1 Tuesday, 22
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.37 a.m.
5 THE REGISTRAR: Good morning, Your Honours.
6 Case number IT-95-14/2-T. The Prosecutor versus Dario
7 Kordic and Mario Cerkez.
8 JUDGE MAY: Yes, Mr. Nice.
9 MR. NICE: Two preliminary matters. The
10 amended tape transcript is available for distribution.
11 I'll perhaps distribute it to the Chamber now or at the
13 I spoke yesterday of a note I had prepared on
14 authorities -- not on authorities, on procedures in
15 Germany, Austria, United Kingdom, Japan, and
16 Australia. I didn't, in the event, distribute it. I
17 certainly don't desire to go through it, but it is
18 available, if the Chamber would find it helpful to
19 have. It's about seven sides, I think.
20 JUDGE MAY: Yes. If you would like to hand
21 it in.
13 In asking him to deal with it, I make it
14 clear that the application is one which reflects the
15 common sense and doesn't reflect, perhaps, the
16 sometimes arbitrary and artificial rules of exclusion
17 that the common law pursues, and it's an application
18 that has the complete backing, of course, of the entire
20 I'm reminded that perhaps I've erred in
21 mentioning names in public. Not withstanding the
22 disinclination of witnesses to come to the Tribunal, I
23 suppose it's preferable not to use their names, if it's
25 JUDGE MAY: Yes, Mr. Lopez-Terres.
1 MR. LOPEZ-TERRES: [Interpretation]
2 Mr. President, Your Honours, we saw yesterday that a
3 chamber of a tribunal like ours cannot be deprived of
4 evidence because a witness does not wish to come. We
5 have seen the hypothesis of a witness who cannot come
6 for a good reason, because he has died. Today we are
7 dealing with another case of a witness who cannot
8 appear because he will not appear.
9 The hypothesis that we're addressing today
10 raises two problems. [redacted]
21 [redacted] Our Rules envisage various
22 possibilities that a witness can be found in contempt
23 of court. The text does not specify how such an
24 unwilling witness can be forced to appear before this
25 Tribunal, but in our view, it is quite possible to do
2 Be that as it may, in this case, and in this
3 stage of the proceedings, in view of the rather long
4 delays by the Australian authorities, after you issued
5 this order on the 22nd of November -- there was a
6 notification on the 24th of January -- it does not
7 appear opportune or desirable that measures of coercion
8 be taken against this witness, and it is damaging for
9 the image of the Tribunal, but that is a reality that
10 we have to face up to at this stage of our
12 Beyond this question of the image, authority,
13 and effectiveness of the orders issued by the Trial
14 Chamber, the witness having given a negative answer and
15 showing thereby what importance he attaches to those
16 orders, and by this negative attitude, there is at
17 least a technical, if not a legal impossibility of us
18 making him come, we must nevertheless draw consequences
19 regarding the administration of the evidence that this
20 witness should have brought before you.
21 We treat this witness as other persons having
22 a common origin. Both having been members of the Vitez
23 Brigade, we wanted these two witnesses to appear so
24 that your Chamber could take into consideration the
25 evidence that they have provided during the
2 The specific situation, which has already
3 been described by Mr. Nice, relating to these
4 witnesses, we do not have the reports of their
5 interviews collected by the investigators of the
6 Tribunal. We have reports of interviews made by the
7 authorities in Bosnia, the reports, the official
8 reports, according to the accepted terminology in the
9 region, taken in July 1993, in the course of which
10 these two individuals, after having been interviewed by
11 the military security of the Bosnian army, provided
12 information and explained what their role had been
13 within the Vitez Brigade before their arrest.
14 We do not have any reports of investigators
15 of the Tribunals, but we do have those official reports
16 drawn up by the military security officers of Bosnia.
17 As regards the first witness, the one who was
18 notified of an order to appear in Australia, this one
19 not only provided those statements to the military
20 authorities, but was also interrogated by the
21 investigators of that same service. And that
22 interrogation was filmed at the time.
23 In the course of that interrogation in the
24 prison in which he was detained, the person explains
25 the circumstances under which he was arrested, which
1 unit he belonged to, that is the Vitez Brigade, who was
2 his battalion commander, Karlo Grabovac, a name that
3 you've already heard mentioned, and then he gave
4 explanations for the reasons why he -- a human ear was
5 found on him when he was captured.
6 The video film shows by zoom this human organ
7 on a table, quite a horrifying scene. The individual
8 explained, and this also appears in the videotape and
9 the official report drawn up at the time, that before
10 going to the front with his comrade, he was promised,
11 like other members of his unit, compensation if he
12 brought trophies of a particular nature, in this case a
13 human organ, an ear, or a finger. Obviously, the
14 compensation would be higher if they were able to show
15 that it was taken from a living person or from a
16 corpse. And all this is indicated in the report.
17 The information given by these two witnesses
18 is information which we consider must be taken into
19 consideration by your Chamber. This is information
20 that has already been at least partially revealed to
21 your Chamber during the testimony of the ECMM monitor,
22 Mr. Morsink, who produced a report drawn up at the time
23 by the ECMM, where reference was made to this
24 compensation paid for human organs, or parts of human
25 bodies by HVO soldiers.
1 Therefore, you have already partially been
2 informed of this by another source, and we hope that
3 the witnesses will come and confirm this here in The
4 Hague. And that is why we put both of them on our list
5 of witnesses. Of course, these are special witnesses,
6 because these two witnesses belonged to a unit under
7 the command of the accused, Mario Cerkez, and it is not
8 surprising, in view of the statements made at the time,
9 that later on they changed their mind and refused to
10 respond to your orders.
11 And this was officially conveyed to us in
12 January last year for the first witness, and the other
13 witness, who still is in Vitez, has made it quite clear
14 that he has no intention to appear before our
16 Is that sufficient reason for you to go
17 without this evidence relating to these facts, and to
18 the participation of these individuals in acts
19 committed in the Vitez area, especially with reference
20 to the promise of compensation made by the accused,
21 Mario Cerkez, in June, 1993? Because it was in June,
22 1993 that these two individuals were arrested by the
23 Bosnian army services in Puticevo, that is a locality
24 near Novi Travnik.
25 We have compiled these elements of
1 information. There is a videotape dated '93 of this
2 witness who is in Australia. This witness was again
3 contacted by our services in April, 1997, in Australia,
4 where he was already a resident. And on that occasion
5 there was another long video interview, in the presence
6 of the Australian authorities. And in the course of
7 that interview, the witness confirmed that he belonged
8 to this brigade. He confirmed that his brigade
9 commander was Mario Cerkez. But as regards the -- what
10 he said about the taking of organs and the ear found in
11 his possession, he denied that initial version,
12 explaining that he was under pressure and under threat
13 of violence that would be committed against him by
14 those who were interrogating him.
15 The report, and this video cassette that we
16 have in our possession, is also at the disposal of your
17 Chamber. Also, there are the statements that we
18 recorded recently, from the time when we realised that
19 it was highly improbable that these two witnesses would
20 appear in The Hague, we considered it opportune to go
21 and identify and interview people who might have met or
22 heard them at the time, in June or July, 1993, when the
23 official reports that I referred to a moment ago were
24 drawn up.
25 We were able to contact two of those people.
1 One was an investigator of the security service in
2 Zenica. The other was the warden of the prison in
3 Zenica, where these two persons were detained. And
4 these two people provided statements in which they
5 explained how these two witnesses were questioned, and
6 denied that any violence was committed against those
7 two persons. Those two persons, if necessary, can be
8 called to appear before the Tribunal to describe, once
9 again, the circumstances under which those two
10 witnesses were questioned in 1993, and the
11 circumstances under which the ear was found on one of
12 the two witnesses.
13 We have prepared, for the benefit of the
14 Chamber, a small dossier containing all the elements
15 which we consider to be relevant to evaluate the
16 importance of this evidence, the official reports I
17 have mentioned. The videotapes of 1993 and 1997, the
18 videos are quite readily available. And when one sees
19 the first video, there is nothing especially suspicious
20 regarding the statements made by the first witness.
21 Also, there are no traces of any abuse during
22 the interrogation. So it might be useful for your
23 Chamber to see these two videos.
24 The two reports of interviews taken by
25 investigators in January last year have also been
1 attached, as well as certain documents which show that
2 these two witnesses were members of the brigade, of
3 which the accused, Mario Cerkez, was the commander.
4 We find ourself in a rather specific
5 situation, because we do not have the records as we had
6 in the cases we were discussing yesterday. But the
7 records are not the only evidence that the Chamber
8 should take into account. Rule 89 envisages a variety
9 of evidence. And of course it does envisage the
10 possibility of the Defence making its views known and
11 its criticism known. It is up to your Chamber to make
12 a decision and to review all this evidence, which we
13 consider to be relevant under Rule 89.
14 Mr. Nice has already said that the admission
15 of this evidence is no particular problem in the civil
16 law system. Where there is a freedom in the
17 administration of evidence, the Chamber admits the
18 documents, admits the depositions and testimonies, all
19 the evidence are subject to its consideration, and are
20 then weighed by the Chamber as regards its probative
21 value and the weight to be attached to them.
22 The evidence, as I have quickly reviewed it,
23 have been compiled to form a small file for your kind
24 attention, and we would like to ask you to be kind
25 enough to receive that file.
1 The system that I am familiar with, such a
2 document would be prepared by the Prosecutor containing
3 all the information, would be submitted to the Trial
4 Chamber. When the Trial Chamber takes into
5 consideration that -- and is convinced that everything
6 has been done to bring the witness here, as is the case
7 now, the Trial Chamber would take into consideration
8 all that evidence, counting on the good faith of the
9 Prosecutor that they had done everything possible to
10 have the witness appear, noting that the witness being
11 an unwilling witness. The Chamber would nonetheless
12 take into consideration all the evidence relating to
13 that witness and draw the necessary legal conclusions
14 from it.
15 I have tried to provide some clarification.
16 And I would like to ask you, once again, to admit as
17 evidence the information relating to the two witnesses
18 that we had planned to call and which we regret to say
19 will not be able to appear before you.
20 JUDGE MAY: [redacted]
24 In the case of the next four, are there any
25 submissions to be made in relation to them?
1 MR. NICE: I'm not sure that there are any
2 submissions, although there is a certain amount of
3 up-to-date information that I can provide.
4 Number five, I believe to be still
6 Number six, I think is now willing via
7 video-link. And so I will be making a video-link
8 application in due course, probably at the end of this
9 procedural part of the case.
10 Number seven is apparently now willing to
11 come. And both these witnesses reveal the force of the
12 Tribunal's orders. And I am happy to see that they are
13 being responded to.
14 Number eight is a witness in respect of whom
15 the Chamber has a report on his ill health. He's a
16 combination of unwilling and sick. It may be that he
17 would be a potential candidate for a video-link, but
18 not in the same place as number six, because number six
19 would be in Bosnia, and number eight would be in
21 The only ruling I think I would want at the
22 moment, pending discovering whether he is now willing,
23 in light of the subpoena to give evidence via
24 video-link -- any ruling I want at the moment is
25 whether the Chamber is satisfied on the report on his
1 ill health that he is indeed unable to travel
2 to The Hague. That's one of his defences to giving
3 evidence. Because if not, I will have to go and get
4 further medical evidence.
5 And in relation to paragraph C or Section C
6 generally, our argument is that where every step is
7 taken to bring a witness to Court and, through no fault
8 of the Prosecution, the witness is not available to
9 Court, even by reason of his or her own inclination,
10 then it is still appropriate to read the witness's
11 statement as the best available material that that
12 witness could provide.
13 The Chamber should know that even in relation
14 to, for example, number five, we will attempt to get an
15 affidavit from that witness, or formal statement. And
16 I am going to ensure that that's done today or
17 tomorrow, if I can. Notwithstanding her latest
18 indication of disinclination to come here.
19 There is, of course, a slight oddity about
20 getting an affidavit from a witness who denies the
21 authority of the Court's subpoena. But nevertheless,
22 if an affidavit or formal statement can be taken, then
23 that's better than not. The whole issue of contempt is
24 for the Court's own initiative, I think, and not
25 particularly from ours, we're not concerned about that,
1 at least not at this stage.
2 Where the witness is unwilling, as number 5
3 is, this witness has put the witness's judgement of
4 risk above the judgement of either the OTP or the
5 Court. Alternatively, the witness is simply being
6 difficult for reasons known to the witness.
7 JUDGE MAY: Mr. Nice, I'm going to interrupt
8 you so that I can understand the position.
9 We've got applications in respect of 3 and 4,
10 on which we're going to rule.
11 MR. NICE: Yes.
12 JUDGE MAY: Now, are you asking for any
13 orders in respect of 5, 6, 7, and 8?
14 MR. NICE: No. Well, in respect of -- no,
15 because I've got outstanding action in respect of 5.
16 Nothing there. In respect of 8, my only application at
17 the moment is to know whether the Court is satisfied on
18 the report that ill-health is established. Contingent
19 on that, I will take my next steps in relation to that
20 witness. And, of course, if a videolink is not
21 possible, then I shall apply to have that witness's
22 statement read, whether or not endorsed by an
23 affidavit, on the grounds that he is sick.
24 JUDGE MAY: I'm not sure whether it's for us
25 to say whether he's too sick to come or not. I mean,
1 we can deal with that in the context of an application
2 to read his statement. It might be one of the matters
3 we'd have to consider. But perhaps the simplest thing
4 is to consider the position and --
5 MR. NICE: Yes. The report on his health was
6 provided by the security --
7 JUDGE MAY: Yes.
8 MR. NICE: -- and, I think, as it were,
9 directed to you. If the Court was not satisfied of his
10 ill-health, then it might, I suppose -- no, I don't
11 think it would issue a further subpoena, it's already
12 issued this subpoena.
13 JUDGE MAY: Very well. We will consider the
15 MR. NICE: Then Category D requires no action
16 because the various subpoenas are being issued --
17 JUDGE MAY: Well, we will consider the
18 position. They are applied for.
19 MR. NICE: I didn't mean to jump the gun
21 JUDGE MAY: We will consider those, and it
22 may be necessary to have a hearing. The matter which I
23 have in mind is that the matter of time --
24 MR. NICE: Yes.
25 JUDGE MAY: -- which we are now up against.
1 MR. NICE: Yes, certainly.
2 JUDGE MAY: But we will consider those
4 MR. NICE: Thank you very much.
5 JUDGE MAY: Category E.
6 MR. NICE: Category E, the information of
7 their ill-health is only recent. I am putting in hand
8 today steps to provide evidence of their ill-health,
9 and I will make an appropriate application in due
10 course. The application, if the evidence of ill-health
11 is sufficient, will be the simple one, that where
12 witnesses are unable to attend court through good
13 reason of ill-health, most systems, if not all, have a
14 regime for permitting the adduction of some forms of
15 statement, and we would say that the principles
16 applying here would justify the reading of those
17 statements. Of course, in relation to each of them, I
18 will attempt to obtain affidavit-type statements, if
20 And I can add parenthetically that the good
21 news is that despite the months or years of
22 difficulties that we've had, now that the court in
23 Bosnia is involved, it appears to be both working
24 efficiently and, this is only informally communicated,
25 happy to be involved. So that's good news.
1 Category F --
2 JUDGE MAY: Just dealing with Category E, we
3 will, I hope, be able to deal with those these week, as
4 opposed to leaving the matter to later, so that we can
5 rule on all these matters as expeditiously as we can.
6 MR. NICE: Yes, of course.
7 JUDGE MAY: Now, Category F, the position is
8 that they are also unwilling, but they are put in a
9 different category to the earlier unwilling witnesses.
10 MR. NICE: Yes.
11 JUDGE MAY: But nonetheless, roughly the same
12 principles may apply. So it may be convenient to deal
13 with those together with the earlier category,
14 Category B.
15 MR. NICE: Yes. Well, so far as 15 is
16 concerned, I've distributed just this morning the short
17 ex parte document containing information that I'd like
18 the Chamber to consider in relation to him.
19 Even apart from what is contained in the ex
20 parte notice, or information, the very nature of the
21 evidence he's capable of giving makes it unsurprising
22 that he might be unwilling. On his account, not only
23 did he see one of his companions murdered, but he was
24 with the third member of the group, taken away by
25 associates of the man he said was the murderer, beaten,
1 and left effectively for dead. He lives in an area
2 where there is still considerable presence of
3 associates of the man he says was the murderer, and it
4 is not at all surprising that he has the fears
6 The Chamber will know that his position has
7 been somewhat variable, and that not withstanding our
8 acceptance that his fears are quite possibly
9 well-founded, we continue to approach him in order both
10 to see if he could be satisfied with measures of
11 protection for which we could ask and, indeed, to see
12 if he's going to be prepared to provide an affidavit;
13 although, if his fears are justified, then an affidavit
14 might be no better than giving evidence.
15 But subject to any change of mind by him,
16 subject to the provision of an affidavit, we would say
17 that this matches many of the provisions currently
18 operating in other countries where witnesses who are
19 kept away by fear can have former statements read.
20 Now, the statement of this witness, of
21 course, is direct evidence of a killing by one of the
22 defendants. The Chamber will want to remind itself of
23 the way this evidence has been touched on so far.
24 First, there was evidence from the very first witness
25 in the case, initially to the effect that the crime
1 scene was a suspicious crime scene and he didn't
2 believe it to be a genuine crime scene, going to
3 suggest that the killer was not the man named as the
4 killer but someone else. In cross-examination, it
5 emerged that there were accounts coming to him of who
6 the true killer was. Further evidence to the same
7 effect came from Dr. Mujezinovic and from another
8 witness, a woman with whom with witness, witness number
9 15, was originally expected to attend at court. He
10 failed to attend right at the last minute. That female
11 witness gave an account, as the Chamber may recall, of
12 what witness 15 had said to her, and it would, in our
13 respectful submission, be surprising, and perhaps
14 almost illogical, not to at least take the best version
15 of witness 15's account that will be available to the
16 Chamber, and depending on his attitude, the best
17 account will either be his witness statement as it
18 presently is or possibly his witness statement
19 confirmed by a statement made at the local court.
20 The Chamber will remember that the evidence
21 of this killing, which is not specifically charged,
22 goes to the attitude and response of the defendant
23 concerned to the law at the time, and is by way of
24 general but important background. So adduction of this
25 evidence in one form or another doesn't offend any of
1 the particular rules of exclusion in the European law
2 which we were referred very generally yesterday.
3 Our submission is that the absence of the
4 witness, if he remains unwilling to attend, is
5 understandable and justified and that it is entirely
6 appropriate to take the best version of his evidence,
7 as that may turn out to be in due course.
