Tribunal Criminal Tribunal for the Former Yugoslavia

Page 14407

1 Tuesday, 6 December 2005

2 [Open session]

3 --- Upon commencing at 2.20 p.m.

4 [The accused entered court]

5 JUDGE AGIUS: Madam Registrar, good afternoon to you. Could you

6 please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-03-68-T, the Prosecutor versus Naser Oric.

9 JUDGE AGIUS: I thank you, madam.

10 Mr. Oric, can you follow the proceedings in your own language?

11 THE ACCUSED: [Interpretation] Good afternoon, Your Honours, ladies

12 and gentlemen. I can follow the proceedings in my own language.

13 JUDGE AGIUS: Thank you, you may sit down. Good afternoon to you.

14 Appearances for the Prosecution.

15 MR. WUBBEN: Good afternoon, Your Honours, and also good afternoon

16 to my learned friends of the Defence. My name is Jan Wubben, lead counsel

17 for the Prosecution. I'm here together with my team, including

18 Ms. Patricia Sellers, Ms. Joanne Richardson, and as our case manager, Ms.

19 Donnica Henry-Frijlink. Also later on during the session Mr. Gramsci

20 Di Fazio will be present. Thank you.

21 JUDGE AGIUS: Thank you, Mr. Wubben, and good afternoon to you.

22 Appearances For Naser Oric.

23 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honours. My

24 name is Vasvija Vidovic. Together with Mr. John Jones I appear for

25 Mr. Naser Oric. We have with us our legal assistants, Ms. Jasmina Cosic

Page 14408

1 and Ms. Adisa Mehic, and our CaseMap manager, Geoff Roberts.

2 JUDGE AGIUS: I thank you, Madam Vidovic, and good afternoon to

3 you and your team.

4 Any preliminaries before we bring in the witness?

5 MR. WUBBEN: Your Honour, I have an oral submission but I advise

6 to postpone that whenever the issue will be dealt with regarding the

7 Rule 70 witness.

8 JUDGE AGIUS: Thank you, Mr. Wubben, and we'll come to that later.

9 On your part, are there any preliminaries?

10 MR. JONES: I should perhaps mention just in that regard that we

11 did file a reply today. We worked all morning, so it was filed very much

12 at the last minute, not with any intention in mind to surprise anyone but

13 simply because it took us all morning to draft it. Yes. So that's been

14 filed.

15 JUDGE AGIUS: Do you have a courtesy copy by any chance?

16 MR. JONES: In fact, we were in such a rush that I have my own

17 copy but we can make copies at the break.

18 And we would also seek leave to rely to the Prosecution response

19 to the Defence motion regarding Rule 68 dated 2nd December, 2005. That's

20 one small matter which Your Honours can let us know later. And last week

21 I indicated we would be objecting to the authenticity of certain

22 Prosecution exhibits. Those are P600 to P609 for the record.

23 JUDGE AGIUS: Okay. Thank you, Mr. Jones.

24 Mr. Wubben.

25 MR. WUBBEN: Yes, Your Honour. It has to do with the submission

Page 14409

1 by Mr. Jones. I take it that we will provide it with a courtesy copy as

2 soon as possible and that's an urgent need for us has to do also with the

3 oral submission I would like to do. I would like to be provided with such

4 a copy whenever available, so that I can take a look at it, and we need an

5 early ruling on this, and that's why I will take the opportunity even to

6 leave the court for that purpose and later on address the issue as well.

7 And in addition to that, we also filed recently - but I already updated

8 the Defence counsel of that - of a corrigendum to our response by -- filed

9 by Friday. The date of 2004 was incorrect and we should include the US

10 government.

11 Thank you.

12 JUDGE AGIUS: Yes. All right. I thank you, Mr. Wubben. I'm sure

13 that you'll both take into consideration what has been said and try to

14 accommodate one another.

15 Let's bring --

16 MR. JONES: As I say, I'm happy to hand this over. It's my only

17 copy so if --

18 JUDGE AGIUS: Yes. But I think Madam Usher, once she has brought

19 in the witness, can help you. We can even get one of our secretaries to

20 do that.

21 MR. JONES: Yes. There are two ex parte annexes, so I'll remove

22 those for these purposes and give you the rest.

23 JUDGE AGIUS: Thank you.

24 MR. JONES: Thank you.

25 JUDGE AGIUS: Ms. Sellers, how much longer do you think you will

Page 14410

1 require of this witness?

2 MS. SELLERS: Your Honour, I have a series of video clips which I

3 have timed in my office three times this morning so that we fit in between

4 a half hour and I would say no more than 45 minutes. The clips are under

5 a half hour, and it just depends on question and response.

6 JUDGE AGIUS: All right. So that more or less -- are we in

7 agreement that we will just one -- two sessions basically with one break

8 between, that we'll finish around about 6.30 or something like that, 6.15

9 or 6.30? Agreed? I want to make sure that everyone is in agreement.

10 Yes, Mr. Wubben.

11 MR. WUBBEN: I am in agreement with that, Your Honour, but you

12 should be aware that Mr. Gramsci Di Fazio should come in and that might

13 give us some minutes to change as he is not aware of the exact moment

14 that --

15 JUDGE AGIUS: Perhaps Ms. Donnica can let him know.

16 MR. WUBBEN: We will try.

17 JUDGE AGIUS: We will have a break at 4.00; is that correct?

18 Thank you. 4.00, which will be of half an hour. In other words, we will

19 not be sitting from 4.00 to 4.30. And then we'll sit from 4.30 till

20 quarter past 6.00. All right?

21 MS. SELLERS: Your Honour, I slightly overheard what you were

22 saying. I would like to state something. It could be in the presence of

23 the witness or without the presence. I think I can say it --

24 [The witness entered court]

25 JUDGE AGIUS: Please decide.

Page 14411

1 MS. SELLERS: Yes, it can be. I would just like to state in open

2 court, to Defence counsel too, is that Mr. Arria and I crossed in the

3 hallway and he shook my hand and said, "Hello, Mrs. Sellers. It's nice to

4 meet you."

5 I want to put that on the record, okay?

6 JUDGE AGIUS: I take it that doesn't tempt you to -- or prompt you

7 to renounce him as a witness, do you?

8 MR. JONES: It's a close one but I think that --


10 JUDGE AGIUS: So, Ambassador, welcome back. Good afternoon to

11 you.

12 THE WITNESS: Thank you, sir.

13 JUDGE AGIUS: And we are going to proceed with your testimony, and

14 I feel very confident that today we will conclude and you will be able to

15 go back to wherever you would like to go.

16 THE WITNESS: Thank you, sir.

17 JUDGE AGIUS: And, Ms. Sellers, you may proceed with your

18 cross-examination.

19 MS. SELLERS: Thank you, Your Honours.

20 Cross-examined by Ms. Sellers: [Continued]

21 Q. Good afternoon, sir, again.

22 Yesterday where we left off we were speaking about your mission to

23 Srebrenica, and I would like to ask that in terms of the insurgents or

24 rebels, defenders as you've termed it, that you've met who were Bosniaks,

25 Bosnian Muslims defending Srebrenica, did you only meet three of such

Page 14412

1 persons or did you meet a larger number of persons?

2 A. You know, I don't know whether you call them defenders or not

3 because they seemed very defenseless to me. But there were three or four

4 of them, and that's all the men, adults, that we saw while we were there.

5 As I said to you yesterday, only women and children. So there were three

6 or four. And the mayor of Srebrenica.

7 Q. Yes. Now, therefore I just want to make sure that my

8 understanding is that you did not go to any Bosniak, Bosnian Muslim

9 military headquarters while you were in Srebrenica on that day?

10 A. We were informed there was none by the Canadian colonel in charge

11 and the UNPROFOR forces that there was no military group assembly in

12 Srebrenica while we were there.

13 Q. Did you hear of either the Srebrenica army or of the TO of

14 Srebrenica while you were in Srebrenica that day, those terms?

15 A. None of them. We never -- as I think I said yesterday, we never

16 understood there was an army as such, that there were resistance in

17 Bosnia-Herzegovina and volunteers, but not an organised armed forces as

18 such, that the only one that existed were on the Serb side plus the former

19 Yugoslavia side. Those were really army officers.

20 Q. You testified that you went to Potocari. It's one of the names

21 that we could remember. Now, did you meet any fighting forces while you

22 were in Potocari?

23 A. The only fighting forces that we saw in Potocari were Serbs and

24 the UNPROFOR forces who were not fighting.

25 Q. Okay. My next question is: Were you able to go to the municipal

Page 14413

1 building, the city hall as one would say?

2 A. The meeting took place in the -- in what I recall was the city

3 hall, yes.

4 Q. And that's the meeting where you met the villagers and you told

5 them that you were there to protect them. Is that the meeting we're

6 talking about?

7 A. I said that we were there offering protection, yes, by the

8 Security Council, yes.

9 Q. Were you able to go to the police station in Srebrenica during

10 this visit?

11 A. No. Actually, we never saw any policemen. As I said to you, we

12 never saw any adults, and my recollection is there was no police in the

13 area.

14 Q. Okay. And that would be either civilian police nor military

15 police to your knowledge?

16 A. It would be difficult to recognise civilian police, as you know,

17 unless they identify themselves.

18 Q. Okay. Ambassador Arria, right now I'd like to you watch a short

19 video with us, and I'll preface this video by stating that it's P517.

20 And, sir, yesterday you confirmed to us that after your mission in

21 Srebrenica you did become aware that there had been a UN convoy that

22 arrived in Srebrenica in the fall of 1992.

23 A. Could you repeat that, please?

24 Q. You confirmed to us yesterday that after your visit to Srebrenica

25 you were informed, you became aware that there had been a UN convoy that

Page 14414

1 arrived -- that was in Srebrenica in the fall of 1992, in the autumn of

2 1992?

3 A. That's not my recollection.

4 JUDGE AGIUS: Ms. Sellers, my recollection is exactly the opposite

5 of what you have suggested.

6 MS. SELLERS: Well, then, Your Honour, let me retract the question

7 and rephrase.

8 JUDGE AGIUS: I would just like -- don't take my word for granted,

9 but usually I don't go wrong with my memory.

10 MS. SELLERS: Ambassador Arria also said that he didn't remember

11 that, so can I just clarify for my own sake.

12 JUDGE AGIUS: In fact, when you asked him that question, he

13 referred to his talks, discussions with Mendiluce and -- who never

14 actually confirmed what you are suggesting and that rather explained to

15 the witness that there was no such thing as convoys and help and

16 assistance having been there.

17 MS. SELLERS: Sir --

18 JUDGE AGIUS: And that's how I recollect.

19 THE WITNESS: Excuse me. That's precisely why I asked her to

20 repeat the question because I thought I had responded precisely in the

21 opposite direction.



24 Q. Okay. Then I'll take that as your testimony and that's clear now.

25 I would ask you to watch the video on your screen, sir.

Page 14415

1 MS. SELLERS: It's in Sanction, Your Honour.

2 [Videotape played]

3 MS. SELLERS: Sir, referring back --

4 JUDGE AGIUS: Yes, Ms. Vidovic.

5 MS. VIDOVIC: [Interpretation] Your Honours, I'm not at all certain

6 that the subtitles we were able to read here had anything to do or

7 corresponded to the words spoken, and we reserve our right to place an

8 objection on this. I was unable to follow. It was quite difficult to

9 hear. But I believe that what we were able to read in the English version

10 did not correspond to what was actually said.

11 JUDGE AGIUS: Yes, Ms. Sellers, are you going to refer the witness

12 to particular parts of the script that we saw under the video or not?

13 MS. SELLERS: No, Your Honour, I'm not. As a matter of fact, for

14 purposes of this video, it is not the written word. What I will do is

15 check that when we first entered this exhibit whether the transcript had

16 already accompanied it and whether it was objected to.

17 JUDGE AGIUS: Let's proceed.


19 Q. Sir, my question after you have seen the videotape, is there

20 anyone in that videotape you recognised as having seen in Srebrenica the

21 day you were there?

22 A. I was looking at the one with the blue jacket, but it's difficult,

23 you know, to tell you a hundred per cent that that's the same person.

24 It's already a few years back and I could have seen someone else. But the

25 one with the blue jacket was the only one that seemed familiar of

Page 14416

1 everybody that I saw there. And I don't know whether the one on the

2 screen is Radic or not on the right side because in my screen it's not

3 very clear. But that's all.

4 MS. SELLERS: Your Honour, might I ask two things. To have the

5 assistance of the usher to see if his screen can be made as clear as

6 possible. I just want to briefly play that tape again and then I'm just

7 ask the very same question.

8 JUDGE AGIUS: Yes, playing it again is what I was going to

9 suggest. From the other point, on the other issue, I don't think we can

10 do anything. I mean, we have had this problem last week, and I don't

11 think there is a solution to it. We had a technician come in and not

12 fiddle, but try to make adjustments and didn't succeed.

13 Yes, just a second.

14 [Trial Chamber confers]

15 JUDGE AGIUS: And --

16 THE WITNESS: Your Honour, I can see it. If I stand up I can see

17 it.

18 THE INTERPRETER: Microphone, please.

19 JUDGE AGIUS: The thing is this, Ambassador, I mean, just try to

20 follow this video which we are going to replay, and if you recognise

21 anyone at any given point in time, just say stop and we'll stop there,

22 we'll freeze the picture there, and then if Madam Sellers would like to

23 put any questions to you, she will of course.

24 THE WITNESS: Your Honour, may I caution you that when I said I

25 recognise, actually, I mean, looks familiar but you know so many people

Page 14417

1 that you see in this.

2 JUDGE AGIUS: So let's start from the beginning, please.

3 MS. SELLERS: Thank you, Your Honour.

4 [Videotape played]




8 Q. Mr. Arria, do you recognise that person?

9 A. I said he looks familiar to me in my recollection, but I cannot

10 say that I recognise him.

11 Q. And who would that person look familiar to or under what

12 circumstance if that would be the person you're referring to?

13 A. Sorry, Ms. Sellers, I don't understand.

14 Q. He looks familiar to you. Can you remember whether you saw him in

15 Srebrenica possibly on that date?

16 A. No, I cannot say that.

17 Q. Do you know whether he --

18 JUDGE AGIUS: Which date? On the 25th?

19 MS. SELLERS: 25th of April.

20 JUDGE AGIUS: Of April.

21 MS. SELLERS: Right.

22 Q. Do you know whether he was the mayor of the Srebrenica that you

23 referred to in your earlier testimony?

24 A. It's not a matter of jogging my memory. It's a matter I just

25 cannot visualise him. But this is 1992 the picture that I'm looking at;

Page 14418

1 right?

2 Q. Yes, it is, sir.

3 A. And I met him in 1993, and I wouldn't like to speculate on

4 something of that matter.

5 Q. Okay. That's fine.

6 MS. SELLERS: Your Honour, I just note for the transcript I

7 believe that Ambassador Arria is referring to -- the marking on the video

8 shows 11.28.92 in terms of the date.

9 JUDGE AGIUS: Yes. And the still we are looking at is at 04.00.4.

10 MS. SELLERS: Thank you, Your Honour. That will suffice with that

11 video.

12 Q. Now, Ambassador Arria, you gave us quite a description of the

13 actual living conditions in Srebrenica and the state of the people that

14 you saw in the street yesterday, and I would like to ask you that you can

15 confirm that you didn't consider that the manner in which the people were

16 had any resemblance to normal life, any form of normality. I think that

17 was the essence of your testimony; correct?

18 A. Yes. I'll describe it to you again very simply.

19 Q. If you would just confirm yes or no, because we're going to move

20 to another video.

21 A. I don't have precise recollection what you said to me yesterday,

22 but I recollect perfectly well what I saw there. And what I saw was

23 people in the streets, no shelter, no food, some of them trying to cook

24 something on the streets and complete devastation. This is what I told

25 you yesterday.

Page 14419

1 Q. Yes. All right.

2 MS. SELLERS: Now, Your Honour, I would like to show Ambassador

3 Arria a series of three short video clips, and they are Prosecution

4 Exhibit 427.

5 Q. Ambassador, I would ask that you look at your screen now and we

6 will be seeing three short clips.

7 [Videotape played]

8 JUDGE AGIUS: Ms. Sellers, we are hearing music but we are not

9 seeing anything.

10 MS. SELLERS: Your Honour, once again, maybe I should state that

11 these clips are offered for their visual --

12 JUDGE AGIUS: Yes, but there is nothing on our screens.

13 MS. SELLERS: Oh. I'm sorry. Something has appeared on our

14 screen.

15 JUDGE AGIUS: Oh, yes. Now, yes.

16 [Videotape played]

17 MS. SELLERS: We'll proceed to the second clip directly.

18 [Videotape played]


20 Q. Ambassador Arria, I would just note -- ask you do you note on the

21 banner in this video clip that's being raised where it says "Ljilja Nada

22 1993 Srebrenica"?

23 A. Yes, I do.

24 MS. SELLERS: We'll continue with the last clip, Your Honour.

25 [Videotape played]

Page 14420


2 Q. Ambassador, I would also like to ask you, did you notice that on

3 the second clip there was a date that appeared at the bottom of the screen

4 that said 9.9.93?

5 A. I did.

6 Q. Now, in contrast to the people and the conditions that you saw in

7 Srebrenica, or the people on the street, would your comment be this these

8 three video clips we've seen represents more of a return to a normal

9 village or community life?

10 A. I could never say something like that. To begin with, you see the

11 destruction of the buildings behind.

12 Q. Certainly.

13 A. The same destruction that you saw on the photograph that I took at

14 the time. Many of those people were killed, a massacre, within two years

15 of these -- less than two years after what you are showing to me. What I

16 can see there is people hopeful that the United Nations are going to

17 protect them after our visit and our commitment passing the safe

18 resolution area which we were not ready to implement militarily to really

19 defend them, and while -- the impression that I gave people in the way

20 celebrating that maybe they have another chance for life, but never that

21 they are back to a normal living. You can see, even though it shows great

22 spirit, encouraging under the circumstances to be singing when all the

23 buildings around you are burned and you hardly have any assistance from

24 the

25 outside world.

