
2 signed the agreement on behalf of BritBat and the ECMM
4 A. That's right.
5 Q. Is it right, sir, that Colonel Blaskic was
6 not involved in these negotiations because he had been
7 caught by surprise in Kiseljak and could not get to
8 Busovaca or Vitez without being escorted there by
9 UNPROFOR vehicles?
10 A. Yes, that's correct. He was always escorted
11 by ECMM or by BritBat.
12 Q. Do you recall, sir, that two days after the
13 agreement was signed, further high-level negotiations
14 occurred at the BritBat base in Nova Bila on February
15 the 1st?
16 A. Yes, I know that.
17 Q. And those negotiations were attended by
18 Lieutenant-General Morillon, the top soldier for
19 UNPROFOR; General Hadzihasanovic for the Muslim side;
20 Colonel Blaskic from the Croat side; and also attended
21 by Colonel Stewart.
22 A. Yes, that's right.
23 Q. As I understand it, sir, and we've looked at
24 these orders yesterday, they were marked as Exhibit
25 Z471, the implementing orders carrying into force that
1 ceasefire agreement were signed on February the 13th,
2 1993 in Kakanj, and they were signed on behalf of the
3 warring factions by Colonel Blaskic for the Croats and
4 by General Hadzihasanovic for the Muslims.
5 A. Yes, it was in Kakanj. The date I don't know
7 Q. Those orders dealt with a wide variety of
8 subjects relating to things such as release of
9 prisoners, filling in of trenches, and a variety of
10 other things, and the orders speak for themselves; do
11 you recall that?
12 A. Yes, I do.
13 Q. All right. Now, it's true also that
14 Mr. Kordic was never involved in any of those cease-fire
15 negotiations, that he never attended any of them and
16 was never invited by anybody to attend, as far as you
17 know; isn't that correct?
18 A. Yes, that's correct.
19 Q. All right. In your statement, sir, that was
20 given to the investigators for the Office of the
21 Prosecution in December of 1996, February and March of
22 1997, you stated that there were times when you wanted
23 the top regional commanders present for discussions or
24 conversations at which commitments had to be made, and
25 there were times when you required Colonel Blaskic and
1 General Hadzihasanovic to be present. I'm just looking
2 at page 4.
3 You also stated that it sometimes caused
4 problems when the top ranking regional commanders sent
5 lower ranking persons such as Franjo Nakic or Colonel
6 Merdan; isn't that correct?
7 A. Yes, that's correct.
8 Q. And that was because the top ranking
9 commanders wanted to deal essentially with someone of
10 equal rank and they were not prepared to deal with
11 someone that they viewed as being lower rank to them;
12 isn't that correct?
13 A. Yes, that's right.
14 Q. Now, isn't it true that neither General
15 Hadzihasanovic, nor Colonel Merdan at any time, as far
16 as you're aware, ever insisted on negotiating with
17 Mr. Kordic or insisted that he be present at any
19 A. No, they insisted not on that.
20 Q. Nor did any other representative from the
21 Muslim side, as far as you're aware; isn't that
23 A. Yes, that's correct.
24 Q. You gave some testimony, Mr. Van der Pluijm,
25 concerning the purpose of the Busovaca joint
1 commission. As I understand it, it was to provide a
2 forum in which problems could be raised and resolved
3 between the various warring parties; correct?
4 A. Yes, that's right.
5 Q. To prevent problems like people's houses
6 being burned by both sides; correct?
7 A. Yes, correct.
8 Q. And to prevent the murder and harassment of
9 civilians, again by both sides; right?
10 A. Yes, right.
11 Q. The Busovaca joint commission, sir, was
12 originally located in the office -- actually, it was
13 originally located in an office within the Dutch
14 Transportation Battalion in Busovaca, was it not?
15 A. In the beginning, yes.
16 Q. And then ultimately it moved to Vitez, I
17 believe, according to page 1 of your statement, on
18 March the 20th of 1993.
19 A. Yes, and we had also a short period in a
20 house near the location of the transport battalion.
21 Q. In Busovaca?
22 A. In Busovaca.
23 Q. All right. Sorry for the delay, sir. I'm
24 just waiting for the interpreters to catch up.
25 Now, sir, the Busovaca joint commission, of
1 which you were for a time, I believe, the chairman, for
2 11 days from February 14th to February the 25th of
3 1993, --
4 A. Yes, that's right.
5 Q. -- this commission met every day at
6 approximately 8 a.m.; correct?
7 A. Yes.
8 Q. The commission meetings were chaired by an
9 ECMM representative?
10 A. Yes.
11 Q. Yes. And both warring factions were
12 generally represented by senior military
13 representatives on either side; is that right?
14 A. Yes, that's right.
15 Q. And routinely a representative from UNPROFOR,
16 the BritBat contingent of UNPROFOR, was also present
18 A. Yes. We were supported by BritBat.
19 Q. All right. As I understand it, sir, the
20 initial meetings generally lasted from about 8 a.m.
21 to about 10 a.m. every day, followed by teams
22 composed of representatives of all sides who went out
23 into the field to investigate particular problems or
24 complaints that were raised that morning. Is that
1 A. That's correct.
2 Q. All right. And representatives of the HVO
3 forces and the ABiH forces would remain in the office,
4 along with the chairman, while the field investigations
5 were being carried out?
6 A. Yes, that's right.
7 Q. And then the teams would usually return by
8 late afternoon, 4 p.m., 5 p.m., and a debriefing
9 would then occur on the results of the investigations;
11 A. Yes, that's also correct.
12 Q. You yourself, sir, perceived a problem with
13 orders filtered down from the top level to the local
14 commanders or local contingents in the field on both
15 sides, did you not?
16 A. Yes, I did.
17 Q. And because of these problems, you decided to
18 take matters into your own hands and actually take
19 military representatives from both sides into the field
20 so that the local contingents, the local commanders,
21 could understand that these orders were coming directly
22 from the recognised regional local commander and that
23 those orders should be obeyed and recognised; correct?
24 A. Not quite it all. We had a meeting with
25 local commanders in the headquarters of DutchBat, local
1 commanders at platoon levels and higher.
2 Q. All right. This was something that you
3 instituted, though, and it actually was successful in
4 gaining a larger degree of co-operation with the local
5 forces receiving commands from higher authorities;
7 A. Yes, that's correct.
8 Q. And generally speaking, if you were, for
9 example, unable to get past a checkpoint, a call would
10 be placed either to Mr. Nakic or Colonel Merdan for
11 assistance, and they would give their assistance, and
12 if they were unable to procure a removal of the
13 checkpoint, then a call would be made to their
14 respective commanding officers, Colonel Blaskic or
15 General Hadzihasanovic, and the problem would then be
16 resolved quickly; correct?
17 A. It should be, yes.
18 Q. Throughout your association with the Busovaca
19 joint commission, sir, and before that, isn't it true
20 that both sides regularly accused each other of attacks
21 on civilians, murders, detentions, and keeping of
22 prisoners in poor conditions?
