081002ED

Page 26547

1 afternoon everyone.

2 JUDGE AGIUS: Likewise.

3 WITNESS: MICO GAVRIC [Resumed]

4 [Witness answered through interpreter]

5 Cross-examination by Mr. Thayer: [Continued]

6 Q. Good afternoon, sir.

7 A. Good afternoon.

8 Q. Based on what you told us yesterday, I wanted to follow up on a

9 couple of points, and to do that I just want to review with you some of

10 the things you said yesterday and make sure that we have your best

11 recollection of some of these events. Okay?

12 A. Very well.

13 Q. Now, yesterday Mr. Bourgon asked you the followed question, and

14 this is page 26508, referring to Colonel Lazic:

15 "Question: To your knowledge, sir, did this colonel have the

16 authority to order you to fire the guns of the Bratunac Brigade?"

17 And your answer was: "He arrived with an order. He had been

18 ordered by someone from the corps that the artillery be used. That is

19 for certain."

20 And then I asked you the following question, and this was at page

21 26535:

22 "Question: Now, you testified earlier today that Colonel Lazic

23 arrived with an order, and I just want to clarify that with you. Is it

24 your testimony that he arrived in person with an order?"

25 And your answer was: "Colonel Lazic came personally to the

Page 26548

1 brigade command. This is why I was trying to remember how that tallied

2 with his arrival. It is certain that on that day when my report was

3 drafted, there was a report sent to the brigade command and I presume he

4 arrived there personally conveying someone else's order from the corps

5 command. Either that, or in the meantime, he was in contact with someone

6 from the corps but I had no insight into that."

7 And just to complete this portion of your testimony, you

8 testified a little while later at page 26540: "Now, I just realised when

9 I rewound the whole film, he probably arrived to actually hand over the

10 duties in the Bratunac Brigade on that day." And then you repeated four

11 pages days later: "I believe that day Colonel Lazic on behalf of the

12 Drina Corps and carried out the changeover of the brigade commanders."

13 Let me just give you a couple of moments to let the

14 interpretation catch up and let that sink in.

15 A. Okay.

16 Q. Do I understand you correctly, sir, that it was only yesterday

17 that you recalled for the first time that Colonel Lazic was present in

18 the Bratunac Brigade on 25 May 1995 because of the changeover ceremony?

19 A. I can state for sure that Colonel Lazic on that day arrived in

20 Bratunac. Yesterday, when I told you that I recalled that on the 25th of

21 May 1995 Colonel Blagojevic received his duty, in keeping with that, it

22 is for that reason that he was there since someone on behalf of the

23 command had to be present during the changeover between the commanders.

24 Therefore, I think, although I don't know it for certain, that on that

25 day Colonel Lazic was also the Bratunac Brigade commander since the

Page 26549

1 brigade was in between commanders at that point in time.

2 Q. Okay. Well, let's explore that a little bit, sir. The shells

3 that your brigade fired at the safe area were fired at approximately 7.00

4 p.m. in the evening, 1907 hours to be specific. Right? I can show you

5 the report if you don't remember that time.

6 A. I saw that yesterday in the report, but I can't recall it off the

7 cuff without the report, although I reread the report twice yesterday.

8 Q. Okay. Now, let's have P216 on e-court, please. Sir, you've

9 raised this issue of the handover, so I want to follow up on that with

10 you. And if I may have the assistance of Madam Usher, I can the e-court

11 version may be somewhat illegible so I would the witness to have the

12 original version.

13 Sir, I'm handing you the handwritten original copy that was

14 drafted by Colonel Blagojevic of this document, as well as the

15 typewritten version of it that went out. Just ask you to take a look at

16 that. We can see on the e-court in paragraph 2 the print is a little

17 washed out, that's why I wanted you to be able to look at the original.

18 Do you see paragraph 2? It might be easier to read the

19 typewritten version, sir. We have paragraph 1: "The enemy did not

20 conduct combat operations against our forces." And in paragraph 2: "Our

21 forces did not open fire towards the demilitarised zone." Do you see

22 that, sir?

23 A. Yes, I do.

24 Q. And then do you see where it says at 1000 hours, that's 10.00 in

25 the morning; correct?

Page 26550

1 A. Yes.

2 Q. "The transfer of duties of commander of the 1st Bratunac Light

3 Brigade was carried out in the presence of the Drina Corps commander

4 Major General Zivanovic and the president of the Bratunac municipal

5 assembly Mr. Simic." Do you see that, sir?

6 A. I do.

7 Q. So we can clearly see it was General Zivanovic who was there from

8 the corps; right?

9 A. You are asking me about things I did not need to know and I can

10 only repeat my answer when I was examined by Mr. Bourgon. He asked me

11 what were the duties of chief of artillery. I said then that it is a

12 staff officer who in all aspects is subordinated to the brigade

13 commander, merely assisting the commander when commanding his artillery.

14 Q. Okay. Sir, well, let me just ask you, do you have any reason to

15 doubt the accuracy of that daily combat report that General Zivanovic was

16 there at 10.00 in the morning for the handover?

17 A. There is no need for me to argue either way. As the chief of

18 artillery, it wasn't up to me to follow who was there, who was leaving,

19 who kept notes and who was reporting. It was someone else's duty in the

20 brigade.

21 Q. Thank you, sir. We are done with that document. And again we

22 see that that was sent out at about 4.30 in the afternoon.

23 Now, again, your howitzers fired those shots at 7 minutes after

24 7.00 that meaning. I'm going to ask you, sir -- do you want to see the

25 report for the time?

Page 26551

1 A. There is no need to.

2 Q. Okay. 1907 hours, your howitzers fired those shells. My

3 question to you, sir, is, do you think that if Colonel Lazic in fact were

4 there, do you think he was hanging around the Bratunac Brigade command

5 for nine hours after the changeover ceremony or do you think your memory

6 might be mistaken about him physically being at the brigade headquarters

7 at that time?

8 A. I suppose you don't think I came here to make up things.

9 Q. Sir, I would just ask you to please answer the question that I

10 put to you.

11 A. I don't think anything of it. I have no opinion about it. I was

12 engaged in my duties. The rest was with some other people who may have

13 been tasked to follow at what time Lazic arrived and where he went. It

14 wasn't part of my duties.

