1 Thursday, 24 January 2002
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 4.03 p.m.
5 JUDGE LIU: Call the case, please, Madam Registrar.
6 THE REGISTRAR: Good afternoon, Your Honours. This is case number
7 IT-98-34-T, the Prosecutor versus Naletilic and Martinovic.
8 JUDGE LIU: Before we have the witness, there are several matters
9 I would like to say at this moment. The first one is that we have to
10 finish the testimony of this witness today because we have already kept
11 him here for almost a week, and I believe that this is the last witness
12 from the Prosecution's case. So there will be some procedural matters
13 that both parties would like to address to the Chamber.
14 Secondly, that this Trial Chamber has been seized of some
15 suggestions of the Court recess filed by the Defence counsel. We are now
16 in no position to make decisions on these issues, but one point I would
17 like to remind the Defence counsel is that you asked 20 days for
18 filing your motion for acquittal after the closure of the Prosecution's
20 We looked into the Rules, that is the Rules of Procedure and
21 Evidence of this Tribunal. It is said only seven days, which means only a
22 week for you to file this motion. We believe that we have to abide by
23 that Rule. And by the way, if I could, I'll remind the Defence counsel
24 that we hope in your motion you could specify your request, which is count
25 by count rather than to submit an overall rejection.
1 Thirdly, we understand that the Defence counsel asked for a Status
2 Conference. During the proceedings of this case, and now it might be the
3 right time to hold it, sometime tomorrow or next week. I would like to
4 hear the initial response from Defence counsel. Which time will be more
5 suitable for them? Because we have to make the necessary arrangement for
6 the courtroom for the interpretations as well as for the support.
7 Yes, Mr. Krsnik.
8 MR. KRSNIK: [Interpretation] Good afternoon, Your Honours, and
9 thank you for giving me this opportunity. I shall be very brief.
10 Yesterday we had a very long and I believe a very satisfactory,
11 mutually satisfactory meeting. We managed to agree on certain matters,
12 and thus we also agreed on the Status Conference and our joint
13 suggestions - I hope my learned friends will confirm this - we all need
14 some time to prepare for it, and we agreed that it would be best to have
15 it on Wednesday next week. It is a Status Conference that we accord major
16 importance to. Because these suggestions that we indicated in our motion
17 with regard to their recess and the Defence case, they all need to be
18 explained very thoroughly to the Chamber, and we want to prepare for it
19 properly. And as we agreed with our learned friends, our joint proposal
20 is that the Status Conference be held next Wednesday. Thank you.
21 JUDGE LIU: Yes, Mr. Seric.
22 MR. SERIC: [Interpretation] Good afternoon, Your Honours.
23 Mr. Krsnik was quite right. I should also like to add that for tomorrow
24 we have a meeting with Mr. Fourmy, so that tomorrow we shall have a busy
25 day, and these Defence will be very happy to have the Status Conference on
1 Wednesday, and we shall be preparing also our oral -- the oral reasoning
2 of what we have already indicated in our written motion. Thank you.
3 JUDGE LIU: Any response from the Prosecution?
4 MR. SCOTT: Mr. President, what counsel said is correct. We met
5 yesterday and had proposed that all things being considered, that next
6 Wednesday would be a time to frankly allow everyone to catch their breath
7 a bit, not knowing exactly how the end of this week would come about, and
8 then be prepared hopefully to have a helpful Status Conference next week.
9 JUDGE LIU: Thank you very much. So we will have the Status
10 Conference next Wednesday. As for the specific timing and the location,
11 we believe that Madam Registrar will make the proper arrangement and
12 inform us in time.
13 Mr. Usher, would you please call in the witness.
14 [The witness entered court]
15 JUDGE LIU: Good afternoon, sir.
16 THE WITNESS: Good afternoon.
17 JUDGE LIU: Yes, Mr. Par. You may proceed.
18 WITNESS: MARTIN GARROD [Resumed]
19 Cross-examined by Mr. Par: [Continued]
20 Q. [Interpretation] Good afternoon, Sir Martin. I was corrected when
21 I addressed you as Sir Garrod. The correct address is Sir Martin, so that
22 I will do so as of this moment. I apologise.
23 A. I'm sorry.
24 Q. Can you hear me now?
25 A. Yes.
1 Q. Good afternoon. I just said that yesterday in my language, I said
2 that I was addressing you incorrectly and that the proper address is
3 Sir Martin. So this is why I emphasise it. Let me remind you of where we
4 broke yesterday. We started discussing the cause for the conflict between
5 the Muslims and Croats in Mostar in 1993, and today I should like to look
6 at some factors which influenced this conflict and perhaps touch upon the
7 nature of that conflict, that is, the international armed conflict in that
9 I believe that the last subject we broached yesterday was the
10 Vance-Owen Plan, so let me ask you some questions about that today. As
11 far as I could gather from your testimony, the Vance-Owen Plan which was a
12 plan for the peaceful solution in Bosnia-Herzegovina, adopted, in early
13 1993, and that plan, as you yourself said, was in a way an introduction
14 into the Croat-Muslim conflict. It was a plan, and you pointed out that
15 it was not favourable to the Muslims but that the Croats misinterpreted it
16 and tried to implement it. Would that be the correct interpretation of
17 your testimony? Was that what you said?
18 A. Yes. I am not an expert on the Vance-Owen Plan which was more or
19 less, as I said, moribund by the time I arrived in Bosnia, but that is
20 more or less my understanding of how things developed, yes.
21 Q. Now, I should like to ask you a few short questions to go back a
22 little and try to clarify: Why was the Vance-Owen Plan adopted at that
23 particular time and why was it necessary at all. And in order to arrive
24 at some answer, I will ask you a couple of short questions and you will
25 tell me whether you agree with me or not. So my objective is to establish
1 the foundation, what -- underpin that plan and how it came about. Your
2 explanation is that the war in Mostar between Muslims and Croats was the
3 war about the territories. So my question is: Up to 1993, before 1993,
4 did Republika Srpska exist already as a territorial entity controlled by
5 Bosnian Serbs, and whether during that time, that is, until 1993, did
6 Serbs already accomplish the goals that they were pursuing in Bosnia
7 through Republika Srpska? I have no reason to pursue any further
8 objectives. Would you agree that that was the actual state of affairs in
9 Bosnia in the beginning of -- at the beginning of 1993?
10 A. Yes. Before the war in Bosnia, of course, there was no such thing
11 as Republika Srpska, but by the summer of 1992, the Serbs controlled
12 roughly 70 per cent of the territory of Bosnia.
13 Q. In other words, that was the Serb position. Would you agree when
14 I say that at the same time, that is, until 1993, the Croats had already
15 more or less accomplished what they had wanted to accomplish, defended the
16 territories as much as they could, they had lost the Sava valley, Jajce,
17 but nevertheless they had taken and were controlling a territory which
18 ensured their survival in Bosnia-Herzegovina? Would you agree that again
19 that was the state of affairs as far as the Croats were concerned and that
20 they also had no further reason for waging a war in that territory at that
21 time, that is, again, early 1993?
22 A. Well, they had certainly repulsed the Serb aggression against
23 Mostar, but, of course, as I've said, by now the Serbs were actually
24 controlling 70 per cent of the country. And I don't think that was a very
25 happy situation for either the Croats or the Bosniaks.
1 Q. We'll come back to the Bosniaks. But what about the Croats? Was
2 it a position which ensured for them survival in a certain way so that
3 they had no further motivation to prolong the war? Were they perhaps
4 slightly worse off than the Serbs but yet well enough to stay in that
5 area, that is, that there was no longer a reason for them to wage any
6 further war? That is my question.
7 A. Well, of course, they were certainly not happy with the situation
8 at all, and they had lost territory to the Serbs, and of course by April,
9 May 1993 the fighting between the Croats and the Bosniaks started.
10 Q. Yes. We'll come to May 1993 later. I'm talking about everything
11 that happened earlier, that is, prior to the Vance-Owen Plan. So we know
12 what the Serb situation was, we know what the Croat situation was. Now,
13 would you agree that at that same time, the army of Bosnia-Herzegovina
14 actually was in such a situation which could make them unhappy because
15 they had at least territory that they could control in view of the size of
16 their population. So in early 1993 they were faced with a major problem
17 because they had a very small territory and very many people in relation
18 to the territory. So wasn't there the weakest position and didn't they
19 have a reason at that time to look for new territories? Would you agree
20 with that?
21 A. Certainly the Bosniak army wished to regain the territory, in
22 particular, that they had lost to the Serbs. Yes. I mentioned that
23 yesterday. In particular, we're talking about Zvornik, the upper regions
24 of the Drina, Sanski Most, Prijedor, Sava, and so on.
25 Q. So in other words, what are we talking about? We're trying to
1 establish what is it that happened before the Vance-Owen Plan. And could
2 we then say that at that time, early 1993, was a relatively calm, a stable
3 period of time as far as the situation on the ground was concerned, that
4 the position had already been more or less defined, and that people's
5 concern -- were more or less interested in freezing that particular
6 situation? In other words, wasn't that a moment when it became quite
7 possible or when it became quite feasible to -- when long-time peace
8 became quite feasible? Could that be the reason behind the Vance-Owen
10 A. Well, clearly the occupation of 70 per cent of the territory of
11 Bosnia was totally unacceptable, and therefore the Vance-Owen Plan was one
12 of the first major initiatives to try and bring a long-term agreed
13 settlement, agreed by all sides, for the future of Bosnia.
14 Q. So these were more or less the conditions when a plan of a kind
15 could be drawn up because there were no actual belligerences going on.
16 Everybody was holding his own positions. Is that correct?
17 A. Well, I certainly wouldn't call it a stable position at all, at
18 all. What the Vance-Owen Plan was attempting to do was to try and bring a
19 long-term, stable situation in Bosnia.
20 Q. Right. But now let us look at how Vance-Owen, international
21 diplomats, international mediators what idea did they come up with so as
22 to introduce a stable and long-term peace in Bosnia. Didn't the
23 Vance-Owen Plan recognise the factual situation on the ground achieved by
24 the force of arms and ethnic cleansing? And on the basis of that split
25 Bosnia into provinces? Wasn't that the basis of the Vance-Owen Plan? The
1 situation is such as it is, and we shall call then these areas provinces,
2 but as a matter of fact the status quo would be preserved. Was that the
3 idea that underpinned the Vance-Owen Plan?
4 A. Yes, except for the fact that it required the Serbs to withdraw
5 from many of the areas which they then controlled, into a much smaller
6 area, a much smaller area than the 70 per cent. And as you say, the plan
7 was to split Bosnia into ten provinces. Some had a Croat majority, some
8 had a Muslim majority, some had a Serb majority.
9 Q. Well, then, does the Vance-Owen Plan mean relinquishing the idea
10 of a multi-ethnic, unified Bosnia, and is the Vance-Owen Plan the basis
11 for the partitioning of Bosnia-Herzegovina? Is that the basis for the
12 partition of Bosnia-Herzegovina adopted by the international community,
13 perhaps in good faith?
14 A. No. Quite the reverse. The aim of the Vance-Owen Plan was to
15 ensure that we had retained a unified Bosnia and Herzegovina. It's now
16 split into cantons. Vance-Owen were going to split it into provinces,
17 some with different majorities, but all on a multi-ethnic basis. Not pure
18 provinces, not pure Serb provinces or pure Bosniak or pure Croat provinces
19 but multi-ethnic provinces but with a majority of one of the
20 nationalities. But it was intended to keep -- to ensure that thereby
21 Bosnia was retained as a unitary state.
22 Q. Very well. So formally speaking, we can say that this plan is a
23 plan about the unified Bosnia, that it pursues the preservation of that
24 unified Bosnia, its own provinces, such and such. We won't call them a
25 Serb, Croat or Muslim, but in substance, the situation on the ground is
1 blood. One knows what that means on the ground, and that is what the war
2 which erupted then showed. It brought to light the substance of this
3 plan, and what did everybody do? They all took up arms. Now, my question
4 to you is: Could one of the factors behind the war in Mostar be the
5 Vance-Owen Plan which showed those people down there that Bosnia was being
7 A. No, I don't think so, because, as I say, the intention throughout
8 was that there may be majority provinces, but multi-ethnic provinces and
9 Bosnia as a unitary state. And of course, the Croats, as I said, were the
10 first to accept it, but I don't think they really examined the small print
11 carefully enough, reading that they were multi-ethnic provinces and the
12 provinces would be governed by multi-ethnic government based on the
13 proportions of the 1991 census.