23 A. Yes, that's true.
24 Q. And you investigated these allegations, and
25 some were found to be true and some were found not to
1 be true on both sides?
2 A. Yes. We could not investigate all of those
3 incidents, but most of them.
4 Q. Both sides routinely claimed that any
5 wrongdoers would be apprehended and punished; isn't
6 that right?
7 A. Yes.
8 Q. And indeed accusations of ethnic cleansing
9 were made on both sides against each other; isn't that
11 A. That's right.
12 Q. In fact, I think you described on page 4 of
13 your statement a few years ago that you recalled a
14 meeting on February the 5th and 6th at the Busovaca
15 joint commission where both Colonel Blaskic and Colonel
16 Merdan initially denied acts of ethnic cleansing and
17 then blamed them upon each other.
18 A. Yes, I know, but not the date exactly. But I
19 know that incident, yes.
20 Q. That's fine. Isn't it true, sir, that
21 Mr. Kordic never once attended any meetings of the
22 Busovaca joint commission, as far as you're aware?
23 A. I only met him once in a meeting in BritBat
24 in Vitez, but I don't know exactly when. We had no
25 contact in the negotiations, so I didn't recognise him
1 at that moment.
2 Q. The only point that I was making,
3 Mr. Van der Pluijm, was that he never actually attended
4 any of the Busovaca joint commission meetings, as far
5 as you're aware. Is that right?
6 A. Not in any Busovaca joint commission, no.
7 Q. You also told the Prosecution investigators
8 in your statement that most of the fighting in January,
9 February, and March of 1993 was carried out by
10 villagers themselves and people returning from actual
11 combat on the front lines with the Bosnian Serb army
12 forces, these people returning with their weapons. Do
13 you recall that?
14 A. Yes.
15 Q. And that remains your opinion today, sir, I
16 take it.
17 A. Yes.
18 Q. Thank you. You weren't aware of any regular
19 army units being used to carry out these combat
20 activities, were you, the fighting in January,
21 February, and March of 1993?
22 A. No.
23 Q. All right. You also gave some testimony
24 regarding a prisoner release that was arranged at the
25 Busovaca bus station, I believe, on February 8th of
1 1993. You said that prisoners on both sides appear to
2 have been maltreated. You also described a visit to
3 the Koanik prison facility, where you only saw
4 criminals kept. Let me just ask you one question in
5 connection with prisons and imprisonment, sir.
6 You thought there was actually good
7 compliance by both sides with the orders that were
8 agreed to by Colonel Blaskic and General Hadzihasanovic
9 on keeping detention conditions at a fairly humane
10 level; isn't that correct?
11 A. Yes, that's correct.
12 Q. All right. Now, sir, you also stated in your
13 statement of three years ago that you viewed,
14 throughout your time as an ECMM monitor,
15 Colonel Blaskic as a capable and effective military
16 commander who had good control over HVO forces in his
17 operational zone, which was Central Bosnia; correct?
18 A. Yes, but I don't know exactly my statement of
19 three years ago now. But it could be.
20 Q. But that remains your view today?
21 A. Okay, yeah.
22 Q. You viewed him as a professional military
24 A. Yes, okay.
25 Q. And as the most senior HVO military commander
1 in Central Bosnia; correct?
2 A. Yes, that's correct.
3 Q. In fact, it was clear to you that in
4 connection with military matters, military operations,
5 it was Colonel Blaskic who gave the orders to his
7 A. Yes.
8 Q. In fact, you gave the opinion, sir, that it
9 would not be possible for troops under
10 Colonel Blaskic's command to move around the area or to
11 engage in operations without his knowledge and specific
12 consent; correct?
13 A. No, that's not correct. I -- and you
14 mentioned it before -- I had the impression that not
15 all the commanders at lower levels knew what to do, so
16 I arranged that meeting with the lower commanders in
17 Busovaca. So it is not correct that Colonel Blaskic
18 knew everything about happenings in the checkpoints or
19 in the field, not at that moment; maybe later on.
20 Q. Thank you, Mr. Van der Pluijm. I don't mean
21 to challenge you in any way, but in your statement, and
22 we can put it on the ELMO if you wish, I just read you
23 the following sentence at the top of page 8. It says:
24 "In my opinion --"
25 THE INTERPRETER: Could you slow down,
1 Mr. Sayers, please?
2 MR. SAYERS:
3 Q. "-- troops not under Mr. Blaskic's control to
4 move around the area without his knowledge or consent"?
5 A. Yes, but I did not understand that because I
6 heard another voice in my -- I didn't hear it.
7 MR. SAYERS: Sorry. Why don't we just put
8 this on the ELMO.
9 JUDGE MAY: Yes, put it on. And Mr. Sayers,
10 you're asked to slow down again.
11 MR. SAYERS: Yes, sir.
12 Q. The sentence that I read, Mr. Van der Pluijm,
13 and please feel free to give any observations or
14 qualifications that you wish, appears right at the top
15 of the page. It says:
16 "In my opinion, it would not have been
17 possible for regular troops not under Blaskic's control
18 to move around the area without his knowledge or
20 Does that remain your view today or --
21 A. Yes. The word "regular" is -- that's what I
22 mean, yes.
23 Q. Yes, thank you. Thank you very much.
24 Just one other question in connection with
25 Colonel Blaskic and his relationship with General
1 Hadzihasanovic. These two, throughout their dealings
2 with you, treated each other very much as enemies; in
3 fact, they refused even to shake hands. Isn't that
5 A. Yes, I've never seen them shaking hands.
6 Q. They exhibited, in your view, a high level of
7 personal animosity towards one another and professional
8 animosity, if you like?
9 A. I think.
10 Q. Yes?
11 A. Yes.
12 Q. Thank you. Now, in connection with the
13 meeting that you described with Mr. Kordic, would you
14 agree that that meeting is not described in any ECMM
15 written report, as far as you're aware?
16 A. His representative note, but I don't know if
17 the report of that meeting especially was not reported
18 on higher levels. I don't know.
19 Q. The transcript is a little unclear,
20 Mr. Van der Pluijm. You referred to something that
21 says "his representative notes," but are you saying
22 that you took notes or that someone at the meeting with
23 Mr. Kordic took notes, or do you just not recall?
24 A. At the meeting at BritBat, notes were taken
25 by a British soldier, British captain.
1 Q. A British captain?
2 A. Yes.
3 Q. And you don't really have a recollection of
4 when this meeting occurred, other than sometime before
5 you went on vacation in February of 1993?
6 A. Yes.
7 Q. All right. You related a telephone call.
8 You actually do not know who Mr. Kordic reached on the
9 telephone call to give you the help that you'd asked
10 for; isn't that right?
11 A. At the incident with the checkpoint?
12 Q. Yes.
13 A. That's right.
14 Q. You do not know who he called; correct?
15 A. No.
16 Q. But he gave you the help for which you'd
18 A. Yes, he called in his office.
19 Q. Thank you very much, indeed, Mr. Van der
21 MR. SAYERS: I have no further questions.
22 MR. KOVACIC: Your Honour, the Cerkez Defence
23 will not have any questions on cross. Thank you.