15 Q. Well, let me share with you a little bit about what Colonel Lazic

16 told this Trial Chamber about this order. This is at page 21858 to 59 of

17 the transcript. He said: "I did not have the right to order, to issue

18 orders, and this is evident. I was not an organ who could issue orders.

19 How come I mention -- my name is mentioned with regard to this order

20 given the fact that both of them were professional officers and knew very

21 well that they were not supposed to receive orders from somebody who did

22 not have the right to issue orders. How and what happened in the

23 operations room and how the duty operations officer passed on the order

24 referring to me and mentioning my name, I really wouldn't know. I only

25 know that I did not have the right to issue this order."

Page 26552

1 I then asked Colonel Lazic if he would have been in a position to

2 pass on as opposed to issuing that order and he replied, this is at page

3 21860: "I've said it that I cannot remember such a possibility although

4 I'm not ruling it out. I'm not ruling this out but I'm saying that I

5 can't remember having passed this order personally on. I may have been

6 in the operations room when the duty officer was passing on this order

7 and he may have said something to the effect, 'here you have Colonel

8 Lazic here, so execute the order.' That may have happened but I don't

9 have any recollection of that and that's why my answer was what it was."

10 So bear with me, sir, I just need to complete some of this

11 testimony from Colonel Lazic so you understand where I'm coming from when

12 I put the question to you. I then asked Colonel Lazic." Just as a

13 points of clarification, Colonel, as a matter of how the VRS and

14 organised armies operate, isn't it the case that simply as chief of

15 operations and training you would have been in a position to pass on such

16 an order from your superior command to the Bratunac Brigade? "

17 And his answer was: "I personally believe that if the Main Staff

18 had issued an order to this effect, then the order was passed either to

19 the commander or the Chief of Staff. I don't believe that somebody would

20 have looked for me to communicate the order to me and to ask for me to

21 pass it on. That's why I'm saying that it is possible that I was in the

22 operations room and that the duty officer said something to the effect,

23 here, Milenko Lazic is here and that's why my name is mentioned because

24 the two senior reporting officers had to mention somebody who could have

25 passed on the order. And I personally say and I repeat, I don't know how

Page 26553

1 this could have occurred because I had not issued the order."

2 A. As far as I know and as far as I could tell from the document it

3 is the 25th of May at 7.10 and I believe it was forwarded at 8.10. Do

4 you think that at that point in time we could have been contemplating the

5 situation nowadays and firing at someone we should not have. I stand by

6 what I said that Colonel Lazic was at the Bratunac Brigade command, and I

7 heard that it was on his orders that fire should be opened. Whether that

8 stemmed from the corps command or whether it came from him personally, I

9 can't say. Since I wrote that down and since my commander wrote it down

10 and it was his first day on duty, it must be true. I don't think he

11 would have been crazy enough to write things down that did not actually

12 take place, and fire at things he shouldn't have been.

13 Q. Now, sir, you just said that "I heard that it was on his orders

14 that fire should be opened." Who did you hear that from, sir, and when?

15 A. It must have been his order to the brigade commander, but I can't

16 recall such details. I'm sorry, I recall many things but I would have

17 shared this had I remembered it. It is a bit hazy and therefore I can't

18 deny or confirm things I'm not 100 percent sure of. What I am sure of,

19 however, I will tell you.

20 Q. Okay. Let me just make sure that the record is clear. Is it

21 your testimony that you don't remember who gave you the order to fire

22 those shells on the safe area?

23 A. First of all, I don't remember whether I ordered this to the unit

24 or whether it was ordered by the brigade commander himself. That little

25 piece of information is missing from my memory. Therefore I can't argue

Page 26554

1 in favour of it.

2 Q. Sir, I want to follow-up now on some questions which Mr. Karnavas

3 put to you during your Blagojevic testimony, after the Prosecution had

4 shown you the two reports that we are talking about. And he read to you

5 an excerpt from a Dutch organisation's report about what was going on

6 that day to see if that might jog your recollection as to why Colonel

7 Lazic may have ordered you to shell Srebrenica. This was at the

8 transcript page 8609 of the Blagojevic trial.

9 And this is what he read to you: "Much of the Bosnian/Serb

10 revenge following the NATO bombing of Pale on 25 and 26 May concentrated

11 on Sarajevo. But the eastern enclaves were not spared. This also had

12 repercussions on the situation around Srebrenica. On 25 May, as

13 immediate retaliation, a number of shells landed close to a school in

14 Srebrenica. There were one dead and three wounded. The VRS also opened

15 fire on the southwestern part of the enclave."

16 Now, sir, Mr. Kar navas put the question to you: "According to

17 the report there was a retaliation. Does this now cause you to recollect

18 why you might have been ordered by Colonel Lazic to fire the artillery as

19 you so indicate in your report?"

20 Your answer was: "I can't recall. I really can't recall that

21 detail. I'm sure we fired. I know we were targeted that day from a tank

22 and that we returned anti-armour fire. One of our artillery pieces was

23 destroyed. Some of my men were injured, but I'm sorry, I really can't

24 remember. I don't know."

25 Now, sir, you've managed to recall some details as you sat here

Page 26555

1 yesterday, some new details, so I want to know first of all if you stand

2 by the answer I just read back to you or whether your recollection has

3 changed regarding the events that Mr. Karnavas recited to you.

4 A. My answer stands, the same way I answered Mr. Karnavas. I don't

5 recall. I do remember that there was an accident, that three of my men

6 were injured and the piece was destroyed. I know our firing position was

7 targeted. As for the rest, I don't remember and I can't state anything I

8 don't know.

9 Q. Okay. Well, let's see if we can refresh or jog your recollection

10 a little bit about the events of that day, what was going on in the

11 brigade and what your particular activities were. Can we have 65 ter

12 3359, please. Okay. Sir, do you see the document in front of you,

13 nothing new, same document we've been talking about?

14 A. Yes, I do.

15 Q. Now, the first paragraph obviously we discussed yesterday. I

16 want to turn your attention to paragraphs 2 through 4 of this document.

17 Paragraph 2 indicates that brigade units are ordered to be in full combat

18 readiness. Work obligation battalion is mobilised and is ready for

19 engagement. Then it lists where the brigade commanding officers are.