14 Q. What Croats, Sir Martin? What Croats? Do you mean the political
15 leadership or do you mean the populous, the Croats? People there, what
16 were they to read? They heard what was happening. They saw who was
17 getting what promised. Did they understand the Vance-Owen Plan precisely
18 in the manner in which I'm telling you? Perhaps they couldn't read the
19 small print. They took it to mean the partitioning of
20 Bosnia-Herzegovina. I'm not talking about the politicians; I'm talking
21 about the grass roots, about the rank and file people on all three sides,
22 that they understood that the Vance-Owen Plan meant splitting up, meant
24 A. Well, if the grass roots did not understand the situation, that
25 must -- the blame must be put squarely at the feet of their own
1 leadership. It was up to the political leaders of all three sides to
2 explain to their people exactly what the plan meant before they accepted
3 it or rejected it. But it's no good saying that the people on the ground
4 didn't understand. Why didn't the politicians, political leaders, explain
5 to them what it meant?
6 Q. Well, we may come back to this particular subject, the
7 politicians, so as not to lose the thread right now. Why am I pressing
8 this point, namely, that the Vance-Owen Plan is based on the idea of
9 Bosnia's partitioning? Because during your testimony, you said, among
10 other things, that anyway, it was a Croat idea as opposed to some kind of
11 a Muslim idea about multi-ethnic nature and so on and so forth. But what
12 I'm saying now is that if we really look at the substance of this idea
13 about the partitioning of Bosnia, could we agree that this idea came from
14 the Serbian aggressor against Bosnia-Herzegovina, who, in a manner,
15 received support for the partitioning of Bosnia through the Vance-Owen
16 Plan? So is the partitioning of Bosnia the idea with which the Serbian
17 aggressor came up and was then indirectly endorsed by the views of the
18 International Community? Nobody in Mostar had to come up with this idea,
19 because this was a process under way and nobody could stop it. Would you
20 agree that this idea was born in the minds of the Serbian aggressor?
21 A. I would say that the Serb aggressor had already, de facto already
22 occupied 70 per cent of the land. This was a plan to take back a lot of
23 the territory that had been occupied by the Serbs, and Karadzic certainly
24 did not, he was not in favour of the Vance-Owen Plan, because it would
25 mean him having to give up a lot of the territory which was then actually
1 controlled de facto by the Serbs.
2 Q. What I am trying to get at here is to say that the idea about the
3 partitioning of Bosnia did not come from Croats, that it came -- that it
4 was born by itself but from a process. Let us look at some concrete
5 facts. For instance, would you agree that the Republic of
6 Bosnia-Herzegovina, as an independent state, gained its independence after
7 following a referendum in which the Croats and the Muslims said, "We want
8 an independent state"?
9 A. Yes.
10 Q. Would you agree that without that Croat voice, without that Croat
11 vote, without their desire to have this united state, that state would not
12 have come into being then, or rather, now?
13 A. Yes. As far as I can remember, the figures of the referendum I
14 think were something like 98 per cent in favour, but that was excluding
15 the Serbs, of course, who did not -- boycotted the referendum.
16 Q. Yes, quite. We'll come to that. So the Croat idea is very
17 clearly expressed at that time. What kind of Bosnia do they want? They
18 want a joint state with Muslims, an integral state, very clearly stated.
19 Now, at that time, it was a common fact what you have just said, the Serbs
20 say no, they don't want that and they start a war. Is that correct?
21 A. Well, I mean, the war started, initiated by the Serbs long before,
22 of course, the Vance-Owen Plan was even thought of, so I agree. And Serbs
23 were after their -- Milosevic was after his Greater Serbia. I think
24 that's accepted.
25 Q. So we agree that the partition of Bosnia-Herzegovina is no longer
1 theoretical. It is introduced through shelling, ethnic cleansing, in a
2 war waged by the Serbs against the Croats and Muslims in
3 Bosnia-Herzegovina. Can we agree on that?
4 A. Yes.
5 Q. Now, at that point in time, can we agree that the Serbs are
6 strong, that they enjoyed the support of the former Yugoslav People's
7 Army, they have weapons, tanks, air force, logistics, and that they have
8 an absolute military advantage over the Croats and Muslims, who had no
9 army, no weapons, no defence concept. Was that the military situation at
10 the time?
11 A. Yes. The Serbs, of course, had all the ammunitions and hardware,
12 the tanks, the guns, and so on, of the JNA, the Serb National Army.
13 Correct. That is so.
14 Q. And then, Sir Martin, didn't the Security Council, the UN Security
15 Council, in its well-known resolution 713, didn't it say, "We prohibit the
16 delivery of weapons to Croats and Muslims and all the other Yugoslavian
17 republics. We impose an embargo on arms. You may not be armed." Is that
18 an accurate statement?
19 A. It was not "you may not be armed," it was imposing an arms embargo
20 preventing countries to supply arms to those Serbia, Croatia, and the
21 Bosniaks. Correct.
22 Q. Sir Martin, it is -- so the word "resolution" always sounds so
23 nice and they say "We prohibit the supply of weapons, the sale of
24 weapons." But what it means is you allow us to be slain, because what it
25 means, its substance means that?
1 A. Well, I mean, I think we could spend a long, long time, a very
2 interesting discussion, on the arms embargo. All I would say is that of
3 course it affected the Croats and the Bosniaks far worse than it did the
4 Serbs, who had a two-year supply, could fight a war for two years without
5 any resupply. But of course then slowly Croatia very commendably started
6 to get in weapons from outside and indeed so did the Bosniaks. Not heavy
7 weapons, but weapons.
8 Q. Sir Martin, we are about to come to that, international conflict,
9 international cooperation, and so on and so forth, but we can agree the
10 Muslims, the Croats do not have any weapons, they don't have any
11 assistance from the International Community; that is, it is not going to
12 stop the intervention and therefore they have to turn to somebody for
13 help. Was that how it was at the time?
14 A. I would not say they had no weapons. They were affected by the
15 arms embargo, of course, but they did have weapons, less than, of course,
16 the Serbs, and they did not have the heavy weapons.
17 Q. Can we then agree that they simply have to turn for help? The
18 Croats to their Croatian brethren and the Muslims to their Muslim
19 brethren, as it was said? Wouldn't it be the logical evolution that they
20 turn to those -- to other sides for help?
21 A. Of course they're going to try and get weapons from where they
22 can, because they were in the middle of a war.
23 Q. Can we now, in regard of this situation where they looked for
24 help -- at Croatia for help, how it looked from the Croatian vantage
25 point, what were their reactions? At that time the Republic of Croatia,
1 the Croatian state, was assisting the HVO, the Territorial Defence, that
2 is, the Muslims. Did they assist, logistically speaking, to these
3 factions? For instance, did they allow the Territorial Defence, which is
4 the precursor of the ABiH, to form their units in their territory and to
5 train those units there?
6 A. Yes, but of course at that time the Muslims and the Croats were
7 fighting together before they started fighting against each other. But
8 until then, they had been fighting in the same formations against the
9 Serbs, and of course indeed up in Tuzla, they still continued to do that
10 throughout, in Tuco.
11 Q. Yes, but is there now an international aggression against the
12 Serbs? If Croatia is giving arms to the Muslim Bosniaks to fight the
13 Serbs, is that the Croatian aggression against the Serbs in Bosnia? In
14 other words, is it considered that if the Croatian state is assisting the
15 Muslims, is that considered all right if it is assisting the Croats, then
16 it is an international armed conflict? And we have to bear in mind that
17 the Muslims and the Croats are both fighting the Serbs, the third party
18 within Bosnia. So my question is: Did the International Community view
19 in the same way, by the same standard, the assistance that was provided to
20 the Muslims and to the Croats from Croatia, for instance?
21 A. I think the International Community must have realised that of
22 course there were weapons coming across from Croatia into Bosnia which
23 were supplying both -- for which the HVO and the ABiH were benefitted,
25 Q. Just one more thing regarding this assistance. At that time the
1 Muslims were getting some assistance from the Middle East countries and
2 then the Mujahedin arrived, which I'm not going to mention again. And
3 Croatia helped them go to Bosnia to fight with their Muslim brethren. In
4 other words, the Muslim assistance that came from the Islamic countries,
5 that was going, bound for Bosnia, went through Croatia; in other words,
6 Croatia assisted in this? Is that correct?
7 A. That I don't know. I never have known exactly the entry point of
8 those Mujahedin into Bosnia. I don't know how they got in, what routes
9 they took.
10 Q. I think we can clarify that easily. On the one side you had
11 Serbia, Montenegro, and the rest of the border is Croatia. Obviously they
12 did not come through Serbia or Montenegro, so I think that only one route
13 was possible. But if you don't know, you don't know?
14 A. No, I don't know for a fact, but what you say sounds sensible,
16 Q. Now, there's another interesting point in this situation. When we
17 have Croat citizens, Croatian citizens coming to Bosnia to fight there.
18 We know that at the same time we had a war in Croatia, the Serbs, but now
19 the Serbs from Croatia held certain territories occupied in Croatia, Knin
20 and areas that you are probably familiar with. All these Serbs, let's
21 call them rebels, they are all Croatian citizens. They are citizens of
22 the Republic of Croatia. And they were going to Bosnia with their weapons
23 and fought with their fellow Serbs. And in Bosnia they were constantly
24 fighting for the Serbian cause there, with their tanks and arms and
25 manpower, as volunteers. Is Croatia then responsible, internationally
1 speaking, that their citizens are fighting in this war? Do you
2 distinguish between the role of Croatia -- in other words, is there a
3 distinction between the Serbs from Croatia who went there to fight, or if
4 the Croats from Croatia went to fight? What was -- what part is the
5 aggression and what is not?
6 A. Well, I would say that the Croatian government was not controlling
7 those Serbs in the Krajina areas. Now, how many they, the Serbs Krajina
8 area had their own problems, but I don't know how many of them moved into
9 Bosnia. It is clear that a lot of the JNA, the Serb regular army, were in
10 Bosnia, but just how many of the Serbs from the Krajinas came into Bosnia,
11 I don't know. But, as I say, I very much doubt whether they were under
12 the control of the Croatian government. Certainly not.
13 Q. I would agree with that. And we also don't know whether some
14 Croat -- or Croatian volunteers who went to fight in Herzegovina, whether
15 they were under a control of the Croatian government or whether it was
16 just a call of their families or call of their ancestral lands or
17 something that led them there. But let's try to establish a simple truth
18 that in Bosnia and Herzegovina there were three constituent groups who
19 were fighting each other, all three?
20 JUDGE LIU: Yes, Mr. Scott.
21 MR. SCOTT: Mr. President, I have not objected this afternoon yet
22 at all, but I think the last statement by Mr. Par takes a step too far.
23 He did make clearly a speech that didn't go into a question, nor did he
24 give Sir Martin a chance to respond whether he agreed with him or not. He
25 led up to all these questions about the Croatians going and whether they
1 were volunteers and then there was never a question. And I think -- my
2 apology. I think Sir Martin should have a chance to respond to that.
3 JUDGE LIU: Well, Mr. Par, besides that objection raised by the
4 Prosecutor, we also have some concerns about the form of your question.
5 We believe that those questions are outside the scope of the indictment,
6 as well as the direct examination. Please concentrate your questions on
7 those events which are related to the indictment, as well as to the direct
9 MR. PAR: [Interpretation] Mr. President, it is our position that
10 one of the key issues in this case is the existence of an international
11 armed conflict in Bosnia-Herzegovina, that this is the question of all
12 questions, or the mother of all questions, as far as my client is
13 concerned. Today I have a competent witness, excellent reputation, and he
14 has been announced by the Prosecution as a witness who will be an expert
15 in the international arms conflict issues. Therefore, I believe that it
16 is my right to put my case to him and to ask for his comments so as to see
17 how this issue of the international armed conflict can be judged and how
18 much light we can shed on it. I will endeavour, in any case, not to go
19 too broadly in my questions, not to go into any speculation, and to allow
20 the witness to express his position as much as possible. Thank you.