24 MR. NICE: Briefly.
25 Re-examined by Mr. Nice:
1 Q. Soldiers returning from the front lines, in
2 your experience, was there any particular significance
3 in their condition or in their attitude, these soldiers
4 returning from the front lines?
5 A. Yes. We often recognised a change in the
6 front line by shooting in the air by soldiers coming
7 back from the front line, and often they had -- they
8 were drunk.
9 Q. Did their attitude, in your judgement,
10 present problems for those commanding them and
11 controlling them?
12 A. I think so, yes. I'm sure.
13 Q. Second point. You'd been asked about a
14 passage of your witness statement.
15 MR. NICE: May he have the whole witness
16 statement before him, please. We looked at a passage
17 on page 8. If we could now put the bottom of page 7 on
18 the ELMO, please.
19 Q. What you were asked about was Blaskic's
20 control of the troops in the area, but what that
21 passage -- where that passage appeared was immediately
22 after a passage that dealt with the same general topic,
23 and at the foot of page 7, do we see this passage:
24 "Blaskic was the most senior HVO military
25 person in the area. The most senior political figure
1 was Dario Kordic and it appeared that Blaskic informed
2 Kordic of significant points before implementing them.
3 It seems to me that Blaskic was the extension of
4 Kordic. For military operations it was Blaskic who
5 gave the orders to his troops."
6 Then you say: "At the moment I left this
7 area in my opinion Blaskic was well informed about the
8 positions of his troops and the orders he gave reached
9 them. A great credit of what has been achieved by the
10 BJC was due to the successful efforts of the HVO and
11 ABiH representatives in the BJC to solve many problems
12 and convinced the low level commanders to follow
13 orders." And then the statement went on at the top of
14 page 8 to deal with what we've already heard about, the
15 possibility or otherwise of regular troops not under
16 Blaskic's control moving in the area.
17 But if we come back to the first passage at
18 the foot of page 7, does it remain your opinion that
19 Blaskic was an extension of Kordic?
20 A. No. I had the impression that Blaskic had to
21 investigate, to inform Kordic in Busovaca.
22 Q. When you spoke to us yesterday of the delay
23 in Blaskic being able to make final decisions because
24 of reporting to someone else, was it this that you had
25 in mind?
1 A. Yes. Not only this but also his military
3 Q. Third point -- thank you very much -- the
4 visit of the Dutch General that you cannot date, the
5 visit where the checkpoint was dealt with by Kordic by
6 the one telephone call, if it's material, do you think
7 the records will exist that will enable us to find the
8 date of that visit?
9 A. Yes. Your witness Colonel de Boer was at the
10 time commander of DutchBat, and he knows exactly when
11 many Generals came to his headquarters.
12 MR. NICE: That's all I ask. This witness is
13 retired and therefore it's a burden on him to ask him
14 to make inquiries of the Dutch military, but if my
15 friends want the date identified with clarity, I'll
16 take steps, if I can, through the Dutch authorities.
17 JUDGE MAY: Very well.
18 MR. NICE: That's all I ask.
19 JUDGE MAY: Mr. Van der Pluijm, that
20 concludes your evidence. Thank you for coming to the
21 International Tribunal to give it. You are released.
22 THE WITNESS: Thank you.
23 [The witness withdrew]
24 JUDGE MAY: Let me deal with something
25 immediately while I have it in mind. We have been
1 given the transcripts of Colonel Stewart's statement.
2 We also have a draft summary. Can you help us as to
3 this, to make sure that we understand it: There is
4 reference in the summary to page numbers in the
6 MR. NICE: Yes.
7 JUDGE MAY: Now, as we understand it, there's
8 a correct transcript, as it were, a formal transcript,
9 and an informal one, and we have been given the formal
10 transcript, the formal Registry transcript. It's
11 clearly important that when the witness gives evidence,
12 we all work from the same pagination and the witness
13 has it too. Now, as I understand it, the plan is that
14 everyone will work from the official Registry
16 MR. NICE: Yes.
17 JUDGE MAY: Which of the pages which are
18 referred to in the summary are references to the
19 official transcript?
20 MR. NICE: I hope that the ones in brackets
21 are, and I say that for this reason: I was in
22 discussions yesterday afternoon over the telephone with
23 your legal officer, and she told me where the numbers
24 began. I had the other version, as it were, the rough
25 version, before me, and I simply added on to the page
1 numbers I had identified by what appeared to be the
2 appropriate additional number of pages. But I haven't
3 yet had a chance to check the official version against
4 the numbers that I calculated, so those bracketed
5 numbers may need correction. I'll deal with it today.
6 JUDGE MAY: And if you would make sure a
7 message is sent through, or preferably a written
8 document, clarifying the point so that when we start
9 reading the transcript, we know what to look for.
10 MR. NICE: It should be the bracketed
11 numbers, and it should either be accurate or accurate
12 within one or two page numbers.
13 JUDGE MAY: Yes. Thank you.
14 I've been handed a letter today from
15 yourself, Mr. Nice, concerning the continuing
16 litigation about the binding orders.
17 MR. NICE: Yes.
18 JUDGE MAY: I don't know how much of that can
19 be dealt with today.
20 MR. NICE: I'm not sure which letter it is at
21 the moment. There's been quite a correspondence over
22 the adjournment since December. But I was going to
23 turn to that matter as one of a number of
24 administrative matters to deal with today, and I
25 thought I'd deal with all the small matters first,
1 identify what should probably be dealt with ex parte
2 and then deal with the question of representation
3 tomorrow and the binding order litigation last.
4 JUDGE MAY: Very well.
5 MR. NICE: I don't know if that would be
6 convenient. The witness I had hoped to attend today
7 was eventually located by the right telephone number
8 yesterday afternoon, and I'm, if not happy, at least
9 consoled to be able to tell you that he wouldn't have
10 been able to attend today in any event, and I can
11 explain to the Chamber that I started the process of
12 securing further witnesses before Christmas, or trying
13 to secure further witnesses for today, but it was
14 always going to be difficult simply to fill what, at
15 most, would be one day. I'm sorry about that.
16 Outstanding issues, apart from representation
17 tomorrow. We remain without an argument about the
18 admissibility -- an argument in skeleton form from the
19 Defence about the admissibility of the witness,
20 Professor Cigar, or Cigar. If it is still the
21 intention to challenge his status as an expert, I would
22 respectfully suggest that the sooner the skeleton is
23 available, the sooner we'll be able to argue the
24 point. Maybe the argument is no longer being pursued.
25 We were told it would be available, I think, this week
1 or before this week.