20 One of them is at the command post and some of them are with subordinate

21 units. It refers to measures being taken pursuant to an order in

22 paragraph 3, and in paragraph 4 it states that the brigade command

23 monitors the situation and is ready to carry out combat activities with

24 its units as situation develops. Do you see all that there, sir?

25 A. Yes.

Page 26556

1 Q. Now, it's clear from this document, sir, is it not, that

2 something significant has occurred to place the brigade on full combat

3 readiness?

4 A. I repeat, I remember the day vaguely. What happened happened and

5 for me it was a grave moment, and I'm really not able to remember any

6 further details of it.

7 Q. Okay. Well, this interim combat report went out at 9.10 in the

8 evening. The regular combat report that we looked at a few moments ago

9 when out at about 4.30 in the afternoon, and if you recall, it listed

10 everything as relatively normal or what passes for normal during wartime.

11 The enemy did not conduct combat operations against our forces, our

12 forces did not open fire towards the demilitarised zone. You remember

13 that language from the regular combat report; correct?

14 A. Almost every combat report contained that. Regular combat

15 reports were sent during that period and as I say, this is an interim

16 combat report which was sent because something must have certainly

17 happened after that time. Otherwise, this interim combat report would

18 not have been drafted in the first place.

19 Q. That's exactly my point, sir. Something happened between 4.30

20 and about 9.00 p.m. that night when that interim combat report was

21 issued.

22 Now, there's an order that's referred to at paragraph 3, and I

23 don't suppose you recall just by looking at that and looking back in time

24 what that order was about, do you?

25 A. This order is an order of a superior command, and it was not for

Page 26557

1 my eyes. It was for other people, the security officer, the commander,

2 some other people were supposed to read it.

3 Q. Okay. Well, let's look at 65 ter 3370. You see the document in

4 front of you, sir?

5 A. I do.

6 Q. Please take a moment and read it. With Madam Usher's assistance,

7 I'd also like to show you the original because as we can see on the

8 e-court version, the time stamp has been smudged out.

9 Now, sir, have you had a chance to read the document?

10 A. Give me a moment, please. Yes.

11 Q. Okay. What we have here is an order dated 25 May 1995 from

12 General Zivanovic, and if you could just look at the time stamp and

13 indicate when that was received and processed?

14 A. 25 May, 10.30.

15 Q. That is in the evening, sir?

16 A. It was processed in the evening.

17 Q. Okay. Now, this document indicates that today at 1558 hours, the

18 forces of the NATO pact have carried out a fire attack against the

19 Jahorinski Potok warehouse and it indicates that General Zivanovic wants

20 to raise the units of the Drina Corps to the highest level of combat

21 readiness. You see that, sir, in paragraph 1 of the order?

22 A. Yes.

23 Q. And he says the opening of fire shall be regulated by the Drina

24 Corps through the Grabovica signals table. My first question to you,

25 sir, is what is the Grabovica signals table, if you know?

Page 26558

1 A. I've never seen this order before, so I would not be able to tell

2 you the meaning of this Grabovica signals table.

3 Q. Now, if we look at the last line of the order, it refers to

4 implementing the relocation of the artillery from the basic firing

5 positions to reserve firing positions and turning the basic firing

6 positions into decoy ones. And this we can see was in fact distributed

7 to your brigade as well, sir.

8 Now, you are telling the Court that you don't remember seeing

9 this order. My question is, do you recall taking any steps that would be

10 consistent with responding to this order from General Zivanovic? For

11 example, relocating the artillery in your brigade.

12 A. I know that at one point an order was issued to make up decoy

13 firing positions, which we did.

14 Q. Now, I want to show you another document. It's 65 ter 3788, sir.

15 And I want you to please take a moment and read this document. When

16 you've had a chance to read it, including the order, please let us know.

17 JUDGE AGIUS: I think he is ready.

18 THE WITNESS: [Interpretation] I'm done reading.

19 MR. THAYER:

20 Q. Now, sir, we have here another order from General Zivanovic,

21 again dated 25 May 1995. And if we can scroll to the top of the page of

22 the B/C/S, do you see where it says that it was received on May 26th at

23 20 minutes after midnight?

24 A. 26 May, yes.

25 Q. Now, this document states that the NATO aircraft fired on the

Page 26559

1 facilities of the VRS and that the VRS responded accordingly with

2 activities against the selected targets. If we move to the order, if you

3 look at paragraph 2 it states: "In case the UNPROFOR forces continue

4 with the activities against our military targets and civilian targets,

5 all corps units have to be in readiness to fire at UNPROFOR checkpoints

6 and bases."

7 And if we go down to paragraph 4, referring to the anti-aircraft

8 assets, "open fire at the UNPROFOR aircrafts pursuant to the

9 authorisation of the VRS Main Staff..."

10 My question again to you, sir, is does reading this order refresh

11 your recollection at all about the events of 25 May and any actions you

12 took as chief of artillery of the Bratunac Brigade in response to those

13 actions and in response to this order?

14 A. I have just told you these combat orders that arrived from the

15 corps commander were taken to the brigade command directly. These combat

16 reports never reached me. There was no need for them to reach me.

17 Everything that was ordered within the framework of the brigade, what the

18 brigade commander ordered us, we were supposed to implement. And I'm

19 telling you again that I had men injured, men in hospital, and it's very

20 hard for me to remember any such details. Those were difficult times for

21 me.

22 Q. Now, sir, if we may have 3D506 on e-court, please. I want to

23 show you one more document in connection with this topic. This is a

24 regular combat report from the Bratunac Brigade dated 26 May 1995. And

25 we have this language, do you see at paragraph 1: "Enemy forces did not

Page 26560

1 carry out any combat activities or provocative actions against our

2 positions." Do you see that, sir?

3 A. Yes.

4 Q. And do you see paragraph 2: "Combat readiness of our units

5 complies with measures ordered by the superior command." Do you see

6 that?

7 A. Yes.

8 Q. Now, there's no mention of any tank firing from Budak at your

9 artillery firing position, is there?

10 A. This is a report for the 26th of May, and what you are talking

11 about happened on the 25th.

