1 Thursday, 20 November 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.01 a.m.
5 JUDGE MOLOTO: Good morning to everybody in and around the
7 Madam Registrar, will you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning,
9 everyone in the courtroom. This is case number IT-04-81-T, the
10 Prosecutor versus Momcilo Perisic.
11 JUDGE MOLOTO: Thank you very much.
12 Could we have the appearances for today, starting with the
14 MS. EDGERTON: Thank you, Your Honour. Carolyn Edgerton for the
15 Prosecution, assisted by my colleague, Mr. Barney Thomas, and our case
16 manager, Ms. Carmela Javier.
17 JUDGE MOLOTO: Thank you very much.
18 And for the Defence?
19 MR. GUY-SMITH: Good morning, Your Honour. Daniela Tasic, Chad
20 Mair, Tina Drolec, Milos Androvic, who are assisting us, along with our
21 interns. My name is Gregor Guy-Smith, and, of course, Mr. Novak Lukic
22 for Mr. Perisic.
23 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
24 Before we call the witness, one housekeeping matter. There's the
25 swearing in of the new Judge this afternoon so this session will end at
2 MR. GUY-SMITH: Very good.
3 JUDGE MOLOTO: Thank you very much. May we call the witness.
4 [The witness entered court]
5 JUDGE MOLOTO: Good morning, Dr. Donia.
6 THE WITNESS: Good morning, Your Honour.
7 JUDGE MOLOTO: Just to remind you that you're bound by the
8 declaration that you made at the beginning of your testimony to tell the
9 truth, the whole truth, and nothing else but the truth.
10 THE WITNESS: Yes, Your Honour.
11 JUDGE MOLOTO: Thank you very much.
12 Mr. Guy-Smith.
13 WITNESS: ROBERT DONIA [Resumed]
14 Cross-examination by Mr. Guy-Smith: [Continued]
15 Q. To bring us back in focus, we were discussing Oslobodjenje right
16 before we broke last time, and specifically we were having a discussion
17 with regard to the issue of bias and objectivity, and I think time became
18 a, I would say, not particularly our friend in terms of the discussion,
19 so I'd like to pick up where we left off yesterday, if I may.
20 A. Yes.
21 Q. I believe that you had -- you were at the point that we stopped
22 yesterday explaining that in your view, and once again, correct me if I'm
23 wrong, in your view, it wasn't necessary for a newspaper of record to be
24 totally objective. I may be taking it a bit far for the moment, but I
25 believe that was the gist of what you were maintaining yesterday right
1 before we broke.
2 A. Well, the gist of what I was saying was that the newspaper -- the
3 function of being a newspaper of record is only part of the reportorial
4 side, news-gathering side, of any newspaper's function. It has an
5 editorial and, let's say, opinion side as well. So I would certainly
6 reject the notion that the newspaper as a whole is objective or
7 impartial, even though it may function very effectively as a newspaper of
9 Q. With that in mind, if I understand the distinction you're
10 drawing, you're drawing a distinction between, as you've put it, the
11 editorial side and the news-gathering function side.
12 A. I am drawing that distinction and drawing a further distinction
13 within the news-gathering side between its role as a newspaper of record
14 and other reporting and news-gathering that it may do.
15 Q. So to the extent that you have a newspaper, for example, the one
16 that's in issue, Oslobodjenje, and there are determinations made in the
17 news-gathering side as to what news to gather and what news to report, in
18 your view, does that affect the credibility or accuracy of the
19 information which is being set forth in the newspaper? Or do you see --
20 do you see what I'm saying?
21 A. No, I'm sorry.
22 Q. Let me put it in other terms, then. If the newspaper has a
23 policy of only reporting one side of an issue, and by "reporting" I mean
24 from the news-gathering function side, in not reporting both sides of the
25 issue, do you believe that would affect whether or not it is in your
1 terms a newspaper of record? Or do you believe a newspaper of record
2 only dealing with something apart from that particular issue?
3 A. I view it as apart from. It could affect what it defines as
4 worthy of being in the record.
5 Q. Okay. With regard to Oslobodjenje, is it your opinion as a
6 historian, that Oslobodjenje, in its news-gathering function during the
7 period of 1991, 1992, and 1993, was a paper that was balanced in its
8 news-gathering function?
9 A. I think it depends on when you look at it. It made a very
10 conscious, calculated editorial policy change in I guess late 19 --
11 somewhere in the course of the second half of 1990 from being oriented to
12 Yugoslav questions and reporting to being -- shifting more toward
14 Q. Okay. So that takes care of --
15 MR. GUY-SMITH: I'm sorry.
16 JUDGE MOLOTO: Let me just make sure I'm following you.
17 Doctor, the question was related to the news-gathering function.
18 You said it had a change in its editorial policy. My question to you is:
19 Did the editorial policy also affect the news-gathering function policy?
20 THE WITNESS: Yes, it did.
21 JUDGE MOLOTO: In what direction? In the same direction? In the
22 same direction as the editorial policy went?
23 THE WITNESS: Yes, that is, the news-gathering, instead of
24 focusing on -- instead of being a Yugoslav newspaper --
25 JUDGE MOLOTO: It became --
1 THE WITNESS: -- it became a Bosnia-Herzegovina paper.
2 JUDGE MOLOTO: Much more parochial.
3 THE WITNESS: Yes.
4 JUDGE MOLOTO: But did that affect the policy of news-gathering
5 to the extent that it was now limited to Bosnia-Herzegovina, was it still
6 maintaining the same news-gathering policy as it did before, or did its
7 news-gathering function have a change? In other words, as I understand
8 the question, it looks like bias is being suggested here. Did you find
9 that it -- to have a slanted reporting effect?
10 THE WITNESS: No. In fact, it continued to run a great deal of
11 news about Yugoslavia
12 newspapers in the former Yugoslavia
13 in the number, in the issue. It's --
14 JUDGE MOLOTO: Without changing the content.
15 THE WITNESS: Perhaps reducing the length of the stories.
16 JUDGE MOLOTO: Sure.
17 THE WITNESS: Whereas it had earlier had taken on the
18 responsibility of reporting directly from Belgrade on activities of the
19 federal presidency and parliament, it now relied upon sources other than
20 its own reporters for that news. It was a shift of emphasis but not in
21 terms of the basic approach to news-gathering in an effort to be balanced
22 and to represent all sides and to cover all sides.
23 JUDGE MOLOTO: Thank you.
24 Yes, Mr. Guy-Smith.
25 MR. GUY-SMITH:
1 Q. And that's -- I think, your last answer to the Judge's question
2 focuses - and I thank Your Honour - focuses specifically on the
3 discussion that I'd like to have with you for a moment. You've just told
4 us there "was a shift of emphasis but not in terms of the basic approach
5 to news-gathering in an effort to be balanced and to represent all sides
6 and to cover all sides. "
7 With that answer in mind, as I understand that answer, that would
8 mean during the period 1992 and 1993 for sure, 1991 I would also assume,
9 that this paper was covering news as it related to Serbs who were being,
10 for example, abused, mistreated or maltreated by the Bosnian army or
12 THE INTERPRETER: Could counsel kindly speak into the microphone
13 and speak up, please. Thank you.
14 JUDGE MOLOTO: Did you hear that, counsel? Could you please
15 speak into the microphone and speak up.
16 MR. GUY-SMITH: Yes.
17 Q. Do you have my question in mind?
18 A. No, I don't know what you asked.
19 Q. Let me put it to you in an entirely different way, then. Are you
20 familiar with the writings of I believe one of your colleagues, a
21 gentleman by the name of David Rieff.
22 A. Yes.
23 Q. He wrote a book, I believe, called "Slaughterhouse and the
24 Failure of the West."
25 A. Yes.
1 Q. It's a book you're familiar with, are you not?
2 A. Yes, I am.
3 Q. And, as a matter of fact, in that book Mr. Rieff discusses, among
4 other things, that there was a discussion between the Deputy Chief Editor
5 of the Sarajevo
6 the Chief Editor, who spoke with President Izetbegovic concerning the
7 position that the paper was going to take with regard to the government,
8 Izetbegovic's government, and that the paper was going to support that
9 government; correct? That's something that Mr. Rieff discusses in his
11 A. That is something that Mr. Rieff alleges took place in his book.
12 Q. Okay. And when you say he alleges it, do you recall as you sit
13 here today where he received his source of information? Was that a
14 primary source, meaning that he spoke to a person? Was it a secondary
15 source, meaning that he got it from a piece of paper that was unrelated?
16 Do you recall?
17 A. No.
18 Q. If I were to tell you, as he relates it, that this would have
19 come from a primary source, meaning a personal conversation that he had,
20 would you contest that?
21 A. I wouldn't accept it.
22 Q. You wouldn't accept it.
23 A. I simply don't have the information to verify that assertion of
25 Q. Okay. And is the reason that you call it an assertion because
1 you have some doubt about the information-gathering process that
2 Mr. Rieff went through, or is it rather because you disapprove of the
3 information that he related with regard to Oslobodjenje?
4 A. No. I'm simply saying it's been some years since I read that
5 book. I don't recall the circumstances in which he frames the account of
6 this conversation and therefore can't attest to the correctness of the
8 Q. Okay. Are you --
9 JUDGE MOLOTO: Let me just --
10 THE INTERPRETER: Microphone, Your Honour, please.
11 JUDGE MOLOTO: I'm so sorry. At line 11 of page --
12 MR. GUY-SMITH: Excuse me for two seconds, Your Honour. I'm
13 having technical difficulties in terms of hearing you.
14 JUDGE MOLOTO: I'll speak up.
15 MR. GUY-SMITH: Thank you. Sorry.
16 JUDGE MOLOTO: Mr. Guy-Smith, at line 11 of page 7, you say:
17 "And when you say he alleges it, do you recall as you sit here
18 today where he received his source of information? Was that a primary
19 source, meaning that he spoke to a person? Was it a secondary source,
20 meaning that he got it from a piece of paper that was unrelated?"
21 I've got two questions. What information are we talking about,
22 number 1? Is it the information that he spoke to Izetbegovic, saying
23 that he's going to support the government, or is it some other
24 information? And I ask that because if he spoke to Izetbegovic, then
25 there's no question of what was the source of his information. He was
1 part of -- he's part of the source. He was the person who negotiated
2 with Izetbegovic. And what do we mean by "a secondary source," that is,
3 a piece of paper? I'm asking that because if I'm the author of a
4 document, then that paper is the primary source.
5 MR. GUY-SMITH: I'm absolutely with you, Your Honour, and I
6 believe that as I -- as I look at the question as framed, the second part
7 of it certainly needed more development, and I will deal with them both
8 as you've requested.
9 JUDGE MOLOTO: Please do.
10 MR. GUY-SMITH: Sure.
11 Q. Taking His Honour's question in mind, with regard to the first
12 issue, that being of a primary source - once again going back to what
13 David Rieff, as you've put it, asserts, that's his assertion - my
14 question to you dealing with the issue of being a primary source is that
15 David Rieff spoke to the Deputy Chief Editor concerning a conversation
16 that was had between members of his department, specifically the Chief
17 Editor, and Izetbegovic. So he personally did not speak to Izetbegovic
18 but received the information from his Chief Editor. So when I'm talking
19 about being a primary source, what I'm talking about is receiving
20 information from in that situation, the participant in the conversation,
21 assuming for purposes -- because you seem to have a question about it,
22 assuming for purposes that it's true, that, in fact, that conversation
24 A. I think we're fourth-hand, here, from Izetbegovic to some unknown
25 person on the staff of Oslobodjenje to another person on the staff of
1 Oslobodjenje to David Rieff to you to me. I can't assess the validity of
2 that statement based on what you've just said.
3 Q. Okay. Do you have any -- do you have any reason to disbelieve
5 A. I don't have any contrapositive reason to disbelieve it.
6 Q. When you say you don't have a contrapositive reason --
7 A. I don't have an outstanding fact that I believe contradicts it,
8 but I'm skeptical.
9 Q. Is that because of the way that you're hard-wired?
10 A. Well, it's I'd say a part of my general experience with these
11 secondary accounts of what went on in that period and the difficulty of
12 verifying a lot of these -- a lot of such conversations that are
14 Q. And yesterday, because of what you just said, yesterday we
15 discussed the fact that when dealing with memoirs or diaries, some
16 question with regard to whether or not those are issues that can be
17 verified; correct?