2 JUDGE MAY: Yes. Well, we'll turn to the
3 Defence to see what the position is on that.
4 Yes, Mr. Sayers.
5 MR. SAYERS: Mr. President, the position is
6 this: The status of Norman Cigar as an expert is being
7 challenged and we expect to be able to deliver to
8 Mr. Nice, as previously stated, our skeleton argument
9 perhaps by tomorrow; if not by tomorrow, then certainly
10 by Friday.
11 JUDGE MAY: When, at the moment, is it
12 proposed to call that witness? I mean, if you can't --
13 MR. NICE: I do have a note of that. Let me
14 just find out. He's currently not until the 21st of
15 February. It may be that this is an argument that
16 can't be disposed of, other than by a three-judge
17 court --
18 JUDGE MAY: I would anticipate that. There's
19 no immediate hurry for it.
20 MR. NICE: We can reserve the argument until,
21 at the earliest, the week after next.
22 JUDGE MAY: Yes.
23 MR. NICE: The second small point for
24 observation or assistance from the Chamber. There was
25 either the suggestion or the order or the requirement
1 that witnesses requiring protection should sign up to
2 that requirement, as it were, ahead of coming here.
3 You will notice from one or two of the summaries
4 prepared in respect of local witnesses, that is, local,
5 either here or in England, that I've been able to have
6 that done or I've done that myself and that witnesses
7 have signed, for example, a summary which sets out
8 where they require or seek protective measures.
9 It will not, I think, be possible to do that
10 in respect of any other, and there may not be many, any
11 other witnesses coming from the former Yugoslavia.
12 Logistically it won't be possible to go down and get
13 them to sign up requests and then bring those signed
14 requests here. In respect of those witnesses, although
15 we'll know perhaps in advance, and we hope we'll know
16 in advance, that they seek protection, I'm afraid it
17 probably won't be possible for any such remaining
18 witnesses to have signed requests available in
19 advance. I hope that the general flexibility will be
21 JUDGE MAY: Provided that is made clear that
22 that hasn't happened and an explanation is given, we
23 will obviously consider it at the time.
24 MR. NICE: Thank you very much. Included in
25 the documentary material served on the Defence are
1 several binders of material dealing specifically with
2 the issue of international armed conflict. That
3 material will, of course, be in addition to the very
4 considerable body of evidence from the witnesses that
5 already exists going to show the international nature
6 of the armed conflict. It may be that the Defence will
7 no longer be challenging that as an issue, although I
8 note the cross-examination that's gone on, and I
9 certainly invite them to reconsider their position.
10 The written material or the documentary
11 material is voluminous. To some degree, it requires
12 evidence from witnesses; (redacted)
17 (redacted). We are loathe
18 to spend the Court's time and to burden the Court with
19 an excess of evidence on a topic that may ultimately
20 prove to be proved overwhelmingly.
21 Starting at the back, what we can't do -- we
22 can't very comfortably invite the Court to say it's had
23 enough evidence on a particular topic, although at
24 earlier stages the Court has indicated that it may say
25 in respect of particular topics, "Well, we're going to
1 stop you calling more evidence on that topic because
2 we've had enough already." What we would suggest is
3 that the Defence give further consideration to whether
4 this is really an issue or whether this is something
5 that can now be taken shortly, and if not, then we
6 would simply invite the Court at some stage to consider
7 whether this is one of those topics where it will be
8 able to say to us, "You've provided as much evidence as
9 it is appropriate for you to lead."
10 The second of those two names, apparently,
11 ought to be redacted, so I'm sorry about that.
12 Although he's been served, he still ranks as
14 JUDGE MAY: I'm getting a reaction from the
15 Defence on this particular topic.
16 MR. SAYERS: I think there are three things
17 that require us to address, Mr. President.
18 The first is the position with respect to the
19 documents served on us supporting the Prosecution's
20 argument that there has been an international armed
21 conflict in the areas involved in this case. We will
22 certainly try to review those documents. The last set
23 was received late yesterday afternoon. There are three
24 sets of documents that have been served upon us so
25 far: one dealing with the position insofar as 1991 is
1 concerned; the second volume deals with 1992 and 1993;
2 and then the third volume that we received yesterday
3 deals with 1994.
4 I haven't done a head count of the documents,
5 but it seems to me that there are approximately a
6 thousand documents, individual documents, there. As
7 the Court can appreciate, that takes some time to comb
8 through. We'll do it as fast as we can, and we will
9 let the Prosecution -- and if the Court wishes, the
10 Court as well -- know what our position is with respect
11 to the admissibility of those documents. I can't give
12 a date by which that will be done, other than to say
13 that in good faith, we'll do it as soon as possible.
14 The second issue, it seems to me, is whether
15 the Defence concedes that there was an international
16 armed conflict in Central Bosnia from November of 1991
17 to March of 1994, which is the time period covered by
18 the amended indictment. I cannot speak for the Cerkez
19 Defence, but from the perspective of the Kordic
20 Defence, let me give you our preliminary views on that,
21 if I may.
22 As I understand, the Tadic Appeal Chamber
23 decision that was rendered, I think, on July the 15th
24 of last year, the inquiry is specific as to area.
25 There may be an individualised determination that there
1 was an international armed conflict in one area and yet
2 in another area there may be a determination that there
3 was not. The recent Aleksovski decision is a good
4 example of that, concluding that on the evidence
5 presented, there was no international armed conflict in
6 Central Bosnia at the time covered by the Aleksovski
8 Our position is that about 99 per cent of the
9 evidence, as far as I can see from the 1.000 exhibits
10 or so that have been assembled by the Prosecution, deal
11 with the allegations of involvement by the Croatian
12 army in Herzegovina, Southern Herzegovina, in the
13 Prozor-Jablanica regions. Our position is that our
14 client had nothing to do with anything that occurred in
15 Herzegovina. He did not visit Herzegovina, as far as
16 I'm aware, at any time in 1993 and could not because of
17 the wartime conditions. I do not believe that any
18 serious argument can be made that Mr. Kordic had any
19 degree of political influence in Herzegovina, and it
20 certainly cannot be contended in good faith that he had
21 any military influence in Herzegovina at all. It
22 cannot be contended, I believe, that he could be
23 reasonably argued to have any responsible for detention
24 conditions in Herzegovina in places such as the
25 Heliodrom or Gabela, and I do not believe that it can
1 be reasonably contended that he had any role whatsoever
2 in the conduct of military operations there, which was
3 in a completely separate operative zone, the Northwest
4 Herzegovina Operative Zone.
5 JUDGE MAY: Mr. Sayers, I'm going to
6 interrupt you because there's no need at this stage to
7 argue the point. You are not conceding that there was
8 an international armed conflict in Central Bosnia at
9 the relevant time; is that the position?
10 MR. SAYERS: I think that's the position, and
11 you've said it far more economically than I have. Let
12 me move on to the third argument, the transcript
14 With the Court's permission, what I would
15 like is simply the weekend to review the transcripts of
16 the public witness and the confidential witness, and I
17 will provide the Trial Chamber, on Monday, with our
18 position with respect to that.
