1 Monday, 29 May 2000

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.31 a.m.

5 JUDGE MUMBA: Good morning. Would the

6 registrar please call the case.

7 THE REGISTRAR: [Interpretation] Case number

8 IT-96-23-T and IT-96-23/1-T, the Prosecutor versus

9 Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic.

10 JUDGE MUMBA: Good morning, Witness. Please

11 make the solemn declaration.

12 THE WITNESS: [Interpretation] I solemnly

13 declare that I will speak the truth, the whole truth,

14 and nothing but the truth.

15 WITNESS: OSMAN SUBASIC

16 [Witness answered through interpreter]

17 JUDGE MUMBA: Thank you. Please sit down.

18 The Prosecution.

19 Examined by Ms. Uertz-Retzlaff:

20 Q. Good morning, Witness.

21 A. [Inaudible response]

22 MS. UERTZ-RETZLAFF: I didn't get any

23 translation.

24 THE INTERPRETER: The booths did not hear

25 anything.

1 A. I said good morning.

2 MS. UERTZ-RETZLAFF:

3 Q. Please state your name and birthday.

4 A. My name is Osman Subasic. I was born on the

5 12th of November, 1957, in Foca.

6 Q. What is your ethnicity?

7 A. Bosniak.

8 Q. Where did you live before the war?

9 A. Before the war I lived in Foca.

10 Q. In which neighbourhood?

11 A. The neighbourhood called Aladza.

12 Q. Was this a mixed neighbourhood?

13 A. In that part of Foca the majority population

14 was Bosniak.

15 Q. When you say "Bosniak," you mean people of

16 Muslim faith?

17 A. Yes.

18 Q. What did you work as before the war?

19 A. Before the war I worked in the police, in the

20 crime prevention police in the public security Station

21 in Foca.

22 Q. Since when did you work there?

23 A. I worked in the Public Security Station of

24 Foca from the 1st of July, 1995.

25 Q. You said July 1995; that's probably an

1 error. 1995 is after the war.

2 A. 1975, I meant 1975.

3 Q. And you were a criminal inspector.

4 A. I was involved in affairs related to crime.

5 Q. How many policemen were in the SUP in Foca,

6 approximately?

7 A. Including civilian persons, I think there

8 were about 80 of us.

9 Q. Were there reserve policemen as well, and if

10 so how many?

11 A. There was a reserve police force and it

12 numbered about 300 persons.

13 Q. What was the ethnic composition of the

14 police, approximately, the percentage of ethnic

15 groups?

16 A. I think that about 40 per cent were Bosniak.

17 The rest were Serbs, and there were also some

18 Montenegrins.

19 Q. Who was the chief of the Foca SUP?

20 A. Himzo Selimovic was chief of the Public

21 Security Station.

22 Q. What ethnicity was Mr. Selimovic?

23 A. Mr. Selimovic was Bosniak, Muslim.

24 Q. In the period before the conflict in Foca,

25 did you notice that the local population started to arm

1 themselves?

2 A. Yes.

3 Q. What did you observe?

4 A. People were getting armed. Serbs were

5 getting armed, and also there was some information

6 showing that Bosniaks were getting armed too.

7 Q. Did you have any dealings regarding shooting

8 incidents involving military-style weapons?

9 A. I remember two incidents that were related to

10 the use of military weapons.

11 Q. Those people using these military weapons,

12 what ethnicity did they have?

13 A. In both cases it was Serbs.

14 Q. Did you attempt to trace the origin of the

15 weapons used in these two incidents?

16 A. We could not establish the exact origin, but

17 there were some assumptions showing that this might

18 come from the arsenals of the former Yugoslav People's

19 Army.

20 Q. What were the facts that led to this

21 assumption?

22 A. The weapons that were used in both cases were

23 not available in the market. These were weapons that

24 were used by the army exclusively.

25 Q. Did you ever observe the distribution of arms

1 to whatever side?

2 A. In one case we had documents to prove this,

3 that is to say, that weapons were being brought into

4 the area of Foca.

5 Q. What kind of documents do you mean? And who

6 was bringing weapons?

7 A. Once, I think this was the end of 1991 or the

8 beginning of 1992, to Cohodar Mahala, the neighbourhood

9 of Cohodar Mahala, an FAP vehicle was brought in. It

10 was owned by a certain Vujicic. I cannot remember the

11 name. We received information that there were weapons

12 in that vehicle. When we went there to carry out an

13 investigation, we saw that this vehicle was being

14 guarded by two armed persons in civilian clothes. This

15 was an indicator for us that there were weapons inside

16 after all.

17 Q. This Vujicic, is this a Serb?

18 A. Yes.

19 Q. Did you try to get close to this truck and

20 really look into it?

21 A. We tried, but we were afraid of an incident,

22 and we gave up.

23 Q. Did you notice that before the war, the

24 Serbs, or whatever -- of soldiers occupying points of

25 strategic importance around Foca?

1 A. I do apologise. It was not soldiers. These

2 were not soldiers. These were still civilian persons.

3 Q. What did you see?

4 A. I think this was in March 1992, on an

5 elevation called Dub, which is above the KP Dom. That

6 is where a hunting lodge was as well. On that day,

7 Abid Ramovic, a colleague of mine, and Ferid Krso,

8 tried to get some materiel up there for this hunting

9 lodge, and someone shot at them then, so they had to

10 escape from there. When they returned, Abid told me

11 that as they were passing through the neighbourhood of

12 Prevrac, and when they came to this elevation called

13 Dub, where the hunting lodge is, he saw armed

14 civilians. He knew some of them. He mentioned who

15 they were and said that it was Serbs.

16 Q. We have here, next to your seat, we have

17 there a map. This week and this weekend, when you

18 arrived in The Hague, did you meet members of the

19 Prosecution who explained to you the proceedings?

20 A. Yes. Yes. I met with the representatives of

21 the Office of the Prosecutor.

22 Q. Were you given this map and asked to draw

23 into this map certain locations which are of interest

24 during your testimony?

25 A. Yes. Yes, and I did that.

1 Q. And this map hanging here in the courtroom,

2 is that the map you marked?

3 A. Yes. Yes.

4 MS. UERTZ-RETZLAFF: The Prosecution would

5 like to enter this map with the marks on it as the

6 Prosecution Exhibit 21/1. It's actually the same map

7 as the Exhibit 21; it's only with some marks in it.

8 And I would like to use it throughout the testimony.

9 JUDGE MUMBA: Any submissions, the Defence?

10 MR. PRODANOVIC: [Interpretation] No, Your

11 Honour.

12 JUDGE MUMBA: Mr. Kolesar?

13 MR. KOLESAR: [Interpretation] No, Your

14 Honour.

15 JUDGE MUMBA: Ms. Lopicic?

16 MS. LOPICIC: No, Your Honour.

17 JUDGE MUMBA: Thank you. So it's admitted.

18 Can we have the formal number, please.

19 THE REGISTRAR: [Interpretation] This map will

20 be numbered 21/1, as a Prosecution Exhibit.

21 MS. UERTZ-RETZLAFF:

22 Q. Would you please show us on this map the

23 locations Dub and Prevrac.

24 A. Prevrac is above Foca [indicates], and above

25 the KP Dom is Dub, where the hunting lodge was.

1 Q. What is this strategic importance of these

2 two locations?

3 A. Both locations dominate over Foca, especially

4 Dub, that covers the communication

5 Foca-Ustikolina-Gorazde.

6 Q. Did you yourself see also armed people in

7 this area, or is it only the information from

8 Mr. Ramovic?

9 A. Only the information I received from

10 Mr. Ramovic.

11 Q. Did later on, when the war started, did

12 shooting come from the direction of Dub and Prevrac?

13 A. From this location, fire was opened at the

14 very outset; that is to say, against this row between

15 Gorazde and Foca.

16 Q. Yes. Thank you. You can sit down again. We

17 come later back to the map.

18 Did you discuss the arming of the population,

19 of the local population, among your colleagues?

20 A. Yes. Yes.

21 Q. Do you recall what was said?

22 A. Well, in one period, when people were saying

23 that the Bosniaks and Serbs were getting armed, we were

24 sitting in an office, before the war, Zoran Vladicic, a

25 colleague of mine, and I. And then he said to me, "You

1 don't stand a chance. For 20 days now weapons are

2 being brought on horseback above Foca and you're going

3 to lose it." This would be a very free interpretation

4 of the conversation we had.

5 Q. This Mr. Zoran Vladicic, was it a Serb?

6 A. Yes.

7 Q. And when he said you will lose it, what did

8 you understand? What was it? What did he mean?

9 A. My understanding was that they were so well

10 armed that we would lose Foca soon.

11 Q. And when you say "they," whom do you mean?

12 A. I do apologise. I was referring to the

13 Serbs.

14 Q. The police in their authority being therefore

15 law and order, did you try to prevent the arming of the

16 local population?

17 A. I think that at that point in time, the

18 political situation did not allow the police to work.

19 We did come to work, but in fact we didn't do a thing.

20 Q. To which political situation do you refer?

21 What was the situation that prevented the police to

22 function?

23 A. We had just got out of a system. Parties

24 appeared -- the SDA, the Serb Democratic Party -- and

25 the people were divided according to these parties.

1 And the police remained undefined.

2 Q. Did you observe anything in relation to

3 crisis staff starting to operate in Foca?

4 A. Rumour had it that there was a crisis staff

5 of the SDS operating in Foca.

6 Q. Did you observe anything in relation to this

7 rumour?

8 A. I think it was the month of March, when we

9 went on a night tour together with uniformed

10 policemen. We were touring the town for security

11 reason. In the area of Cerazluk, near the Orthodox

12 church, we saw a few armed persons.

13 Q. And did you approach these persons?

14 A. We passed down the street. We didn't talk to

15 them.

16 Q. And does this relate to the crisis staff you

17 heard about, the Serb Crisis Staff?

18 A. Afterwards, we heard that these people were

19 actually guarding some kind of a security staff during

20 the night that was either in or around the Orthodox

21 church.

22 Q. And this neighbourhood, Cerazluk, is this a

23 Serb neighbourhood?

24 A. It is primarily populated by Serbs.

25 Q. Were you ever involved in any negotiations

1 related to this crisis staff?

2 A. Yes.

3 Q. Can you tell us about it?

4 A. I think it was the 9th of April, when orders

5 were issued to both sides to stop shooting. A Bosniak,

6 a Muslim was invited, and also a Serb, to come and to

7 see these locations. That was on the evening of the

8 8th. That's when the shooting took place. I was

9 appointed by Selimovic, the chief of police, and Zoran

10 Vladicic was a representative of the other side, the

11 Serb side.

12 We came to the municipality. In one room was

13 Lojo, the president of the municipality. Then also

14 there was Lakovic Predrag. I can't remember the rest.

15 And I heard Lakovic Predrag talk to Miro Stanic, who

16 was president of the SDS otherwise, and at one point in

17 time he said to him, angrily, "You hid up there around

18 the church and you told me that there would not be a

19 war." I linked that to the functioning of the Crisis

20 Staff in that area.

21 Q. Did you learn who were the members of the

22 Serb Crisis Staff? You have already mentioned Miro

23 Stanic, the president of the SDS. Who else?

24 A. I found out later that on the Crisis Staff,

25 for the municipality of Foca, was Vojislav Maksimovic,

1 Petko Cancar, Velibor Ostojic, Dragan Gagovic, Velimir

2 Janjic. There were probably others but I only heard of

3 these men.

4 Q. This Velibor Ostojic, Vojislav Maksimovic,

5 and Petko Cancar, were these politicians? And if so,

6 to which party did they belong and to which level of

7 politicians?

8 A. Maksimovic and Ostojic were, I think, members

9 of the main committee of the SDS, probably Cancar was

10 too. But at that time Cancar was at a local level; I

11 think that later he was president of the municipality.

12 However, they were all members of the SDS party.

13 Q. Do you know the functions of the Crisis

14 Staff? What was it for?

15 A. I think that the function of the Crisis Staff

16 is to lead civilian and military formations at a given

17 point in time.

18 Q. How do you know that?

19 A. I think that once I had the opportunity of

20 watching an interview of Mr. Stanic where he personally

21 said that at the same time when he was president of the

22 SDS, he was chief of the Crisis Staff and, as he said,

23 commander of the defence of Foca. So he probably

24 included all these functions into one.

25 Q. Did the Muslims also have a Crisis Staff in

1 Foca?

2 A. I think they did.

3 Q. Where was it, and who was the head?

4 A. I think that the Crisis Staff was in the

5 Donje Polje neighbourhood, and probably Senad

6 Sahinpasic was the one who was in charge of the Crisis

7 Staff of the Muslim side.

8 Q. When did the war start in Foca?

9 A. On the 8th of April, 1992.

10 Q. At that point in time did the police still

11 function? Were they still operating together, Muslims

12 and Serbs?

13 A. We were in the same building but we did not

14 operate together.

15 Q. How did that come about?

16 A. At a meeting on the 7th of April, 1992, at

17 1.00, we held a joint meeting, the Serbs and the

18 Bosniaks, the Muslims, where it was agreed that we

19 should not be divided, that we should all remain

20 together, and that we should work together in order to

21 prevent something bad from happening.

22 This agreement was not abided by, though,

23 because around 3.00 p.m. all employees who happened to

24 be in the police station that day went to the premises

25 of the social/political organisations, where the SDS

1 headquarters were, to attend a meeting.

2 Upon their return they asked Chief Selimovic

3 to have a meeting held at 5.00 p.m. This meeting was,

4 indeed, held at 5.00 p.m. and then Milun Milanovic, who

5 at that time was commander of the traffic police and

6 who represented the Serbs at the public security

7 station at the time, said that he was ordered, by way

8 of an ultimatum, that the police had to be divided into

9 the Serb part and the Muslim part, and that if he did

10 not observe that, and he was referring to people of the

11 SDS, "they were prepared to bring their own people into

12 the police."

13 After this meeting, the public security

14 station started functioning with a Muslim, a Bosniak,

15 part on the one side and a Serb part on the other

16 side.

17 Q. Did anything else happen that same day or

18 night?

19 A. I think that as soon as it became dark, it

20 was about 8.00 p.m., we were all in the building and

21 the man on duty called the chief and said that armed

22 persons were barging into the adult education centre,

23 or rather where Radio Foca was. It was agreed with

24 Commander Milanovic to send a patrol there, one Serb

25 and one Muslim. I think that I remember one was Muslic

1 and the other one was Miletic. They returned soon

2 after that and said that these persons were armed and

3 that they drove them away from that location. Upon

4 that they returned to the station.

5 Soon afterwards a report was received that

6 some armed persons were also barging into the warehouse

7 of the regional medical centre in Foca where medical

8 supplies were held; soon after that, also into the

9 Territorial Defence warehouse that was in the

10 neighbourhood of Livade.

11 In both cases, and in the third case for that

12 matter, the patrols that went out to investigate said

13 that these were persons of Serb ethnicity; however,

14 they did not mention the names of the persons

15 involved. This was a sign to us that something was in

16 the making.

17 Q. What was stored in the TO warehouse in

18 Livade?

19 A. Weapons, weapons of the units of the

20 Territorial Defence, materiel, equipment, and also the

21 warehouses of the Perucica commercial enterprise in

22 Foca.

23 Q. Before the shooting started on the 8th of

24 April, did anything else happened which alerted you?

25 A. Yes. That night I went to my flat at about

1 1.00 or 2.00 with the intention of getting some sleep.

2 I put the telephone next to me, and at around 4.00 or

3 5.00 the phone rang. I answered and a voice, a very

4 excited voice said, "What are you waiting for? Get

5 out. We're about to attack." I asked who it was and

6 he asked, "Well, who did I get?" And I said, "What

7 number did you call?" and he said "575066." I said,

8 "Yes, that's the number you have. Very well. I'll

9 come out."

10 Then I called the policeman on duty, a

11 Bosniak, a Muslim, and I said, "Please check the number

12 that called me" and he said that it was a certain

13 Milanovic. I don't know what his first name was. It

14 could have been Slobodan. I don't know. And my number

15 is 575666, so I think that person rang the wrong

16 number.

17 Q. This shooting on the 8th of April, 1992, did

18 it involve heavy weapons, or was it just infantry

19 weapons on that particular day?

20 A. That day there were both kinds of weapons,

21 both kinds of activity. There was shooting from

22 infantry weapons and also from artillery weapons.

23 Q. The artillery weapons, from where did this

24 fire come, and where was it aiming at?

25 A. Later on -- because in the first wave we were

1 quite confused, we didn't know what was going on, but

2 on the following days, when this continued, we

3 discovered that the artillery was firing from the

4 direction of Kalinovik and Miljevina, and they were

5 firing on Donje Polje.

6 Q. Did the local Serbs or local Muslims have

7 access to artillery weapons?

8 A. No.

9 Q. Who had such weapons?

10 A. Such weapons, in the first period up to the

11 beginning of the war -- later the army of Republika

12 Srpska had those weapons -- but to begin with it was

13 only the former Yugoslav People's Army that had them.

14 Q. What was targeted by these artillery

15 weapons? Which areas were targeted?

16 A. I think mostly it was Donje Polje.

17 Q. What about the Muslims, did they return the

18 fire? Was there resistance?

19 A. Yes, there was resistance, and they fired

20 from infantry weapons.