Page 14421

1 JUDGE AGIUS: I allowed the witness to answer the question having

2 seen -- noticed Mr. Jones on his feet to lodge an objection, and I let him

3 answer because I'm pretty sure that he could handle this question. But,

4 of course, Ms. Sellers, you do realise that this is only what we've seen

5 here, three separate events which can only reflect the reality of each of

6 those three events and by no means the reality outside the building or the

7 area where this was taking place.

8 MS. SELLERS: Your Honour, I'm --

9 JUDGE AGIUS: It's as if in a place which is -- where there is

10 poverty and hunger everywhere but there is a handful of people who are

11 different and are enjoying a nice banquet together with champagne and

12 caviar. You show those and then you expect the witness to agree with you

13 that life outside is as normal and as good as they are having it. I mean,

14 come on.

15 MS. SELLERS: Your Honour, I don't -- no, Your Honour, I don't

16 expect the witness to agree or disagree. I expected to elicit an answer

17 from the witness.

18 JUDGE AGIUS: Yes. But he wasn't there in September of 1993.

19 MS. SELLERS: Right. But, Your Honour, also that's another

20 question that I wanted to pose afterwards.

21 JUDGE AGIUS: Okay. All right. Let's hear Mr. Jones now, because

22 I asked him to sit down when he wanted to make the objection because I

23 thought it was better that way.

24 Yes, Mr. Jones.

25 MR. JONES: Thank you.

Page 14422

1 Well, firstly I take the point Your Honour said, but also

2 Ms. Sellers' question assumes a great deal. In one clip, there was some

3 indication of a date, but certainly this witness hasn't confirmed that the

4 date on the screen reflects the date that is an incorrect year or anything

5 of that matter, so one can't assume that this is an accurate -- this is

6 1993. That cannot be assumed. And her question assumes it. It cannot be

7 assumed that it's Srebrenica, even if one clip shows the word

8 "Srebrenica," I'm sure the word "Srebrenica" can be seen in lots of

9 different places in the world. And so her question assumes that this is

10 Srebrenica in 1993 for all three clips. And certainly the question

11 shouldn't assume any of that, because that is not evident from -- it's not

12 something within the witness's knowledge and it doesn't leap out from the

13 screen.

14 JUDGE AGIUS: That's another valid point.

15 Yes, Ms. Sellers.

16 MS. SELLERS: Your Honour, I believe --

17 JUDGE AGIUS: Please proceed with your next question.

18 MS. SELLERS: -- this is cross-examination --

19 JUDGE AGIUS: -- taking into consideration what I have just said,

20 namely that I agree that the points raised by Mr. Jones are very valid.

21 MS. SELLERS: Right. And, Your Honour, I'm contrasting a day's

22 testimony with another section of a day. Right.

23 Q. Now, Mr. -- Ambassador Arria, you never did return to Srebrenica

24 after your visit on the 24th of April? I'm sorry --

25 JUDGE AGIUS: He said he returned last year -- or this year,

Page 14423

1 actually, for the anniversary.


3 Q. Right. During the time period of the war.

4 A. It was not possible to return.

5 Q. Right. And were you ever able to? Even after you returned from

6 your mission, you left Srebrenica from your mission, were you able then

7 find out about information that possibly wasn't available to you during

8 your mission, whether it be living conditions, whether it be police,

9 Bosniak army, whether it be communications, were you therefore informed

10 after your mission of various areas of Srebrenica life?

11 A. Yes, Your Honours, very much so. We -- we -- since that moment

12 the Security Council seemed to come to life again and to realise and to

13 have to acknowledge publicly what was going on in Bosnia-Herzegovina. I

14 mentioned to you yesterday, Your Honours, that for the first time the

15 Resolution of the Security Council mentioned not both parties but

16 mentioned the aggressor as the Serbian part. Yes, we were very thoroughly

17 informed.

18 Q. So were you able to inform yourself at that period of time of any

19 armed formations that were mainly of Bosniaks, Bosnian Muslims and

20 Srebrenica, Srebrenica municipality?

21 A. No. But I told you yesterday on that respect that the information

22 that we had at the time that the build-up, if you can call it the

23 resistance of the Bosnian Maquis, had started. From our information,

24 around 1994 was an increase in the build-up of resources that were not so

25 far defenseless as they had been before.

Page 14424

1 I was going to make a comment about the film, Your Honour, if you

2 allow me. The photograph that I showed yesterday, I said that I took them

3 myself and I delivered them to the Prosecution. Are these clips of the

4 United Nations Protection Forces?

5 Q. Beg your pardon, the clips that we just saw?

6 A. Yes.

7 Q. We're coming up to that video also that shows some United Nations

8 Protection Forces. Right. I don't believe that the three clips that I've

9 shown you here contain United Nations Protection Forces.

10 A. I asked that, Your Honour, because I said yesterday to you that

11 the United Nations protection forces never shows a clip of anything that

12 was taking place in Srebrenica. So I will be very much interested to find

13 out if this was supplied by the UNPROFOR in any way, shape, or form to the

14 Prosecution.

15 JUDGE AGIUS: Yes, Ms. Sellers, if you wish to answer that. I

16 mean, you're not being forced to.

17 MS. SELLERS: Okay. Your Honour, I can back to Mr. Arria with

18 that information. But I think the next series of clips will go right to

19 the heart of the issue that he has raised. Okay?

20 Q. Mr. Arria, can I ask you, did you recognise -- you've talked about

21 the burnt buildings. Did you recognise any buildings in these clips?

22 A. I said to you I saw some buildings in the back burned. Now

23 whether they were in Mostar, in Srebrenica, Potocari, I cannot attest to

24 that. Burned buildings, you know, look alike everywhere.

25 Q. Did you recognise a school or part of a school that you had

Page 14425

1 visited in this clip?

2 A. I recognised the one you showed me yesterday, not today.

3 Q. Okay. Now I would like to move to the last series of clips.

4 MS. SELLERS: Your Honour, if would you permit me one second.

5 Your Honour, this is clip P427.

6 [Videotape played]


8 Q. Ambassador Arria, do you recognise anything in that clip which

9 relates to your mission to Srebrenica?

10 A. You know what I can see are the armoured cars. The UN -- I think

11 they are Russian helicopters and soccer field, but I don't know whether

12 it's that same soccer field in Zvornik or is it in Srebrenica. It's not

13 very precise. The one in Srebrenica I remember had some walls around

14 where the people, the village were sitting up. I didn't see that there.

15 But I recognised cars and helicopters. That's all that I can tell you.

16 Q. We'll go to the next clip, sir, and could you please watch your

17 screen for this.

18 [Videotape played]


20 Q. Sir, did you put your hand up? Do you recognise --

21 A. Yes, I did recognise Mendiluce, I think, passing before. Not that

22 one, before, Mendiluce, the Spaniard, the representative of Madame Ogata

23 in Srebrenica. But that was before to me.

24 Q. We can start the second one again. It's very short.

25 [Videotape played]

Page 14426

1 THE WITNESS: I recognised Colonel Radic.


3 Q. And, sir, which one is he?

4 A. He's to the right.

5 JUDGE AGIUS: You have to go back a little bit.

6 Do you recognise him there?


8 JUDGE AGIUS: Which one is it?

9 THE WITNESS: The one on the right side.

10 JUDGE AGIUS: All right. Thank you. Next --

11 THE WITNESS: With the two UNPROFOR soldiers.

12 JUDGE AGIUS: Right.

13 THE WITNESS: That's me, I think.


15 Q. Sir, I was going to ask you, do you recognise the man in the light

16 shirt?

17 A. Yes. That's me from the back.

18 Q. We'll continue.

19 [Videotape played]


21 Q. Sir, is that you taking photographs?

22 A. Where?

23 JUDGE AGIUS: I think we need to go back a few -- yes. A little

24 bit more, please, Ms. Sellers. Yes. Let's start. Yes.

25 [Videotape played]

Page 14427

1 THE WITNESS: I can see myself there on the armoured car. I

2 waving to some people. I don't think I was taking photos.


4 Q. Okay. We'll look carefully.

5 A. Yes. Yes.

6 [Videotape played]


8 Q. So, sir, was it unknown to you that these films had been taken on

9 the day of your visit to Srebrenica?

10 A. Yesterday, actually, I told Your Honours that when the UNPROFOR

11 officers took away the cameras from my colleagues, they told us that they

12 were filming, and I said to you that never, ever were those films shown at

13 the United Nations when they should have been useful, which was before the

14 massacre took place.

15 Q. So, sir, you would agree that these films were taken and that it

16 appears that you and another person in the tank were able to take

17 photographs.

18 A. I saw myself because I was the only who had a camera. The rest of

19 the members of the delegation, their cameras were taken away.

20 JUDGE AGIUS: I got the impression that in the second part it's

21 the same person who has moved to the back of the tank.

22 MS. SELLERS: Okay, Your Honour.

23 JUDGE AGIUS: Correct -- I stand to be corrected, but if you want

24 we can see it again. I got the impression that it's the same witness, the

25 same person who first was on the left-hand side of the tank taking photos

Page 14428

1 from there and then immediately we see him in the back taking photos from

2 the back of the tank. That's how I figured it out.

3 Let him see it again. Perhaps he is in a better position to

4 recognise himself than I am, because this is the first time I've met him

5 in person. I've seen him on television before, but I wouldn't be able to

6 recognise him from 1993.

7 [Videotape played]

8 JUDGE AGIUS: Oh, it's a different tank. It's a different tank.

9 So it's two persons.

10 MS. SELLERS: There are two persons.

11 Q. So, sir -- Ambassador Arria, did you see the second person with a

12 camera and the tank that appeared to follow you?

13 A. Yes, could be UNPROFOR. They were filming. Now I can see they

14 were filming. I wish I could have seen them and that the Security Council

15 could have seen it, and I hope they were not as selective where it seems

16 that everything is normal so that they could see the devastation.

17 Q. All right. Thank you.

18 MS. SELLERS: Your Honours, I'm ending the cross-examination now.

19 JUDGE AGIUS: If he can recall where this is happening, when -- in

20 other words, when he finds himself on one of the UN tanks or armoured

21 cars, where would that be?


23 Q. Ambassador Arria, could you please answer His Honour's question?

24 JUDGE AGIUS: Would it still be in Zvornik?

25 THE WITNESS: No. It is in Srebrenica. This is the building

Page 14429

1 where we had the meeting with the people in Srebrenica. Now it was

2 Potocari or Srebrenica, I have my doubts, because, you know, we're all the

3 time going in these armoured cars. But the building was the building

4 where we met. And, actually, when you see Ratko and all those other

5 people coming out of the building, they were in the same meeting that I

6 referred to Your Honours yesterday.

7 JUDGE AGIUS: So when you had this -- in other words, according to

8 you, this probably is Srebrenica town itself.


10 JUDGE AGIUS: So do I take it, do I understand you that when you

11 had this meeting in Srebrenica town on this particular occasion before you

12 go on the armoured car or tank or whatever it is, you had this meeting in

13 Srebrenica for which also the Serb military officers were present?

14 THE WITNESS: Yes, Your Honour.

15 JUDGE AGIUS: Yes, of course, Judge Eser.

16 MS. SELLERS: Your Honour, could I suggest -- as a matter of fact,

17 I was going to try and refresh recollection by very briefly showing the

18 first video clip with the helicopter and this one again, and I'm using it

19 to refresh.

20 JUDGE AGIUS: Yes, certainly. I mean, we need to know this,

21 Ms. Sellers, of course.

22 MS. SELLERS: Yes.

23 [Videotape played]

24 THE WITNESS: I saw myself there.


Page 14430

1 Q. Thank you, sir. That's the question I was going to ask. Isn't

2 that you coming off the helicopter?

3 A. Yes.

4 Q. Right.

5 A. I saw Hayes and then I saw myself. That's right, yeah.

6 Q. Is Hayes the person standing next to you?

7 A. No, ahead of me.

8 Q. Ahead of you?

9 A. He's next to Ratko.

10 Q. And you were wearing the light-coloured shirt again?

11 A. Yes.

12 Q. Yes.

13 [Videotape played]

14 THE WITNESS: At that moment I was the only member of the

15 delegation present.


17 Q. You testified you came --

18 A. The only one had been held up by Mr. Hayes, General Hayes in

19 Zvornik. So I was the only member of our delegation there. For that

20 moment.

21 Q. Right.

22 [Videotape played]

23 MS. SELLERS: Your Honour, I didn't know whether there was a

24 question from the Trial Chamber, from Judge Eser for the second part.

25 JUDGE AGIUS: Yes, Judge Eser.

Page 14431

1 JUDGE ESER: No, no.

2 JUDGE AGIUS: Well, what we want the witness to confirm is, having

3 seen this again for I don't know how many times, whether this last part

4 where we see some -- what appear to be military people and him and

5 Mendiluce, he said he had recognised Mendiluce go before, whether this

6 again is in Srebrenica on the 25th of April as shown on the screen or

7 whether it's in some other place.


9 Q. Ambassador, could I ask you --

10 JUDGE AGIUS: In Srebrenica town. Srebrenica town or village call

11 it whatever you like.


13 Q. These two video clips we've seen now, did that take place, these

14 shots in which you are in, in Srebrenica town on the 25th of April, 1993,

15 the date of your mission?

16 A. Would you include in there Potocari as Srebrenica town?

17 JUDGE AGIUS: No. No, no. Potocari is Potocari. We're talking

18 of Srebrenica town. Srebrenica town.

19 THE WITNESS: I have to say yes. I would say yes. But, you know,

20 Your Honours, Potocari, I know you're familiar, I'm sure, is very close.

21 JUDGE AGIUS: Yes, it's ten kilometres away.

22 THE WITNESS: So actually, you know, you come in and out. As you

23 can see, we were in armoured cars most of the time, not all the time

24 outside looking because this was at the end of the people of the village

25 were desperate, asking for help. But we were in armoured cars.

Page 14432

1 You know, if you asked me to swear to whether this is Potocari or

2 Srebrenica, I wouldn't know what to tell you. It's one of the two places.

3 I don't know how relevant that issue is, but it's one of the two places.

4 And I also recognise the Ambassador of New Zealand and the Ambassador of

5 Pakistan in the second -- in the last video, not at the heliport. Not at

6 the soccer field.

7 MS. SELLERS: Thank you.

8 JUDGE AGIUS: But let's get this and the we have got some further

9 questions Judge Eser and Judge Brydensholt.

10 So basically the first part of this video when you recognise

11 yourself on the soccer field in the proximity of the Russian helicopter,

12 you would think that since you said that at that time the other members of

13 the delegation had been held by Colonel -- Brigadier General Hayes that

14 this would be Srebrenica, or would it still be Zvornik or somewhere else?

15 THE WITNESS: Your Honour, within difference of hours I landed

16 alone with Brigadier Hayes in the same -- in two soccer fields. But I

17 have to believe that's the case you're telling me because Ratko did not

18 land in the first time with us in Zvornik. So I have to assume that he

19 was on the second stop which was in Srebrenica soccer field.

20 JUDGE AGIUS: Yes, Judge Eser, and then --

21 JUDGE ESER: Mr. Arria, you told us that according to your

22 recollection the meetings you have attended took place in the municipal

23 building. Now, on what grounds do you put -- base your assumptions that

24 it had been the municipal building?

25 THE WITNESS: Yes, Your Honour. At the time, we were not very

Page 14433

1 much interested in the name of the buildings or what they were. We were

2 led by the UNPROFOR people to a place where we could gather with some of

3 the villagers, actually very few.

4 JUDGE ESER: Do you remember whether the building in which you had

5 met was close to other buildings or has there been some distance to the

6 next buildings or could you describe what was on the other side of the

7 street? Was it a big place or only a street, or how would you describe

8 the situation?

9 THE WITNESS: Your Honour, I wish I could reply to you in the

10 affirmative. What I can never forget are the people that I saw and the

11 suffering that I saw. I wish I could also remember the names of the

12 buildings, but unfortunately I do not know.

13 JUDGE AGIUS: I thank you, Judge Eser.

14 Judge Brydensholt.

15 JUDGE BRYDENSHOLT: You saw a building here and you saw some of

16 those UN vehicles standing in front of it. Do you think, do you recollect

17 that it was the same building in which you have had the meeting? You saw

18 some people coming out, among them those uniforms officers.

19 THE WITNESS: Yes, Your Honour, I do.

20 JUDGE BRYDENSHOLT: Do you recognise when you see those people

21 coming out of this building, probably a Serb officer in front, do you

22 recognise the Albanian -- the Serbs, the local Muslims, Bosniak Muslims,

23 who took part in this meeting, are those local people among those we see

24 leaving the building?

25 THE WITNESS: Your Honour, the reason that I recognise the Serbs

Page 14434

1 is because they were introduced formally to me by General Hayes with ranks

2 and names. The other ones who were introduced to me like "my other

3 friends". So it is, Your Honour, impossible for me to distinguish "my

4 other friends" without being given to me the proper introduction of what

5 they represented and if they had ranks, which I don't think at that time

6 they had ranks, or what's the situation.

7 JUDGE BRYDENSHOLT: So even if you saw the clip again you could

8 not tell us whether those people who are coming out of the building are

9 those who participated in the meeting or not. You would not be able to,

10 you think.

11 THE WITNESS: I only recognise Colonel Ratko, and I saw another

12 gentleman who was with him, another officer, one of the Serb officers, and

13 Brigadier Hayes. I didn't even see the Canadian officers in that picture

14 on that video.