8 As to 16, the Chamber --
9 JUDGE MAY: Before you leave 15 --
10 MR. NICE: Yes.
11 JUDGE MAY: -- you referred to a document
12 handed in in relation to him. I've got the witness
14 MR. NICE: We filed it this morning. It may
15 be on your legal officer's desk. The usher knows where
16 it is because we gave it to him this morning. It's
17 only one side.
18 The Chamber will remember that I was
19 concerned about the additional information coming to
20 me, and that I made it clear that although I would
21 serve material ex parte, I would, of course, understand
22 whatever decision the Chamber made about making that
23 further information more generally available; although
24 if it is to be made more generally available, most
25 certainly in a private session.
1 JUDGE MAY: It's somewhere in the Registry.
2 Let's have a copy.
3 MR. NICE: I'll have further copies done, and
4 we'll make those copies available to you informally, as
5 soon as may be.
6 JUDGE MAY: Well, we'll need the copies
7 before we can consider it.
8 MR. NICE: Certainly. So far as witness 16
9 is concerned, he's a witness whose evidence has been
10 available to the Chamber, and, as we know, would be
11 able to give very wide evidence on the conflict
12 generally. But he gives evidence of a particular
13 meeting with the first defendant, and it's only on that
14 topic that we wanted his evidence. He gives the
15 fullest account of the circumstances in which
16 Mr. Kordic was to be found at the Tisovac headquarters;
17 of his wearing uniform, including, as this witness
18 says, insignia; and he gives an account of Mr. Kordic's
19 reaction to the interview that the witness wanted to
20 have with him; and he gives an account of something
21 that Mr. Kordic thereafter said about not wanting to
22 share somebody else's fate.
23 It's plainly potentially helpful evidence.
24 It's plainly understandable why the witness may not be
25 willing to attend. I am aware that there are other
1 reasons why he's not willing to attend as well, all
2 linked to the ethnic divisions, I think, at the time
3 and continuing. And the Chamber has formed the view
4 that his failure to respond to the subpoena is not
6 Again, this is not evidence that is evidence
7 on which alone any conviction of anything could be
8 returned; it's a piece of evidence, in the large jigsaw
9 of evidence that cases like this involve, its adduction
10 would not offend the law of this institution or the law
11 of the European Convention, and we would say again, as
12 with number 15, that it would be right for the Chamber
13 to have the best version of that witness's evidence
14 that may be available, which, at this stage, is his
16 It may be, I don't know, it may be that we
17 can obtain from the place where he presently lives an
18 affidavit, or something in the form of an affidavit.
19 But again, he may take the view, as may witness 15,
20 that an affidavit is no better in terms of risk than
21 giving evidence in person.
22 So those are the applications I make for F.
23 In relation to Category G, by way of
24 information, I can simply tell the Court that number 17
25 and 20 have already been dealt with by the local court;
1 number 18 lives in another country, and it may not be
2 possible to get an affidavit between now and the close
3 of the case, but if it is, I will provide one; numbers
4 21, 22, and 23 are being dealt with today by the Court,
5 as I understand it; number 24 is also still in the
6 process of being dealt with, and I hope soon to be
7 dealt with conclusively.
8 I think that's all I have to say about those
9 witnesses. The document in relation to witness 15 is
10 being photocopied. Yes. That's all I have to say.
11 JUDGE MAY: It may be helpful to have 16's
12 statement. We have got a copy of that. I have no
13 doubt we have --
14 MR. NICE: Certainly. I think mine, in fact,
15 is unmarked. And I can rip that out and make it
16 available straightaway. It's not unmarked, but it's
17 only got odd highlights on it. And I'll mark the
18 page. It's a long statement. I'll hand it in and I'll
19 mark the page where he deals with meeting the first
21 JUDGE MAY: Thank you. Yes. So the matters
22 we'll rule on now are three and four and 15 and 16.
23 And we are asked to make a ruling in relation to number
24 eight, about whether he is too sick to travel or not.
25 But that's something we'll have to consider. But we'll
1 hear submissions that the Defence want to make on those
3 MR. SAYERS: Let me just say generally,
4 Mr. President, starting out, that the first time we saw
5 this list, of course, was yesterday afternoon. The
6 Court's well aware, I'm sure, of the reading
7 obligations that have been imposed on us over the last
8 two weeks. This is another 24 witness statements, and
9 series of statements that we would have to consume.
10 And I have to confess, we simply have not had the time;
11 preparing, as we were, for cross-examination of two
12 witnesses today and other matters.
13 With respect to witnesses three and four, I
14 have absolutely no idea what the Prosecution is talking
15 about or the flow of dialogue that's apparently been
16 occurring between the Court and the Prosecution
17 regarding these witnesses, as well as 15 and 16.
18 JUDGE MAY: There is no mystery about this.
19 This is where applications have been made for
20 subpoenas, and the response is what you've heard, that
21 these witnesses are unwilling to come. So you can take
22 it on that basis.
23 MR. SAYERS: Well, in terms of the witnesses
24 being unwilling to come, if they are unwilling to come,
25 they are unwilling to come. They shouldn't be
1 permitted to testify. It's simply an open invitation
2 to trample into the ground the defendant's fundamental
3 rights under Article 21 of the Tribunal Statute, and to
4 eliminate, at the request of the Prosecution, the right
5 to cross-examine enshrined in Rule 85. And, as a
6 matter of principle, that's our position.
7 I can certainly see in some situations of
8 exceptional circumstances, such as the death of a
9 witness, where the witness statement bears on
10 peripheral rather than central matters, an exception
11 being made under those circumstances. But coming from
12 where I come from, the notion of the Prosecution in a
13 criminal case offering an unsworn statement that's
14 never been tested by cross-examination, would never be
15 admitted in any court in which I practice.
16 JUDGE MAY: There is no exception to the
17 hearsay rule, in favour of a witness kept away by fear
18 or anything of that sort?
19 MR. SAYERS: In terms of the State practice,
20 Your Honour, in Virginia, absolutely not. In terms of
21 the Federal practice, there are, as the Court's well
22 aware, a series of Federal rules of civil and criminal
23 procedure. In the civil side, the hearsay exceptions
24 are found in Rules 803, where there are, I think, 24
25 separate exceptions to the hearsay rule. The ones that
1 we are talking about are not -- are not part of those
2 rules. And then Rule 804, which deals with situations
3 of unavailability and death. But I do not believe that
4 simply because, for example, Mr. -- witness number 3,
5 for example. I mean, I really do not have any idea
6 what the situation is with respect to this witness, but
7 apparently he was at one point willing, another point
9 We would simply suggest to the Court that if
10 he can't be bothered to come to the Court, then his
11 witness statement shouldn't be considered
12 in evidence --
13 JUDGE MAY: Supposing he says, for the
14 moment, that he is in fear of coming. And supposing a
15 totally different fact, but in a national jurisdiction,
16 a criminal keeps a witness away. I mean, not an
17 uncommon practice these days, certainly in some
18 countries, is to intimidate its witnesses.
19 Now, as a matter of principle, what should a
20 Court do about that?
21 MR. SAYERS: Well, as a matter of principle,
22 Your Honour, these two gentlemen --
23 JUDGE MAY: I am not talking about these two
24 gentlemen. I am talking hypothetically, Mr. Sayers.
25 Supposing criminals, not necessarily the accused in a
1 case, but supposing criminals frighten witnesses, so
2 they say, "I am too frightened to come." What then
3 should a Court do about it?
4 MR. SAYERS: As a matter of principle,
5 Mr. President, we would respectfully submit that what
6 the Court should and must do is to provide some means
7 where the defendant's confrontation rights are
8 respected. After all, obviously the Prosecution should
9 be free to go around collecting bits and pieces of
10 apparently peripheral evidence, and central evidence in
11 some respects, certainly. With respect to witness
12 number 3, I guess the evidence could be said to be
13 somewhat important to one of the defendants. But
14 it's -- the defendants do have confrontation rights,
15 and those are central rights. In fact, they are
16 arguably some of the only rights that criminal
17 defendants have in a tribunal like the International
18 Tribunal. The confrontation rights, we think, have
19 been pretty effectively exercised here.
20 And there is another point that I would like
21 to make with respect to the use of witness statements
22 untested by cross-examination. And that's the
23 situation that we have seen with Dr. Mujezinovic and
24 others. Dr. Mujezinovic, for example, specifically
25 pointed out errors in a witness statement to an
1 investigator. And those errors were never corrected.
2 And that's a real problem. But under
3 cross-examination, he pointed out those errors and so
4 the Court was apprised of his various versions of what
5 the truth would be.
6 I don't know why the Prosecution is bending
7 over backwards to attempt to deprive the defendants in
8 this case of their confrontation rights. What's wrong
9 with a deposition under Rule 71? Certainly the Rules
10 provide for it. It could be done under a pseudonym, in
11 a foreign country, and then the deposition could be
12 admitted under seal in this case. There would be no
13 way that the evidence would get out to the world at
14 large, or no way in which the particular declarant, I
15 think, would be justified in any fears for his
16 testimony. If everything --
17 THE INTERPRETER: Slow down, Mr. Sayers.
19 MR. SAYERS: -- so-to-speak. Even though
20 that course is obviously fraught with its own problems,
21 in light of the obligation of the Tribunal to ensure a
22 fair and public trial for each of the defendants.
23 So that's the matter in principle. These
24 people are available to be cross-examined. They are
25 available to be confronted. Why not adopt a procedure,
1 if they are genuinely unwilling, and the Court is
2 genuinely satisfied that their concerns are real and
3 justified, why not impose a regime where the defendants
4 do have confrontation rights, rather than straining and
5 stretching for in some way which deprives the defendant
6 of those confrontation rights? And those are, as I
7 said before, and I am not going to repeat myself, but
8 those are precious rights. We hold them as precious.
9 And as a matter of principle, they shouldn't be
10 discarded blithely in 24 separate instances, in
11 addition, I might point out, to the 25 or so transcript
12 witnesses, whose transcripts have already been admitted
13 without particular rights of confrontation for either
14 one -- either defendant.
15 I don't have a total count -- I think it's 95
16 witnesses who have testified so far. As far as we can
17 gather, it looks like there are going to be something
18 like 110 witnesses who testify live in this case. If
19 you add to that, 25 witnesses who have not testified
20 live, and 24 witnesses whose statements or what have
21 you will be admitted in some other fashion, that's
22 fully 50 per cent, or nearly 50 per cent of the
23 witnesses who will have given evidence in this case,
24 will not have been exposed to cross-examination. The
25 defendant will never have the right to see them, let
1 alone confront them and test the veracity of their
3 And that's a really significant issue. I
4 would respectfully represent to the Trial Chamber, it's
5 one which genuinely concerns us.
6 It's --
7 JUDGE MAY: It's not your concerns which we
8 want to hear. It's your submissions. I meant to tell
9 Mr. Lopez-Terres the same thing, when he said we had
10 to -- the Trial Chamber must consider something or
11 other. It's not for counsel to put it that way. With
12 respect, it's your submissions we want. Anyway, your
13 submission is that this is a matter of concern.
14 MR. SAYERS: And with respect to the first
15 witness -- the third witness, rather, we understand
16 that he has actually recanted the first statement,
17 which the Prosecution wants to have admitted into
19 Surely, under no system of justice, would a
20 recanted statement, untested by cross-examination, be
21 admitted into evidence. That's our submission, and I'm
22 sure that Mr. Kovacic will have more to say on that.
23 With respect to the only other witness that
24 apparently concerns us, witness 16, we are uninformed.
25 We simply have no information regarding the
1 circumstances under which this witness does not want to
2 testify, or would be excused from testifying. But,
3 clearly, he is available to be deposed under Rule 71,
4 if that's deemed to be appropriate. And if he doesn't
5 want to come to Court, or can't be bothered to come to
6 Court, whatever the situation is, then clearly, in
7 order to protect the confrontation rights that are
8 enshrined in the Rules and in the Statute, then we
9 should be permitted to have some opportunity to
10 confront and cross-examine him.
11 Thank you.
12 MR. KOVACIC: Thank you, Your Honour.
13 [Interpretation] If I may, I should like first to
14 pronounce myself on the Category B. That is witnesses
15 three and four. But, to make it quite clear, we
16 naturally object to these witnesses, and I shall
17 explain why. Even though I do not think it is
18 particularly legally relevant, but I think the
19 Prosecution went into recounting the case. And I must
20 also touch upon that. And then also address the legal
21 elements, which I believe the Court must have in mind,
22 and which are against the admission of such
24 As for the facts mentioned by the
25 Prosecution, I do not think it transpired quite
1 clearly, from what they said, that witness 3 and
2 witness 4 had been detained in the military police
3 prison of the BH army for a whole year. They were
4 among the last to be released by the BH army at the
5 time when the Washington Accords were signed. And
6 there, they made statements, according to them, not
7 under duress, but under torture, and this was confirmed
8 by witness 3, who then stated before the Australian
9 authorities and said why and how he told the military
10 police of the BH army all that they wanted to hear.
11 Under the law which was in force in the
12 territory of Bosnia-Herzegovina at the time of the
13 event, which is the Criminal Proceedings Act, both
14 statements which those witnesses gave to the
15 investigation authorities are completely wrongful.
16 Firstly, they were interrogated as prisoners
17 of war; that is, running counter to international
18 conventions, because prisoners of war could not be
19 interrogated on the subjects they were interrogated;
20 secondly, or alternatively, if they were not prisoners
21 of war, if they were simply civilian, it means then,
22 under the then Criminal Proceedings Act, that witness 3
23 could not have been interviewed because he was
24 underage, and under no conditions, with no exceptions,
25 could his statement be used in a possible criminal
2 So I'm talking about a criminal case which
3 could have been started against that witness, or either
4 the accused in that hypothetical case, before the
5 Bosnian authorities, pursuant to the then legislation,
6 or today's legislation. As he was a minor, he would
7 have had to be interviewed by a special judge for
9 In the law, and I'm not going now to quote
10 various articles, and so forth -- but we do, of course,
11 bring those quotes, those articles from the law -- but
12 their law envisages absolutely no exceptions under
13 which such a statement could be used in criminal
14 proceedings. And, as I said, in Australia, he
15 explained what was the weight, how trustworthy was that
17 Now, the question arises as to what does the
18 term "unwilling witness" mean, or "hostile." Not even
19 hypothetically. Can we talk here about decisions of a
20 witness based on the ethnic division which we have in
21 this case? The two witnesses, 3 and 4, are Croats by
22 ethnicity, and witness 3 is in Australia, he lives in
23 Australia, which is a democratic country; a country
24 where various instruments of power, no doubt, work; in
25 a country where a court can issue an order to bring
1 such a witness under custody. So the question of
2 whether one is willing or unwilling does not arise in
3 this particular case.
4 I'm not going to infer from that that the
5 Prosecution does not really want this witness to come,
6 because he's happier with papers which cannot be
7 subject to cross-examination.
8 But whatever the legal system we are talking
9 about, first, a witness is called. If the witness
10 refuses, then every system provides for some other
11 instrument which courts have at their disposal, for
12 instance, if one issues an order, a subpoena, and then
13 you have also some enforcement authority.
14 Let us look at Bosnia, and I'm referring to
15 witness 4. The Federation of Bosnia-Herzegovina
16 unquestionably cooperates with this Tribunal; there are
17 countless examples of this, and there is no need to
18 talk about this. There are authorities there who work
19 and who are willing to comply with the orders of the
20 Tribunal, and moreover, there are also international
21 forces who brought even the accused, not only
22 witnesses, to this Tribunal.
23 So we cannot draw a sign of equality -- and
24 this is the initial thesis of the Prosecution -- we
25 cannot draw a sign of equality between dead and
1 unwilling witnesses, unless the witness himself or
2 herself comes to the court and says, "I don't want to
3 testify," and there again, there are instruments which
4 can be used to make them do so.
5 Meanwhile, although you must give us some
6 reasonable time, but yesterday after the session, we
7 requested medical documentation for the witness who is
8 in Bosnia, that is, witness 4. So far, I have obtained
9 only some indirect information that this person is
10 unaccountable and has been unaccountable since he was
11 released from Zenica. I have asked my assistants to
12 get this documentation. I believe that some documents
13 have been found, and we shall get it tonight, at least
14 something will be faxed to us. Of course, I do not
15 know whether that is true or not. But I have
16 information about both, that they have suffered
17 significant psychological, mental damage after their
18 stay in Zenica.
19 JUDGE ROBINSON: I'm not sure whether you
20 offered this explanation, but could you say how the
21 courts in Bosnia-Herzegovina, or in Croatia, would view
22 the admission of a statement of a witness who was
23 unwilling to come to court.
24 MR. KOVACIC: [Interpretation] Under the
25 Criminal Proceedings Act, which was in effect at the
1 time in Bosnia-Herzegovina, and Croatia --- and as you
2 already know, both these republics took over the laws
3 of the former Federation, and recently a new Criminal
4 Proceedings Act was adopted in Croatia. I have not had
5 time to study it, but my colleague, perhaps, can. But
6 under the then laws, there was absolutely no exception
7 under which a statement made to the police could be
8 used as evidence in a criminal case, there was not a
9 single exception to that rule.
10 The only exception was when a statement had
11 been made before an investigating magistrate, an
12 investigating judge. So it is a statement made under
13 oath, under a threat, in case of false testimony,
14 because that was also a criminal offence; that is, the
15 investigator had to caution the witness that false
16 testimony is a criminal offence under this or that
17 article of the law, and punishable by 3 to 5 years of
18 penal solitude. And after that, the judge takes the
19 statement, and there is a clause in the law which says
20 that a witness can, of course, change the record,
21 object to various parts of it, so on and so forth --
22 let me not go into that -- and subsequently, when the
23 hearing begins, that is, when it comes before the trial
24 chamber, this witness must again appear before the
25 court, as a rule.
1 Now, in that particular case, there is an
2 exception, when this statement given to the
3 investigating judge may be read. The provisions are
4 very restrictive in this regard, and my colleague, who
5 is really an expert on the procedural law, if a witness
6 has died in the meantime or -- but he is not even
7 sure. That is very restrictive. But I'm referring
8 only to a statement made before an investigating
10 As for a statement which this same witness,
11 or any other witness, or the accused, made before the
12 police or, rather, the investigating authorities,
13 before the case has reached the judge, this statement
14 not only may not be read, but this same judge, that is,
15 the investigating judge, was bound to single out that
16 file, seal it, and keep it separately from the rest of
17 the file; that is, it could not be read.
18 These statements made to the police could be
19 used only by the investigating judge by way of
20 preparation for the first statement, for the first
21 interrogation of the accused, for the first interview
22 of the accused, for the first questioning of the
23 accused, by the investigating authorities. And after
24 that, the investigating judge had to seal it, put it
25 away, and nobody else could see it.
1 So under the domestic legislation, and we can
2 bring it, of course, under the domestic legislation in
3 Bosnia-Herzegovina, because this is what is relevant
4 here, there was no other mechanism according to which a
5 statement of an unwilling witness could be read in the
6 course of the main hearing.