21 JUDGE LIU: Ask some specific questions with the proper time
23 JUDGE CLARK: Can I just say something, Mr. Par, that the
24 proposition that you put to this witness, and unfortunately didn't give
25 him an opportunity to respond, which has not been your form so far. I'm
1 sure it was inadvertent - is an interesting one and perhaps it would be
2 good for this witness to respond, and that is your thesis that Croatian
3 volunteers fighting in Bosnia in response to a call to defend their
4 ancestral lands or for whatever motives may equally not have been under
5 the control of Croatia. Now, it would be very interesting, I think, for
6 everybody to hear what Sir Martin has to say in response to that.
7 MR. PAR: [Interpretation] Your Honour, that is not exactly my
8 thesis. The thesis of this Defence is not that only those who were called
9 by their families went there to fight. It was a comment of mine which I
10 myself consider to be a bit of a speculation, and this is why I did not
11 invite this witness to respond to it. And it was to draw a parallel
12 between them and the Serbs who definitely were not under the control of
13 the government. But perhaps I should give Sir Martin an opportunity to
14 answer this.
15 Q. Sir Martin, you heard what Her Honour had asked, and maybe you can
16 give us your comment on it. Do you distinguish between what the Bosnian
17 Serbs were doing and what the Croats and Serbs from Croatia were doing?
18 A. Well, as I say, the Serbs from the Krajina areas in Croatia were
19 not under the control of the Croatian government. Now, there may well
20 have been volunteers that have come to fight in Bosnia. There were
21 certainly mercenaries. And I know Mladen Naletilic and his brigade had
22 people of many different nationalities including Germans, English and so
23 on. But what I'm saying is that of course there may well have been
24 volunteers. A lot of them came from, originally from Bosnia, including
25 Gojko Susak, the Defence Minister. But that is slightly different from
1 what I was describing either yesterday or the day before of large regular
2 army formations moving into another country.
3 Q. I believe that Sir Martin clarified that point.
4 I'm just going to take you very briefly to this area of different
5 ethnic groups and the international armed conflict and try to establish
6 certain facts. In your evidence, you said that you did not consider that
7 to have been a civil war, if I understood you correctly. My question to
8 you is this: If, in Bosnia, there were three constituent groups or
9 peoples who fought each other, so three people of Bosnia were fighting in
10 Bosnia, they were fighting each other, if this is not a civil war, what
11 else was it? I mean, what characteristics or features do you find that
12 that does not make it a civil war?
13 A. I started by speaking my own views. It started as a war of
14 aggression from Serbia. Milosevic, by putting in his paramilitaries,
15 people like Zeljko Raznjatovic, Arkan and his Tigers and the Bijeljina and
16 then it was followed up by regular forces. So it started as aggression
17 from outside Bosnia. Indeed, throughout the centuries, I think I'm right
18 in saying fighting has never actually started in Bosnia ever; it has
19 always come from outside. This time it came from Serbia. But I would say
20 that eventually, the fighting, some of the fighting, had many of the
21 characteristics of a civil war, particularly in a multi-ethnic city like
22 Mostar. That developed the characteristics of a civil war even though the
23 war started -- was initiated by external aggression.
24 Q. I absolutely agree with you that the war started by the Serb
25 aggression and then the situation developed into a civil war, that the
1 Croats jumped in and everybody was fighting everyone else.
2 Let us now focus on Mostar a little bit and deal with your
3 monitoring mission and the things that were going on in Mostar. And if we
4 take into account this multi-ethnic Bosnia, you said that you had a number
5 of meetings with Bosniaks, with their military leadership, political
6 leadership, and that they all expressed to you a very clear position that
7 they were for a unified, multi-ethnic Bosnia. My question to you is
8 this: Did you believe them when they said that -- did you believe that
9 what you -- what they were telling you was really their position?
10 A. In the absence of any alternative, yes, because they were not --
11 the Serbs were out to get their Republika Srpska. The Croats were anxious
12 to obtain their Croatian Republic of Herceg-Bosna. Bosniaks were not
13 after any specific area. They wanted to retake all the territories which
14 they had lost to the Serbs, and that was throughout Bosnia, not in a
15 portion, not like Republika Srpska, a portion of Bosnia, or the Croatian
16 Republic of Herceg-Bosna, but throughout Bosnia. And back to the
17 situation where you had Croats throughout the whole country, Serbs
18 throughout the whole country, and Bosniaks throughout the whole country.
19 Q. So this is a position that they presented to you and that looked
20 acceptable to you. However, did you at the same time see or did you have
21 any information, either from your teams on the field or anywhere else,
22 that in the areas under the control of these same military commanders,
23 that the ethnic cleansing was going on as well, that it was also -- that
24 there were a collection of concentration camps, that it had nothing to do
25 with multi-ethnic proclaimed aims, objectives, and that the reality was
1 completely different? Did you ever notice this discrepancy?
2 A. I would say that no side was guiltless, by any means. There were
3 varying degrees of guilt, but never, ever, since I very first went out to
4 Bosnia, have I heard or seen anything which indicated that the Muslims or
5 the Bosniaks wished to divide Bosnia into one, two, three bits, or
6 whatever. There's no concept of how they would divide it if they wished
7 to divide it, and therefore they've always said they did not want to
8 divide it, and therefore I must believe that. Because what portion of
9 Bosnia would they have wanted, had they wanted to divide it? So I don't
10 believe that that is so.
11 Q. Right. So that means maybe they did not want to partition it.
12 Maybe they wanted to dominate it, they wanted to be a people that would
13 suppress or repress others. You're talking about multi-ethnic character,
14 but the reality in the territory under their control is not giving any
15 signs of their actually nurturing this exotic plant called
16 multi-ethnicity. Perhaps some of -- you're aware that some of the people
17 that you have spoken with are now the accused before this same Tribunal,
18 accused of ethnic cleansing in certain areas around Zenica and elsewhere.
19 So my question to you again is whether the ideas advocated or presented to
20 you by these Bosniak leaders have proven to be something that was not
21 borne out by the reality on the ground.
22 A. I would certainly, as I say, I repeat: There are faults on all
23 sides. And I would like to see Sarajevo a much more multi-ethnic city
24 today than it is at the moment. But if we're talking about division of
25 the country, there is no evidence whatsoever that the Bosniaks wished to
1 divide the country where there's clear evidence that the Serbs did and the
2 Croats wished to have their own third entity. In other words, the
3 Republika Srpska, Croatian Republic of Herceg-Bosna, and whatever is left
4 for the Muslims.
5 Q. Sir Martin, you're prompting me to ask another question now by
6 your answer. If you're talking about the Croats, Bosniaks, Serbs, are you
7 talking about their political leaders? Am I understanding you correctly?
8 You are not talking about common folks, about Bosniak, Croat, or Serb
9 population; you're talking about their leaders. Am I understanding you
11 A. Inevitably, inevitably, I think we're talking about political
12 leadership, yes.
13 Q. Now, why do I ask you this? As a monitoring mission there, you
14 developed information from them whether they wanted ethnic divisions or
15 not. You did not talk to the common people who basically wanted a Bosnia
16 without any blood-letting. Did you seek to get information from that
17 level or did you basically base your information on your contacts with
18 political leadership of all three factions?
19 A. Had we had more time, it would have been fascinating to go out
20 into the streets and talk to the man in the street, but frankly, there was
21 not enough time, and we had to rely on the views of the political and
22 military leaders, because those are the ones who are going to shape the
23 future course of events.
24 Q. I see. Let us try to move towards the end and move on to another
25 subject which is perhaps slightly easier. Sir Martin, could you please
1 answer me now, as somebody who has military experience, as a General.
2 Will you please answer a couple of short questions that I have in relation
3 to the situation in Mostar in 1993, as a military. 1993, Mostar, the
4 conflict between the Croats and Muslims starts, and now, regardless of who
5 was the one who fired first, what was the situation of military
6 conscripts, of men of military age in Mostar at that moment? Did they
7 have to join HVO units of their own will or would they be called up? Did
8 they have any other option but to become soldiers?
9 A. Well, of course, many of the Muslim men of military age were by
10 now locked up in the Heliodrom, Dretelj, Gabela, and so on, but as far as
11 the remainder is concerned, my understanding is that there was a
12 compulsion on men of military age to serve, on both sides, both in the HVO
13 and in the ABiH.
14 Q. That's what I'm asking. And you just said it, that is, those who
15 were Croats had to join the army and those who were Muslims, in West
16 Mostar, had to go to Gabela, that is, to prisoners' centres. That is how
17 I understood you. That is how you saw their fate?
18 A. Well, I said that there had already been a large number of Muslim
19 men of military age detained, but of course those in East Mostar, those
20 that were there of military age were of course required to serve.
21 Q. Well, let's keep to West Mostar. So who takes the decisions? At
22 what level do we have the decision making at the time. Who is it who
23 decides on the mobilisation: You join the army, you go to prison, you go
24 to Heliodrom? At what level are such decisions taken? From what level --
25 from what echelon do the orders come and which then end up in those
1 developments and those events which are alleged in the indictment? At
2 what level are these decisions made as to what the soldiers' tasks will
4 A. I really don't know, but I can only guess, and I assume that it
5 was the Minister of Defence and the Deputy Minister of Defence in close
6 connection with the other political leaders of the Croats. That's how it
7 would normally work, and I assume that's the way it did, but I have no
8 knowledge of the mechanics of the call-up procedures and so on.
9 Q. I understand. So now those able-bodied men of military age in
10 West Mostar, Croats are called up and put on the separation line in
11 Mostar, this war is under way, and they are manning that front. Now, my
12 question is: Do they -- they are put on this front line. Can they have
13 any say with regard to some strategic issues happening in Herzegovina or
14 in Mostar or is it that they are assigned to a task with a limited scope?
15 JUDGE LIU: Yes, Mr. Scott.
16 MR. SCOTT: Mr. President, at this point I think we have to say
17 that I think Nuremberg established that following orders is not a
18 defence. I would object to further inquiry in this regard.
19 JUDGE LIU: Yes. Mr. Par, rephrase your question.
20 MR. PAR: [Interpretation]
21 Q. Very well. Then I will put it in a slightly different way. So
22 that soldier, that foot soldier, a Croat, HVO, a soldier on the Bulevar,
23 he is fighting against an ABiH soldier for months there at that place.
24 Does he have the information, in view of his rank, as a General, what do
25 you think? Does he have any information that would tell him that he is
1 involved in an international armed conflict or is it that he believes that
2 he is involved in a conflict between Aleska Santic Street and Mesa
3 Selimovic Street. Would that be the idea that the soldier has? Does his
4 position there on that front line, does it allow him to have any idea of a
5 broader strategic plan or anything?
6 JUDGE LIU: Yes, Mr. Scott.
7 MR. SCOTT: Mr. President, I object to speculation as to what the
8 individual soldiers knew. I mean, I understand the general principle, but
9 I think we all understand that there's probably different levels of
10 knowledge, but to ask this witness is just pure speculation.
11 JUDGE LIU: Yes. Mr. Par, skip this question.
12 MR. PAR: [Interpretation] Yes, I can do that, but my questions
13 were to learn something from a witness who has -- who is an expert on
14 matters military, who is a General, who knows it and can answer it off the
15 top of his head like this.
16 Q. In other words, does the strategic information ever reach a foot
17 soldier on the front line?
18 A. Well, I would say that the soldier serving in Aleksa Santic Street
19 would have been solely concerned with Aleksa Santic Street and wondering
20 whether he was going to survive the next 24 hours. I don't think he would
21 be concerned with the Vance-Owen Plan or the wide picture.
22 Q. Thank you very much. And to conclude: The Washington Accords of
23 1994 are eventually adopted and peace set in in Bosnia, in Mostar, in
24 1994, thanks to the Washington Accords. Is that an accurate statement?