19 JUDGE MAY: That will be a matter which will
20 have to be dealt with by the full Trial Chamber, so you
21 can take an extra week, if that's convenient.
22 MR. SAYERS: I appreciate that. Thank you
23 very much indeed, Your Honour.
24 JUDGE MAY: Yes, Mr. Kovacic.
25 MR. KOVACIC: Your Honour, in order to be
1 economical with the time, I really don't want to be
2 impolite, but I have to point out that during the
3 opening speech, the Prosecution clearly said that this
4 is not a documentary case, that this Court would be
5 hearing a lot of witness testimony, which it indeed
6 does. But this statement that it is not a documentary
7 case now appears to be very different. We are
8 receiving a bunch of documents. I'm not mentioning the
9 disclosures we already received in the eve of the
10 beginning of the trial, during the first months of the
11 trial. But in addition to all that, only in the last
12 about three weeks, it was shortly before Christmas
13 vacation and despite a tacit agreement that there won't
14 be too much papers exchanged during the Christmas
15 holiday, we did receive boxes of documents, and
16 altogether I guess that in the last three weeks --
17 those documents related to international war conflict
18 and some other documents -- there was as much as, I
19 counted, 1.400 pages of documents.
20 We are a small Defence. We are still working
21 on just entering the papers in database, let alone
22 analysing those documents, so obviously it is a
23 documentary case. And we will deal with those
24 documents, and we don't necessarily need for every
25 document a witness who will then explain what it's all
1 about in the documents, because then those are not the
2 documents. If the documents cannot speak by itself,
3 then we don't need that document. But anyhow, it will
4 be a burden to the Court and to the Defence as well,
5 and we will cope somehow with that.
6 As per international war conflict, and a lot
7 of documents are coming on that subject, we also
8 believe that there was no international war conflict
9 where we are talking, when we are talking about
10 Muslim-Croat conflict in middle Bosnia. And probably
11 there will be a lot of discussion which evidence from
12 the Blaskic case we can use in our case in some
13 economical way, because there was a lot of evidence
14 tendered on that subject.
15 That is about everything I wanted to say,
16 Your Honour.
17 JUDGE MAY: Thank you. Just one moment,
18 Mr. Nice, please.
19 [Trial Chamber confers]
20 JUDGE BENNOUNA: [Interpretation] Mr. Nice, I
21 believe that our Chamber is not going to open an
22 in-depth debate here on the question of the
23 characterisation of the conflict. That question
24 regarding the character of the conflict, was it an
25 international or internal one, is a question which is
1 in dispute between the parties. Mr. Sayers has just
2 told us that.
3 We also know that there is the Tadic
4 determination and that the characterisation of the
5 conflict goes parallel with the presentation of the
6 case. As you present your case as the Prosecutor, you
7 at the same time provide evidence, and in the course of
8 the presentation of evidence you introduce the
9 character of the conflict, that is, the external
10 interference in the conflict in this case in the Lasva
11 Valley. Therefore, in our opinion, we should not open
12 any kind of discussion on the actual character of the
13 conflict in itself, but this should be done in the
14 course of the presentation of the case.
15 You may also make a synthesis, a summary.
16 When you summarise your case, you will also give us a
17 characterisation of the conflict based on the evidence
18 that you have presented in the course of the
19 presentation of evidence, and the nature of the
20 conflict is a part of the Prosecution file as it has
21 been presented, and it will also be a part of the
22 Defence case as it is presented through the evidence
23 and in the closing statement, and it will be up to the
24 Chamber to make its determination. I think that is our
25 view of the nature of the conflict and bearing in mind,
1 of course, the jurisprudence of our Tribunal. There
2 has to be a certain degree of coherence in the
3 interests of justice, because justice requires
4 coherence and consistency and it must be clear to all
5 that justice has been served in a consistent manner.
6 JUDGE MAY: Mr. Nice, if I could add to that,
7 it may be sensible that the Prosecution, understanding
8 what the current position is, that is, that this is a
9 matter which is in dispute and is not going to be
10 conceded, to review their evidence upon this topic, to
11 put the matter, as His Honour says, coherently and
12 concisely before the Trial Chamber, for instance, to
13 review the documentation which you have presented to
14 the Defence, and really get out of it the really
15 relevant parts.
16 MR. NICE: I think we're going to do that in
17 any event, and our position will be made not easier but
18 clearer when we know whether and, if so, which
19 transcripts are going to be taken as evidence in the
20 case. Then we can, I think, provide a guide through
21 the voluminous material of international armed conflict
23 JUDGE MAY: I think there is a point, as
24 Mr. Kovacic said, that one does not want to overburden
25 a court with a lot of documents in this or any other
2 MR. NICE: Absolutely. The reason why I
3 first started this small part of today's debate is I
4 was concerned that you may indeed be overburdened, and
5 I wanted to find ways of reducing it. But --
6 JUDGE BENNOUNA: [Interpretation] Mr. Nice,
7 regarding documents, the documentation, as you know as
8 well as me, do not speak for themselves. A document
9 does not speak for itself always, and it is up to you
10 to put it in context. We cannot provide rough
11 documents, as such, because that could indeed present
12 certain extreme constraints on the Defence and the
13 Court. You present a document within the framework of
14 your own strategy, defining clearly the relevance that
15 you attach to it. You cannot simply have a pile of
16 documents and distribute them. I don't think that this
17 is useful for anyone. And it is up to you, when
18 presenting a document, to give it meaning. I think, of
19 course, that the same applies to the Defence, and it is
20 up to us here to rule when there is dispute between the
21 two parties on the meaning to be given to such
23 MR. NICE: One moment, please.
24 [The Prosecution confers]
25 MR. NICE: I think Your Honour has been
1 saying no more than to reflect how the case has already
2 been conducted.
3 As to documents speaking for themselves or
4 otherwise, many documents do speak for themselves, and
5 that's one of the reasons why I'm anxious to have the
6 authenticity of documents admitted rather than
7 slavishly approved in advance and to save the
8 expenditure of time on that as a free-standing issue.
9 Once we know, by the exchange of documents and by the
10 response of the Defence, which documents are accepted
11 for what they are, it will again be easier for us to
12 provide you with a synthesis of the material.
13 Mr. Scott, who has been involved in the very
14 labour-intensive business of dealing with documentation
15 recently and throughout the case, reminds me that in
16 Blaskic three binders of international armed conflict
17 material were presented, I think with guidance from
18 counsel as to their significance at an oral
19 presentation. And the process of distributing
20 international armed conflict material for this trial,
21 Mr. Scott and Mr. Lopez-Terres have been pruning the
22 bundles substantially in order to eliminate what is, in
23 our judgement, surplus or not helpful material. So one
24 way or another, we'll, I hope, provide both the
25 material, ensure that it's not challenged as to its
1 authenticity so that where necessary it can speak for
2 itself, and then provide you with a guide.