21 Q. Was there resistance throughout Foca, or were

22 there only some nests of resistance?

23 A. Most of the resistance was from Donje Polje.

24 I think there were some individual cases of resistance

25 in other places around Foca but I don't know where.

1 Q. How effective was this defence?

2 A. I think those were people who did not have

3 any military knowledge or skills, so the defence of

4 Foca and Donje Polje was organised so badly that

5 actually those who were firing on them were able to

6 break down their resistance very quickly.

7 Q. When did Foca fall?

8 A. I think it was on the 15th of April, 1992.

9 Q. When did you leave Foca?

10 A. I think it was the 12th of April, 1992,

11 sometime in the afternoon.

12 Q. Where did you go?

13 A. To Ustikolina.

14 Q. Did other Bosniaks or Muslims also flee into

15 this direction?

16 A. Most of the Bosniaks and Muslims fled in the

17 direction of Gorazde, and some of them went in the

18 direction of Sarajevo, and quite a large number

19 remained in other parts of Foca at that time.

20 Q. Would you please show us Ustikolina on the

21 map.

22 A. Yes. Ustikolina is on the road between Foca

23 and Gorazde. This is Ustikolina [indicates].

24 Q. Yes. Thank you. You may sit down again.

25 How long did you stay in Ustikolina?

1 A. I think I stayed until the 28th of April,

2 1992.

3 Q. While you were in Ustikolina, did you hear

4 information what was going on in Foca?

5 A. Yes.

6 Q. What kind of information, and who told you?

7 A. We mostly received information from people

8 fleeing Foca, and because it was after the 15th and all

9 the Bosniaks who had weapons had already left Foca.

10 Q. While you were in Ustikolina, were you

11 involved in any activities of resistance?

12 A. Yes.

13 Q. Can you tell us what you did?

14 A. In Ustikolina, a municipal Territorial

15 Defence staff began to function. It was the

16 territorial staff of Foca, located in Ustikolina, and I

17 was the chief of the intelligence and security part of

18 the staff.

19 Q. Did you wear a uniform and were you armed at

20 that time?

21 A. I personally did not wear a uniform, because

22 there were no uniforms available, only the uniforms

23 worn by the reservists and the active policemen. And

24 there were a few people who had camouflage uniforms --

25 I don't know where they got them from -- but I think

1 there were only three or four.

2 Q. And what about weapons? Did you have a

3 weapon?

4 A. All the policemen, the reserve and active

5 policemen, had automatic weapons, and a certain number

6 of civilians had hunting rifles and some military

7 weapons.

8 Q. About how many people were involved in these

9 TO activities?

10 A. I think as regards the staff, about 300

11 people contacted us, and I think that all together,

12 including the police, there were about a hundred people

13 who were armed, some with hunting weapons and others

14 with military weapons.

15 Q. Were they all Muslims?

16 A. Yes.

17 Q. Were these people involved in fighting at

18 that time?

19 A. I think they had their first combat in the

20 period when Ustikolina was attacked, in the region of

21 Filipovici, when a group of about 40 armed members of

22 the Territorial Defence tried to prevent a breakthrough

23 toward Ustikolina. And when they ran out of

24 ammunition, they retreated, and then the Serbs took

25 that part.

1 Q. Besides this Filipovici, were there military

2 installations in Ustikolina?

3 A. Yes. There were three installations. There

4 was a barracks in Ustikolina and two warehouses in

5 Kosova, and Gabelici Potok, which used to belong to the

6 former JNA.

7 Q. Were there still JNA soldiers there at that

8 time?

9 A. I don't know whether they called themselves

10 the JNA, because they changed the insignia on their

11 caps, but members of that former army were present

12 there.

13 Q. Did the Muslim TO try to get help from this

14 JNA, former JNA installation and soldiers?

15 A. I think that on several occasions they tried

16 to talk to Captain Golubovic to ask the army to prevent

17 conflicts in that area, and in one case we asked him to

18 take two of our wounded men to the area of Prevlje, and

19 he was unable to do this.

20 Q. When was Ustikolina attacked by the Serb

21 forces?

22 A. As far as I can remember, on the 28th of

23 April.

24 Q. What did you do when that happened?

25 A. We retreated in the direction of Osanice.

1 Q. Could you see, from where you had fled to,

2 could you see what was happening in Ustikolina and in

3 the surrounding villages?

4 A. From an elevation, looking toward Osanice,

5 which is called Brajlovici and Zebina Suma, some of us

6 watched. And we saw the Serb army, I think it was a

7 van and a truck, and there was a man in front carrying

8 a Serb flag, followed by some people, and we couldn't

9 see who they were, but they started torching houses.

10 Q. In Ustikolina, or where?

11 A. Yes. Yes. In Ustikolina. In Ustikolina.

12 Q. And in the following days, did you continue

13 to observe what was going on in the villages around

14 Ustikolina?

15 JUDGE MUMBA: Mr. Jovanovic, yes.

16 MR. JOVANOVIC: [Interpretation] Your Honour,

17 the Defence would like to express its concern because

18 of the way of questioning the witness and the questions

19 being asked. We consider that the questions are not

20 relevant.

21 Before the beginning of these proceedings, we

22 established some undisputable facts with our colleagues

23 from the Prosecution, and one of these is the existence

24 of an armed conflict in the municipality of Foca in

25 which the Serb and Muslim entities took part. This

1 line of questioning has given rise to concern on the

2 part of the Defence, and we would like to question the

3 relevance of all the data being brought forward today

4 and the need for this line of questioning.

5 MS. UERTZ-RETZLAFF: Your Honour, this line

6 of questioning is important for two aspects. First of

7 all, we were not only talking armed conflict, but we

8 are also talking attack on the Muslim population. That

9 is Article 5, the general elements, and my questions

10 actually relate to this aspect.

11 And secondly, we will come even to more

12 details about fighting in relation to the anticipated

13 alibi defence. We don't want to have Mr. Subasic have

14 to come twice. What we are talking about now is very

15 relevant for the anticipated alibi defence of the

16 accused Kunarac. We are going in even more details

17 when we come to July.

18 [Trial Chamber deliberates]

19 JUDGE MUMBA: To the Prosecution, part of the

20 objection is accepted by the Trial Chamber, and the

21 Trial Chamber would like to accept your assurance but

22 also to guide you that you should restrict your

23 questioning to the relevant issues. It was the attack

24 on the Muslim civilian population, and if we can get

25 straight on to that and then move on to the alibi

1 defence, as you say, move quickly and move on to the

2 attack which is relevant to the charges, and make sure

3 that the witness is restricted to that. Yes, and to

4 the alibi, of course.

5 MS. UERTZ-RETZLAFF: Yes. However, I mean,

6 we have already gotten statements from the potential

7 alibi witnesses, and these witnesses refer to the

8 Bosnian Muslim army, telling how good they were armed,

9 how good they were organised, and what we are hearing

10 now is also relating to this part of the statements.

11 JUDGE MUMBA: Very well. And we also agree

12 with you that we don't need to call the witness twice,

13 so we are okay if you deal with it and restrict your

14 witness to the relevant evidence. Thank you.

15 MS. UERTZ-RETZLAFF:

16 Q. Witness, do you remember I asked you what you

17 observed, what was going on in the villages after the

18 Serbs had taken over Ustikolina? What did you observe?

19 A. I observed that on the 8th of May, villages

20 along the River Drina were attacked on the left bank,

21 downstream from Osanice. All the villages were

22 attacked in a single day and they were all burnt down

23 on that day. And I have marked those villages on the

24 map. They were all torched in one day, and the

25 population either fled or we found the bodies of

1 civilians who had been killed.

2 Q. Would you please show us this area on the map

3 and also give us the names of the villages.

4 A. They were villages Kosova, Ljubusa,

5 Braljovici, Zebina Suma, Trnovice, Gajevi, Mrdzelici.

6 I will repeat: Kosova, Ljubusa, Braljovici, Zebina

7 Suma, Obadi, Trnovace, Gajve, Mrdzelici. And on that

8 day, all of these villages were torched, and the

9 village of Njuhe as well.

10 Q. Yes. Thank you. You can sit down again.

11 These villages that were torched and where

12 you found later on bodies of civilians, were these

13 Muslim villages?

14 A. They were all Muslim villages.

15 Q. Where did you go from your observation

16 points, then, when you left Ustikolina area?

17 A. I stayed in the area of Gorazde, the area of

18 the municipality of Gorazde. I lived in a village

19 called Vranici, with my family.

20 Q. Did you join the army in Gorazde, the Bosnian

21 army?

22 A. Yes. I joined the army, I think, on the 15th

23 of April -- no, the 15th of May, 1992, I joined the

24 newly formed unit, the 1st Drina Brigade.

25 Q. What was your position in this brigade?

1 A. In the brigade I was the assistant commander

2 for intelligence.

3 Q. Were you involved in combat activities?

4 A. No, I was not involved in combat activities

5 personally.

6 Q. Where were you stationed, and what was your

7 task?

8 A. The command of the brigade was in the

9 settlement of Sabda, on the right bank of the River

10 Drina. My task was gathering intelligence information

11 about the enemy, analysing this information, the

12 aims/intentions of the enemy, the grouping of the

13 enemy, their movements, and so on.

14 Q. How did you fulfil this task? What did you

15 have to do?

16 A. To obtain information, we used people

17 arriving in the area of the municipality of Foca,

18 reconnaissance units, and sometimes personal inspection

19 into the combat deployment of the enemy.

20 Q. Did you also question captured enemy

21 soldiers?

22 A. Up to 1993, no. That happened only in 1993.

23 Q. Did you hear about the involvement of a Zaga

24 unit?

25 A. The civilians arriving from the area of the

1 municipality of Foca, especially in Slatine and Godina,

2 mentioned that Zaga had a unit, some men, and that he

3 was active in the area.

4 Q. Since when did you receive information about

5 this Zaga and his unit? The month, if you know, maybe

6 you can tell us the month.

7 A. Well, as soon as the brigade was set up and

8 the intelligence organ started functioning, we started

9 gathering information and as soon as that happened we

10 started receiving information where Zaga was

11 mentioned.

12 Q. Can you show us the locations where the

13 people came from who mentioned Zaga and his unit.

14 A. Yes. Those are locations along the River

15 Cehotina, Godina, Slatine, and Vikoci.

16 Q. Yes. Thank you. Those who mentioned Zaga,

17 what did they say about him? Did they know the

18 nickname? Did they know the name, the full name?

19 A. Some of them knew only his nickname but most

20 of them knew that this was Dragoljub Kunarac from Foca,

21 and they used to say, "Zaga Kunarac," and so on.

22 Q. What did they say about his men? How big was

23 the group he had?

24 A. Mostly they said that it was a group of up to

25 15 men, that he was their commander, and that there

1 were unknown soldiers among those men.

2 Q. Did you know Zaga, or Dragoljub Kunarac, from

3 before the war yourself?

4 A. Yes. Yes, I knew him.

5 Q. How did you know him? In your capacity as a

6 police officer or just as a neighbour?

7 A. Both.

8 Q. Can you tell us more details about how you

9 know him. What did you learn about him?

10 A. I knew Kunarac since the '80s, I think,

11 because he lived in Foca where I also lived. I knew

12 his father Lekso and his brother; I think his name is

13 Boban. In Foca everybody knew everybody else so that I

14 knew what he looked like and so on.

15 As a policeman I never had anything to do

16 with him myself but I heard from some colleagues that

17 he had had some problems, whether in Montenegro or

18 somewhere else, I don't know, but that he had had some

19 problems with prison.

20 Q. Do you mean he was in prison?

21 A. I think he was in prison.

22 Q. For what offences; do you know?

23 A. Well, it was just hearsay. I never

24 established myself what the reason was, but they said

25 it was for theft.

1 Q. You said you knew him personally as well.

2 What kind of a behaviour did he have?

3 A. I knew him -- well, I never had any problems

4 with him myself. He did not cause any incidents in

5 Foca, but I knew that he liked to drink a little more

6 than was usual.

7 Q. Did you ever hear that he got into bar fights

8 in Foca?

9 A. I think there were such cases as well.

10 Q. Dragoljub Kunarac, you said you know him

11 yourself. Is he in the courtroom?

12 A. Yes.

13 Q. Where is he sitting?

14 A. First person on the left-hand side, viewed

15 from here.

16 Q. First person --

17 A. Yes. Yes, the first person in civilian

18 clothes, that is.

19 MS. UERTZ-RETZLAFF: May the record reflect

20 that the witness has pointed out Dragoljub Kunarac.

21 JUDGE MUMBA: Yes.

22 MS. UERTZ-RETZLAFF:

23 Q. In relation to his soldiers, do you recall

24 any names or nicknames of these other soldiers?

25 A. I don't think I could remember.

1 Q. Do you know where they -- did you learn where

2 they came from? Were they locals or from somewhere

3 else?

4 A. According to statements made by witnesses who

5 fled before Zaga's unit, it was said that there were a

6 number of people from Foca, and there were also a

7 number of men who were allegedly from Montenegro.

8 Q. Did Dragoljub Kunarac have a relation with

9 Montenegro?

10 A. As far as I know he did because his father,

11 Lekso, had a house in Tivat. I think that in the

12 period before the war, for a few years, that is, he

13 actually lived there as well.

14 Q. How long did you get information about the

15 Zaga unit?

16 A. I think that Zaga's unit was mentioned

17 throughout the war. Throughout the war it was

18 mentioned as a unit.

19 Q. Did you ever meet a soldier from this unit?

20 Were any of them ever captured?

21 A. I think, at least that's the way he

22 introduced himself, a soldier who was a prisoner and

23 who was originally from Niksic, he said that he

24 volunteered, joined Zaga's unit. I can't remember his

25 name. I think he belonged to Zaga's group or unit.

1 Q. When did you meet this person, and what

2 happened to this person afterwards?

3 A. This was an offensive that was launched by

4 the Serb forces on the right bank of the Drina River,

5 which was taken by them that year, 1994. On that

6 occasion we took prisoner -- we took this particular

7 prisoner, Zaga's soldier, that is, he was in our

8 prison. He was exchanged later on and he is somewhere

9 in Montenegro now.

10 Q. Let's go now directly to July 1992. Did your

11 unit -- did the Bosnian Muslim army ever seize military

12 documents related to the fighting in Foca and Gorazde?

13 A. Yes.

14 Q. Can you tell us?

15 A. I think that when a particular combat task

16 was being carried out in Preljuca, our members, that is

17 to say, the members of the army of Bosnia-Herzegovina,

18 captured some documents, including an order to take out

19 the so-called deblockade of Gorazde.

20 Q. Were you present when this document was

21 seized, or did you later receive it?

22 A. I was not present but later I was given this

23 paper.

24 MS. UERTZ-RETZLAFF: Can the witness be given

25 Exhibit 2, Prosecution Exhibit 2. This is already

1 entered into evidence.

2 Q. Do you have the B/C/S version?

3 A. Yes. Yes.

4 Q. Do you know this document? Have you seen

5 that before?

6 A. That is the document that I was given after

7 that combat task was carried out, after they had

8 captured it.

9 Q. In paragraphs 1 and 2 of this document, there

10 are locations described where fighting was supposed to

11 occur. Can you show us this area on the map?

12 A. Yes. These are locations through which a

13 breakthrough was supposed to be carried out towards the

14 free territory of Gorazde. Yes, I can show it.

15 Borovac is mentioned here. That is a

16 dominant elevation there with an altitude of 1,740

17 metres. Orahovica and Kreca are mentioned, and also

18 the region of Ilovaca.

19 According to the estimate of the Foca

20 Tactical Group, their estimate was that that is where

21 the majority of our forces were grouped. So they

22 wanted to carry out a breakthrough there to break the

23 blockade, and also to link up with Serb forces that

24 were in the region of Jagodici.

25 Q. Yes. Thank you. You can sit down again.

1 Would you please look at paragraph 5. It's

2 page 3 in the B/C/S version, on the bottom, and in the

3 English version it is also page 3, under the headline

4 "Command Post Ustikolina Barracks."

5 Do you have this paragraph, "Command Post

6 Ustikolina Barracks"? And then the mentioning of --

7 A. Yes. Yes.

8 Q. Here, you have the 1st Independent Dragan

9 Nikolic Detachment mentioned and the Independent Zaga

10 Detachment mentioned as well. What kind of units are

11 these independent detachments?

12 A. These are military formations that are

13 neither a company nor a platoon. They are independent

14 at any rate because they were subordinated to a bigger

15 unit in relation to a battalion or a brigade; that is

16 to say, they are independent and attached to a bigger

17 formation.

18 Q. Can you show us on the map where, according

19 to this combat order, these two independent detachments

20 were operating.

21 A. Let me just explain this. "The Independent

22 Detachment Dragan Nikolic," that is to say, the mop up

23 of Ilovaca, et cetera. "The Independent Zaga

24 Detachment is to take part in mopping up settled areas

25 in the direction of the 5th Battalion's attack." From

1 here one cannot see where the 5th Battalion was

2 supposed to operate from.

3 Q. Witness, you have to speak a little bit

4 slower because it has to be translated and the

5 interpreters have problems.

6 A. Very well. The Independent Detachment Dragan

7 Nikolic operated within the 1st Battalion, I think, and

8 the Independent Zaga Detachment acted in the direction

9 of the 5th Battalion's attack. The village of Ilovaca

10 is mentioned with regard to the 1st Detachment.