7 The category, as defined here, "Unwilling
8 Witnesses," did not exist in the law, because the law
9 had a mechanism whereby measures could be used to
10 ensure the presence of a witness before the court. So
11 first was the summons, and the second was a subpoena
12 or, rather, bringing a witness under custody. If a
13 witness would refuse, then the court would order the
14 police to bring in the witness for a particular
16 Now, also with regard to witnesses 3 and 4,
17 just for your information, if the whole story were
18 built on such indirect positions -- as are those of the
19 Prosecutor, I must say, even though it might not be
20 legally relevant; but it has to do with facts we're
21 dealing with -- and that is, in Bosnia, especially in
22 Central Bosnia, in 1993, and I did examine witnesses
23 about this, not a single body without an ear had been
25 So, my question is: Whence the ear, if there
1 is no corpse? But we continue working on it and
2 perhaps we shall find something.
3 Another relevant point to my mind is -- I
4 believe we saw here, and Mr. Sayers already mentioned
5 it, but we heard a series of witnesses, not one or two,
6 but quite a large number, and I am not quoting figures
7 at random, of who did not say anything that has not
8 been found in the statements given to investigators or
9 the Bosnian police services during the war.
10 Not only that, quite a number of witnesses
11 have said things which contradicted the statements
12 given earlier to investigators. And those statements
13 have proven highly unreliable and not safe ground for
14 any conclusions. This relates particularly to the
15 statements given to the commission for war crimes in
16 Bosnia or different military authorities or police
18 As for witness 15, which, in Prosecutor's
19 words, has reason not to be willing to come or, rather,
20 justifiably unwilling, and this is again a category
21 which I really cannot endorse. Our learned friends
22 from the Prosecution quoted other corroborative
23 statements, but they omitted to mention certain things,
24 needless to say. Such as, for instance, that one of
25 the statements made here before the Court and the
1 document which was adduced with that witness, and he
2 was an intelligence officer of the Bosnian army in
3 which he said that war criminals from the area, and he
4 mentioned war criminals from the area of Vitez. In the
5 document he is accused of the murder in question.
6 The person who was also mentioned, also a
7 witness. That is the case 30 May '92. That was in the
8 hotel, in Vitez Hotel. And that is why that exhibit
9 was adduced, that is, the investigation on site,
10 immediately after the crime.
11 Now, in that record, and I really don't
12 remember, five or seven policemen, by the civilian,
13 military policemen, HVO and BiH army, that is both
14 parties, because we are talking about May '92. And
15 nobody ever, except for the witness whom we heard here,
16 that is one of the policemen, expressed ever any doubts
17 regarding that particular incident. So rumours started
18 sometimes, and then the witness said here, and then
19 after the investigation rumours started that somebody
20 else must have killed that victim. And this is, I
21 believe, what the statement of number 15 is all about.
22 In other words, we have quite a lot of evidence about
24 The Defence will already produce some
25 evidence -- if witness [redacted] would come, we would
1 be very happy to see him here, because we should indeed
2 like to cross-examine him. And if he cannot come, then
3 his statement may not be read. I think that the
4 witness is accessible and available, because, after
5 all, there are tools and means which can be used to
6 bring him.
7 If the Court wishes to hear some more
8 detailed -- I really do not want to quote all of the
9 articles, but if you wish to receive any more detailed
10 information about the Criminal Proceedings Act in
11 Bosnia-Herzegovina, in Croatia, in '92, '93, I know
12 that Mr. Naumovski is quite ready to explain the
13 legislation in greater detail. Or give us a bit more
14 time -- a little more time and we shall prepare it in a
15 day or two.
16 We object to this primarily because we are
17 losing the right to cross-examine and important matters
18 are at stake. And therefore we object against the
19 introduction of the statements they made to the
20 investigating authorities or different other
21 authorities. And we are absolutely not willing, not
22 ready to waive our rights to cross-examine them.
23 Perhaps I was not sufficiently methodical,
24 sufficiently systematic in presenting our case in this
25 particular case, but we were not quite ready for it.
1 We really expected to see two witnesses, so there was a
2 lot of documents to study, and we are getting ready for
3 those two witnesses, but did not expect this
5 Witness 5, I am afraid, I mentioned his
6 name. This, I hope, will be struck out from the
8 MR. NICE: Can I just make a couple of points
9 on behalf of both myself and Mr. Lopez-Terres.
10 Nearly all these witnesses were listed as
11 witnesses for whom we wanted affidavits and so on in
12 our updated overview. Confrontation rights are to be
13 contrasted, as Mr. Lopez-Terres explained yesterday,
14 with other methods for attacking the credibility of a
15 witness, or the believability of a witness. There is
16 no question of our bending over backwards to put in
17 written statements. We are taking whatever steps we
18 can to get the material before the court in a proper
19 and most timely way.
20 Depositions simply aren't available for one
21 reason or another, so far as the witnesses in Category
22 B or Category F are concerned. It's not a
23 possibility. If somebody is not cooperating at all, as
24 in Category B, or frightened, as in Category F, then
25 depositions simply aren't a possibility.
1 The general point on the law of other
2 countries that's being made has to be contrasted with
3 the fact and reality that this institution doesn't have
4 investigating judges. That's not the system it
6 The Chamber will note that all written
7 statements are topped and tailed, begun and ended with
8 assertions as to the truth. Those statements go as far
9 as it's possible within the rules to go, to become a
10 statement by oath, which is of course why Judge Jorda
11 took the view, in dealing with one of these statements
12 that we dealt with yesterday, that it was indeed a
13 statement on oath.
14 Dealing with Mr. Kovacic's points about
15 Australia's powers. The Chamber knows that in relation
16 to all these witnesses, we have taken the process of
17 coercion to the end of the line. And we can do no
18 more. That indeed makes us rather parallel, the
19 Chamber may think, with the example he gave for Bosnia,
20 of police bringing in a person for questioning, in
21 relation, for example, to Category B. That's exactly
22 what we have attempted, but his attitude, and the
23 Australian's response, and of course the decision of
24 this Chamber, means that we haven't been able to do
1 As to whether the person being under age is
2 significant in wartime. The fact is that it's our
3 rules that apply and, as Mr. Lopez-Terres reminds me,
4 in relation to that particular witness, when the
5 suggestion is that what he said may be unreliable, of
6 course he wasn't just saying that he admitted things,
7 which is perhaps what happens when forced by
8 interrogators. He was actually giving a coherent
9 account of responsibility lying elsewhere. And the
10 Chamber reminds itself, perhaps, that the investigators
11 taking those interviews are available to be called to
12 explain the propriety of them, and indeed to explain
13 the finding of the ear.
14 Finally, so far as 15 and 16 are concerned,
15 the Chamber will recognise that -- I hope, that we
16 probably applied a stiffer test for the witnesses than
17 we might have done, for only in respect of the one
18 witness did we ourselves say, we think these expressed
19 fears are so potentially realistic that we shouldn't
20 attempt coercion. And once we made that judgement,
21 that was the position we morally had to take. We
22 couldn't say, "We think he is justified in the fears
23 that he has," and then ask the Court to rule. Because
24 the Court had indicated, in relation to number 16, that
25 that wasn't the way it wanted it done. We made the
1 decision, and there is only, in respect to the one
2 witness at the end, that we've been taken to that
3 position. And the Chamber may think that it's an
4 entirely responsible and understandable position to
5 take, particularly in light of its own ruling in
6 relation to number 16.
7 I can't help you further, I don't think.
8 JUDGE MAY: Thank you. We'll consider these
9 matters now. We'll sit again at half past 11.00,
10 unless you hear to the contrary.
11 MR. NICE: The statement, you have one
12 coming. I have simply put a tag beside the relevant
13 passage. There are some more coming, so that I'll have
14 them -- if the usher makes himself available, they can
15 be brought to Your Honours.
16 JUDGE MAY: Yes. Let me have that. Very
17 well. We'll adjourn now.
18 --- Recess taken at 10.55 a.m.
19 --- On resuming at 11.48 a.m.
20 JUDGE MAY: I will give the Trial Chamber's
21 ruling in relation to the material which was sought to
22 be admitted.
23 The four witnesses whose statements the
24 Prosecution seek to adduce are described as "unwilling
25 witnesses." In one way or another, they have refused
1 to come to give evidence. They are, therefore, in a
2 different category from the witnesses with whom we
3 dealt yesterday, who were dead. These witnesses are
4 available but have refused, for one reason or another,
5 to come.
6 We make no general ruling about witnesses in
7 such a category; it is not necessary to do so at this
8 stage, save to say this, that it seems to us that such
9 witness statements from such witnesses may be
10 admissible under Rule 89(C). If, for instance, a
11 witness is genuinely in fear and is kept away,
12 intimidated, because of the actions of an accused or on
13 behalf of an accused, a Trial Chamber may then admit
14 such evidence. But it will depend on the circumstances
15 of each case and it will depend on the probative nature
16 of the evidence.
17 I turn to deal with the four witnesses with
18 whom we've been dealing this morning. Numbers 3 and 4
19 on the Prosecution's list, described as
20 "unwilling/hostile," these two witnesses have simply
21 refused to come, there's no good reason for their
22 absence, and that in itself may be a ground for
23 excluding their evidence. If a witness is simply not
24 prepared to come, then the Trial Chamber should think
25 long and hard about admitting that evidence.
1 The circumstances of this case, they also
2 need to be mentioned. These statements were made, and
3 filmed in one case, while, at least in one case, the
4 witness was in detention and being interrogated by the
5 authorities of the opposite side. One of the witnesses
6 has since retracted his statement, and it's now alleged
7 that these statements were obtained under duress and,
8 indeed, torture. Now, there may or may not be any
9 truth in that, we're not going to rule, but that casts
10 doubt, or must cast doubt upon the reliability of the
11 statements, and in those circumstances, to admit the
12 statement without any proper cross-examination may be
13 to admit totally unreliable evidence.
14 For those reasons, the circumstances of the
15 refusal and the circumstances in which these statements
16 were taken, the statements are not admitted, nor, of
17 course, is any film attached to them.
18 Numbers 15 and 16 are in a different
19 category. They are described as "justified unwilling,"
20 which may not be a very elegant way of putting it, but
21 probably sums up the position; namely, those who may
22 have good reason not to give evidence.
23 In fact, in relation to number 16, the Trial
24 Chamber had indicated on another occasion that it
25 accepted that this witness was in fear.
1 In the case of number 15, we have seen
2 material which, it is suggested, has put the witness in
3 fear. We are not satisfied, in his case, that he is in
4 fear. That would be sufficient to exclude his
5 statement. But dealing with it, he gives direct
6 evidence implicating one of the accused in a murder,
7 and it is the view of the Trial Chamber that such
8 evidence should not be admitted without
9 cross-examination and, in particular, in this case.
10 Given that the Trial Chamber is not satisfied
11 as to the reasons for his not coming and are not
12 satisfied as to the correctness of admitting such
13 evidence without cross-examination, it will be
15 Number 16 is in a different position, as I
16 said. It was accepted that he was genuinely in fear.
17 However, having looked at the evidence that he was to
18 give, the Trial Chamber is of the view that it is
19 cumulative, there's been much evidence on the topic on
20 which the Prosecution sought to rely in his case, and
21 it's therefore not sufficiently probative to admit it
22 in these circumstances without cross-examination.
23 Accordingly, the statements of all four will
24 be excluded.
25 MR. NICE: Let me now turn to the matters of
1 the map. There are some further administrative matters
2 that I'll deal with, but it's probably better if I deal
3 with them at the end of the day, when I may have more
4 information about the position on outstanding
5 affidavits and matters of that sort, to bring the
6 Chamber up to date.
7 Mr. Lopez-Terres is going to deal with the
8 map, or maps. There is a -- I'll go back. The maps
9 were responsive to an inquiry of the Trial Chamber
10 before the summer recess, and, indeed, the inquiry was,
11 I think, both as to front-line positions and
13 The witness has prepared a report which has
14 been served on the Chamber, and I'm not sure if the
15 Chamber has got it in enough copies for each member of
16 the Chamber to read it at the moment.
17 JUDGE MAY: I've got a summary. Is the
18 report this other binder that we now have?
19 MR. NICE: No, the report is 13 pages. The
20 very substantial binder you have is simply the
21 supporting material, in case questions of detail are to
22 be raised. And subject to one or two reservations,
23 it's probably a document or an exhibit best produced as
24 a single exhibit, supporting the witness's report.
25 There is one reservation. We can come to that later.
1 But if the Chamber's had an opportunity to,
2 and has read the 13-page report of the witness, then it
3 would be my submission that, through Mr. Lopez-Terres,
4 the most efficient and swift method of dealing with the
5 evidence would be to get the witness to give first his
6 explanation of the three maps. There are two on the
7 board already, and there is another one which is on the
8 floor, which will have to take its place with some
9 overlays in due course. And then, perhaps, to move
10 summarily through the contents of the report.
11 But I think that the maps are things that he
12 can speak of himself, without going through the process
13 of formal examination-in-chief. He can simply present
14 the maps to you. And I think you'll find that quite
16 It may be there are some technical objections
17 by the Defence and, in one way or another, I think I'll
18 hand over to Mr. Lopez-Terres.
19 JUDGE MAY: Yes, Mr. Sayers.
20 MR. SAYERS: Mr. President, we do have
21 several objections relating to the actual report. In
22 principle, however, I do not believe we have any
23 objection to the witness testifying as to his
24 understanding of the front lines and the actual troop
25 dispositions. And that was the precise request upon
1 which the Trial Chamber made of the Prosecution, which
2 would be of assistance, given the plethora of maps
3 which confessedly are rather confusing in this case.
4 It would be useful to have in one place a statement of
5 where the front lines were, at specific points in time,
6 and where the brigades of the various opposing forces
8 And, accordingly, I want to make it
9 absolutely clear that we do not object to that in
10 principle. It's the report that I would like to
11 address to the Trial Chamber's attention. And one of
12 the problems that we have with it, is that it's based
13 partially upon inadmissible materials and other
14 materials, such as, for example, footnote 1, was two
15 maps from, apparently, the Armija, BiH. We only
16 received these about 15 minutes ago, as a matter of
17 fact. And a significant quantity of the conclusions,
18 apparently, in the report are based upon this.
19 I'll be frank with the Trial Chamber, that
20 I've not had an opportunity to evaluate these in any
21 detail. And the scale of them is such that apparently
22 there are two tables on one of these maps. That's
23 referred to in footnote 1. They are absolutely
24 illegible, but apparently they supposedly contain an
25 evaluation, at least from the ABiH side, of the
1 relative strength of the opposing forces.
2 That's one problem that we have.
3 Another problem is that there was no request
4 made for a 13-page written report. Frankly, this
5 report tiptoes, on more than one occasion, into the
6 area of expert testimony, and there has not been a
7 compliance with Rule 94 bis. Putting that aside for a
8 moment, the report is also based, if you take a look at
9 footnotes 41 and 62 of the report, upon a witness
10 statement of a witness who has not testified before
11 this Tribunal, from Zepce, and whose statement was not
12 included in the Zepce binder. Which is, we would
13 respectfully represent, one more continuing effort to
14 sneak witness statements into evidence in this case.
15 Equally significant, and I address the
16 Court's attention to footnotes 38, 58, 60, and 67,
17 there are portions of General Blaskic's testimony that
18 have been consulted and relied upon in coming up with
19 the conclusions that are contained in this report.
20 In addition, it doesn't stop there. If you
21 take a look at footnote 49, on page 7 of the report,
22 there is reliance placed upon testimony from other
23 witnesses in the Blaskic case, who have testified in
24 this case, but not on that point. Mr. McLeod being the
25 case in point.
1 Similarly, if you take a look at footnote 71,
2 I believe I am correct in saying that there are
3 exhibits that were introduced in the Blaskic case, such
4 as, for example, a letter written to trial counsel in
5 the Blaskic case, Mr. Nobilo, introduced as exhibit
6 Defence 440(a) in that case, but not, I believe,
7 introduced into evidence in this case. And there are
8 many other materials that have not been supplied.
9 And there are just a couple of other points
10 that I would like to bring to the Trial Chamber's
11 attention. This report actually goes significantly
12 beyond a description of the front lines and an
13 explanation of the deployments of the various units of
14 the Central Bosnia operative zone, and the 3rd Corps,
15 which is what was requested. There are analyses, for
16 example, of the HVO intentions to establish front lines
17 based upon three orders issued by General, or then
18 Colonel Blaskic, on April the 17th, 1993. And it's not
19 apparent from the report, and it's not apparent to me,
20 why it was felt necessary to include that explanation
21 or analysis of what the apparent intentions of the HVO
22 were with respect to the matter of front lines on that
24 JUDGE MAY: Mr. Sayers, I am going to stop
25 you. It seems sensible to do this: To hear the
1 witness as to the maps, which apparently he's going to
2 address first, and then, if we want to hear any more,
3 we'll consider it, and hear your objections.
4 MR. SAYERS: Thank you very much indeed,
5 Mr. President.
6 MR. KOVACIC: Your Honour, if I may
7 contribute to this. I am sharing the opinion of my
8 learned colleague, Mr. Sayers. I would just like to
9 inform also -- to inform also the Chamber that there
10 were discussions between, as we informed the Chamber
11 earlier, you will remember, between the Prosecution
12 desk and Defence, both Defences. We did exchange some
13 written proposals and comments, and then we met. And
14 some limited progress was done towards the idea to
15 narrow the disputed issues.
16 However, a lot of that remains open, which I
17 would like also to stress, that there is one thing
18 which also should be somehow at least clearly stated,
19 and I guess also decided by the Chamber. It is the
20 principal issue, whether this material produced in
21 front of us, and I am referring to both maps and the
22 report, should be based exclusively on the exhibits
23 already tendered in this case, or is it -- or whether
24 we can allow to have also the exhibits used which are
25 not tendered in this case. I don't have any particular
1 opinion, whether that would be allowed or not, but at
2 least it should be clearly stated.
3 So whatever will be produced today, it is not
4 based only on the exhibits already tendered in this
6 So we should be aware of that. And besides,
7 there -- some of the details which my colleague
8 mentioned, I would like to mention just one. And of
9 course it would be raised during the cross, but just as
10 an example of methodology which was used. One of --
11 most important parts of this presentation for my client
12 is the positions of the brigades on 17 April.
13 According to the Blaskic orders, there were three of
14 them on that date. However, there is no particular
15 presentation on the position of the brigade on the
16 16th, which is really the critical day, when conflict
17 started. And, of course, that could be raised, but it
18 was simply omitted.
19 Thank you, Your Honour.
20 JUDGE MAY: Mr. Kovacic, I suggest that -- as
21 I said before, that the witness gives his evidence
22 about the maps and we'll see how we get on. And if it
23 becomes necessary, we'll have to give some rulings.