12 Q. I understand that, sir. My first question to you is do you see

13 anything here on the 26th, considering this was the day after a very busy

14 day for you, do you see anything in this report referring to any tank

15 fire being levelled at your firing position? There's nothing in there,

16 is there, sir?

17 JUDGE AGIUS: Yes, before you reply to the question, Ms. Fauveau.

18 MS. FAUVEAU: [Interpretation] I would like to know what the

19 basis for this question is. I did not hear any evidence from the witness

20 about fire being opened on that day.

21 JUDGE AGIUS: Yes. Mr. Thayer? Thank you, Madam Fauveau.

22 MR. THAYER: Mr. President, this is the question I've just put to

23 the witness. I think the purpose of my question is quite clear. I think

24 the witness himself just stated that this has to do with the 26th and the

25 firing that he was talking about occurred on the 25th. And I'm just

Page 26561

1 trying to establish that there is nothing in the report for the day after

2 concerning any firing by any tank just in case it didn't make it into the

3 report on the 25th, which I think the witness will agree also contains no

4 reference to a tank firing on the brigade --

5 JUDGE AGIUS: Stop, stop, there is a limit which you shouldn't

6 exceed and you've just exceeded it now. You should have stopped at the

7 end of the previous sentence. Let me confer with my colleagues.

8 [Trial Chamber confers]

9 JUDGE AGIUS: We believe that this point has been belaboured a

10 little bit too much. We don't really see the point of pressing with this

11 question unless you insist, Mr. Thayer --

12 MR. THAYER: Mr. President --

13 JUDGE AGIUS: -- and unless it was a stepping stone for your next

14 question or the one after. I don't know.

15 MR. THAYER: It was my last question on this topic and so I'm

16 prepared to move on absolutely.

17 JUDGE AGIUS: Then I think you can move on.

18 MR. THAYER:

19 Q. Now, sir, I want to turn your attention to the Krivaja-95

20 operation. Your brigade no doubt received the warning order and the

21 order for active combat operations from the corps both dated 2 July 1995

22 signed by General Zivanovic. Do you recall that, sir?

23 A. All combat orders from the corps came to the brigade commander

24 rather than to the chief of artillery.

25 Q. And then, certainly the relevant portions of those orders would

Page 26562

1 be communicated to you as chief of artillery; correct?

2 A. No. There was regular briefing by the brigade commander and if I

3 was present at those regular briefings, I know that at a certain point in

4 time the commander went to Vlasenici and I didn't know anything further

5 until the 5th in the evening or the 6th in the morning. I can't be sure

6 of that.

7 Q. Okay. Let's just look at a couple of documents very quickly, I

8 just want to ask you a couple of questions. May we have 65 ter 106,

9 please. Sir, this is the warning order from the corps regarding

10 Krivaja-95. If we go to page 2 of the original document, paragraph F,

11 there's a reference to the 5th MAP shall detach all types of artillery

12 weapons that will be engaged in support of the forces carrying out active

13 combat operations. My only question about this document to you, sir, is

14 what it the 5th MAP?

15 A. This is the mixed artillery regiment which was on the strength of

16 the Drina Corps. To be more precise, it was attached to the corps.

17 Q. Okay. If we may have 65 ter 107, please. Sir, what we have here

18 is the order for active combat operations Krivaja-95 from the corps. If

19 we can go to page 4 of the B/C/S, please, and it's page 5 of the English.

20 Sir, can you see at number 6 under "artillery support" it refers

21 to composition of KAG. Do you see that, sir?

22 A. The corps artillery group.

23 Q. And what is that and what was it composed of?

24 A. All units engaged in operations had the necessary fire support.

25 The Bratunac Brigade, i.e., the brigade artillery group did not have to

Page 26563

1 and indeed did not provide any artillery support to these units.

2 Q. Well, do you know what the composition of the Drina Corps, the

3 KAG was?

4 A. Those who were engaged in operations, you mean? I don't know. I

5 wouldn't be able to tell you.

6 Q. Now, there's a reference here to during preparatory fire to

7 neutralise the enemy targets as per plan for preparatory fire, and there

8 are numerous references throughout this combat order to the artillery

9 plan. My question to you, sir, is did you ever review that artillery

10 plan for this operation?

11 A. Two days ago I saw that plan for the first time, if you are

12 referring to this plan under the name Susica, as far as I can remember.

13 Q. I'm just asking you, sir, with respect to the plan Krivaja-95 do

14 you ever recall seeing the artillery plan for that operation?

15 A. Do you really think that Krivaja was lowered at such a low level

16 that all of us officers in the brigade were actually aware of it?

17 Q. My question was simple, sir. Just yes or no. Did you see the

18 plan or --

19 A. No, no, no.

20 Q. Now, may we have 65 ter 108, please. We have here, if you can

21 look at the document on your screen, sir, an anti-aircraft order in

22 connection with this operation dated 5 July 1995. If you look at

23 paragraph 4, do you see the reference to deploying S-2M missiles and

24 there's a specific reference to your brigade. Do you see that reference

25 it's subpart A, sir?

Page 26564

1 A. Yes.

2 Q. It says: One S-2 and detachment to be deployed in the

3 Zagoni-Kokarda area to defend the town of Bratunac and the forces

4 operating with within the range of the S-2 Ms. First of all, what is an

5 S-2M?

6 A. Just let me tell you this. This is an order for anti-aircraft

7 Defence. I was the chief of land artillery, not the anti-aircraft

8 artillery. And S-2M are devices for anti-aircraft defence which had

9 crews of two soldiers. That, I know.

10 Q. Now, where is this area of Zagoni-Kokarda, sir?

11 A. This is the area that extends along the defence line of Bratunac.

12 I don't know where exactly they were deployed, but it should with been an

13 elevated point because they had to be independent. I don't know exactly

14 where they were, but I can suppose that they were somewhere around there

15 in that part of the defence line.

16 Q. Okay. Now, sir, you have told the Trial Chamber that you didn't

17 receive these orders yourself. Now, there was immediately a lot of

18 command staff work at your brigade to prepare for these active combat

19 operations; right?

20 A. We were all surprised when this order arrived and when the

21 operation started.

22 Q. Okay. If we may have 65 ter 219, please. And we will need page

23 9 of both the B/C/S and the English. Now, sir, as you may have seen when

24 we flashed up the cover of this document, it's the reports and meetings

25 of the Bratunac Brigade. You are familiar with this document, sir?