11 The village of Ilovaca is -- just a minute,

12 Ilovaca, here, in this area; that is to say, upstream,

13 up the Osanica River, towards Borovac. That is where

14 the wider region of Ilovaca is with villages that were

15 predominantly populated by Bosniaks.

16 That is to say that this detachment, Dragan

17 Nikolic, was supposed to mop up these villages, whereas

18 the Zaga Independent Detachment was supposed to mop up

19 settled areas in the direction of the 5th Battalion's

20 attack. That's what it says here. The order does not

21 mention exactly where this detachment was supposed to

22 operate, so I don't know.

23 Q. Did you get any information from fleeing

24 civilians where this Zaga Detachment was operating

25 during this period?

1 A. At that time civilians were not moving

2 around, because they did not manage to break through

3 the defence lines.

4 Q. Yes. Thank you. You can sit down again.

5 When you look again into the combat order,

6 mop up, it says for both of these independent

7 detachments. What does that mean, "mop up"?

8 A. In military terms, "mop up" means that if

9 stronger forces penetrate an area and assume that at a

10 given location there are soldiers, civilians, or

11 persons who are the enemy at that point in time, then

12 that independent detachment was supposed to go to this

13 particular area. The troops did not stay back. They

14 had to go further ahead and link up with other forces.

15 That is to say that both of these detachments were

16 supposed to go through these settled areas. Mop up, in

17 the sense of which they carried this out, meant

18 liquidate, take prisoner, and torch.

19 Q. How do you know that? Did you observe this

20 yourself or did you get the according information from

21 fleeing witnesses?

22 A. We mainly received information from witnesses

23 who were fleeing the villages that were already mopped

24 up by these detachments.

25 Q. You have mentioned also and shown us the

1 Dragan Nikolic Detachment. What do you know about this

2 particular detachment?

3 A. I know that this detachment pertains to the

4 name of Dragan Nikolic, whom I knew. He was the son of

5 a colleague of mine. As far as I know, he got killed,

6 I think in Aladza, when combat operations were being

7 carried out.

8 Q. And who was then -- after this, who was the

9 commander of this particular detachment?

10 A. According to the information that we received

11 from various sources, he was replaced by Cosovic,

12 Brane, nicknamed Cosa, from Foca.

13 Q. Do you know members of this unit?

14 A. I knew most of the men from this unit, but I

15 did not know exactly who it was. Different names were

16 being mentioned.

17 Q. Which names?

18 A. As far as I can remember, Slavko Ivanovic,

19 Finta, the brother of Dragan Nikolic, called Zoran.

20 Also Zoran Vukovic was mentioned, that he was within

21 this unit too. I can't remember other names.

22 Q. Did you know Zoran Vukovic from before the

23 war?

24 A. Yes, I knew him.

25 Q. What did you know about him?

1 A. I have personally known Zoran Vukovic since

2 1975, when he worked at the Zelengora Hotel in Foca.

3 We were good friends as well. I know that in a certain

4 period he had problems with his work and that he

5 changed his work. He left the catering business and

6 went to work as a driver in a company called Gradjenje,

7 where he was a driver of a mixing vehicle. I think

8 that that is the job he had until the war broke out.

9 Q. And do you know anything about his

10 behaviour? Did he have a criminal record?

11 A. I think that, except for traffic, I don't

12 think he had any problems. I think he was a nice

13 person, a very nice person.

14 Q. Do you see this person in the courtroom as

15 well, this Zoran Vukovic you are talking about who was

16 a member of the Dragan Nikolic unit?

17 A. Yes, I have seen Zoran Vukovic, and he is the

18 third person in line, wearing civilian clothes, that

19 is.

20 JUDGE MUMBA: Can the witness wait, please.

21 Yes, Counsel.

22 MR. JOVANOVIC: [Interpretation] Your Honour,

23 Your Honour, I think that the question that was put to

24 the witness, as far as identification is concerned, is

25 not proper. The witness said that he heard of a name

1 of a person who was a member of this unit, and as --

2 and the question is, as far as I can see, whether he

3 sees here Zoran Vukovic who was a member of that unit.

4 Before that, the witness did not say whether that Zoran

5 Vukovic was a member of that unit, so we cannot really

6 carry out identification in that way, because there is

7 not only one person called Zoran Vukovic.

8 JUDGE MUMBA: Yes. Madam Prosecutor, that is

9 a valid objection.

10 MS. UERTZ-RETZLAFF: Then I ask the question

11 otherwise.

12 Q. Witness, the person you have mentioned, the

13 waiter and later driver, who was a nice person, as you

14 knew him, is he in the courtroom here?

15 A. Yes, he is here in the courtroom.

16 Q. And can you show --

17 A. The third person on the left. That is to

18 say, the third person in civilian clothes, sitting near

19 the window, the one I mentioned as a driver and as a

20 waiter.

21 MS. UERTZ-RETZLAFF: The witness has just

22 identified Zoran Vukovic.

23 JUDGE MUMBA: Yes.

24 MS. UERTZ-RETZLAFF:

25 Q. Do you know any other Zoran --

1 A. I do apologise. I know some men who were

2 called Zoran Vukovic. There is even a Bosniak who was

3 called Hadzivukovic, and later he was called Zoran

4 Vukovic. However, as I worked in the police, I saw

5 these records and I realised that there were 10 or 11

6 Zoran Vukovics in the area of Foca.

7 Q. These other Zoran Vukovics, as far as you

8 know them, are they of the same age as the accused

9 Zoran Vukovic?

10 JUDGE MUMBA: Counsel, before the witness

11 answers, the witness has said he realised that there

12 were 10 or 11 people by the name of Zoran Vukovic.

13 Now, can you -- before he answers the question you

14 asked, is he able to tell their ages, these 10 or 11,

15 for him to be able to say that --

16 MS. UERTZ-RETZLAFF: Yes. I would like to

17 ask him about this.

18 JUDGE MUMBA: Yes. Because sometimes you go

19 ahead before the witness actually can demonstrate that

20 he can answer a question.

21 MS. UERTZ-RETZLAFF:

22 Q. How many of these Zoran Vukovics, the other

23 Zoran Vukovics, do you know, either from your personal

24 knowledge or from the documents?

25 A. I personally knew only Zoran Vukovic, the son

1 of Mileva. That is the man who is here in this

2 courtroom. I cannot remember the others.

3 Q. You have mentioned a Zoran Vukovic being part

4 of the Dragan Nikolic Detachment. Is this the Zoran

5 Vukovic you knew, or could there be another one?

6 A. I cannot say, because I never saw him in that

7 detachment. However, the information we received from

8 persons on the ground pointed to this particular Zoran,

9 the one who is in the courtroom.

10 Q. What information was it that pointed to him?

11 A. Well, a large number of people from Foca --

12 Bosniaks, Muslims -- knew Zoran Vukovic, who was a

13 waiter, who was later a driver. They knew him because

14 he was friends both with Bosniaks and Serbs. They also

15 knew his nickname probably. Because of this mixing

16 vehicle, they called him "Mikser," and that indicated

17 that it was most probably this particular Zoran

18 Vukovic.

19 Q. Last question referring to the combat order

20 you have in front of you. In paragraph 4, that is page

21 2, it says, "Combat disposition, readiness to attack,

22 5.00 on the 9th of July." Do you see that?

23 A. Yes, I see that sentence.

24 Q. And in paragraph 8, that is either on the

25 fourth or the fifth page of the B/C/S version, it says,

1 under the headline "Command and Communication,"

2 "Communication readiness until 3.00 on 9 July, 1992."

3 Do you see that?

4 A. Yes. Yes, I see it.

5 Q. According to your information, did the attack

6 actually start on the 9th of July, 1992?

7 A. Yes, we were attacked on the 9th of July,

8 1992.

9 Q. And how long did this attack last?

10 A. I think that the attack lasted about ten

11 days, perhaps ten days.

12 Q. And did they achieve the aim, that is,

13 deblockading Gorazde?

14 A. No.

15 Q. I would like to go now into some of the

16 details of fighting activities from the 7th to the 21st

17 of July in the area of Cerova Ravan. Do you recall

18 that there was fighting in this area?

19 A. Yes, intensive fighting, at that.

20 Q. Did the Prosecutor's office approach you

21 through letter in February 2000 to check on the details

22 of the fighting in this area?

23 A. Yes. A letter was sent to me in which

24 certain questions were put.

25 Q. And what data did you have available to check

1 on the fighting activities?

2 A. In Cerova Ravan is the dominant elevation

3 along the communication route from Osanice to Gorazde,

4 and few forces are needed to man that area. The Serb

5 forces attacked there, and through intensive fighting

6 they wanted to take this dominant elevation. We tried

7 for about ten days to resist and to make it impossible

8 for them to penetrate the area and to take the

9 elevation; however, on the 19th we had to leave this

10 combat position. Then the Serb forces took it.

11 Q. But my question was: What data did you have

12 available to find that out? Did you check any

13 documents from the Bosnian army, or how could you check

14 the details?

15 A. Well, we received data, primarily through

16 scout groups, through observing the area, where we saw

17 that forces were being grouped, that traffic was

18 intensified, both in terms of military and civilian

19 vehicles. In this area that led to Cerova Ravan we

20 noted a bulldozer which was widening the existing road,

21 which was sufficient indication to us that an attack

22 was being prepared against our combat position, which

23 had already been at the time at Cerova Ravan.

24 Q. Before we go into the actual location, did

25 you find any information that the Zaga unit was

1 involved in the fighting at Cerova Ravan?

2 A. At that moment I did not know which units

3 were fighting against us, or rather that were attacking

4 us. However, later I received information from

5 different sources that the Zaga Detachment also took

6 part in this attack.

7 Q. And this attack lasted from which date to

8 which?

9 A. I said that I think all of it was over by the

10 19th, when we withdrew. And they, that is to say the

11 Serb forces, reached Cerova Ravan, this elevation, and

12 there was no fighting after that.

13 Q. Can you please show us now the exact location

14 on the map? Can you show us first Cerova Ravan?

15 A. Cerova Ravan is on the right bank of the

16 Drina River, opposite Osanice, and it dominates this

17 area towards Gorazde.

18 Q. Is there also a hill with the name Gradina in

19 this area? Can you show this.

20 A. Yes, Gradina is a hill that starts straight

21 from the Drina and goes towards Cerova Ravan.

22 Q. This hill, is this hill of any importance,

23 strategical importance?

24 A. For us it was not because it was behind our

25 combat positions. It did not have any strategic

1 importance.

2 Q. Who controlled this Gradina hill?

3 A. The Gradina hill was under the control of

4 Serb forces.

5 Q. Can you tell us how many roads are leading to

6 Cerova Ravan, and can you explain to us where the roads

7 are.

8 A. There are a few roads that were built and

9 that lead to Cerova Ravan. One of them, and that is

10 the main road, is the one that goes from Foca via

11 Josanica, Cvilina, Radovici, Bavcici, Sorlak, and

12 reaches Gosticaj, or rather Cerova Ravan. The other

13 road is the following: Foca, Josanica, and then it

14 goes towards Preljuca, which was at that time under

15 Serb force control. This road was being widened at the

16 time, and again it goes to Gosticaj and Cerova Ravan.

17 Before the war a road was built between Foca,

18 Josanica and Cvilina, underneath Radovici, that is to

19 say, by the Drina River, towards Gradina, Gabelici

20 Potok stream, and then one could reach the road that

21 led to Sorlaci and again one could reach Cerova Ravan.

22 I just wish to point out that there is an

23 asphalt road from Foca to Josanica. It's a narrow road

24 but it's asphalt. Also Foca, Dragocava, Godijeno,

25 Slatine, Preljuca, that part, that section, was later

1 linked up also and it also leads to Cerova Ravan. It

2 is also narrow but it is an asphalt road as well, the

3 one that goes to Slatine.

4 JUDGE MUMBA: Counsel, it is time for a

5 break.

6 MS. UERTZ-RETZLAFF: Oh, yes. Thank you.

7 JUDGE MUMBA: We shall rise and continue the

8 proceedings at 11.30.

9 --- Recess taken at 11.03 a.m.

10 --- On resuming at 11.30 a.m.

11 JUDGE MUMBA: Yes. We'll proceed.

12 Counsel, while you are questioning the

13 witness and trying to cover the evidence of alibi,

14 could you be putting the statements, the contents of

15 the statements, to the witness so that the Trial

16 Chamber is aware of what the statements contain,

17 because we don't have the statements and we are unable

18 to guide counsel as to what is relevant and what is not

19 relevant.

20 MS. UERTZ-RETZLAFF: The problem is that the

21 witness does not know the statements himself --

22 JUDGE MUMBA: No. Yes, it's you. It's you,

23 when you get the information from the statement. For

24 instance, "The information from the Defence is as

25 follows, what do you say to that," that type of

1 questioning.

2 MS. UERTZ-RETZLAFF: Yes, but it's only about

3 locations. At the end I will put a few questions

4 related to the witnesses, the alibi witnesses, such as

5 how long would you need, and those things.

6 JUDGE MUMBA: Okay.

7 JUDGE HUNT: The problem that we're having,

8 or at least I am having is that I have no idea what it

9 is you're seeking to meet so this evidence just goes

10 straight over top of my head. If I knew that it was

11 asserted by the Defence that Mr. Kunarac was at a

12 particular place, then we will understand, or at least

13 I will understand why you are asking the questions of

14 this witness about what happened somewhere else. Do

15 you understand?

16 MS. UERTZ-RETZLAFF: Yes, but the witness had

17 already mentioned that the Zaga unit was involved in

18 this particular area.

19 JUDGE HUNT: That's what he says, but we

20 don't know what it is you're seeking to meet by way of

21 alibi. It just means nothing, nothing to me anyway,

22 what this evidence relates to. If we knew what it is

23 you're trying to meet, we would be able to follow what

24 the significance of this evidence is.

25 MS. UERTZ-RETZLAFF: Yes, but first I have

1 to --

2 JUDGE HUNT: If you won't help me, it's just

3 too bad. I've asked you to help me. If you can't,

4 just say so.

5 MS. UERTZ-RETZLAFF: Your Honour, you will

6 see where the question leads to and what the evidence

7 of the Defence will be, but at first I have to let the

8 witness explain the roads and then I will come to the

9 questions related to the roads and the alibi.

10 JUDGE MUMBA: All right, counsel. As you

11 please.

12 MS. UERTZ-RETZLAFF:

13 Q. Witness, will you please return back to the

14 map. You have pointed out to us the various roads that

15 lead to Cerova Ravan. How many roads are there all

16 together?

17 A. There are three main roads.

18 Q. Would you please tell us how long it takes to

19 get from Cerova Ravan on these various roads to Foca?

20 Can you point out the road you're talking about and

21 tell us how long it takes.

22 A. If you take the road Foca-Slatine, so the

23 road that goes from Foca-Godina-Slatine-Preljuca-Cerova

24 Ravan, you can get there in two hours. The road

25 Foca-Josanica-Preljuca-Cerova Ravan, you can get there

1 in an hour and a half. Along the road

2 Foca-Josanica-Cvilina via Bavcici and Sorlaci to Cerova

3 Ravan also, as well as the roads that join this road

4 near Cvilina, you can also get there in an hour and a

5 half. I am talking about travelling with a motor

6 vehicle.

7 Q. Did the Serbs at that time have motor

8 vehicles, and were they used on these roads?

9 A. I'm talking about the road via Radovica,

10 Plavcici, and Gosticaj, towards Cerova Ravan, on that

11 road we saw that throughout the conflict there was

12 traffic.

13 Q. Were these roads you mentioned under fire by

14 the Muslim side at that time?

15 A. We didn't have weapons to cover that road.

16 Q. You mentioned the bulldozer working on one of

17 the roads. Where was the bulldozer working? Can you

18 point that out.

19 A. It was working on the part from Gosticaj to

20 Cerova Ravan, in the direction of Sorlaci.

21 Q. Why was it working there?

22 A. I think they were widening the road, because

23 they had brought self-propelled artillery weapons which

24 helped them to take Cerova Ravan.

25 Q. Could Serb vehicles pass along this working

1 bulldozer?

2 A. As far as we could see, both when it was

3 standing still and when it was moving, traffic still

4 went on.

5 Q. When the Defence argues that there was a

6 landslide on this particular road, or any of these

7 other roads you have pointed out, what can you say to

8 this?

9 A. I do not know that there was a landslide or

10 that the road was blocked.

11 Q. What were the weather conditions, as far as

12 you remember, at that time? Was there heavy rain so

13 that a landslide could have closed the road?

14 A. As far as I can remember, the weather

15 conditions were mostly good. It was sunny.

16 Q. If the accused Kunarac argued that he was not

17 able in this particular time to get away from Cerova

18 Ravan or Gradina hill to Foca at all because of a

19 landslide and the roadblock, what would you say?

20 A. I think that there was never an obstacle on

21 the road that would prevent someone from getting to

22 Foca.

23 Q. On any of these roads you have pointed out?

24 A. On any of the roads, and I think that the

25 Serbian army would not allow a road to be blocked

1 because they had to bring in materiel, equipment, and

2 soldiers.

3 Q. I'm not referring to blockade of a road by

4 soldiers; I'm referring to a landslide blocking the

5 road.