18 A. Yes.
19 Q. But it would be fair to say that you don't have the same kind of
20 scepticism that you have with regard to that information that you have to
21 the information that I've supplied to you with regard to Mr. Rieff's
22 position, that Oslobodjenje had taken a position where they were going to
23 support Izetbegovic's government; correct?
24 A. Well, my scepticism arises with a number of hands through which
25 through which the information passes.
1 Q. Are you aware of a gentleman whose name is Dusan Kecmanovic?
2 A. Yes.
3 Q. And how do you know him? What do you know about him, before we
4 go any further?
5 A. I know that he has given some interviews and done some writing on
6 the nature of the press in that period.
7 Q. Okay. Is he a member of -- is he a corresponding member of the
8 Bosnia-Herzegovina Academy of Sciences, the same group to which you have
9 recently been made a member?
10 A. I don't know.
11 Q. If I told you that he was, would you have any reason to
12 disbelieve that?
13 A. No, I wouldn't.
14 Q. Are you aware of his -- as you said, you know that he did some
15 writings with regard to the press. Are you aware of those writings? Did
16 you have an occasion to take a look at any of that?
17 A. I have some years ago but not recently. I can't really recall
18 the nature of what he reported.
19 Q. Do you recall that in 199 -- when you say you can't recall
20 exactly what he reporter, let's see if this helps refresh your
21 recollection as to what he reported and what you might have read. Do you
22 recall that he discussed that in 1992 with regard to the issue of prisons
23 or concentration camps, that of the stories that dealt with them
24 numbering some -- somewhere around 98 or so, that most of them dealt with
25 Serb prisons, and few or none dealt at all with what the Muslims were
1 doing in that regard, from reporting of Oslobodjenje?
2 A. The question is do I recall it? No, I do not.
3 Q. Do you recall that in 1993, out of approximately, give or take a
4 few, 113 articles published by Oslobodjenje, all of which were talking
5 about jails and concentration camps, not a single one was telling a story
6 about jails, detainees, in which Muslims were holding Serbs or Croats.
7 Do you recall that?
8 A. I don't recall that, no.
9 Q. Would such information be of moment to you with regard to your
10 reliance on Oslobodjenje as a source of accurate information when taking
11 into account the answer you gave us moments ago concerning the balanced
12 approach of this newspaper in its fact-finding or fact presentation
14 A. No, I would not.
15 Q. Are you aware of a gentleman whose name is Vlado Mrkic?
16 A. No.
17 Q. Did you ever come across -- and once again, let's see if this
18 helps. You said, No, but I want to try and see whether or not this jogs
19 your memory. He was a senior reporter at one point for Oslobodjenje.
20 Does that help you at all?
21 A. I don't recall him.
22 Q. I'll take that no further.
23 Were you to re-examine the extent to which Oslobodjenje took, for
24 example, a one-sided approach, and by that I mean a approach in which not
25 only did they support the government, and by that I'm talking about the
1 Bosnian Presidency, the Izetbegovic government, by editorial but also
2 with regard to the facts that were adduced through the newspaper, would
3 that shift your thinking with regard to your reliance on such a
5 MS. EDGERTON: Your Honour.
6 JUDGE MOLOTO: Yes, Madam Edgerton.
7 MS. EDGERTON: Thank you. I actually would object to this
8 question because I think it's been asked and answered. Dr. Donia has
9 already stated that he does not accept that Oslobodjenje takes a
10 one-sided -- or has taken a one-sided approach.
11 JUDGE MOLOTO: Mr. Guy-Smith.
12 MR. GUY-SMITH: I appreciate that. Dr. Donia is being offered as
13 a -- as an expert, and if you wish, I'm asking the -- I can ask the
14 question independent of the matter whether he accepts or rejects my
15 proposition as a hypothetical, that if the information were to be true,
16 let me put it that way -- I'll reframe the question. Why don't I do
17 that? And I'll make life easier for everyone. Because I was phrasing
18 that question in a hypothetical fashion. Let me rephrase the question.
19 THE WITNESS: May I answer the question, Your Honour? I would be
20 happy to answer.
21 JUDGE MOLOTO: Your counsel is objecting, and counsel on the
22 opposite side is offering to rephrase. So for purposes of that
23 particular question stands, the objection is upheld. Will you rephrase?
24 MR. GUY-SMITH: Sure.
25 Q. Thank you for your offer, but no, you may not, obviously.
1 I'm asking the question as a hypothetical now, okay? If you were
2 to take on board the information that Oslobodjenje took a one-sided
3 approach in which they supported the government, not only in an editorial
4 fashion but also with regard to their fact-finding and producing
5 function, would that shift your thinking with regard to your reliance on
6 this newspaper?
7 A. I really can't answer that hypothetical. I can answer a
8 real-life question about --
9 Q. Well, I'm asking you --
10 A. -- about the --
11 Q. -- doctor --
12 THE INTERPRETER: Would the speakers kindly not overlap.
13 JUDGE MOLOTO: Would the speakers kindly not overlap. That's the
14 request from the interpreters.
15 MR. GUY-SMITH: Surely.
16 Q. I'm asking you the hypothetical question first, and if your
17 answer is you can't answer the question, then I'm satisfied with your
18 answer, and you've answered the specific inquiry given.
19 We spent a fair amount of time discussing the -- and help me
20 here, the "sest strategijskih ciljeva," or the six strategic objectives.
21 Did I pronounce that correctly?
22 A. Not so good.
23 Q. I didn't do so good this time. My team has been trying to teach
24 me how to say that. I apologise. And I want to spend some time with you
25 here in terms of some dates, okay? Because as I understand it, and
1 specifically now dealing with the second strategic objective which I
2 believe is the strategic objective in which you discussed that it
3 transected an ethnic area on the map that you were shown. Are you with
4 me? Or shall I pull up the map?
5 A. What's the question.
6 Q. I just want to know if you're with me in terms of the map you
7 were shown.
8 MR. GUY-SMITH: Could we have map number 6 up on the board,
9 please. It's P187. Wonderful. Thank you so much.
10 Q. You were asked, I believe, whether or not the corridor, which is
11 identified in the map as S.0. 2 would transect an ethnic area by
12 Ms. Edgerton, and you replied that yes, it would.
13 MS. EDGERTON: I'm sorry, I didn't ask him -- I'm sorry, Your
14 Honour. I didn't ask him that question in respect of this map, just so
15 we're all clear. I asked him that question in respect of the map which
16 was -- bore the 65 ter number 9224.
17 MR. GUY-SMITH: Right. That is true.
18 Q. But it deals with -- this map deals with the same area, does it
19 not? Or would you need to see the other map first in order to make a
20 determination as to whether or not we're speaking about the same area?
21 JUDGE MOLOTO: I think that would only be fair to the witness.
22 MR. GUY-SMITH: Fine. That would be P338. As a matter of fact,
23 can we have both maps up for the moment, because I want to focus -- I
24 don't know if that can be done or not. Can we split the screen?
25 JUDGE MOLOTO: We'll see if that is possible.
1 MR. GUY-SMITH: Right. I don't know if we can split the screen
2 or not. I guess we -- we'll do it another way. That's fine.
3 Q. Looking at P33 --
4 MR. GUY-SMITH: Perfect. Thank you so much. Technology, wow,
5 when it does work, it's quite impressive.
6 Q. Looking at the map on the left-hand side of your screen, which is
7 P338, and looking at the map on the right-hand side of your screen, which
8 is P187, is the area where you drew the bar of your barbell roughly the
9 area, or the area that is discussed on the corridor -- defined as
10 corridor S.O. 2 on P187?
11 A. Generally. The map on the right shows the corridor much lower
12 than it really was.
13 Q. So it was actually higher than --
14 A. It hugged the Sava River
15 Q. Oh, okay. So in P187, the representation is not particularly
16 accurate, then, if you said it hugged the boundary.
17 A. That is correct.
18 Q. Okay, great. Well, once again --
19 JUDGE MOLOTO: I was just going to say, do you know how wide it
20 was at the corridor level, at its thinnest?
21 THE WITNESS: At its thinnest, which was probably Brcko, as
22 little as 2 or 3 kilometres. It widened very rapidly as it went west.
23 JUDGE MOLOTO: And what was it at its widest?
24 THE WITNESS: Well, it widened into the entire Bosnian Krajina,
25 perhaps, you know, 100 kilometres.
1 MR. GUY-SMITH:
2 Q. If you were to identify for us -- when you said Brcko, if you
3 were to look at P187, I guess we're going to have to have that enlarged
4 for a moment. I don't know if you can see it.
5 MR. GUY-SMITH: No, the other one.
6 Q. If you were to take a look at where the M and the B is in
7 Semberija and go directly north, you will see -- I don't know if you can
8 see it, there's some small lettering. Is that Brcko? Can you see it, or
9 do you need it bigger?
10 A. Yes, it is B-r-c-k-o, and it is right above the letter B with the
11 name extending off to being above the letter M of Semberija. But right
12 along the Sava River
13 MR. GUY-SMITH: Would it be assistance to the Chamber if we had
14 this marked?
15 JUDGE MOLOTO: Sure. It can be marked, but we already have --
16 don't we already have this map? I thought you want to have it in with
17 markings on it.
18 MR. GUY-SMITH: Well, we don't -- we'd have to make a new exhibit
19 of this map. I'm just -- in terms of correcting the corridor, I think it
20 may be of some assistance to the Chamber just on this map to correct the
21 actual corridor.
22 JUDGE MOLOTO: But what I'm saying is on this map on the right,
23 as it stands now, the correction has not been made yet.
24 MR. GUY-SMITH: No.
25 JUDGE MOLOTO: So would you like to admit it like this as it is,
1 without it being corrected?
2 MR. GUY-SMITH: No. I was going to make some markings on it, if
3 it was help to the Chamber, and then have it admitted.
4 JUDGE MOLOTO: Go ahead and get the markings on, sir.
5 MR. GUY-SMITH: Very well. If you could please ...
6 JUDGE MOLOTO: Go ahead, Mr. Guy-Smith.
7 MR. GUY-SMITH: I think, first of all, if we could make the map
8 bigger now, if that's possible to do. It might be easier to work with.
9 Q. If you could, starting at, I think you said Brcko, if you could
10 then -- from Brcko, if you could go, as you've said, hugging the Sava
11 River across the map as best you can. We understand that this is a ...
12 A. [Marks]
13 Q. Okay.
14 A. If I could add that this changes over time during the course of
15 1992 to 1995.
16 Q. Okay. The marking that you've just put there for right now, is
17 that the 1992 -- is that the 1992 iteration?
18 A. It changed at times daily.
19 Q. Oh, really.
20 A. It changed depending on the position of forces of the ABiH and
21 the VRS, yes.
22 Q. In terms of the -- who did you say?
23 A. In terms of the Army of the Republic of Bosnia-Herzegovina
24 the Army of Republika Srpska.
25 Q. Well, staying on this map just for a moment, if we could, if you
1 could do me the kindest, if you look at where it says -- the word
2 "corridor" is, if you go directly north from the -- between the D and the
3 O of corridor, there's a village up there, is there not, which is the
4 village of Sjekovac.
5 A. Sjekovac, yes.
6 Q. Could you circle --
7 MR. GUY-SMITH: I don't know if we could -- is red all right, or
8 could we go into another colour?
9 Q. Could you draw a circle around Sjekovac?
10 A. I can't see it on this map at this resolution.
11 MR. GUY-SMITH: Could we make it bigger -- no, we can't, because
12 the minute we do that -- I'm sorry. I have to have this -- I have to
13 have this -- I found that by using two magnifying glasses. That's how I
14 found it the other night at home. Could we have this marked for -- could
15 we have this marked for identification as defendant's next in order.
16 JUDGE MOLOTO: This is marked as an exhibit. May it please be
17 given an exhibit number.
18 THE REGISTRAR: D14, Your Honours.
19 JUDGE MOLOTO: Thank you very much.
20 MR. GUY-SMITH: Now could you please enlarge the map, because
21 apparently once you've made a marking on it, you cannot change the map.