25 A. I would it's more accurate to say that -- I wouldn't say peace
1 sets in. I would say a stopping of the fighting, but I would not call it
2 true peace.
3 Q. Quite, and my question was in that direction. Can you tell us,
4 based on your own experience and how you saw it, were Mostar and Bosnia
5 split up then, or are these multi-ethnic cities, that is, states? That
6 is, now, after all that happened, has Mostar become a unified,
7 multi-ethnic city, or is it a partitioned city? Does anyone know the
8 answer to that question? Do you know it? Can you tell us what option has
9 had the upper hand?
10 A. Well, I would say that in 1990 -- after the Washington Agreement,
11 Mostar was a totally divided city, but the reason why it was totally
12 divided was because the Croat side would not permit any freedom of
13 movement. And we used to be fighting this particular battle every single
14 day, attempting to get freedom of movement from east to west, from west to
15 east. And it was -- as I think I indicated maybe yesterday, the problem
16 that we faced was the hard-line people we were dealing with on the Croat
17 side who did not wish to see a unified Mostar.
18 Q. Very well. Thank you for your patience, Sir Martin. I have no
19 further questions.
20 MR. PAR: [Interpretation] Your Honours, thank you very much.
21 JUDGE LIU: Now, Mr. Scott, are you going to do your
22 re-examination, or we break here?
23 MR. SCOTT: I do have redirect.
24 THE INTERPRETER: Microphone, Mr. Scott
25 MR. SCOTT: I do have re-direct, Your Honour. And I'm not
1 suggesting that we lose the time, but it might just as well be that we
2 take an earlier break and start earlier again rather than start one or two
4 JUDGE LIU: Yes. We might break here. Mr. Usher, would you bring
5 the witness out of the room first.
6 We'll resume at 20 minutes to 6.00.
7 --- Recess taken at 5.12 p.m.
8 --- On resuming at 5.42 p.m.
9 MR. KRSNIK: [Interpretation] Your Honours, before the witness
10 comes in, a very short question. May I? Your Honours, I must seek an
11 explanation, or perhaps I simply did not understand it right, regarding
12 our submissions for -- our motion for acquittal. We've also studied the
13 Rule 98 bis, which says, in its last sentence, and within seven days of
14 the close of the Prosecutor's case and in any event prior to the
15 presentation of evidence by the Defence pursuant to Rule 85(A), and then
16 Rule 127. We should like to ask for a slightly longer period of time. We
17 are asking it, and we believe we have a strong case to do it. Of course,
18 we were very specific and very concrete in our motion to the Chamber. We
19 presented our view, our position, in very clear terms. If I'm correct,
20 and my learned friend will correct me if I am, but I believe they also
21 agreed that we could have 14 days. But what is important for us is that
22 the countdown starts after the Status Conference, that is, as of
23 Wednesday. You would make us very happy, and of course if our learned
24 friends do not object to it. Because now we have to prepare for the
25 Status Conference, and if we could have seven days as of Wednesday, we
1 would be very happy. But hoping, of course, only that the countdown does
2 not start today. But we shall hear what our learned friends say, or at
3 least that it starts on Monday, that is, to have at least the weekend and
4 the period after Wednesday to write it down as best we can and as best we
5 should. Thank you very much.
6 JUDGE LIU: As I understand, that the Rule 98 bis said the seven
7 days should be run after the close of the Prosecutor's case. I understand
8 that there are still some documents which will be tendered through this
9 witness. And you also have some time to make a response to those
10 documents. Then the Trial Chamber will make decisions concerning the
11 admission of those documents. And after that, I believe that will be the
12 proper time for the closure of the Prosecutor's case. Then time begins to
13 run. The reason why I mentioned this very issue, to let you know
14 beforehand, so that you could have, you know, proper time to prepare your
15 motion. Maybe right now, but the time will not run from today or from
16 next Monday. I'm quite sure about that. But the Rule said seven days. I
17 think we all have to abide by this Rule.
18 MR. KRSNIK: [Interpretation] Thank you very much, Your Honour.
19 JUDGE LIU: Mr. Usher, would you please bring in the witness.
20 MR. SCOTT: Mr. President, I clearly understand the Court's
21 ruling, of course. I just feel as perhaps a matter of honour I should
22 tell the Chamber that when counsel asked me yesterday, I had agreed
23 that -- I had indicated we would agree to a bit longer time. Just so the
24 Court knows and I want to be true to my word to Defence counsel and I had
25 said that.
1 JUDGE LIU: But I believe that, you know, your agreement was
2 subject to the rulings of this Trial Chamber.
3 MR. SCOTT: Absolutely, Your Honour.
4 THE INTERPRETER: Microphone, Mr. Scott.
5 MR. SCOTT: I didn't mean to suggest the contrary, at all, Your
6 Honour, but when I make an arrangement or at least offer to make an
7 arrangement with counsel, I want to make sure that I act consistent with
8 that, and I thought I should advise the Chamber that what representations
9 made were correct.
10 JUDGE LIU: Thank you very much for your information.
11 Any re-examination, Mr. Scott.
12 MR. SCOTT: Yes, Your Honour. Thank you.
13 Re-examined by Mr. Scott:
14 Q. Sir Martin, one of the questions that Mr. Par put to you this
15 afternoon was whether there was in fact no reason for the Bosnian Croats
16 to wage war, to continue the war after or as of early 1993. Let me ask
17 you this: Can you tell the Chamber, to your knowledge, did the Bosnian
18 Croat leadership continue to seek after and have as a goal the Croatian
19 Community of Herceg-Bosna or Republic of Herceg-Bosna throughout 1993?
20 A. Yes, indeed, and I think I made it clear that in my view, the
21 fighting started because the Croats had misunderstood, deliberately or
22 otherwise, the Vance-Owen Peace Plan provinces and assumed that
23 particularly cantons 8 and 10 -- provinces 8 and 10 were Croat and
24 therefore they wanted to ensure that those were -- and including, that it
25 be right up to Vitez, Busovaca, and so on, and of course, as I said, they
1 wanted Mostar as the capital of their Croatian Republic, Croatian Republic
3 Q. And likewise, at least until the time of that the Washington
4 Agreement began to take some substantial form, is it fair to say that they
5 also, the Bosnian Croat leadership also was still seeking some sort of
6 connection, linkage or attachment to the Republic of Croatia?
7 A. Yes. The Washington Agreement had visualised, first of all, the
8 Federation between the Croats and Bosniaks in Bosnia, and then a
9 confederation with Croatia, but that was knocked out in the Dayton
11 Q. Now, in terms of questions about fighting that was taking place in
12 the first six months or so of 1993, there are questions about that. Is it
13 correct, sir, or can you confirm to the Chamber that in fact -- my
14 mistake. I'm sorry. Not only early in 1993 but the latter part of 1992,
15 and can you confirm that the HVO attacked Prozor as far back as October
17 A. Yes, that is correct.
18 Q. And did they attack Travnik in November 1992?
19 A. I'm trying to remember Travnik. Now, I just cannot quite remember
20 the chain of events in Travnik.
21 Q. Very well.
22 A. It eventually became Bosniak in early 1993, but I can't -- up
23 until then, to the best of my knowledge, it had been mixed.
24 Q. Very well. Can you confirm that the HVO initiated fighting in
25 Gornji Vakuf and in Busovaca in January 1993?
1 A. That is my understanding. That's where --
2 THE INTERPRETER: Could the counsel and the witness please break
3 between question and answer.
4 A. I'm sorry. I'm sorry. That is my understanding, that the first
5 shots were fired in Gornji Vakuf and Busovaca.
6 MR. SCOTT:
7 Q. And can you also confirm to the Chamber that the HVO launched an
8 initiative or an offensive in the Vitez Kiseljak area in mid-April 1993?
9 A. Yes. And of course it was in April 1993 that we had the massacre
10 at Ahmici.
11 Q. And to confirm that one of the topics we've spent a great deal of
12 time talking about this week, can you also confirm again, sir, in your
13 view that it was the HVO who initiated the attack on Mostar on the 9th May
15 A. That is certainly my clear understanding, yes.
16 Q. And in terms of the referendum for an independent
17 Bosnia-Herzegovina, can you tell the Chamber what would the result have
18 been if the Croats, the Bosnian Croats, had not supported the referendum?
19 A. Well, if they had boycotted the referendum, then no doubt all --
20 if the Croats had boycotted, then whether it would have been accepted by
21 the International Community as the wishes of the country if only the
22 Bosniaks had voted, I am -- it's difficult to say, but the fact that both
23 the Croats and the Bosniaks took part in the referendum and voted for an
24 independent Bosnia, it was accepted, even though the Serbs had boycotted
25 the referendum.
1 Q. Let me ask my question perhaps slightly differently. If the
2 referendum had not passed, what would the result have been, for both the
3 Croats and the Bosniaks?
4 A. Well, I suppose the International Community might not have
5 accepted --
6 JUDGE LIU: Yes. Yes, Mr. Par.
7 MR. PAR: [Interpretation] Mr. President, I think this is a
8 speculative question. The witness cannot say what would have happened if
9 something had or had not happened. Simply, it is too speculative, and I
10 trust you will not allow this question.
11 JUDGE LIU: Mr. Scott, it is speculation.
12 MR. SCOTT: I'll move to a different question, Mr. President.
13 Thank you.
14 Q. Sir Martin, let me put a similar question to you this way, perhaps
15 if it assists: By voting for an independent Bosnia-Herzegovina, was that
16 in any way inconsistent as a step on the road to the Croatian Community of
18 A. No. It was an independent Bosnia as it had been an independent
19 Slovenia and an independent Croatia.
20 Q. Now, questions going back to Mr. Meek's cross-examination. Fairly
21 early he asked you if -- sorry. He asked you whether it would be unfair
22 to use your interpreter as a source. And Sir Martin, I'd like to clarify
23 that, because sometimes in a military or law enforcement context, the word
24 "source" may have a particular meaning. Now, would you have ever
25 considered, for instance, using an interpreter, one of your interpreters
1 as what someone might call a spy?
2 A. Certainly not. We were very conscious that all those
3 interpreters, whether they were Croat or Bosniaks, were always in a very
4 sensitive position, and therefore we were very careful not to undermine
5 their position in any way at all. Inevitably, if one took a Croat
6 interpreter to a Bosniak meeting, she or he would be regarded with
7 suspicion and vice versa. So one had to be very careful indeed, and
8 certainly not use them as, as you say, spies.
9 Q. But is it accurate to say that you did engage in day to day
10 conversation with in your interpreters in which you might learn what was
11 happening in the area?
12 A. Yes, indeed. When one was travelling from A to B, one would talk.
13 But we were always careful not to engage them in trying to elicit their
14 views on specific, particularly sensitive political or military topics.
15 Q. All right. Now, as I understand your testimony, there were many
16 Bosnian Croats in Bosnia with Croat citizenship who in fact even voted or
17 at least could have voted in Croatian elections. Is that right?
18 A. That is so. In fact, to my knowledge, all the Croats in Bosnia
19 had Croatian passports.
20 Q. Did you ever understand, and can you assist the Chamber, whether
21 in fact some of the very strongest support for the HDZ party in Croatia
22 came from the Herzegovinian Croats?
23 A. That is so. That is so. And as I've said, there were a number of
24 Herzegovinian members of President Tudjman's government.
25 Q. Just so the record is abundantly clear, Sir Martin, I take it from
1 the discussions about joint Croatian citizenship, are you suggesting that
2 any part of the territory of Bosnia-Herzegovina, by the presence of these
3 dual citizens, somehow belonged to the Republic of Croatia?
4 A. Absolutely not, and to my knowledge, they were not dual citizens.
5 They were citizens of Bosnia-Herzegovina. They were citizens of Bosnia
6 and Herzegovina. But somehow they were allocated Croatian passports and
7 were able to vote in the Croatian elections.
8 Q. And the very fact that they could vote in Croatian elections
9 effectively meant that they were constituents, we might call them in a
10 democratic system, they were constituents of the Croatian government in
12 A. I suppose you could put it that way, yes, but they were citizens
13 of Bosnia-Herzegovina.