6 A. I was talking about a block caused by a

7 landslide, and also about the fact that the Serb army

8 would not allow the road to be blocked in any way

9 because they had to use the road to bring in equipment,

10 materiel, and men.

11 Q. Yes, thank you. You can sit down, please.

12 Even if the main road had been blocked, would

13 Kunarac have an alternative route to get to Foca within

14 two hours, at the most?

15 A. Yes, two hours at the most. He would have

16 been able to get there, because there are alternative

17 routes, dirt roads through villages that had been built

18 in that area.

19 Q. You have mentioned that according to your

20 memory, this fighting, both mentioned in the attack

21 order and also now in relation to Cerova Ravan, ended

22 on the 19th. Do you know whether there was fighting

23 between the 20th and the 22nd?

24 A. I think that there was no more intensive

25 fighting, but there was shooting on both sides.

1 Q. In which area?

2 A. In the area of Preljuca, Cerova Ravan, and on

3 another location where we had established a defence

4 position.

5 Q. Do you know anything about Zaga's unit during

6 the time period from the 20th to the 26th of July,

7 1992?

8 A. No.

9 Q. Do you recall any fighting in Jabuka?

10 A. Jabuka was outside our zone of

11 responsibility, and we didn't know.

12 Q. Can you show where Jabuka is on the map,

13 please.

14 A. Yes. Jabuka is on the road communication

15 leading from the main road, from Ustikolina, through

16 Perucica, Prevlje, and the wider region of Jabuka.

17 This is it [indicates]. And there are several villages

18 here.

19 Q. Did you draw a road, the road connections,

20 into the map, and can you show us the roads, the

21 connection between Jabuka and Foca?

22 A. Yes. The blue line shows the road leading to

23 Jabuka and going on toward Modro Polje. This is a

24 narrow and partially asphalted road.

25 Q. And how long would it take to drive from

1 Jabuka over this road to Foca?

2 A. From Jabuka to Foca, I think you could get

3 there in about an hour with a motor vehicle.

4 Q. Was the road under fire from the Muslim side,

5 or were there any other obstacles on this road?

6 A. There was no fire, because we were unable to

7 operate.

8 JUDGE MUMBA: Yes, Mr. Prodanovic?

9 MR. PRODANOVIC: [Interpretation] Your Honour,

10 the witness said that he did not know what happened in

11 Jabuka, in answer to the Prosecutor's question, so I

12 don't know why this line of questioning, because the

13 witness said that the army of Bosnia and Herzegovina

14 was cut off from Jabuka, so he didn't know, nor could

15 he explain what went on there. And now he's being

16 asked whether the road was under fire.

17 MS. UERTZ-RETZLAFF: The witness has just

18 answered my question. He has said the Bosnian army did

19 not have the weapons to do that.

20 JUDGE MUMBA: You understood what counsel was

21 saying? Because the witness did say Jabuka was outside

22 the operation zone, so how did he know what was going

23 on? How could he have known?

24 MS. UERTZ-RETZLAFF:

25 Q. Witness, how do you know?

1 A. I spoke only about the units of the Eastern

2 Bosnia Operative Group, later the 81st Division, and we

3 did not have any combat operations conducted by us in

4 this area. I'm talking about our units. And in this

5 area probably there were units of the -- what was later

6 called the 1st Corps of the army of Bosnia and

7 Herzegovina.

8 Q. And do you have any information about these

9 units?

10 A. Very little.

11 Q. Do you know anything about their equipment

12 and the access to artillery?

13 A. No.

14 Q. Okay. Thank you, please.

15 Let us now move to another field of

16 questions. How many people lived in Foca before the

17 war?

18 A. As far as I can remember, about 40.000.

19 JUDGE MUMBA: Counsel, is that Foca

20 municipality?

21 MS. UERTZ-RETZLAFF: Foca municipality, yes.

22 Q. Foca municipality.

23 A. Yes.

24 Q. Can you tell us something about the ethnic

25 composition of these 40.000 persons?

1 A. In the area of the municipality of Foca there

2 were about 40.000 people. As far as I know, there were

3 about 22.000 Bosniak Muslims, about 18.000 Serbs, and

4 the rest were others. I don't know how many there

5 were.

6 Q. Were there particular Muslim neighbourhoods

7 and Muslim villages in the Foca municipality?

8 A. Yes. There were Muslim villages and Muslim

9 areas of town.

10 Q. What happened to these Muslim areas during

11 the war?

12 A. As far as I know, all the villages were set

13 on fire, they were destroyed, and the inhabitants were

14 expelled or taken away somewhere or killed.

15 Q. What happened to the Muslim population from

16 April to, let's say, September 1992?

17 A. The Bosniak Muslim population in the

18 municipality of Foca fled or was killed or deported

19 from the area of the Foca municipality.

20 Q. While you were in Sadba, did you find bodies

21 in the Drina River? You have to reply verbally. We

22 cannot see when you're not -- we cannot hear when

23 you're not --

24 JUDGE MUMBA: Mr. Prodanovic, before the

25 witness answers, yes?

1 MR. PRODANOVIC: [Interpretation] Your Honour,

2 the bodies have no connection with these men who are

3 accused here. We received the documents from the OTP

4 where bodies of Serb nationality turned up in Gorazde,

5 and this line of questioning could go on forever. So I

6 think that this line of questioning is not relevant.

7 It might be relevant in another case, but in my

8 opinion, not in this case.

9 JUDGE MUMBA: The Prosecution?

10 MS. UERTZ-RETZLAFF: Your Honour, we are

11 talking about attack on the Muslim population, Article

12 5 charges, and for this it is relevant what happened to

13 the Muslim population of Foca. And this witness

14 investigated bodies floating in the river, and I think

15 the relevance is quite obvious.

16 JUDGE HUNT: Only if they happen to be Muslim

17 bodies, isn't it?

18 MS. UERTZ-RETZLAFF: Yes, Your Honour.

19 JUDGE HUNT: Is that where you're leading

20 us?

21 MS. UERTZ-RETZLAFF: Yes, we are going this

22 way.

23 JUDGE MUMBA: Yes. We are interested to know

24 how the identification was done.

25 MS. UERTZ-RETZLAFF: Yes.

1 Q. Did you find bodies and did you investigate

2 bodies floating in the River Drina?

3 A. Yes. We found quite a lot of bodies from

4 Osanice to Mravinac.

5 Q. Where did the bodies come from? Is this area

6 downstream Foca?

7 A. Yes.

8 Q. Did you write reports about your findings?

9 A. As far as I was able to do that, I did.

10 MS. UERTZ-RETZLAFF: I would like to

11 introduce four exhibits. The first one -- these

12 reports should be on everybody's desk, but I would like

13 to show it now to the witness. It's a report dated

14 28th June 1992. Would you please give this to the

15 witness.

16 JUDGE MUMBA: When was this report given to

17 the Defence, Counsel?

18 MS. UERTZ-RETZLAFF: Together with the

19 statement. I don't recall, but it's quite some time

20 ago. It was attached to the statement of the witness,

21 and they got it -- oh, I just see it's the 20th of

22 March that it was given to them.

23 JUDGE MUMBA: All right.

24 MS. UERTZ-RETZLAFF:

25 Q. Would you please look at the report dated

1 28th June, 1992. Is this a report you made?

2 A. Yes.

3 MS. UERTZ-RETZLAFF: Can we enter this into

4 evidence?

5 THE REGISTRAR: [Interpretation] This document

6 will be marked Prosecution Exhibit 225.

7 JUDGE MUMBA: Any objection, Mr. Prodanovic?

8 MR. PRODANOVIC: [Interpretation] No, Your

9 Honour.

10 JUDGE MUMBA: The other counsel?

11 MR. KOLESAR: [Interpretation] No, Your

12 Honour.

13 JUDGE MUMBA: Mr. Jovanovic, Ms. Lopicic?

14 MS. LOPICIC: No, Your Honour.

15 MS. UERTZ-RETZLAFF:

16 Q. Are you familiar with homicide investigation?

17 A. I did not understand your question.

18 Q. In your police work, did you ever have to

19 investigate murder cases or cases involving dead

20 bodies?

21 A. Yes.

22 Q. And what did you do when you were informed

23 about the bodies listed here in your report dated 28th

24 June, 1992? How did you investigate this?

25 A. Mostly we tried to identify the bodies, and

1 in some cases we found documents showing who the person

2 was. In other cases we described the body with all the

3 characteristics that could later serve for purposes of

4 identification.

5 Q. You have listed in your report 16 bodies. In

6 some of these cases you have found out the identity of

7 these persons. Those persons you found out the

8 identity, were they all Muslims?

9 A. In every case when I was present, when a body

10 was retrieved from the River Drina, there was a medical

11 technician with me. We did not have a doctor. And on

12 the basis of the fact that Muslims are circumcised, he

13 would say that most probably these were Muslims.

14 Q. Did the bodies occasionally have clothing

15 that indicates that it was a Muslim?

16 A. We could not say on the basis of clothing

17 because we wore more or less similar clothing. The

18 main indication that these were Muslims was the fact

19 that they were circumcised.

20 Q. It is not noted in all of these 16 cases.

21 What is the reason for not writing it down?

22 A. Because it was normal, because Bosniaks

23 carrying weapons in the area of Muslims were not so

24 numerous, and it would not be the Serbs coming down the

25 Drina.

1 Q. What was the cause of the death of these 16

2 persons you have listed?

3 A. In most cases they were entry/exit wounds

4 around the area of the chest.

5 MS. UERTZ-RETZLAFF: Have I entered this into

6 evidence already?

7 JUDGE MUMBA: Yes. It has a formal number.

8 MS. UERTZ-RETZLAFF:

9 Q. I would like to refer you to the bodies

10 listed under 11 to 13. Do you see these? But please

11 don't say the names of these bodies. Can you tell us

12 to which incident these bodies relate? Did you learn

13 anything about them?

14 A. These bodies are connected in my mind to the

15 event of the killing of Bosniaks in the village of

16 Trnovaca, in Brod, on the bank of the Drina, near Foca.

17 Q. How did you know that? What information did

18 you get in relation to this killing?

19 A. A person who was in the group to be executed,

20 the group that was executed, survived, and he came down

21 the River Drina to Osanice, and I interviewed him

22 later.

23 Q. And did he tell you what happened?

24 A. Yes. He told me, that is, person number 11

25 in this document, he told me that one day, a day or two

1 before he arrived in Osanice, members of the Serbian

2 army came to his village in Trnovaca and collected all

3 the Muslims, Bosniaks, all the men, took them to the

4 bridge in Brod, and there they shot them one by one.

5 He jumped off the bridge, swam downstream and arrived

6 in the free territory, where he told us this

7 information.

8 Q. Yes. Thank you. The witness --

9 JUDGE MUMBA: Excuse me, counsel. This

10 person is the one named in number 11 of this report.

11 MS. UERTZ-RETZLAFF: Yes. In number 11 there

12 are two names; one of the body and one of the person is

13 also mentioned. In number 12 he is mentioned as the

14 one who identified these bodies.

15 JUDGE MUMBA: All right.

16 MS. UERTZ-RETZLAFF: I do not want to mention

17 the name because it relates to Witness 93, actually.

18 JUDGE MUMBA: Yes. That's all right.

19 MS. UERTZ-RETZLAFF: Could the witness now be

20 shown his report, dated 1 July 1992.

21 JUDGE MUMBA: Counsel, since you are saying

22 that these names can't be mentioned, this document,

23 should it be under seal, then?

24 MS. UERTZ-RETZLAFF: Yes, please.

25 JUDGE MUMBA: Okay.

1 MS. UERTZ-RETZLAFF: The report is entered

2 into evidence as well.

3 JUDGE MUMBA: Can we have the number, Madam

4 Registrar?

5 THE REGISTRAR: [Interpretation] The report

6 dated 1 July 1992 will be marked Prosecution Exhibit

7 226.

8 JUDGE MUMBA: Any objection, counsel?

9 MR. PRODANOVIC: [Interpretation] No, Your

10 Honour.

11 MR. KOLESAR: [Interpretation] No, Your

12 Honour.

13 MS. LOPICIC: No, Your Honour.

14 JUDGE MUMBA: Thank you.

15 MS. UERTZ-RETZLAFF:

16 Q. Is this a report you made in relation to four

17 bodies?

18 A. Yes.

19 Q. Under paragraph 2, there it's said that there

20 may have been a certain Kulasevic. Would that be a

21 Muslim?

22 THE INTERPRETER: The witness' microphone is

23 not turned on.

24 JUDGE MUMBA: Can the usher please assist to

25 turn on the microphone of the witness.

1 MS. UERTZ-RETZLAFF:

2 Q. Can you repeat your answer?

3 A. Yes. Kulasevic is a Muslim, a Bosniak.

4 Q. It says in this paragraph, "Further

5 identification of the body is in progress." Did you

6 later actually identify this body?

7 A. No.

8 MS. UERTZ-RETZLAFF: Then I would like to

9 have the witness shown his report dated 8 July 1992.

10 Q. Did you write the report now dealing with ten

11 bodies?

12 A. Yes.

13 Q. It includes two women. This time you said

14 that you identified the ethnicity of the men, but how

15 did you identify the ethnicity of the women in this

16 report; could you say?

17 A. I'm not sure. I did not actually state

18 whether these women were Bosniak Muslims or Serb

19 women. But in one case it was a person whom everyone

20 knew was a Muslim woman but they did not know her

21 details.

22 Q. I have a question in relation to your

23 finding. In paragraph 9, it says, "6 June 1992, the

24 body of a woman ..." Do you see this paragraph? It's

25 the third paragraph from the bottom.

1 A. Yes, I see that.

2 Q. In your finding it says, "Shot with three

3 bullets, most likely while kneeling." How could you

4 find that out?

5 A. The position of the wound, the exit and the

6 entry, it could not have been a person who was standing

7 up; that is to say, the killer was taller than the

8 victim and standing above the victim.

9 MS. UERTZ-RETZLAFF: Finally I would like to

10 have shown to the witness the report dated 16 July

11 1992.

12 JUDGE MUMBA: What about this one? Have we

13 got the number yet, the one the witness has just

14 discussed?

15 MS. UERTZ-RETZLAFF: Do we have a number?

16 THE REGISTRAR: [Interpretation] The report

17 dated 8 July 1992 will be marked Prosecution Exhibit

18 227.

19 JUDGE MUMBA: Any objection?

20 MR. PRODANOVIC: [Interpretation] No, Your

21 Honour.

22 MR. KOLESAR: [Interpretation] No, Your

23 Honour.

24 MS. LOPICIC: No, Your Honour.

25 JUDGE MUMBA: Thank you.

1 MS. UERTZ-RETZLAFF: Can the witness now be

2 shown the report dated 16 July 1992.

3 Q. Do you have it?

4 A. Yes. Yes.

5 Q. Did you write this report as well?

6 A. Yes.

7 MS. UERTZ-RETZLAFF: I would like to enter

8 this into evidence as well.

9 JUDGE MUMBA: Any objection, counsel, to the

10 report dated 16 July 1992?

11 MR. PRODANOVIC: [Interpretation] No, Your

12 Honour.

13 JUDGE MUMBA: Mr. Kolesar?

14 MR. KOLESAR: [Interpretation] No, Your

15 Honour.

16 JUDGE MUMBA: Ms. Lopicic?

17 MS. LOPICIC: No, Your Honour.

18 JUDGE MUMBA: Can we have the number?

19 THE REGISTRAR: [Interpretation] The report

20 dated 16 July 1992 will be marked Prosecution Exhibit

21 228.

22 MS. UERTZ-RETZLAFF:

23 Q. If you look at the document, in the second

24 paragraph, what can you tell us about this body?

25 A. Yes. This is the second paragraph. This is

1 a body that was in the stage of saponification [sic],

2 that is to say, where there is the most muscle but one

3 can see the wounds --

4 Q. And what --

5 A. -- of the body, that is.

6 Q. What was the cause of death?

7 A. As far as we could see, there was a fracture

8 of the skull.

9 Q. What else did you find that was particular

10 about this body?

11 A. He had been tied.

12 Q. Were these the only bodies you retrieved that

13 were floating in the Drina River during this time

14 period, or were there many bodies, many more bodies?

15 A. There were other bodies that we didn't manage

16 to retrieve because the Drina was oscillating all the

17 time.

18 MS. UERTZ-RETZLAFF: With the help of the

19 usher I would like to have the witness shown his report

20 dated 25 October 1992.

21 Q. Did you write this report?

22 A. Yes.

23 MS. UERTZ-RETZLAFF: Can this report be

24 entered into evidence?

25 JUDGE MUMBA: Any objection?

1 MR. PRODANOVIC: [Interpretation] No, Your

2 Honour.

3 JUDGE MUMBA: Mr. Kolesar?

4 MR. KOLESAR: [Interpretation] No, Your

5 Honour.

6 JUDGE MUMBA: Ms. Lopicic?

7 MS. LOPICIC: No, Your Honour.

8 JUDGE MUMBA: Can we have the number,

9 please?

10 THE REGISTRAR: [Interpretation] The report

11 dated 25 October 1992 will be marked Prosecution

12 Exhibit 229.

13 MS. UERTZ-RETZLAFF:

14 Q. What is this report about?

15 A. This report concerns a group primarily of

16 women, Muslim women, who, on the 23rd of October, 1992,

17 were expelled from the area of Foca to the liberated

18 territory of Gorazde.