Page 26565

1 A. I told you already that the first time I learned of the operation

2 of the attack on Srebrenica on the 5th in the afternoon or the 6th in the

3 morning. Here it says that the working meeting was on the 5th of July,

4 so this is what I told you.

5 Q. Right, sir, and if we go back just that one day to the 4th of

6 July, do you see the "Chief of Staff read the order from the Chief of

7 Staff of the Drina Corps for full combat readiness of our unit," do you

8 see that? That's the first line for the entry for 4 July.

9 A. I read it.

10 Q. Now, were you present for these meetings?

11 A. I was not present.

12 Q. Now, you just referred to the 5th of July entry where it

13 indicates the "Chief of Staff will go to the 1st Infantry Battalion to

14 increase the accuracy and direction of artillery fire." Do you remember

15 that happening, sir, in preparation for the Krivaja-95 operation?

16 A. All I know about the operation is that we were in the brigade

17 commander's office, we were summoned there and he issued tasks to us. He

18 said that all chiefs and assistant commanders should draft proposals in

19 order to have an order issued about the attack on Srebrenica.

20 Q. Okay. We'll get to that in a moment, sir, because I think you've

21 testified previously that you did present proposals to your commander.

22 But my question was, do you remember the Chief of Staff going to the 1st

23 Infantry Battalion to increase the accuracy and the direction of the

24 artillery fire, do you remember that happening as chief of artillery?

25 A. No, I don't. Each battalion had its own battalion artillery

Page 26566

1 support, this being a 120 or 82 millimetre mortar platoon. It was under

2 the command of the brigade commander rather than chief of artillery per

3 establishment.

4 Q. All right. Let's look at another document, 65 ter 987, please.

5 Now, there's a typewritten version but we can work with the handwritten

6 version. Do you see the reference on this daily combat report dated July

7 4, 1995, sir, that the brigade commander is visiting the artillery firing

8 positions?

9 A. It is quite customary during our regular activities for a certain

10 officer to visit the positions made from the command of the Drina Corps

11 or another staff. They visit the units and control their combat

12 readiness.

13 JUDGE AGIUS: Forgiven. Let's proceed.

14 MR. BOURGON: I apologise, Mr. President.

15 MR. THAYER: I don't mind a musical accompaniment from time to

16 time, Mr. President.

17 JUDGE AGIUS: It depends on who the composer is, Mr. Thayer.

18 MR. THAYER:

19 Q. Now, sir, I understand you are just telling us it's customary.

20 My specific question is, do you recall whether your brigade commander

21 visited your, for example, firing position since you were not only

22 artillery chief but you were also the commander of a unit, do you

23 remember Commander Blagojevic visiting your position prior to the

24 commencement of operation Krivaja-95?

25 A. After the changeover on the 25th of May, Blagojevic of course

Page 26567

1 visited all of his units acquainting himself with the forward lines and

2 the rest. I recall that on a day, I don't know which precisely, that he

3 came to visit, we toured our firing positions and wanted to know what the

4 equipment was that we had at our disposal in the brigade.

5 Q. Now, let's look at 65 ter -- actually it's P03025, please.

6 Sir, this is the Bratunac Brigade order for active combat

7 operations Krivaja-95 operational order number 1. You've seen this

8 before, clearly; right?

9 A. Yes.

10 Q. You testified in Blagojevic that you personally received the

11 document and that you were duty-bound to sign for it and to read it. You

12 can confirm that, sir?

13 A. Yes, I can.

14 Q. And you just told us that you made some proposals in

15 connection --

16 JUDGE AGIUS: One moment. Yes, Mr. Bourgon.

17 MR. BOURGON: I'd just like a reference, I'm trying to follow in

18 the testimony from the Blagojevic case.

19 JUDGE AGIUS: Okay. Yes, Mr. Thayer. Thank you.

20 MR. THAYER: Sure. That was 8478 of the transcript in

21 Blagojevic.

22 Q. Now, if we can turn to page 4 of the English and page 3 of the

23 B/C/S. Do you see at number 6 under "fire support"?

24 A. I see it.

25 Q. And the reference to the BrAG, that's the brigade's mixed

Page 26568

1 artillery group; correct?

2 A. Yes, it is.

3 Q. And you testified yesterday as to the composition and size of

4 those weapons and where they were deployed; right?

5 A. Yes.

6 Q. Now, there's a reference here to the basic firing position

7 according to current deployment and plan. Do you see that under 6.1,

8 sir? Can you just read out what it says under 6.1?

9 A. "Brigade artillery group consisting of a 105 millimetre howitzer

10 platoon, a 122 millimetre gun platoon, and a B1 gun battery. Basic

11 firing positions. According to current disposition ..." should I

12 continue?

13 Q. That's fine for now, sir, thank you. Now, what kinds of

14 artillery pieces did the battalion batteries have?

15 A. There are no battalion batteries. They have mortar platoons the

16 calibre of which is either 82 or 120 millimetres. Depending on the

17 manning strength of the battalion, these may not be platoons but squads.

18 Q. Now, each of those platoons or squads within the battalion had

19 their own komandirs or commanding officers; right?

20 A. Yes, squad commander subordinated to the company commander who in

21 turn is subordinated to the battalion commander.

22 Q. And you testified in Blagojevic that, and I quote, this is from

23 8539: "When it comes to major operations such as this one," and you were

24 referring to Krivaja-95, "the chief of artillery must be directly

25 superior to his subordinates, that is the commanding officers of the

Page 26569

1 units, et cetera, down the line, down the chain of command." And that

2 would refer to those individual units; correct?

3 A. No.

4 Q. So your testimony is that they were not subordinate to you in any

5 fashion; is that correct?

6 A. No, they were not subordinated to me. They were subordinated to

7 the commander of the infantry battalion. His unit, his soldiers.

8 Q. Well, when you testified in Blagojevic then, what were you

9 referring to in terms of you exercising superior command over

10 subordinates, that is the commanding officers of the units down the line,

11 down the chain of command, what did you mean then when you were

12 testifying in Blagojevic?