22 So if you could now enlarge the map. I'm really interested in that one
23 area right under the R of "Croatia
24 part bigger, just so that the gentleman can see.
25 Q. While we're waiting just for the moment to see if we can get the
1 map itself bigger, let me ask you some questions, which is that village
2 is the village that was attacked in March of 1992, was it not?
3 A. Yes, it was.
4 Q. And that village is a village that was attacked by the Croatian
6 A. Yes.
7 Q. And the people who lived in that village were --
8 A. It was a Serb village.
9 Q. And when it was attacked in late March, that village was
10 something that was of concern to a fair number of different people, and
11 by that I mean that attack by the Croatians was condemned by Karadzic, I
12 believe, among others, by members of the JNA and members of the BH
13 Presidency; right?
14 A. Yes.
15 Q. Now, looking at that -- now we've lost it. That village
16 bordering Croatia
17 area there were a fair number of Serb inhabitants, were there not, it
18 wasn't just that isolated village?
19 A. There were, yes.
20 Q. And the expression noted by Mr. Karadzic in his May 12th speech
21 concerning that particular corridor involved an area that had been
22 attacked by the Croatians approximately, give or take, a month-plus. Put
23 in other terms, about a month -- about a month and a couple weeks --
24 JUDGE MOLOTO: Madam Edgerton.
25 MS. EDGERTON: Thank you, Your Honour. With respect, when in his
1 May 12th speech, and a 65 ter number would be wonderful. We make every
2 effort to provide the same information to our colleagues when referencing
3 a quotation, and this is a very lengthy Assembly session that I'm going
4 to have to bend over backwards to try and find the relevant line of
5 before the question is done, if we don't have some identification now.
6 JUDGE MOLOTO: Mr. Guy-Smith.
7 MR. GUY-SMITH: Yes, I'll pull it up.
8 Q. While I'm waiting to pull it up, what I'm driving at is this: Is
9 that the second strategic objective as defined, which was putting --
10 placing a corridor in that area, covered a geographic place where Serbs
11 had been attacked but a month before by the Croatians; correct?
12 A. It included it, yes.
13 JUDGE MOLOTO: Before you go ahead, are you abandoning the
14 question to which you are --
15 MR. GUY-SMITH: Well, I can abandon the question because I
16 achieved the answer another way, but I'm going to come back to it once --
17 JUDGE MOLOTO: You see --
18 MR. GUY-SMITH: I'm not trying to make the record a mess.
19 JUDGE MOLOTO: You are because --
20 MR. GUY-SMITH: I am. Well, let me abandon the question now
21 because I got the answer.
22 JUDGE MOLOTO: Thank you.
23 MR. GUY-SMITH: Now, so we don't mess up the record, for point of
24 reference, it would be P188, the 16th session of the Assembly held on 12
25 May 1992, and it would be page 13 in which he states, meaning Karadzic:
1 "The second strategic goal ..."
2 JUDGE MOLOTO: Page 13. What line?
3 MR. GUY-SMITH: Excuse me?
4 JUDGE MOLOTO: Page 13, what line?
5 MR. GUY-SMITH: It's not lines; it's paragraphs.
6 Q. It's the third starting with the words "The second strategic
7 goal, it seems to me, is a corridor between Semberija and Krajina," which
8 is -- that's the area we were just talking about; correct?
9 A. In part, yes.
10 Q. And the village we were talking about that had been attacked, it
11 would have been protected had that corridor been built?
12 A. Simply with respect to timing, it would have been protected at a
13 later point in time --
14 Q. Well?
15 A. -- had the military operations were not at that point -- at that
16 time it could have been protected anyway.
17 Q. It could have been at that point, but the idea of having a
18 corridor between the two points mentioned would have protected the
19 village that had been attacked about a month before, right, if
21 A. From that point on, yes.
22 Q. During this time --
23 MR. GUY-SMITH: You can take the map off.
24 Q. During this time, and we are now in May of 1992, there have been
25 a number of developments with regard to questions asked to the
1 international community and specifically to the Badinter Commission
2 concerning various aspects of what I'm going to call for the moment the
3 SFRY dissolution/secession issue; right?
4 A. Yes.
5 Q. As a matter of fact, it was in November 1991 that Lord Carrington
6 initially asked the first question, and now I'm summarising, which is was
7 the situation such that Yugoslavia
8 of dissolution or was there secession of the republics. Is that a
9 fair --
10 A. I don't recall the specific question which he asked of -- asked
11 the Badinter Commission to resolve or to make recommendations on.
12 Q. Okay. Well, we'll see if this refreshes your recollection with
13 regard to the first question.
14 MR. GUY-SMITH: Could we have as a collective 1D001754, which is
15 a collective exhibit of a number of the Badinter opinions.
16 JUDGE MOLOTO: You're calling it?
17 MR. GUY-SMITH: Yes, I am. I'm calling it up. If I could have
18 page 1. And I apologise, this has not been translated into B/C/S, but I
19 will read.
20 Q. The first question was as follows, and I'm asking if this
21 refreshes your recollection:
23 would declare themselves independent or sovereign have seceded or would
24 secede from the SFRY which would otherwise continue to exist. Other
25 Republics on the contrary consider that there is no question of
1 secession, but the question is one of a disintegration or breaking-up of
2 the SDRY as the result of the concurring will of a number of Republics."
3 That was the general question. I'm asking for a legal opinion.
4 That there were obviously two different views. One was secession and the
5 other was dissolution. Do you agree with that?
6 A. The language is clear that it is a question of disintegration or
7 breaking up versus secession.
8 Q. Fine. That question, depending on how it was to be answered,
9 dramatically -- would dramatically affect the course of events, would it
11 A. Yes, it did.
12 Q. And you, as a historian, are aware of the fact that the
13 distinction between a secession and disintegration was a hotly debated
14 topic and one of major concern at that time, and by that I mean in late
16 A. Yes.
17 Q. That question was answered --
18 A. Which question?
19 Q. The question was asked whether it was secession and
20 disintegration, and the Badinter Commission made a determination that the
21 former Yugoslavia
22 A. They used the word "dissolution," if I'm not mistaken.
23 Q. The second opinion, if we could go to the next -- because I take
24 it you don't recall the opinions.
25 A. I recall the opinions.
1 Q. You don't recall the specific --
2 A. I don't recall the specific language that they expressed.
3 Q. Okay. The second question and answer to that question dealt with
4 something a little bit different, which is -- and was once again a
5 question from Lord Carrington.
6 MR. GUY-SMITH: If we can have the next page of that exhibit,
7 please, starting with the bottom --
8 JUDGE MOLOTO: Are you going to have the answer to these opinions
9 to the first question?
10 MR. GUY-SMITH: Yes. I'm more than happy to do that.
11 Q. Going back to the first opinion, the Badinter Commission made a
12 couple of determinations and ultimately in 2 -- I'm sorry, in 3, the
13 opinion is as follows:
14 "That the Socialist Federal Republic of Yugoslavia is in the
15 process of dissolution; that it is incumbent upon the Republics to settle
16 such problems of state succession as may arise from this process in
17 keeping with the principles and rules of international law, with
18 particular regard for human rights and the rights of peoples and
19 minorities; that it is up to those Republics that so wish, to work
20 together to form a new association endowed with the democratic
21 institutions of their choice."
23 A. Yes.
24 Q. Now, without discussing the specific legal ramifications of that
25 opinion, have you had occasion, as a historian, to look at some of the
1 murky aspects of it, since it creates a number of questions in and of
2 itself with regard to how the various parties are going to respond?
3 A. Yes.
4 Q. This was not a necessarily bright-line approach, which is
5 understandable, given the complexity of the situation that was presented.
6 There was no clear way of the parties that were involved to make a
7 determination precisely after the rendering of opinion number 1 as to how
8 to proceed.
9 A. Yes, that's true. That's the case.
10 Q. With regard to the second question raised by Lord Carrington --
11 MR. GUY-SMITH: Now if we could -- that starts at the bottom of
12 the next page, which is here identified as page 183.
13 Q. The second question was: "Does the Serbian population in Croatia
14 and Bosnia-Herzegovina, as one of the constituent peoples of Yugoslavia
15 have a right to self-determination?" Right?
16 A. Yes.
17 Q. And after considering a number of different matters, they came up
18 with the following opinion, moving to the next page, and that is under 4.
19 "(i) that the Serbian population in Bosnia-Herzegovina and
21 groups under international law and under the provisions of the draft
22 Convention of the Conference on Yugoslavia
23 the Republics of Bosnia-Herzegovina and Croatia have undertaken to give
24 effect; and (ii) that the Republics must afford the members of those
25 minorities --"
1 JUDGE MOLOTO: Could we scroll up, please. Thank you.
2 MR. GUY-SMITH:
3 Q. " -- and ethnic groups all the human rights and fundamental
4 freedoms recognised in international law, including, where appropriate,
5 the right to choose their nationality."
7 A. Yes.
8 Q. Now, we've discussed yesterday issues concerning minorities and
9 ethnic groups in a general sense; right?
10 A. No, I don't believe we did.
11 Q. Okay. We discussed the issue concerning national movements and
12 how they were defined at some level; correct?
13 A. Yes, we did.
14 Q. Okay. And have you taken a look at this particular opinion, as a
15 historian, to make a determination in your research with regard to what
16 is the potential message or messages that are being given to the various
17 people who were concerned, and specifically to those people who live in
18 the area known as Bosnia-Herzegovina who are Serb?
19 A. Yes.
20 Q. Okay. And under this opinion, would it be fair to say that the
21 guidance that they are receiving, among others, could be interpreted that
22 they are in a position to advocate for the right to choose their
24 A. Yes.
25 Q. Going on to opinion number 3, the question asked there, once
1 again by Lord Carrington, which is a relatively important question, I
3 THE INTERPRETER: Could Counsel speak in the microphone, please.
4 JUDGE MOLOTO: Once again you are being requested to speak into
5 the microphone, Counsel. The interpreters have difficulty hearing you.
6 MR. GUY-SMITH:
7 Q. Not that the others are not important, is:
8 "Can the internal boundaries between Croatia and Serbia
9 between Bosnia-Herzegovina and Serbia
10 of public international law?" That was the question posed; correct?
11 A. Yes.
12 Q. Okay. Now, this question is a question that begins to deal in a
13 certain fashion with whether or not the former Republic of Yugoslavia
14 be broken up in terms of what would be considered to be a Westfalian view
15 of state, and by that I mean that there are nation -- that it's a nation
16 state with recognised geographic boundaries; right?
17 A. I interpret the question to be one of frontiers not of -- and
18 referencing international law and not a question of Westfalian state or
20 Q. Okay. With regard to the issue of frontiers, what the effect of
21 establishing new frontiers would be would be to redraw the geographic
22 boundaries that existed within the former Socialist Federal Republic
24 A. Yes.
25 Q. The committee, in regards to this question, because it found in
1 its first opinion that the Socialist Federal Republic of Yugoslavia is in
2 the process of breaking up, and that the Republics of Croatia and
3 Bosnia-Herzegovina "have sought international recognition as independent
4 states ... mindful of the fact that its answer to the question before it
5 will necessarily be given in the context of a fluid and changing
6 situation --
7 MR. GUY-SMITH: We need to turn the page. Could we turn the
8 page, please. I am continuing with the language on the first paragraph.
9 Q. " ... and must therefore be founded on the principles and rules
10 of public international law. 2. The Committee therefore takes the view
11 that once the process in the SFRY leads to the creation of one or more
12 independent states, the issue of frontiers, in particular those of
13 Republics referred to in the question before it, must be resolved in
14 accordance with the following principles ..." and then those principles
15 are listed. Right?
16 A. Yes.
17 Q. Now, at this point in time, in late 1991, with regard to the
18 question of the creation of one or more independent states, how many
19 independent states had been created?
20 A. It depends on what you mean by "created" and that would, I think,
21 be a legal question that I couldn't address.
22 Q. Well, how many -- how many states had applied for or had
23 attempted to establish independence at that time?