24 But at least at the moment he must be entitled to
25 produce his maps, and then you can ask him how he came
1 to those conclusions, if there are matters in dispute.
2 MR. KOVACIC: That would help. Your Honour,
3 if I may, we don't know now whether the report will be
4 admitted as separate evidence or only his presentation
5 and the maps --
6 JUDGE MAY: We are going to hear his evidence
7 about the maps. We are then going to consider whether
8 it's necessary to have the report.
9 MR. KOVACIC: Thank you, sir.
10 JUDGE MAY: Yes. Mr. Lopez-Terres.
11 [The witness entered court]
12 JUDGE MAY: Yes, let the witness take the
14 THE WITNESS: I solemnly declare that I will
15 speak the truth, the whole truth, and nothing but the
17 WITNESS: JON ELFORD
18 JUDGE MAY: Yes, thank you. Take a seat.
19 Examined by Mr. Lopez-Terres:
20 Q. You are Mr. Jon Elford, and you are 29 years
22 A. Yes. My full name, Jonathan Elford.
23 Q. You are working as a military analyst with
24 the Office of the Prosecutor in this Tribunal?
25 A. That's right, yes.
1 Q. You have been exercising these duties since
2 October 1997.
3 A. For the Tribunal, yes, for the last few
5 Q. Could you tell us, in a few words, what the
6 duties of a military analyst consist of?
7 A. The normal duties -- I was really given some
8 form of direction, a task to carry out, which normally
9 would be something in the line of producing reports on
10 military-based subjects, analysing a military action or
11 an organisation and chain of commands. The analyst
12 would then, using all the available information, make
13 an analysis of the information and produce or refine a
14 report based on that.
15 Q. You belong to a group of some 15 analysts
16 working for the Office of the Prosecutor.
17 A. That's right, yes.
18 Q. Mr. Elford, since last summer, you were asked
19 to work on maps, at the request of the Office of the
20 Prosecutor, within the framework of the Kordic trial.
21 This request was, in fact, in response to a question by
22 the Chamber on the 3rd of August, 1999, when the
23 Chamber requested that a map be presented on which
24 certain information would appear regarding the
25 deployment of forces in the region, the BiH forces, the
1 HVO forces, and the army of Republika Srpska.
2 You personally worked on those maps, you
3 produced those maps. There is a map of Central Bosnia
4 for April 1993, another map for the month of July, and
5 finally, you also worked on a map for the Vitez region
6 on which you made three transparencies to show us the
7 situation. Is that correct?
8 A. That's correct. The deployment shown relates
9 to the HVO and the ABiH, with a VRS front line shown as
11 Q. Within these maps, you will explain to us in
12 detail in a few minutes the confrontation lines in
13 different colours, as well as a listing of various
14 combat units both for the BiH army and the HVO forces.
15 A. Yes, that's true.
16 Q. I should like to ask you if you would be kind
17 enough to begin and explain the first map that you
18 worked on, commenting on the various indications or
19 signs appearing on that map.
20 JUDGE MAY: Do we have an exhibit number,
21 Mr. Lopez-Terres, for the first map?
22 MR. LOPEZ-TERRES: [Interpretation] This map,
23 dated April, as well as the map for July, is marked
24 Z2612.2A and Z2612.2B.
25 Q. Please continue.
1 A. I'll, first of all, explain the map.
2 This is a 1:100.000 scale map of Central
3 Bosnia, which I believe has already been presented as
4 an exhibit in the trial. So 1:100.000 scale means that
5 one centimetre on the map is equivalent to one
6 kilometre on the map. The map shows information on the
7 terrain of the area, road systems, and towns or
8 villages in the area, but it's also been overprinted
9 with obstruction information, which relates to overhead
10 obstacles such as pylons and electricity cables, which
11 are actually not part of this presentation.
12 I'll move on to the actual information
13 shown. The first line which is on the map for April
14 1993 was the VRS front line, and this line is shown in
15 red, following this area [indicates], the front line
16 around the Sarajevo area [indicates], and then the
17 northern area [indicates]. This front line was made up
18 basically from UNPROFOR traces which were made at the
19 time, and then also with comparison to ABiH maps which
20 were made after the events. They were quite
21 consistent, there was a fair amount of consistency
22 between the two of them. Really, this front line
23 remained relatively stable for the entire period we're
24 looking at, and so it's been used again for the second
25 map, for July onwards.
1 The other information shown then is the HVO
2 and ABiH actual brigade-sized units and the corps
3 headquarters, and what is shown is the brigade
4 headquarters and not the whole area that the brigade
5 actually covered. So a brigade would be able to cover
6 an area away from its headquarters.
7 If I go through, first of all, the HVO
8 brigades, the first one marked is number 1, and that is
9 the headquarters of the Central Bosnia Operative Zone;
10 below that, number 2, is the Viteska Brigade, which
11 operated in the Vitez area; number 3, the Nikola
12 Subic-Zrinjski Brigade, operating in Busovaca; and
13 number 4, the Stjepan Tomasevic Brigade, in Novi
15 Then in the Travnik area. Number 5, the
16 Travnicka Brigade, and outside Travnik, the Frankopan
17 Brigade; number 7 on the map is the Jure Francetic
18 Brigade, which is the HVO brigade for the Zenica area;
19 number 8, the 111th Brigade in the Zepce area. And
20 then I move down to the Bobovac Brigade in Vares; the
21 Kotromanic Brigade in Kakanj; the Ban Josip Jelacic
22 Brigade in Kiseljak. Then in Bugojno, the Eugen
23 Kvaternik Brigade, and in Gornji Vakuf, the Dr. Ante
24 Starcevic Brigade.
25 In the same way, the ABiH brigades have also
1 been plotted on the map. So if I go through those in
2 order, all based in the Zenica area, were the
3 headquarters of the 3rd Corps ABiH, the 301st Brigade,
4 the 303rd, the 314th, and then the 7th Brigade ABiH.
5 In the Travnik area, this part of the map [indicates],
6 we had the 306th Brigade, the 312th, and also the 17th
8 If I move across the map to Novi Travnik
9 [indicates] is the location of the 308th Brigade; and
10 then following the map around, in Bugojno was the 307th
11 Brigade; Gornji Vakuf, the 317th Brigade; move to the
12 north of the map, in Zavidovici, the 318th Brigade; in
13 Zepce, the 319th Brigade. Based just to the west of
14 Kakanj, we have the 305th Brigade; in Kakanj itself, is
15 number 13, the 309th Brigade; Kacuni, outside Busovaca,
16 was the 333rd Brigade; in Visoko were the 302nd
17 Brigade; and then in Breza was the 304th Brigade. Back
18 to the brigade for the Vitez area, based in Poculica,
19 is the 325th Brigade.
20 And those are the brigade-sized units for the
21 area which have been plotted on the map.
22 Q. You did not mark on this map certain units of
23 a smaller size than brigades. They were units that
24 were referred to in the course of this trial, so could
25 you comment on them?
1 A. That is correct. Basically, to avoid
2 cluttering the map, we kept it to brigade-sized units.
3 But also for the HVO, there are other smaller-sized
4 units, which I mentioned in the report, which were the
5 Vitezovi special forces unit which operated within the
6 Vitez pocket; the Tvrtko II special forces unit, which
7 was based in Nova Bila, which again is in an area north
8 of Vitez; the 4th Battalion of the military police,
9 which was a military police unit for the HVO for the
10 Central Bosnia area; and then it also mentions the
11 Ludvig Pavlovic Brigade and the Ante Bruno Busic
12 Brigade, which operated in this area sometime in early
14 Q. These two last units that you mentioned came
15 from Herzegovina, didn't they?
16 A. That's right. They were deployed in Central
17 Bosnia in approximately January 1993. We've seen this
18 from orders of General Blaskic at the time to these
20 Q. You acted in the same way, a little later,
21 for the year 1993, and then you drew a second map on
22 which you indicated again the confrontation lines, and
23 also the units that were deployed. The number of those
24 units was modified, as compared to those you have just
25 told us about.
1 A. The second map, then, shows the HVO front
2 lines and pockets that develops after April '93, and
3 also shows the changes in brigades of the various sides
4 after different actions occurred up until that time
6 Q. Would it be possible now to present the
7 central map for Central Bosnia -- the second map.
8 Could you tell us the main changes that occurred
9 between the month of April and the period beginning
10 with July, 1993.
11 A. Yes. First of all, I show that the lines
12 that developed -- the first one is the front line that
13 developed around the Vitez pocket. The pocket also
14 developed in the Kiseljak area, and also another HVO
15 area -- pocket within the Vares area, which lasts to
16 about November '93.
17 In June, '93 a front line developed between
18 the ABiH and the HVO in the Zepce area, which is
19 shown. And also a split develops and a front line came
20 between the HVO and the ABiH in the Gornji Vakuf area,
21 which is shown to the side. The conflict for this
22 started in July, and the information comes from BritBat
23 reports from early August '93, for the Gornji Vakuf
25 The main changes we saw within the brigades:
1 In the Zenica area, the Jure Francetic Brigade was
2 driven out of the Zenica area, and the remnants of the
3 brigade moved into the Vitez pocket.
4 In the same way in Travnik, the Travnicka
5 Brigade and the Frankopan Brigade were pushed out of
6 Travnik, and the elements left over, reformed in the
7 north of the Vitez pocket.
8 In Zepce, the ABiH 319th Brigade was
9 destroyed by the HVO in the Zepce area.
10 Moving south of the map. In Bugogno, the HVO
11 Brigade was pushed out and destroyed in Bugogno. And
12 the same occurred in Kakanj with the Kotromanic
13 Brigade. It was destroyed by the ABiH in the Kakanj
14 area, and the remnants moved into the Vares pockets.
15 And those were the principal changes on the map.
16 Q. This new definition of front lines involved
17 redeployment of units that were destroyed. Could you
18 give us some information about the way in which these
19 units that were defeated on the ground were absorbed
20 into other units.
21 A. Yes. Well, on the HVO side, the
22 Frankopan/Travnicka Brigade were reduced in number, but
23 still seemed to operate as a complete unit, but in the
24 northern area of the Vitez pocket. As mentioned, Jure
25 Francetic Brigade, the elements would then seem to have
1 been deployed within HVO units within the whole of
2 Vitez pocket, but in limited numbers. And as
3 mentioned, the remaining elements of the Kotromanic
4 Brigade deployed into the Vares pocket.
5 Q. It is shown on the two maps that you have
6 described that the confrontation lines with the Serbs
7 were frozen; they didn't change during that period, in
8 other words.
9 A. When I say "frozen," they were relatively
10 stable, but there was movement along those front
11 lines. And there was also the same in the Vitez
12 pockets and to some extent in the Kiseljak area. The
13 main activity in the -- against -- in the Serb area was
14 in the area to the west of Travnik, where, for example,
15 the Kamenjas feature was lost to the VRS, and then the
16 ABiH had to retake that feature. And then, from a
17 later date into '93, then continued attacks from the
18 ABiH against the VRS in that area.
19 Other changes were, really, a normal backward
20 and forward movement, but no major changes to the line
22 Q. According to information at your disposal,
23 was there any evolution regarding the participation of
24 HVO forces on the front line against the Serbs, side by
25 side with the Bosnian army?
1 A. Going back to January '93, from then we
2 appeared to have seen documents which show a reduction
3 in the forces, the HVO forces on the front line in that
4 area. Then BritBat reports show HVO troops in this
5 area mentioned before up until around June '93. At
6 this point, that seems the last time they were seen on
7 that front line, and BritBat reported that the HVO
8 withdrew, the VRS took their positions, and the ABiH
9 had to retake them at a later date.
10 Q. You have shown us the list of units and their
11 deployment. It is necessary, on the basis of the
12 figures and the headquarters, to give us some
13 indication as to the importance, the size and strength
14 of those units. Can you give us some figures regarding
15 the personnel manning those units?
16 A. Yes. We have figures available for all of
17 the units shown on the map. And then we have some for
18 the smaller size units which were not shown on the
19 map. Do you want me to run through those?
20 MR. SAYERS: If I may, Mr. President. That's
21 where we object. This is the predicate to a force
22 ratio analysis that's contained in the report, and it's
23 the subject of expert opinion testimony, I think, from
24 a wide variety of sources, some ABiH, some HVO, some
1 JUDGE MAY: Let the witness take a seat while
2 this is argued.
3 Mr. Lopez-Terres, would you like to tell us
4 what it is that you propose to call, the evidence you
5 propose to call, and how you propose to deal with it,
6 and then we'll hear the objection.
7 MR. LOPEZ-TERRES: [Interpretation] It appears
8 quite necessary to know where the forces were deployed,
9 but it seemed to us, in the Office of the Prosecutor,
10 that such a presentation would be absolutely incomplete
11 if beyond the lines and behind the front lines no
12 information was given to the Chamber regarding the
13 personnel who were on those front lines, the number and
14 strength of those units, the number of combatants on
15 the ground, the type of weapons they had, the type of
16 formations that they had. And this type of
17 information, which is usually information studied by
18 military analysts, we thought was of particular
19 relevance -- of particular relevance for assessing the
20 events that took place in Central Bosnia. The
21 confrontation lines are certainly necessary, something
22 necessary, but it is also necessary to know who held
23 those lines, how those lines were held, what were the
24 effectives in place. That is the type of information
25 that Mr. Elford compiled, and all the sources that he
1 used to give us those descriptions are referred to in
2 the binder. And also as footnotes at the bottom of his
3 report, all the sources can be verified.
4 JUDGE MAY: The objection is taken.
5 Apparently, one of the objections is that it's based --
6 the report is partly based on information which is not
7 available, or has not been made available in this
8 case. For instance, evidence given in the Blaskic
10 What do you say in answer to that?
11 MR. LOPEZ-TERRES: [Interpretation] The
12 documents on which Mr. Elford worked, and which -- a
13 part of the binder provided to you, have been produced
14 for the Defence, and have been translated. These are
15 documents with the Office of the Prosecutor, intended
16 to produce within the case -- the Kordic/Cerkez case.
17 They were communicated to the Defence. They have had
18 access to them. And the best proof is that Mr. Sayers
19 was able to comment on various points contained in
20 those documents. Everything has been disclosed to the
22 JUDGE MAY: Thank you. Yes, Mr. Sayers.
23 MR. SAYERS: Mr. President, Mr. Elford has
24 provided the Court, apparently, with precisely that
25 which the Court requested, which is a map that shows
1 the front-line dispositions at two separate dates, and
2 pertinent brigade positions on those dates.
3 Going further into an analysis of the various
4 troop strengths requires Mr. Elford to go straight into
5 the area of expert testimony, and to give his views on
6 the force of a variety of documents, which often
7 contain conflicting numbers, as far as we can see, from
8 looking at the footnotes in his report. That is expert
9 testimony, and we've heard from a lot of military
10 experts or a lot of military figures in this case who
11 have given a wide variety of testimony, and their own
12 views on troop dispositions and strengths.
13 But, more importantly, Mr. Elford's footnotes
14 refer to a wide variety of documents that are not
15 exhibits in this case. And he refers to General
16 Blaskic's testimony in the Blaskic case on some issues
17 that could be contentious, and, for that reason alone,
18 I think that he ventures into dangerous territory when
19 he does so. But, generally speaking, we simply do not
20 see the need for expert testimony of the type that he
21 proposes to give in his force ratio analysis, and which
22 goes beyond that which the Trial Chamber's asked for,
23 and which Mr. Elford has provided in an easily
24 understandable, easily digestible and graphic way.
25 Thank you.
1 MR. KOVACIC: I join that opinion, Your
3 JUDGE MAY: We'll consider the matter
4 [Trial Chamber confers]
5 MR. LOPEZ-TERRES: [Interpretation]
6 Mr. President, I am sorry to interrupt you while you
7 are deliberating. But could I, perhaps, say something
8 in addition to what I said, which I believe you ought
9 to know.
10 The report was based and that the source on
11 which it was based was communicated before your Chamber
12 took the decision which you did last week on the
13 possibility or non-possibility to use the testimony --
14 the evidence in the case of Colonel Blaskic.
15 And this explains why there are some
16 fragments, but very limited, which at the time were
17 picked out by Mr. Elford to underpin the comments that
18 he had to make. These fragments come from the
19 transcript of General Blaskic's case, however, this is
20 not the principal source of Mr. Elford's evidence.
21 They simply corroborate, confirm the information that
22 he already had available to him.
23 And I hear the Defence -- I don't understand
24 why the Defence wants to create a certain confusion and
25 to say Mr. Elford is an expert. He is not an expert in
1 the sense of '94. He is a military analyst, he is a
2 military analyst who works for the Prosecutor's office
3 and he comments on the information that is at his
4 disposal. That information comes from different
5 sources, as you were able to see from the documents.
6 There are documents which come from the HVO, some come
7 from the Bosnian army, some come from international
8 organisations, or from the UNPROFOR forces deployed
9 there at the time. And this is one of the sources
10 which are highly verifiable, if nothing else. And I
11 simply needed to repeat that to the Prosecutor's
12 office, it seems necessary in addition to comments on
13 the maps, that we believe that it is very necessary to
14 show the Chamber what was the strength of various -- of
15 various units, because it will help towards a better
16 understanding to what was happening. It doesn't really
17 matter whether they were in Zenica are Kiseljak. This
18 is interesting, of course, but it does not suffice,
19 unless we really know how strong were these brigades,
20 how well were they armed, and what was the kind of
21 training that men who belonged -- who belonged to these
22 brigades had.
23 [Trial Chamber confers]
24 JUDGE MAY: We think this is testimony which
25 we ought to admit. It is, or may be potentially useful
1 evidence. It goes beyond what the Chamber asks for,
2 but that doesn't matter. A party is able to produce
3 its own evidence. It is evidence which makes the maps
4 clearer, clarifies the position. The witness can, of
5 course, be cross-examined as to the sources of his
6 evidence, and, more significantly, that the Defence can
7 always refute and contradict the evidence by calling
8 evidence of their own, if they do wish to do so. But
9 otherwise, I think its probative value exceeds any
10 problems which, it may be said, exist in relation to
12 We shall admit it.
13 MR. LOPEZ-TERRES: [Interpretation]
14 Q. Mr. Elford, we can now continue.
15 Could you now turn to other maps with which
16 you worked and which, more specifically, show the area
17 of Vitez.
18 A. It will take a few minutes to put up the
19 Vitez maps.
20 Q. Then Mr. Usher will help you.
21 Right. Oh, excuse me.
22 [Trial Chamber confers]
23 MR. LOPEZ-TERRES: [Interpretation]
24 Q. Mr. Elford, you did the following: This is a
25 map of the Vitez area, or, if you like, the Lasva
1 Valley, and this time, you used overlays in order to
2 show the formations, as to where they were deployed
3 during different periods of time, as of the 17th of
4 April, 1993, to begin with, this is the first overlay,
5 and then in May 1993, and finally, for the period
6 following July 1993, which is the third overlay that
7 you made.