13 A. I commanded platoon and battery commanders within the brigade

14 artillery group. I did not command the mortar units. As per

15 establishment, they are not part of the artillery group that was

16 subordinated to me. They fell under battalion commanders, infantry

17 battalion commanders.

18 Q. And how about the 128 millimetre rocket launcher platoon, was

19 that under your command, sir?

20 A. I don't know of such a platoon in our unit. I know there was a

21 rocket launcher of 57 millimetre. It was a makeshift device serving

22 psychological purposes rather than being an efficient weapon. It was not

23 much of an artillery piece.

24 Q. Well, do you remember testifying in Blagojevic, and this is at

25 page 8493 of the transcript:

Page 26570

1 "Question: And were you in charge of that rocket platoon in

2 light of your position as the commander of artillery?" And you answered

3 to Mr. Karnavas: "Yes." Do you remember that, sir?

4 A. I remember that. But in the combat order drafted by Colonel

5 Blagojevic it says first fire should be opened and then that unit was

6 supposed to move under my authority. It is on the next page.

7 Q. So the question is simple, sir, you were in command of that

8 platoon; correct?

9 A. That unit was attached to me for the purpose of that operation.

10 MR. THAYER: Mr. President, I see that it's 3.30.

11 JUDGE AGIUS: The break would be at quarter to 4.00. If you wish

12 to break now, we can do that.

13 MR. THAYER: I'll work with one more document, Mr. President. I

14 didn't know if there was some special time today as well.

15 JUDGE AGIUS: No, quarter to 4:00. Yes, Mr. Bourgon, is there a

16 problem?

17 MR. BOURGON: I'd just like to address the Court before the break

18 in respect of this witness.

19 JUDGE AGIUS: Okay. Thank you, in his absence I suppose, no?

20 Thank you.

21 MR. THAYER: In that case perhaps we can let the witness go and

22 we can discuss it now before the break.

23 MR. BOURGON: No, I prefer to let my colleague go, Mr. President.

24 I don't want to interrupt anything.

25 JUDGE AGIUS: Very sensitive, Mr. Bourgon. Let's have your next

Page 26571

1 question or questions on the other document.

2 MR. THAYER: I'm being serenaded with music and sensitivity.

3 I'll get flowers next, I'm sure.

4 JUDGE AGIUS: Exactly, next you will be exchanging bouquets of

5 flowers.

6 MR. THAYER:

7 Q. Sir, if we may take a look at P03785. And if we could move the

8 image down to the lower left. In other words, if we could below up the

9 upper right-hand portion a little bit.

10 Sir, do you see the image in front of you?

11 A. I see two firing positions. Three, sorry.

12 Q. Okay. Now, if you have a hard time with the resolution of the

13 image, I have a hard copy here that you can look at and refer to, but if

14 you are okay with that. What I'd like you to do is just take the little

15 pen that is attached to the screen, and you may need some help from Madam

16 Usher. Sir, if you would -- just first of all, if you can locate where

17 your observation point at Kaolin hill was? Just mark that with an X.

18 A. [Marks].

19 Q. Now, if you could circle the areas in which the brigade artillery

20 was located, and just write next to or inside those circles the calibres

21 of the weapons that each of those firing positions possessed. And how

22 many of each of those weapons there were. That would be helpful. Just

23 write it down wherever you can locate where those positions were at the

24 time of the Krivaja-95 operation.

25 A. I understand. On this plan I don't see the place where the 122

Page 26572

1 guns were. I think this is a howitzer position at Repovac in B1 but I

2 don't see Velika Raven. It is some 500 metres to the north where the 122

3 cannons were. I don't see that.

4 Q. Okay. Then if you could just first of all mark the first one

5 that you talked about that you can see, and indicate --

6 JUDGE AGIUS: Then we can move the map down, maybe it's further

7 up. I don't know.

8 MR. THAYER:

9 Q. Sir, if you would -- unfortunately this copy is cut off, so we

10 can --

11 A. Very well.

12 JUDGE AGIUS: Yes, Mr. Bourgon.

13 MR. BOURGON: Thank you, Mr. President. It's just that the

14 witness is being asked to mark gun positions for operation Krivaja-95 but

15 the map he has in front of him is Susica, which was drafted and prepared

16 before. The two don't match. Unless my colleague has a reason for doing

17 so, I'd like to have an explanation for this, Mr. President.

18 JUDGE AGIUS: Yes, Mr. Thayer.

19 MR. THAYER: Mr. President, we have a map that has positions

20 indicated. I just want to find out where his guns were placed during

21 this period of time. If they correspond with anything on the map, then

22 so be it. If they don't then so be it. I could show him any map and it

23 wouldn't make a difference. I've made no representations as to what this

24 is.

25 JUDGE AGIUS: Yes, as long as this is made clear we see no

Page 26576

1 JUDGE AGIUS: Thank you.

2 MR. THAYER:

3 Q. May we have 65 ter 2116, please. And this is a different map,

4 and hopefully we can work with the resolution and catch that top part.

5 It's a big document, Mr. Gavric, so it's going to take some time.

6 Now, if we could -- that's it. And perfect. Sir, this is an

7 excerpt from a different map. Does this magnification capture the

8 northward points that you were referring to earlier? Okay. Let's zoom

9 out then.

10 A. You could see much more on the former map, but I can do it now.

11 I can already locate the -- I can try and locate the position of the

12 pieces. The former map already depicted two of the positions. So

13 whichever way you want me to do it.

14 JUDGE AGIUS: If we can zoom in, I think it will be easier for

15 the witness.

16 THE WITNESS: [Interpretation] It's no problem. I've located the

17 positions and I can draw them on the map.

18 JUDGE AGIUS: Okay. Go ahead then, please.

19 THE WITNESS: [Interpretation] [Marks].

20 MR. THAYER:

21 Q. Sir, you've written in "105 2" and something else. Can you just

22 tell us what that says in that circle?

23 A. "105 2 pieces."

24 Q. Okay.

25 A. [Marks].

Page 26577

1 Q. And you've drawn another circle on top of that, what does that

2 say inside, sir?

3 A. Cannon 122-2 pieces. So this is a firing position and another

4 one behind that firing position.

5 Q. Okay.

6 A. B1-5 pieces Repovac.

7 Q. And what size are those guns, sir, that you've just drawn to the

8 left of the first circle that you drew?