3 A couple of other small points.
4 The tape, just to keep people up to date on
5 that, we are finding out how long it's going to be
6 before a transcript of the whole tape is provided. The
7 witness statements producing it, which will, I think,
8 show that Mr. Stein's concerns on Monday can be met,
9 are also going through the process, and we are
10 accelerating, we hope, the processing of all the
11 material so that it can be available to the Defence as
12 soon as possible.
13 There are two issues that I identify as
14 issues likely to turn up soon, and it may be worth our
15 minds thinking about them.
16 First, the continuing difficulties about
17 producing affidavits or formal statements. The Rule
18 has been amended, we know. Even as amended, it's
19 pretty nearly going to be impossible of performance in
20 Bosnia, not for want of trying, we're trying everything
21 we can, but to get formal statements that don't involve
22 the active participation of another judge calling on
23 parties to come and cross-examine witnesses and so on,
24 it seems to me an insuperable problem. The same does
25 not apply, of course, to witnesses in England, Canada,
1 and elsewhere where they have an affidavit system in
3 In addition, the new requirements of 94 ter,
4 if they apply to this case, can probably be
5 requirements we can never meet because the various
6 requirements either just aren't practical for a case of
7 this size or, in any event, weren't in place at the
8 time all this started.
9 I wrote, amongst other things over the
10 adjournment, to the Defence, inviting them to say,
11 bearing in mind what His Honour Judge Bennouna
12 explained as the purpose behind the new Rule, what form
13 of written statement they would, in principle, accept,
14 subject to arguing the admissibility of each and every
15 one, inviting them to indicate what form they would
16 accept, met His Honour Judge Bennouna's helpful
17 analysis of what was the intention of the Plenary
18 session. So far, we haven't had any positive response
19 to that, simply in relation to all the documents that
20 we are producing, a warning that we can't or don't meet
21 the requirements of 94 ter.
22 Now, in relation to village binders and
23 following on the argument of the binder on Tulica, it
24 may be that the Chamber left open -- in fact, the
25 Chamber did leave open the possibility that individual
1 statements, whether witness statements or statements in
2 writing or whatever else, can be admitted because they
3 are simply a species of hearsay, and in presenting the
4 village binders and matters of that sort, we are not
5 necessarily restricting ourselves to having documents
6 admitted under 94 ter, with all its conditions and
7 difficulties so far as Bosnia is concerned, and we may
8 be seeking to have material admitted as hearsay in
9 accordance with the general potential for hearsay being
10 admitted to this Court.
11 That's a problem that's coming up, and so far
12 it appears there may be, on the Defence arguments,
13 simply no statements from the former Yugoslavia that
14 will ever qualify for 94 ter, and if that's the case,
15 if they're right in that argument and if they persist
16 in it, then let me make it plain: We will be seeking
17 the admission of statements in due course as hearsay,
18 as we explained in the Tulica application, and have
19 advanced as a proposition for us to take generally.
20 A second matter that I simply identify now
21 because I want to have -- as we are reaching the end of
22 our case, I want to make sure that we don't leave
23 things outstanding that will extend the case beyond the
24 adduction of evidence which is the time that I would
25 like to end the case really. Another problem relates
1 to transcripts in other cases, and in particular to the
2 transcript of evidence of the defendant Blaskic in his
3 case. There are two competing positions here, and if I
4 identify them, again it may help people to think about
6 JUDGE MAY: You're seeking to adduce the --
7 MR. NICE: Well, can I explain the problem?
8 JUDGE MAY: Yes.
9 MR. NICE: If you take, for example, the
10 problem with the tape that we seek to adduce in
11 evidence which speaks of communications between Blaskic
12 and Kordic by telephone, in the Blaskic case, Blaskic
13 himself gave a lot of evidence and no doubt was
14 cross-examined as much as anyone wanted to on that
15 particular topic and spoke of a lot of telephone
17 Now, it may be that in due course we would
18 seek this Chamber to know about and to take account of
19 what Blaskic said in relation to those phone calls,
20 bearing in mind in particular that he was
21 cross-examined as much as anybody wanted to
22 cross-examine him on that topic. It's, as it were, a
23 complete and free-standing topic. We would not, I say
24 "not" of course, we would not, of course, want to
25 adduce all of Blaskic's evidence on the grounds that it
1 is a truthful account. I would be surprised if we did,
2 given that properly he would have been probably a
3 co-defendant in a joint trial. But nevertheless we
4 might want the Chamber to have in mind, on the grounds
5 that it would be unrealistic not to, free-standing
6 passages of his evidence where it will be helpful.
7 The Defence, I think, would say that there
8 can be no selection, and if a transcript goes in at
9 all, it goes in altogether. Now, it may well be that
10 this matter will fall for argument and discussion in
11 due course because neither side would want to put -- to
12 call the witness, neither side would necessarily want
13 to have the evidence accredited to their side as
14 evidence put in for its truth, but each side would want
15 the Chamber to take account of some of what Blaskic
16 said in evidence.
17 JUDGE MAY: Well, Mr. Nice, it seems a novel
18 proposition but then there may be many novel
19 propositions here which we have to deal with.
20 MR. NICE: Yes.
21 JUDGE MAY: We'll hear the argument.
22 MR. NICE: I thought if I mentioned it now,
23 it's worth thinking about. I don't believe it's
24 covered by the jurisprudence yet. There is an analogy
25 that's worth having in mind, although it's
1 distinguishable from the facts of this particular case,
2 and the analogy is, of course, what would happen in a
3 joint trial? In a joint trial, a co-defendant giving
4 evidence would have his evidence there for
5 consideration in all cases, subject to various warnings
6 in different jurisdictions and so on. So to some
7 degree, it makes sense to think in terms of Blaskic's
8 evidence being available in this case, the two cases
9 plainly being cases that could and maybe even should
10 have been heard together, at least in other
11 circumstances. The difference is, and of course it is
12 a difference, the difference is that there would have
13 been in this case no cross-examination of Blaskic on
14 behalf of Kordic, so there's the difference, and,
15 indeed, no cross-examination of Blaskic by the
16 Prosecution prosecuting Kordic or Cerkez. So there are
17 similarities and an obvious distinction.
18 Having dealt with that, can I turn to the
19 matters that I suggest are properly now dealt with ex
20 parte, and if there's no challenge to that, then I can
21 deal with the representation tomorrow as the last
22 topic. I wish to deal with the enforcement of witness
23 attendance in respect of witnesses who have not
24 responded to subpoenas --
25 [Trial Chamber confers]
1 JUDGE BENNOUNA: [Interpretation] Mr. Sayers,
2 could you assist the Chamber, of course my question is
3 also addressed to the Defence of Mr. Cerkez, regarding
4 this question of affidavits. A question has been
5 raised by the Office of the Prosecutor regarding the
6 implementation of the new Rule. What could be accepted
7 from Bosnia in the form of affidavits? What could be
8 acceptable to the Defence? Could we have your
9 assistance on this point.