15 JUDGE BRYDENSHOLT: Okay. Thank you.

16 JUDGE AGIUS: I thank you. Thank you, Judge Brydensholt.

17 Ms. Sellers, back to you.


19 Q. Yes, Your Honour, as a matter of fact, my last question was just

20 asked by Judge Brydensholt. I wanted to have him look at the film and if

21 he could identify the three people that he is referred to in his testimony

22 having represented the rebel defenders or the insurgent group. That would

23 have been my question.

24 JUDGE AGIUS: There is no harm in going through it again, this

25 last part, because there are more than three people who come out of that

Page 14435

1 building.


3 Q. Sir, we're just going to look at that very last clip again.

4 [Videotape played]

5 JUDGE AGIUS: These first four persons in uniform and camouflage

6 uniform, do you recognise how many of them?

7 THE WITNESS: Could you turn it back, please?

8 JUDGE AGIUS: By all means.

9 Let's take these two. Do you recognise any or either of -- or

10 both of these two persons? Yes, but forget the one with the blue helmet

11 on.

12 THE WITNESS: I don't recognise him. I did recognise some that

13 left before but --

14 JUDGE AGIUS: Yeah, okay, all right. There are two who leave

15 before who are in camouflage uniform.

16 THE WITNESS: Let me see.

17 JUDGE AGIUS: Please.

18 THE WITNESS: I recognise -- this is Ratko -- I'm sorry, can it be

19 further down? That's Ratko. And the other one next to him is another

20 Serb officer with Ratko, the one with the grey hair.


22 THE WITNESS: And ahead of them, if you go ahead, was a British

23 mayor who was actually my escort with Hayes at the moment.

24 JUDGE AGIUS: Okay. Let's see that. No, no. It's -- we have to

25 rewind a bit.

Page 14436

1 THE WITNESS: Okay. Could you start here.

2 [Videotape played]

3 THE WITNESS: That's the mayor, and then comes Ratko, and then

4 comes another of the Serb, and then it's all UNPROFOR. That's the ones I

5 recognise.


7 MS. SELLERS: Your Honour, I'm going to have our case manager use

8 her pointer so we can make certain who he's talking about.

9 JUDGE AGIUS: All right.

10 Q. So, sir, which one is the mayor? Witness?

11 A. This one.

12 Q. The one with the blue hat on?

13 A. The one with the blue -- yes.

14 JUDGE AGIUS: Yes, seconds.

15 MS. SELLERS: The British mayor, thank you.

16 MR. JONES: He's saying "major," I think.

17 THE WITNESS: I think it was a major. That's Ratko, that one.

18 JUDGE AGIUS: Yes, we are at 1 hour, six minutes, 28.6 seconds.

19 And he's the first one standing on the right. And --

20 THE WITNESS: Next is one of his colleagues.

21 JUDGE AGIUS: On the same still, it's the second person that's

22 being pointed with the long grey hair.

23 The next one you don't recognise, you said?

24 THE WITNESS: No, I don't.

25 [Videotape played]

Page 14437

1 JUDGE AGIUS: Yes. Any further questions on this, Ms. Sellers?

2 MS. SELLERS: No, Your Honour. I have no further questions. I'd

3 like to thank Ambassador Arria.

4 THE WITNESS: Thank you, Ms. Sellers.

5 JUDGE AGIUS: I thank you so much, Ms. Sellers.

6 Mr. Jones, is there re-examination? I take it that there is.

7 MR. JONES: Yes, indeed, yes.

8 Re-examined by Mr. Jones:

9 Q. Yes. Firstly, Ambassador, I'm going to refer to something which

10 you said earlier today which you were asked about, and if you will give me

11 a moment, I have to find it in the transcript.

12 Yes, you were asked whether you went to any Bosniak, Bosnian

13 Muslim headquarters, and you answered: "We were informed that there was

14 none, that the Canadian colonel in charge and the UNPROFOR forces by" - I

15 think that was by - "the Canadian colonel in charge." Is that right?

16 That was your information from the Canadian colonel in charge, that there

17 were no Bosnian Muslim forces in Srebrenica?

18 A. Yes, Your Honour. And also the information that the town had been

19 demilitarised according to the UNPROFOR agreement at the airport of

20 Sarajevo the day before that we got there, even though the Security

21 Council didn't know about it. Yes.

22 Q. Yes. Thank you.

23 If the witness could now be shown Exhibit D956, please.

24 And while that's being passed up, Ambassador, you were asked

25 yesterday about whether you received briefings about the situation, and

Page 14438

1 you replied that you didn't receive briefings from the Bosnian army

2 because you wished to be impartial, objective, et cetera. You did receive

3 briefings, though, from the Canadian officer on the ground though;

4 correct?

5 A. No. I didn't say that we didn't receive briefings from the

6 Bosnian army. I said that we never saw the Bosnian army as such, so I

7 couldn't get any briefings.

8 The briefings -- the only briefings that we got were from the

9 UNPROFOR forces. And I could only add that Colonel Ratko in Zvornik gave

10 me a speech about how they were in control of the whole situation,

11 et cetera, et cetera.

12 Q. Right. And what you say Colonel Ratko, is that still Colonel

13 Rodic or is it someone else?

14 A. I'm sorry, Colonel Radic.

15 Q. Now, if you look at page 13 of this document, the annex with your

16 itinerary, firstly if we turn to -- in fact, I think it should be

17 page 14. It says briefing by Lieutenant Colonel Thomas K.D. Geburt,

18 commanding officer, 2nd Battalion, the Royal Canadian Regiment. Is that

19 the Canadian colonel who gave you that briefing and that information?

20 A. Yes.

21 Q. Thank you. And I'm also -- sorry, if you keep the document and

22 you turn back a page. When we see meeting with, we have Colonel Rodic and

23 then three other names. Now, in the video we just saw, there was more

24 than just Colonel Rodic in terms of the Serbs; correct? There were other

25 Serbs besides him?

Page 14439

1 A. Yes. I could only recognise one, but the fact that we had the

2 names of all of them is, like I told Your Honours, that they were

3 identified to us as such and the others collectively they assign as

4 friends, so that's the reason. Otherwise we would indicate them in the

5 report.

6 Q. Yes. So my point is this, that in the video we just saw, we saw

7 other Serb officers in camouflage uniform besides Colonel Rodic and they

8 were there but they are not mentioned in your report; is that correct?

9 A. We only mentioned the ones whose names we had. We could not -- as

10 I said to you before, we could not say and the other friends, you know,

11 referring to the members of the resistance of the Republic of

12 Bosnia-Herzegovina.

13 Q. Yes. And just so we're completely clear, the people referred to

14 as friends were on the Bosnian Muslim side. My point is that on the Serb

15 side, and you described how the Serbs were in proper uniforms, there

16 wasn't just Colonel Rodic. There were other Serbs in uniform who we saw

17 on video but who were not mentioned in your report. I simply want a

18 confirmation of that.

19 A. Yes.

20 Q. Thank you. Now, as far as these -- these three people mentioned

21 there as being representatives of the Bosnian army, Zaim Civic and Madzic,

22 firstly, are they among the people who were friends who were not in

23 uniform?

24 A. I'm sorry, could you repeat to me the question, please.

25 Q. Yes. You mentioned that Hayes said "these people are also my

Page 14440

1 friends" and that they were defenders of Srebrenica. They were not in

2 uniform. Does that refer to these people here who are -- where it's

3 written Major Zaim Civic and Major Enver Madzic? Are they the friends?

4 A. Yes, that must be the case, yes.

5 Q. And so is it right that although it says "major" there that they

6 had no signs of rank on them?

7 A. As I said to you, unfortunately they looked very pathetic to me.

8 They were presented to us as -- the friends were presented to us. They

9 didn't look to us as a -- at all like an armed forces.

10 Q. And do you know whether they were from Srebrenica or from Tuzla or

11 from anywhere? Do you know actually know where they were from?

12 A. Well, I remember very well one of them said he was a teacher or a

13 mechanic who was from Srebrenica. The rest, I don't know where they came

14 from.

15 Q. Yes. But aside from where they were actually from, do you know

16 whether that day they met you from Srebrenica or whether they had come

17 from Tuzla or from Zvornik or from somewhere else? Do you actually know

18 whether they were based in Srebrenica or do you not know?

19 A. I think they must have been trapped in because there was no way to

20 get in, into the town when we were there. So they must have been inside

21 the town, unless the Canadians, the UNPROFOR forces brought them in for

22 this meeting because they were the only adults, as I said to you, from the

23 locals that we saw during our visit.

24 Q. Right. So it's possible that they were brought in from outside by

25 the Canadian UNPROFOR forces?

Page 14441

1 A. Yes, sir.

2 Q. All right. And here they're referred to as major, as majors. Are

3 you able to say why they're named as majors in this report? Did you

4 verify that they were majors?

5 A. In the -- you mean in the case of the Bosnia-Herzegovina people?

6 Q. Yes, the two representatives of the Bosnian army.

7 A. No. I repeat to Your Honours, you know, they didn't look to us

8 like a regular armed forces at all by no -- not even by the minimum

9 standard.

10 Q. Thank you.

11 JUDGE AGIUS: Yes. One moment, Mr. Jones.

12 JUDGE ESER: Are we still with this exhibit or were you about to

13 leave it?

14 MR. JONES: About to leave it, yes.

15 JUDGE ESER: Just could you explain this meeting mentions people

16 from -- representatives of the Bosnian Serb army and two men of the

17 Bosnian army. Have you been aware that these Bosnian army people have

18 been mentioned in this annex?

19 THE WITNESS: Yes, Your Honour, yes, of course. As I said to Your

20 Honours yesterday, I was the main drafter of the whole document. The

21 annexes of the meetings of the people we had the cooperation of people

22 from the United Nations secretariat who were taking names and hours and

23 meetings, and actually was in charge of that was a lady called Miss Norma

24 Chang, who was a director of the secretariat at the United Nations

25 Security Council, and I saw her on one of the tanks now, the armoured

Page 14442

1 cars. So on the names or definitions, they were done by the United

2 Nations secretariat. I was responsible for the drafting of the document,

3 not the annex.

4 JUDGE ESER: But regardless whether the ranks here are mentioned

5 correctly or not, do you remember that besides these two Serbian people

6 Radic and Popovic, said there had been two persons who have been

7 considered as belonging to the other side, to the Bosnian side, so to say.

8 THE WITNESS: Yes, Your Honour. I said so

9 yesterday that I -- my recollections are there were three or four locals.

10 I think I identified one. I asked him, and he said to me he had been a

11 teacher and also a mechanic. I also mentioned to you that they didn't

12 look because they were not in uniform as representatives of any army.

13 JUDGE ESER: And that was a sort of formal meeting, not only just

14 on the way.

15 THE WITNESS: No. This was when we landed in that soccer field,

16 when I saw the triage, it's very interesting that -- for you, Your

17 Honours, to know that that video shows us coming from the helicopter and

18 doesn't show hundreds of people who were in the perimeter inside the

19 soccer field being triaged by the Serb doctors. They didn't show that,

20 which was really the most important part. I didn't see the importance of

21 seeing myself coming out of the helicopter, but I wish the UNPROFOR would

22 have shown the triage of hundreds of people around the soccer field being

23 triaged by Serb doctors and not being treated by any doctors locally.

24 That is remarkable.

25 JUDGE AGIUS: Yes, Ms. Sellers.

Page 14443

1 MS. SELLERS: Your Honour, excuse me for --

2 JUDGE AGIUS: Are you finished --

3 JUDGE ESER: I'm finished.

4 MS. SELLERS: -- interrupting, only to state for the record in the

5 exhibit that showed the film of your landing that we, the Office of the

6 Prosecution, for purposes of today's presentation redacted and that

7 certainly that segment is in there. So I don't want to have the witness

8 misled at this point and we can certainly show it.

9 JUDGE AGIUS: I thank you for pointing that out.

10 Yes, Mr. Jones.

11 MR. JONES: Yes, we're going to need to break in a moment.

12 Q. But just so this is entirely clear, you've said this many times

13 but if you can confirm it now in light of His Honour's question a moment

14 ago. These two people appeared not to be representatives of the Bosnian

15 army but they did appear to be representatives of the Bosnian side. Is

16 that your testimony?

17 A. Yes.

18 Q. All right. Thank you.

19 MR. JONES: And this would be a good moment for the break. I've

20 got another ten minutes considering that in the end Ms. Sellers was about

21 an hour and 40 minutes. It gave rise to a substantial re-examination I'm

22 going to have to keep going.

23 JUDGE AGIUS: Take your time. Do you want to break now?

24 MR. JONES: Well, isn't it 3.30?

25 JUDGE AGIUS: The break is scheduled for 4.00, not now.

Page 14444

1 MR. JONES: My apologies. I was misunderstanding. Okay. Well,

2 that's much better.

3 Q. Well, continuing from that you've told us, then, you did have

4 briefing about the military situation from the Canadian colonel on the

5 ground. It was suggested to you yesterday by the Prosecution that maybe

6 you weren't very well-informed about Srebrenica or even the situation in

7 Bosnia. Do you accept that suggestion?

8 A. Not at all. Not at all. Actually, she didn't ask me, but I had

9 bilateral meetings with a Spanish colonel, with a Venezuelan colonel who

10 were in the area and with the British colonel who told me how scandalised

11 they were by the behaviour of the UNPROFOR forces acting in such a

12 subordinate manner to the Serbs and how ashamed they were of what was

13 happening in the place, and I can -- my meeting with this Spanish colonel,

14 what they call a mountain like the Canadian army mounted officers, this is

15 the Spanish colonel telling me how horrible the situation was and how

16 little we were doing, meaning the United Nations.

17 Q. And did you also receive information about the situation before

18 you went to Srebrenica, both from the media and also from the UNHCR,

19 Mrs. Ogata?

20 A. As you know, Mrs. Ogata's memorandum, we only got it -- I only

21 seen it 11 years later. The only information we had was the British

22 journalists and the international media, the shots of Colonel Morillon

23 telling the people of Srebrenica that he will stay there and would not

24 leave them alone, which was not the case, as we saw later.

25 Q. Yes, but just in terms -- I know you didn't see the letter from

Page 14445

1 Mrs. Ogata, but just clarify for us, did you have conversations or any

2 communications with Mrs. Ogata or UNHCR in this period, informing you of

3 the situation?

4 A. No. I only -- I knew her but I didn't have any contact with her

5 until this happened. Only through her representative, which was Jose

6 Maria Mendiluce, that I have mentioned several times, was, I believe, an

7 extraordinary United Nations official.

8 Q. And that's from April 1993 that you began to receive information

9 from the UNHCR.

10 A. From there on, we developed a very intimate relations, operational

11 relation with them, and especially at the level of Mrs. Ogata, Mendiluce,

12 and de Mello. As you know, Sergio Vieira de Mello, who later was killed

13 in Iraq, an extraordinary UN official, was also there, and he became

14 extremely important for us in getting information.

15 Q. Thank you. And without mentioning names, is it right that at this

16 time the UNHCR actually had persons on the ground, observing in detail the

17 situation?

18 A. Yes. Actually, Mendiluce told me that he had been reporting long

19 before, not only abuses taking place in Srebrenica but on the Croat side

20 by some of the Croat partisans, too. Actually, during our mission when

21 Ms. Sellers asked me how we defined our own agenda, we went to Ahmici, if

22 I pronounce it correctly, Ahmici where the Serb partisans had just burned,

23 torched a whole family of Bosnians in Ahmici. So we went to see whatever

24 tragedies were taking place that could have been shown to us at the time,

25 not only on one side but on the both sides.

Page 14446

1 Q. Yes, thank you. I'm going to move to a new area. Just for the

2 record, the historical record, I believe Ahmici was Bosnian Croats. Is

3 that something you're aware of, rather than Serbs?

4 A. Yes.

5 Q. Now, I want to ask you a bit more about Brigadier Hayes, and it's

6 simply because yesterday I rushed through exhibits in a rush to finish

7 early, and as Your Honour said that I could go back now and introduce a

8 few. Yesterday you said how you were aware that Madeleine Albright had

9 actually even complained about Brigadier Hayes' remarks. Now I have two

10 more exhibits quickly on this subject. One is an extract from a news

11 article. It's 02110539, the ERN number. That's going to be distributed.

12 JUDGE AGIUS: Yes, Ms. Sellers.

13 MS. SELLERS: Your Honour, might I state then for the record that

14 if this appears to be more of an expanded direct examination with new

15 exhibits, that the Prosecutor certainly didn't function that into any

16 cross-examination that was prepared.

17 MR. JONES: It's cumulative, and I'm following on what Your Honour

18 told me yesterday, that I could do this.

19 JUDGE AGIUS: We'll deal with that, if the question arises, later

20 on, Ms. Sellers.


22 Q. Yes. Now, the title, it says excerpts from July -- sorry, this

23 concerns excerpts from July, August, September, 1993, news reports, and I

24 read, quote: "Newsday on 15 August quotes UNPROFOR's General Vere Hayes

25 as praising the 'great goodwill' of the Serb commander General Ratko

Page 14447

1 Mladic for leaving the peaks." And that refers to Igman, I believe, and

2 Bjelasnica. "General Hayes added, 'There is still a military siege but

3 there has never been a humanitarian strangulation of Sarajevo.'" Et

4 cetera.

5 And it's simply to ask you - you've already given evidence about

6 this - is that, to your knowledge, the same Ratko Mladic who's been

7 indicted for genocide by this Tribunal who Hayes is praising the "great

8 goodwill" of?

9 A. Your Honours, if I can elaborate one second of this. It is not

10 only disturbing to read that, but I would like to explain to Your Honours

11 what are really United Nations forces and what they are not, why a man

12 like General Brigadier General Hayes could say all those things and his

13 commander, was a Swedish general, couldn't do anything about it. Because

14 when the troops belong to the NATO powers, they are not United Nations

15 forces. They are British forces, they are French forces, Russian,

16 Chinese, or American. They become United Nations forces when they're made

17 up of Pakistanis, Venezuelans, Primaverians [phoen] and whatever else.