14 Q. Now, you mentioned yesterday, when General Roso was -- excuse me.
15 Replaced General Praljak in approximately November 1993.
16 A. Yes.
17 Q. Can you tell the Chamber, if you know, where had General Roso come
18 from at that time?
19 A. I don't know where he had -- what particular appointment he just
20 moved from, but I know he had spent many years in the French Foreign
22 Q. And do you know whether he had held any senior position in the
23 Croatian government prior to taking -- prior to replacing General Praljak?
24 A. No, I don't.
25 Q. Do you know where General Praljak had come from before becoming
12 Blank pages inserted to ensure pagination corresponds between the French
13 and English transcripts. Pages 8607 to 8614.
1 head of the HVO?
2 A. No. His background, funnily enough, his background was in the
3 theatre and directing, and his abiding passion was Shakespeare.
4 Q. And finally on that question or that series of questions: Do you
5 know who it was that made the decision, effectively made the decision to
6 dismiss General Praljak?
7 A. No, I don't. I speculated about why he was dismissed, and I've
8 said that it could be a combination of events: The destruction of the old
9 bridge, the Stari Most, the lack of general success that the HVO were
10 having at the time, and the crucial loss of Vares, which took place
11 shortly before he was replaced by Roso. But I don't know who would have
12 made the decision. But I think -- no. It would be speculation.
13 Q. Very well. Now, Mr. Meek asked you if a group of 100 Mujahedin
14 would be able to cause a great deal of damage or trouble. Sir Martin, can
15 the same be said about a brigade or battalion of extreme Croats?
16 A. Oh, yes. Oh, yes. A small number of determined people can
17 achieve -- can do a lot of damage, yes.
18 Q. Sir, Mr. Meek questioned you about something -- some statement or
19 some fact not being in your 1998 witness statement, and you began to say
20 something to the effect that that was not what the statement was about,
21 but I want to give you a further opportunity to clarify what you mean, if
22 you recall that question.
23 A. Which -- I'm sorry, which one was that?
24 Q. Mr. Meek asked you about something -- put it to you that something
25 was not contained in your 1998 witness statement. That Tuta was not
1 mentioned in your statement.
2 A. Yes, indeed. Indeed. And I think I said because the subject was
3 basically the subject of that particular statement was Central Bosnia and
4 Dario Kordic.
5 Q. You gave some answers mentioning the Catholic church, and I think,
6 sir, lest we receive inquiries from the Vatican, perhaps you should be
7 more specific. Was there some particular component or part or group of
8 the Catholic church that you say opposed --
9 JUDGE LIU: Yes, Mr. Krsnik.
10 MR. KRSNIK: [Interpretation] Your Honour, I think that the
11 Catholic church is not mentioned in the indictment. I don't think that
12 the Catholic church was mentioned here. It is not in the indictment or
13 it's not subject of the indictment. We're not here to try the church.
14 And in any event, I don't think that the witness, whom we all respect
15 here, should not be bothered with these questions. I'm lead counsel here
16 and I felt obliged to get on my feet.
17 MR. SCOTT: Mr. President, it was mentioned in question -- in both
18 cross-examinations both by Mr. Meek and Mr. Par.
19 JUDGE LIU: We understand that the Catholic church was mentioned.
20 That's quite sure. But we don't know how relevant this issue is to this
21 very case. Is there any point to pursue it?
22 MR. SCOTT: I think there is, Your Honour, several things. One
23 is, I think it's really unfair to leave a broad statement on the record
24 like that without clarification, which can only be perhaps viewed by some
25 as inflammatory. Secondly, in the Defence case, I think it will come up
1 and I think it needs to be clarified. This witness is in a position, I
2 believe, to clarify it, and I think he should be given a chance to do so
3 while he is here.
4 JUDGE LIU: Yes.
5 MR. KRSNIK: [Interpretation] I'm very surprised that my learned
6 friend is speculating, or perhaps he already has some knowledge about what
7 my case is going to be. But something rang a bell. The Croatian press is
8 filled with comments about my Defence and the information that no one
9 should have known, as has been published. I may even seek protection from
10 this kind of obstruction, perhaps at the Status Conference next week,
11 based upon what my learned friend has said. But in any event, we cannot
12 discuss issues and present context here which are not contained in the
13 indictment. I repeat this, and I'm sorry if I'm taking the time to do so,
14 but I'm not sure that I understand what kind of general questions or what
15 kind of speculations may be -- may have anything to do with this case.
16 [Trial Chamber confers]
17 MR. KRSNIK: [Interpretation] Your Honour, with your permission,
18 Mr. Meek told me that he had asked not a single question about the
19 Catholic church, and because this is a re-examination, I think the
20 question is completely inappropriate.
21 JUDGE LIU: Well, we believe that during these proceedings, at
22 least during the direct examination, the witness answered questions
23 concerning the view expressed by the Catholic church, as well as in other
24 witness's testimony. Let me hear what this witness is going to tell us.
25 Then at a later stage we will decide whether it's relevant to this very
1 case or not.
2 Mr. Scott, you may continue.
3 MR. SCOTT: Thank you, Mr. President.
4 Q. Sir Martin, can you please indicate: When you said -- when you
5 gave the answers previously, can you tell the Chamber whether there was
6 any particular group or portion of the Catholic church in particular that
7 you were referring to?
8 A. Yes. Yes. The Catholic church in Mostar, in Mostar. Perhaps I
9 should explain that the -- there's quite a big gap between the Franciscans
10 and Roman Catholic church.
11 JUDGE LIU: Yes, Mr. Krsnik.
12 MR. KRSNIK: [Interpretation] Your Honours, I would like the
13 witness to be asked where this information comes from, what year he's
14 referring to, because our case is 1993 to early 1994. There is no mention
15 of this within that time frame. This may refer to something that happened
16 in 1995, 1996. Can we get a clarification? Was this information that
17 refers to 1993.
18 JUDGE LIU: Yes. I believe Mr. Scott will clear it up for us.
19 MR. SCOTT: Yes, Mr. President. If the witness can be allowed to
20 finish his answer, then I will follow up with the time frame?
21 A. Yes. I was just setting the scene that there was a schism between
22 the Roman Catholic church and the Franciscans. The Franciscans had been
23 in Bosnia since the Eleventh Century and it is the Franciscans who Croats
24 have turned with their problems over the years. The Roman Catholic church
25 I believe was only established at the time of the Austro-Hungarian Empire
1 of some hundred years ago. To be specific, we're talking about early
2 1994, when we were -- I was trying to arrange meetings with the bishop of
3 Mostar and Mr. Hans Koschnik. I first had a meeting with the vicar
4 general, the bishop's number 2, and after saying that -- telling me that
5 the E.U. Administration in Mostar was going to be thoroughly humiliating
6 for the Croats, it was going to be like the British rule in India. He
7 then launched into a long, long tirade against the Muslims or Bosniaks,
8 including warning of Islamic fundamentalist state. I then had a meeting
9 with the bishop, who is a very hard man. We did not discuss this subject,
10 but I asked him whether he would -- the mufti in East Mostar had asked
11 whether he could meet the bishop. I put this to the bishop that it would
12 be nice if he had a meeting with the mufti. He looked at me coldly and
13 just said, "Don't interfere." I remarked at the time that the support we
14 were going to get from the bishop in Mostar, the reconciliation between
15 two sides I considered to be minimal or maybe zero.
16 Q. Sir, for the record, is the mufti that you're referring to of
17 Mostar, was that a man named Sead Smajkic?
18 A. Yes.
19 Q. You indicated and you did clarify toward the end of your
20 cross-examination, I had made this note frankly yesterday, but can you
21 tell us, in terms of the position of the two parties and by that I mean
22 the Croats and the Bosniaks, concerning the status of the city of Mostar,
23 what was the HVO's first position, if you will, during 1993 about what
24 Mostar should be, what kind of city it should be, their first or preferred
25 position, if you will?
1 A. The HVO?
2 Q. Yes.
3 A. Well, if I could refer to the Croat leadership.
4 Q. Very well.
5 A. The Croat leadership wanted Mostar as the capital of the Croatian
6 Republic of Herceg-Bosna.
7 Q. Now, later, did they fall back to a different position, and what
8 was that?
9 A. At the start of the E.U. Administration, it then became apparent
10 that it was not going to be a Croat city, so then they attempted to make
11 two municipalities, in other words, a Bosniak one on the east side, a
12 Croat one on the west side. In other words, dividing Mostar, with the
13 results of the war virtually down the line of the River Neretva.
14 Q. Essentially, an East Berlin and West Berlin?
15 A. Correct.
16 Q. Mr. Meek, I believe, it may have been Mr. Par, but one of the
17 Defence counsel asked you questions whether the Croats wanted peace. And
18 sir, can you tell us, can you tell the Chamber again, please: Was it the
19 ECMM's assessment that it was the HVO which was on the offensive
20 throughout Central Bosnia and Mostar in the April/May/June 1993 time
22 A. Of course the fighting in Central Bosnia by then had become pretty
23 general, with both sides fighting each other. There was a very big
24 difference. Up in the north, in Tuzla, the Croats and the Bosniaks were
25 fighting together against the Serbs; in Central Bosnia they were fighting
1 each other; and in the south, we had the fighting in Mostar.
2 Q. And can you tell the Chamber whether the balance or whether the
3 military situation had shifted by the late summer of 1993, I mean, in
4 relation to the HVO and the ABiH?
5 A. The situation in -- I reckon by towards the end of the year, the
6 balance was shifting against the Croats, particularly in Central Bosnia.
7 In Mostar, the line did not change, although East Mostar continued to be
8 progressively further destroyed.
9 Q. So in answer to the question -- Defence counsel's question when
10 you said the Croats wanted peace, was that at a time when they had become
11 at a military disadvantage?
12 A. That was my -- that was my personal assessment. That was about
13 the end of the year early 1994 that they were definitely on the
14 defensive. They had just lost the key town of Vares and they were not
15 having military successes and they saw the ABiH are getting stronger.
16 Q. Now, Sir Martin, as best I can tell, there have been questions
17 seemed to have been raised concerning when you formed some of the
18 assessments you did and the basis for your assessments and perhaps there
19 was some suggestion that in fact some of these views maybe were only
20 formed sometime later and in fact whether these were simplified views. Do
21 you believe you formed simplified views of what was happening in
23 A. We were up against -- we couldn't wait. We had to produce reports
24 every night, and at the end of the week, a weekly assessment. So these
25 were not views and opinions and facts produced with hindsight. They had
1 to be written on the very day in question to meet the time scale of the
2 various reporting procedures through the RCs to Zagreb and then on to the
4 Q. Concerning the documents that the Prosecution showed you, from
5 1993 and 1994, can you just please clarify so the record is clear: Did
6 those reflect assessments or conclusions that you somehow only reached at
7 a much later time, or were those your assessments and observations in 1993
8 and 1994?
9 A. Those were my assessments and views in 1993 and 1994, at the time
10 that I wrote the reports, which was nearly always on the day of the actual
11 report, although, as I say, at the end of the each week we would produce a
12 weekly assessment.
13 Q. If I can just -- I'm only going to take one example, but if I
14 could ask you to turn, please, in the binder to Exhibit 458. Towards
15 the -- not the front, but more toward the front of the binder than toward
16 the back. And of course ..
17 A. Yes. I've found 458.
18 Q. If you would turn again please to what would be overall, including
19 the cover pages, the fourth page of the document, the list that we looked
20 at the other day, where it says the summary of aims and there were several
21 points attributed to the HVO.
22 A. Yes.
23 Q. Sir, in the interests of time, I had written each of these down in
24 my notes, but I don't see that that's really necessary. I'll just simply
25 pick one. Directing your attention to 3(c), Eventually cleanse provinces
1 8 and 10 of the Muslims in pursuit of their dream of Herceg-Bosna. Now,
2 as an example, was that in fact your assessment and your observation in
3 1993 based on your experience on the ground?