19 Q. What ethnicity were these people?

20 A. Bosniaks, Muslims. One person was Boris

21 Istenic. I think he was a Croat.

22 Q. These persons, were they all civilians, and

23 where did they come from?

24 A. They were all civilians. They came from

25 different villages in the area of the municipality of

1 Foca.

2 Q. Were these civilians exchanged for anybody?

3 A. No, there was no exchange. They were simply

4 brought in on buses to Osanice and then they were

5 released and allowed to go to our lines.

6 Q. Was this the only group of people you

7 received during that time, or were there more groups?

8 A. I think there was one more group.

9 Q. Did you interview these women coming into

10 your territory?

11 A. Yes, I personally interviewed them, and

12 others did as well.

13 Q. What had happened to these women while in

14 Foca?

15 A. They said that from their houses they were

16 taken to the hall of the physical education centre,

17 Partizan, that is in Foca; that they stayed there for a

18 certain period of time without food, water and basic

19 living conditions.

20 Q. What else did they tell you about what

21 happened especially to the women among them?

22 A. Younger women said that they had been raped.

23 Q. Did they say by whom?

24 A. I did not know some of the men but they

25 mentioned nicknames.

1 Q. You have listed several nicknames in your

2 report. It's in the paragraph following the list of

3 names, and you have listed here Tuta, Klanfa, Gica. Do

4 you know Tuta, and can you tell us who that was?

5 A. I knew Tuta. That is Janko Janjic, nicknamed

6 Tuta, from Foca. Klanfa I did not know. Gica I knew.

7 That is Zdravko Vasiljevic, from Brod.

8 Q. Yes. Thank you. This is about the reports.

9 You said that before the war there were about 22.000

10 Muslims living in Foca municipality. Can you say how

11 many were left in, let's say, end of the year 1992?

12 A. According to the information that we received

13 from the interviews with persons who were coming from

14 the territory of Foca, there were about ten Muslims who

15 had remained in Foca. Among them I remember that

16 mention was made of Nedzad Njuhovic, who was there

17 during the war, and I think that he lives in Foca until

18 the present day. The rest were women that were

19 married, that had mixed marriages, who were married to

20 Serbs.

21 Q. Yes. Thank you.

22 MS. UERTZ-RETZLAFF: The Prosecution --

23 JUDGE HUNT: Are there any of these names in

24 the Bosnian Serbo-Croatian version, witnesses or other

25 persons referred to in the evidence here?

1 MS. UERTZ-RETZLAFF: No, Your Honour, but

2 it's only -- when you look at the original, you can see

3 that it's females and the location where they came from

4 in Foca, but it's not a witness.

5 JUDGE HUNT: Thank you.

6 MS. UERTZ-RETZLAFF: The Prosecution has no

7 further questions of this witness.

8 JUDGE MUMBA: Thank you.

9 Cross-examination of the witness. Yes,

10 Mr. Prodanovic.

11 MR. PRODANOVIC: [Interpretation] Yes, Your

12 Honour.

13 Cross-examined by Mr. Prodanovic:

14 Q. Before I put any questions, I would like to

15 wish the witness a good day.

16 A. Good day to you.

17 Q. I'm not going to put too many questions, and

18 the questions will be easy.

19 A. Very well.

20 Q. Do you remember how many statements you made

21 to the investigators of the International Tribunal?

22 A. I think it was one or two statements.

23 Q. Do you agree that there were two, one in 1996

24 and the other in 1997?

25 A. Probably.

1 Q. At whose initiative did you make these

2 statements?

3 A. What do you mean at whose initiative?

4 Q. Who asked you to make these initiatives [as

5 interpreted]? Did somebody asked you to do it or did

6 you say that you wanted to?

7 A. I was asked to do this because of the

8 documents that I sent to my superior headquarters.

9 Q. You said today during your testimony --

10 actually, you didn't say this, but I'm going to remind

11 you of something. In February this year did you talk

12 to my learned colleagues, Peggy Kuo and Hildegard

13 Uertz-Retzlaff, in Sarajevo, this year?

14 A. I did not talk to anyone in Sarajevo in this

15 way this year.

16 Q. Did you have a meeting with them?

17 A. I think I had a meeting in Gorazde, but I

18 don't remember exactly when this was.

19 Q. We have an internal memorandum here. It

20 doesn't say here where the conversation took place, but

21 the most important thing is whether you talked or not,

22 and it's really not important whether it was in

23 Sarajevo or Gorazde now.

24 You said today that the investigators of the

25 Tribunal, at the beginning of April this year, and

1 through the Federal Ministry of Defence of Bosnia and

2 Herzegovina, had some questions for you and you

3 answered them.

4 A. Yes. Yes, I answered them.

5 Q. Do you remember these questions?

6 A. Well, the questions were primarily related to

7 Cerova Ravan.

8 Q. Do you remember the answers?

9 A. I gave the answers.

10 Q. I'm going to jog your memory.

11 MR. PRODANOVIC: [Interpretation] Although my

12 learned colleague, the Prosecutor, did put some

13 questions in this regard, the Defence wishes to tender

14 this document into evidence, and before that we are

15 going to ask the witness whether these were his

16 answers.

17 JUDGE MUMBA: Which document is that? Which

18 document do you wish to -- do you intend to tender into

19 evidence?

20 MR. PRODANOVIC: [Interpretation] Your Honour,

21 these are these additional questions that the witness

22 answered. We got this from our colleagues from the

23 Prosecutor's office. The witness, through the Ministry

24 of Bosnia and Herzegovina, that is to say, the Federal

25 Ministry of Defence of Bosnia-Herzegovina, clarified

1 certain questions. The OTP required these

2 clarifications. He provided them. And we would like

3 to tender this as a Defence Exhibit. Before that I

4 would like to remind the witness of the answers he

5 gave.

6 JUDGE MUMBA: Can the document be shown to

7 the witness? Because I'm not clear whether it was the

8 Prosecutor's notes or the government of BH's or it was

9 an internal -- question/answer, question/answer

10 document. Can the Prosecution also see it so that we

11 can get assistance as to which type of document?

12 MS. UERTZ-RETZLAFF: Your Honour, I know what

13 Mr. Prodanovic is showing the witness.

14 JUDGE MUMBA: What is it?

15 MS. UERTZ-RETZLAFF: It is a document that we

16 received from the Bosnian government. It relates to

17 all the roads in this Cerova Ravan area. And I think

18 the witness gave these answers to someone in the

19 Bosnian government.

20 MR. PRODANOVIC: [Interpretation] There's

21 nothing -- could you just give this to me, please.

22 JUDGE MUMBA: Yes. We can have it numbered

23 as a Defence document.

24 THE REGISTRAR: [Interpretation] This document

25 will be marked Defence Exhibit D70.

1 JUDGE MUMBA: Under seal?

2 MR. PRODANOVIC: [Interpretation] Yes, Your

3 Honour. You asked me?

4 JUDGE MUMBA: Yes, I asked you, because it's

5 your document. Do you want it under seal? Okay.

6 MR. PRODANOVIC: [Interpretation]

7 Q. Questions were asked about whether there was

8 any fighting around Cerova Ravan. Is this your answer:

9 "In the period from the 7th until the 21st of

10 July, 1992, at the location of Cerova Ravan, there was

11 fighting, or rather the members of paramilitary SDS

12 formations and the army of Republika Srpska carried out

13 an attack and launched combat operations against the

14 positions of the army of Bosnia-Herzegovina at Cerova

15 Ravan, and took these."

16 You said today that the army of Bosnia and

17 Herzegovina retreated from Cerova Ravan on the 19th of

18 July. Did the members of the army of Republika Srpska

19 come on that same day, or was it a day or two later,

20 when they saw that you had withdrawn? Do you allow for

21 the possibility of them reaching this elevation on the

22 21st of July?

23 A. I do allow for that possibility, that by the

24 act of withdrawal of our units, the troops of the army

25 of Republika Srpska did not reach the elevation

1 immediately. I don't believe that this would be

2 standard military practice either.

3 Q. Thank you. My next question: According to

4 your information, was Dragoljub Kunarac with his

5 group? Your answer was: "According to the information

6 provided --"

7 THE INTERPRETER: Could the speaker please

8 slow down. The interpreters do not have this document.

9 JUDGE MUMBA: Counsel, can you slow down?

10 The interpreters don't have this document, and the

11 witness should wait after the counsel's question,

12 pause, and then answer. The interpreters have to

13 follow.

14 THE INTERPRETER: Could a copy please be

15 placed on the ELMO.

16 JUDGE MUMBA: Can we have an extra copy to be

17 placed on the ELMO so the interpreters can see?

18 MR. PRODANOVIC: [Interpretation] We gave

19 enough copies.

20 JUDGE MUMBA: Just place it on the ELMO.

21 Then it will go back to the registrar.

22 THE REGISTRAR: [Interpretation] This document

23 has been tendered under seal, and that is why it would

24 be better not to put it on the ELMO.

25 JUDGE MUMBA: Yes. Actually, I was going

1 through this document, Mr. Prodanovic. I don't see any

2 protected names or information. So is it really

3 necessary to have it under seal, and what is your

4 reason? Because this evidence was given viva voce

5 anyway, most of it.

6 MR. PRODANOVIC: [Interpretation] You are

7 right, Your Honour. We withdraw that request of ours.

8 JUDGE MUMBA: Yes. So it will be an open

9 document, so it can be put on the ELMO.

10 MR. PRODANOVIC: [Interpretation] So I am

11 going to repeat my question. I'm going to act

12 according to your instructions.

13 JUDGE MUMBA: Yes.

14 MR. PRODANOVIC: [Interpretation]

15 Q. My second question was -- or rather your

16 answer to another question was:

17 "According to the information that we have

18 available, Mr. Subasic, Dragoljub Kunarac, with the

19 members of his unit, took part in the struggle for

20 Cerova Ravan and the fighting for Cerova Ravan."

21 Was that your answer?

22 A. Yes.

23 Q. Thank you. Your next answer was:

24 "Gradina is an elevation that is between

25 Josanica and Cerova Ravan, and it had almost no

1 strategic importance in the mentioned period, just like

2 during the war."

3 A. Yes. Yes. That is from our point of view.

4 Q. In your opinion, was it important from the

5 Serb point of view?

6 A. No, none whatsoever, because the army of

7 Republika Srpska passed Gradina and reached the area

8 that was more dominant than Gradina.

9 Q. Thank you. Your next answer in response to

10 the question that was put to you was:

11 "In the mentioned period, at the location of

12 Cerova Ravan, there was one machine, a bulldozer, with

13 which the members of the aggressor formations cleared

14 or broke through a road, according to their needs, and

15 from the direction of Foca they brought a

16 self-propelled piece of artillery that was used in the

17 attack on Cerova Ravan, and it contributed to the fact

18 that they took it."

19 Is that your answer?

20 A. Yes, that is my answer.

21 Q. Did you also answer the following:

22 "The following roads lead to Cerova Ravan:

23 Foca, Josanica, Cvilina, Radanovici, Gabelici, Bavcici,

24 Sastavci, Gabela Kosa. This same road sometime during

25 the month of July 1992 was linked up with the road that

1 leads from Gorazde to the village of Zubovici. Along

2 this road Foca may be arrived at between one hour and

3 30 minutes."

4 Was that your answer?

5 A. Yes.

6 Q. Your next answer. Foca, Josanica, Cvilina,

7 Kozatine, Gabela Kosa, the village of Gabelici, Cerova

8 Ravan, it also takes one hour and 30 minutes to reach

9 Foca along this road as well. Is that your answer?

10 A. Yes.

11 Q. The next answer. Foca, Josanica, Cvilina,

12 Kozatine, Gradina, which goes by the very riverbed of

13 the River Drina, to Cerova Ravan and back one may

14 arrive by the village road on foot, but to Foca one can

15 arrive by this road in one hour and 30 minutes. Is

16 that your answer?

17 A. Yes.

18 Q. The next answer. Foca, Josanica, Preljuca,

19 from this position one can arrive at Cerova Ravan in

20 about 20 minutes on foot, and back to Foca in about two

21 hours. Is that your answer?

22 A. Yes.

23 Q. Next answer. Foca, Godina, Slatine,

24 Preljuca, along with the fact that the road to Slatine

25 is an asphalt road, one can arrive at Foca in about two

1 hours. Is that your answer?

2 A. Yes.

3 Q. You said which sections of individual roads

4 were asphalt sections. These roads that go to

5 Preljuca, do they go through forests?

6 A. These are primarily roads that go through

7 forests. We call them macadam roads.

8 Q. Since you worked in this area, before the war

9 as well, what kinds of roads were these roads? We're

10 just looking at Cerova Ravan from three sides, that is

11 to say, from Cvilina, Josanica, et cetera.

12 A. These are dirt roads that were built as

13 access roads, roads that link up villages in this area

14 with the seat of the municipality.

15 Q. I was not at this particular location

16 myself. My understanding was that you can take one

17 road and go back on another road. Specifically, here

18 where the fighting took place, that is to say, by

19 Cerova Ravan, is there only one road that one takes in

20 order to reach the location where the fighting took

21 place, or are these roads linked up somehow?

22 A. I am saying what I know, and that is that

23 part of the road from Cerova Ravan to the next village

24 is one road and that is where it links up with the

25 other two roads that go to Foca; that is to say, that

1 from Cerova Ravan there is only one road that is

2 perhaps a few kilometres.

3 Q. Thank you. Furthermore, in response to a

4 question related to the weather conditions, the answer

5 was the following: In the mentioned period, from the

6 7th of July until the 21st of July, 1992, pursuant to

7 Mr. Subasic's recollection, the weather conditions were

8 favourable; there were no precipitations, rain, the

9 intensity and quantity of which would have influenced

10 the closing of these roads.

11 In the same period, at the locality of

12 Gabelici, Sastavci, there was a machine, a bulldozer,

13 and the scouts of the army of the Republic of

14 Bosnia-Herzegovina, throughout this period, registered

15 the movement of motor vehicles by the road mentioned

16 under number 1. Is that your answer?

17 A. Yes.

18 Q. Perhaps this is unimportant for you, what I'm

19 going to ask you just now, but for the Defence it is

20 important. Are you unequivocally stating that in this

21 time period the weather was stable, without any

22 precipitation?

23 JUDGE MUMBA: Before he answers, which time

24 period, counsel? The 7th to the 21st of July, 1992?

25 MR. PRODANOVIC: [Interpretation] Yes, Your

1 Honour. Yes, Your Honour, I was referring to that time

2 period, and that is the period about which the witness

3 had been questioned as well.

4 JUDGE MUMBA: Go ahead.

5 A. I am not stating this quite unequivocally

6 because it is well known that the climate is such

7 during that period of time that there can be a sudden

8 shower and then that the weather can be fine once

9 again. So I do allow for this possibility, that there

10 was some rain too.

11 Q. Thank you.

12 MR. PRODANOVIC: [Interpretation] Your Honour,

13 the Defence has the report of the hydrometeorological

14 institute which gives a survey of the weather in this

15 period, and the Defence wish to tender this into

16 evidence. This is an important piece of information

17 for the Defence and it will be referred to during the

18 Defence case before this Court at greater length.

19 These are copies in English, and the rest is in

20 Serbian/Bosnian/Croatian.

21 I do apologise. Could I have one copy

22 because I gave all the copies away. There is a

23 sufficient number of copies. May I please have the

24 English version. There's a sufficient number of

25 copies.

1 JUDGE HUNT: Mr. Prodanovic, this doesn't

2 appear to have a rubber stamp.

3 MR. PRODANOVIC: [Interpretation] Your Honour,

4 we received this report by fax only a few days ago, and

5 it refers to the area we have just been talking about.

6 I hope that the Prosecution will not challenge the

7 authenticity of this document, but if you will give us

8 some time we can obtain a stamp. We received this

9 while we were here.

10 JUDGE HUNT: I must say I've always accepted,

11 from the way in which these cases are conducted, that

12 nothing is official in Republika Srpska unless it has a

13 stamp on it. That's why I asked. It's not for me to

14 say whether the Prosecution should accept it or not. I

15 just asked you whether there was a rubber stamp on it.

16 MR. PRODANOVIC: [Interpretation] Your Honour,

17 on the first page in the B/C/S version there is a stamp

18 of the organisation which issued the report. It says

19 here that this is the Federal Weather Bureau in

20 Belgrade, and they have processed the information we

21 asked regarding Foca.

22 JUDGE HUNT: Could you just indicate which

23 part is the stamp rather than the ordinary letterhead

24 of the organisation?

25 MR. PRODANOVIC: [Interpretation] No, it's an

1 official letterhead. There is no stamp. But if it is

2 a problem, we shall take care to rectify this, of

3 course if the Prosecution raises an objection.

4 JUDGE MUMBA: The Prosecution?

5 MS. UERTZ-RETZLAFF: No, Your Honour.

6 JUDGE MUMBA: Can we have the number,

7 please?

8 THE REGISTRAR: [Interpretation] This document

9 will be marked Defence Exhibit D71.

10 JUDGE MUMBA: Yes, counsel, please proceed.

11 MR. PRODANOVIC: [Interpretation] Thank you,

12 Your Honours.

13 Q. You worked in the intelligence organ and you

14 arrived at certain information on the basis of

15 interviews with refugees. Can you tell us whether you

16 talked about Dragan Gagovic with these people?