18 That's the reason that they report to the capitals and to the headquarters

19 and not necessarily to the real command of the United Nations. So that's

20 why the United Nations gets such bad ill repute for many things done by

21 individual countries under the blue helmet but following the interests,

22 instruction, directions and commands of their own. That's why a man like

23 Hayes could act that way and actually commend a war criminal like General

24 Mladic in front of the world and not be reprimanded.

25 Q. Thank you.

Page 14448

1 MR. JONES: I just ask for an exhibit number for that exhibit,

2 please.

3 THE REGISTRAR: D961, Your Honour.

4 JUDGE AGIUS: You heard it, this page with ERN 02110539 will

5 become Defence Exhibit D961.

6 MR. JONES: Thank you, Your Honour.

7 Q. Now yesterday, also in the same vein, you referred to the

8 assassination of Mr. Turaljic and the fact that the inadequate

9 investigation showed in fact that Serbs could get away with murder. And I

10 have an exhibit which I was going to use yesterday, and it's the same --

11 it's in the same vein and I'm sure it won't give rise to any problems on

12 the part of the Prosecution.

13 JUDGE AGIUS: Okay, but you may be wrong, Mr. Jones. I see

14 Ms. Sellers --

15 MS. SELLERS: Your Honour, might I --

16 JUDGE AGIUS: -- on her feet.

17 MS. SELLERS: Yes. Might I state for the record that the previous

18 exhibit and the questioning in terms of General Hayes, and now the exhibit

19 that I imagine goes toward the assassination, are issues that were not

20 within my cross-examination whatsoever. It seems to be not a redirect of

21 Ambassador Arria but a continuation of the direct of Ambassador Arria.

22 JUDGE AGIUS: Yes, we will notice -- you don't need to answer. We

23 granted this to the Defence yesterday at a certain point in time when we

24 decided to continue today with his testimony, because we had asked

25 Mr. Jones to cut short and finish in two hours, on the assumption that you

Page 14449

1 would be able to finish within the rest of the time allocated. At that

2 point in time when you needed more time than you had indicated or we had

3 indicated in the first place, we decided -- we agreed that we would allow

4 Mr. Jones put the questions that he had renounced to because of the time

5 restriction that we had imposed. So this is the situation. Of course,

6 now that he is putting the question and he is bringing in new documents,

7 if you want to deal with these later on, of course -- I mean, we are not

8 -- we are not going to say no.

9 MS. SELLERS: Your Honour, I just want to reserve my right for now

10 re-cross.

11 JUDGE AGIUS: And I don't think Mr. Jones will oppose that in any

12 case.

13 MR. JONES: We have notified this list already. I mean, the

14 Prosecution is aware of these exhibits and it is entirely in the spirit

15 that Your Honour mentioned that I'm dealing with this now.



18 Q. Simply this: You told us how you commissioned a report into the

19 adequacy of the investigation. Is this the document which is being put in

20 front you, is that the report or the reports?

21 A. Yes, they are.

22 Q. Thank you.

23 MR. JONES: I just ask for an exhibit number.

24 JUDGE AGIUS: So this document, which consist of a number of

25 pages, starting with ERN 0090972 and inclusive of 009113 is being tendered

Page 14450

1 and marked as Defence Exhibit D962.

2 MR. JONES: Thank you, Your Honour. Now just a few last matters.

3 Q. You were shown these videos, obviously, today of people. I won't

4 say anything more about that. Of people doing various things. Now, it

5 was suggested -- it's been suggested to you that in fact this showed that

6 everyone was happy and that everything was fine in Srebrenica after your

7 departure. In light of what you know about the situation in Srebrenica,

8 is that a realistic suggestion, that in April 1993 things were as you

9 described? In 1995 there was a genocide, but in between everyone was

10 happy and everything was fine; does that seem realistic to you?

11 A. I was, Your Honours, thinking when I saw these videos this was six

12 months after we were there. By that time Srebrenica was very much in the

13 limelight of public -- international public opinion. Our visit had, of

14 course, an impact on the behaviour of the -- of the Serb forces that were

15 attacking the area, and things got improved. No doubt people, when they

16 think they're going to live longer, they celebrate. That was the

17 impression that I got, and that was my first spontaneous comment to you,

18 that they looked to me like people celebrating they're going to live

19 another day. But of course they didn't look to me like they were

20 celebrating life when the whole town was destroyed. And actually, Your

21 Honour, even if you go today - I was there for the tenth anniversary of

22 the massacre - it's still very much destroyed.

23 Q. And you spoke at length yesterday about revisionism, moral

24 equivalence, about the interest of the international community in burying

25 the truth about Srebrenica. Do you see that suggestion that everything

Page 14451

1 was fine in Srebrenica as part of that revisionism?

2 A. I will respond, you know, with a very personal feeling about it.

3 I wrote an article, Your Honours, for The Los Angeles Times at the time

4 which I call "Haiti, The Black Bosnia," in which I said that Europeans

5 treated the Bosnians as Muslims and not as Europeans and the Latin

6 Americans treated Haiti as blacks and not as Latin Americans. Both

7 reprehensible attitudes by both regions. And the -- in the case of

8 Bosnia, suddenly it became very easy to eliminate the problem, treating

9 them with this, I would say, a moral equality of the parties in which

10 aggressors and victims were treated the same and accorded the same

11 treatment. Even better treatment but give -- provided to the aggressors

12 than to the victims by the respect that was shown by United Nations

13 UNPROFOR forces, and actually even in some representatives on the ground,

14 which was the case of Mr. Akashi, which was so deferential in his

15 treatment, and actually even in the Dutch report is very strong on the

16 behaviour of some of its officers, and I was a witness to that report.

17 Q. Yes. And finally you were shown this film, which apparently was

18 shot by UNPROFOR, of your mission, the debut in Srebrenica. Does that --

19 do those photographs, do they depict the plight of Srebrenica? Do they

20 accurately show the suffering which you've described there?

21 A. The video or the photographs?

22 Q. My apologies; the video.

23 A. The video is a cover-up. The video - and I'm sorry to say - is

24 another cover-up to try to portray it into the form [indiscernible]. I'm

25 really ashamed to believe that it was done by the United Nations I was so

Page 14452

1 proud to be a part of. And I find it reprehensible that they could take a

2 film of people suffering, and if they're celebrating one more day of their

3 lives and to only selectively choose that event of people celebrating

4 their life and hiding the suffering and the misery of that town, I find

5 that really detestable.

6 JUDGE AGIUS: That is, of -- I think we are --

7 MR. JONES: Yes, two points. No, I understand exactly, Your

8 Honour.

9 JUDGE AGIUS: Yes. And I think you head in the right direction

10 because I think we have a mixup with one video and another here.

11 MR. JONES: Well, I take the point --

12 JUDGE AGIUS: There is no indication that the videos from which we

13 saw three clips of celebrations, marches with women in front, banners

14 et cetera, was shot by the UN.

15 MR. JONES: Yes.

16 JUDGE AGIUS: I mean, I never got that indication.


18 Q. In case there's any confusion, I'm referring to the video showing

19 you and the others in Srebrenica on APCs, and I'm wondering whether that

20 video, whether that shows the suffering and the plight of the Srebrenicans

21 that you saw or not.

22 A. Not at all. It looked a tourist visit to a town escorted by the

23 United Nations force.

24 Q. All right.

25 MR. JONES: Thank you. No further questions.

Page 14453

1 JUDGE AGIUS: I thank you, Mr. Jones.

2 Do you want to re-cross again the witness on any of the issues

3 touched by Mr. Jones?

4 MR. JONES: And the videos, the exhibits.

5 JUDGE AGIUS: The new exhibits basically.

6 MS. SELLERS: Your Honour, the temptation is very great.

7 JUDGE AGIUS: But the restraint is remarkable.

8 MS. SELLERS: And what would I like to say is that the Prosecutor

9 will preserve its rights to look at the evidence under other

10 circumstances, and for expediency, and I understand this has been quite

11 prolonged, that we will at this point waive our right for re-cross.

12 JUDGE AGIUS: All right. It's not a question of waive or not

13 waive. It's a question please decide whether you want to put some further

14 questions or not. I mean, it's not question of renouncing. I mean,

15 because I don't think I can leave that open and in two weeks' time or one

16 month's time you will say now we want Mr. Ambassador back to put some more

17 questions to him.

18 MS. SELLERS: No, Your Honour, we would not ask for Ambassador

19 Arria to come back. Give me 30 seconds, please. I just want to confer

20 with colleagues.

21 JUDGE AGIUS: All right.

22 [Prosecution counsel confer]

23 MS. SELLERS: There will be no re-cross-examination.

24 JUDGE AGIUS: Okay. Thank you so much, Ms. Sellers.

25 Ambassador -- yes, Mr. Jones.

Page 14454

1 MR. JONES: I take it -- I hope it's a hundred per cent clear that

2 no rights whatsoever are being reserved by the Prosecution. I wish merely

3 to make this observation, Your Honour. I was careful to choose exhibits

4 where I anticipated that because they concern an investigation into

5 Mr. Turajlic's assassination and one sentence about Brigadier Hayes that

6 there wouldn't be any big fuss by the Prosecution. I appreciate they're

7 not applying to re-cross-examine now, but I don't accept any suggestion

8 that the Prosecution were ambushed or that they had anything but the

9 fullest rights to cross-examine.

10 JUDGE AGIUS: I would -- I would have definitely intervened and

11 I'm sure that my colleagues would have intervened too had we smelt an

12 ambush of any kind, but I don't think we're -- let's stop it there,

13 Ms. Sellers.

14 Questioned by the Court:

15 JUDGE AGIUS: I have just one question for you, and forgive my

16 inquisitiveness.

17 When you testified in Milosevic --

18 A. When?

19 JUDGE AGIUS: When you testified in Milosevic, were you shown

20 these clips from the video taken -- allegedly by the UN?

21 A. No. Your Honour, this came 12 years later.

22 JUDGE AGIUS: All right. So this is the first time you're seeing

23 this video?

24 A. First time.

25 JUDGE AGIUS: All right. I thank you. That explains part of his

Page 14455

1 testimony of yesterday.

2 Ambassador, I can't tell you how grateful we are for you to have

3 come over and give testimony. I know how busy you are, and we appreciate

4 you coming here to give evidence as Defence witness this time. On behalf

5 of Judge Brydensholt, Judge Eser but also on behalf of the Tribunal in

6 general therefore, I thank you and we all wish you a safe journey back

7 home.

8 THE WITNESS: Thank you, Your Honours. It's a privilege.

9 JUDGE AGIUS: You will now receive all the assistance you

10 require --

11 THE WITNESS: Thank you, Your Honour. It's a privilege.

12 JUDGE AGIUS: Now, Madam Vidovic, Mr. Wubben, we have got eight

13 minutes before the break. Do you want to start now or shall we break now

14 and resume in 30 minutes' time?

15 MS. VIDOVIC: [Interpretation] Your Honours, I'd rather we have a

16 break and then continue after 30 minutes.

17 JUDGE AGIUS: Okay. Thank you. So we'll have a 30-minute break

18 starting from now. That means we will start at 4.22. 4.22.

19 --- Recess taken at 3.53 p.m.

20 --- On resuming at 4.27 p.m.

21 JUDGE AGIUS: Yes. Start from here. You requested earlier on,

22 Mr. Jones, permission to file a reply to the Prosecution response in

23 relation to Rule 68 disclosure material. We are granting you that

24 provided what will be contained in this fresh reply is something new and

25 not a repetition of what has been said already.

Page 14456

1 MR. JONES: Yes. And the reply is what you have before you.

2 JUDGE AGIUS: I don't have it before me, sorry. I mean, what I

3 have before me is the reply with regard to the Rule 70 witness.

4 MR. JONES: My apologies. Rule 68. Yes, thank you, Your Honour.

5 JUDGE AGIUS: Make sure that it is something new, otherwise you

6 will have it back.

7 MR. JONES: Yes. That's clear.

8 JUDGE AGIUS: Now, what do you want to do? Shall we deal with

9 this matter relating to Major Dudley?

10 Yes, Ms. Vidovic.

11 MS. VIDOVIC: [Interpretation] Your Honours, I would really

12 appreciate it if we could start with this witness. We are very careful

13 when we plan the time within which we can finish this and the next two

14 witnesses, and we would really like to finish these testimonies before the

15 winter recess, and that is why we made sure our responses are in written

16 form, so we lose as little time as possible in trial as possible on these

17 matters. See I would really appreciate it if we could start with the

18 witness who is actually waiting.

19 JUDGE AGIUS: Let's hear what Mr. Wubben has to say.

20 MR. WUBBEN: Yes, Your Honour. I would like to make an oral

21 submission, as I already stated, and I believe --

22 JUDGE AGIUS: After which I take it we will leave it at that and

23 we will proceed with a decision later on.

24 MR. WUBBEN: What I suggest, Your Honour, is that by the end of

25 this proceeding let's -- I need for myself, I think, ten minutes to 15

Page 14457

1 minutes. I don't know what the Defence need, but I like to request you

2 permission, allowance to respond to the filing, the written filing, the

3 reply by today. And then I have a further submission regarding the

4 schedule.

5 JUDGE AGIUS: If you want to respond to this further filing, yes,

6 of course, but please do it by the end of today.

7 MR. WUBBEN: Yes.

8 JUDGE AGIUS: If you have a further submission to make, let's hear

9 it.

10 MR. WUBBEN: It will be a short submission in addition.

11 JUDGE AGIUS: Because our idea is that we will take it that you

12 don't want to make further submission on both parts and we will then

13 withdraw -- withdraw, I don't mean to say that we will stop the sitting

14 and go to our rooms. It means that we will withdraw, deliberate, and

15 we'll come back to a decision at the earliest opportunity after we have

16 come to a conclusion. At the moment, of course, we are very much open to

17 conviction from either side.

18 Yes, Mr. Wubben, what's your new submission, the one you said in

19 the very beginning.

20 MR. WUBBEN: The one in the very beginning is related to in

21 addition, subsequent to the response I would like to do also orally,

22 meaning that my preference would be to deal with both, unless you ask me

23 now to go ahead and ...

24 JUDGE AGIUS: Okay. All right. No. You include everything in

25 your reply, but make sure, please, that you file that at the earliest. I

Page 14458

1 know it's already half past 4.00 but --

2 MR. WUBBEN: Your Honour, I will do it orally. I prefer to do it

3 orally.

4 JUDGE AGIUS: Oh, I see.

5 MR. WUBBEN: Just to expedite the proceeding.

6 JUDGE AGIUS: How much time will you require?

7 MR. WUBBEN: I guess 15 minutes.

8 JUDGE AGIUS: 15 minutes. All right.

9 MR. JONES: We -- in fact, as my colleague just said, we have a

10 very tight scheduling of witnesses, and that's why we've been filing

11 written submissions. I don't see why firstly the Prosecution doesn't

12 simply file a written submission and that way we have -- we can save

13 needed court time.

14 Of course, if Mr. Wubben speaks for 15 minutes, then I have a

15 right to rely to that because he's going to raise matters. In addition,

16 as you may notice from the filing, we're awaiting clarification from the

17 government in question on two other matters, and so I don't see that this

18 will be a wonderfully efficient way of dealing with matters. I submit a

19 written submission would be better.

20 JUDGE AGIUS: I don't know what Mr. Wubben has to tell us. And

21 I'm not in the mind of the US government to know what they will respond to

22 the new questions posed by the Defence.

23 Yes. We'll stop half an hour -- at quarter to 6.00, quarter to

24 6.00, to hear submissions, but that will be the end of it. That will be

25 the end of it.

Page 14459

1 MR. WUBBEN: Thank you, Your Honour.

2 JUDGE AGIUS: Because we need our time to discuss as well. I

3 mean, this morning I wrote two decisions in other case. So --

4 [Trial Chamber confers]

5 JUDGE AGIUS: Yes. Let's bring in -- the witness hasn't got any

6 protective measures, does he? No.

7 MS. VIDOVIC: [Interpretation] No, Your Honour. At one point or

8 maybe on two occasions I intend to address the Chamber with the request to

9 move into a private session. But no, there no protective measures in

10 respect of this witness.

11 JUDGE AGIUS: I noticed at least from what I was informed today

12 that you have revised somewhat the summary of what he will be testifying

13 upon.

14 [The witness entered court]

15 JUDGE AGIUS: How does that lead us as regards time needed by the

16 Defence for examination-in-chief?

17 MS. VIDOVIC: [Interpretation] Your Honour, I try to avoid any

18 repetitive matters, anything that has so far been testified by other

19 witnesses, but as you have had an opportunity to see during the proofing,

20 I was able to establish that the witness is aware of many relevant issues

21 for this case. Eight hours, therefore. And we envisage four working

22 days, that is until the end of this week for this witness. What we need

23 is eight hours, and I believe it is in line with the practice that we have

24 had so far, that is that during the examination-in-chief by the Prosecutor

25 we had, I think, 75 to 80 per cent of that time for the -- for the

Page 14460

1 cross-examination, and I believe that we will stick to that for the

2 remainder of this week.

3 JUDGE AGIUS: We will start and we'll do our best to make sure

4 that this witness goes home the end of this week. But basically we're

5 saying today is already Tuesday, we have Wednesday, Thursday, Friday.

6 That's three times three, nine, plus another hour and a half. I don't

7 think we will finish with this witness on Friday. I don't think so. He

8 must be put on the alert that he is going to spend the weekend here.