4 A. Yes. I would say that was a fair assessment.
5 Q. And I think finally, you were also asked about the basis of your
6 assessment of Mr. Naletilic, that is, Tuta, which counsel seemed to
7 indicate seemed -- your opinion seemed to be rather negative. Let me ask
8 you this, and I'm going to caution you, in light of some of the cautions
9 that the Court has given me, given us earlier. I don't want you to give
10 any specifics of any other events or conversations or meetings, but just
11 answer this question, please: During the time that you continued serving
12 in or in connection with the Mostar region, from July 1993 to late 1998,
13 did anything happen? And again, don't tell me what or anything, but did
14 anything ever happen or information come to your attention that caused you
15 to form a more favourable assessment of Mr. Naletilic?
16 JUDGE LIU: Yes, Mr. Meek.
17 MR. MEEK: Your Honour, this question goes well beyond the scope
18 of the present indictment. Now we're wanting to ask the witness questions
19 clear into 1998 and I understand that my learned colleague attempted to be
20 very clever in that question, but it's going way, way past this, and I
21 object, Your Honour.
22 MR. SCOTT: Mr. President, let me respond.
23 JUDGE LIU: You don't regard this question is in favour of your
25 MR. MEEK: Your Honour, I regard the question as being -- wanting
1 to bring forth evidence of things that may have happened in 1995, 1996,
2 1997, and the following years.
3 MR. SCOTT: Mr. President, let me respond, please. I am being
4 very careful, in light of the Court's ruling, not to talk about any
5 specific other events or conversations which might have occurred.
6 However, I think this witness was challenged by the Defence as to the
7 basis of the statements that he has made concerning Mr. Naletilic and
8 whether they were ill formed or whether, you know, without basis and
9 without going into any detail I simply asked the witness the question that
10 I did, that based on the totality of his experience in Mostar, did
11 anything ever happen which would have changed his assessment to a more
12 favourable assessment of Mr. Naletilic, and that's my final -- excuse me,
13 counsel. That's my final question.
14 JUDGE LIU: Yes, Mr. Meek.
15 MR. MEEK: Mr. President, Your Honour, it appears to me that
16 again, for the second time, Mr. Scott has tried to caution the witness
17 before answering, and in the argument not to talk about any specific
18 events or conversations which might have occurred. It's very clear, from
19 Sir Martin's testimony, that he only had one conversation with Mr. Tuta,
20 and that was August 15th, 1993. Only one conversation was ever held. And
21 I'm not going to reiterate my previous objections, because you know what
22 they are, Your Honours. And I'll sit down now. Thank you.
23 JUDGE LIU: I understand, but the conversations which might not be
24 between this witness and your client. It may be with the other persons.
25 But Mr. Scott, we don't think this question is essentially
1 important to this very case, because we have already heard what the
2 witness said about the accused. So would you please skip this question.
3 MR. SCOTT: I will do that, Your Honour, and if I can just look at
4 my notes, then, it may conclude my re-direct.
5 Sir Martin, the Prosecution thanks you for your testimony.
6 No further questions, Your Honour. Thank you.
7 JUDGE LIU: Any questions. Judge Clark
8 Questioned by the Court:
9 JUDGE CLARK: Sir Martin, I hope the series of questions that I'm
10 going to put to you doesn't spawn an entire new re-examination because I
11 have managed to do that on a few occasions, so I'll tread carefully. In
12 relation to the referendum that was held in 1992 in Herzegovina, am I
13 correct in saying that the issue which was put to the people of Bosnia, I
14 should say, was whether they would leave the country of Yugoslavia?
15 A. Yes. I don't know the precise wording of the question in the
16 referendum, Your Honour, but it was following the declaration or the
17 agreement, the recognition of independence of Slovenia and then Croatia
18 and then it was agreed, I think it was the Badinter Commission, agreed
19 that Bosnia could also have independence subject to a referendum.
20 JUDGE CLARK: And that was the referendum that Mr. Karadzic
21 refused to allow his supporters to vote in?
22 A. That is correct.
23 JUDGE CLARK: Now, the next question that I wanted to ask you is
24 really in relation to the international armed conflict. Following the
25 Washington Accord and the Dayton Agreement, is it your assessment of the
1 situation on the ground that there was no further military involvement of
2 the government of Croatia in the area of conflict in this indictment,
3 that's the area of southern Bosnia-Herzegovina?
4 A. Yes. I think the last -- the time the Croatian army were in
5 Bosnia was during the follow-up to Operation Storm in August 1995, the
6 sweep-up through Western Bosnia, but I think once the Dayton Agreement was
7 signed, I'm not aware of any further involvement by the Croatian army in
9 JUDGE CLARK: And did that coincide with the cessation of the HVO
10 military activities? I don't mean incidents, but military activities.
11 A. Yes. Following the Dayton Agreement, there was no more fighting.
12 I won't say it was a cessation of fighting as opposed to full peace.
13 JUDGE CLARK: Cessation of hostilities, yes.
14 The next question now goes away from that issue. When you talk
15 about the aspirations of the Bosniaks to maintain Bosnia as a multi-ethnic
16 country, and you talked to leaders in relation to Mostar as a multi-ethnic
17 country, was there any room in the city of Mostar for the Serb families
18 who had been pushed out in 1992?
19 A. Yes, indeed, Your Honour, and in fact, we spent a lot of -- there
20 were a number of Serbs still in Mostar throughout this time and during the
21 E.U. Administration they held positions of authority in the government.
22 But we spent a great deal of effort and time in 1977 and 1978, and
23 particularly in 1998, getting Serbs back into the Neretva valley in
24 Mostar. So the Serbs were returning.
25 JUDGE CLARK: I'm glad to hear that, but the question that I was
1 really interested in, Sir Martin, was: Were the Serbs included in the
2 Bosniak's aspirations for a multi-ethnic city and area?
3 A. Yes, indeed. And indeed they were written into the EU Statute for
4 Mostar. Bosniaks, Serbs, and Croats, which was agreed by all three
5 parties. So there were firmly written in. A number of their seats were
6 left vacant because there were not sufficient Serbs back in Mostar at that
7 stage. But certainly the Statute visualised them sharing power on a
8 proportional basis with the Croats and the Bosniaks.
9 JUDGE CLARK: Thank you. Now, a different subject now. If I
10 could refer you to Exhibit 565.2, and that's your daily summary from the
11 15th of August, 1993, which obviously is very relevant to the accused Mr.
13 A. Yes. Yes.
14 JUDGE CLARK: In that document, you described how one of the
15 guests at the lunch was the Commander of the HVO Special Forces, Tuta.
16 A. Yes.
17 JUDGE CLARK: How did you come by that information that he was the
18 Commander of the Special Forces?
19 A. I can only assume that he must have told me at the lunch, although
20 I'm surprised he did not say that he was the commander of the Siroki
21 Brijeska Kaznjenicka Bojna, the Convicts' Brigade, because he was very
22 proud of that and was happy to talk about it to anyone, as I understand.
23 So I can only assume it could have come from him.
24 JUDGE CLARK: And what did you at the time -- now, obviously your
25 information broadened and developed with the period of time that you spent
1 in the area, but at the time in 1993, in August, and in the period between
2 then and early 1994, what did you understand by the term "HVO special
4 A. Well, I knew that they were like most countries' special forces.
5 They would be forces who are particularly highly trained for certain
6 specific dangerous or other tasks.
7 JUDGE CLARK: Did you know anything more about them? Did you know
8 that the HVO special forces at the time had a special name, or can you
9 assist us? I don't want to put words in your mouth, but ...
10 A. No, I'm afraid I can't. I can't be more specific. The name the
11 Convicts' Brigade, I can explain that to you.
12 JUDGE CLARK: Well, I would be glad to hear. I thought that you
13 were going to say that you didn't know anything about them.
14 A. I'm sorry, special forces. The Convicts' Brigade by my
15 understanding Naletilic's explanation, they called them the Convicts'
16 Brigade because they were all members, the members of the brigade had been
17 indicted by UDBA, the Yugoslav Secret Intelligence Service. That's why
18 hence the name Convicts' Brigade.
19 JUDGE CLARK: And what did he tell you about the Convicts'
20 Battalion apart from the condition precedent to entering it, what sort of
21 work did they do?
22 A. Sadly, we did not discuss it on that occasion. I wish we had.
23 JUDGE CLARK: Indeed. Thank you very much, Sir Martin.
24 JUDGE LIU: Judge Diarra.
25 JUDGE DIARRA: [Interpretation] Thank you, Mr. President. Witness,
1 I would like to know if the Mujahedin, who were fighting on the side of
2 the BiH army, were they mercenaries, like those Danes or Germans or French
3 that you found fighting for the HVO, or had they been sent officially by
4 their governments to engage on the side of the BH army?
5 A. Your Honour, I just -- I'm afraid, do not know whether they were
6 sent by their governments or whether they were volunteers. I believe a
7 number of them were volunteers, but I'm afraid I never really studied that
8 matter in that sufficient detail, so I'm afraid I cannot say whether they
9 were volunteers or sent by their governments.
10 JUDGE DIARRA: [Interpretation] And did the HV elements, were they
11 under the military chain of command of the Republic of Croatia or did they
12 act independently on the ground, side by side with the HVO?
13 A. Sorry. Did who --
14 JUDGE DIARRA: [Interpretation] HV elements. Were HV elements
15 under the orders from the Republic of Croatia or did they act
16 independently, side by side with the HVO?
17 A. I do not know the specific command chain, but I think it is 99 per
18 cent certain that they would have been operating under the direction of
19 the Croatian government and particularly the Croatian Minister of
20 Defence. I'm quite certain he would not have put Croatian forces under
21 Bosnian Croat command.
22 JUDGE DIARRA: [Interpretation] Thank you, Sir Martin.
23 JUDGE LIU: Anything arising from the Judges questions?
24 MR. SCOTT: No, Your Honour.
25 JUDGE LIU: Thank you.
1 Yes, Mr. Par.
2 MR. PAR: [Interpretation] Two short questions, Mr. President, if I
4 Further cross-examination by Mr. Par:
5 Q. I'm sorry, Sir Martin. The referendum, would you allow that it is
6 possible that the question of the referendum was asked for an independent
7 and integral Bosnia-Herzegovina? Would you agree that that could have
8 been the question asked of the people of Bosnia-Herzegovina at the
9 referendum? Are you for an independent and integral Bosnia and
10 Herzegovina? Could that have been the question?
11 A. It could have been the question, but sadly, I'm afraid I'm not
12 aware of the question. The fundamental question, I think, would have
13 been: Do you wish to see an independent Bosnia and Herzegovina?
14 Q. Thank you. And my second question is: The Croatian troops, you
15 said that the Croatian troops, Croatian units, left Bosnia sometime at the
16 time of the Operation Storm. Now, my question is: Are you aware of the
17 fact that the Croatian armed forces, the Croatian troops, were, together
18 with the army of Bosnia-Herzegovina allies, that they jointly held certain
19 front lines in the territory of Bosnia-Herzegovina and especially in
20 Bihac, that is, with the permission of both states, the Croatian troops
21 fought side by side with ABiH forces in the territory of Bosnia right up
22 to the time of the Operation Storm and that they shared their objective
23 and that is the struggle against the Serb aggressor?
24 A. It was -- I am quite clear in my own mind that the Croatian
25 troops, Croatian army, were working with the HVO and the ABiH army
1 following in -- following on from the clearing of the Krajina as an
2 Operation Storm when the operation continued up through Western Bosnia,
3 and they were approaching Banja Luka when the fighting stopped.
4 Q. Thank you very much. Thank you once again.
5 MR. PAR: [Interpretation] Thank you, Your Honours.
6 JUDGE LIU: Yes, Mr. Meek.
7 Further cross-examination by Mr. Meek:
8 Q. Sir Martin, Judge Clark asked you about document 565.2, the daily
9 summary from 15 August 1993, the incident -- the one time you spoke with
10 Mr. Tuta, and she asked you, I believe, how you -- why you put in your
11 report that he was commander of HVO special forces. Do you recall that
13 A. Yes.
14 Q. Now, being 37 years in the military, with all your prior
15 experience, you've been -- had a lot of experience in writing reports,
16 haven't you?