8 A. That is correct. There are three overlays.
9 The first two really build up the information that's
10 produced on the final overlay.
11 MR. LOPEZ-TERRES: [Interpretation] I should
12 like to draw the attention of the Chamber to the fact
13 that for practical reasons, we were able to reproduce
14 these overlays in A4 formats, and we're tendering them
15 as Exhibits Z2612.10, Z2612.11, and Z2612.12.
16 Q. Could you tell us about the first overlay,
17 which refers to the 17th of April, 1993?
18 A. Yes. If I can explain the map again, first
19 of all. This is a 1:50.000 map, which has then been
20 blown up to twice the size. There are one or two
21 differences from the A4-size map, which you've been
22 given, because the A4-size map was taken from a
23 1:100.000 map, so it's more compact, and also I think
24 the line colours are different, although the lines
25 remain the same.
1 First of all, to explain, this map then is --
2 I've called it the intended front line, the intended
3 HVO front line in the Vitez area, and from using orders
4 from Colonel Blaskic at the time, we've shown how the
5 HVO front line developed, and the areas that they
6 intended to defend at the time.
7 The first line I've drawn on is an order
8 issued at 0400 hours, on the 17th of April, 1993, and
9 it's shown in black. To explain that one, the first
10 one is really an order to defend access roads from
11 Poculica and Preocica, from this area here [indicates]
12 and there [indicates], which is why the black line has
13 been drawn to the south of those areas, showing how the
14 HVO would intend to defend attacks from that direction
15 [indicates] and that direction [indicates].
16 Also mentioned on that order was to maintain
17 a blockade of Veceriska, which we've indicated here
18 [indicates], and also to seize that area, and Kruscica
19 and Vranjska, which is shown in the black, to the south
20 of Vitez.
21 That order was preceded by one on the 16th of
22 April, which was a more limited focus, just focusing on
23 the blockade at Kruscica and Vranjska
24 The next line, shown in blue, is based on an
25 order of 1850 [sic] hours, again, on the 17th of April,
1 1993, and this orders the Viteska Brigade to form a
2 defence line on the Kuber feature, which is this area
3 here [indicates], to the north-east of Vitez, in
4 coordination with the Nikola Subic-Zrinjski Brigade
5 from Busovaca, and also elements of the 4th Battalion
6 of the military police. This feature is important for
7 the defence of Nadioci, which is to the south of it,
8 and also Kaonik, an area in the responsibility of the
9 Nikola Subic-Zrinjski Brigade.
10 The third order formalises these orders, the
11 preceding ones, and gives lines on which the Viteska
12 Brigade was preparing defensive positions. This was
13 ordered at 2210 hours, on the 17th of April. The first
14 line is from Zabilje, through Jardol, to Krcevina; the
15 second line really backs up the lines along the Kuber
16 feature; and the third line is through the Kruscica
17 area, and that's really how the defensive lines built
18 up in the area.
19 The green line shown is the actual ABiH front
20 line, and the main points to note on that is that it
21 came down around the Stari Bila feature, which shows
22 that the defence line in that area was an intended
23 defence line, and the HVO were not actually able to
24 take the Stari Bila feature and Grbavica until
25 September 1993.
1 That's the information for the first
3 Q. Only a rectification for the transcript, a
4 correction. It was that the second order of the 17th
5 of April was issued at 1850; however, it was 1815,
6 wasn't it? Quarter past six.
7 A. Yes, 1815 is shown, yes.
8 Q. You referred to those three orders of the
9 17th of April, and one also which was taken at night,
10 on the 15th of April, by Colonel Blaskic. And that
11 order of the 16th of April, it was around 1.00 in the
12 morning, and that one was quite different from the one
13 of the 17th that you just spoke about.
14 A. That is the order of -- the order to blockade
15 the Kruscica area, which was limited to the area to the
16 south of Vitez.
17 Q. And those three orders of the 17th of April,
18 and the one of the 16th of April, are in the
19 documentation that you could identify, and they are all
20 in the binders that you submitted.
21 A. That's correct.
22 Q. Could we now move on to the second overlay,
23 which covers May 1993?
24 A. Yes.
25 Q. Could you tell us, what is the meaning of
1 these different markings that you put here, and also
2 the source of the information on the basis of which you
3 made those markings?
4 A. Yes. This report is based on a report
5 produced in May 1993 by the Vitez Defence Office and
6 was a report on the organisation of the Viteska
7 Brigade. What is said is that the brigade was now
8 organised on a sector or territorial basis, and so this
9 map shows the actual sectors and the areas --
10 MR. KOVACIC: Your Honour, I'm sorry, but
11 it's better to clear that -- I presume that was a
12 mistake. The Defence Office, at least it was in the
13 translation, the Defence Office. We're talking about
14 the Defence Office, not the brigade; right?
15 A. The Vitez Defence Office.
16 JUDGE MAY: Yes. Well, you can clear that up
17 in cross-examination, Mr. Kovacic.
18 MR. KOVACIC: Thank you.
19 A. And this --
20 JUDGE MAY: Yes.
21 A. -- it's not so much showing the front lines,
22 but it shows the areas which the sectors had, and these
23 sectors are also referred to in military orders of the
24 Viteska Brigade.
25 To show the first sector, sector 1, which
1 covered the area of Zabilje, Ograde, through to Jardol,
2 Divjak, and also Veliki Mosunj and Mali Mosunj; sector
3 2, the area of Krcevina, Krizancevo Selo, and
4 Dubravica, in this area [indicates]; sector 3 is the
5 area covering Santici, Nadioci, and Ahmici; sector 4
6 then covered the Kruscica area; and the final sector,
7 sector 5, covered the Zaselje and the Donji and Gornji
8 Veceriska area, which is shown there [indicates].
9 It's really -- although administrative
10 organisation shows how the brigade was started to be
11 organised -- being organised at the time.
12 Also shown on this one, ABiH front lines
13 which were still developing. So the area, ABiH front
14 lines to the north of Vitez; Krusica area to the south;
15 and then across from Novi Travnik. And that's the
16 information shown on this map.
17 Q. This reorganisation by sector, did it mean a
18 significant change as to the organisation which existed
19 in April, 1993?
20 A. What it shows and what it moves onto is the
21 subdivision of the brigade into four battalions. And,
22 really, that was achieved as the brigade increased in
23 size was able to subdivide.
24 JUDGE MAY: Mr. Lopez-Terres, when you come
25 to a convenient moment, we'll adjourn.
1 Would that be the most convenient as any?
2 Perhaps I could just clear that with the
3 witness. The numbers, the Roman numbers that we have,
4 is that the battalion, Mr. Elford?
5 A. Those are the --
6 THE INTERPRETER: Microphone, for
7 Mr. Elford. Microphone is not switched on.
8 A. The numbers given are the sector numbers.
9 The battalion numbers will be shown on the next, the
10 final map of the Vitez area.
11 JUDGE MAY: Thank you. Very well. We'll
12 adjourn now. Half past 2.00.
13 --- Luncheon recess taken at 1.00 p.m.
1 --- On resuming at 2.38 p.m.
2 JUDGE MAY: Yes, Mr. Lopez-Terres.
3 MR. LOPEZ-TERRES: [Interpretation]
4 Q. Mr. Elford, before we end the examination,
5 you have given us explanations and comments on the
6 maps, on May 1993, and the division into sectors of the
8 I should now like you to tell us which would
9 be your comments on the map that you drew for the month
10 of July 1993, and the third overlay.
11 A. Yes. The final overlay really shows the HVO
12 front line as it was from about July 1993 onwards, and
13 also it shows an estimation of the split of the Viteska
14 Brigade into the battalions and the areas held by those
16 This line, as you can see, is very similar to
17 the lines demonstrated by the orders in the preceding
18 charts. So the HVO lines were given in black, and we
19 then show -- the HVO battalion divisions are shown by
20 dotted lines within the Vitez pocket.
21 So if we look at the areas held by the
22 battalions, the 1st Battalion, commanded by Ante
23 Bertovic, was initially responsible for the sectors 2
24 and 3, which are mentioned on the previous chart, and
25 this was based in Dubravica. So its area of
1 responsibility included Krcevine, the area to the south
2 of Sivrino Selo, Pirici, Ahmici, and Nadioci.
3 To the north of this was the 2nd Battalion,
4 commanded by Zarko Zaric, and its area of
5 responsibility included Nova Bila, Zabilje, and the
6 Jardol area, this area [indicates].
7 The 3rd battalion was commanded by Karlo
8 Grabovac, and its area of responsibility included
9 Rijeka and Kruscica, in this area [indicates].
10 The 4th Battalion was commanded by Ivica
11 Drmic, and its area of responsibility included Zabilje,
12 and then Gornji and Donji Veceriska.
13 The green line shows the ABiH front line, but
14 I think the most important line to note is the black
15 HVO positions, which, perhaps, show the extent of the
16 positions held by the HVO. I can't really show the
17 changes of time on the focus of the ABiH attack and the
18 various attacks which changed over time.
19 What's also shown, as well as the area of
20 responsibility of the Viteska Brigade in the centre, is
21 the Nikola Subic-Zrinjski Brigade area to the south of
22 Vitez, in the Busovaca area; the area of the Stjepan
23 Tomasevic Brigade in Novi Travnik; and then also
24 included in this area is the positions held by the
25 Frankopan, and also remnants of the Travnicka Brigade.
1 And that's really the information shown on
2 this map.
3 Q. Thank you for this last explanation. I think
4 that you may be seated for the moment.
5 In the body of your report, as we mentioned
6 this morning, you indicated certain information
7 regarding the strength of the various brigades which
8 were deployed on the ground. You spoke about 18
9 brigades of the Bosnian army first, which was then
10 reduced to 17 in July 1993. You also spoke about 12
11 HVO brigades in the month of April, which was reduced
12 to nine in July.
13 You gave certain figures, and I would like to
14 ask you to go back to those figures appearing in your
15 report, to take them one after another, and to
16 indicate, if possible, what was the source of your
17 information. Of course, you will be confirming the
18 figures appearing in the report.
19 A. Yes. The primary source for these figures,
20 which I'll read out, first of all, for the ABiH, came
21 from ABiH sources, and then these were compared against
22 also reports produced by the HVO, including an
23 assessment produced by Colonel Blaskic. I'll go
24 through these in perhaps the order they appeared on the
1 We have the 301st Mechanised Brigade, which
2 was based in Vitez, and the figures I give are for
3 April 1993, and this had approximately 1.800 men; the
4 303rd Brigade was based in Zenica, and this brigade had
5 approximately 1.400 men; the 304th Brigade, based again
6 in Zenica, had approximately 1.800 men; the 7th Muslim
7 Brigade, which had its headquarters in Zenica, had
8 approximately 1.100 men in April 1993; the 306th
9 Mountain Brigade had approximately 1.320 men; the 312th
10 Motorised Brigade had approximately 2.500 men; the 17th
11 Brigade, which was headquartered in Travnik, had
12 approximately 900 men in April 1993; the 308th Brigade
13 had approximately 1.520 men; based in the Vitez area
14 was the 325th Brigade and had 1.150 men; the 333rd
15 Mountain Brigade had approximately 1.450 men; also
16 shown on the map was the 305th Brigade, which was based
17 in Biljesevo -- and at that time, it appears to be
18 reformed, originally based in Jajce, then moved to
19 Gornji Vakuf, and then the remnants were moved to
20 Biljesevo -- and the figures vary from between 50 and
21 up to 400 men in this period.
22 It is not clear when this brigade reached
23 full strength, but then later in 1993, it was deployed
24 around Central Bosnia, once it reached full strength.
25 The 309th brigade was based in Kakanj, and in
1 April '93 had approximately 2.500 men.
2 Also shown on the map were the 302nd and the
3 304th Brigade. They were based in Visoko, and the
4 304th based in Breza. But we don't have figures for
5 those brigades.
6 Also mentioned in the Sitrep by Colonel
7 Blaskic, but not shown on the map, the ABiH Patriotic
8 League and the Green Legion, which we don't have
9 figures for these units, and the reports available
10 suggest they are actually the forerunners of some ABiH
11 units and were later subsumed into these units.
12 Also shown on the map, 307th Brigade based in
13 Bugogno, which had approximately 2.500 men in April
14 '93. 307th in Gornji Vakuf, approximately 2.000. The
15 318th in Vidovici in April had approximately 8.100
16 men. And the 319th Mountain Brigade based in Zepce,
17 which in this period had approximately 1.540 men.
18 Q. Could you please tell us now about the HVO
20 A. -- figures for the units, which was shown on
21 the Central Bosnia disposition map. The initial
22 figures I'll give were taken from an ABiH source April
23 '93. Then they are also compared with HVO reports
24 from -- also from May '93, one from August, and then a
25 report which dates from about October to November '93,
1 late in '93. And they were used for comparison.
2 So the figure for April '93 is approximately
3 1.300 men. And this figure climbed throughout the
4 summer of '92. The highest source quoted came to 2.700
5 men, but sources from after that period, from August,
6 give a lower figure closer to 2.000.
7 The 2nd Tomasevic Brigade, based in Novi
8 Travnik, had approximately 1.200 men in April '93. The
9 Travnicka brigade --
10 Q. Just a moment, please. The first brigade you
11 were referring to, you didn't mention its name. You
12 were talking about the Viteska Brigade; were you not?
13 A. Yes, the first figure I gave for the HVO was
14 for the Viteska Brigade.
15 Just finish on the Travnicka brigade, which
16 had approximately 980 men in April '93. Initially
17 based in Dolac, close to Travnik, was the Frankopan
18 Brigade, which in April had approximately 1.680 men.
19 This figure was reduced when it was forced from the
20 Travnik area.
21 The Nikola Subic-Zrinski Brigade, based in
22 Busovaca, approximately 1.500 men in April '93.
23 The Jure Francetic Brigade, formed in Zenica
24 area, and in April -- the start of April it had
25 approximately 8.120, although this was dramatically
1 reduced after it was forced from the Zenica area. And
2 the figures for August '93 are close to 500 men.
3 The Kotromanic brigade based in Kakanj
4 initially had 950 men in April '93, and in June this
5 brigade, as I mentioned before, was pushed out of the
6 area and the remnants moved to the Vares pocket.
7 Bobovac Brigade was based in the Vares pocket
8 until November '93, and approximately 2.200 men.
9 The 111th Brigade in the Zepce area, sources
10 quoted up to 3.200. And Ban Josip Jelacic Brigade,
11 which operated in the Kiseljak pockets, at
12 approximately 1.600 men.
13 For the last three brigades, we weren't able
14 to compare all the figures with HVO figures, because
15 the reports quoted difficulties in our communications
16 to get the figures for those brigades.
17 Also shown on the map were the Eugen
18 Kvarternik brigade in Bugogno, which had approximately
19 1.200 men. They were driven from the town in July
20 '93. And Ante Starcevic Brigade, based in Gornji
21 Vakuf, approximately 1.000 men in April '93.
22 I have some figures for the other units,
23 which I mentioned before, which are not shown on the
24 map. These were from a variety of sources.
25 Vitezovi special forces units, which had up
1 to approximately 180 men. And that figure was given in
2 testimony during this trial.
3 Also mentioned the Tvrtko special forces
4 units, and that was listed in the HVO assessment of
5 having approximately 50 men.
6 The 4th battalion military police, throughout
7 Central Bosnia operational zone, and we have a listing
8 for that which gives a listing of 450 men.
9 Also mentioned, Ludvig Pavlovic Brigade, and
10 the Anto Bertovic Brigade. Ludvig Pavlovic reports 50
11 members of the brigade being sent to Central Bosnia
12 from Herzegovina. The Anto Bertovic Brigade had
13 elements based initially in Novi Travnik and then in
14 Gornji Vakuf and Zepce. And we know that the unit in
15 Zepce had between 100 and 130 men, which is probably a
16 similar number in the Gornji Vakuf area.
17 And that's all the brigades that were shown
18 on the map and the -- of the units in the area.
19 Q. I should like to focus for a moment on the
20 special units that you mentioned. The Vitezovi, you
21 indicated that their number could have reached up to
22 180 men. You said that this figure was derived from
23 testimony in this trial. You also examined a document
24 issued by that same unit, the Vitezovi in February
25 1994, and which refers to a figure variating between
1 120 and 140 men. Is that right?
2 A. That's correct, yes.
3 Q. I would like to indicate to the Chamber that
4 this document has already been admitted, and it carries
5 the number Z1380.
6 As regards a unit that was referred to
7 sometimes, that was called after its leader, the Zuti
8 unit. Was this an autonomous unit or did it belong to
9 a brigade?
10 A. From BritBat reports, said that it was part
11 of the Frankopan Brigade.
12 Q. You also learnt of your document signed by
13 Colonel Blaskic, introduced through a witness, Exhibit
14 Z1260.1, according to which the head of this unit,
15 Zarko Andric, was promoted in July 1993. And it says
16 in this document that he was the commander of a special
17 unit of the Frankopan Brigade. Is that the unit we are
18 talking about?
19 A. Yes, that was the BritBat assessment, that
20 was part of the Frankopan Brigade.
21 Q. Very briefly, on the last unit, the unit
22 called Maturice. Was that an autonomous special unit,
23 or did it belong to a brigade as well?
24 A. What I read, I believed that belonged to the
25 brigade based in Kiseljak, which is Ban Josip Jelacic.
1 Q. I should now like us to look for a moment at
2 the Vitez Brigade, more particularly. You told us that
3 you started several reports, which allowed you to set a
4 number to the strength of that brigade. And in your
5 report you said that there was an active component, or
6 a permanent component of this brigade. Could you give
7 us some indications and some information about this
8 permanent, active part of the unit?
9 A. Well, this active part that I mentioned, were
10 the members who were members of the HVO before the
11 Viteska Brigade was formed. The Viteska Brigade was
12 formed from a battalion of the Stjepan Tomasevic
13 Brigade and was based, I've seen a listing, based on
14 the people who were active members at the time. And
15 these active members were referred to in other reports
16 as being the first members of the brigade. I've seen
17 documents showing them being based in areas around the
18 brigade area of responsibility. And these are the
19 people who had been members of the brigade before. The
20 remainder were mobilised for the brigade to reach a
21 stronger strength.
22 Q. The documents that you are speaking about, I
23 am thinking about -- are you thinking about a list
24 which is Z505? I believe that's the number.
25 A. Which was the listing of the original members
1 of the brigade.
2 Q. Yes, that's right.
3 A. Yes. So that that --
4 Q. The second battalion, at the time the second
5 battalion of the Stjepan Tomasevic Brigade, which was
6 the active part?