9 All right. Good afternoon to you, Mr. Smajlovic.

10 THE WITNESS: [Interpretation] Good afternoon, Your Honours.

11 JUDGE AGIUS: I am the Presiding Judge in this trial. My name is

12 Carmel Agius, and I come from Malta. To my right is Judge Hans Henrik

13 Brydensholt from the Kingdom of Denmark, to my left is Judge Professor

14 Albin Eser from the Republic of Germany. We are presiding over this case

15 against Naser Oric, and you have been summoned as a Defence witness by

16 Mr. Oric, which means you are going to start giving evidence in a couple

17 of minutes' time.

18 However, before you start giving evidence, our Rules require that

19 you make a solemn declaration; in other words, that you confirm solemnly

20 equivalent to an oath to us and to everybody that in the course of your

21 testimony you will be speaking the truth, the whole truth and nothing but

22 the truth. The text is contained on a piece of paper which is going to be

23 handed to you now. Please read it out loud and that will be your solemn

24 undertaking with us that you will be testifying the truth.

25 THE WITNESS: [Interpretation] I solemnly declare that I will speak

Page 14461

1 the truth, the whole truth, and nothing but the truth.

2 JUDGE AGIUS: Okay. I thank you. Please make yourself

3 comfortable. Sit down.


5 [Witness answered through interpreter]

6 JUDGE AGIUS: I will explain to you what is going to happen.

7 First of all, you would have noticed, sir, that I am not speaking

8 your language. I'm speaking English, in English, and what I am saying is

9 being translated to you in your own language or in a language which you

10 understand. That's very important. And I want to make sure that

11 throughout all your stay here and throughout all your testimony you are

12 receiving interpretation in your own language at all times, and if at any

13 time there are problems with the reception of interpretation, or if at any

14 time the sound level is not agreeable to you, please draw our attention

15 straight away. That happens sometimes. And we will give it all due

16 attention and we will rectify it, but I want to make sure that you are

17 able to follow what's being said at all times and at every given moment.

18 All right?

19 Secondly, you are considered by the Defence as a very important

20 witness, and they are expecting to put questions to you for a long time,

21 which they have a right to do. So you will have to be with us here for a

22 few days, and in all probability we will not be able to finish with you

23 this week. We will do our utmost and our best to do that, but I don't

24 promise you that we will be able to finish with you this week, which

25 basically means that you will need to stay here over the weekend.

Page 14462

1 During these days, you can of course be in contact with your

2 family, and you can make calls to other persons, provided that you do not

3 yourself discuss or allow others to discuss or mention to you the matters

4 related to the events with which this trial is concerned or matters

5 related to your testimony. It would be a violation of our laws if you try

6 to communicate with anyone while you are still here and until you have

7 completed your testimony in chief and in cross.

8 The other thing is this: Very much depends on how you answer

9 questions. If you elaborate and you give more information than what the

10 question asks from you, then you are going to be here a long time. So my

11 recommendation to you, Mr. Smajlovic, is that you try and adopt a very

12 simple approach in your testimony when trying to answer all the questions

13 that are put to you, and that is answer the question, the whole question,

14 and nothing but the question. If you give more information, you will be

15 here longer. So if you can answer a question by a simple yes or no, then

16 answer it by a simple yes or no. If you need to give explanations, look

17 at us and we will give you a chance to explain. But if you can answer the

18 question by a yes or a no, just answer it that way and don't go into

19 further details.

20 The Defence counsel, lead counsel, Madam Vidovic will go first,

21 and what she has finished it will be Mr. Di Fazio, the gentleman who is

22 nearer to you, that will cross-examine you on behalf of the Prosecution,

23 but I'll address you on that when we come to the cross-examination.

24 Madam Vidovic -- you will be here in the witness box for about an

25 hour today, then tomorrow we will have a full day.

Page 14463

1 Yes, Madam Vidovic.

2 Examined by Ms. Vidovic:

3 Q. Good afternoon, Mr. Smajlovic.

4 A. Yes.

5 Q. Your name is Suad Smajlovic?

6 A. Yes.

7 Q. You were born on the 4th of January, 1967 in Srebrenica?

8 A. Yes.

9 Q. Your father's name is Avdo; mother's name Fadila, nee Sadikovic?

10 A. Yes.

11 Q. You went to primary school which you finished in 1981 in

12 Srebrenica?

13 A. Yes.

14 Q. From 1985 until 1990, you worked in the Energoinvest company in

15 Srebrenica?

16 A. Yes.

17 Q. From 1990 until 1992, you were in the reserve forces of the

18 security services centre in Srebrenica?

19 A. Yes.

20 Q. You did your military service in 1986 in Bela Crkva in Serbia?

21 A. Yes.

22 Q. In the transport unit?

23 A. Yes.

24 Q. You spent the war in the area of Srebrenica?

25 A. Yes.

Page 14464

1 Q. After the fall of Srebrenica, you worked as assistant commander

2 for security of the 287th Brigade in Stupari, then in Dubrava?

3 A. Yes.

4 Q. In 1997, you were admitted into the professional service of the

5 army of the Federation of Bosnia and Herzegovina where you worked until

6 2004?

7 A. Yes.

8 Q. During this period of time, you spent some time in training under

9 the auspices of the government of the united -- United States for the

10 Federation army?

11 A. Yes.

12 Q. This included training in control and command and in manipulating

13 various types of weapons, and also it included equating yourself with

14 various types of weapons used by the NATO forces?

15 A. Yes.

16 Q. Then you spent some time in training in Ankare and the officers'

17 school of NATO which was organised in Pakistan. All of this under the

18 auspices of the government of the US.

19 A. Yes.

20 Q. Thank you. Mr. Smajlovic, can I please ask you to make a brief

21 pause after I finish my question so that it can be interpreted by the

22 interpreters. Thank you.

23 During the year of 1995 in Potocari, approximately 18 of your

24 close relatives went missing?

25 A. Yes.

Page 14465

1 Q. You're married and father of two under 8 children?

2 A. Yes.

3 Q. You're currently employed in the company called Gama Sigurnost,

4 which deals with the protection of people and facilities, and you are in

5 charge, you are a manager of a sector there?

6 A. Yes.

7 Q. Mr. Smajlovic, I'm sitting here. You can -- you can turn to me

8 from time to time.

9 So far we have received a lot of information. We have heard a lot

10 of information about the events which preceded the war events in 1992 in

11 Srebrenica and which relate to the arming of the Serb population, and that

12 is why I am not going to ask you a lot of questions about that.

13 I will also skip a number of details and information to which you

14 had access as a reserve police officer, all of which was testified by

15 several witnesses in this case, but I will limit myself to several details

16 in relation to this topic.

17 So while you were working as a reserve police officer, did you

18 have any information about the existence of Serb Crisis Staffs in the

19 early months of 1992?

20 A. Yes.

21 Q. How did you obtain that information?

22 A. While visiting the area, the Muslim and Serb villages, but also

23 from colleagues who were of Serb ethnicity.

24 Q. Were all of your colleagues policemen in the Srebrenica police

25 station, were they -- were all of them for SDA or not?

Page 14466

1 A. No.

2 MS. VIDOVIC: [Interpretation] Your Honours, can I ask you at this

3 point to move into private session because of some names that the witness

4 will mention.

5 JUDGE AGIUS: Thank you, Madam Vidovic.

6 Let's go into private session for a while, please.

7 [Private session]

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 [Open session]

21 JUDGE AGIUS: I thank you, Madam Vidovic.

22 MS. VIDOVIC: [Interpretation] Can I ask the usher please to

23 show D625 to the witness.

24 Q. While we're waiting for the document, for the exhibit, let me

25 state for the record that this is an instruction for the organisation and

Page 14467

1 activities of the Serb people in Bosnia and Herzegovina in a state of

2 emergency from 1991.

3 Witness, can I please ask you to have look at page 2, item 3 of

4 this document. Let me quote, and I kindly ask you to listen to me

5 carefully: "The Municipal Committee of the SDS will immediately form a

6 crisis headquarters of the Serb people in the municipality which will

7 include all members of the secretariat of the municipal committee of the

8 SDS. Post-holders in the municipalities, SDS nominees for the following

9 bodies, president of the Municipal Assembly or president of the municipal

10 Executive Board, head of the public security station, or commander of the

11 police station, commander or head of the municipal territorial defence

12 headquarters, secretary of the municipal Secretariat for National Defence,

13 or another official from that secretariat who is a nominee of the SDS;

14 "Deputies in the Assembly of the Serb people in

15 Bosnia-Herzegovina;

16 "Members of the Main Committee of the SDS of Bosnia-Herzegovina

17 from that municipality."

18 Witness, you mentioned the names of the people with whom you

19 talked and I kindly ask you not to repeat their names.

20 On the basis of the conversations that you had with these people,

21 were you able to find out that post-holders in the municipality, Serbs,

22 later became members of those Crisis Staffs, such as the president of the

23 SDS, the head of the police station and others?

24 A. Yes. I knew, for instance, that Goran Zekic, the president of the

25 SDS, was a member of the Crisis Staff, as well as the former head of the

Page 14468

1 CSB, Sava Aleksic, who was the head in 1990 and who was also a member of

2 the Serb Crisis Staff.

3 Q. When you say "Serb Crisis Staff," can you tell us what the

4 municipality you're talking about?

5 A. The municipality of Srebrenica. The Serb municipality of

6 Srebrenica.

7 Q. Thank you. Based on your knowledge about the events which

8 happened later in Srebrenica, were members of the Srebrenica Crisis Staff,

9 did they have a role in the events around the 17th of April, 1992, in

10 Srebrenica?

11 A. Yes, they did.

12 Q. From the 17th of April, 1992 -- rather, before that time, before

13 the 17th of April, 1992, did you already know what was happening with the

14 Muslim population in Eastern Bosnia in towns such as Bijeljina or Zvornik?

15 A. Yes. I knew that, thanks to a number of reports in the police

16 station, also through listening to the local stations, police stations,

17 and also from the stories of that population from the people who were able

18 to flee and come to Srebrenica.

19 Q. Did they tell you anything? What did they tell you?

20 A. Well, they spoke of horrible things that had taken place there,

21 murders, expulsions.

22 Q. Thank you.

23 Can I ask for a new exhibit, Defence exhibit to be shown to the

24 witness at this point. It is an article published in the Banja Luka based

25 Nezavisne Novine on the 28th of November, 2005. The title of the article

Page 14469

1 is "The trial" -- "The Main Trial Against Yellow Wasps Starts."

2 While the article is being distributed, Your Honours, let me draw

3 your attention to the first page which contains information as to the

4 date, the time when the article was published. The article itself is on

5 the next page.

6 Let me quote from the article. I'm not going to quote the article

7 in its entirety. It starts as follows: "Tuzla trial of Branko Grujic,

8 Branko Popovic, Dragan Slavkovic, Ivan Korac, Sinisa Filipovic, and

9 Dragutin Dragicevic accused of war crimes committed from April until June

10 of 1992 in the area of Zvornik starts today before the War Crimes Chamber

11 of the district court in Belgrade."

12 Let me now quote the third and the fourth paragraphs which

13 say: "The head of Zvornik Municipality at the time, Branko Grujic, and

14 the commander of the TO staff in Zvornik at the time, Branko Popovic, have

15 been accused of the forced movement of 1.822 Muslims from the villages of

16 Kozluk and Skocic.

17 "The indictment also covers the monstrous murders of at least 19

18 Muslim civilians at "Dom Kulture" in Celopek, at the "Ekonomija" farm and

19 a place called Ciglana. Bodies of the missing inhabitants of Zvornik were

20 found and exhumed from mass graves, Berbica mezarije, Ramin grob,

21 Kazanbasca, and Crni Vrh where numerous evidence about the ways of

22 liquidation of the victims was found."

23 Let me ask you a question, Witness. It is stated here that the

24 head of the municipality and the commander of the TO staff in Zvornik is

25 about to stand trial for murders and expulsions of the civilian Muslim

Page 14470

1 population from the area in question. I would like to know whether the

2 information which you said you had access to at the time, is this the

3 information that you were able to obtain from the radio and from the

4 refugees who had come to the area of Srebrenica, that is that Muslims were

5 being killed and expelled in the area of Zvornik?

6 A. Yes. It was very well coordinated, very well planned, and the

7 ethnic cleansing of the entire area had been prepared, the area where

8 Muslims lived.

9 Q. We will get to that, Witness.

10 Let me first ask you something in relation to this article. You

11 have heard the names that I just read out. Is it correct that I had shown

12 you this article before you came here to testify?

13 A. Yes.

14 Q. Do you know any of these individuals whose names I have just read

15 out from the article?

16 A. Yes.

17 Q. Who do you know?

18 A. Dragutin Dragicevic, Serb, from the village of Samotica near

19 Srebrenica, who has already been convicted of heinous murders of 25

20 Muslims in Bijele Polje in the Republic of Serbia. And in early 1990, he

21 had already left as a volunteer to the battlefield, and later we heard

22 that he had committed heinous murders of Croatian Catholics in the

23 battlefield.

24 Q. How do you know this individual?

25 A. We went to school together.

Page 14471

1 MS. VIDOVIC: [Interpretation] Your Honours, I would like this

2 exhibit to be given a number.

3 JUDGE AGIUS: So this will become Defence Exhibit D963.

4 MS. VIDOVIC: [Interpretation]

5 Q. Witness, the refugees who had come from Zvornik, did they tell you

6 anything about the fact that Muslims had been given an ultimatum in

7 Zvornik, an ultimatum to hand over the weapons?

8 A. Yes.

9 Q. In Srebrenica, around the 15th of April, 1992, did you receive an

10 ultimatum to that effect, to surrender the weapons or not?

11 A. Yes.

12 Q. At the time you were given this ultimatum to surrender the

13 weapons, the ultimatum which was issued by Serbs, did you at that point

14 realise that the same fate was awaiting you, that is the murders, rapes

15 and looting, everything that you had heard from the refugees who had come

16 to your area?

17 A. Yes.

18 Q. What did you do? I mean you personally.

19 A. On the 16th of April, 1992, I went to work as usual. I took the

20 rifle which I had signed out for and some ammunition because I knew that I

21 would need it. I went back to Kazani where I realised that the population

22 was panicking, and it was decided that we would not surrender the weapons

23 but flee to the woods instead.

24 Q. Could we show a map to the witness at this point. This map will

25 help us with his testimony. This is a part topographical map of Zvornik

Page 14472

1 of a scale of 1:100.000. That's the same map we've been using so far.

2 Witness, the map will be placed to your side. You see where it

3 is. Please take the pointer you have there, and I will ask the usher's

4 assistance in giving the witness a marker, a highlighter.

5 Please show the Trial Chamber by using the map, and you can turn

6 to the map, please, where Kazani is on this map.

7 A. [Indicates].

8 Q. Please keep the map there. We will need it at a later stage

9 during your testimony. I will go back to the events you started relating

10 just now.

11 You said that you called on the people to flee to the woods there.

12 Did they listen to what you were saying and follow suit?

13 A. Yes.

14 Q. How many people were there with you approximately?

15 A. About 100 women, children, and elderly people, and there were two

16 newborn babies with us as well.

17 Q. I understood that you went to the woods on the 16th of April,

18 1992. Am I right?

19 A. Yes.

20 Q. How much time did you spend with those people in the woods?

21 A. We stayed there for about two weeks. We were outdoors without any

22 provisions, any food, water, or shelter. At the time, the weather was so

23 bad you had practically all the seasons alternating at the time.

24 As the Serbs entered Srebrenica, they first started shelling --

25 Q. Could I ask you to pause there, Witness. I want us to go

Page 14473

1 step-by-step.

2 First of all, I would like to ask you the following: Where were

3 you and the people you were with exactly positioned in this wooded area,

4 in order for the Trial Chamber to understand?

5 A. Yes. This was right above Srebrenica.

6 Q. From that particular vantage point, were you able to see what was

7 happening in Srebrenica?

8 A. Yes.

9 Q. Can you briefly describe what you saw, that is what was going on

10 on the 17th of April.

11 A. On the 17th of April from the direction of Sase, Potocari,

12 Zelani-Jadar, Skelani, Bjogare [phoen], rivers of vehicles with Serbs in

13 them approached and entered the town.

14 Q. At the time did you observe any of the SDS leaders there?

15 A. Yes, Goran Zekic, who wore an officer's JNA uniform and was at the

16 head of the column.

17 Q. What was the direction from which the column was coming that he

18 was heading?

19 A. From the direction of Sase.

20 Q. Could you please briefly tell the Trial Chamber what happened next

21 in Srebrenica in the days to follow.

22 A. Looting, destruction, theft, murders.

23 Q. Were there any women left behind there?

24 A. Yes. All the women who happened to be there were raped or killed

25 or murdered.

Page 14474

1 Q. Thank you.

2 Could I have the usher's assistance in showing the witness a

3 document. This is a document from the Drina Corps archives

4 headed "Report," dated 17 September 1992, bearing the following number:

5 03588224. The title of the document, the full title is "Report about the

6 war booty and other goods from the territory of Srebrenica municipality."

7 I will quote from the first paragraph and also a small portion from the

8 second paragraph.

9 "When Srebrenica and Potocarska Rijeka were liberated, enormous

10 quantities of material assets and basic resources were seized. A large

11 quantity of acids used in the floatation for led, zinc and silver

12 separation was transferred from Potocari to the Veliki Majdan company in

13 Ljubovija. Also, large quantities of explosives, detonator caps and

14 fuses, a trailer truck loaded with tyres of various sizes, two trailer

15 trucks and two buses, several freight vehicles and cars, truck number

16 2226, which transported items belonging to Miodrag Jokic and whose trailer

17 was in the compound of the Trans Ljubovija company had been stolen.

18 "The items driven away include a total of eight to ten buses,

19 seven truck trailers, about 30 freight vehicles of the Transport Company

20 from Potocari, and several dump trucks of the former construction company

21 from Srebrenica, one cement mixer truck, and many other lorries, buses and

22 cars that have remained remained in Serbia," and so on.