17 A. Yes. Yes.
18 Q. And you would agree with me that it is highly important to put
19 down contemporaneously as possible with events that occurred in these
20 reports; correct?
21 A. Correct.
22 Q. And in that report, you don't indicate that Mr. Naletilic, Tuta,
23 ever told you that, did you?
24 A. No.
25 Q. And so am I to understand from your answer of Judge Clark that
1 now, these many years later, you can only assume that he told you that?
2 A. I can only assume. I do not know where I got that information
4 MR. MEEK: Thank you very much. Thank you, Sir Martin.
5 JUDGE LIU: Thank you, Witness.
6 THE WITNESS: By the way, perhaps I could just add one question --
7 one postscript to that. He was clearly Commander of the Convicts'
8 Brigade. I don't think there's any doubt about that.
9 JUDGE LIU: Thank you, Witness, for coming here to give us the
10 evidence. I'm sorry that we have kept you here for so long. We all wish
11 you good luck in your future.
12 THE WITNESS: Thank you very much indeed, Mr. President.
13 JUDGE LIU: The usher will show you out of the room.
14 [The witness withdrew]
15 JUDGE LIU: Mr. Scott, at this stage, are there any documents to
16 tender from your side?
17 MR. SCOTT: Yes, Your Honour, there are. I have to say, and my
18 apologies to the Registry, I have not checked. Many of these have
19 probably been, I'm sure, tendered already. I will read the ones that have
20 been referenced by Sir Martin. P86.1, P359, P373, P386, P396, P397, P458,
21 P460, P465, P532, P553.1, P555.2, P559, P561.1, P565.2, P600, P611.1 --
22 apparently we are not getting a transcript for whatever reason. It is on
23 the list and I can make the list available essentially, Mr. President, but
24 Stringer has just indicated that we are not --
25 [Technical difficulty]
1 JUDGE LIU: Well, please continue. I believe that eventually
2 these numbers will appear.
3 MR. SCOTT: All right. Very well. I believe I just said --
4 frankly, I lost track now, but P611.1, P642, P643, 751 is not tendered, in
5 light of various cautions by the Chamber. P751 is not tendered. P7701 is
6 tendered, the end of tour report. And just so there's no confusion
7 because of the list that accompanied the binder, P772 is not tendered, and
8 P814 is not tendered.
9 JUDGE LIU: Thank you.
10 MR. SCOTT: Mr. President, if -- I see the Registrar indicating
11 that she is still not getting it. Again, if there is any question, I can
12 make the written listing available.
13 JUDGE LIU: Any objections from the Defence side?
14 MR. MEEK: Your Honour, Mr. President, Your Honours, these were
15 documents that were given to us this week, and we would ask, as it's usual
16 practice, until a Status Conference on next Wednesday to follow our
17 objections, to which ones we will object to, which ones we don't, then we
18 won't file an objection to these.
19 MR. SCOTT: Mr. President, I don't object to counsel having some
20 time to respond, but I'm sorry, at this late stage of the proceedings, but
21 it's not correct to say that these are new documents. These are documents
22 that have been in the original binders, most of them, for a long time.
23 JUDGE LIU: Mr. Par.
24 MR. PAR: [Interpretation] We second the request of the Defence of
25 the first accused.
1 JUDGE LIU: Well, since there's bundles of documents tendered
2 through this witness, we believe that it would only be fair to Defence
3 counsel for them to have some time to go through it and file their
4 objections before next Wednesday. It is so decided.
5 MR. SCOTT: Mr. President, the last -- well, there's one other --
6 there are two matters, then, to finish the record in connection with the
7 Prosecution case. Your Honour, there are -- two binders have been
8 provided to the Chamber and to counsel. They were provided to counsel
9 last Friday, almost a week ago. They have been provided to, I hope by
10 now, to the Chamber. And I'll be very transparent, Mr. President, as to
11 what they are. I hope the Chamber can imagine that in the past some
12 weeks, since the Christmas recess, we had essentially embarked on a last
13 review of various documents in the possession of the prosecutor, and had
14 found these -- this collection of documents that we thought should still
15 be tendered. I can tell the Chamber there is a list that's been marked
16 for identification purposes to assist, P897 which should be in the first
17 binder 1 of 2. In terms of the foundation or background, Mr. President,
18 all of these documents, all of these documents, with exception of one,
19 came from the Zagreb archive. The Chamber has heard twice from Mr.
20 Prlic. I submitted would be simply redundant to hear from him yet again.
21 The archive itself and the way that the Prosecutor has accessed and
22 collected documents from the archive is, I think clear, and that is where
23 these documents came from. There is one exception, as I indicated, on the
24 bottom of page 8 of the list. There is P745.2. That single document came
25 from the seized -- what we referred to now some months ago with
1 Mr. van Hecke as one of the seized documents, and once again, the source
2 of those documents, how they were collected, was explained, in fact, on
3 the first or second day of trial, by Mr. van Hecke, and therefore was
4 covered by that. I want to say that a great many of these documents are
5 daily -- how shall I say? The records of daily checking prisoners out
6 from the Heliodrom for labour, that you will see that on such-and-such a
7 day, 20 prisoners were checked out, on the next day, 25 prisoners were
8 checked out, on the next day 30 prisoners were checked out. Many of these
9 documents, just so the Chamber knows that even though the list goes on for
10 some pages, you will see that many of these documents are the same sort of
11 document every day, or virtually every day, many days over a period of
12 time. Also, Your Honour, there are several ledgers, and again, I want to
13 move obviously quite quickly, but Exhibit -- just make sure I have the
14 right -- Exhibit 566.2, Your Honour, for instance, and maybe if I may be
15 allowed, these are ledgers -- these are ledgers this we were able to find
16 of when the prisoners were taken out from the Heliodrom on particular
17 days, and handwritten lists like you might see in a ledger book of
18 journals of entries of the prisoners going out and coming back.
19 So Mr. President, those are those documents. They were tendered
20 to counsel last week. I make it very clear, I understand that counsel
21 will need a time to respond. We would submit those would be our last
22 submissions of documents, Mr. President.
23 JUDGE LIU: Could we hear the response from the Defence counsel.
24 Yes, Mr. Krsnik.
25 MR. KRSNIK: [Interpretation] Thank you, Mr. President. I should
1 like to thank my learned friend for the understanding and the realisation
2 that we need time to respond, especially since the Defence does not have
3 at its disposal the whole machinery that my learned friends have. We have
4 indeed approached the end of the Prosecutor's case, and I should like to
5 say that the Defence has indeed invested a great effort to be up to the
6 task to go through all the documents, all the documents that we received
7 between the 10th of September and this day, that we went through our work
8 every day, getting ready for cross-examination, going through documents,
9 and I say I hope every day and I pray that I haven't erred against my
10 client because of the shortage of time. Now, with a view to all these
11 documents, we indeed need time to make a cogent, a coherent answer. Every
12 document is a story in itself. Every document has to be seen. Questions
13 have to be asked: Why, how, where? Mr. Prlic cannot cover all the
14 documents. Has a particular -- has every single document been proffered
15 by some other intelligence service or here? We need time for that,
16 because this is the intelligence information about the territory. The
17 Prosecutor has given us a very laconic explanation. We've heard it. But
18 I do not want to tax your patience. We shall respond to it all in our
19 written submissions. Thank you.
20 JUDGE LIU: Yes, Mr. Par.
21 MR. PAR: [Interpretation] We shall endorse the position of the
22 first accused.
23 JUDGE LIU: Mr. Scott, concerning these two binders of documents,
24 I believe that the Chamber would like to ask some questions.
25 MR. SCOTT: Of course.
1 JUDGE LIU: The first one is that how long do you think those
2 documents have been in your possession? And when did you disclose all
3 those documents to the Defence counsel?
4 MR. SCOTT: The disclosure question, Mr. President, I've already
5 answered. It was last Friday, a week ago tomorrow. As to the -- how
6 long we've had any particular document, Mr. President, I cannot honestly
7 tell you that off the top of my head. I can tell you, it could be
8 determined. I can tell you that documents come to The Hague from the
9 archive literally every week. New documents come and will continue to
11 JUDGE LIU: Are you suggesting that those are new coming
13 MR. SCOTT: I'm not suggesting anything about those. They might
14 come up, I suppose, for cross-examination material, Mr. President. No,
15 I'm not. I'm not suggesting that we would seek to offer those in terms of
16 our case in chief. I do believe that indeed more material will come in
17 and it may become relevant to the Defence case, in which case we'll tender
18 it and the Chamber will certainly rule as it sees fit.
19 These particular documents, Your Honour, as I said -- and I'm
20 trying to -- I know this is probably not a popular position, given the
21 volume of material the Chamber has, that has been tendered to the Chamber,
22 but again, we've conducted a final review before we wanted to close our
23 case, we collected these documents. Frankly, there were many more, but we
24 thought that these were the ones that the Chamber should have, the ledgers
25 of prisoners being taken from the Heliodrom, the forms that were signed
1 out, and we thought the Chamber should have those. And I say all that
2 completely understanding and not disagreeing with counsel that they would
3 have to have additional time to respond to that.
4 JUDGE LIU: Well, Mr. Scott, as you understand that all those
5 documents tendered should go through a witness or witnesses before this
6 Trial Chamber, unless, unless, stipulated otherwise in the Rules.
7 MR. SCOTT: Mr. President, the only explanation I can give the
8 Chamber is the one I gave already. All these documents came from sources
9 that have been thoroughly testified to by the -- by witnesses in this
10 case. We could have Mr. Prlic come yet again and he would explain yet
11 again the archive that exists in Zagreb. You've heard -- Mr. Prlic has
12 twice appeared on that topic, and I suggest it would be redundant, and
13 that's why we thought it was not necessary. There's a single document
14 from the seized material that again Mr. Jan van Hecke indicated in the
15 early days of the trial. We, therefore, thought there was adequate
16 explanation for the documents, Your Honour.
17 JUDGE CLARK: Mr. Scott, I'm not sure that I understand your
18 response to Judge Liu's question.
19 MR. SCOTT: Yes.
20 JUDGE CLARK: Are you saying that these documents which we're now
21 being asked to receive are, with the exception of one from the Zagreb
22 archive, but that they were not in your possession when Mr. Prlic gave his
23 evidence first and when you gave us the 17 binders?
24 MR. SCOTT: I cannot answer that, Your Honour, truthfully now. I
25 wouldn't try to, because I would probably give the Court a wrong answer,
1 and I'm not going to do that. I think it is highly likely, from my notion
2 of the way these things work, it is extremely likely that -- and I'm
3 almost sure that some of these documents we didn't have at the time -- at
4 the end of August of last year, these documents. But without going back
5 and checking on a document-by-document basis, Judge Clark, I'm not about
6 to make a representation that I can't make in good faith. So
7 that's -- I'm sorry, Judge Clark. That's the only answer I can
8 give. I will be happy -- if the Chamber wants that information on a
9 document-by-document basis, I can seek to document that and provide dates,
10 if that's necessary. But Mr. President --
11 JUDGE CLARK: We might just look at the documents first to see
12 what effect they have on the defendant's position, and if they are not
13 very material, maybe just of some assistance to both sides, that's one
14 thing, but obviously, at this late stage, introducing documents that are
15 capable of being prejudicial might get a different view.
16 MR. SCOTT: Judge Clark, let me hasten to say, because let's go
17 back -- forgive me for -- I know the hour is late, but let's go back to
18 the first principles here. Remember way back to the 10th of September and
19 the status of the documents. There was never 66(B) request -- disclosure
20 request in this case. We said at the time, and even in the pre-trial
21 proceedings, with the prior Judge, Pre-Trial Judge, with Mr. Fourmy, that
22 documents would be tendered as we went, on a daily -- on virtually a daily
24 THE INTERPRETER: Could you slow down, Mr. Scott, please
25 MR. SCOTT: I apologise to the translation.
1 Everyone agreed that that was, in fact, the case, and that was the
2 way it was done. Now, having said that, we have always endeavoured to do
3 better than that, and we have provided the 17 binders before the trial
4 started, we've certainly supplemented those binders as the trial has
5 proceeded and given those, turned those over when we could. These we
6 turned over a week ago, and we think we are still within the Rules, to
7 tender these today, are still within the Rules and the practice that's
8 been applied during the case, recognising that the Defence certainly will
9 have to have a chance to look at them.