7 A. Yes. These were the people who were members
8 of the brigade before the large scale mobilisations of
9 April '93.
10 Q. You also produced a document on which we see
11 the strength of that first battalion with the locations
12 where they were deployed; that is, in the case file
13 that you prepared. I think it is Z354, I think -- 534,
14 I believe it was.
15 A. This is a document that showed the original
16 companies of the brigade and the locations that they
17 showed, with approximately 90 to 100 men in each
18 company, which brings it close to that strength of
19 about 300 men.
20 Q. Do you have that document in front of you?
21 A. I just have to find it in the binder.
22 Q. If possible, since, in any case, this
23 document was already given to the Defence, would it be
24 possible for you to indicate the locations that were
25 targeted as those in which permanent and active members
1 of that brigade were set up?
2 This is Z653, I believe. I can give you my
3 copy, if you like.
4 A. I don't have an annotated document.
5 Q. I think that the document referred to your
6 footnote, number 74.
7 A. This is the document that showed the initial
8 companies. If I run through the areas, the 1st Company
9 had approximately 92 men --
10 Q. Continue.
11 A. -- for the areas of Nadioci --
12 JUDGE MAY: Just a moment. There's an
14 Yes, Mr. Kovacic.
15 MR. KOVACIC: No objection. Can it be placed
16 on the ELMO so we know what document we're talking
17 about, because there are some similar documents.
18 A. The 1st Company, Nadioci, Santici, and
19 Dubravica area, also in Poculica.
20 If we move down to the 2nd Company, which is
21 the area -- which is the 2nd Battalion area, Veliki and
22 Mali Mosunj, Jardol, Zabilje, and also in the Bila
24 If we move down to the 3rd Company, in
25 Zaselje and the Gornji Veceriska area, and then also in
1 Krcevine area, covering the Stari Vitez area and the
2 central areas of Vitez, and also Gacice.
3 MR. LOPEZ-TERRES:
4 Q. The document is dated 14 April 1993; is that
5 correct? Is that correct? I think the usher has moved
6 it away a little bit too quickly. Is that the correct
7 date? The date is the 14th of April, 1993; is that
8 correct? Is that right? This document is the 14th of
9 April. I'm simply asking you to tell us the date of
10 the document.
11 A. That is correct, yes.
12 Q. The 14th of April.
13 On the document, you saw several names that
14 you've already mentioned as being those of future
15 battalion commanders, particularly that of Ivica
17 A. Yes.
18 Q. Thank you. We can take the document away
20 Starting with that information about
21 personnel deployed on the front lines, what conclusions
22 do you draw from that, Mr. Elford, in respect of the
23 distribution of the forces?
24 A. We can see that the initial active components
25 were distributed in various areas around the area of
1 responsibility of the Viteska Brigade, and these areas
2 became areas where battalions were based as more men
3 were mobilised.
4 Q. In more general terms, and in view of all of
5 the information that you've presented in your report,
6 especially in respect of all of the brigades you spoke
7 about, what conclusions do you also draw in respect of
8 the distribution of forces? Some of these forces had
9 advantages over the others; is that correct?
10 A. Yes. I said initially, just for a comparison
11 of figures, you can see that there are larger ABiH
12 forces than HVO in the area. But we couldn't give a
13 very accurate assessment of that because as well as
14 taking into account the number of men involved in a
15 conflict, you needed to look at, amongst other things,
16 the equipment that they held, what their defenses were
17 like, what the morale and motivation of the men were
19 Q. In the compilation of documents which you
20 prepared, you gave information which would lead one to
21 believe that the supplies of ammunition into Vitez were
22 relatively large throughout the conflict.
23 A. Yes. For the time period we were looking at,
24 up until July, we saw evidence of resupply, and also
25 manufacture of ammunition within the Vitez area. That
1 was particularly seen in the report of the Vitez
2 Defence Office, their assessment of the situation, in
3 September 1993, which refers to the production of
4 various munitions.
5 Also within the binder is one of the BritBat
6 reports, and it mentions the fact that the ABiH made
7 attempts to attack and cut the HVO supply routes
8 through Central Bosnia in June 1993, which suggests
9 that up until that time period, there had been a supply
10 route through to the Vitez area.
11 Then later on, looking at the BritBat
12 summaries, there are also various mentions of
13 helicopter resupplies, and this was particularly after
14 this period in June 1993. And we know that in
15 September 1993, the HVO were able to launch a
16 successful attack on the Stari Bila and Grbavica
17 feature, which suggested that they had the resources to
18 do that.
19 Q. You've just spoken about helicopter
20 resupplies. In the compilation which you produced,
21 there is a document about this, which is a milinfosum.
22 This is document Z1130.1, and the footnote is 71. It's
23 Z1130.1. These were eight helicopters. Could you tell
24 us what kind of helicopters these were, and what is the
25 transport capacity of this type of helicopter?
1 A. The report you're referring to included
2 the -- it's a report that concluded the information on
3 the Vares pocket. What the other reports mention is
4 that HIP helicopters were used, several variations,
5 which really have a capacity of up to 4.000
6 kilogrammes, which are attack/assault helicopters, but
7 also used for transport, transportation.
8 Q. These MI-8 helicopters were really transport
9 helicopters, is that true, rather than attack
10 helicopters or assault helicopters; is that correct?
11 A. In all that was mentioned, yes. The BritBat
12 reports refer purely to helicopters being used for
13 transport rather than referring to any helicopter
15 MR. LOPEZ-TERRES: [Interpretation] I would
16 like to say for the Trial Chamber, once again, that all
17 the references Mr. Elford mentions in his report are
18 easy to verify. The documents were attached in the
19 binder which was given to you, and to that binder, the
20 documents which were given to the Defence were also
21 indicated, given at the time when all disclosure was
22 made. For convenience sake, these documents could be
23 put together in the binder, because they refer more
24 specifically to the theme that Mr. Elford mentioned
25 this morning and this afternoon.
1 Q. Last point before we finish, Mr. Elford. As
2 regards the observations that you're making in respect
3 of the ratio which you established between the forces
4 on the ground, the conclusion that is at the bottom of
5 your report, are you also confirming that today?
6 A. The conclusion -- basically, we had to speak
7 in general terms because we had figures for the actual
8 members of the battalions and brigades, but less
9 information or confirmatory information on equipment
10 types and actual availabilities.
11 The conclusion -- what I said was where the
12 commanders were able to manoeuvre forces to create an
13 advantage, that's the places where we see that brigades
14 were destroyed. So in the Travnik area, where the ABiH
15 had a large advantage of men, were able to manoeuvre
16 men, they were able to push the Travnicka Brigade and
17 Frankopan Brigades out of that area. The same can be
18 seen in Kakanj, where the Kotromanic Brigade was pushed
19 out of that area by large ABiH forces. Whereas in
20 Zepce, we see that it's the HVO who were able to
21 manoeuvre forces to push the 319th Brigade from that
22 position. Whereas on the whole for the Vitez pocket,
23 because of the fact that it didn't fall over that
24 period of time shows that either the ABiH were unable
25 to manoeuvre such forces to secure a victory, or
1 perhaps shows that the forces in the area were more
2 balanced, and that's why they were unable to do that.
3 Q. Thank you very much. I have no further
4 questions, Mr. President.
5 Cross-examined by Mr. Sayers:
6 Q. Thank you, Mr. President. And good
7 afternoon, Mr. Elford. Sorry, the ELMO equipment is
8 between us.
9 We have not been provided with a curriculum
10 vitae, so I would like to find out a little bit about
11 your educational background.
12 Where were you educated, sir?
13 A. Start from a university?
14 Q. Yes.
15 A. The first degree at university was a
16 bachelors honour's degree in international relations
17 from the University of Keele in the United Kingdom.
18 Subsequent to that I took a master's degree in security
19 studies, which is again at the University of Keele in
20 the United Kingdom.
21 Q. Security studies you said?
22 A. Security studies. What used to be more
23 strategic studies, geophysical relationships between
24 states, the application of force. And study what areas
25 have been in conflict between states.
1 Q. And when did you go to Keele University to
2 acquire these two degrees?
3 A. I completed the first degree in June '92, and
4 the masters degree was finished in June '95.
5 Q. '95?
6 A. Awarded in June '95. So that completes the
7 degree in '94.
8 Q. And you went to work for the Prosecution, I
9 take it, in 1997. Is that what you said?
10 A. That's correct.
11 Q. And between 1995 and 1997, what is it that
12 you did for a living?
13 A. During that period I was mobilised by the
14 British army and spent the whole period producing
15 reports that related to the former Yugoslavia. And
16 that included a six-month tour with UNPROFOR, from
17 August '95 until January '96, based in Central Bosnia
19 Q. Were you affiliated with a military
20 intelligence cell?
21 A. The people I worked with were -- were based
22 on a linguist working with highly linguistic ability.
23 So driving with them.
24 Q. You weren't actually involved in performing
25 military analysis during that --
1 A. During that period, we would look at the
2 information gained by them and produce -- provide an
3 analysis of that. And then that would be passed on.
4 Q. Did that include analysis of battalion
5 dispositions, brigade dispositions, force ratios,
6 things of that variety?
7 A. During the period we are looking at, '95, it
8 was more -- with intentions rather than dispositions
9 brigades, because at that time people knew them as well
10 as they needed to know. So that there wasn't further
12 Q. All right. So would it be fair to say that
13 while you were attached to the British army, you didn't
14 actually prepare any studies of the type that you've
15 prepared for purposes of this case?
16 A. At the time period I worked in, was from '95
17 onwards, so we are dealing with current information
19 Q. But the point I am making is that you were
20 never asked to, and you never did, prepare documents
21 along these lines which analysed the disposition of
22 brigades, their headquarters, force strengths,
23 equipment available to the warring factions, did you,
25 A. Not during this period.
1 Q. Now, it's true say, isn't it, that in April
2 of 1993 there was a very significant conflict that
3 erupted all over the Lasva Valley. Broadly speaking,
4 in the area of the Vitez-Busovaca pocket that you've
5 identified in later maps; is that right?
6 A. That's correct, yes.
7 Q. And the front lines were actually moving
8 quite a lot during that period, weren't they?
9 A. I said the front lines were quite fluid, yes.
10 Q. In fact, for any particular day in April, it
11 would be extraordinarily difficult to determine exactly
12 where the front lines were, because they were so
13 fluid. Wouldn't you agree with that?
14 A. Yes, it's difficult to work out where they
16 Q. Now, the first map that you prepared, I
17 believe, unless my notes are wrong, Exhibit Z2612.2 A.
18 That only shows the front lines between -- actually, it
19 only shows the front lines between the Bosnian Serb
20 lines, the red lines that you identified, and then all
21 of the interior space, if you like, is really
22 undifferentiated space occupied by both Croats and
23 Muslims; is that right?
24 A. Essentially, yes.
25 Q. And then, for one reason or another, in April
1 of 1993, the Croats and the Muslims within that
2 enclosed area got to fighting among themselves, didn't
4 A. Yes.
5 Q. And your map only shows the reputed ABiH
6 headquarters locations, with a flag to indicate the
7 brigade headquarters; is that right?
8 A. On the map -- asked for brigade areas, so we
9 had to show -- it's really brigade locations. But with
10 the understanding that the brigade would operate in a
11 wider area.
12 Q. All right. I wonder if I could just ask the
13 usher to put -- let us see Exhibit 2612.2 A, the first
14 map. Thank you.
15 Now, let me just take one example,
16 Mr. Elford, of one of the brigades under the command of
17 the 3rd Corps. And I believe -- let me digress for
18 just a minute. All of the green boxes, I think,
19 represent the headquarter locations of the various
20 brigades that you have concluded were directly
21 subordinated in the command and control chain to the
22 3rd Corps headquarters in Zenica; is that right?
23 A. Showing brigades, HQ's, or perhaps, in a way,
24 general locations, yes.
25 Q. But all within the command and control of the
1 3rd Corps headquartered in Zenica; is that right?
2 A. Most of the elements are 3rd Corps. 302nd,
3 304th, in the Visoko and Breza area, and possibly
4 attached to the 1st Corps, but for practical purposes,
5 because the 1st Corps headquarters were in Sarajevo,
6 coming under some authority of the 3rd Corps.
7 Q. So, effectively, each of the green boxes
8 represents brigade headquarters that were subordinated
9 in the chain of command to the 3rd Corps; is that
11 A. Yes.
12 Q. All right. And that includes, in the chain
13 of flags in Zenica, the 7th Muslim Brigade, correct?
14 A. Yes, 7th brigade was operating within the
15 area, this corps.
16 Q. And was directly subordinated to the command
17 of the 3rd Corps headquarters in Zenica, wasn't it,
18 under General Enver Hadzihasanovic; correct?
19 A. Yes. Really, I've shown the brigades
20 operating in this area, yes.
21 Q. Now, to get back to the question I was going
22 to ask you. Let's take a look around April the 16th
23 and 17th, 1993, for example. If we just take the 303rd
24 Mountain Brigade as an example. You've shown the
25 headquarters of that brigade in Zenica, but it's true
1 that significant numbers of the forces attached to that
2 brigade were actually fighting in the Putis, Jelinak,
3 Loncari area on those days; isn't that right?
4 A. From what I've seen, elements were in this
6 Q. Could you just point out for the Trial
7 Chamber exactly where that would be, Putis, Jelinak and
9 A. [indicates] The area of the Kuber feature.
10 Q. That's the Kuber feature, isn't it?
11 A. Yes.
12 Q. All right. And that's just immediately to
13 the east of Ahmici; is that right?
14 A. It's north-east.
15 Q. North-east. All right, sir. Let me just ask
16 you a few questions upon the sources of materials that
17 you have reviewed and upon which you have relied.
18 First and foremost, I take it, you've looked
19 at libraries of milinfosums for the pertinent BritBat
20 units, Operation Grapple 1, the Cheshires, Operation
21 Grapple 2, the 1st Battalion of the Prince of Wales own
22 Regiment of Yorkshire, and Operation Grapple 3, the
23 Coldstream Guards; is that right?
24 A. Yes, the BritBat reports come from all those.
25 Q. And since you were relying on these records,
1 especially since you were relying on them to make
2 conclusions over a long period of time, you had to make
3 sure that the records that you were relying upon were
4 full and complete; is that right?
5 A. Yes. And more comparing the information
6 there from other sources as well.
7 Q. Right. And you've reviewed European
8 Community Monitoring reports as well, I take it?
9 A. The reports have been available to us, but
10 the majority were based on the BritBat reports.
11 Q. All right. But just to -- a final question
12 on this. You had all of the pertinent milinfosums for
13 all of the pertinent periods, for the Cheshires, the
14 Prince of Wales Own and the Coldstream Guards; is that
16 A. I've reviewed everything we had in house.
17 Q. Now, turning to your report, sir. The first
18 footnote refers to ABiH maps.
19 A. Yes.
20 Q. And there were two of them. And we've just
21 been provided with a copy of them at 11.35 today. I
22 take it, that these are reduced versions of the
23 original maps?
24 A. Yes.
25 Q. And that the tables that appear on the first
1 map, for example, are actually legible, because --
2 A. Yeah, the tables appear in A-4 size, so that
3 gives an indication of the scale of the original.
4 Q. And this is a map that comes from the Armija
5 BiH; is that correct?
6 A. That's correct.
7 Q. I take it, sir, that in arriving at your
8 decision concerning troop dispositions, brigade
9 headquarters, troop strength, and so forth, it would be
10 hard to imagine a source that's better to rely upon
11 than contemporaneous maps drawn by one of the warring
12 factions themselves; isn't that correct?
13 A. Yes, it was used to back up the other
15 Q. Right. And this first map that you've
16 provided us with in reduced form, Z2802, actually
17 shows, if I might point out here, as I read the legend
18 on the bottom left-hand side, HVO forces manning the
19 front lines, It looks to the west of Travnik or
20 north-west of Travnik, and front lines to the
21 south-east of Novi Travnik; is that correct?
22 A. Yes. I mentioned before that the latest
23 reports we had some HVO units on the front lines in
24 June '93, which is after the period of the map.
25 Q. Yes, sir. I heard you say that. And this
1 map, Z2802, that comes from the ABiH itself, actually
2 confirms that. It shows HVO forces shoulder to
3 shoulder, if you like, with ABiH forces on the front
4 lines in the Travnik, Novi Travnik area, the front
5 lines with the Bosnian Serb army. And you would agree
6 with that, wouldn't you?
7 A. [Nods].
8 Q. Let me ask you this, sir. Have you actually
9 seen any other maps generated by the Armija of the BiH
10 other than these two?
11 A. Those are the primary ones which I have seen
12 of the maps, yes.
13 Q. Since you have referred in your testimony to
14 General Blaskic's trial testimony in the Blaskic case
15 and some of the exhibits in that case, I wonder if I
16 could just show you a map that we have, that appears to
17 be a Bosnian ABiH map, and ask you whether you've
18 consulted this in reaching your opinions.
19 Mr. President, these -- I have three versions
20 of the -- three copies of this map for the Trial
21 Chamber. I believe that the Prosecution already has a
22 copy, but we have an additional one, if it's
23 necessary. And I would just like the usher to put this
24 up on the board, if that's possible. Thank you. Thank
25 you very much. If we could just get an exhibit number
1 for this.
2 THE REGISTRAR: Number will be D189/1.
3 JUDGE MAY: Before you do, where do you say
4 you got it from, Mr. Sayers?
5 MR. SAYERS: This was Exhibit 77 in the
6 Blaskic case -- sorry, 77 in the Aleksovski case, and
7 Exhibit D196 in the Blaskic case. This was introduced
8 in open session, albeit with a confidential witness.
9 So I'm not --
10 JUDGE MAY: Very well.
11 MR. SAYERS:
12 Q. Let me just ask you, Mr. Elford. Would you
13 just take a second or two to cast your eyes over this
14 map. It comes, as I said, from the ABiH. And I would
15 just like to ask you if you've seen this one before.
16 Sorry, you may want to take your pointer,
17 because I have a couple of questions in connection with
18 this map.
19 First of all, have you seen it before?
20 A. Yes.
21 Q. All right. As you can see, this shows ABiH
22 troop dispositions as of December 1992 to January
23 1993. And in blue, sir, I think you'll agree with me
24 that ABiH troop dispositions are shown; correct?
25 A. That is correct.
1 Q. Now, if you'd go to the area just west of
2 Vitez -- just east of Vitez, I'm sorry, as you travel
3 down the main supply route through Dubravica, and just
4 before you get to Nadioci --
5 A. Yes.
6 Q. -- do you see a blue circle there showing the
7 presence of ABiH forces in the area of Ahmici? And if
8 you do, could you just point that out to us all,
10 A. [Indicates]
11 Q. Yes. So would that lead you to conclude, as
12 a military analyst, that the Armija BiH, in December of
13 1992 and January of 1993, had forces present in village
14 of Ahmici, or in that area, at that time?