9 A. It says B1, they were 76 millimetre.

10 Q. And, again, if you can just write an X at your observation point

11 on the Kaolin hill?

12 A. Kaolin hill?

13 Q. Please.

14 A. [Marks].

15 Q. And, sir, you've described that location as being just above the

16 DutchBat base; is that correct?

17 A. Overlooking the base.

18 Q. Now, can you mark where the battalions with their mortars were

19 located?

20 A. I wouldn't be able to do that. I can't draw the firing positions

21 because I did not man those and I'm just aware of the positions where my

22 artillery pieces were. This was the brigade artillery group.

23 Q. So you've got no recollection as you sit here today as to where

24 those battalion mortar platoons were located during the operation?

25 A. It would be pointless for me to draw something that is not

Page 26578

1 correct. I would like to apologise, I have made a mistake about the

2 elevation 438. I would like to annul the X on Ladja and I would like to

3 draw the proper place of the observation point on Kaolin hill. Am I

4 allowed to correct myself and actually draw the correct position of the

5 Kaolin hill observation point?

6 Q. Absolutely, Mr. Gavric.

7 JUDGE AGIUS: Yes, go ahead, do that. Madam Usher will assist

8 you. If you need to cancel anything, you can do that. You can cancel

9 the previous one if you want. Thank you.

10 THE WITNESS: [Interpretation] It's much better now. It's

11 correct now.

12 MR. THAYER:

13 Q. That's right. And there's a little I think 438 right where you

14 wrote that X, correct, indicating the elevation?

15 A. Yes, that's one observation point, one elevation. This is the

16 trig point where we were.

17 Q. If you would just sign your name and put today's date October 2nd

18 in the lower right-hand corner and we'll be done with this exhibit.

19 Thank you, sir. We can save it. And we are done.

20 Now, if we may have 65 ter 3025 again briefly. And we'll need to

21 go to page 4 of the English and page 3 of the B/C/S. Sir, I might have

22 to jump around a little just to save some time so please bear with me.

23 Do you see under "tasks" 6.1.1 in this combat order where it says

24 "open fire on observed targets in the sectors of Potocari school,

25 Pecisica, Budak, Pale and Cizmici.

Page 26579

1 A. Just bear with me a moment, please.

2 Q. Might have to go down, it's at the very bottom of the page, there

3 it is, sir, do you see it?

4 A. Now, I can see it, yes.

5 Q. Next page in B/C/S, please. We can stay where we are in the

6 English. Under 6.2, you referred to this before, the 128 millimetre

7 rocket launcher --

8 A. We've already discussed this, yes.

9 Q. And do you see where it says at 0300 hours on 6 July 1995 it will

10 fire 4 projectiles, 50 kilometre air bombs on the Potocari sector, the

11 school, the 11 March factory, the Gracac hill, trig point 377, Kula and

12 Orici?

13 A. I can actually see it, yes.

14 Q. Now, that firing was actually carried out, was it not?

15 A. As far as I know not with these shells as far as I know, but

16 again at 3.00 after that they were supposed to be placed under my

17 command, but as far as I know, the firing never happened and I don't know

18 anything about the 128 launcher. It may be a mistake or an error. I

19 don't know.

20 Q. Okay. Well, you testified yesterday that the firing didn't occur

21 and at 26506, you said that "This was just an idea, a plan, but it

22 doesn't mean that everything that is planned has to be implemented in the

23 field." I want to show you 233, please. And then I'll put some

24 questions to you.

25 Now, sir, do you see this handwritten combat report from Colonel

Page 26580

1 Blagojevic dated July 6, 1995?

2 A. Yes.

3 Q. On this handwritten version do you see the reference to firing

4 support against set targets was provided by 70 millimetre shell launcher,

5 school in Potocari, 11 March factory, and wider area of the village of

6 Potocari." Do you see that, sir?

7 A. I can see this, but this is just something that was copied and

8 incorrectly and I can guarantee you that there was no firing in the

9 sector because the no movement of forces had been noticed nor was this an

10 axis of attack either by the Bratunac Brigade or the corps. The axis of

11 attack was on an entirely different side, some 20 kilometres in depth

12 away from Bratunac on an entirely different side.

13 Q. Okay. Sir, just so we are clear, your testimony then today is

14 this daily combat report is incorrect? Whoever drafted it got the wrong

15 information and put the wrong information down, is that your testimony?

16 A. What I'm saying is that very often combat reports just followed a

17 pattern and they were drafted by different people, logistics men,

18 infantry men, some of whom did not have the necessary knowledge on

19 writing combat reports. Some just copied things without giving them much

20 thought.

21 Q. All right, sir. So your testimony is to your knowledge nobody

22 fired at those locations on that time; right?

23 A. That is my testimony, yes.

24 Q. Let me take you back to what you told the Trial Chamber in

25 Blagojevic. When you were shown this daily combat report by

Page 26581

1 Mr. Karnavas, you stated that, and this is at page 8496: "The person who

2 wrote this report should have in paragraph 2 stipulated the fact that

3 fire power support at certain targets was carried out by battalion fire

4 groups and not the artillery brigade because point 2 and point 6 of this

5 combat report are contradictory."

6 So, sir, what you told the Trial Chamber in Blagojevic was that

7 firing happened but it wasn't by the brigade assets, it was by the

8 battalion assets; correct?

9 A. No.

10 Q. Well, then tell the Trial Chamber what you meant.

11 A. What I meant was that this referred to the infantry battalion.

12 Whoever provided this information was not telling the truth. If there

13 was firing by that part of the 2nd Battalion on my left flank, I would

14 have observed it. But the battalion commander very often did what they

15 did. That's the way things were done.

16 Q. Okay. So we've got somebody lying in the 2nd Battalion; that's

17 your testimony?

18 A. 99 percent, that would be the case. I can even guess who it was,

19 but it doesn't really matter, does it.

20 Q. We don't want you to guess, sir.

21 Let's look at 65 ter 234, please. And with Madam Usher's

22 assistance, I'm going to show you the original because again we have a

23 legibility problem with the e-court version. I'm handing you both the

24 handwritten and the typed version of this document. And if you want to

25 look at the typed written version, that might be a little easier, either

Page 26582

1 way.