10 MR. SAYERS: Yes, Your Honour. But let me
11 just say, perhaps the answer best comes from people
12 more familiar with the procedure for taking affidavits
13 or giving formal statements in Bosnia-Herzegovina. But
14 as I understand it, there is no procedure for an ex
15 parte affidavit that is approved of under the law of
16 Bosnia-Herzegovina. For a formal statement to be taken
17 of a witness, there has to be a presiding judge and
18 both parties have to be present and ask whatever
19 questions they wish of the witness. That is a
20 procedure that appears to be unpalatable to the
21 Prosecution. They do not want any presence of Defence
22 counsel at that procedure which, as I understand it, is
23 required under the law of Bosnia-Herzegovina.
24 Our position is relatively simply. Rule 94
25 ter, as I see it, is relatively clear, a clearly
1 articulated Rule. For an affidavit or a witness
2 statement to come into evidence, ignoring for a minute
3 the other procedural requirements of Rule 94 ter, the
4 affidavit or witness statement has to comply with the
5 law of the state where the statement is taken, and
6 that's our position. I mean, I don't see how we can
7 articulate it any clearer than that, Your Honour. If
8 the statement complies or the affidavit complies with
9 the law of the state that it was taken, then it would
10 appear to comply with Rule 94 ter. If it doesn't, then
11 it doesn't comply with Rule 94 ter.
12 I hope that's sufficiently clear, Your
13 Honour. Maybe I'll yield the floor to Mr. Kovacic who
14 can, no doubt, give the Court a clearer explanation of
15 the law of Bosnia-Herzegovina. Thank you.
16 JUDGE BENNOUNA: [Interpretation] Mr. Kovacic
17 or Mr. Mikulicic.
18 MR. MIKULICIC: [Interpretation] Your Honours,
19 speaking as an attorney practising in the former
20 Yugoslavia and familiar with the regulations of the
21 area, I can say the following: The rules in the
22 territory of Bosnia-Herzegovina do not recognise an
23 affidavit statement in the form and in the way it is
24 recognised in common law countries and even certain
25 countries that apply continental law. So there's
1 simply no analogy.
2 The only kind of statement which would, in
3 essence, and I underline "in essence," correspond to
4 the concept of an affidavit statement is a statement
5 made before a competent court in the territory of
6 Bosnia-Herzegovina, observing the rules of procedural
7 law that apply to the taking of such a statement. That
8 means for a witness statement which would, in essence,
9 correspond to the requirements of an affidavit, it
10 would have to be given before a competent court and
11 both parties would have to be present when such a
12 statement is being made, which means both the Defence
13 and the Prosecution.
14 In our understanding, that is the only form
15 of statement that would correspond in essence to such
16 affidavit statements. Speaking at least on behalf of
17 the Cerkez Defence, the Defence would accept such a
18 statement on condition that the Defence be enabled to
19 be present when such a statement is being given. Any
20 other form of written statement cannot be acceptable to
21 the Defence, the reason being, first, that the domestic
22 law does not provide for such a statement and,
23 secondly, because only a statement given in court
24 corresponds to the criteria of an affidavit; that is,
25 the possibility of taking an oath and the possibility
1 of criminal prosecution in the case of any false
2 testimony being given. Only such a statement would
3 correspond to our rules.
4 That would be the position of the Defence of
5 Mario Cerkez. If Your Honours have any further
6 questions, I shall be glad to answer them.
7 JUDGE BENNOUNA: [Interpretation] No,
8 Mr. Mikulicic, not a question, but perhaps a point of
9 clarification. You said that the statement had to be
10 made before a competent court and in the presence of
11 both parties. What is the role of the parties in such
12 a case? A person is going to appear before a court,
13 he's going to make a statement under oath, he's going
14 to take an oath, make the statement, and the two
15 parties are present. What would be the role of those
16 two parties? Does that mean that the person would be
17 questioned in the presence of the judge and
18 cross-examined later, or is he limited to making a
19 statement on a particular subject? Because if we have
20 an examination-in-chief and a cross-examination, then
21 it is the same as a deposition statement which is
22 envisaged by our Rules. That is my question.
23 MR. MIKULICIC: [Interpretation] I understand,
24 Your Honour, and I shall do my best to respond.
25 The domestic law does not envisage the
1 examination of a witness without the presence of the
2 interested parties. In this case, it would be the
3 Prosecution and the Defence. However, it is up to the
4 Prosecution and the Defence whether they will examine
5 or not, but it is the obligation of the Court to enable
6 their presence precisely for the reason as to enable an
7 interested party to put questions if they wish to do so
8 in the course of the making of the statement. Of
9 course, this is a right that applies to both parties,
10 the Defence and the Prosecution.
11 It is, in effect, a kind of cross-examination
12 but not in the same scope as a cross-examination during
13 a hearing because, according to domestic law, such a
14 taking of statements is most frequently done before an
15 investigating judge of the local court who acts
16 according to the rules of provision of international
17 criminal assistance. So it would be the same procedure
18 as if, for instance, a regular criminal court in
19 Germany would request such and such a witness to be
20 heard and examined in Sarajevo. Such a request is sent
21 through the channel of international legal assistance,
22 and the investigating judge decides about it, who calls
23 the witness, as well as the attorneys in the case to be
25 JUDGE MAY: Is it possible to admit any other
1 witness statement in a domestic court which hasn't been
2 taken in this way?
3 MR. MIKULICIC: [Interpretation] I am not
4 aware of any other form of witness statement apart from
5 the one I have just described. There is no other
6 form. There is a possibility for a certain witness to
7 have made a statement on a subject that may be
8 interesting for us in this case in another criminal
9 case, for instance, before a court in
10 Bosnia-Herzegovina. That would be a statement given
11 under oath in a court of law, and so on, but that
12 statement may be interesting for another case and not
13 for this one. That statement could perhaps provide
14 some guidelines, but it would not limit the right to
15 cross-examination in a specific case, in our particular
17 However, if we were to try to obtain such a
18 statement that we need for this case, then this is the
19 only possible procedure, as far as I'm aware. There is
20 no other way of obtaining such a statement.
21 [Trial Chamber confers]
22 JUDGE MAY: Mr. Nice, our recollection is,
23 our distinct recollection is that in other cases before
24 this Tribunal documents have been admitted, not on the
25 basis that they were sworn to as the accuracy of the
1 statement but sworn to as being the person who actually
2 signed the document. Now, how far that meets the
3 criteria I don't propose to go at the moment, but they
4 have been admitted in other cases, the legal officer
5 reminds us, and it is my recollection too that that has
7 MR. NICE: This is Bosnian witnesses?
8 JUDGE MAY: Yes. It may be that you could --
9 rather than debating this now, the better course may be
10 for you to research with some of your colleagues as to
11 what has happened elsewhere and you can then pursue the
13 MR. NICE: We'll certainly do that. I have
14 to say that the research has been going on within the
15 office for a long time because we've been trying to get
16 round this thorny problem for months, or indeed over a
17 year, I think, and none of us is immediately aware, and
18 we've contacted, of course, all the case, at the moment
19 of that type of statement. We'll, of course, go into
20 it again, and any chapter and verse that can be
21 provided to us will be of assistance in tracking that
22 down. But our independent inquiries of the judicial
23 process in Bosnia doesn't lead to radically different
24 conclusions from those advanced on behalf of the
25 Defence as to the state of the law there.
1 I remember at one stage I asked of someone,
2 firstly myself and then someone else, what would
3 happen, for example, in a commercial case where you
4 might want to produce commercial documents. I can't
5 believe that in those circumstances there's no process
6 whereby a notary is not able to attest in some way to
7 the accuracy of a document. I can't believe that in a
8 shipping case in Dalmacija that they have to call each
9 and every witness to prove each and everything live,
10 but maybe I'm wrong. Mr. Mikulicic may tell me that I
11 am wrong. But we've looked at all possibilities so far
12 and haven't been able to find any.