15 A. There is something in that area shown, but no
16 indication of how many or what size or, in fact, who
17 they were subordinated to.
18 Q. And there's no indication of the size of
19 units or the number of troops present in any of those
20 units on any of this map, is there, sir?
21 A. Not at all.
22 Q. All right. Now, let me just ask you, have
23 you ever seen any documents at all that would suggest
24 that the units apparently stationed in Ahmici were ever
25 withdrawn by the Armija BiH from January 1993 to April
1 the 16th, 1993?
2 A. I haven't actually studied that area for this
3 time period.
4 Q. All right. One final document in this line
5 of questions that I'd like to show to you is the next
6 exhibit I would like to have marked, which is an order
7 dated April the 16th, 1993, an order to the 303rd
8 Mountain Brigade, signed by General Enver
10 THE REGISTRAR: This document will be marked
12 MR. SAYERS: Thank you.
13 Q. Mr. Elford, we're going to have a copy of
14 this order put on the ELMO. There's a French version
15 of it in the back; the Croatian version is attached to
16 it. It's a fairly short order.
17 But it's an order dated April the 16th, 1993
18 to move out and to occupy positions, and as you can see
19 from the introductory language in the order, this is to
20 prevent surprises and attacks against the army of the
21 Republic of Bosnia-Herzegovina. What I'm interested in
22 is paragraph 1.
23 MR. SAYERS: I wonder if we could zoom in on
24 paragraph 1, please. Thank you.
25 Q. Now, the order here is to the commander of
1 the 303rd Brigade, to be prepared to provide assistance
2 to "our forces in the village of Putis, Jelinak,
3 Loncari, Nadioci, and Ahmici, and in the event of an
4 attack launched by the enemy, forcefully to repel it";
5 do you see that?
6 A. I see that line, yes.
7 Q. And that would lead you, as a military
8 analyst, to conclude that, in fact, the 3rd Corps had
9 under its command forces that were located in those
10 five villages; isn't that right, sir?
11 A. It says to provide assistance to those
12 villages, yes.
13 Q. And the question was, as a military analyst,
14 you would conclude that the 3rd Corps actually had
15 forces under its control and command in those five
16 named villages, and to which the 303rd Mountain Brigade
17 was ordered to provide assistance, if necessary, if
18 attacked; correct?
19 A. Yes, provide assistance to those areas.
20 MR. SAYERS: I'm through with that exhibit.
21 Thank you.
22 Q. One final question along these lines. Have
23 you been shown, or have you considered a statement of a
24 former TO commander in Ahmici by the name of Fuad
25 Berbic, which has been marked as Exhibit D13/2 in this
2 A. I've seen elements from the report. I'm not
3 sure if I've read the whole transcript through.
4 Q. Were you aware that, in fact -- and there's
5 no need to put this on the ELMO, but I'm reading from
6 page 5 of the report, which is already in evidence --
7 that the level of alertness of the forces in Ahmici, on
8 the 15th of April, was increased by 50 per cent? Were
9 you aware of that?
10 A. I'm aware of that statement. I'm not sure if
11 I've -- I've probably seen other evidence which might
12 confirm or deny that.
13 Q. Were you aware that it was at the initiative
14 of the former TO commander in Ahmici, Mr. Fuad Berbic,
15 that trenches and a number of dug-outs had been dug,
16 and stricter discipline, alertness, and
17 combat-readiness enforced there?
18 JUDGE MAY: Is this to try and establish that
19 Ahmici was defended? Is this the idea? Is this the
20 purpose of these questions?
21 MR. SAYERS: The purpose of the questions is
22 to show that according to the ABiH records, Your
23 Honour, it appears that there was a unit, or forces in
24 Ahmici; that the village was, in fact, defended. Yes.
25 JUDGE MAY: And yet the result was what we
1 know about it.
2 MR. SAYERS: The result was, I regret to say,
3 what we know about it.
4 JUDGE MAY: A massacre.
5 MR. SAYERS: Yes, sir.
6 Q. But the point I'm making, sir, is that those
7 would lead you, as a military analyst, to conclude that
8 this village was not, in fact, completely undefended,
9 was it?
10 JUDGE MAY: Can you say, Mr. Elford? Before
11 you answer that question, you've merely been shown some
12 documents. Can you go any further than say that the
13 documents demonstrate that various orders were made?
14 What actually happened is presumably a matter for
15 evidence elsewhere.
16 A. It shows orders were made. Personally, I
17 haven't studied the action in Ahmici per se, and really
18 my study of the brigade dispositions has been purely
19 brigade dispositions, the headquarters locations, and
20 general areas of activity.
21 Q. All right. So let's turn to a different
22 subject. Your conclusions regarding ABiH troop
24 In terms of the analysis that you made of the
25 numbers of soldiers that were included in the various
1 ABiH brigades, I think that one of the principal
2 sources upon which you relied is contained at footnote
3 5 of your report; is that right?
4 A. Yes. Footnote 5 is a 3rd Corps report which
5 was produced to us after the event. Yes.
6 Q. All right. Now, I don't have any English
7 translation or a French translation of this report, and
8 I wonder, was one ever provided to you?
9 A. I've seen draft translations which shows that
10 the titling of the table is within the box.
11 Q. And I take it, sir, that you don't speak
12 Croatian yourself, do you?
13 A. No.
14 Q. Now, would you just turn to tab 5 of your
15 footnotes, this particular document upon which you
16 placed considerable reliance. What is the date of this
17 document, sir?
18 A. The document, as I said, was dated after the
19 events, in 1997.
20 Q. The date of the document is the 11th of July,
21 1997, isn't it?
22 A. That's correct.
23 Q. And that's four years, of course, after the
24 events at issue; right?
25 A. Yes.
1 Q. What steps did you take to ensure that the
2 numbers reflected on this report generated years later
3 were actually accurate?
4 A. Yes. We then compared them to available HVO
5 documentation, and I've also had testimony from other
6 cases where similar numbers -- numbering were used to
7 see how they matched up.
8 Q. All right. Did you consider the ABiH
9 brigades that were present in Kiseljak, Kresevo, and
11 A. The starting point for the brigades were the
12 brigades which were shown from various BritBat
13 milinfosums and also HVO reports as being present there
14 at the time. I'm aware of other brigades, such as the
15 310th, which formed up in Fojnica, but I haven't seen
16 anything that said they were there in July 1993. They
17 were formed after the events. Similarly, other
18 brigades, such as the 27th Brigade, were in formation
19 as of July 1993, but the reports show that they weren't
20 effective until August of 1993, and so they haven't
21 been included.
22 Q. Did you decide to include TO units in your
23 troop disposition maps?
24 A. It was hard to show -- find any figures for
25 those, and perhaps with the assumption that they
1 perhaps were included within the other figures, there
2 might be additional numbers with those.
3 Q. You simply don't know, though, do you?
4 A. We didn't have figures for those, no.
5 Q. Right. Which means that you do not know
6 whether the TO units should be considered in addition
7 to the soldiers shown in the formal brigades or not;
8 isn't that right?
9 A. I thought, from what I read, that they
10 became -- or were subsumed into the other units. But
11 as for actual figures, we're not sure.
12 Q. You've talked about the special forces and
13 other units on the HVO side. What about on the ABiH
14 side, sir? How about the Black Swan special forces,
15 for example, the so-called Crni Labudovi? Did you ever
16 consider those?
17 A. I haven't seen reports on the Black Swans
18 being in the area consistently throughout the period.
19 Some of the earliest reports of the Black Swans I had
20 were in the Fojnica area, after June, after the time
21 period, and because they weren't mentioned in some of
22 the earlier HVO reports, then I wasn't sure if there
23 was a perception that they were in that time period.
24 Q. All right. Let's turn to one of the
25 component brigades that you identified, the 7th Muslim
1 Brigade. That was headquartered in Zenica, wasn't it?
2 A. Headquartered there, but operated over a
3 wider area.
4 Q. Right. That was actually known as a rapid
5 reaction unit, wasn't it?
6 A. I described it as a manoeuvre unit.
7 Q. What does a manoeuvre unit do?
8 A. Basically it would be used by the superior
9 commander to manoeuvre troops, to try and create
10 advantage in another area, either to stop an attack or
11 to give it an added advantage in another area.
12 Q. So an army commander would generally use this
13 rapid reaction force as shock troops, if you like, on
14 the front line of an area in which his forces were
15 engaged in offensive operations; isn't that right?
16 A. I'm not sure if they would be used as shock
17 troops, but definitely to provide extra troops.
18 Q. And you were aware that the 7th Muslim
19 Brigade was actually used as the principal offensive
20 component during the summer offensive launched by the
21 ABiH in the Travnik area; isn't that right? And, for
22 that matter, in the Kakanj area, in the same month.
23 A. Yes. I believe that elements of the 7th
24 Brigade were used in various locations throughout that
1 Q. Mr. Elford, we've heard a lot of loose talk
2 about so-called Mujahedin in this case, but frankly,
3 the Mujahedin and the 7th Muslim Brigade are one and
4 the same, aren't they?
5 If you just turn to footnote 12 of your
6 report, it was a milinfosum dated the 27th of June,
7 1993, from the Prince of Wales Own, and at page 3 of
8 that milinfosum, right at the end, has a comment from
9 the military intelligence cell of the Prince of Wales
10 Own Regiment, which concludes that "We now believe the
11 7th Muslim Mountain Brigade and the Mujahedin to be one
12 and the same," and comments would be appreciated. That
13 was the conclusion of the BritBat, as far as you're
14 aware, isn't it?
15 A. That was the BritBat conclusion, and really I
16 didn't see -- I wasn't sure on numbering or if there
17 were any separate Mujahedin elements, and I've always
18 referred to the 7th Brigade as the 7th Muslim Brigade.
19 Q. All right, sir. The next question that I
20 have concerns one of your footnotes, footnote 46, and
21 this appears to be an order issued by General
22 Hadzihasanovic, basically reorganising the forces under
23 his command; would that be fair to say? Let me give
24 you a minute to turn to that. It's footnote 46.
25 A. Yes.
1 Q. I beg your pardon?
2 A. Yes.
3 Q. It's page 6, I think, footnote 46, and
4 there's a reference to an order forming operative
5 groups within 3rd Corps?
6 A. Yes, that was the one that showed the
7 operative groups and mentioned the brigades in them.
8 Q. All right. And as I understand it, the 3rd
9 Corps organised itself into, it looks like, three
10 separate operative groups; is that right? The Lasva
11 operative group --
12 A. Four, I think.
13 Q. Four groups?
14 A. Lasva, the Zepce west, Bosnia and Bosanska
16 Q. The Bosanska Krajina operative group
17 consisted of the Muslim 7th Mountain Brigade, the
18 Krajina 17th Mountain Brigade and the Jajce 305th
19 Mountain Brigade, along with the 27th Motorised
20 Brigade; correct?
21 A. Yes. The reference for the 27th Motorised
22 Brigade, it appears from ABiH documents that it was
23 written down to be formed in an early period in '93.
24 But when we look at the BritBats and other reports, it
25 appears that it wasn't actually active until later in
1 '93, in about --
2 Q. Later --
3 A. Approximately August '93. The best reports,
4 its formation coming through from June, July.
5 Q. All right. I wonder if I could just show you
6 one document that might help jog your memory on this.
7 It's a milinfosum dated July the 10th, 1993, which
8 would have been within the time period covered by your
9 maps. Right?
10 A. Yes.
11 Q. All right. From the Prince of Wales Own,
12 it's already been marked as Exhibit D121/1, and I
13 wonder if I could get the usher just to show you a copy
14 of it.
15 If you just turn to page 2 -- sorry, 3,
16 Mr. Elford, paragraph 10. There's a description of a
17 meeting between the commanding officer of BritBat and
18 Mehmed Alagic, who was the commander of the Bosanska
19 Krajina. And this revealed that General Alagic was in
20 command of approximately 12.000 BiH troops. Do you see
22 A. I see that.
23 Q. All right. Did you take that into account in
24 conducting your force ratio analysis, sir, the 12.000
25 troops that were under General Alagic's command in the
1 Bosanska Krajina operative group?
2 A. -- we looked at the brigades, first of all,
3 and so taking that figure into account, but primarily
4 used the other sources.
5 Q. All right. And you could see from looking at
6 that document, I take it, that the strategic objective
7 of the Bosanska Krajina command was to capture the
8 remaining Croat enclaves of Vitez and Busovaca. Do you
9 see that?
10 A. Yes. The command was also used against the
11 Serbs in the -- to the west of Travnik.
12 Q. And the military activity that you monitored,
13 that was conducted by the Bosanska Krajina operative
14 group, was certainly consistent, in your view, with
15 that objective, to capture the Vitez-Busovaca enclave;
16 was it not?
17 A. Yeah, I stated that they operated throughout
18 the area.
19 Q. All right. Thank you. I am finished with
20 that document.
21 You gave some testimony, sir, regarding the
22 Green Legion. Do you remember that? And you
23 discounted the presence of Green Legion units
24 separately from ABiH units, and that was based
25 exclusively upon General Blaskic's trial testimony,
1 wasn't it? If you look at footnote 33 of your report.
2 A. It didn't have a figure for these units, and
3 I had to find out why I couldn't find anything on it
4 that gave any indication that they had been subsumed
5 into other units. Also mentioned, the Green Legion or
6 Patriotic League in the area of Zepce and the 319th
7 Brigade. I know that later on in time, after the 319th
8 had been pushed out of the Zepce area, it appeared to
9 use the nickname the Green Berries Green Legion, so
10 that added weight to the fact that they had been
11 subsumed into other units.
12 Q. Are you familiar with a special forces
13 detachment known as the El Mujahedin unit?
14 A. It's unclear to me whether that is a separate
15 unit, whether it is part of, as we mentioned before,
16 the Muslim brigade. But I have heard that terminology,
17 but never separate numbers for it.
18 Q. Very well. Were you aware that the El
19 Mujahedin unit actually consisted of about 1.000
21 A. I don't think I saw documentation showing it
22 as a separate unit of that size.
23 Q. Very well. Now, totting up the brigade
24 strength available to the 3rd Corps, just a numerical
25 calculation, an addition. It may be my mathematics are
1 faulty, but I came up with the number 25.680, and that
2 did not include detachments of the 302nd Brigade and
3 304th Brigade. Is that approximately your view of the
4 forces under the command, one way or another, of the
5 3rd Corps in the middle and latter half of 1993?
6 A. I figure, yeah, perhaps up to 30.000.
7 Q. And on page 6 of your report you specifically
8 addressed yourself to the question of subordination of
9 these units. And I believe that your conclusion was
10 that all of them, including the units which we've
11 discussed today, were subordinate to the 3rd Corps
12 command in Zenica. Right?
13 A. To this time period, because the ABiH corps
14 make-up changed over time, with additional corps being
15 formed. And also the areas of control of the corps
16 boundaries changing.
17 Q. All right. Let me turn your attention to one
18 other item. And this comes from one of the documents
19 that you referred to in your direct examination. And
20 it's footnote 71 of your report concerning ABiH troop
21 dispositions and front line determinations in the area
22 of Vares.
23 A. Yes. I have the report.
24 Q. I wonder if the usher could put a copy of the
25 last page of this on the ELMO. It's Exhibit Z1130.1.
1 Actually, I believe it's just been admitted today. Let
2 me give you my copy. It's probably the easiest thing
3 to do.
4 This is a milinfosum, number 155, from the
5 Prince of Wales own Regiment of Yorkshire, dated
6 September 30th, 1993. As far as you are aware, sir,
7 was the information contained in this milinfosum
8 accurate and reliable?
9 A. The information on Vares, I think -- I
10 believe came to them from another agency, from ECMMs,
11 who had been given the information from the commander,
12 the chief of staff of that brigade. When it's held up
13 to the map, it's roughly consistent and shows most of
14 the area, and the area where the BiH were to the south
15 of Stupni Do and also Jakovici.
16 Q. The trace actually does show an ABiH unit in
17 Stupni Do, doesn't it, surrounded, albeit, by HVO
19 A. Well, it says BiH. I think it's referring to
20 Bosnian Muslims within the village. I can't say it
21 refers to a military force.
22 Q. Are you aware that there were military forces
23 in Stupni Do?
24 A. I know --
25 Q. Sorry?
1 A. I know there were Bosnian Muslims within the
2 town -- to say whether they were military forces or
4 Q. You weren't aware that there were at least 35
5 men of fighting age who manned defensive positions in
6 that village, and were under the command of people who
7 have testified before this Tribunal?
8 A. I haven't looked at the exact figures for
9 Stupni Do as part of this study, no.
10 Q. All right. Now, sir, in analysing the troop
11 strength of the HVO units in Central Bosnia, you
12 included two brigades that were not under the command
13 of the Central Bosnia operative zone, didn't you?
14 A. That is correct.
15 Q. -- Brigade and the Dr. Ante Starcevic
17 A. Yes. I showed the brigades for Bugogno and
18 for Gornji Vakuf, which -- because they are the
19 brigades on the map. We weren't showing the
20 operational zone boundaries.
21 Q. You would agree, though, that the Eugen
22 Kvaternik Brigade and the Dr. Ante Starcevic Brigade
23 were both under the command of Colonel Siljeg in the
24 north-west Hercegovinia operative zone?
25 A. I think at the time they had become part of
1 the north-west Bosnia operative zone, yes.
2 Q. Soldiers in those brigades were not available
3 to fight in the Vitez-Busovaca area, Vares, Kiseljak,
4 or Zepce, were they, as far as you know?
5 A. Well, in January '93, then there is evidence
6 of supplies moving between them, and, as I mentioned
7 before, the land supplies, but I don't believe it's a
8 period we are talking about. From April onwards they
9 were involved in Central Bosnia.
10 Q. Right.
11 A. It's shown there to show that the ABiH units
12 had responsibility against HVO units from a different
13 operative zone.
14 Q. And basically the ABiH obliterated the Eugen
15 Kvaternik Brigade in July and August and September of
16 1993 in Bugogno, correct?
17 A. Yeah, in a short period of time, yes.
18 Q. Similarly, the Dr. Ante Starcevic Brigade was
19 decimated by the ABiH in the same time period in Gornji
20 Vakuf; is that right?
21 A. It was forced from some positions in the
22 town, but they were able to receive support from
23 Hercegovinia itself.
24 Q. Now, I was a little -- maybe this is my
25 fault, but I didn't understand the sources upon which
1 you based your estimates of HVO troop strength. I
2 thought you said that one of the sources was the
3 assessment on the opposing side, the ABiH. Is that
5 A. -- an ABiH assessment, and then we also had
6 HVO assessments which gave a comparative figure, but
7 for a different time period.