23 I will move on to read the following: "I suggest that the MUP of

24 the Serbian republic take urgent measures in order to prevent further

25 looting and misappropriation of war booty."

Page 14475

1 Do you agree with me that the last sentence I read out to you

2 indicates to you that this source of the document is Serb, since it is

3 proposed that the Serb MUP take measures?

4 A. Yes.

5 Q. This report on war booty and other properties, does it not reflect

6 what you saw as having taken place in Srebrenica at the time, looting and

7 taking away of property?

8 A. Yes.

9 MS. VIDOVIC: [Interpretation] Your Honour, could this document be

10 assigned a Defence exhibit number.

11 JUDGE AGIUS: Yes. Let us assign an exhibit number to the map

12 first. The map which was previously made use of will become Defence

13 Exhibit D964. And this document that the witness has just testified upon

14 with ERN 03588224, the Serbo-Croat version, two pages in English is being

15 marked as Defence Exhibit D965.

16 MS. VIDOVIC: [Interpretation]

17 Q. You told us that from the woods where you were hiding you were

18 able to observe the situation in Srebrenica. Who were the attackers on

19 Srebrenica on the 17th of April, 1992? Were they local Serbs or some

20 outsiders?

21 A. They were local Serbs from Sase, Zalazje, Bjogare, Orahovica,

22 Podravanje and, in particular, from Skelani. I knew some of them who were

23 there, because I got to know them as I was doing my fieldwork as a police

24 officer.

25 Q. Were there some other people among them?

Page 14476

1 A. Yes. There were those wearing different kind of uniforms.

2 Q. Thank you. When did the Muslims return to Srebrenica?

3 A. After Goran Zekic's death on the 7th of May, 1992.

4 Q. You said that some of them were wearing a different kind of

5 uniform. The attackers that you mentioned came from those Serb villages,

6 were they wearing uniforms or not?

7 A. Yes, they wore uniforms.

8 Q. What sort of uniform did they have?

9 A. Olive-drab uniforms.

10 Q. And the other ones?

11 A. Camouflage uniforms.

12 Q. You told us that you returned to Srebrenica right after the 7th

13 of May, 1992, or on that date. Did I understand you well?

14 A. Yes.

15 Q. After the Serbs had withdrawn from Srebrenica, did they leave the

16 inhabitants of Srebrenica and of the villages surrounding Srebrenica to

17 live there in peace or did they do something else?

18 A. No, they did not leave them in peace. They continued with intense

19 infantry and artillery attacks against all the areas gravitating towards

20 Srebrenica, all the villages and hamlets.

21 Q. Were they shelling Srebrenica itself in?

22 A. Yes.

23 Q. Can you give us the exact period during which Srebrenica and

24 Muslim villages were under these attacks?

25 A. These attacks started on the 17th of April, 1992, and continued

Page 14477

1 through to the demilitarisation.

2 Q. Thank you.

3 MS. VIDOVIC: [Interpretation] Could I have the usher's assistance

4 now in showing the witness D731.

5 Q. This is a document issued by the command of the brigade of the

6 autonomous region of Birac. Dated 31st of May, 1992, bearing the

7 following number: 04276217. I will quote from a part of the document.

8 "Pursuant to the decision of the government of the Serb

9 autonomous region of Birac, therefore the Serb autonomous region of Birac,

10 which regular rates the moving out of the Muslim population from the

11 territory of the Serb autonomous region of Birac, I hereby order:

12 "Set up a camp in Vlasenica and secure it in compliance with

13 international regulations."

14 My question to you is as follows: Based on your experience and on

15 the experience of the refugees you spoke to, can you tell us whether this

16 decision issued by the Birac government regulating the moving out of the

17 Muslim population in the area of Birac was implemented? Does it not show

18 that they wanted the entire Muslim population to move out of the area?

19 A. Yes. We were able to see that. It was all planned and

20 coordinated.

21 MS. VIDOVIC: [Interpretation] Could the usher show the witness a

22 different Defence exhibit, D815.

23 Q. This document is by the Birac Brigade command dated 17 June 1992,

24 bearing the number 04337554.

25 Witness, take a look at the document before you. I will quote

Page 14478

1 item 2, which says: "It is necessary that you urgently resolve the issue

2 of prisoner's camps because we currently have 640 prisoners in Vlasenica."

3 My question to you is the following one: In the context of the

4 expulsions you mentioned, were you aware of a camp existing in the area of

5 Birac?

6 A. Yes, Susica, also the one at Vlasenica, at Gradina, at Sase, at

7 the Vuk Karadzic school in Bratunac, at the Jedinstvo stadium also in

8 Bratunac. Many people lost their lives there and went missing.

9 Q. You told us that you were aware of the intention of the Serbs to

10 cleanse the area of Podrinje of the Muslim population. Were you aware of

11 the fact that the local Serb population was assisted, helped by

12 volunteers? Yes or no?

13 A. Yes.

14 Q. You therefore knew about it?

15 A. Yes.

16 Q. What was the reputation enjoyed by volunteers among the Muslim

17 population?

18 A. These were people from Serbia who had experience on the Croatian

19 battlefield, and their one and only purpose was to kill.

20 MS. VIDOVIC: [Interpretation] Could the witness be shown D832,

21 please.

22 Q. Witness, please look at page 01297987. That's the last page of

23 the document. The title there is the testimony of a killer, but I will

24 not read this article out to you. I will ask you the following: Is it

25 not true that I showed you the article and that you carefully read the

Page 14479

1 entire article?

2 A. Yes, that's true.

3 Q. I will now quote a small portion of the article that I intend to

4 put a question on.

5 MS. VIDOVIC: [Interpretation] Your Honours, in English it's

6 page 3.

7 Q. And I will quote the part starting as follows: What exactly was

8 your task? What was actually your task.

9 And the person interviewed gives the following answer: "The

10 fifteen of us, volunteers from Vranje and the surrounding area were

11 stationed in Fakovici. We undertook actions from there with local

12 inhabitants who used to come from Bratunac. Muslim villages were up there

13 in the hills, and we cleansed them one by one."

14 "You say that you went into action. What do you mean by that?"

15 "When we went into action, all the volunteers who were

16 accommodated in Serb villages gathered there. Special units came from

17 Bratunac consisting of people from the area who knew the terrain. The

18 task of these people was to disable Muslim guards around the villages

19 before the attack. During that time, we surrounded them and started with

20 the attack at dawn. We burned everything that was in our path, threw

21 bombs onto houses, opened fire. We captured a number of Muslims and sent

22 them over to Bratunac. After our actions, villages were completely

23 destroyed. Zanjevo, Tegare and seven or eight other villages. According

24 to my assessment, about 4.000 to 5.000 Muslims were killed. Only in the

25 forest in the village of Tegare more than 1.000 people were killed in

Page 14480

1 three to four hours only.

2 "Who did you fight against? Against the Muslim army?

3 "No, they were civilians, villagers in most case insufficiently

4 armed with double-barrelled guns and similar rifles."

5 Witness, in interview given by Slobodan Misic he stated that in

6 the events in which he participated after their actions, Zanjevo, Tegare

7 and seven to eight villages were razed to the ground. Based on your

8 knowledge, is it true that in the period from mid-April 1992 through to

9 October 1992 the Muslim villages in the area around Fakovici, including

10 Zanjevo, Tegare were destroyed in fact or not?

11 A. Yes, they were.

12 Q. Could you please tell us which were the villages that were

13 destroyed? Do you remember?

14 A. Those were the villages of Zanjevo, Tegare, Donje and Gornja

15 Orlica, Zapolje, part of Sikiric Rijeka, or rather the Muslim part of

16 Sikiric Rijeka, Biljaca, Zaluzje, Voljevica, all these villages were

17 destroyed in that period.

18 Q. Thank you. As far as Tegare itself is concerned, it is stated

19 here that in one day or, rather, in three or four hours more than 1.000

20 people were killed.

21 My question is as follows: Do you know what happened in Tegare

22 around mid-September 1992?

23 A. Tegare was partially burned in early May so that the population

24 from the village and the surrounding area fled to the woods in the area

25 there. In early September, they returned to their village. To be more

Page 14481

1 precise, on the 14th of September, in the early morning hours, Serb

2 soldiers encircled the general area of Tegare and Fakovici, including the

3 woods where large groups of refugees were hiding from -- those were

4 refugees from the area of Visegrad who had managed to pull through through

5 the Drina canyon on found refuge there.

6 Q. Witness, what happened that day?

7 A. On that day, the Serb army encircled the area, the area including

8 all the refugees there, and proceeded to kill whoever was alive. They

9 took younger women and girls to the nearby woods, raped and subsequently

10 murdered them.

11 MS. VIDOVIC: [Interpretation] Your Honour, at this point I would

12 kindly ask us to go into private session.

13 JUDGE AGIUS: Let's go into private session for a short while.

14 [Private session]

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 14482

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 [Open session]

22 JUDGE AGIUS: We are back in open session.

23 MS. VIDOVIC: [Interpretation]

24 Q. Witness, could you please tell us, you said you had two sources.

25 What was the other source?

Page 14483

1 A. The other source of my information were the people who brought

2 her. They also came to visit her aunt, and I spoke to them as well. What

3 they had seen was a real massacre. When they arrived in the area of

4 Tegare, they saw a child whose body was dismembered with a Zolja and a man

5 whose body was placed in a basket and whose head was hanging out of this

6 basket, whose mother had been slain. And there were two underaged

7 children, bodies of two underaged children lying next to her. Apparently

8 they had been shot from the back. Old people, whoever wore jewellery,

9 their fingers had been cut off.

10 The people in the area, in the area of Tegare, were simply

11 massacred, whoever happened to be in the vicinity and in the woods

12 surrounding the village.

13 Q. The people with how many spoke at the time, did they tell you

14 whether they knew who the perpetrators were?

15 A. It was the girl who told me that, because she had gone to school

16 to Fakovici, and she knew the people from Fakovici. But she also said

17 that there had been people who spoke in Ekavian dialect who used abusive

18 language and shouted.

19 Q. Thank you very much.

20 MS. VIDOVIC: [Interpretation] Could the usher please show to the

21 witness a new document, which bears the number 04337115. It's a telegram

22 which was sent to Milici on the 14th of September, 1992 to the command of

23 the Birac Brigade. It was sent from Milici.

24 THE INTERPRETER: Interpreter's correction: The telegram was sent

25 from Milici.

Page 14484

1 MS. VIDOVIC: [Interpretation]

2 Q. Witness, could I kindly ask you to have a look at it text which

3 states as follows: "We are passing on to you a telegram from Gigant."

4 And it goes on: "Our air force has been trained and is ready to

5 be deployed in any task. We bombed Srebrenica with the approval of

6 PANOS-5.

7 "We will continue our attacks east of Srebrenica today.

8 "Please forward your requests a day before. The moving of the

9 Repovac-Magasici line to the LAD line was carried out, elevation point

10 408, Bresenjak, and 932."

11 And now please pay attention to the last sentence: "Tegare

12 completely liberated."

13 Witness, my question in relation to this is the following: What

14 town in Podrinje had air force?

15 A. Bratunac.

16 Q. You've seen the last sentence of this document which says: Tegare

17 completely liberated."

18 Based on your knowledge, on the 14th of September, 1992, and

19 around that day, was Srebrenica bombed from the area east of -- east of

20 the town?

21 A. Yes.

22 Q. Let me go back once again to this last sentence. "Tegare

23 completely liberated." The date is the 14th of September, 1992.

24 Does this accord with your recollection of the time at the time

25 you heard about the plight of the civilians, including the plight of this

Page 14485

1 young girl whom you saw at the time?

2 A. Yes, it does.

3 JUDGE AGIUS: This document, Madam Vidovic, will become Defence

4 Exhibit D966.

5 MS. VIDOVIC: [Interpretation] Could the witness be shown another

6 document, please. It is another document from the Drina Corps command

7 dated the 9th of January, 1992, number 04929466.

8 It says "Very urgent.

9 "To the Bratunac Brigade command (to the commander and Colonel

10 Pritojevic)."

11 And it goes on: "Participation of a group of 'Volunteers' in the

12 zone of responsibility of the brigade."

13 I'm not going to ask you about the time framework but about the

14 phenomenon of volunteers and will you please pay attention to that. I

15 will quote the first and the last paragraphs of this document.

16 The first one: "We have received information about the arrival of

17 a group of 'volunteers' of unknown numerical strength which is to take

18 part in combat operations in the zone of responsibility of our brigade."

19 And the last paragraph: "Do not, under any circumstances, engage

20 this group along the axes where Serbian villages are located, and

21 specifically relay this to the commander of the group."

22 How do you understand this ban to engage the group of volunteers

23 in the area of Serb villages, the order issued by Colonel Milenko

24 Jovanovic [as interpreted], and how does this correspond to the

25 information, to your knowledge, of the volunteers?

Page 14486

1 A. It simply means that we're talking about very cruel, brutal

2 people, unscrupulous people who would have no qualms about endangering

3 even the Serb population in the areas they pass through.

4 Q. Can you conclude personally that Colonel Jovanovic was aware of

5 their cruelty at the time he sent them to the Muslim villages and banning

6 them from entering Serb villages. Was he aware of that?

7 A. Yes.

8 MS. VIDOVIC: [Interpretation] Your Honour, I was referring to

9 Colonel Milenko Zivanovic for the sake of the record, not Jovanovic. The

10 commander of the Drina Corps.

11 JUDGE AGIUS: Thank you for pointing that out, Ms. Vidovic, and it

12 will be taken account of in the final transcript, I hope.

13 MS. VIDOVIC: [Interpretation] Can this document be given a Defence

14 exhibit number, please.

15 THE INTERPRETER: Microphone, Your Honour.

16 JUDGE AGIUS: Yes, Ms. Vidovic. It has already become Defence

17 Exhibit D967.

18 MS. VIDOVIC: [Interpretation]

19 Q. Witness, you have told us that Serbs had mounted a severe attack

20 and carried out a massacre in Tegare, in the area of Tegare that is. What

21 I would like to know is whether the area of Srebrenica and the surrounding

22 villages, in late September, early October 1992, were also under the

23 pressure of the Serb forces or not.

24 A. Yes. There were many artillery attacks, attacks from the air,

25 infantry attacks. The encirclement was getting tighter every day, and

Page 14487

1 they were trying to create an enclave out of Srebrenica. They were

2 turning small villages into even smaller enclaves in order to force the

3 population who was in the area because they lacked food and medicine to

4 parish.

5 Q. Thank you.

6 MS. VIDOVIC: [Interpretation] Could the witness be shown a new

7 document at this point, please. It is a document issued by the command of

8 the Birac Brigade, a document by the Birac Brigade command dated

9 11 October 1992. The document bears the number 04337513. It is a daily

10 operations report sent to the command of the Eastern Bosnian Corps, and it

11 bears the name of Svetozar Andric.

12 Q. I will quote just one sentence from this document. It's to be

13 found under item 3 -- actually, I'm going to quote the item 3 of the

14 document: "Situation in the area of responsibility: We are setting up

15 ambushes. Our artillery is firing along the Caparde-Kalesija line."

16 In connection with this, let me ask you a question and then I will

17 move on with the document.

18 This line, this axis Caparde-Kalesija, is this the route to Tuzla?

19 A. Yes.

20 Q. Based on your knowledge, were there any ambushes as described in

21 the document along that line, along that axis?

22 A. Yes.

23 Q. Is that the road that the Muslims took on their way to Tuzla when

24 they were attempting a breakthrough to Tuzla?

25 A. Yes.

Page 14488

1 Q. Let me continue with the document. "From the Bratunac side, the

2 Voljevica-Pobrdje-Andrici line was moved and we're linking up with the

3 forces from Sase, thereby considerably shortening the front line on that

4 side. We are also moving the Bratunac-Glogova line to the positions on

5 Kaolin-Ladja, elevation point 408 Vresje, point 3.532. We did not move

6 the line held by the Kravica forces towards Konjevic Polje and they are

7 still at Sopotnik-Lupoglava-Banjevici-Gornja Brana-Donja

8 Brana-Neradje-Krusik-Marici-Lazarici-Menjak-Jezestica.

9 "The Vlasenica PB forces are along the Potanjik Jasikovaca

10 Nisava-Metaljka line. We have planned for the air force to launch an

11 attack during the day against the forces intervening from Srebrenica.

12 Combat operations have slowed down a little because of weather conditions.

13 The situation at Crni Vrh - regular."

14 Let me ask you the following: This document, Witness, does it

15 confirm the situation as it was on the ground at the time when this

16 document was created, that is the 11th of October, 1992? Is it true that

17 Serb forces were linking up in the field and encircling Muslim villages?

18 A. Yes. Konjevic Polje, Srebrenica, and the villages around

19 Srebrenica were all getting encircled at the time.

20 Q. Yes. Thank you.

21 MS. VIDOVIC: [Interpretation] Can this document be given a number,

22 please.

23 JUDGE AGIUS: Yes. This will become Defence Exhibit D968.

24 MS. VIDOVIC: [Interpretation]

25 Q. You saw in the previous document that it was dated the 11th of

Page 14489

1 October, 1992. Do you remember, Witness, the month of October 1992? Was

2 that the time of very intensive attacks on the enclaves of Srebrenica and

3 Konjevic Polje?

4 A. Yes. Those were the most severe attacks, artillery attacks, air

5 attacks, and infantry attacks as well.

6 Q. Thank you.

7 MS. VIDOVIC: [Interpretation] Could the witness be shown Defence

8 exhibit -- a new Defence exhibit, which bears the number 01081631. It is

9 a document issued by the War Presidency of the municipality of Srebrenica,

10 and it bears the date of the 13th of October, 1992. It is -- it's title

11 is "Appeal." And it says -- let me just read out a brief -- a small

12 portion of the document.