24 A. Well, those are two different questions. At that time, if you're
25 talking about prior to the 20th of December, no state had applied for
1 independence, and at that point I would say Slovenia and Croatia
2 attempted to establish independence.
3 Q. And had they been successful in that regard?
4 A. Well, that's, again, a legal question, I think. They had
5 proclaimed independence, agreed to defer that proclamation of
6 independence by 30 days or 90 days, proclaimed it again on 8 October, but
7 were at that point unrecognised by the European Community.
8 Q. And when did the European Community recognise Slovenia?
9 A. I believe it was 15 January 1992
10 Q. I believe you're correct. And likewise, for Croatia, when did
11 that occur?
12 A. Same date.
13 Q. Okay. Now, what happened with regard to the question of
15 A. Well, I think the -- given that we're paying close attention to
16 the documents, it would be a good idea to actually go to the document and
17 see what the decision of the Badinter Commission was in regard to
19 Q. I'm asking you before we do that. Do you recall, and I
20 appreciate your suggestion, sir, but do you recall what was the status of
21 Bosnia-Herzegovina at that time?
22 A. What was the status of Bosnia-Herzegovina?
23 Q. Yes.
24 A. In --
25 JUDGE MOLOTO: Madam Edgerton.
1 MS. EDGERTON: At what time?
2 MR. GUY-SMITH: 1991.
3 JUDGE MOLOTO: Thank you.
4 THE WITNESS: That's a full year. What date.
5 MR. GUY-SMITH:
6 Q. Okay, Dr. Donia, the latter part of 1991, after Lord Carrington
7 has written his letters.
8 JUDGE MOLOTO: Madam Edgerton?
9 MS. EDGERTON: Status in what regard? There's been a number of
10 questions here that broach on an area of expertise that's pretty much on
11 the edge of Dr. Donia's area with some legal connotations, and I think
12 we're getting back there again. I've let them go, but my question
13 remains, status in what regard?
14 MR. GUY-SMITH:
15 Q. Well, were they recognised -- was Bosnia-Herzegovina recognised
16 as being independent?
17 A. No.
18 JUDGE MOLOTO: Yes, Madam Edgerton.
19 MS. EDGERTON: Your Honour, I think that's an unfair question.
20 We don't know by who, we don't know in what way, and we don't know on
21 what basis. So I would object on that grounds, actually.
22 JUDGE MOLOTO: Mr. Guy-Smith.
23 MR. GUY-SMITH: Surely.
24 Q. Was Bosnia-Herzegovina recognised as being independent by the
25 European Community?
1 A. At what date?
2 Q. December 1991.
3 A. No.
4 Q. During that period of time, December of 1991, are you aware of
5 discussions that were being had between the United States
6 Secretary-General and the representative of the European Community
7 Mr. Genscher with regard to the recognition of these states? And by
8 "these states" I mean specifically Slovenia, Croatia
10 A. The United States did not have a Secretary-General.
11 Q. The United Nations. Excuse me. Thank you so much for the
12 correction. The United Nations Secretary-General.
13 A. No.
14 Q. Are you aware that there was concern at that time about the
15 recognition of any -- and I'm talking, once again, in December of 1991 --
16 excuse me, let me expand that to November and December of 1991, that
17 there was concern with regard to what the effect would be, and by that I
18 mean peace or conflict, if there was recognition by the
19 European Community of those --
20 JUDGE MOLOTO: Madam Edgerton.
21 MR. GUY-SMITH: -- of those --
22 JUDGE MOLOTO: Madam Edgerton. There's an objection, sir. Your
23 friend is on her legs.
24 MR. GUY-SMITH: I didn't see her, I'm sorry.
25 JUDGE MOLOTO: Yes, but you can hear me.
1 MS. EDGERTON: Concern on whose part, Your Honour?
2 JUDGE MOLOTO: Mr. Guy-Smith.
3 MR. GUY-SMITH:
4 Q. Concern on the part of the United Nations' Secretary-General?
5 A. I don't know.
6 Q. Okay.
7 MR. GUY-SMITH: Moving to the next opinion, if we could, and
8 that's opinion number 4.
9 Q. In this opinion, the commission was asked to recognise the -- was
10 asked by the Minister of Foreign affairs of the Socialist Republic
11 Bosnia-Herzegovina to recognise that republic, correct, the Republic of
12 Bosnia-Herzegovina? I'm looking at the very first paragraph, "In a
13 letter dated 20 December ..."
14 A. Yes.
15 Q. And when the Minister of Foreign Affairs of the Socialist
16 Republic of Bosnia-Herzegovina, who would that have been, if you know?
17 A. I believe it was Haris Silajdzic, but I can't see definitively.
18 Q. And was he -- in terms of the way that we've identified the
19 groupings, was he a Muslim, a Serb, or a Croat?
20 A. He was a Bosnian Muslim.
21 Q. The commission made a determination here, and I'm going to the
22 next page if we could, and if we could go -- thank you. Go down.
23 First of all, the commission made a number of notes, and I'm
24 referring you now to note number -- under 2. It noted that the Socialist
25 Republic for Bosnia-Herzegovina will become a member of the new Yugoslav
1 community, and there are two conditions that are there; right? That's
2 what -- that's what the Socialist Republic
3 indicated they were prepared to do.
4 A. Yes. Reference is here for the platform that was approved on 15
5 October 1991.
6 Q. And that platform includes a -- includes a community of Serbia
7 and Croatia
8 A. Yes.
9 Q. And is that a federation? Is that a co-federation? What would
10 that community be defined as?
11 A. We looked at this document yesterday, and it doesn't specify. It
12 only specified that the relationship between Bosnia-Herzegovina and
14 be the same.
15 Q. Okay. But this says something -- this doesn't talk about a
16 relationship here. This says the new community must include which is
17 different than a relationship between. So how do you define it must
19 MR. GUY-SMITH: And that will be my last question for this
21 THE WITNESS: I'm sorry, I didn't understand your question.
22 MR. GUY-SMITH: Okay. Then I'll stop now and pick it up when we
23 come back. Would this be a convenient moment, Your Honour?
24 JUDGE MOLOTO: That would be a very convenient moment. We'll
25 take a break and come back at a quarter to 11.00. Court adjourned.
1 --- Recess taken at 10.15 a.m.
2 --- On resuming at 10.46 a.m.
3 JUDGE MOLOTO: Mr. Guy-Smith, I realise Madam Edgerton is on her
5 Yes, Madam Edgerton.
6 MS. EDGERTON: Only to announce an addition to the appearances.
7 Our colleague Ms. Sutherland has joined us.
8 JUDGE MOLOTO: Thank you. Welcome, Ms. Sutherland.
9 Yes, Mr. Guy-Smith.
10 MR. GUY-SMITH:
11 Q. My question was, with regard to the issue found at (ii) whether
12 or not your discussion of relationship between the communities is the
13 same as the word here "include." When you were talking yesterday about
14 the relationship between the communities, were you envisioning that the
15 new community should include these constituent parts?
16 A. Yes.
17 Q. Okay, fine. The conclusion of this opinion is, at paragraph
18 number 4: "In these circumstances, the arbitration commission is of the
19 opinion that the will of the people of the Bosnia-Herzegovina to
20 constitute the SRBH as a sovereign --"
21 MR. GUY-SMITH: To the top of the page, Your Honour.
22 Q. "As a sovereign and independent State cannot be held to have
23 been fully established." Correct?
24 A. Yes.
25 Q. And that was the state of play as of 11 January 1992.
1 A. Yes.
2 Q. And with regard, and I'm going to do this rapidly, if you could
3 take it on faith that opinions 5, 6, and 7 all deal with essentially the
4 same question. Opinion number 5 being recognition of the Republic of
6 situations the commission found that those republics met the necessary
7 conditions for recognition by member states of the European Community on
8 the 11th of January, 1992.
9 A. Yes.
10 Q. Okay. Moving to, then, opinions 8, 9, and 10, collectively, but
11 starting with opinion, obviously, number 8 that is found on page 84 of
12 this particular grouping.
13 MR. GUY-SMITH: Could we have page 84, please. I'm sorry, in
14 e-court it's page 15 of 22. And if we could go to the bottom of the
16 Q. Now we are in the month of May 1992, specifically the 18th of
17 May. Once again, the commission has received letters from -- a letter
18 from Lord Carrington with regard to a number of particular questions.
19 But before we address those questions, by that point in time there had
20 been a decision to withdraw the JNA from the area of Bosnia-Herzegovina,
21 had there not?
22 A. Yes.
23 Q. Okay. And with regard to the questions asked by Lord Carrington,
24 moving over to the next page now, which would be page 16 --
25 MR. GUY-SMITH: I'll just move over a bit. I think it may be --
1 yes, perfect. Thank you.
2 Q. The questions -- two of the questions that I asked is: In its
3 opinion of number 1 of 29 November 1991
4 of the opinion "that the SFRY (was) in the process of this dissolution."
5 Can this dissolution now be regarded as complete?
6 2. "If this is the case, on what basis and by what means should
7 the problems of the suck succession of states arising between the
8 different states emerging from the SFRY be settled"?
10 A. Yes.
11 Q. Kind of a burning question at the time, was it not?
12 A. Yes.
13 Q. And the answer without -- I'm not going to go through all of the
14 issues concerning various positions that were taken, but the answer
15 ultimately, which is found on page 18 with regard to opinion number 8, is
16 predicated, among other things, upon the commission's reliance of its
17 opinion number 1, and I'm moving towards the bottom part of the page
18 where it says, number 1, "In its opinion ..."
19 MR. GUY-SMITH: If we can go down a little bit, please. Up.
21 Q. Looking at number 1.
22 "In its opinion number 1 of 129 November, the Arbitration
23 Commission found that: A state's existence or non-existence had to be
24 established on the basis of universally acknowledged principles of
25 international law concerning the constituent elements of a state."
1 And then the next bullet point is:
2 "The SFRY was at that time," referring to the 29th of November,
3 "still a legal international entity, but there had been a desire for
4 independence expressed by ..." and then it's mentioned who this was
5 expressed by. Correct?
6 A. That's the wording, yes.
7 Q. Now, with regard to the question of the existence or
8 non-existence of a state, had that issue, and I'm not talking about it
9 legally, I'm talking about the reaction of the various individuals or
10 parties, been satisfactorily defined, do you think?
11 A. I don't know.
12 JUDGE MOLOTO: Madam Edgerton.
13 MS. EDGERTON: It's a compound question, Your Honour, and we do
14 have a guideline on this.
15 JUDGE MOLOTO: Mr. Guy-Smith.
16 MR. GUY-SMITH: It's not a compound question, but I'm happy to
17 rephrase it, if Ms. Edgerton is confused. It's absolutely not a compound
19 Q. Now, with regard to the --
20 MR. GUY-SMITH: I'm not going to get into it. I'll rephrase the
21 question. It's not compound, but I'll rephrase if she has difficulty.
22 JUDGE MOLOTO: If you may. But before you do, let me just say to
23 Dr. Donia: Dr. Donia, the process that we follow is once I -- the
24 opposite counsel stands up to object and I call her name, please -- could
25 you please stop and not answer. The idea of her standing at that stage
1 is to intervene before you answer.
2 THE WITNESS: Yes, Your Honour.
3 JUDGE MOLOTO: Thank you so much.
4 You're on your feet.
5 MS. EDGERTON: I feel since it was asserted that I was confused,
6 I should explain that my confusion arises from the question being with
7 respect to individuals or parties, and I would ask that it be broken down
8 to two
9 what "various" means. That's wherein my confusion might lie.
10 MR. GUY-SMITH: Very well.
11 JUDGE MOLOTO: Thank you.
12 MR. GUY-SMITH:
13 Q. With regard to the existence or non-existence of a state, as a
14 historian, do you believe that your research revealed whether or not
15 Izetbegovic was clear about, in his mind, what the definition of "state"
16 was -- in this context?
17 A. No, I couldn't say whether he was clear or not.
18 Q. Could you say whether or not Mr. Karadzic was clear?
19 A. Clearer, perhaps.
20 JUDGE MOLOTO: Mr. Guy-Smith, would it not be helpful to get the
21 witness's opinion on those questions if you put to him what that position
22 was, what their reaction was to that position?