17 A. Yes, I talked about him and about my other

18 colleagues as well.

19 Q. What information did you receive about Dragan

20 Gagovic?

21 A. In most cases the information was positive.

22 Q. And negative information, what did it refer

23 to?

24 A. Mostly it referred to the fact that he did

25 not provide sufficient protection to the people in the

1 Partizan centre and to individual Muslims in the town.

2 Q. Since you knew Dragan Gagovic well, did

3 anyone complain to you or say that they had heard that

4 Dragan Gagovic had raped someone in Foca?

5 A. I never received such information.

6 Q. As someone who worked with him and knew him,

7 do you believe that, in view of your personal knowledge

8 of him, he was prone to such behaviour?

9 A. As far as I knew him, and from what I knew

10 about him as a person, I think that he could not have

11 been a rapist.

12 Q. Thank you very much. Can you tell me with

13 respect to Dragan Gagovic, when did he start working

14 for the police?

15 A. I think it was in 1990.

16 Q. I'm asking you this because Witness FWS-48

17 said that she knew Dragan Gagovic well, that she had

18 known him since 1987 because that was when she got to

19 know him in the police when she was issued with a

20 passport. Do you still abide by your statement that

21 Dragan Gagovic joined the police in 1990, after the

22 multiparty elections?

23 A. That's a fact, and it's not open to

24 question.

25 Q. I had not intended, Mr. Osman, to ask you

1 about the weapons on both sides, but I would like to

2 put just two questions to you because you worked in the

3 police force so I would like to hear your comments.

4 MR. PRODANOVIC: [Interpretation] Before I put

5 my questions to you, I would like to ask the usher to

6 show the witness Defence Exhibit D12, for the witness

7 to look at. That is an interview with Halid Cengic

8 which was published in the weekly Ljiljan.

9 Q. Mr. Subasic, did you know Halid Cengic?

10 A. Yes.

11 Q. Can you confirm that he held a high-level

12 post in the Party for Democratic Action?

13 A. Yes.

14 Q. Is that his photograph? Would you take a

15 look, please, at the bottom.

16 A. Yes.

17 Q. Underneath the picture it says that it is the

18 Ljiljan from the 18th to the 25th of May, 1998. Would

19 you now turn to page 2. It's this column, the last

20 column, and to the journalist's question, "Foca was a

21 centre for arming people, and several thousand barrels

22 were distributed from here around Bosnia-Herzegovina,

23 from Ljubina to Srebrenica. Even Naser Oric used to

24 come to collect weapons."

25 Can you follow?

1 A. Yes.

2 Q. And his reply was, "I do not know whether it

3 was a centre but we helped different municipalities

4 around Bosnia-Herzegovina as far as we were able to."

5 Since at this time, and this refers to the

6 period 1990 -- and this will be evident from the next

7 question, I will put one more question to you -- as a

8 police centre, did you have this information available

9 then?

10 A. We did not have any official information, but

11 it was evident that those people were engaged in

12 obtaining and selling weapons.

13 Q. Can you mention any other names besides that

14 of Halid Cengic? That name is mentioned frequently and

15 is no secret.

16 A. Yes. It's Senad Sahinpasic, Saja, if that's

17 who you mean.

18 Q. Yes, that's who I meant. Would you please

19 turn the page, and there is one more question.

20 Near the bottom of the column, it says, "You

21 formed the first unit of the Patriotic League in Bosnia

22 and Herzegovina," this is the journalist's question to

23 Halid Cengic, and his reply, "On the 1st of August,

24 1990, during the defence of Focatrans, we had a platoon

25 armed with automatic weapons, a machine-gun, and a

1 mortar. Everyone had camouflage uniforms. We took an

2 oath in a mosque, putting our hands on the Koran ..."

3 and so on.

4 Did you have this information, and how would

5 you comment on what he says?

6 A. My comment would be that when I arrived in

7 Ustikolina, I did not find those weapons there. And I

8 think this gentleman is boasting, because those weapons

9 were not available to the units of the Territorial

10 Defence staff of Foca with its headquarters in

11 Ustikolina.

12 Q. You mentioned a while ago that civilians were

13 on the hill of Dub, which was above -- which overlooked

14 KP Dom and which dominated there. Can you tell us: At

15 the Sukovac elevation, were there any members, and who

16 held that elevation?

17 A. The Sukovac elevation was held by armed

18 civilians also, and as far as I know, they were

19 Bosniaks.

20 Q. Would you tell me whether they had any

21 weapons? Do you know this?

22 A. As far as I knew, they had weapons. I think

23 they had a mortar, which they did not know how to

24 handle, and so the shells would simply fall down but

25 not explode.

1 Q. Yes. Let us pass on to another topic.

2 When you were commenting on the order of the

3 7th of July, you mentioned the term "mopping up." Was

4 this a term used in the army of Bosnia and Herzegovina?

5 A. The term was used as a military term. "To

6 mop up the terrain," that was a term that we used also.

7 Q. Do you allow, since Kunarac was a member of

8 the Pioneer Engineering Unit and was trained for mines,

9 do you allow for the possibility that mopping up means

10 clearing minefields also?

11 A. No. That is usually mentioned in an order

12 when they say that such-and-such a unit will clear the

13 area of mines, obstacles and so on. I did not see this

14 in the order.

15 Q. That would be my last question. I have no

16 further questions. Thank you, Mr. Subasic.

17 A. You're welcome.

18 JUDGE MUMBA: Mr. Kolesar?

19 MR. KOLESAR: [Interpretation] Your Honour,

20 the Defence of Radomir Kovac has no questions, but I

21 would like the Trial Chamber to allow me to say

22 something before the end of today's session.

23 JUDGE MUMBA: Yes, all right.

24 Mr. Jovanovic?

25 MR. JOVANOVIC: [Interpretation] Your Honour,

1 we have a few questions, and I think we can use the

2 time that is left until the break.

3 JUDGE MUMBA: Yes. Please go ahead.

4 MR. JOVANOVIC: [Interpretation] Thank you.

5 Cross-examined by Mr. Jovanovic:

6 Q. Good day, sir.

7 A. Good day.

8 Q. I would like to talk to you a little about

9 the part of your testimony today that refers to the

10 bodies that you found in the Drina. Can you tell us,

11 to begin with, how deep in your territory, the

12 territory held by your forces, you found these bodies,

13 measuring from the front line into your territory?

14 A. From Osanice to Ustipraca [phoen].

15 Q. Because I really do not know what the

16 distances are. Can you express yourself in metres,

17 kilometres, to make it clearer to all of us?

18 A. To make it clearer to all of you, I held the

19 zone of responsibility which extended for about ten

20 kilometres, and the River Drina passed through this

21 territory. That is what I know and what I saw.

22 Q. I think that we misunderstand each other. I

23 am interested in the Drina, which crosses the front

24 line at a certain point. From that point where it

25 crosses the front line, how deep into the territory

1 where you were did you find those bodies? So I'm

2 talking about the front line to the point where you

3 found the bodies.

4 A. Yes, I understand you, but you don't

5 understand me. I covered ten kilometres as an

6 intelligence organ or security organ. Bodies were also

7 found outside my zone of responsibility.

8 Q. Very well. And that is some 30 kilometres

9 from the line?

10 A. Yes. From the demarcation line to the

11 Visegrad Lake.

12 Q. Yes. Now we understand each other.

13 I assume that because of the war situation,

14 you were able to conduct only one investigation; when a

15 body was found you went out, did whatever you did, and

16 that was the end of your investigation.

17 A. There were cases where we would find three or

18 four bodies together and we would complete our

19 investigation then and there. This was not the usual

20 kind of police investigation, because we did not have

21 the equipment we needed.

22 Q. Well, that was what I was referring to. So

23 when you went to conduct an on-site investigation, that

24 was usually the end of the story?

25 A. The end was when the body that was found was

1 buried, and information sent in writing to the

2 Territorial Defence staff in Gorazde, and that would be

3 the end.

4 MR. JOVANOVIC: [Interpretation] Thank you.

5 Your Honour, I am afraid I will not finish

6 within the time that is left before the break. My next

7 question will require a little more time and

8 explanation, so perhaps we could continue after the

9 lunch break.

10 JUDGE MUMBA: Yes. The proceedings will

11 adjourn until this afternoon at 1430 hours.

12 --- Luncheon recess taken at 1.00 p.m.

13

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19

20

21

22

23

24

25

1 --- On resuming at 2.31 p.m.

2 JUDGE MUMBA: The Defence, Mr. Jovanovic,

3 continuing with the cross-examination.

4 MR. JOVANOVIC: [Interpretation] Thank you,

5 Your Honour.

6 Q. My last question before the break was what

7 was the end, and you said the end was when the body was

8 buried and you informed the Territorial Defence of

9 Gorazde about it.

10 A. Yes.

11 Q. If I understood you correctly, because of

12 technical and other problems, your job consisted of

13 putting down in the record what had been established in

14 each particular case, whether the person was male or

15 female, whether the person had documents, and the state

16 of the body.

17 A. Yes.

18 Q. And if you were able to, you established the

19 manner of death.

20 A. Yes.

21 Q. In connection with this, this is Prosecution

22 Exhibit 227, a person was mentioned, a female person,

23 where the existence of three wounds, bullet wounds,

24 were established, or rather wounds inflicted by

25 firearms. As I was able to understand, the conclusion

1 was that the person was kneeling at the moment of

2 death.

3 A. Yes, that is what I wrote in my official

4 report because I considered that the victim was lower

5 down than the killer.

6 Q. Was the only possibility that the victim was

7 kneeling and the person who killed the victim was

8 standing over the victim?

9 A. Well, I think not, because it was shown that

10 the person had to be above the victim.

11 Q. Yes, the person had to be above the victim,

12 we agree on that, but it's not the only possibility,

13 that the person was kneeling.

14 A. In my official report I wrote down my

15 conclusions. These are not reports that had the strict

16 form according to the Law on Criminal Procedure.

17 Q. I see. So it was just your opinion.

18 A. Yes.

19 Q. Thank you. Let me now put a question to you,

20 and I will have to be very precise to help you and

21 myself. On page 58 of the record, in line 3 of today's

22 record, my learned colleague asked you, and this is an

23 interpretation not a quotation, why, in the remaining

24 16 cases, doesn't it say -- or rather on the basis of

25 what did you conclude that the bodies found were of

1 Muslim nationality, and it is not on the record. My

2 question to you would be: I cannot understand the

3 essence of your answer so could you explain it to me?

4 A. I did not write it down probably because I

5 did not expect bodies of citizens of Serbian

6 nationality to be coming from that direction.

7 Q. So it was just your opinion and your

8 expectation.

9 A. Yes.

10 Q. Would you please tell me whether you know --

11 and we are talking about the 26th of May, 1992, I

12 think, and there was fighting around Osanice at the

13 time -- do you know that on that occasion documents

14 were taken amongst which was Marko Kovac's order which

15 was shown to you? Did any incidents occur on that

16 occasion, and if they did, what incidents?

17 A. There was an armed attack by members of the

18 army of the Republic of Bosnia-Herzegovina on the

19 dominant elevation of Preljuca.

20 Q. Are you talking about the first part or the

21 second part? Is this about Osanice or about the taking

22 of the documents?

23 A. I'm talking about the taking of the

24 documents.

25 Q. Do you know that on that occasion there was

1 an incident?

2 A. I don't remember any incident.

3 Q. Not even in connection with the first part of

4 my question relating to Osanice, after your forces took

5 that position, so to say?

6 A. The position in Osanice was held by us in

7 1992 and 1995, and the Serbian army never entered

8 Osanice.

9 MR. JOVANOVIC: [Interpretation] Your Honour,

10 may I consult my colleague for a moment.

11 JUDGE MUMBA: Yes, please, go ahead.

12 [Defence counsel confer]

13 MR. JOVANOVIC: [Interpretation] Your Honour,

14 those were all our questions.

15 JUDGE MUMBA: Any re-examination?

16 MS. UERTZ-RETZLAFF: I have only one question

17 related to what Defence counsel Jovanovic said last.

18 Re-examined by Ms. Uertz-Retzlaff:

19 Q. Referring to your report dated 28 June 1992

20 where you listed 16 bodies, I want to clarify, when I

21 asked you how you could establish that these people

22 were Muslims, I remember you said these bodies you saw

23 were all circumcised. Is this a misunderstanding?

24 Because not in all of these paragraphs related to the

25 16 people did you mention that they were circumcised.

1 Were they or were they not?

2 A. As far as I can remember -- and my assistant

3 was a medical technician, Mr. Kovac -- in each case he

4 told me that these persons were circumcised. I do not

5 know much about medicine, but I was able to see that

6 what he said was true. And I may not have written it

7 down, I may have neglected to write it down, but it was

8 understood.

9 MS. UERTZ-RETZLAFF: No further questions,

10 Your Honour.

11 JUDGE HUNT: One of those men, according to

12 the description of him, had his penis cut off. You

13 wouldn't have been able to tell about him, I suppose.

14 A. Yes, there was such a case where the penis

15 had been cut off, but on the basis of all the others,

16 we concluded that most probably that man too was a

17 Muslim.

18 JUDGE MUMBA: Thank you very much, Witness,

19 for giving evidence to the Tribunal. You are

20 released.

21 [The witness withdrew]

22 JUDGE MUMBA: Yes. The Prosecution.

23 MR. RYNEVELD: Yes, Your Honour. As you can

24 imagine, it's very difficult to anticipate when -- or

25 how long a witness will be or how long a witness will

1 be cross-examined. Because our next witness is, in

2 fact, a professor at Leiden University, she wanted a

3 time certain, and I took it upon myself to say 9.30

4 tomorrow morning. And she will be our next and last

5 witness for this session until after the break. So

6 begging the Court's indulgence, we don't have any more

7 witnesses today, but I do understand that Mr. Kolesar

8 has raised an issue that he wanted to speak to. But

9 begging the Court's indulgence, I took it upon myself

10 to tell her 9.30 tomorrow morning, which fit with her

11 schedule, and I apologise to the Court if I was overly

12 ambitious in terms of how long this particular witness

13 would last.

14 JUDGE MUMBA: It's all right, Mr. Ryneveld.

15 I just want to be clear with tomorrow's witness. She's

16 an expert witness, I hope.

17 MR. RYNEVELD: Oh, yes. No facts. We have

18 actually filed the exhibits, many of the exhibits that

19 she will be asked to refer to. It is my intention, and

20 if you wish me to outline my proposed method of

21 handling the witness --

22 JUDGE MUMBA: Yes.

23 MR. RYNEVELD: -- is to show her the

24 documents, ask whether or not those, in fact, are the

25 documents that were involved with the commission of

1 experts, of which she was a member, ask what particular

2 aspect she was particularly responsible for, put a

3 hypothetical to her and ask if it's consistent with the

4 proposal, and then show her a map, and that's about

5 it. I think I'll be done in 15 to 20 minutes, no more.

6 JUDGE MUMBA: Yes. Because what I wanted to

7 emphasise is that almost all the reports, the

8 documents, we already have them, and there's no need to

9 go into details discussing them. And she also has her

10 C.V. already on record, isn't it?

11 MR. RYNEVELD: That is correct. I intend to

12 introduce all those documents formally. I think most

13 of them are marked now for identification, so I'll go

14 through that process.

15 JUDGE MUMBA: Yes. Simply formally have them

16 put into evidence.

17 MR. RYNEVELD: Yes, Your Honour. That is my

18 intention, subject to the Court's direction.

19 JUDGE MUMBA: Yes.

20 Yes, Mr. Kolesar?

21 MR. KOLESAR: [Interpretation] Your Honour,

22 I'm speaking on behalf of the Defence counsel of all

23 three accused persons. On this occasion I wanted us to

24 discuss the witness who is to testify tomorrow. In the

25 Prosecutor's brief of the 20th of February, in keeping

1 with 65 ter (v), a list of witnesses and a list of

2 exhibits was made, that is to say, those that are

3 offered by the Prosecutor.

4 Mrs. Cleirin has been proposed as an expert

5 witness. Out of the material that was disclosed to us,

6 we got her C.V. that was actually submitted in a

7 different case, and also we got the findings of an

8 expert commission that was established by the United

9 Nations in keeping with Resolution 780. However, since

10 it is the Prosecutor who is calling this witness, or

11 rather this expert witness, the C.V. is irrelevant,

12 because it is only the Trial Chamber that can call such

13 a witness. The only possibility that exists, and that

14 is what is mentioned in the brief, is that this is an

15 expert.

16 Unfortunately, the Defence believes, or

17 rather we would like to express our concern over the

18 fact that not all the requirements from 94 bis, Rule 94

19 bis, have been met. It says there that the witness is

20 duty-bound to provide his statement not later than 20

21 days prior to testimony. We saw the findings of the

22 expert commission of the UN.

23 However, what is important for us, and I'm

24 certain that this is of paramount importance for the

25 Trial Chamber as well, that it should be established by

1 way of this kind of expert witness whether there was

2 any systematic rape within the Foca municipality, which

3 is where the accused operated. In our opinion, this is

4 of major importance to establish individual criminal

5 responsibility with regard to the existence or

6 non-existence of systematic rape in the territory of

7 Foca.

8 In parts of the findings submitted by the

9 expert commission of the UN, there is sporadic mention

10 of the territory of Foca too; however, we did not get a

11 single piece of paper that would be of major importance

12 for us, that is to say, through which we could check

13 the credibility, although there are no doubts in our

14 mind, of course. But we would like to know whether

15 there indeed was systematic rape in the territory of

16 Foca or not, according to them.

17 In principle, the Defence is not opposed to

18 this, to have Ms. Cleirin heard as a witness. However,

19 we would like to ask the Trial Chamber that she give

20 her own submission in writing, with special reference

21 to that which is of interest to us, and also for the

22 Trial Chamber, we believe whether what happened in the

23 territory of Foca could have been called systematic

24 rape.