13 It states as follows: "Everything that has been happening in the

14 last few days on the territory of Srebrenica, Konjevic Polje, and Cerska,

15 as well as throughout the free territory in the region is worse than hell.

16 "The SDS extremists are attempt to go destroy everything that can

17 be destroyed with heavy artillery and with infantry attacks."

18 Witness, let me ask you the following question: This document,

19 does it reflect the actual situation with respect to the attacks against

20 Srebrenica, Konjevic Polje, Cerska in the month of October 1992.

21 A. Yes. Yes, it does. Those were extremely severe attacks, and the

22 fall of Srebrenica was imminent.

23 Q. Yes. Can I ask you if you remember which villages in the area of

24 Srebrenica came under the attack of the Serb forces at that time, that is

25 in October 1992. When were those attacks particularly intensive if you

Page 14490

1 remember?

2 A. Yes, I do. On the 7th or the 8th of October the attacks were the

3 most severe. 1992, of course. The villages of Potocari, Budak, Dugo

4 Polje, Gogaze [phoen], Peceste, Likara [phoen], Isanik [phoen] came under

5 a very severe attack from the direction of Bratunac and Sase.

6 Q. Do you remember how long those intensive attacks were at the time?

7 A. Yes, I do. They lasted until the 13th or the 14th of October,

8 1992.

9 Q. Thank you.

10 MS. VIDOVIC: [Interpretation] Could this document be given a

11 number. I don't know, Your Honour, perhaps this is the time that you had

12 in mind. Do you want me to stop with my examination?

13 JUDGE AGIUS: This will become Defence Exhibit D969. If you can

14 finish the next point within, say, five minutes, then, yes, go ahead.

15 Five minutes or so, plus or minus. I'm trying -- you know, I've made

16 calculations between now and Friday how much time we have, give and take

17 one hour, so go ahead for the next five, seven minutes.

18 MS. VIDOVIC: [Interpretation] Your Honour, I'd rather stop at this

19 point because I have to move to another subject.

20 JUDGE AGIUS: All right. Certainly, Ms. Vidovic.

21 So, sir, we'll stop here for today. We will continue tomorrow in

22 the afternoon at 2.15. You will now be looked after, taken back to your

23 hotel. And please remember what I told you. Do not communicate with

24 anyone on the matters related to your testimony.

25 THE WITNESS: Yes, I'm clear on that, Your Honour.

Page 14491

1 JUDGE AGIUS: Thank you. Yes.

2 [The witness stands down]

3 JUDGE AGIUS: Now, let's not waste time or lose time.

4 Mr. Wubben, your final submissions on you know what.

5 MR. WUBBEN: Thank you, Your Honour.

6 I will take the opportunity to make two submissions, Your Honour.

7 First one will be an oral submission in reply to the response filed today

8 in the way of a reply by the Defence today in written form, so this will

9 be an oral reply. And the second will be an oral submission on the

10 procedural matter referring to Rule 73.

11 The reply by the Defence refers to a conclusion that as the

12 Prosecution has submitted in the Rule 70 witness case that it may have

13 contact with that witness but that the Defence request the Trial Chamber

14 to rule on the contrary. That's the first request.

15 And the second request is that the Prosecution may not have such

16 contact in the absence of the Defence, particularly when -- while the

17 response to the matters raised in ex parte Annexes A and B are still

18 pending.

19 Well, my reply are without any knowledge of the ex parte Annexes A

20 and B, and I refer to the knowledge of this Bench to decide upon that.

21 I will give my reply in the form of comments and refer to the

22 particular paragraphs, Your Honour, starting with paragraph 2 in which

23 paragraph the Defence refer to the information given by the Prosecution in

24 the evening of Tuesday, the 29th of November, 2005, that it would be

25 interviewing the witness, and that that information had the very

Page 14492

1 unfortunate consequence of leading the Defence to believe that the Trial

2 Chamber has rendered and entirely ex parte decision.

3 Your Honours, that conclusion is -- has been made by the Defence.

4 I refer to the reply already, the written reply, response by the

5 Prosecution in that respect. The information that I provide to Defence

6 counsel was that we will contact witness -- the witness tomorrow and that

7 we will put questions to him and that I referred to both the order by the

8 Trial Chamber and the right that each party has to interview witnesses,

9 and I reiterated that limited statement twice though I was interrupted

10 various times by another Defence counsel.

11 Paragraph 4 is referring to the case law including various

12 decisions by Chamber and appeal decisions. Those decisions, Your Honour,

13 are all triggered by the very fact that witnesses were reluctant to

14 testify and there had been a request for a subpoena for other way of

15 dealing with compelling witnesses to testify or refrain to do so. I refer

16 to the various rulings by that. That's another issue, the very fact that

17 has been decided upon by the Mrksic appeal, which is that every party has

18 a right to interview witnesses and that no party owns or sees a witness as

19 a property -- as its property.

20 Paragraph 6 is referring to an Article 18 of the Statute used

21 by -- in the response by the Prosecution. I also refer in that field to

22 Article 16 of the Statute that the Prosecution by itself is not limited

23 only to investigation but encompasses also the execution of its role at

24 the trial.

25 Paragraph 7 of the reply by the Defence referred to a -- and I

Page 14493

1 quote: "Cardinal reason for the principle that there is no property in a

2 witness, and that is that until a witness is on the witness list for one

3 party or the other, it remains for the other party to call that person as

4 a witness." I see no argumentation in that because this issue, the very

5 issue is not related to this case as it is not a matter of putting a

6 witness on a list but the very right to interview that witness on behalf

7 of cross-examination.

8 Then it is stated in the same paragraph that as of argumentation

9 that the testimony of this witness is scheduled in less than one week.

10 This completely removes, and I quote, "any argument based on the

11 possibility that the Prosecution might itself decide to call -- to call a

12 witness." Well, in my opinion, that is not applicable as the Rule 70

13 provider as well as the witness already agreed to the planned interview by

14 the Prosecution.

15 Paragraph 9 is referring to the Halilovic appeals decision that --

16 sorry.

17 JUDGE AGIUS: One moment, because I wish you to be very clear on

18 this. I'll read what I have in the transcript and then I'll ask you a

19 question, Mr. Wubben.

20 "Then it is stated in the same paragraph that as of arugmentation

21 that the testimony of this witness is scheduled in less than one week,

22 this completely removes, and I quote, 'any argument based on the

23 possibility that the Prosecution might itself decide to call -- to call a

24 witness.' Well, in my opinion, this is not applicable as the Rule 70

25 provides [sic] as well as the witness already agreed to the planned

Page 14494

1 interview by the Prosecution."

2 Has the witness agreed, or has the US government or authorities

3 agreed to --

4 MR. WUBBEN: Your Honour, we --

5 JUDGE AGIUS: -- to make it possible?

6 MR. WUBBEN: We ask for permission to interview the witness

7 through the US government. The US government confirmed that we are

8 allowed to give this interview. So I take it that is more indirectly.

9 That's why I'm grateful for the question that I take it that the witness

10 indeed agreed with that.

11 JUDGE AGIUS: You agree with me -- I'm asking you a question.

12 You're concluding from that that the witness has agreed to be interviewed

13 by you?

14 MR. WUBBEN: Yes, Your Honour.


16 MR. WUBBEN: Through the organisation, and we discussed a time,

17 the appropriate time to organise the interview.

18 JUDGE AGIUS: Yes. Judge Eser would like to intervene at this

19 point.

20 JUDGE ESER: Since I have some problems to understand paragraph 7,

21 could you perhaps give your interpretation of it when it says: "Moreover,

22 the testimony is set for less than one week. This completely removes any

23 outcome, and based on the possibility that the Prosecution might itself

24 decide to call Dudley as a witness." Perhaps the Defence may later on

25 explain what they are meaning with the sentence, but what would be your

Page 14495

1 interpretation of this sentence?

2 MR. WUBBEN: My interpretation, because out of the fact that it is

3 less than a week, that should conclude for the Prosecution that we might

4 decide to call him as a witness, perhaps in rebuttal or something like

5 that. I don't see it as an argumentation, because it has already been

6 organised as such.

7 JUDGE AGIUS: I thank you for your explanation. Of course the

8 Defence has reserved the right to counter to that if they so desire.

9 Let's go -- please proceed, Mr. Wubben.

10 MR. WUBBEN: Thank you, Your Honour.

11 Paragraph 10 there is a reference to the fact that there is no

12 investigative purpose behind the Prosecution request for contact with the

13 witness, and according, I quote Your Honour, to the Halilovic appeals

14 decision. "This is an insufficient reason to grant the request."

15 Well, I read Halilovic appeals decision, and it is -- has to do

16 again with the subpoena, but then also whenever you decide, whenever a

17 Trial Chamber decides for a subpoena, it just -- it is not an easy

18 instrument to do. It has to serve a certain purpose.

19 Well, even for a subpoena it would serve a purpose because we were

20 limited on our cross-examination, and this is how we try to get our full

21 right, and that's also according, when the Defence counsel referred to

22 Rule 20, that's completely in line with Rule 20, Your Honour.

23 Paragraph 11 that's referring to the final travel plans having

24 been made and a proofing schedule drawn up. That can also be no

25 argumentation. As such, a travel plan and such a proofing schedule did

Page 14496

1 not refrain the US government and nor - and that's indirectly a

2 conclusion - the witness to agree 10 days before travelling to The Hague,

3 or around 10 days, to allow such an interview and didn't stop them to

4 allow that as such.

5 The -- in paragraph 15 and 16, the Defence refer to the Stanisic

6 Trial Chamber decision that there should be a consent by a witness, and I

7 again reiterate that not only already consent has been given but indeed

8 explicitly by the US government and we confirmed that several times who

9 deals with the US government with its party separately when it comes to

10 Rule 70.

11 So there is no need for the Defence in such a manner as addressed

12 in paragraph 16 to consider that it would be given the opportunity to

13 contact the witness and to ask whether or not he consented to the

14 contact -- contact with the opposing party as I can now refer to an

15 explicit letter in that regard.

16 I come to an end of my first oral submission, Your Honour. There

17 is a reference to the concerns of leaking of ex parte material elicited by

18 the Defence. I refer to the letter by the US government of the 2nd of

19 December in which by the end it is reiterated that such questions are not

20 allowed. The US government deals with each party separately. So also

21 related in paragraph 18, the danger that this may reveal the ex parte

22 content of the Prosecution interview with the witness. That's only the

23 case if the Defence itself requests for such an information, but I believe

24 that the Defence will never do so, Your Honour.

25 In paragraph 19, there's a reference that Prosecution might obtain

Page 14497

1 authorisation -- might have obtained authorisation to raise other matter

2 with the witness and that's unclear to the Defence whether this include

3 permission to raise those matter in cross-examination. This is also

4 answered in the second-to-last paragraph of the letter of the 2nd of

5 December. I refer to that letter due to the time limits.

6 Also, when it comes to the second part of it, I quote: "It will

7 be necessary for the Prosecution to disclose the additional matters." The

8 additional matters, that's in the same way as also the Defence stated and

9 argued in the initial Defence motion for a Rule 70 ruling stating by the

10 ex parte filing of all these issues these are protected by Rule 70. So

11 also the Prosecution is bound to that.

12 That's why -- that's why, Your Honours, it still remains for me as

13 a conclusion that the Prosecution should respectfully request a dismissal

14 of the Defence motion seeking to bar the Prosecution from conducting an

15 interview of this witness. The Defence in their reply, in its reply also

16 refers to an a clarification sent to the -- as a request to the US

17 government, we cannot wait for it, and that's why I have a short, limited

18 oral submission, Your Honours. If I may proceed on a procedural matter.

19 JUDGE AGIUS: Of course. Go ahead.

20 MR. WUBBEN: Referring to Rule 73 in the case that this Trial

21 Chamber deny the motion by the Defence. So in that case, we noticed that

22 the Rule 70 witness is scheduled for the 12th to the 14th of December,

23 meaning that's from Monday. So he will be proofed in the prior days,

24 presumably the weekend. The Defence might further clarify. That leaves

25 us for tomorrow and Thursday as this witness should then depart from the

Page 14498

1 US on Friday.

2 Subsequently, we have to set up a correspondence with the US

3 government for authorisation and would like to inform Trial Chamber as

4 well, to notify you of such authorisation. That means for me a request,

5 an urgent request for a ruling on this motion as early as Your Honours are

6 possible to do so, and if so, preferably tomorrow morning, so that we can

7 address the issue of organising such an interview. Again, in the case

8 that -- that the Trial Chamber denied the motion by the Defence, to enable

9 such an interview by Thursday.

10 But, Your Honour, it's also now already at a late stage, and so

11 far, and we tried also this afternoon, we couldn't get guarantee that --

12 this is possible, as we have to contact again after we voluntarily

13 rescheduled the earlier organised interview by -- by last Wednesday, the

14 30th of November. And that's all due to the motion by the Defence asking

15 to reschedule it.

16 Now, the request to the Trial Chamber is an order -- an order for

17 an adjournment or delay of the scheduled testimony by the Defence of this

18 witness.

19 Thank you.

20 JUDGE AGIUS: Yes. I don't know who is dealing with this. I

21 presume -- yes. Judge Brydensholt would like to --

22 JUDGE BRYDENSHOLT: Yes. I would like to raise a question towards

23 the Prosecution, because as I see it now at least, the problem for the

24 Defence seems to be that the interview should be in the absence of the

25 Defence, and that is the whole question of ambush and all that.

Page 14499

1 I haven't heard the argument. Why is it that the Prosecution is

2 against that the Defence is present without any right to interrupt but

3 just to be aware what's going on? Could you explain that?

4 MR. WUBBEN: Your Honours, thank you for asking, because it is not

5 a matter of being blunt to the Defence in that respect. It's a matter of

6 the same reason why parties do not invite other party, opposing parties,

7 to their interview. They want to define their own strategy. They want to

8 have the right and to feel free to ask questions about anything, and it's

9 the same as the Defence did not invite also this very Prosecution to their

10 witness. But apart from that -- apart from that, we want to execute this

11 right for -- for a witness interview by ourselves. And I would like also

12 to refer to apart from that as a third argument to the letter by the

13 Rule 70 provider, the US government, on the 2nd of December in which it

14 explicitly clarifies and confirms that there is an isolated approach when

15 it comes to parties and dealing with the witness that has the label of

16 Rule 70.

17 JUDGE AGIUS: Yes, Mr. Jones.

18 MR. JONES: Yes. Well, firstly, Your Honour, on that last point I

19 know that that's a woefully inadequate response. It doesn't address the

20 question at all.

21 JUDGE AGIUS: First of all, before you start, do you have a reply

22 from Mr. Jones with regard to the letter that you filed which is dated

23 today? In other words, is your witness prepared to give -- allow himself

24 to be interviewed by the Prosecution and particularly is he allowed to --

25 is he prepared to allow himself to be interviewed by the Prosecution in

Page 14500

1 your absence? Or when I saw "your absence," I mean a representative of

2 the Defence. Because the United States government cannot decide for him.

3 MR. JONES: No. May I come to that, Your Honour. There are two

4 issues with the United States government, and in order to first be clear

5 on all the issues, it's easiest if I address what Mr. Wubben said a moment

6 ago.

7 To me, first of all, when the Prosecution first sought to argue

8 that the United States government is opposed to us being present at the

9 interview, I thought that that was bound to be wrong, that that was

10 obviously strange. I phoned the US embassy last Friday and said surely

11 the intelligent, reasonable way to understand your letter is that you're

12 saying we don't on our own initiative tell the other party what is

13 happening, but they don't have a position as to whether we're there or

14 not, and the fact that the Prosecution wants to rely on the US government

15 that they're the ones saying we're not to be present it shows the total

16 absence of any argument on their part, and I'll read right now I have an

17 e-mail from the US government, and I trust that when Mr. Wubben sees

18 that's the position, since that's the only argument, that he will then

19 agree that certainly, if Your Honours were to allow contact, that we

20 should be present because there is no basis on the part of any US

21 government opposition, and in this regard I'll waive the ex parte nature

22 of Annex B.

23 I wrote to Mr. Johnson and said could they confirm in writing that

24 as I understand it, the USG does not itself have any objection to both the

25 Prosecution and the Defence being present at any interview of LTC Dudley

Page 14501

1 if the parties so agree or the Trial Chamber so orders. The UGS's

2 position, as I understand it, is simply that you will not inform either

3 party when the other party conducts such an interview. That's my message.

4 An e-mail which I received today: "Dear John" - this is from

5 Heather Schildge - "we will be sending you a response to your letter

6 imminently. As I told you by phone, your understanding is correct, and we

7 will confirm this in writing. We were not able to respond earlier today

8 as we were in a lengthy meeting."

9 So that's -- as far as that is concerned, I think really the

10 Prosecution, if they were being open and fair about this, they wouldn't to

11 put it on the US government, that it's the US government who doesn't want

12 us on to be present. They have no position on that matter.

13 Now, as far as the submissions of Mr. Wubben are concerned, and

14 they're lengthy, but I'll deal with them as quickly as possible. It's

15 very important, Your Honour, that I have a right to --

16 JUDGE AGIUS: Yes, yes. You will have every opportunity to do

17 that, Mr. Jones. But I am more interested in your letter to Heather,

18 which presumably was sent today, this morning, Tuesday, 6 December, in

19 which you ask the embassy basically to possibly transmit a message to

20 Colonel Dudley and advise him of your normal practice to advise all

21 witnesses that you intend to call that should the Prosecution wish to

22 contact them, then they should request that the Defence be present too and

23 so on and so forth.

24 MR. JONES: Yes. The reasons are important --

25 JUDGE AGIUS: Has this been done to your knowledge and do they

Page 14502

1 have a feedback?