8 Q. All right. The only HVO source that I could
9 find was the special assessment that Colonel Blaskic
10 actually filled out sometime in the late summer of
11 1993, and I believe that's footnote 64 of your
12 materials. I'm sorry to make you go back and forth
13 between your source materials, Mr. Elford, but this is
14 a somewhat significant point.
15 A. Yes.
16 Q. With me? All right. If you could turn to
17 page 20 of that report. It actually contains an
18 assessment or a survey of troop strength, doesn't it?
19 A. That's correct.
20 Q. All right. Now, comparing the figures that
21 you've arrived at in your formal report here, you say
22 for the Viteska Brigade a troop strength of 2.700 in
23 July of 1993, but Colonel Blaskic's records say that
24 the troop strength is actually considerably lower than
25 that at 2172; correct?
1 A. Yes. I said earlier on that the highest
2 reported figure was 2.700, but for August, and also
3 again in the later period, it was a figure somewhere
4 about 2.000.
5 Q. All right. The troop strength estimates
6 contained on page 20 of Colonel Blaskic's 1993 troop
7 strength assessment basically give an evaluation of the
8 troop strength of the Viteska Brigade, the Travnicka
9 Brigade, Frankopan, Stjepan Tomasevic, Nikola
10 Subic-Zrinjski, Jure Francetic, Vitezovi, and the 4th
11 Battalion of the military police, don't they?
12 A. That's correct.
13 Q. All right. And according to Colonel
14 Blaskic's assessment, the 4th Battalion of the military
15 police contained only 150 soldiers, not 450, as you
16 stated in your report; is that right?
17 A. The figure of 450 is throughout Central
18 Bosnia and included elements in places such as Zepce,
19 Kiseljak. So I think this figure is purely for the
20 Vitez pocket itself.
21 Q. By the way, there's no question that the 4th
22 Battalion of the military police was under the command
23 and control of the Central Bosnia Operative Zone
24 generally, and Colonel Blaskic particularly, is there?
25 A. I haven't put a great deal of study into that
1 part of it, but that appears ...
2 Q. As a military analyst, you would conclude
3 that that is the case, wouldn't you?
4 A. I think that's one for -- for the -- it's
5 something which came up within other trials which I
6 haven't looked at yet.
7 Q. How about the Vitezovi? There's a figure of
8 75 mentioned in Colonel Blaskic's report. Do you have
9 any reason to conclude that that figure is not
11 A. That's why I gave the figure up to the high
12 figure of 180, which came out in court testimony.
13 Q. All right. Well, totting up the figures in
14 your -- excluding the Edvard Kvaternik Brigade and the
15 Dr. Ante Starcevic Brigade, totting up the figures that
16 you've given in your report for troop strengths, I come
17 up with a number of about 10.513.
18 Let me just put it to you, you can do the
19 mathematics yourself, but the contemporaneous estimate
20 given by Colonel Blaskic is actually 6.820. Does that
21 sound out of line to you?
22 A. The figure 10.000 sounds -- that figure
23 sounds within line, yes.
24 Q. All right. Just two matters of detail. You
25 dealt with members of the Ludvig Pavlovic detachment
1 and stated that they came from Herzegovina, apparently,
2 but that conclusion was based only upon General
3 Blaskic's testimony, wasn't it?
4 A. And also in witness testimony to the
5 arrival -- I mean, we're not clear on the time period
6 they stayed for. But from January of 1993, it appears
7 that they were in the area.
8 Q. Right. But you have no information that any
9 members of the Ludvig Pavlovic Brigade or the Bruno
10 Busic Brigade were in Central Bosnia in April of 1993,
11 do you, sir?
12 A. Well, the Ludvig Pavlovic and Bruno Busic,
13 there were elements in Novi Travnik, then also in
14 Gornji Vakuf. We're not sure if that's the same
15 elements or not that moved to Gornji Vakuf.
16 Q. But you don't know how many.
17 A. No.
18 Q. Did you have occasion to determine who the
19 brigade commanders were in the performance of your
20 duties at all, or was that something that you did not
21 pay attention to?
22 A. I've come across them, but I haven't
23 committed them to memory because they were not part of
24 the report that we've given.
25 Q. Now, sir, looking at pages 7 and 8 of your
1 report, it looks to me as if the HVO suffered fairly
2 serious attrition in seven of the eleven brigades;
3 would you agree with that?
4 A. Perhaps if I say the --
5 Q. Let's go through them one by one.
6 A. Looking at the figures we were given for
7 April 1993, the assessment we had was for later in
8 1993, and that was -- you see that the Travnik Brigade
9 has some variation; the Frankopan, there is a large
10 variation, and we know that is the brigade that was
11 forced out of the --
12 Q. Let's just take them one by one, if we can do
13 so, in short order. The Edvard Kvaternik Brigade, it's
14 not the Eugen Kvaternik, it's actually the Edvard
15 Kvaternik Brigade, isn't it? Is that right?
16 A. Yes. I've seen both spellings, both
18 Q. This brigade, as we know, was basically
19 eliminated in the fighting around Bugojno, in the late
20 summer of 1993; would you agree with that?
21 A. Pushed from Bugojno, and then the remnants
22 were moved from the Central Bosnia area.
23 Q. When you say "pushed," is that a military
24 euphemism for defeated?
25 A. Defeated by the ABiH, yes.
1 Q. The Travnicka Brigade was also pushed or
2 defeated in Travnik, in June of 1993, wasn't it?
3 A. Yes. It moved in reduced strength to the
4 Vitez pocket.
5 Q. In other words, the stragglers that were left
6 after the military defeat moved into the area of
7 responsibility of the Viteska Brigade and tried to
9 A. I don't know if "stragglers" is the right
10 terminology, because looking at the Blaskic figures for
11 later in the year, we see a figure of 870, so that's a
12 reduction of just over a hundred, whereas for the other
13 brigades, it was a larger reduction.
14 Q. All right. Now, the Kotromanic Brigade in
15 Kakanj was basically defeated in the middle of June of
16 1993, simultaneously with the defeats of the Travnicka
17 and Frankopan Brigades; would you agree with that?
18 A. That's correct.
19 Q. The Jure Francetic Brigade in Zenica was
20 basically eliminated, all but a couple of hundred
21 soldiers, in April of 1993, wasn't it?
22 A. That's correct. Reduced to approximately
23 about 400 troops, is the figure given.
24 Q. And the Bobovac Brigade, sir, in Vares was
25 basically defeated in early November of 1993 and
1 ejected from the town; right?
2 A. That's correct.
3 Q. Just a few questions about the Zepce forces,
4 sir. The front lines in Zepce were actually pretty
5 much around the town of Zepce itself, weren't they?
6 A. Sorry. The front line that has been shown?
7 Yes. Basically, a line to the south of Zepce that cut
8 off the ABiH positions to the north of it, and
9 [indiscernible] Zavidovici.
10 Q. You mentioned the towns of Zepce and the town
11 of Zavidovici, just about four or five kilometres to
12 the north-east, I think. Zavidovici was an ABiH
13 enclave, if you like, wasn't it?
14 A. Yes.
15 Q. And Zepce was an HVO enclave; right?
16 A. There's a Muslim brigade based in the town as
17 well, so I am unclear about the time.
18 Q. I was referring to after the defeat of the --
19 the Muslim Brigade in Zepce became a Croat enclave
20 essentially, didn't it, or an HVO enclave.
21 A. That was not part of this report, but from
22 what I've seen, I'm not quite sure we've got an
23 enclosed enclave. But we know that the Muslim brigades
24 to the north of that town were cut off by the Muslim
25 Brigades -- by the HVO.
1 Q. In your report, sir, at page 9, paragraph 30,
2 you make the contention that Colonel Blaskic's
3 assessment that we've referred to in footnote 66 of
4 your report, his assessment of artillery strength did
5 not include the weapons holdings of the HVO Mixed
6 Artillery division. But could you take a look at page
7 24, sir, of his report -- his special assessment.
8 You'll see that in paragraph 6 of that special
9 assessment, he, in fact, does include the mixed
10 artillery division, doesn't he?
11 A. The actual ratio of forces, further back,
12 that divides it by area, and those figures actually tie
13 in with the brigade figures.
14 Q. Could you just tell us how many, for example,
15 the total number of 203-millimetre shells that were
16 available to the Central Bosnia Operative Zone,
17 according to General Blaskic's -- or Colonel Blaskic's
18 special assessment in the summer of 1993.
19 A. It states that there was one artillery piece
20 with one shell.
21 Q. One shell. All right. And the
22 120-millimetre units, the 120-millimetre mortars, how
23 many shells did the Central Bosnia Operative Zone have
24 in total for that, for that piece? It was none, wasn't
1 A. The mortar?
2 Q. Yes.
3 A. 120-millimetre, yes.
4 Q. No shells, right?
5 A. Yes.
6 Q. In connection with the testimony that you
7 gave regarding ammunition supplies, could I just ask
8 you to take a look at one of the last documents that
9 I'd like to have marked here as an exhibit. That's a
10 milinfosum from the Prince of Wales Own Regiment,
11 number 92, dated July the 30th, 1993?
12 THE REGISTRAR: The document will be marked
14 MR. SAYERS:
15 Q. Mr. Elford, the paragraph I'd like you to
16 review is number 2, under "Vitez." Just one
17 preliminary question.
18 You were aware that there was an explosives
19 factory located in Vitez itself, that manufactured the
20 explosive components of an artillery shell; correct?
21 A. I was aware of that.
22 Q. But the factory did not actually manufacture
23 the shell itself, the hard casing, or the detonators,
24 did it?
25 A. No, the explosives factory.
1 Q. Now, this milinfosum contains the comment
2 that while supplies of explosive are relatively
3 plentiful, the level of general munitions is running
4 down due to the inability of resupplying the area, but
5 necessity is the mother of invention. Fuses can always
6 be brought in on the periodic helicopter flights into
7 the area.
8 Did you consider this document when you came
9 up with your conclusions that, in 1993, artillery
10 ammunition was plentiful, in your view?
11 A. Is plentiful the word I used? I said there
12 were problems with supply, but equipment supplies were
13 available. That's what I said for the whole thing,
14 concluding the force ratio is -- you need to know the
15 exact figures, and the exact figures aren't available.
16 But what I had also looked at was reports from the
17 Defence Office, which gave -- reports about the
18 production of supplies during that period, and they
19 talk about numbers of rocket launchers completed,
20 numbers of shells completed, also gun powder produced
21 for the Republic of Croatia, which suggests that there
22 was some form of construction going on, some form of
24 Q. Mr. Elford, though, you would agree with me
25 that there were actual figures available for the latter
1 half of 1993, and they came from no less of an
2 authority than Colonel Blaskic himself, in his special
3 assessment that you relied upon in your report; right?
4 A. Yes.
5 Q. Have you any information to lead you to
6 conclude that the recitation of shells available per
7 gun, arranged by brigade, are inaccurate?
8 A. What is not given, though, was any levels
9 of -- any equipment holding. Yes, we take the figures
10 as being accurate, but I don't know what other supplies
11 there were or what form of replenishment there was.
12 Q. So what you're saying is you have no reason
13 to believe that Colonel Blaskic's figures are
14 inaccurate, but that there may be other figures that
15 should be taken into account. You just don't know what
16 they are.
17 A. I believe there are other figures to take
18 into account, yes.
19 [Trial Chamber confers]
20 JUDGE MAY: Now, Mr. Sayers, have you got
21 very much more, please.
22 MR. SAYERS: About two minutes, Your Honour.
23 JUDGE MAY: Very well.
24 MR. SAYERS:
25 Q. Sir, in your report, at page 10, you make
1 some observations regarding the fighting that occurred
2 at Krizancevo Selo, just before Christmas 1993 --
3 A. Yes.
4 Q. -- and you conclude that there were no
5 casualties there. But let me just ask you whether
6 you've read the testimony of Colonel Williams in this
7 case, or Witness Z that described about 60 or 70 HVO
8 dead during the fighting, just before Christmas of that
10 A. It's not clear if this report was referring
11 to what's been described as the massacre at Krizancevo
12 Selo. I take it it's referring to a particular attack
13 on a particular day. I'm not sure if that is the same
14 one. And the report said that the attack was stopped,
15 and this was achieved because of the result of
16 artillery support.
17 Q. So you're not saying that the HVO did not
18 suffer 60 to 70 casualties at Krizancevo Selo
19 immediately before Christmas of 1993.
20 A. I haven't referred to that in this report.
21 Q. Very well.
22 And my final question is, as far as you're
23 aware, there were no HV units or detachments deployed
24 anywhere in the Busovaca/Vitez pocket, Kiseljak pocket,
25 Vares pocket, or Zepce pocket, were there?
1 A. I haven't studied -- I don't know if there
2 were enough to record -- looking at brigade-sized units
3 to start off, I haven't seen reports of anything of
4 that size, no.
5 Q. Or any battalions of HV forces located in any
6 of those pockets, as far as you're aware, were there?
7 A. Not that I've seen in preparing this report.
8 MR. SAYERS: Thank you very much, indeed,
9 Mr. President. That concludes my questioning.
10 JUDGE MAY: Thank you.
11 Mr. Kovacic, we're going to have to adjourn
12 now because we have some ex parte matters to deal
14 How long do you anticipate being with this
16 MR. KOVACIC: I guess within one hour or so,
17 I will be done. It's difficult to say, Your Honour,
18 because within that --
19 THE INTERPRETER: Microphone for
20 Mr. Kovacic.
21 MR. KOVACIC: I guess not more than one
22 hour. I'm sure it will be even a little bit less than
23 that, because my colleague took several of my
25 JUDGE MAY: Very well.
1 MR. NICE: Can I detain you for a couple of
2 minutes, just to deal with a couple of administrative
3 matters, bearing in mind that we're not meeting
5 JUDGE MAY: Yes. As far as Mr. Elford is
6 concerned, would you be back, please, on Thursday
7 morning, half past nine, to conclude your evidence.
8 THE WITNESS: Yes, Your Honour.
9 JUDGE MAY: Don't speak to anybody about your
10 evidence meanwhile, of course, until it's over.
11 MR. NICE: Perhaps in order to save time, and
12 as Mr. Elford is collecting himself to withdraw, can I
13 run through the administrative matters which don't
14 concern him.
15 Just as a matter of fact, we only lately
16 discovered that we aren't -- that is, the Prosecution
17 only lately discovered that we're not scheduled to sit
18 next Thursday and Friday, and we are making adjustments
19 to deal with that, so far as we can.
20 JUDGE MAY: Pausing there. It was announced
21 some time ago, but if there is difficulty, because we
22 must finish by the 10th of March, the Trial Chamber
23 will be prepared to sit later on various evenings in
24 order to expedite matters, if that assists.
25 MR. NICE: Thank you. There will be an
1 application for a subpoena that's already been signed,
2 the application, and I'll hand that in this afternoon,
3 and I would be grateful if the Chamber could possibly
4 find time to consider it.
5 The Chamber didn't make, I think, a decision
6 about witness -- the sick witness --
7 JUDGE MAY: Number 8, no.
8 MR. NICE: Yes.
9 JUDGE MAY: We're going to deal with various
10 matters in due course.
11 MR. NICE: Thank you. Can I indicate, by way
12 of advance notice, that in light of changes for
13 witnesses in Bosnia and Zagreb, I'm going to make an
14 application, which is necessarily provisional, for
15 videolink facilities, and I'm going to suggest Monday,
16 week, Sarajevo; Wednesday, week, Zagreb. That, if it's
17 possible, will enable the relevant people to travel
18 over the weekend to be in Sarajevo on the Monday,
19 travel on the Tuesday, be in Zagreb on the Wednesday.
20 The timetable of evidence and applications
21 for this week is that on Thursday, Mr. Spork -- there's
22 a schedule that's associated with his evidence.
23 Perhaps I can have that distributed for the Chamber in
25 We can also on Thursday and Friday deal with
1 the binders for Kiseljak, Vitez, Novi Travnik, and
3 There's the question of outstanding videos
4 that can conveniently be discussed, there are differing
5 views about that.
6 The tape, it seems to me that the time has
7 come when it simply might save time for me to call the
8 language assistant, who has been in a position to
9 listen to the tape and prepare the amended transcript,
10 and I'll seek to do that, as necessary, on Thursday or
12 The witness whose statement -- the deceased
13 witness whose statement was admitted by order of the
14 Chamber yesterday was taken by an investigator, who is
15 available here -- she's certainly available on
16 Thursday, I'm not so sure about on Friday -- and I
17 accordingly tender her, so that if there's any question
18 of impropriety being alleged in relation to the taking
19 of that statement, that matter can be dealt with. And
20 if the Defence would be good enough to let me know if
21 they want me to call her, I will make appropriate
22 arrangements, subject to restrictions of time.
23 On Friday, it may well be, if we have time,
24 that I'll call the witness who can deal with the
25 production of exhibits generally. The Chamber will
1 remember that there's a big schedule served with
2 various annotations on it, helpfully placed there now
3 by the Defence, but it may be that to take that witness
4 this week, and for him to deal with the generality of
5 matters, would be helpful, although, of course, the
6 parties -- we are certainly available tomorrow to
7 negotiate with the Defence, if that would help matters,
8 as we're not otherwise sitting.
9 And finally, can I inform the Chamber that
10 the transcripts admitted last week have been collected
11 together; they occupy two binders. The process of
12 annotating them will take some time. I think I was
13 regarded as reckless by my colleagues in making the
14 promise I did, but I stand by my promises, especially
15 when they are responsive to a request from His Honour
16 Judge Bennouna.
17 But I simply say, to have them fully
18 annotated and distributed is undoubtedly going to take
19 until the end of next week, I would have thought, at
20 the earliest. We are entirely in the Chamber's hands,
21 if it would rather have the material unannotated in
22 advance. If so, we'll send them out to copying.
23 JUDGE MAY: Well, I think it's best to stick
24 to the annotations, speaking for myself.
25 Yes. Now, we are anxious to get on.
1 MR. KOVACIC: Your Honour, we have been
2 ordered to advise the Court on four witnesses and also
3 some which were put in the category of negotiation with
4 the Prosecution. I am talking about the transcripts.
5 I just wanted to tell you that I am ready to do so. So
6 it is not that we are delaying the issue. We are
7 ready. Whenever you ask, we can provide the answers.
8 JUDGE MAY: Very well.
9 MR. KOVACIC: We can do that tomorrow
10 morning --
11 JUDGE MAY: Well, Thursday. Sometime on
12 Thursday we'll deal with that.
13 MR. KOVACIC: Okay.
14 JUDGE MAY: We are now going to adjourn for
15 quarter of an hour. We shall then sit for what I hope
16 will be a brief ex parte session.
17 --- Whereupon the hearing adjourned
18 at 4.28 p.m. for an Ex Parte Hearing