10 JUDGE LIU: Yes, Mr. Krsnik.
11 MR. KRSNIK: [Interpretation] Your Honours, is it fair? Could the
12 Defence perhaps have used these documents in their cross-examination? So
13 this was prejudicial to us. Is it fair for the Defence to have to go
14 through all them at the end of the Prosecution's case? Then I hope that
15 in the name of the quality of arms, my learned friend will agree, if
16 this -- if the Chamber admits these documents, that we shall need much
17 more time to check all these documents on the ground, because this is
18 something new that has come up just now. And I agree with
19 [indiscernible]. Otherwise, yes, there was a disclosure. But I'm asking:
20 Is this fair? Perhaps we could have used these documents to check in our
21 cross-examination, had we had them in time, not to mention the work that
22 lies ahead now. If we are going to base our defence on that, then we
23 shall perhaps be forced to ask for an even longer period of time for our
24 response than the one that we were asked when we asked that the countdown
25 start on Wednesday. Thank you very much.
1 JUDGE LIU: Yes, Mr. Seric.
2 MR. SERIC: [Interpretation] Mr. President, thank you very much. I
3 shall be very brief. If I understood well, that we -- that the Chamber
4 had given us until Wednesday to file our objections to the earlier
5 tendered evidence, I think that we shall absolutely not be able to manage
6 even all these new documents by that time. We simply cannot do it. So
7 please give us more time. It will affect, of course, an agreement Mr.
8 Krsnik that the position,
9 the position of the OTP as to your decision regarding the time that the
10 Defence will be given to make all its submissions and to start its case
11 but I suppose we shall be discussing all this on Wednesday.
12 MR. KRSNIK: [Interpretation] Your Honours, I'm sorry. I didn't
13 have time for deal with the documents, but it is said that not all
14 documents have been translated into English. So Your Honours, not all the
15 documents had been translated from Croatian, that is B/C/S, into English.
16 JUDGE LIU: We have to make a distinction between the two sets of
17 documents. One set of documents is that the Prosecutor tendered through
18 the last witness, Sir Martin. This Trial Chamber has made a ruling that
19 if you have any objections, file your objections by next Wednesday. This
20 is so decided. The other elements -- the other documents are those two
21 bundles of documents we just received a few minutes ago, you know. Those
22 are two different issues.
23 Well, we believe that at this moment we are not in a position to
24 make any rulings concerning the last two bundles of documents which are
25 furnished to us just now, and we also believe that it could only be fair
1 to give some time for the Defence counsel to go over all of those
2 documents. So we will reserve any decisions concerning those two
3 documents at a later stage.
4 MR. SCOTT: Thank you, Mr. President. The other item that's a bit
5 of a loose end is that the Chamber may recall -- I don't know if this was
6 a protected witness. Your Honour, I don't have the pseudonym in front of
7 me, but one of the last group of the Prosecution witnesses -- I'll find it
8 in just a moment, Your Honour. Witness AC. The Chamber may recall that
9 there was a considerable dispute and confusion about particular documents
10 put to that witness by the Defence, and the order, and what they were, and
11 whether it was page 2 of the same document, and the Chamber -- this was
12 another instance where the Chamber directed that a supplemental statement
13 be taken from the witness in the presence of the registry, and that was
14 done. And frankly, it's been -- I've been carrying it around with me for
15 the last few days. If I could provide that to the usher at this time.
16 And I would have -- once they're distributed, Mr. President, I do have a
17 comment or two, but I promise to be brief.
18 For the translation booth, there's not going to be any extensive
19 discussion of the document, I assure you.
20 THE INTERPRETER: But if you do read them, Mr. Scott, then please
21 go slowly.
22 MR. SCOTT: Thank you very much.
23 JUDGE LIU: Yes, Mr. Krsnik.
24 MR. KRSNIK: [Interpretation] Yes. That is the document which the
25 Defence asked for, to get a better copy. We should like to thank the
1 Prosecutor. We wanted to see this document, and we appreciate it very
2 much. And of course, we do not object to its admission, because that was
3 precisely the question that the Defence asked.
4 JUDGE LIU: Thank you very much.
5 MR. SCOTT: Mr. President, let me just clarify. When he says he
6 doesn't object to the admission, I believe this is probably more of a
7 Defence exhibit, as it turned out. In any event -- and we don't object
8 it was. We don't object either way. But let me just say -- I do want to
9 say, Your Honour, and I'm only going to treat it briefly at this point:
10 It was very clear in the original -- in the statement, in the witness
11 statement. I have copies of those here, but because of the time, I would
12 not give them out. It was very clear at the time this witness was
13 testifying that this was two -- this was the second page of a two-page
14 document. It said right on the annex to the witness statement.
15 Mr. Krsnik had taken that one part of the page, which we now know
16 is two sides of the same document which has this stamp on it at the bottom
17 of now the same page. That led into a huge controversy over whether this
18 man had a passport or not, and in fact -- I mean, the witness was really
19 put to task. And Your Honour, we respectfully submit there was never any
20 indication -- the evidence will show that there was never, in fact, a
21 passport or any issue of a passport going from Bosnia-Herzegovina to
22 Croatia. And when the witness was asked and there was a suggestion that
23 he was being evasive and he wasn't giving a straight answer, Your Honour,
24 we submit that it was because of the confusion over this document, which
25 was clear -- the witness statement said at the time this was the second
1 page of a two-page document, and that was clear all along and has been
2 made clear again. And that's all.
3 JUDGE LIU: Do we have to debate on this document? I don't think
4 so. There's no disputes of the admission of this document at all. We
5 just have it admitted at this stage.
6 MR. KRSNIK: [Interpretation] Yes, of course, but we do not agree
7 with the clarification, because this certificate is not an A-4 size paper
8 and this stamp could not have been put at the border crossing. But we
9 will leave it until the proper time.
10 It is 7.00 and we are about to finish, but there is something that
11 has been bothering me. You had ordered the registry to check the
12 transcript when I was supposedly -- when I had supposedly revealed the
13 identity of a witness, so I don't know if this check has been done,
14 because it has been bothering me for several days. This was an order for
15 Madam Registrar. The Trial Chamber had ordered that the transcript be
16 checked, that the registry conduct a search to find out whether I had
17 inadvertently revealed identity of one of the witnesses. I had not done
18 so and I was aware of it from day one. But when my learned friend said
19 that additional protective measures should be now given to this witness
20 because it was broadcast on Bosnian television that I had revealed his
21 identity, this is what led to the original ruling. I would just like to
22 have the results disclosed to us at some point. Thank you.
23 JUDGE LIU: Well, taking into consideration the late hour
24 today, I believe that maybe during the Status Conference we could get
25 some feedback from the registrar. Is that all right?
1 Yes, Mr. Scott. Do you have anything to address to this Chamber?
2 MR. SCOTT: Yes, Your Honour. I believe it's perhaps the words
3 that you've been expecting at this juncture. Mr. President, with those
4 submissions, the Prosecution closes its case, subject to a couple of
5 clarifications, which I will make very briefly. But it does close the
6 case, the testimony of witnesses. Sir Martin Garrod was our last witness
7 that we have tendered to the Chamber.
8 The exceptions that we would ask and the reservations we would
9 ask, Your Honour, is, one, as the Chamber knows from prior filings and
10 discussion, in fact, in the courtroom, we would preserve our opportunity
11 to respond to any outstanding exhibit matters. We believe it's only fair,
12 Your Honours. And again, I hasten to say that it's not meant as a
13 criticism of the Chamber or the Chamber staff, and we recognise again the
14 volume of material that we have confronted the Chamber with. But having
15 said that, Your Honour, we feel that we must be -- we submit we must be in
16 a position where, depending on the Chamber's rulings - and I won't assume
17 or presume what those final additional rulings might be - we would want to
18 be in a position to respond, if we could, to correct any deficiencies that
19 the Chamber might find that we have not been able to address without
20 having the Chamber's ruling. So we would reserve the opportunity to do
21 that, and I'll abbreviate my remarks in that regard.
22 The second item that I feel I must report to the Chamber on,
23 because it's come up on a number of occasions, is the question of the
24 wooden rifle. I can tell the Chamber, and I will say to Defence counsel,
25 that we have made ongoing inquiries to pursue those matters and will
1 continue doing so. I do feel that I must say, however, on that
2 point - because there's a little bit of concern on the Prosecution's part,
3 to be perfectly honest - that we do not want the -- whether this
4 particular rifle is ever found or whether it's ever identified in
5 connection with one of the three or four human shields victims that day or
6 not should not take on undue importance. The Prosecution submits that we
7 have presented a full case on that matter. We have presented to you
8 numerous eyewitnesses to the events, we have presented to you three of the
9 four victims themselves who participated in those events, and whether or
10 not a wooden rifle is presented to the Chamber ever, or whether there's
11 anything more about whether it was one of their rifles or somebody else's
12 rifle, the Prosecution case stands on substantial -- very substantial
13 evidence, independent of that rifle. Having said that, given the
14 Chamber's questions of interest or curiosity in the rifle, we are
15 continuing to make inquiries about that.
16 So, Mr. President, with those two comments and the reservation
17 concerning the exhibits, the Prosecution closes its case.
18 JUDGE LIU: Well, Mr. Scott, one point I have to seek some
19 clarification from you, that is, the first one.
20 MR. SCOTT: Yes.
21 JUDGE LIU: You know, we just have been furnished with two bundles
22 of documents. This Trial Chamber has no authority at this moment to make
23 any concrete rulings on those documents. It may take time. We understand
24 that you furnished all those documents just last Friday, as you mentioned
25 before, and we just got it today. So that may take a longer time. So my
1 question is that when this Trial Chamber makes a decision concerning the
2 admission or not the documents you tendered through the last witness,
3 we'll be in the position to say that your case is closed; otherwise we'll
4 wait for another month or two to do that, which is just a waste of time.
5 MR. SCOTT: Mr. President, I think I understand. I think what
6 you've said addresses part of our concern, and that is that the case
7 wouldn't be considered closed, if I understood you correctly, until, in
8 fact admissibility or the admission decisions were made and then the case
9 would be -- you would consider the Prosecutor's case closed. I think that
10 goes, from our perspective, respectfully, part way to address our
11 concerns. But however, Your Honour, our point is this: If you should
12 reject particular exhibits and not accept them into evidence because you
13 say additional foundation would have been necessary -- was necessary as to
14 this exhibit or we have a question as to this exhibit. As you did on some
15 occasions. You may remember that there were ten documents at one point.
16 You specifically advised us of and I think the Chamber knows that we then
17 took steps with Mr. Rule, Officer Rule and others at ECMM to identify and
18 address those ten documents that you mentioned. If you were to do that in
19 the future -- it could be important evidence. It may be something we
20 consider critical to the case and you would say, "Well, we have a question
21 about P75. Could you tell us more about that." Respectfully, Your
22 Honour, we don't think it would be fair to exclude the evidence without
23 giving us a chance, further chance to respond to that and to make the
24 additional showings at that time. So to be clear, we're resting our case
25 subject to the ability to correct any of those -- my apologies, Judge
1 Diarra. I see I'm going too fast again. We rest our case subject to the
2 ability to deal with the exhibits in that way. We believe that we're not
3 critical of anyone or anything about that, but we believe that's the fair
4 way to proceed. Thank you.
5 JUDGE LIU: Thank you. It seems to me there's no other issues
6 that we have to address. So I've been informed that we will have our
7 Status Conference on this case next Wednesday, at 3.00 p.m., in the
8 courtroom 3. During this Status Conference, we would like to hear the
9 views expressed from both sides on the preparation of the Defence case.
10 We will rise until next week.
11 --- Whereupon the hearing adjourned at 7.12 p.m.,
12 to be reconvened on Wednesday, the 30th day of
13 January 2002, at 3.00 p.m.