2 MR. JONES: Yes, Your Honour. Your Honour is reading from

3 ex parte annex, but again this was done in a hurry, and I'm happy for the

4 interest of moving on with this, the Prosecution hasn't made their

5 ex parte annexes inter partes, but I'm happy unless I can --

6 JUDGE AGIUS: Do you want to redact and we go into private

7 session, I'm prepared to do that.

8 MR. JONES: No. No. Just in abundance of caution this morning, I

9 kept my correspondence ex parte, and the Prosecution's correspondence with

10 the USG are all ex parte, but I think it helps to -- to look at that.

11 Yes, indeed, our normal practice is to -- is to advise witnesses

12 that if the Prosecution should wish to contact them, then the Defence be

13 present too, in order to ensure full transparency, equality of arms, and

14 protection of the interests of the accused, as well to ensure that there

15 are no misunderstandings between us and the witness at a later stage when

16 the witness comes to The Hague for proofing and testifying, which I trust

17 you'll see is a reasonable position. And on that matter, the answer is:

18 "Regarding the other message from Mr. Dudley as a USG witness, all

19 communications with him will go through the USG," and so basically we're

20 waiting for a response on that matter.

21 And I'll deal with both those points in sequence, but I think it's

22 first important to clear -- to clear those up.

23 Now, the thing which I find most galling, I have to say, about

24 Mr. Wubben's reply is that he said it's due to us, due to our urgent

25 motion that now we're in a terrible rush. Well, the Prosecution has had

Page 14503

1 years, years to make contact with Mr. Dudley. They've certainly had

2 months since we've listed him as a witness to make contact with him. They

3 told us at the absolute last possible moment when we say it was so that we

4 would not be able to actually do anything about it that they were going to

5 interview him, but it didn't stop there. On Friday -- at the very last

6 minute on Friday -- Your Honours had ordered that they file a response by

7 Friday, but at 4.30 p.m. it was filed, so we didn't have it for weekend.

8 If they had been diligent for once, then in fact we would have had that --

9 the whole weekend. We could have filed a reply yesterday rather than

10 instead after court last night and this morning me having to -- to draft a

11 reply.

12 And I really find it intolerable that the Prosecution seeks to

13 blame us for a remarkable lack of diligence on their part, months and

14 months going by without them pursuing this. And a party cannot rely on

15 its own defaults in litigation, and it's the Prosecution which has brought

16 us to this juncture where we're scrambling about at the last minute to

17 come up with a solution. And I would really ask Your Honours to be firm

18 with the Prosecution and to put your foot down.

19 I'm familiar with criminal -- in criminal trials Judges bending

20 over backwards to help the Defence, but I'd ask you not to bend over

21 backwards to help the Prosecution. They've created this mess, and they've

22 got to live with it.

23 As far as the actual merits of what Mr. Wubben has said are

24 concerned, firstly, as I said, it's completely unmeritorious the argument

25 that the USG is saying that we shouldn't be present at the interview. As

Page 14504

1 I say, we're waiting for a reply as to whether the witness himself would

2 request our presence so as to maintain good relations which we have with

3 him already.

4 Now, I move to the main body of my reply to Mr. Wubben's

5 submissions. Firstly, their position, actually, is that the Trial Chamber

6 has no jurisdiction in this matter really, that it is none of your

7 business, according to the Prosecution, whether they contact a witness.

8 That's their current position, and I'm surprised that Mr. Wubben perhaps

9 tactfully decided not to argue that this is none your of your business.

10 We say it's very much your business in part of ensuring a fair trial.

11 It's a fundamental obligation of your Trial Chamber, and so of course you

12 have a right to rule on this.

13 As far as -- and as far as the -- as what happened last Tuesday is

14 concerned, to a certain extent that's -- that's water under the bridge,

15 but in front of the three of us Mr. Wubben said when we asked, "Do you

16 have authorisation?" he said, "We have it," and he said something about,

17 "Read the decision." He did not say, "We don't need it." He absolutely

18 did not say, "We don't need authorisation," and that was the

19 representation which led to contacts which we made.

20 Now, paragraph by paragraph. First, Mr. Wubben referred to

21 paragraph 4 of our response, and he said that all of the cases cited

22 concern subpoenas or something of that matter. Well, that's not -- that's

23 simply not true. I'm not going to go through the decisions at length now,

24 but we've made very careful submissions on these cases, and Your Honours

25 will have to look at those cases and you'll see that it's not -- that

Page 14505

1 they're all on subpoena. And even if they are, of course -- I mean, even

2 if some of them concern subpoena, of course analogous reasoning applies in

3 different matters, and it's not as if subpoena decisions are completely

4 separate from any other type of decision. Of course it's relevant what's

5 stated there and what we've cited.

6 Responding to paragraph 6, Mr. Wubben said, "Well, we say that

7 Article 18 of the Statute only goes to investigations." Well, there's

8 Article 16 of the Statute, which -- which means the Prosecution has duties

9 throughout the trial. Well, that completely misses the point, the main

10 thrust of our point, which is that the particular power of the Prosecution

11 to interview witnesses is to do with investigations. And when we're at

12 trial -- and we're not just at trial here. I mean, the Prosecution's case

13 is closed. It closed months ago. So they're not investigating when they

14 seek to interview Dudley. They're purely and simply trying to -- well,

15 I'll wait until Your Honour has dealt with --

16 JUDGE AGIUS: Let's have a very short break. I take it that you

17 don't have much more to say.

18 MR. JONES: About ten minutes, five minutes.

19 JUDGE AGIUS: Yes, five minutes, because they have only got a

20 minute and half on the tape, so and they need to change the tape, and

21 we'll finish in about five minutes' time afterwards. Yes, we are stopping

22 here until they change the tape.

23 MR. JONES: Right. Okay.

24 MADAM USHER: All rise.

25 JUDGE AGIUS: No, we're staying right here. We're anxious to

Page 14506

1 rise, I can assure you.

2 Okay. I see the thumbs-up signal.

3 Mr. Wubben, in the meantime we were discussing. If we were to

4 suggest to you as food for thought and then tell us when we finish that

5 without prejudice to any pretended right that you claim, and on the

6 understanding that if you would accept that we are going to suggest this

7 would not constitute a precedent for the future, would you accept that in

8 this particular case if this Major Dudley interviewed that will be done in

9 the presence of the Defence? Reserve your answer and tell us later on.

10 And it will be recorded that this is being done without prejudice and

11 definitely in a way which would not establish a precedent.

12 Mr. Jones, please proceed.

13 MR. JONES: Okay. Thank you.

14 JUDGE AGIUS: Try to -- I mean, I am not imposing on you, but we

15 promised everyone to finish at 6.15 to 6.30.

16 MR. JONES: I'll go as quickly as I can. Yes. The point about

17 Article 18 of the Statute is that -- is that the purpose clearly is not to

18 investigate this witness to see if he's a potential witness. It's to gain

19 a tactical advantage in the trial process, namely to be able to surprise

20 us during cross-examination by popping up and mentioning a matter which

21 the Prosecution had explored with the witness and which we're unaware of,

22 and that is simply unfair to the Defence from any view that that should be

23 allowed to happen.

24 And, Your Honour, Mr. Wubben's submission appears to be that even

25 though this is one week before the witness is due to travel, although he's

Page 14507

1 making travel plans --

2 JUDGE AGIUS: You can forget that.

3 MR. JONES: -- that -- that's irrelevant, but the case law doesn't

4 say it's irrelevant. There's a factual matrix --

5 JUDGE AGIUS: Everything's relevant.

6 MR. JONES: Everything's relevant. Thank you, Your Honour.

7 He referred to paragraph 9 in his submissions regarding the

8 witness's position. We're trying to ascertain the witness's position.

9 But I would ask you to consider that it is difficult for us to have the

10 sort of contacts we would normally have with a witness because we always

11 go through a government, and that's impeded, as I say, our normal practice

12 to actually find out what our witness's position would be. And also given

13 the witness's status as a former member of the military, if he's contacted

14 by his government with a request, he may well feel that he has no say in

15 the matter. It may not be easy for him to say, "Well, I want the Defence

16 to be there," or, "I'm not happy about this." And in that light, you have

17 to consider how important it is the rapport we have in our relations with

18 a witness, and that's why, to the point which I'm coming to in a moment,

19 but if you can picture a witness who arrives here, when we're proofing

20 him, of course one thing, as I mention in our motion, we want to prepare

21 for possible cross-examination. We're going to be proofing him with

22 representatives of the US government there.

23 Now, if we seek to anticipate with the witness what might come up,

24 what he might know about which -- something which would be of interest to

25 us, but we have this -- this terrible barrier that he knows some things

Page 14508

1 based on questions or documents put by the Prosecution which we don't know

2 about, and he's worried that he shouldn't divulge that, and the US

3 government representative is going to interject and say, "Well, we

4 can't -- he can't really answer that because that might divulge what the

5 Prosecution asked him two days ago," you can see the potential for utterly

6 messing up our plans. Whereas if we're there for the interview and if we

7 don't ask any questions, we stay silent and behave ourselves, what

8 possible damage is there? And then we have a perfectly open relationship

9 with our -- the witness we're calling. We know what he was asked about.

10 We know what to explore, and it's abundantly clear that the reason why the

11 Prosecution don't want us there is because they don't want us to know what

12 might come up.

13 Time and again Mr. Wubben says -- reiterates there should be no

14 surprise, no ambush, but they're always trying to catch us by surprise.

15 Mr. Wubben is the high priest of surprise. He's always trying to mention

16 something at the last minute or spring something on us.

17 MR. WUBBEN: I protest, Your Honour. This is really

18 inappropriate.

19 JUDGE AGIUS: Yes, I agree with you, Mr. Wubben.

20 MR. WUBBEN: There is even I think a very recent practice

21 direction of this very Tribunal regarding the conduct of the -- of Defence

22 counsel.

23 JUDGE AGIUS: I agree.

24 MR. WUBBEN: I am really grieved by this.

25 JUDGE AGIUS: I agree with you, Mr. Wubben.

Page 14509

1 Let's keep to the arguments proper. Do you -- there is a specific

2 request for rescheduling adjournment or delaying the scheduled testimony

3 of this witness.

4 MR. JONES: It's huge --

5 JUDGE AGIUS: Do you object to that as well?

6 MR. JONES: Enormously object to it, Your Honour. Because it's

7 not only the inconvenience of our scheduling of when witnesses are to

8 arrive, et cetera, but we actually -- we've planned our witnesses, the

9 sequence of witnesses, the exhibits we're going to use, the sequences very

10 carefully, and just to have a witness all of a sudden disappear off the

11 screen for a while and come back months later is extremely disruptive to

12 our presentation. And there is actually even a sequence of -- as I say,

13 of exhibits which are planned with the witness. And that's why also we

14 fear that this -- the timing of this request destabilises our

15 preparation. It's already destabilising us in that a day and a half which

16 I would have used to be preparing for the witness has been lost.

17 I did have a couple of final matters. And by -- Your Honour, I

18 take it that you don't take my remark -- it was a flippant remark and I

19 apologise if it was mistaken, but I trust Your Honour doesn't regard what

20 I said a moment ago as being a grave matter.

21 Paragraph 10 of our response, Mr. Wubben said that the Halilovic

22 appeals decision concerns subpoena. My submission is that you can apply

23 the reasoning by analogy that if it's only to be able to prepare better

24 for cross-examination that is not a sufficient reason to grant a request

25 for contact. That was my point.

Page 14510

1 On paragraph 11, Mr. Wubben said, again, that the fact that the

2 final travel plans have been laid --

3 JUDGE AGIUS: You already mentioned that.

4 MR. JONES: No, this is a slightly different point, Your Honour.

5 That since the United States government and the witness didn't object that

6 that shows that there is no problem. But those -- the United States

7 government doesn't have a duty to ensure a fair trial. They don't have a

8 duty to ensure that the rights of the accused are respected. So, of

9 course, one can't point to the US government and say, well, they've

10 decided that that's all right. That's a matter for Your Honours to decide

11 whether the timing would actually interfere with our preparation.

12 And that also goes to the point about leaking a Rule 70 material.

13 The United States government isn't there to police, even though they say

14 that they will try to, but they don't know the whole context of this

15 trial. They don't know what might be termed confidential, whereas we do

16 know, and if we're there, then of course we can react. Another reason why

17 we should be present.

18 Paragraph 19 refers to a separate problem, namely disclosure of

19 the list of topics which the Prosecution wish to raise, and that is it is

20 a genuine problem, and I'm sure that Your Honour will appreciate it. That

21 we technically could be stopped from re-examining on issues on which the

22 Prosecution has cross-examined unless we get the USG's permission

23 beforehand to re-examine on those matters, and so we'll need to know what

24 the list is beforehand so we can seek that permission.

25 As far as ex parte matters are concerned, I've divulged the

Page 14511

1 content pretty much of our two annexes, and I trust the Prosecution will

2 do the same.

3 Basically I would implore Your Honours to put your foot down and

4 to -- to penalise, if need be, the Prosecution for this delay and

5 certainly to do your utmost to ensure that the rights of the accused are

6 respected by our presence.

7 Thank you.

8 JUDGE AGIUS: All right. Three things. When is in witness

9 arriving in The Hague? Or when is he scheduled to arrive?

10 MR. JONES: The 8th, I'm told.

11 JUDGE AGIUS: The 8th is when? Today is the 6th, so it's --

12 MR. JONES: Thursday.

13 JUDGE AGIUS: Thursday. Thursday. Okay.

14 MR. JONES: Travelling on the 7th.

15 JUDGE AGIUS: All right. That's number 1.

16 Number two: If you have a response at any time between now and

17 tomorrow when we are sitting from the US embassy with regard to the

18 request you put to them to get hold of Major Dudley and put to him the

19 practice that you adopt, please communicate it to us -- to the Prosecution

20 and to us as early as possible.

21 MR. JONES: Yes, certainly, Your Honour.

22 JUDGE AGIUS: As early as possible.

23 MR. JONES: Yes.

24 JUDGE AGIUS: That's number two.

25 Number three: Just in case if you are in a position to give us a

Page 14512

1 very quick yes or no feedback to the request that we made, whether you

2 would be prepared -- no explanations required. It's either a yes or a no.

3 MR. WUBBEN: Then it is a no, because I would like to --

4 JUDGE AGIUS: That's all. We don't need an explanation. It's

5 just your answer is no.

6 All right. We will hope to be -- yes, Judge Eser. Try to be as

7 short as much as possible.

8 JUDGE ESER: Yes, I will try to be as short of possible.

9 But in order to get to the gist of the problem, now I have a

10 question of the Defence. If the Prosecution would have wanted to

11 interview this witness, let's say a month ago, would it have been a

12 problem that the Defence -- the Prosecution to meet prior to your

13 interview?

14 MR. JONES: Sorry, it would still be a problem if we were to be

15 absent, if that's what Your Honour is asking. The problem is exacerbated

16 by the shortness of time.

17 JUDGE ESER: But there are two questions: Whether it's necessary,

18 according to your opinion, that the witness is interviewed after the

19 Defence; or whether it might be allowable that he's interviewed before the

20 Defence.

21 MR. JONES: Well, it's slightly difficult to answer, Your Honour,

22 because without giving too much away, obviously we've had prior interviews

23 in the past with the witness, so we've already obviously interviewed him

24 however long, a year ago or whenever it was.

25 If Your Honour is asking if the Prosecution had interviewed

Page 14513

1 Colonel Dudley before we had even heard of him or knew of his existence or

2 contacted him, then of course that would pose no problem. The problem is

3 posed in the circumstances such as they are. In fact, I've remembered --

4 JUDGE ESER: Just to take the case that you have put the witness

5 on your witness list, the Defence witness list, and then the Prosecution

6 would decide to interview this witness without telling the Defence that

7 they are going to do so, would that be acceptable according to your

8 opinion?

9 MR. JONES: No. No, I think once he's on the witness list, that's

10 a decisive -- that's a decisive moment and no case law says that that --

11 that is -- is a relevant factor.

12 THE WITNESS: But you --

13 MR. JONES: Yes.

14 JUDGE ESER: Okay.

15 MR. JONES: May I -- sorry, it's just that I have remembered one

16 other point I wanted to make.

17 The Prosecution did say that there's still a possibility that

18 Colonel Dudley could be a witness for them perhaps in rejoinder. To me

19 that's a ridiculous suggestion, because if he's here and we cross-examine

20 him the idea that he could then be called to rebut something which he's

21 already said and has been cross-examined upon, I've never heard of that

22 ever happening. So I also wanted to say that that doesn't make any sense

23 to me.

24 JUDGE ESER: So what, is your position as soon as a witness is put

25 on -- either on the Prosecution list or the witness of course would go

Page 14514

1 for both sides, if he was put on the Defence witness list, that then it

2 will only allowable to interview him in the presence of the Defence?

3 MR. JONES: Your Honour, I'm not making any -- I don't want to

4 make any dogmatic categorical idea that there is -- yes, yes. But I

5 simply would say -- I'm not saying there's any particular moment at which

6 something distinctively where the rules change, that they're hard and fast

7 rules, there's a factual matrix into which all these things must be put,

8 and that's it's simply that. I'm not arguing for an ironclad rule one way

9 or the other.

10 JUDGE AGIUS: Right. I thank you both. And I wish to express my

11 gratitude to you, Madam Reporter, for having been patient with us.

12 Unfortunately, we couldn't finish earlier. The interpreters, of course,

13 and the rest of the staff, I thank you so much.

14 Tomorrow we hope to be able to come down with our decision which

15 of course will need to be oral for the time being and then if we feel it

16 is necessary, we will try and follow it up with a written one.

17 Thank you.

18 --- Whereupon the hearing adjourned at 6.35 p.m.,

19 to be reconvened on Wednesday, the 7th day

20 of December, 2005, at 2.15 p.m.