23 MR. GUY-SMITH: Okay. Thank you, Your Honour.
24 JUDGE MOLOTO: Then at least he can comment on that. Right now
25 it looks like you're asking him to go into the minds of these people to
1 find out what they thought.
2 MR. GUY-SMITH:
3 Q. Are you aware of what Mr. Izetbegovic's position was with regard
4 to the findings of the Badinter Commission concerning opinion number 8?
5 A. Well, going one by one, he agreed with the first bullet. He
6 agreed with the second bullet. I don't know what his view was on the
7 third bullet. I don't know whether he'd agree with the fifth bullet.
8 Q. Okay. With regard to the third bullet, you're referring to the
9 language starting with "The composition ..." just so the record is clear?
10 A. Yes.
11 Q. With regard to the fourth bullet, you said nothing about that,
12 and you went to the fifth bullet.
13 A. I'm sorry. One, two, three, four. Four is "Recourse to force in
14 different parts of the Federation had demonstrated the Federation's
15 impotence." I don't know what his conclusion or position was on that
16 issue. I think he had a position that was consistent with point -- with
17 the next-to-last point.
18 Q. Which starts with the words "The SFRY ..."
19 A. Yes.
20 Q. Okay.
21 A. And certainly agreed with the last point.
22 Q. With regard to Mr. Karadzic, can you tell us what his reaction
23 was and his position? Excuse me, let me make that simpler.
24 Are you aware of what Mr. Karadzic's position was with regard to
25 the findings of the Badinter Commission's concerning opinion number 8?
1 A. No.
2 Q. The ultimate opinion was that -- and that's found at the next
3 page, section 4:
4 "That the process of dissolution of the SFRY referred to in
5 opinion number 1 of 29 November 1991
6 longer exists."
8 A. Can you specify what date we're speaking of here?
9 Q. I'm referring to the date of "Paris, 4 July 1992."
10 A. Is that point 4? Is that what you're referring to?
11 Q. "The arbitration commission is therefore of the opinion: That
12 the process of dissolution of SFRY referred to in his opinion number 1 of
13 29 November 1991
14 A. Yes.
15 Q. And the date is 4 July 1992
16 A. Yes.
17 Q. Okay. Now, of course, with that in mind, that the process of
18 dissolution is now complete and SFRY no longer exists, there are, for our
19 purposes of discussion, two remaining questions that I'd like to discuss
20 with you, which are contained in opinions number 9 - excuse me - and
21 opinion number 10. Once again, a letter which had been received from
22 Lord Carrington in May of 1992, referring back to whether or not the
23 dissolution of SFRY had been complete, the question is: "If this is the
24 case, (is the dissolution of the SFRY now complete?)" --
25 MR. GUY-SMITH: Could we go to the next -- no, it's right there.
1 Q. "... on what basis and by what means should the problems of the
2 succession of states arising between the different states emerging from
3 the SFRY be settled"?
4 That was the question posed.
5 A. That was the question Lord Carrington posed in his letter of 18
6 May 1992.
7 Q. And the commission responds to that question by listing out - and
8 going to the next page, please - one specific issue initially, and I'm
9 going right above number 4 -- no, I won't do that. I'm going to number
10 4: "The arbitration commission is therefore of the opinion ..." and then
11 there are listing of bullet points as to what the opinion is with regard
12 to the issue of successor state; right?
13 A. This is a report on the declaration adopted by the
14 European Council.
15 Q. I appreciate that. But what happens here at number 4 is that an
16 opinion is rendered, and these are the bullet points with regard to the
17 opinion that the same commission that we've been discussing in the
18 previous eight opinions is rendering concerning the issue proposed by
19 Lord Carrington; correct?
20 A. The arbitration commission --
21 Q. Excuse me, Dr. Donia, I hate to interrupt you. If you could
22 answer my question, I'd appreciate it. Then of course you can explain
23 it. This -- if you could answer my question yes or no, so we're clear on
24 the record that this is the opinion of this body that we've been talking
25 about in the previous eight opinions concerning the questions posed by
1 Lord Carrington; right? That's what it says: "The Arbitration
2 Commission is therefore of the opinion ..."
3 A. Yes.
4 Q. And then it lists a number of bullet points as to what its
5 opinion is; right?
6 A. Yes.
7 Q. Okay. And it concludes -- it concludes, after going through
8 those bullet points, the last bullet point being: "Since, however, no
9 specific question --"
10 JUDGE MOLOTO: Could you scroll up, please.
11 MR. GUY-SMITH: Could we go to the next page.
12 Q. "Since, however, no specific question has been put to it, the
13 commission cannot at this stage venture an opinion on the difficulties
14 that could arise from the very real problems associated with the
15 succession to the former Yugoslavia
17 A. Yes.
18 Q. And that is dated, once again, the 4th of July, 1992.
19 A. Yes.
20 Q. Finally, the last opinion that I wish to discuss with you briefly
21 deals with the very specific issue of -- I'm sorry, yes, the very
22 specific issue of a successor state and the question asked was:
23 "In terms of international law, is the Federal Republic
25 calling for recognition by the Member States of the European Community in
1 accordance with the joint statement on Yugoslavia and the Guidelines on
2 the recognition of new states in Eastern Europe and the Soviet Union
3 adopted by the Council of the European Communities on 16 December 1991."
5 A. Yes. That's what it says.
6 Q. Then the opinion is found on the last page of this particular
7 series. That's at section 5.
8 MR. GUY-SMITH: Could we have the next page, please.
9 Q. There are two bullet points. I'm going to refer to the first
10 bullet point there under 5:
11 "Consequently, the opinion of the arbitration is that," the first
12 bullet point, "the FRY (Serbia
13 cannot be considered the sole successor to SFRY."
15 A. Yes.
16 Q. And once again, the date of that is 4th July 1992.
17 A. Yes.
18 MR. GUY-SMITH: I move this collected exhibit of those opinions
19 into evidence as defendant's next in order.
20 JUDGE MOLOTO: They are so admitted. May they please be given an
21 exhibit number.
22 THE REGISTRAR: Exhibit D15, Your Honours.
23 JUDGE MOLOTO: Thank you.
24 MR. GUY-SMITH:
25 Q. Would it, in your estimation as a historian, be fair to say that
1 questions concerning the relationships between the various, and by that I
2 mean Croatia
3 confederated states, was up to at least July 1992 in a dynamic situation?
4 A. They were not confederated states. Unquestionably the
5 relationship -- the relationships among those three was in a dynamic
7 Q. And specifically with regard to Bosnia-Herzegovina, the situation
8 was, for purposes of maintaining the same thinking process, clearly more
9 dynamic than that of Croatia
10 that of FRY which had been recognised --
11 A. No.
12 Q. -- by -- it was not?
13 A. It was not more dynamic than the relationship with the other two,
15 Q. Okay. The issue with regard to the -- the issue with regard to
16 FRY as a unit, and by "unit" I mean a state, had been resolved, and by
17 that I mean FRY had been created, that it was not a successor state to
18 SFRY so it did not necessarily obtain all of the duties and obligations
19 that SFRY had obtained, but it was a compact unit. And I did put more in
20 that than I should have, and I do apologise, Ms. Edgerton, so let me pull
21 back. FRY was recognised by the commission as an independent state.
22 A. The commission had no authority to --
23 Q. I didn't ask that --
24 A. -- to recognise that as an independent state --
25 JUDGE MOLOTO: Would the speakers kindly not overlap.
1 MR. GUY-SMITH:
2 Q. I didn't ask you about the authority of the commission. I asked
3 you whether it was recognised.
4 A. No.
5 JUDGE MOLOTO: The interpreters are asking you to please not
7 MR. GUY-SMITH:
8 Q. Croatia
9 before; correct?
10 A. Yes, by some other states.
11 Q. As had Slovenia
12 A. Yes.
13 MR. GUY-SMITH: I want to turn now, if we might, to P345, which
14 is an intercepted conversation between Mr. Slobodan Milosevic and
15 Mr. Radovan Karadzic which you have referred to previously. I'd like to
16 refer to --
17 MR. GUY-SMITH: If we could have the fourth page of that document
18 in English and the fourth page of that document in B/C/S brought up.
19 With regard to the fourth page, if we could go down in the English, if we
20 go down to where Mr. -- just down -- fine, stop. Just stop right there.
21 Q. If we could go down to Mr. Karadzic is saying: "Yes, this is
22 going to move slowly now. It's very important that Germany's been
23 impatient and hurried this." It's right at the very top of the page
24 right now. Can you see where it says that?
25 A. Yes.
1 Q. Now, we've gone, in terms of dates, we've now gone back in time,
2 and this is a conversation in which the name Genscher is mentioned, and
3 there is a conversation between Slobodan Milosevic and Radovan Karadzic
4 concerning Genscher; correct?
5 A. Yes.
6 Q. And do you know that Genscher that's being identified here as
7 being -- I'm sorry, do you know who that is?
8 A. Yes.
9 Q. And who would that be?
10 A. He was the Foreign Minister of Germany at that time.
11 Q. And he at that time was actually pushing for the independent --
12 for the recognition of the independent states by the EC, was he not? At
13 the time that this conversation was occurring.
14 A. What states? If you could clarify your question.
15 Q. Sure. Croatia
16 A. I can affirm that he was pushing for the recognition of the
17 independence of Croatia
18 recognition of the independence of Bosnia-Herzegovina at this time.
19 Q. Okay. And as a matter of fact, Milosevic comments on there being
20 some criticism between Mr. Genscher and somebody by the name of Eiff. Do
21 you know who that is?
22 A. No, I do not.
23 Q. Well, then, we won't pursue that any further.
24 Going down to the statement by Karadzic right after Milosevic
25 talks about the totalitarian chauvinist regime in Croatia, Karadzic says:
1 "Yes, yes, yes. So, he doesn't want to lose this. He's trying
2 to get out of it. He's crafty, this Genscher, he knows very well what
3 it's about, but he wants this guy to pay the price for that mistake."
4 Do you know what they're referring to there?
5 A. No.
6 Q. Now, could you tell us, if you might, what the perception, if
7 there was a perception, that was had by Serbian people, be that Bosnian
8 Serbs, Serbian Serbs, Croatian Serbs, with regard to the Germans
9 specifically as a result of some of the actual massacres that occurred in
10 World War II? As a historian, was there a level of, should we say,
12 A. Well, again, it depends on the time that you're asking about. I
13 think --
14 Q. Well, I'm asking about 1991, about the time that this intercept
16 A. I think many Serbs continued to have doubts or reservations about
17 Germans and German governmental intentions, but not all.
18 Q. Okay. And whether that be valid or invalid, it's an entirely
19 different matter. They're reservations. Those reservations did exist.
20 A. Some people held that reservation, yes.
21 Q. Okay. Do you know from a -- from your research whether
22 Mr. Karadzic held that reservation?
23 A. Yes.
24 MR. GUY-SMITH: Could we please have P341 called up on the
25 screen. I believe that the entirety of P341 has been admitted, and I
1 would like to, first of all, go to page 9 of the English and the bottom
2 of page 11 of the B/C/S, if I could. The speaker is -- I'm not sure we
3 have the right page on the B/C/S. Yes, we do. Thank you. Wonderful.
4 I'm going to the -- actually, it's the first -- the second paragraph,
5 starting with the language "Instead ..." Thank you. That's wonderful.
6 Q. Koljevic is speaking, and he's talking about what the attempts
7 were and he says:
8 "Instead of denying sovereignty, we tried to offer a surplus of
9 sovereignty. Let it," and it says "is," I think it's probably a typo,
10 "Let it be a sovereign Muslim Bosnia and a sovereign Serbian Bosnia and a
11 sovereign Croatian Bosnia, therefore, let it be a sovereign state of
12 sovereign peoples."
14 A. Yes.
15 Q. "We thought this could be achieved legally without erecting
16 physical borders, but instead they have organised it administratively and
17 politically with complete sovereignty according to the Swiss principle."
18 And when he's referring to the "Swiss principle," could you
19 explain what he means by that?
20 A. Well, I take it he's referring to cantons as local units of
21 government with considerable autonomy as a part of a central state.
22 Q. Okay.
23 MR. GUY-SMITH: Now I want to go down a bit and then go to the
24 next paragraph.