25 JUDGE MUMBA: Having said that, Mr. Kolesar,

1 you are aware that this witness was not -- is not a

2 fact witness in the sense that she was not -- she

3 didn't witness anything there. She was part of a

4 commission and she used the evidence the commission

5 received through mainly documentation. You understand

6 that part? I'm not objecting to what you have said; I

7 simply want to make sure that you understand that part.

8 MR. KOLESAR: [Interpretation] Your Honour, I

9 understand that, and that is precisely what I am

10 underlining, as I ask on the basis of the existing

11 documents that were procured for the expert team that

12 worked upon instructions of the United Nations. We

13 would like to have this dealt with in detail, in

14 writing, namely, the area of Foca, where the accused

15 operated. Because the Prosecutor claims that there was

16 systematic rape, and I think that this is very

17 important for the accused. This is one of the highly

18 relevant facts that would have to be taken into

19 account.

20 JUDGE MUMBA: Response, Mr. Ryneveld?

21 MR. RYNEVELD: I'm not sure I completely

22 understand what my friend is saying, but as I

23 understand it, he wants this witness to provide

24 additional evidence about whether or not there was

25 systematic rape in the opstina or county or

1 municipality of Foca. With the greatest of respect,

2 that is one of the ultimate issues for this court to

3 decide, based on the evidence of the witnesses who have

4 testified about what happened to them.

5 The purpose of Dr. Cleirin, as I understand

6 it, is to indicate what the commission of experts found

7 and reported about and is able to indicate what the

8 commission's conclusion was with respect to whether or

9 not there was widespread or systematic evidence of rape

10 within Bosnia-Herzegovina. It is for this court to

11 then determine the facts, as you find them, on the

12 basis of the evidence that we've been leading over the

13 last seven, eight weeks.

14 JUDGE MUMBA: Yes. Bearing in mind that

15 Dr. Cleirin's evidence, whatever it amounts to, is not

16 binding on the Trial Chamber.

17 MR. RYNEVELD: Absolutely not. Absolutely

18 not. It is an issue that we feel is important for us

19 to put forward, and if the Court accepts, you can

20 attach whatever weight you wish to it. But she is not

21 to be a fact witness. That is not our intention. And

22 it assists the Court, hopefully, in fitting whatever

23 evidence you accept from the evidence of the other

24 witnesses that we've called, into whether or not it

25 fits the pattern, is consistent with the pattern.

1 JUDGE HUNT: Mr. Ryneveld, I haven't had the

2 opportunity of reading the report. I understand that

3 this witness is going to identify this report as that

4 of the commission of which she was a member.

5 MR. RYNEVELD: Correct.

6 JUDGE HUNT: And that expresses certain

7 opinions about whether there was systematic rape in

8 Bosnia-Herzegovina.

9 MR. RYNEVELD: Yes.

10 JUDGE HUNT: Does this report set out the

11 evidence upon which that opinion was formed?

12 MR. RYNEVELD: It does.

13 JUDGE HUNT: And does it do it in relation to

14 the municipality of Foca?

15 MR. RYNEVELD: In one of the annexes, I

16 believe it's annex 9 -- I don't have that in front of

17 me -- in paragraphs 232 to 256 it talks about Foca,

18 Kalinovik, Gacko, and Gorazde, which is basically the

19 area that we have been dealing with. But it's a very

20 small portion of an entire report.

21 JUDGE HUNT: Well, what I understand the

22 complaint to be is that the material upon which those

23 facts are stated in the report has not been supplied to

24 them so that they can test the opinion that has been

25 expressed in the report.

1 MR. RYNEVELD: To my understanding, we have

2 disclosed everything to the Defence --

3 JUDGE HUNT: It may be everything you have,

4 but is it sufficient? This is the point that I

5 understand is being raised.

6 I agree with you, it perhaps wasn't put in

7 the clearest of terms, but I understood Mr. Kolesar to

8 be saying that unless they had the basic material upon

9 which that opinion was formed, they are unable to test

10 it. So we are left simply with their opinion, based on

11 material we don't have and which has not been proved in

12 the -- or which may not have been proved in these

13 proceedings.

14 MR. RYNEVELD: What I understand Your

15 Honour's interpretation of my friend's point to be is

16 that if there are boxes, literally boxes of material

17 such as reports by various witnesses that were supplied

18 to the members of the commission --

19 JUDGE HUNT: At least relating to the areas

20 with which we're concerned in this trial, and you

21 haven't supplied them with that. Now, that is the

22 point, I think, you have to meet.

23 For myself, I wonder just what value we'll

24 get out of that opinion expressed by the commission if

25 we simply have an opinion based upon briefly stated

1 facts in the report without knowing whether those facts

2 are accurate.

3 MR. RYNEVELD: I'm going to need --

4 JUDGE MUMBA: That's why I was saying,

5 bearing in mind that that opinion is not binding on the

6 Trial Chamber.

7 MR. RYNEVELD: I appreciate that. I

8 appreciate that.

9 JUDGE HUNT: But I'm really concerned with

10 something a little more basically, as to whether it is

11 of any assistance unless we proceed upon some

12 assumption that the facts that they've stated in the

13 report, upon which they've based their opinion, are

14 correctly stated facts. That, as I understand it, is

15 what Mr. Kolesar is complaining about.

16 MR. RYNEVELD: I'm going to need a few

17 moments to consider our position on that matter.

18 JUDGE HUNT: Perhaps we better just check.

19 Am I right, Mr. Kolesar? You want the basic

20 material upon which this opinion was expressed.

21 MR. KOLESAR: [Interpretation] Your Honour,

22 what is relevant is the general situation that

23 prevailed in Bosnia-Herzegovina with regard to rape,

24 and that is what this commission dealt with. However,

25 what is even more relevant to us is that which pertains

1 to Foca.

2 It is correct that in annex 9 Foca and

3 Gorazde were dealt with; however, these are paragraphs

4 of three or four lines. One witness said this, the

5 other witness said that, and then a small footnote,

6 note 125, et cetera. In that way we could not check

7 out the relevance of what we received, that is to say,

8 what this report says, because we did not have these

9 little notes to check out what was said there.

10 Our colleague said that we listened to

11 witnesses here for seven or eight weeks. There is a

12 shocking fact; that is to say, that after the exchange

13 in Sarajevo and Dubrovnik, 40 abortions were

14 performed.

15 If you are asking me, Your Honour, my answer

16 is "yes" precisely to what you have said. We wish to

17 familiarise ourselves with these details. It would be

18 very good if this could be in writing by the expert

19 witness, with only that part of annex 9 that pertains

20 to Foca and Gorazde attached, or rather Foca and

21 Kalinovik.

22 JUDGE HUNT: Thank you. Well, now,

23 Mr. Ryneveld, I'm not upholding the complaint, don't

24 get me wrong, but I now think that I have correctly

25 identified it and I think it's a complaint which is

1 worthy of an answer. What value is the opinion to us

2 without that material?

3 MR. RYNEVELD: Well, as I understand it,

4 Dr. Cleirin is going to provide the methodology whereby

5 the commission collected the material, the material

6 summarises the evidence and the sources of the evidence

7 that they obtained it from, and she will also provide

8 the legal analysis whereby she undertook the opinion

9 that she gave and the basis upon which the

10 conclusion -- in other words, that is for the Court to

11 weigh, whether or not the methodology in arriving at

12 the conclusion is, in fact, one that you accept or

13 whether it's an appropriate one to take.

14 Now, if what my friend is seeking is the

15 basic documents, all of the source documents, for lack

16 of a better phrase, that the commission had from which

17 the commission prepared its report, then I don't

18 believe that I have that in my possession and it's not

19 something that I have been able to disclose. We've

20 certainly disclosed interim reports, we've disclosed

21 the final report, we've disclosed all the annexes,

22 we've disclosed to my friends the methodology and the

23 legal study that Dr. Cleirin has prepared as a result

24 of all of this, but the source documents I don't have.

25 JUDGE HUNT: Well, then, that raises the

1 secondary issue -- Mr. Kolesar described it as

2 relevance; I'm not sure whether that was correct -- but

3 it's the weight that we could possibly give to

4 somebody's opinion without knowing the material upon

5 which that opinion was based.

6 It's rather like producing the report of a

7 judgement given in some other court on what may or may

8 not be the same facts and saying, "Well, you better

9 have a look and see what that court found and you

10 should take that into account." I don't know what

11 weight we can give to that, I just simply don't know,

12 and that's why I'm seeking assistance.

13 MR. RYNEVELD: Yes. I wonder whether perhaps

14 I might ask the Court for a brief recess so that I can

15 check with my colleagues in terms of the documents that

16 we have and perhaps give the Court a more informed

17 response once I've had an opportunity to consult with

18 my colleagues. I'm asking for a brief recess.

19 JUDGE MUMBA: How many minutes?

20 MR. RYNEVELD: Could I perhaps have 20

21 minutes, until twenty after three?

22 JUDGE MUMBA: Because we would like to have

23 this settled today --

24 MR. RYNEVELD: Yes.

25 JUDGE MUMBA: -- so that we don't keep the

1 witness waiting.

2 MR. RYNEVELD: Yes.

3 --- Break taken at 3.02 p.m.

4 --- On resuming at 3.20 p.m.

5 JUDGE MUMBA: Yes, Mr. Ryneveld.

6 MR. RYNEVELD: As you can appreciate, Your

7 Honour, the Prosecution has had a division of

8 responsibilities, and since this particular issue is

9 one that Ms. Kuo is most familiar with, I'm going to

10 ask that she respond further with respect to this

11 matter. Thank you.

12 JUDGE MUMBA: Yes.

13 Yes, Ms. Kuo.

14 MS. KUO: Thank you, Your Honours.

15 In order to adequately address the Court's

16 concerns I think it's probably necessary to explain the

17 purpose for which we're putting Dr. Cleirin's

18 testimony. We believe that we have already established

19 that there was a widespread or systematic pattern of

20 sexual assaults in the Foca/Kalinovik/Gacko

21 municipalities, simply through the number of witnesses

22 that have testified about what happened to them, as

23 well as what they observed happened to other people, as

24 well as the consistency of the nature in which -- the

25 nature of the assaults. But what we are concerned

1 about, and the reason we're bringing in somebody like

2 Dr. Cleirin, is that the law may require -- and we're

3 not exactly sure how this Trial Chamber will rule on

4 this -- may require that there be a larger geographic

5 scale for widespread or systematic. And so rather than

6 bringing in witnesses from all over Bosnia to come in

7 and tell us what happened to them, we believe that it

8 would be more expeditious to bring in an overview

9 witness, someone who could testify as to the pattern of

10 allegations that has emerged.

11 Now, we're not alleging that every single

12 fact relied upon by the commission of experts report

13 can be proven or indeed is true. What they gathered

14 were allegations, and the purpose of the report was to

15 put these things together, analyse it, put it in

16 context, and forward the information to the Tribunal,

17 which, in fact, did occur. And so what Dr. Cleirin

18 will testify to is the methodology of their approach,

19 how they collected evidence, what types of questions

20 may have been asked, what indicators they were looking

21 for, and then the analysis of it, one of which will be

22 so -- the allegations of so many different parts of

23 Bosnia at about the same time were so similar that

24 there is a ring of truth about it, and that that raises

25 concerns that there was a widespread and systematic

1 pattern of sexual assault.

2 JUDGE HUNT: What you are asking us to do,

3 then, is to accept that there was a pattern of

4 allegations of widespread rape, and to jump from that

5 into accepting that it was much more widespread than

6 the evidence which has been given in this case.

7 MS. KUO: That is partially true, Your

8 Honour, with an interim step of the -- based on the

9 fact that the allegations were so specific and so

10 similar, we believe that the expert analysis of it

11 would be that they are probably, with a fairly high

12 probability, of being true.

13 JUDGE HUNT: And you're not asking us to use

14 the opinions expressed in that report as any evidence

15 in the case?

16 MS. KUO: We are, Your Honour. I'm not --

17 JUDGE HUNT: How can you, if all we've got is

18 a pattern of allegations?

19 MS. KUO: Because that's where the expertise

20 comes in. Of course, when we look at specific

21 disparate facts, say as a scientist might look at

22 disparate facts, we may just say, "Well, what does that

23 mean?" And we believe that that's what an expert is

24 here for, is to analyse those facts, to say, "Well,

25 individually, any given allegation may not be true, but

1 if you look at the pattern of it, the fact that they

2 were so specific, that they were occurring at the same

3 time, that the people making the allegations couldn't

4 have communicated with each other --

5 JUDGE HUNT: What sort of expert is this --

6 I'm sorry. What sort of expert is this witness? In

7 some form of inference or statistics, or what?

8 MS. KUO: Her expertise is --

9 JUDGE HUNT: None of those, is it?

10 MS. KUO: Not specifically, Your Honour;

11 that's true.

12 JUDGE HUNT: No. Well, then how can she

13 assist us?

14 MS. KUO: She will explain how -- the

15 methodology, and of course --

16 JUDGE HUNT: Let's accept that she can

17 explain how they got all these allegations. Those

18 allegations were being collected for a fairly specific

19 purpose, to report to the United Nations, and which

20 indeed led to the institution of a Tribunal to

21 investigate their truth. You don't see there's a

22 certain circularity in your argument, do you, that

23 because the allegations were made, then we should

24 accept the truth of those allegations as a widespread

25 pattern, even though that's what we're here to

1 investigate.

2 MS. KUO: Yes, Your Honour, I do see that,

3 and especially given the timing of the report. Of

4 course, the timing -- and the investigation was done at

5 a time when the Tribunal was just being formed and had

6 not had a chance to investigate. We believed that this

7 would be a helpful way to the Court to at least have

8 some sort of context, and as I mentioned at the outset,

9 we believe that we have already proven what we need to

10 prove Article 5, that there was a widespread and

11 systematic pattern of sexual assault in a specific

12 geographic area, which we believe satisfies that. But

13 we were concerned that there was a larger context.

14 JUDGE HUNT: Well, then you do want us to

15 make findings of fact that the evidence that you've led

16 in relation to the particular area that we've had was

17 indeed more widespread than the evidence which we have

18 demonstrates.

19 MS. KUO: Yes, Your Honour.

20 JUDGE HUNT: That is a very big jump, is it

21 not, Ms. Kuo?

22 MS. KUO: It is except that it may not be

23 that the standard of proof needs to be so high once you

24 get out to the fringes of what's necessary. In other

25 words, for any individual rape -- and if the Court

1 disagrees --

2 JUDGE HUNT: We have to be satisfied beyond

3 reasonable doubt that it was widespread, do we not?

4 MR. KOLESAR: [No interpretation]

5 JUDGE HUNT: I don't know what was said then

6 but let's just ignore it for the moment.

7 Do we not have to be satisfied beyond

8 reasonable doubt that this was widespread?

9 MS. KUO: Or systematic.

10 JUDGE HUNT: Or systematic, yes.

11 MS. KUO: Yes.

12 JUDGE HUNT: How would we be satisfied beyond

13 reasonable doubt as to either of those alternatives if

14 all we have is a system of complaints?

15 MS. KUO: We believe that the expert will be

16 able to talk about the reliability of the sources as

17 she explains the methodology and how these --

18 JUDGE HUNT: Just let us have a go, would

19 you, Mr. Kolesar?

20 JUDGE MUMBA: Mr. Kolesar, we'll give you an

21 opportunity to express your views, please.

22 JUDGE HUNT: How can she explain that? She

23 was one of a number of members of the commission.

24 MS. KUO: Yes.

25 JUDGE HUNT: She didn't, I assume, interview

1 any of these people herself.

2 MS. KUO: That's correct.

3 JUDGE HUNT: Well, then, what can she say as

4 to the reliability of the complaints made other than

5 their similarity?

6 MS. KUO: The sources -- she was, of course,

7 as a member, able to question the sources as they came

8 in. I don't know whether she actually spoke with the

9 people during the interviews or through other methods

10 of overseeing how the information was gathered, but I

11 believe that she will be able to talk about how, at the

12 ground level, the investigators and the interviewers

13 were able to assess at least some indicia for

14 reliability.

15 It would be similar, Your Honour, I would

16 argue, for somebody -- an overview witness who is,

17 let's say, head of the office of investigations coming

18 in and saying, "We have investigated X, Y, Z

19 complaints."

20 JUDGE HUNT: But when that particular person

21 comes in to give what you describe as an overview,

22 that's precisely what it is, it's an overview of

23 evidence which is otherwise available. What that

24 witness says is no evidence of the truth of what she is

25 overviewing.

1 Can I ask you this --

2 MS. KUO: Yes.

3 JUDGE HUNT: -- you say that if we sit down

4 and listen to this witness she will be able to explain

5 to us how it can be reliable.

6 MS. KUO: That's correct.

7 JUDGE HUNT: That's not the subject of any

8 statement at the moment, is it?