13 Before I part from it on the promise to
14 conduct the further inquiry, the Chamber will have
15 observed the practical difficulties that are facing us
16 in relation to Rule 94 because of the involvement of a
17 whole new judicial process which is not, I think, what
18 the Plenary Session ever intended. But it's not just
19 practically difficult, probably difficult to the point
20 of being practically impossible, but it's impossible
21 for other reasons, including the fact that the
22 judiciary in the former Bosnia divides on Croat/Muslim
23 lines like everything else, and a Muslim witness of the
24 type who might be seeking protection here simply would
25 not have any confidence in appearing before a
1 non-Muslim judge. It's a pretty unattractive
2 proposition that we've got not only to go to some other
3 judicial process for its intervention but then be
4 selective about the judiciary to whom we go.
5 JUDGE MAY: I think rather than go through
6 this, it's getting on towards the time for a break
7 anyway --
8 MR. NICE: Yes.
9 JUDGE MAY: -- I suggest you look at those
10 other cases --
11 MR. NICE: Certainly we will and I'll report
13 JUDGE MAY: -- yes, and see what was
14 admitted. I suspect it wouldn't have been very
15 controversial evidence but it may come within the
16 criteria of corroborative evidence which is what the
17 Rule speaks of.
18 MR. NICE: Yes.
19 JUDGE MAY: Perhaps I could say this to the
20 Defence: I understand the position which you take, but
21 on the other hand some degree of flexibility may be
22 helpful when it comes to your own cases and you may
23 want to produce statements too when it comes to it.
24 What else is outstanding?
25 MR. NICE: First of all, I was going to
1 identify as material for an ex parte application the
2 question of the enforcement of witness attendance. It
3 may be that the fact that that should be dealt with ex
4 parte and in private is not controversial, in which
5 case we can put that back.
6 Then there's the whole question of
7 representation at tomorrow's hearings which we have
8 raised, and it may be that that was one of the things
9 dealt with in the letter of mine that you referred to
10 right at the beginning of the session. That will take
11 a few minutes, certainly, to expand upon --
12 JUDGE MAY: On which --
13 MR. NICE: -- in the presence of the
15 JUDGE MAY: On which topic, while I have it
16 in mind? We were promised a summary for tomorrow's
18 MR. NICE: Yes, it's here. I say it's here.
19 It is here. It's in tabulated form. Mr. Scott has
20 worked very hard, I know, to get it in a form that's
21 readily available, and it can probably be distributed
22 for you now if you're going to take a break. It's not
23 a document that goes to the Defence at this stage, of
24 course, but it's a document you can have now.
25 JUDGE MAY: So that will be the first
1 issue to be dealt with, the question of representation
3 MR. NICE: Yes.
4 JUDGE MAY: That presumably has to be heard
5 in private session.
6 MR. NICE: Private session, yes, but with the
7 Defence present.
8 JUDGE MAY: Of course. Are there any other
9 issues before the final point about the witnesses?
10 MR. NICE: No. No, that's it.
11 JUDGE MAY: Are there any matters which the
12 Defence want to raise?
13 MR. SAYERS: None from the Kordic Defence,
14 Your Honour, at this point. As I understand it,
15 there's going to be a Status Conference next Thursday
16 when we are going to raise preliminary matters, I
17 thought of the type that are being raised here, but
18 we'll raise them at that time.
19 JUDGE MAY: Yes.
20 MR. KOVACIC: Your Honour, I just wanted to
21 add, not to make things complicated. As per the
22 authentication of the documents in front of a notary
23 public or something, there is no problem. We are not
24 talking about that.
25 By the way, as you probably very well
1 noticed, so far there was no incident in which we would
2 challenge the authenticity of the document. We don't
3 insist on the form. If there is a document, we don't
4 see any need that these documents should be
5 authenticated via some witness or somebody or a notary
6 public. That's up to them. If they want to have
7 documents with nice red stamps and ribbons and
8 everything, I don't care. But so far there is no
9 incident in which we've said, "That is a false
10 document." Of course, we presume that because it's the
11 attorneys, nobody would do that because that's a
12 criminal act, and of course if anybody would come with
13 a document which is suspicious, we will have the
14 opportunity to ask about it a little bit and discover
15 if it is not a correct document.
16 So if the Prosecution needs those affidavits
17 only to authenticate the documents, then I think we are
18 really wasting our time.
19 JUDGE BENNOUNA: [Interpretation] Indeed.
20 Mr. Kovacic, this distinction that you remind us of is
21 very important. They are documents which need to be
22 authenticated and there is a problem of knowing how to
23 have testimony by affidavit which has to be done before
24 a judge, as you have told us, according to the
25 legislation at present in force in Bosnia. So there is
1 a problem of authentication of documents which is
2 something completely different from a person who is
3 about to make a statement, who is about to give a
4 testimony, and which has to be done before a court of
6 That is why I'm turning again to Mr. Nice
7 because we keep after him, asking him for more
8 information, and I therefore wish to say that the
9 Prosecutor's office should also consider the
10 possibilities of judicial co-operation. We were
11 talking about bilateral co-operation between such and
12 such a country, whether it be Germany or Bosnia, but
13 perhaps we should talk about the judicial co-operation
14 between the Tribunal and the courts which form part of
15 the judicial system in other parts concerned, notably
16 in Bosnia.
17 So perhaps through the Judges we could do
18 something, and the Judges perhaps could do (redacted)
23 (redacted). So I believe we should also
24 investigate the possibility of co-operation between
25 courts of law, and perhaps that could advance our
1 cause. Thank you.
2 MR. SAYERS: If I may, Your Honour. It may
3 be that the name that you just mentioned should be
4 redacted from the transcript since that was a
5 confidential witness.
6 JUDGE MAY: Very well. We'll adjourn now.
7 Twenty minutes. Half past.
8 --- Recess taken at 11.10 a.m.
9 --- On resuming at 11.37 a.m.
10 [Private session]
13 pages 12003 to 12028 redacted – in private session
10 --- Whereupon the hearing adjourned at
11 12.25 p.m., to be followed by an
12 Ex Parte