25 Q. It says: "With respect to local authority, it is impossible to
1 go to the smallest units. But the possibility would exist of transfers,
2 the possibility would exist of the exchange of certain units, and so
4 Is there -- is there he expressing the notion you've talked about
5 before about there being transfers of population?
6 A. Yes.
7 Q. Okay. And then finally --
8 MR. GUY-SMITH: And I think we have to go over to the next page
9 in B/C/S, which is page 12.
10 Q. He says something which is -- in terms of there being a conflict
11 or not, something which is kind of hopeful, which is:
12 "I have certain information from the United Nations that this
13 problem in Bosnia
14 which would be civilised and organised and which is already spontaneously
15 evolving now."
17 A. Yes.
18 Q. Okay. And could you help us there with what he's referring to?
19 A. Well, I don't know what he's referring to in terms of certain
20 information from the United Nations. The notion that he is discussing,
21 really, is voluntary, organised exchange of population which he asserts
22 is already simultaneous -- or spontaneously taking place.
23 Q. Okay. And this is the meeting -- this meeting was held between a
24 number of people, including Tudjman, Koljevic, and Boras, on the 8th of
25 January, 1992; correct?
1 A. Yes.
2 Q. Okay. Thank you.
3 MR. GUY-SMITH: Excuse me for a second.
4 Q. I'd like to take a moment to discuss with you P200, a very brief
5 moment, if I could. In P200 --
6 MR. GUY-SMITH: First of all, I don't know if it's up on the
7 screen or not yet. It isn't yet.
8 Q. This document, if you look at the bottom of page 1, indicates its
10 MR. GUY-SMITH: If we can go down to the bottom of page 1. Could
11 you scroll down -- just down a little bit, just so we're all together.
12 Q. This document is a 466-page document; correct?
13 A. In which --
14 MR. GUY-SMITH: We can't see the bottom of it, yes.
15 JUDGE MOLOTO: We're still not having it scrolled down.
16 MR. GUY-SMITH: We're not having it scrolled down.
17 If I can just scratch that -- if I could have the usher, give him
18 the first page in hard copy, then he can take a look at what it says and
19 acknowledge if that's accurate. It's not scrolling down, Your Honour. I
20 just want to make sure we agree.
21 Your concurrence, Ms. Edgerton?
22 No, don't give it to him yet.
23 With your concurrence?
24 MS. EDGERTON: Of course.
25 MR. GUY-SMITH:
1 Q. That hard copy. Now, looking here at the bottom of the page, it
2 says it's a 466-page document --
3 A. In English, yes.
4 Q. Right.
5 Now, out of this particular document, I did a word search last
6 night, and I'm going to pose a question to you which you might find a bit
7 foolish, but I mean it in an entirely different way.
8 I did a word search and I found the word "peace" as a word in the
9 document 125 times. I found the word "negotiations" in the document over
10 40 times. "International community," 22 times. "Geneva
11 "war" in various iterations, meaning that it was being defined as war
12 profiteering or the possibility of war or the reluctance to be in war,
13 somewhere over 100 times.
14 Now, if I were to say to you, based upon that and that alone,
15 that this document was a document which discussed the importance of there
16 being war, would you agree that I've given you a sufficient amount of
17 information to work with?
18 A. No.
19 Q. Obviously not. That's why I said when I posed the question to
20 you initially you might find it a bit absurd. What you did with regard
21 to this document is you were kind enough to go to page 212 --
22 MR. GUY-SMITH: If we might, could we pull up the P200, and
23 specifically the page that was pulled up, and I believe it's 230 in the
24 B/C/S. And if we could go down to the bottom of that page.
25 Q. And you've parsed out for us, if I'm not mistaken, very specific
1 language, that language being with regard to Mr. Ostojic, starting with
2 the word "We ..." Correct?
3 A. Yes.
4 Q. And it is that single sentence that you have used from that page
5 as a representative example of a particular concept; correct?
6 A. Yes, as an example of a particular concept.
7 Q. And as representative, and this is my question to you,
8 representative of what was being discussed by the various individuals in
9 this 466-page document.
10 A. I did not represent it as representative, nor do I believe it to
11 be representative, of the topic or themes being discussed by various
12 individuals in the Assembly.
13 Q. Okay. With that in mind, how did you come about picking this
14 particular phrase? Is this something that you suggested to the
15 Prosecution, or is this something that the Prosecution suggested to you?
16 A. I incorporated it in a report. There was no suggestion to me
17 from the Prosecution to include that.
18 Q. Do you think that when you, as a historian, are presenting
19 information to a fact-finder that is identified by a document of this
20 magnitude, which I'm sure you reviewed.
21 A. I reviewed -- I read it all, yes.
22 Q. Which discusses a multitude of issues, including the ones that
23 I've mentioned to you just by pulling up words "peace," "Geneva
24 "international community"; right?
25 A. Yes.
1 Q. Do you think that when you present that to a fact-finder, that
2 you are doing so in an objective manner?
3 A. Yes.
4 Q. Okay. There are various camps or schools of thought with
5 regarding -- with regard to the breakup of Yugoslavia, are there not?
6 A. Yes, there are.
7 Q. Do you know of a gentleman by the name of James J. Sadkovich?
8 A. Yes, I do.
9 Q. Have you read his article called "Argument Persuasion and
10 Anecdote: The Usefulness of History to Understanding Conflict"?
11 A. Yes, I have.
12 Q. And in that article, he discusses, among other things, one view
13 concerning the role of historian, does he not?
14 A. I think he discusses more than one, but --
15 Q. I'm sorry --
16 A. -- he does at least one.
17 Q. Okay. And he, as a matter of fact, in this article is concerned
18 and raises some questions with regard to historians being advocates in
19 proceedings such as these; right?
20 A. Yes.
21 Q. I'm going to read parts of the article and see whether or not you
22 agree or disagree with him, but would you like to have the article itself
23 so that you know I'm giving you the verbatim information?
24 A. That would be helpful, yes.
25 Q. Wonderful.
1 MR. GUY-SMITH: Could we please call up 1D00-1596. And I'd like
2 to go to page 35 of this article. I'd like to go to page 3 of 18. I
3 apologise to the Registry. I'm still using the hard copy numbers. Could
4 we go to page 3 of 18 of the article. And if we go about halfway down
5 the very first paragraph, he says:
6 "Historians argue by selective example, a rhetorical device, not
7 a scientific proof, and they fall into some of the same errors as
8 journalists. They stress detail and use concrete data, but they also
9 assume generalisations, extrapolate from incomplete data, and employ
10 ambiguous and evocative words."
11 Do you agree with that assessment?
12 JUDGE MOLOTO: Did you say he's a journalist, this person?
13 MR. GUY-SMITH: This person?
14 JUDGE MOLOTO: Yes.
15 MR. GUY-SMITH: No, I believe he's a historian.
16 THE WITNESS: I think it's true that some historians argue by
17 selective example, rhetorical device, not a scientific proof. I think
18 it's -- what he said is true of some historians. Some more than others.
19 MR. GUY-SMITH: Okay. Could we go to page 6 of the article. Is
20 it up? Starting with the paragraph "Because ..."
21 Q. He states:
22 "Because historians cannot test their assumptions their aim is
23 verisimilitude, a careful reconstruction of the past that approximates
24 truth. Because they can offer only incomplete and tentative
25 reconstructions of the past, historians invite us to ponder the
1 complexity of human motivation and human activity."
2 You agree with that?
3 A. Yes.
4 Q. "They also remind us to be skeptical of sources."
5 And you've told us obviously that you agree with that.
6 A. Yes.
7 Q. "Should we believe Izetbegovic or Halilovic? Mesic or Tudjman?
8 Stewart or Blaskic? Memoirs, of course, like works heavily defendant on
9 few sources, are inherently suspect ..."
10 MR. GUY-SMITH: Could we turn to the next page, which is page 7.
11 Q. "... not only because their authors usually had reason to be less
12 than candid, but also because memory alone is faulty."
13 Do you agree with that assertion?
14 A. Yes.
15 MR. GUY-SMITH: Could we go to page 40, and -- 8.
16 Q. And with regard to this, if we can start with the paragraph
17 "Both ..." He states:
18 "Both sides at The Hague ..."
19 MR. GUY-SMITH: Page 8, please, 8 of 18. Page 8.
20 JUDGE MOLOTO: You asked for page 40, you said.
21 MR. GUY-SMITH: I said --
22 JUDGE MOLOTO: Is it 8 you're looking for?
23 MR. GUY-SMITH: I apologise, Your Honour. I'm soft-wired, and I
24 can't get -- have trouble with this fancy stuff. Page 8.
25 Q. "Both sides at The Hague
1 history. They are participants in a game which demands that they partake
2 in a very serious and very formal debate, but a debate nonetheless.
3 Both sides call expert consultants who select and interpret
4 evidence. But Robert Donia, Stefano Bianchini, Stjepan Mestrovic, and
5 other scholars who've testified at The Hague were not acting as
6 historians or social scientists when they did so. They could not,
7 because the rules of the game at The Hague preclude detailed historical
8 and scientific arguments. Their training may have been scholarly, but at
9 The Hague
10 and the defence."
11 Do you agree with that assertion, sir?
12 A. No, I do not.
13 Q. If we took your name out of the equation, would you agree with
14 the assertion?
15 A. No. But thank you.
16 MR. GUY-SMITH: Going now to the -- it would be page 16 of the
18 Q. He gives us a number of, and he calls them tentative, conclusions
19 as a historian about how we might approach the conflict and the breakup
20 of Yugoslavia
21 A. Yes.
22 MR. GUY-SMITH: Could we go down -- scroll down a little bit.
23 There you go. Perfect.
24 Q. And with regard to those conclusions and -- tentative as they may
25 be, do you agree with those, the first, second, third, and fourth
2 A. If I may take a minute to read them.
3 Q. Please do so.
4 A. I certainly agree with the first one. I don't agree fully with
5 the second one. I certainly agree with the third. I partially agree
6 with his point in the fourth statement, but I think I'd want to define
7 some terms more precisely than he has here to say whether I agree or
8 disagree with this fairly lengthy assertion.
9 Q. So with regard to the fourth, you would -- you would need for him
10 to define his terms more precisely?
11 A. Yes.
12 Q. You find fault with -- and "fault," I'm using this in a gentle
13 fashion, you find fault with the assertion because some of the words
14 don't have an exactness of definition that you would require in order to
15 make an determination of whether or not you can agree or disagree?
16 A. Yes.
17 Q. And that's, in large measure, what some of our task is here when
18 you are interpreting the words of people like Karadzic, Izetbegovic, and
19 Milosevic, and that's Slobodan Milosevic. There needs to be a clear and
20 definite understanding of what is being said.
21 A. As clear as possible, yes.
22 Q. In the fourth paragraph here, I take it that your concern is that
23 you find some of this lacks clarity.
24 A. It does to me, yes.
25 Q. Dr. Donia, I thank you for your time.
1 A. Thank you.
2 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.
3 But before you sit down, Mr. Guy-Smith, what do you want to do
4 with this document?
5 MR. GUY-SMITH: And I thank you, Your Honour. I would like to
6 have this document admitted as it is a document that we have discussed
7 and specific questions have been asked about it, and to the extent
8 that --
9 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
10 Are you rising on this document, ma'am?
11 MS. EDGERTON: I am, Your Honour, actually.
12 JUDGE MOLOTO: Yes, ma'am.
13 MS. EDGERTON: Your Honour, my submission would be is that this
14 lacks relevance. The cross-examination on this document has involved
15 Mr. Guy-Smith reading large passages of it into the record, so we have
16 that into the record, and simply eliciting yes or no answers largely from
17 Dr. Donia as to his views of this person's opinion.
18 So, in our submission, Your Honour, it shouldn't be admitted, and
19 it's irrelevant.
20 JUDGE MOLOTO: Your reply?
21 MR. GUY-SMITH: I don't know whether one is needed or not. I
22 think that we can recall a number of occasions where part of a document
23 has been read either by the Defence or the Prosecution and then a reply
24 has been, Do you agree with what this says? Is this meaningful to you?