9 MS. KUO: No, it's not. Well, it's discussed

10 in the expert report but I think she can elaborate on

11 it.

12 JUDGE HUNT: She will have to elaborate far

13 more than what's in the report to demonstrate what you

14 say she will demonstrate.

15 MS. KUO: Yes, and that's, we believe, the

16 purpose of her coming in here in person, is that she

17 can explain and be asked questions and be

18 cross-examined.

19 JUDGE HUNT: Normally, though, we get a

20 statement from such a witness who is going to be an

21 expert in judging on the reliability of a pattern of

22 complaints, but we don't have it.

23 MS. KUO: With all due respect, Your Honour,

24 we did not realise that this would become an issue

25 until it was raised today and so -- you know, we had

1 submitted the 94 bis statement far in advance, the

2 reports were made available, and had we had time we

3 could have certainly prepared a report addressing that

4 specific issue.

5 JUDGE HUNT: The problem is you never

6 explained the use to which it was to be put. You are

7 the first person, with all due respect to Mr. Ryneveld,

8 who has explained the use to which it's being put, and

9 it comes frankly as a surprise to me.

10 Now, I don't know whether it comes as a

11 surprise to counsel for the Defence, but it may be that

12 when she has given this explanation, then they may want

13 to know a little bit more about this methodology to be

14 able to test it. You don't give them any opportunity

15 to do so on what you've given them so far.

16 MS. KUO: That's a legitimate point, Your

17 Honour. At that point, if it remains an issue, we

18 would certainly do what we can to accommodate the

19 concerns of the Court, although, I'm afraid, it may

20 entail asking for a little bit more time to investigate

21 the specific things that we would need to gather

22 evidence on.

23 Indeed, if it means calling in eyewitnesses

24 from other municipalities, for instance, to testify, we

25 may need far more time than that. But we appreciate

1 the fact that it's been brought up now, and certainly

2 at the point when the Prosecution still has time to

3 present further evidence. But we were hoping that

4 through this witness we could shortcut the process, but

5 what I hear the Court saying is that perhaps it may not

6 be possible and we would respectfully request at that

7 point to be able to fulfil our obligations. But in the

8 meantime, we would ask the Court to let us present

9 Dr. Cleirin and listen to what she has to say, and at

10 that point she may or may not be able to answer the

11 Court's concerns, and if not, then we can speak

12 afterwards and figure out a course of action.

13 [Trial Chamber confers]

14 JUDGE HUNT: Ms. Kuo, I understand your

15 argument that this witness may be able to persuade us,

16 I'm not sure how, but she may be able to persuade us,

17 that a pattern of allegations may be so reliable that

18 we can take it into account as the truth of what was

19 complained about. But we're going to have to be very

20 careful about a number of specific statements, I

21 gather, that this report makes, and one of them that

22 Mr. Kolesar referred to was that there were 40

23 abortions in the area. You're not going to suggest

24 that it's proof of that fact, are you?

25 MS. KUO: Your Honour, I am not actually able

1 to answer that question because even though that is

2 contained in the report, she was not asked specifically

3 on that fact. She may be able to say, yes, there is

4 proof of it and she has it, or she may not have it or

5 someone else may have investigated it further. So I

6 cannot answer that question.

7 JUDGE HUNT: This sounds very much like a

8 committal hearing or a preliminary hearing to a trial,

9 and the prosecution are just calling the witness to say

10 what she can say. It's not the way in which this

11 Tribunal usually proceeds when we have a firm statement

12 of what the witness is intending to give evidence of.

13 MS. KUO: Your Honour, might I just suggest

14 that if -- since Dr. Cleirin signed the report and the

15 statement is in there, she can certainly be asked

16 questions about it and be asked the basis of that. It

17 may come to light at that point where she says, "Yes,

18 we do have that evidence." I'm simply not able to

19 answer that because the proofing of her, I don't

20 believe, went into such great detail.

21 JUDGE HUNT: But it should have. Clearly it

22 should have. I don't know whether other Trial Chambers

23 have allowed this report in on that basis. It has been

24 allowed into a previous case, I understand, but it was

25 not on that basis, it was purely a historical record.

1 So I think that we are going to have to sit back and

2 listen to you doing what perhaps should have been done

3 some months ago in the office upstairs.

4 MS. KUO: Your Honour, if we were given the

5 opportunity to do that, we would be very appreciative

6 to be able to present -- if the Court wishes, we can

7 ask for some more time to proof her on those specific

8 questions. I was not present so I don't really know

9 the specific questions that were asked.

10 JUDGE MUMBA: Yes, but are you saying, or are

11 you aware, that Dr. Cleirin never saw the victims

12 herself?

13 MS. KUO: That's correct, Your Honour.

14 JUDGE MUMBA: She depended on the reports of

15 the investigators who went to the scene.

16 MS. KUO: Yes. And if the Court wishes us to

17 bring in the eyewitnesses to prove the widespread or

18 systematic pattern, I guess the way I've described it,

19 around the fringes, we're certainly willing to do

20 that. We just thought that doing something like this

21 with an overview witness would be more economical. The

22 alternative is we could --

23 JUDGE HUNT: We're not here to worry about

24 the economy or the economics; we're here to find out

25 whether you've established a case. And this doesn't

1 strike me as the way of proving a case, if you want us

2 to rely upon this material to show factually this

3 happened somewhere other than within the Foca

4 municipality.

5 MS. KUO: If I could offer either an

6 alternative or a supplement to this witness, we have

7 quite a bit of information in house regarding sexual

8 assaults in other municipalities. We could ask for

9 some of those eyewitnesses to come in and testify at

10 length, as witnesses from Foca have, or we could ask an

11 investigator -- again, perhaps it's not somebody who

12 personally spoke with those witnesses but could vouch

13 for the statements that are signed by the witnesses,

14 et cetera, and that person could present an overview

15 based on statements that this Court might find more

16 reliable.

17 JUDGE HUNT: But what is this overview? An

18 overview must be a summary of something which exists

19 somewhere else, so that in a report, an overview is a

20 summary of what is contained in the remainder of the

21 report. You are asking us to accept the overview

22 without the rest of the report, in effect. I don't

23 mean this expert report. But the word "overview" is

24 being used in a somewhat slippery sense. I don't mean

25 that offensively. But it doesn't really mean anything

1 other than a summary.

2 MS. KUO: Yes, Your Honour, and that's

3 precisely how we're using that word.

4 JUDGE HUNT: You can't bring somebody along

5 to say, "I'm going to summarise what 20 other people

6 could have told you." That isn't proof of the truth of

7 what those other people could have told us.

8 MS. KUO: With all due respect, it is still

9 an overview. Now, whether the Court accepts the

10 veracity or the -- gives -- however much weight the

11 Court wants to give the underlying sources --

12 JUDGE HUNT: There are no underlying

13 sources. I'm sorry. As a matter of evidence, the

14 witness who is going to come along and give us a

15 summary -- and let's use a very simple word, a

16 summary -- is only going to summarise for us what

17 those witnesses could have told us if they had come

18 along and given evidence. But you don't want to bring

19 those other people along to give evidence; you want us

20 to accept the summary of what this person gives of what

21 they could have said, and you want us to accept it as

22 evidence of what they did say and what is true. That's

23 the problem I'm having.

24 MS. KUO: Again, with all due respect, our

25 understanding of the rules of this Court are that that

1 is permissible.

2 JUDGE HUNT: Where?

3 MS. KUO: That summary witnesses --

4 JUDGE HUNT: No, no. Whereabouts in the

5 Rules does it permit overviews of evidence?

6 MS. KUO: I don't have the precise number. I

7 guess --

8 JUDGE HUNT: It's got to be something that

9 has probative value. That's the fundamental -- and I

10 don't see what probative value a summary of what

11 somebody might have told us, but didn't, is of the

12 truth of what those people might have said if they had

13 said it.

14 MS. KUO: Well, Your Honour, if the Court

15 wishes, we can bring in the witnesses. We can --

16 JUDGE HUNT: It's a matter for you, Ms. Kuo.

17 It's not what we wish. But the objection having been

18 taken, it is, I think, a fair one that the probative

19 value to be given to this summary is of such negligible

20 value that we should not permit it. That's the point

21 they're making. And I see something in it. I haven't

22 made up my mind, but nothing you have said, I'm sorry,

23 so far has encouraged me to think that it will have the

24 probative value which is required.

25 JUDGE MUMBA: Would the Prosecution have any

1 objection if they insist that whatever Dr. Cleirin will

2 produce will just be considered as part of the

3 historical document, as part of the processes the UN

4 went through, before establishing this Tribunal?

5 MS. KUO: Yes, Your Honour, that would be a

6 very important fact, and a very important purpose for

7 the report. But I do --

8 JUDGE MUMBA: But nothing to do, you know,

9 nowhere near evidence from the Prosecution against the

10 accused.

11 MS. KUO: Our intent was not to provide

12 through this witness specific allegations against the

13 accused but to provide the context in which to put the

14 evidence that has already been presented. And although

15 that is a very good suggestion from the Court, I'm

16 afraid that we were asking for something further to be

17 presented here.

18 JUDGE HUNT: Much further.

19 MS. KUO: Yes, Your Honour. And I think the

20 problem that we are facing at the moment is we had

21 believed that -- we believe we would -- in a way,

22 there's a conflict. We believe that we've presented

23 sufficient evidence of widespread and systematic sexual

24 assaults, but we're concerned that the Court may

25 disagree with us and we would like to present further

1 evidence to round out the picture. But what I hear

2 from the Court is the method by which we wish to

3 present that may not be acceptable to the Court.

4 JUDGE HUNT: Well, it is evidence, but not

5 evidence of the truth of anything. That's the

6 problem.

7 MS. KUO: Your Honour, if we were to have

8 brought in an academic expert who would say, "I have

9 investigated by reading documents and reading

10 statements collected by other people of what was going

11 on in this area, and have come to the expert conclusion

12 because, I have a Ph.D. in this and that, that there

13 was a widespread and systematic pattern of sexual

14 assaults in Bosnia in 1992 and 1993," I wonder whether

15 the Court would accept that because it's academic

16 rather than a commission of experts. I mean, I don't

17 know what function an expert would be able to serve

18 under those circumstances.

19 JUDGE HUNT: I don't see how any expert could

20 possibly say that. There may be some expertise which

21 has been built up over the years which demonstrates

22 that a pattern of complaints show the truth of those

23 complaints. But unless the witness can say that, that

24 there is such an expertise, and if she is such an

25 expert, I don't see how any of this evidence will

1 assist us. That's why I was asking the questions at

2 the very beginning: What is the basis of the

3 evidence? Now, I understand you. You say because the

4 pattern of complaints is so similar throughout the

5 whole of Bosnia, this witness is going to tell us that

6 they're true. Now, I don't understand how she can do

7 that, even with a Ph.D.

8 MS. KUO: Well, Your Honour, these are

9 questions that I think would be very legitimately put

10 to this witness when she testifies, if she is permitted

11 to testify. And I don't know how she would answer, and

12 perhaps she would be able to give an answer that would

13 satisfy the Court. I cannot speak for her. And so she

14 may be much more articulate than I am in being able to

15 address this.

16 JUDGE HUNT: She will then have to be

17 examined as to her expertise along those lines, because

18 in effect her expertise has been challenged by the

19 Defence.

20 MS. KUO: Yes, Your Honour.

21 JUDGE HUNT: That might be what we can do

22 tomorrow, to see whether she satisfies that, and, if

23 she can be shown to be an expert, to take that rather

24 large chunk between the pattern of allegations and

25 their truth. If she can't satisfy that, then the rest

1 of her evidence will be irrelevant.

2 MS. KUO: I believe that would be agreeable,

3 Your Honour, as an interim step, is to go through these

4 questions before getting into the substance of the

5 report.

6 JUDGE MUMBA: Mr. Kolesar? The Court has not

7 yet made a ruling, if you have followed the arguments,

8 so do you have any further submission to make?

9 MR. KOLESAR: [Interpretation] Yes, Your

10 Honour, I understand, and I apologise if I repeat

11 something I have already said. There is a procedural

12 issue here. The Prosecution is calling Dr. Cleirin as

13 an expert witness, according to Rule 94 bis, where it

14 says that an expert witness must disclose a written

15 statement within a certain time limit. We do not have

16 such a statement. We have an interview with

17 Dr. Cleirin conducted before the Trial Chamber in

18 IT-95-5-RGI, on the 20th of July, and a C.V., and this

19 testimony cannot be the witness statement required by

20 Rule 94 bis.

21 JUDGE MUMBA: You mean the copy of the

22 transcript from another trial? Is that what you're

23 talking about?

24 MR. KOLESAR: [Interpretation] Exactly, Your

25 Honour. So what the witness was supposed to be --

1 according to Rule 74 [as interpreted], an amicus curiae

2 in these proceedings cannot be considered to be a

3 statement, according to Rule 94 bis. That's one issue.

4 And another issue is that we cannot say that

5 systematic rape has been proved, because if it has,

6 there would be nothing left for the Defence to do.

7 And finally, what has been presented to us

8 from the material, in connection with the work of the

9 UN commission, does not follow, or rather it does not

10 follow that there is a great probability that on the

11 territory of Foca there was systematic rape. A ruling

12 cannot be made about systematic rape on a certain

13 territory based on a pattern, even though there is no

14 pattern, even in the finding of this witness, as I was

15 able to read it, on the territory of Bosnia and

16 Herzegovina. What it says is that in some places one

17 can talk about systematic rape and in other places one

18 can't, but patterns cannot be taken as a basis leading

19 to the conclusion that there was systematic rape.

20 What the Defence proposes is that Rule 94 bis

21 should be applied and that the witness should

22 concentrate on the area of Foca and present the

23 material in the commission established by the United

24 Nations in order to check this, because in my careful

25 reading of Annex 9, there are statements there by

1 witnesses which have appeared before this Tribunal in

2 these proceedings.

3 Of course, this will take up some of the

4 Trial Chamber's time, but we should consider the

5 economy of these proceedings, but it is more important

6 that there should be a fair trial and that the Defence

7 should be given the testimony of the expert witness on

8 time so that we can prepare.

9 JUDGE MUMBA: Yes, of course, Mr. Kolesar.

10 The Trial Chamber can't agree with you more that the

11 proceedings must be fair. That is why, upon your

12 objection, the Trial Chamber is trying to establish

13 from the Prosecution what type of witness Dr. Cleirin

14 is intended to be.

15 [Trial Chamber deliberates]

16 JUDGE MUMBA: What the Trial Chamber has

17 proposed or has decided to do is that the Prosecution

18 can go ahead and call the witness and examine her in

19 chief, and depending on what she will say, maybe we

20 will proceed and go on and produce these documents.

21 But we will have to make a ruling as to whether or not

22 the Prosecution will have complied with Rule 94 bis on

23 the procedural issues regarding expert witnesses.

24 JUDGE HUNT: I think that I would have to

25 say, my view is that we will hear her as a challenge to

1 her expertise first before any documents are tendered.

2 If she doesn't satisfy us that she has an expertise in

3 taking this jump from a pattern of complaints to their

4 truth, then so far as I'm concerned the documents she

5 wants to tender are equally irrelevant.

6 But the real problem we'll have to determine

7 then is the non-compliance with 94 bis because it

8 simply has not been complied with. We do not know what

9 her evidence is going to be, and the statement of her

10 evidence should have had an explanation of how she is

11 able to take that rather large jump in logic. There is

12 nothing in the material in the Karadzic Rule 61

13 proceedings which demonstrates how she takes that

14 jump.

15 MS. KUO: Your Honour, recognising that it

16 was a Rule 61 hearing and there was no challenge by

17 Defence, that issue was not brought up and we had

18 perhaps erroneously taken the position that since it

19 came in a fairly straightforward way that we would be

20 able to rely on that. So even though that specific

21 sort of defence to an attack by the Defence was not

22 present, we believe that it's not in violation of Rule

23 94 bis in notifying the Defence, certainly, as to what

24 this witness would testify. But the contents are

25 there, even though we didn't anticipate what the

1 Defence attack would be so we didn't --

2 JUDGE HUNT: If you had a witness who is

3 going to say, "Because of the constellation of stars

4 that evening, I can demonstrate that certain Serbs

5 raped certain Muslims," you would have to produce that

6 evidence from a witness who had an expertise to draw

7 those conclusions, and the statement of such a witness

8 would have to itself demonstrate the expertise which

9 that witness has.

10 Now, I'm not suggesting that this is as

11 fanciful as that. But nevertheless you have not in

12 your statements, or any documents you've provided,

13 demonstrated her expertise to draw that conclusion, and

14 that's the complaint that they have about a failure to

15 comply with 94 bis. Now, that's something we're going

16 to have to deal with tomorrow. If the witness is able

17 to demonstrate an arguable expertise, then we'll have

18 to worry about 94 bis and it may mean that the rest of

19 her evidence will be delayed.

20 MS. KUO: Very well, Your Honour.

21 JUDGE MUMBA: Yes. We shall adjourn for

22 today and continue the proceedings tomorrow morning, at

23 0930 hours.

24 MR. JOVANOVIC: [Interpretation] Your Honour.

25 Your Honour.

1 --- Whereupon the hearing adjourned at

2 4 p.m., to be reconvened on Tuesday,

3 the 30^th day of May, 2000, at 9.30 a.m.

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