25 Is this relevant? Does it have importance? And the answer has been yes
1 or no. So I don't believe that the objection as founded has a basis.
2 [Trial Chamber confers]
3 JUDGE MOLOTO: Madam Edgerton, your objection is overruled.
4 Pages 3, 6, 7, 8, and 16 only of this document are admitted into
5 evidence. May they please be given an exhibit number.
6 THE REGISTRAR: Exhibit D16, Your Honours.
7 JUDGE MOLOTO: Exhibit D16. Thank you very much.
8 MR. GUY-SMITH: If I might, in light of the Chamber's ruling,
9 since I did not read into the record -- no, I think I'm okay. I'm fine.
10 JUDGE MOLOTO: Page 1 is assumed to be also part of the record.
11 THE REGISTRAR: Yes, Your Honours.
12 JUDGE MOLOTO: Thank you very much.
13 Madam Edgerton, any re-examination?
14 MS. EDGERTON: No re-examination, Your Honours.
15 JUDGE MOLOTO: Thank you very much.
16 Questioned by the Court:
17 JUDGE DAVID: Professor Donia, in order to prepare your work, you
18 have said --
19 THE INTERPRETER: Microphone, Your Honour, please.
20 JUDGE DAVID: Thank you. In order to prepare your report, you
21 had repeatedly asserted that it was in the context of the legal
22 indictment of the Prosecution.
23 A. It was, in a sense, keyed by the indictment of the Prosecution,
24 in a sense that it was those topics, issues, and persons and
25 organisations to which I addressed the report.
1 JUDGE DAVID: In considering this type of report in the context
2 or following the keys given by the indictment, do you feel any objective
3 differences in a scholarly work from those pieces of your research that
4 were not guided or keyed by this legal instrument?
5 Or, in other words, a scholarly work, in your view, when adjusted
6 to the legal demands of a tribunal like this, produces something that in
7 nature is different from purely scientific scholarly work, devoid of any
8 legal direction.
9 A. I don't believe it introduces any essential difference other than
10 the topics to which I'm addressed and the period of time in which they --
11 in which I discuss them.
12 JUDGE DAVID: So you would regard both as legitimate sons of your
13 effort without any difference.
14 A. Yes.
15 JUDGE DAVID: And do you believe that the legal nature of the
16 indictment poses on you constraints to develop certain issues instead of
18 A. It imposes on me guidelines that I will not exceed, and if you
19 would think of those as restraints, yes.
20 JUDGE DAVID: Are these restraints of such magnitude that on many
21 occasions you had to circumvent, avoid other important and relevant parts
22 of the account that will have given a different balance or equilibrium to
23 your report.
24 A. No, I don't believe so.
25 JUDGE DAVID: Thank you very much, Professor Donia.
1 JUDGE MOLOTO: Any questions arising from the questions of the
2 Judge, Madam Edgerton?
3 MS. EDGERTON: None at all, Your Honour.
4 JUDGE MOLOTO: Mr. Guy-Smith?
5 MR. GUY-SMITH: Yes.
6 Further Cross-examination by Mr. Guy-Smith:
7 Q. Judge David asked you, "Do you believe the legal nature of the
8 indictment poses on you constraints to develop certain issues instead of
10 And your answer was, "It imposes me guidelines that I will not
11 exceed, and if you think of those as restraints, yes."
12 The two reports in issue here are dealt with, two indictments
13 specifically; correct?
14 A. Yes.
15 Q. The first was the Krajisnik indictment, and the second was the
16 Dragomir Milosevic indictment; correct?
17 A. Yes.
18 Q. Neither of these reports were written with the Perisic indictment
19 in mind, were they?
20 A. No.
21 MR. GUY-SMITH: Thank you.
22 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.
23 Dr. Donia, this brings us to the conclusion of your testimony.
24 Thank you very much for taking the time off your very busy schedule to
25 come and testify at the Tribunal. You are now excused. You may stand
1 down, and will you please travel well back home.
2 THE WITNESS: Thank you, Your Honours.
3 [The witness withdrew]
4 JUDGE MOLOTO: Madam Edgerton.
5 MS. EDGERTON: Yes, Your Honours. At this point the Prosecution
6 would like to move the two reports and one addendum that were the basis
7 of Dr. Donia's testimony in cross-examination this week, 65 ter numbers
8 2290, 2290.01, and 2169, into evidence, please.
9 JUDGE MOLOTO: It's 02619, 02290, and did you say 02290.01?
10 MS. EDGERTON: I did, and I thank you for correcting me on the
11 numbers that I've transposed yet again, Your Honour. My apologies.
12 JUDGE MOLOTO: So there is also a 02290.01?
13 MS. EDGERTON: Correct, yes.
14 JUDGE MOLOTO: Those three -- oh, Mr. Guy-Smith.
15 MR. GUY-SMITH: It is our submission that there are a number of
16 uses for 65 ter 02619, 02290 and 02290.01. None of them entertain, in
17 our respectful submission, that they should be relied upon by this
19 JUDGE MOLOTO: Thank you, Mr. Guy-Smith. The Chamber notes that
20 you are not saying anything about the validity or otherwise of the
21 document. They will therefore admitted as exhibits. May they please be
22 given exhibit numbers.
23 THE REGISTRAR: Your Honours, 65 ter number 2290 will become
24 Exhibit P348; 2290.01 will become Exhibit P349; and 2619 will become
25 Exhibit P350.
1 JUDGE MOLOTO: Thank you very much.
2 Madam Edgerton.
3 MS. EDGERTON: Your Honour, that concludes my business in front
4 of you today. I note the time. At this point, Ms. Sutherland would be
5 moving to take the chair to lead the next witness in front of you, but
6 given we're sitting a bit shorter today, Your Honour, I don't know how
7 you feel about when you want to take the break. It would take us a
8 couple of minutes to switch.
9 [Trial Chamber confers]
10 JUDGE MOLOTO: I'm sure you will need the five minutes to switch
11 over, Madam Sutherland. So is it convenient that we take the break now
12 and you can use the five minutes to switch over and then take a break and
13 come back at half past? We'll do so. Court adjourned. Come past at
14 half past 12.00.
15 --- Recess taken at 11.57 a.m.
16 --- On resuming at 12.30 p.m.
17 JUDGE MOLOTO: I believe the Defence has something to raise.
18 MR. LUKIC: [Interpretation] Yes, Your Honour, Judge Moloto.
19 Before the next witness comes into the courtroom, I'd like to bring up a
20 question which for the moment I'm presenting only in the form of my
21 concern for future dealings, because I'm afraid that in view of the
22 difficulties that I find myself in now, that this will repeat itself in
23 future. So I'd like to inform the Trial Chamber of the situation I find
24 myself in now so that if I'm brought into the same situation once again,
25 I will have to ask the Trial Chamber to react.
1 Now, this is what it's about. I am fully aware of the situation
2 that the Prosecution finds itself in, that is to say, they had to change
3 the list of witnesses, to change the order the witnesses and the facts
4 that the witnesses are going to address.
5 Now, with respect to this specific witness, the one that's due in
6 the courtroom just now, according to the 65 ter rule, they envisage that
7 he will be testifying for two hours about a specific incident, and then
8 there's a paragraph there describing that incident and explaining why
9 this particular witness has been called in to testify.
10 Now, in the existing list of witness, which was revised in
11 October, we received information that this witness would take up four
12 hours of testimony, but they did not let us know whether he was going to
13 testify about other matters other than the ones contained in the summary.
14 Next, we received a list of about 46, I think, or, rather, 65 ter
15 documents which the Prosecution might be presenting and tendering and
16 discussing with this witness. On the first list, primary list, there are
17 four documents that they said they'd like to present and tender through
19 I understand all that, but here's where the problem arises: When
20 the witness enters the courtroom and we receive the proofing notes linked
21 to his testimony, the testimony of that witness -- well, let me be
22 specific. We received it last night at 2200 hours.
23 Now, what is an additional problem for me is the fact that the
24 witness gave a statement to the Prosecution in 2003, and it covered 25 or
25 26 typed-out pages about completely different events, and just quite
1 literally one paragraph of that statement speaks about why he has been
2 called to testify in this particular trial. And then last night we
3 received a densely typed-out text, over three pages, of his proofing
4 notes linked to what was stated in the summary in general but, in fact,
5 much broader than the one paragraph that is initially contained in the
6 first statement that we were provided for this witness's testimony.
7 Now, when I talked to Mr. Harmon, and I told him at the beginning
8 of the week that I was afraid that the proofing notes would be something
9 quite new for me in principle, and his explanation was that the problem
10 was, first of all, because this witness could not receive permission from
11 his country to come in before and, secondly, because it was only latterly
12 that the Prosecution came into possession of documents relevant for this
14 Now, fully conscious of both these facts, I would like to tell
15 you of my concerns for the future, Your Honours. The fact is that many
16 documents relevant for this trial were obtained by the OTP at the last
17 minute, at the eleventh hour, which was when they supplied them to us, at
18 least that's been the practice for the past few months, and this will
19 bring us into the situation that crucial witnesses for this trial, just
20 prior to entry into the courtroom, will provide new information which
21 should be their statements under 66 -- Rule 66(A)(ii), and although this
22 comes under the guise of proofing notes, they are, in fact, completely
23 new statements.
24 Now, I discussed this situation with Mr. Harmon, and I'd like to
25 ask you the following: So that our rights are not violated under
1 Article 21, which would provides us with enough time to prepare --
2 Article 21 of the Statute, I mean, which would provide us with enough
3 time to prepare our defence, I would like to ask that these additional
4 pieces of information or additional statements or additional proofing
5 notes be compiled through their offices in the field so that we can
6 receive them at least a fortnight before the witnesses come into court,
7 because otherwise I'm afraid that I and my team will be faced with a
8 situation where, when the witness comes into court, we receive this
9 information or completely new information just 12 hours beforehand. We
10 cannot consult our client, neither can we consult our investigators in
11 the field and prepare properly for the cross-examination.
12 So as I say, with this particular witness, we do have tomorrow to
13 consult our client, so these are alleviating circumstances. But if this
14 situation crops up again, I really will have to ask the assistance of the
15 Trial Chamber to react because we are being given new information.
16 That's what I wanted to say before the witness comes into court. Thank
18 JUDGE MOLOTO: Madam Sutherland, did you have any response?
19 MS. SUTHERLAND: Your Honour, dealing with this specific witness
20 at the moment, Mr. Tesic, he was scheduled for four hours in the revised
21 witness list. The proofing notes were provided yesterday, last evening,
22 at 10 p.m.
23 minutes before the notes were sent to Mr. Lukic.
24 It's arisen because the witness didn't arrive until Monday
25 afternoon. He then wasn't seen by the Office of the Prosecutor until 4
2 was brought in the following day, on Tuesday, to review the statements
3 and correct anything he wished to correct, and then we also had to deal
4 with a number of documents.
5 Now, the Defence say that, and I quote, "they were obtained by
6 the OTP at the last minute." Your Honour, these were documents that we
7 received six months ago, very recently, at a request to an RFA for
9 as a result of a number of requests to Serbia.
10 Mr. Lukic wishes to make the general statement that he doesn't
11 want this to happen again, and he would rather us do the proofing through
12 the field office. Your Honour, that's a matter for the Prosecution to
13 deal with. What I would say is this: The documents were disclosed to
14 the Defence back in May. Now, if they -- they could have and could have
15 made a request to us to speak to Mr. Tesic any time between May and now
16 about the documents that they had disclosed to them back then.
17 I can advise the Defence that we are not going to be leading any
18 evidence from Mr. Tesic outside what's contained in the Rule 65 ter
19 summary. There were additional information contained in the proofing
20 notes because that was what the witness had advised us of during the
21 proofing session. Those matters won't be led from him in evidence.
22 I expected to take four hours with Mr. Tesic today, and the
23 Defence then were not going to be cross-examining until Monday. The
24 proofing note was two and a half pages, Your Honour, not three. It went
25 into the third page, but it was two and a half pages, which obviously
1 they can sight-read to their client. It's not a position that we want to
2 be put in, but the witness has only come two days before they're about to
3 testify. This witness had a very lengthy statement, as Mr. Lukic
4 referred, that only a very limited information in relation to what he's
5 going to testify about, but the witness still has to be in a position to
6 review all of the information and the statements and the attachments to
7 those statements that he's given to the OTP before he testifies.
8 And we're in a catch-22 situation because we're actually also at
9 a disadvantage by having to go through a number of documents which we
10 have only recently received from the Republic of Serbia
11 It's obviously not something that we want to happen, that we give a
12 proofing note to the Defence at five to 10.00 on a Wednesday night and
13 then they would be expected to cross-examine. I mean, we -- we would
14 not -- we would not want that to happen in any event. But in relation to
15 this specific witness, they've had the documents for six months. They
16 could have contacted us and asked to arrange to meet this witness in the
17 last six months, if they so chose. They had the information that they
18 can read to their client this morning so that -- and they can be ready
19 for cross-examination on Tuesday.
20 I think I've covered all the matters that the Defence raised. If
21 I haven't, then --
22 JUDGE MOLOTO: I don't think so, but Mr. Lukic, do you have any
23 response, any reply?
24 MR. LUKIC: [Interpretation] I just wanted to make a correction in
25 the transcript. When I -- on page 65, line 14, my proposal was, and I
1 don't think that was properly translated from the B/C/S, that my proposal
2 was that this new -- these new proofing notes be given us a fortnight
3 before the witness comes into the courtroom, that that would mean a great
4 deal to us and would give us enough time to prepare for the
6 And now a brief comment. We did receive the documents in the
7 final stages, that is to say, before the trial, we received some in May,
8 some in October, so that's not what I'm challenging, and it's not that we
9 couldn't have asked to talk to the witness. But what I am challenging is
10 that as a rule the Prosecution is duty-bound to provide us with material
11 under 66(A)(ii) which is called the witness statement and subsequent
12 statements, if there are any. And the witness dates to 2003 or 2007 when
13 he was put on the list and the summary was made, the OTP was not
14 contacted, whereas we are now given a new -- been given a new document
15 which is, to my mind, a statement under Rule 66, although it's called
16 proofing notes. That's the title of it. But actually it's a statement.
17 JUDGE MOLOTO: On that point, Mr. Lukic, Madam Sutherland says
18 she's not going to lead the witness on those matters raised in the
19 proofing note which are outside the statement summary.
20 You were not here at the beginning of the day, Madam Sutherland.
21 We are stopping at 1.00 today.
22 MS. SUTHERLAND: Yes, Your Honour, I've been made aware of that.
23 JUDGE MOLOTO: Thank you very much. Okay. I hope both parties
24 are aware of each party's position and you can resolve this difference,
25 because at this moment the Chamber has not been asked to do anything
1 about it.
2 You may call your witness.
3 MS. SUTHERLAND: Thank you, Your Honour. The Prosecution calls
4 Borivoje Tesic.
5 [The witness entered court]
6 MS. SUTHERLAND: Your Honour, Mr. Tesic will testify about events
7 that relate to paragraph 44(D) of the revised second amended indictment.
8 JUDGE MOLOTO: Thank you.
9 THE INTERPRETER: Microphone, please.
10 JUDGE MOLOTO: Good afternoon, sir.
11 THE WITNESS: [Interpretation] Good afternoon.
12 JUDGE MOLOTO: May the witness please make the declaration.
13 THE WITNESS: [Interpretation] I solemnly declare that I will
14 speak the truth, the whole truth, and nothing but the truth.
15 JUDGE MOLOTO: Thank you very much. You may be seated.
16 MS. SUTHERLAND: Your Honour, I'd like to flag up that during
17 Mr. Tesic's evidence, we will be required to go into closed session
18 because some of the relevant documents are subject to current litigation.
19 That's just a matter for you and to alert the public.
20 JUDGE MOLOTO: Thank you.
21 WITNESS: BORIVOJE TESIC
22 [Witness answered through interpreter]
23 Examination by Ms. Sutherland:
24 Q. Mr. Tesic, can you please state your name for the record.
25 A. My name is Borivoje Tesic.
1 Q. When were you born?
2 A. I was born on the 22nd of April, 1957, in Ljubovija, the
3 Ljubovija municipality, the Republic of Serbia
4 Q. I want to deal briefly with your military career. In 1979 you
5 graduated from the JNA Military Academy
6 1979 until 1990, you were a company, and then platoon commander. In
7 August 1990 you were assigned to the Guards Motorised Brigade as a
8 battalion commander; is that correct?
9 A. Yes.
10 Q. In the summer of 1993, you were appointed to the post of
11 operations officer in the Guards Brigade Staff; is that correct?
12 A. I was appointed an operations man in the command of the
13 Guards Brigade, so that's a slight correction, not exactly the way you
14 put it.
15 Q. Prior to the end of April 1992, who was the Guards Brigade
16 subordinated to?
17 A. Could you repeat that question, please. Prior to the end of
18 1992, did you say?
19 Q. Yes. Who was the Guards -- who did the Guards Brigade report to?
20 What body -- what body of -- or what authority did they report to?
21 A. The Guards Brigade, in 1992, was within the composition -- well,
22 it was an independent unit under the Ministry of Defence.
23 Q. And after the JNA transformed into the VJ, who were the
24 Guards Brigade then subordinated to?
25 A. Later on the Guards Brigade, when the corps of special units was
1 established, as one of its units, became part of that body and performed
2 tasks within the frameworks of the corps of the special units of the Army
3 of Yugoslavia
4 Q. When was the special units corps established?
5 A. At present I can't say because I don't have the data.
6 Q. Upon the transformation of the JNA to the VJ, you said that it
7 came under the special corps unit. Who did the special corps -- who was
8 the special corps subordinated to?
9 A. The corps, according to hierarchy, was linked to the
10 General Staff of the Army of Yugoslavia
11 Q. In 1995 you were appointed chief of operations attached to the
12 staff of the Guards Brigade; is that correct?
13 A. Yes.
14 Q. And in 1997 you became the chief of staff of the Guards Brigade
15 and held the rank of colonel; is that correct?
16 A. Yes.
17 Q. In the year 2000 you were appointed to the post of deputy
18 commander of the Guards Brigade; correct?
19 A. Yes.
20 Q. When did you leave the JNA?
21 A. I left the JNA on the 31st of March, 2004.
22 Q. What was your next position?
23 A. On the 1st of April, 2004, I was appointed to the post of deputy
24 commander of the Gendarmerie of the Ministry of the Interior of Serbia.
25 Q. How long did you hold that post for?
1 A. I held that post until October 2004. I think it was October,
2 yes, when I took over the duty of commander of the Gendarmerie of the
3 Ministry of the Interior of the Republic of Serbia
4 Q. How long did you stay in that post?
5 A. I stayed in that post until the 31st of June, 2008, when I
6 pensioned off unlawfully - I can say that now, but that's up to the Court
7 of Serbia
8 the Interior, Mr. Jokic, I received the decision on retirement by the
9 director of the police of Serbia
10 Q. You said the 31st of June. We know there are only 30 days in
11 June. Did you mean the 30th of June, 2008?
12 A. Your Honour, I apologise. I thought that that month had 31 days,
13 but no, you're right, the 30th of June.
14 Q. During the proofing yesterday you oversaw the production of two
15 organisational charts, did you not?
16 A. Yes.
17 Q. One of the charts that you marked with the letter A was the
18 organisational chart for the Special Unit Corps as at December 1993, and
19 the second chart which you marked B was an organisational chart for the
20 Guards Brigade as at December 1993; is that correct?
21 A. Yes.
22 MS. SUTHERLAND: Your Honour, I would seek leave to add both of
23 these organisational charts to the Rule 65 ter list, with your leave,
24 pursuant to paragraph 15 of your decision of the 17th of November, 2008
25 I would ask that they be given Rule 65 ter numbers 9377 and 9378
1 respectively. These organisational charts were disclosed to the Defence
2 last night.
3 MR. LUKIC: No objection, Your Honour.
4 JUDGE MOLOTO: Thank you very much, Mr. Lukic.
5 65 ter numbers 9377 and 9378 are added to the 65 ter list of
7 MS. SUTHERLAND: Yes, Your Honour.
8 JUDGE MOLOTO: Thank you.
9 MS. SUTHERLAND: If we can call up 65 ter number 09377.
10 Q. Mr. Tesic, if you look at the screen in front of you, is this the
11 organisational chart for the Special Unit Corps that you prepared or had
12 prepared yesterday?
13 A. There's no change on the screen. It's fine now. I can see it.
14 Yes, that is the organisational chart of the Special Units Corps, at
15 least in part.
16 JUDGE MOLOTO: Can it be enlarged? Thank you.
17 MS. SUTHERLAND:
18 Q. Now, Mr. Tesic, the Special Unit Corps, as you've drawn it on the
19 organisational chart, consisted of the -- first of all, if we can deal
20 with the units that -- or the brigades that are within the Special Unit
21 Corps. What are the main tasks of the Guards Brigade?
22 A. The Guards Brigade, just like the other units of the Special Unit
23 Corps, the organisational unit of the corps, received tasks and
24 assignments to maintain the unit's combat-readiness, to perform its
25 duties and other tasks linked to the remit of the Special Unit Corps,
1 which I wasn't fully -- I did not have full information about, and
2 therefore I would not like to expound here in greater detail on.
3 Q. And can you tell the Trial Chamber generally what the main tasks
4 of the 72nd Special Brigade were? Generally speaking, what was their
5 primary task?
6 A. I think it would be the commanders of the 72nd and 63rd Brigade
7 that made up the Special Unit Corps who would be better placed to answer
8 that question than me.
9 Q. I'm not talking specifically about December 1993. I'm talking
10 generally. Do you have any idea what the 72nd Special Brigade unit does,
11 the brigade does?
12 A. Your Honours, I never had any documents which would prescribe the
13 work of the unit for the commander and the members of the unit, so I
14 really couldn't talk about things that I'm not absolutely certain of.
15 Q. With respect to the 63rd Parachute Brigade, do you generally know
16 what they are assigned to do within the Special Unit Corps?
17 A. I was an operations officer in the Guards Brigade, so I really
18 didn't deal in problems of the nature that you're asking me about, so I
19 can't really answer your question.
20 Q. And do you know in respect of the 1st Armoured Brigade, what
21 their tasks are? Not their specific -- not any specific task, but
22 generally what that brigade does for the -- within the Special Unit
24 A. Those tasks are clearly described, and I'm sure there's a
25 document regulating all this, the rules of service in that unit. But
1 with all due respect to you and the Trial Chamber, once again I must say
2 that I can't tell you exactly what this brigade did within the frameworks
3 of the corps. It would be guesswork and speculation on my part.
4 Q. With respect to the Headquarters Support Units, do you know what
5 tasks they performed?
6 A. No.
7 Q. You mentioned that -- I'll start my question again. With respect
8 to the Special Unit Corps, do you know where they obtained their
9 logistics from?
10 A. All the units of the rank of a brigade had their own logistics.
11 The corps command did not have its own logistics, and the Guards Brigade
12 was its logistical support, so that the logistical rear support would be
13 there for the brigade.
14 JUDGE MOLOTO: Madam Sutherland, it is 1.00.
15 MS. SUTHERLAND: Yes, Your Honour. Perhaps we could tender this
17 JUDGE MOLOTO: The exhibit is admitted into evidence. May it
18 please be given an exhibit number.
19 THE REGISTRAR: Exhibit P351, Your Honours.
20 MS. SUTHERLAND: Thank you, Your Honour.
21 JUDGE MOLOTO: P300 and?
22 THE REGISTRAR: I apologise, P351.
23 JUDGE MOLOTO: Thank you. I'm sorry about that.
24 Sorry, sir, unfortunately we have to break now for reasons that
25 are beyond our control.
1 You are warned to come back here on Monday, the 24th of November,
2 at 9.00 in the morning, in this same courtroom. And while you are out of
3 court, you are warned not to discuss this case with anybody, not your
4 lawyer, not anybody, okay. Thank you very much.
5 Court adjourned until Monday, the 24th of November, 9.00 in the
7 --- Whereupon the hearing adjourned at 1.00 p.m.
8 to be reconvened on Monday, the 24th day of
9 November, 2008, at 9.00 a.m.