2 A. Just a moment, please. Yes.

3 Q. Now, sir, do you see at paragraph 2 from this 7 July daily combat

4 report from Colonel Blagojevic, it says: "Our forces returned the fire

5 and also fired artillery at the enemy's firing positions"? Do you see

6 that, sir?

7 A. Yes, I can see that.

8 Q. And if we look at paragraph 6, there's a reference to 30 pieces

9 of 122 millimetre ammo being used. What kind of gun fires that?

10 A. It should say that the brigade artillery group engaged in and 122

11 millimetre guns actually were -- opened fire on the 11th.

12 Q. Sir, I'm not asking you about the 11th, I'm asking you about

13 what's clearly stated here on the 7th in this combat report and my

14 question was first of all, what kind of weapon fires the 122 millimetre

15 round? We see 30 pieces being used according to this combat report.

16 What kind of weapon is that?

17 A. 122 millimetre are fired by howitzers 122 and cannons 122

18 millimetre as well.

19 Q. So my question to you, sir, is was this firing done by any asset

20 of the Bratunac Brigade on 7 July 1995?

21 A. Not by the Bratunac Brigade, and I wouldn't be able to tell you

22 anything about any other units deployed in any other areas.

23 Q. Okay. Let me share with you what you told the Blagojevic Trial

24 Chamber about this same daily combat report. And this is at pages 8496

25 to 8497. Your attention was called to these sections of the report and

Page 26583

1 you stated, and I quote: "The person who was on duty that day and drew

2 up this combat report mixed up the battalion firing group and the brigade

3 artillery, and this is not one and the same thing." Now, sir, I put it

4 to you that in your answers to the Blagojevic Trial Chamber you didn't

5 say anybody was lying, you just said that what was incorrect was that

6 this firing was coming from the brigade battalion firing group and not

7 the brigade artillery. So my question to you is, again, did any Bratunac

8 Brigade assets, be it your mixed artillery group or be it any of the

9 battalion assets fire on 7 July?

10 A. As far as I know the answer would be no. And the only 122

11 millimetre cannons in the Bratunac Brigade were held by the Bratunac

12 artillery group.

13 Q. So it's your testimony then, sir, that you had it wrong, you

14 misspoke in the Blagojevic case when you attributed that firing to the

15 Bratunac battalion firing group; correct?

16 A. Maybe it was wrongly transcribed. And there's just one

17 possibility, that howitzers 122 millimetres were active in some areas,

18 but they did not belong to the brigade but to the 5th Mixed Artillery

19 Regiment.

20 Q. So then are you saying that the operative who drafted this daily

21 combat report got it wrong again when he attributes that 122 millimetre

22 firing to the brigade?

23 A. I can say with full certainty about the Bratunac artillery group,

24 and I really don't know how this was done, how come people just put

25 things on paper in order to meet somebody's expectations or I don't know

Page 26584

1 why, I don't know for what reason would they do that.

2 Q. Okay. Let's look at one more, sir. May we have 65 ter 236,

3 please. And if we may go to the next page in B/C/S, please. And

4 actually, if we can start from I guess the bottom of the previous page in

5 B/C/S. I apologise.

6 Okay, sir, I just want to ask you about some of the usage that's

7 indicated on this report. There's a reference to 700 pieces of bullets,

8 20/3. What is that?

9 A. This is ammo for an anti-aircraft cannon. I don't know why you

10 would want to tie this with me.

11 Q. And if we look at a little further down, 200 pieces of 30/2

12 bullets. What is that? What kind of weapon is that, sir?

13 A. How many, 200? 220? How many? 220, 120, 120 millimetres.

14 Q. If we look at the 30/2 reference, it says 200 pieces. I'm just

15 asking you, sir, what is a 30/2? What kind of weapon is that that used

16 those 200 rounds? It's right -- second line from the bottom.

17 A. Just a moment, please. I think that it was also an anti-aircraft

18 gun but I'm not sure. This is small calibre used in anti-aircraft

19 defence.

20 Q. And if we look at the next entry, it refers to 76 millimetre M18,

21 60 pieces. What kind of weapon is the 76 millimetre, sir?

22 A. It's a self-propelled gun that uses 76 millimetres as well as B1

23 cannons and ZIS cannons as well.

24 Q. And again your testimony, sir, is that no Bratunac Brigade asset

25 discharged a B1 76 millimetre -- I'm sorry, a 70 millimetre round on that

Page 26585

1 day, 9 July?

2 A. This is ammunition that is taken from the logistics base.

3 Q. My question, sir, is, to your knowledge was the -- was an M18 70

4 millimetre weapon discharged by any asset of the Bratunac Brigade on 9

5 July 1995, or is this report wrong too?

6 A. I don't know anything about that because the self-propelled gun

7 was in Pribicevac which is 25 kilometres from where I was at the time.

8 Q. And you testified in Blagojevic that from where you were you

9 could see Potocari, and I quote, "extremely well and very precisely." Do

10 you remember saying that? And you stand by that, correct, sir?

11 A. The area of Potocari was placed exactly the same -- exactly that

12 way, I could see it very well since I had the SM61 observation device

13 with me.

14 Q. Do you stand by your testimony in Blagojevic that, and I quote:

15 "Every hit and every projectile fired from our positions was something I

16 could see. That's how it's supposed to be done. You cannot just fire

17 off the top of your head. You have to see where the projectiles fall."

18 That was at 8546 of the transcript. You stand by that?

19 A. Perhaps I can clarify it a bit further.

20 Q. If you need to, sir. I'm just asking whether you stand by it.

21 Can you answer with a yes or no? If not, you can feel free to explain

22 but I just want to know whether you can answer the question.

23 A. I stand by my previous answer. I could see that area from my

24 observation post. I can guarantee for that area and not another one

25 which was 30 kilometres away.

Page 26586

1 Q. And do you stand by your testimony that not a single round fell

2 near the Muslims walking along the road towards Potocari, and that was at

3 page 8547?

4 A. With full moral and other responsibility.

5 Q. And with respect to the actual civilians who were fleeing from

6 Srebrenica to Potocari, do you stand by your testimony in Blagojevic at

7 page 8549 that: "All the citizens of Srebrenica who were moving from the

8 direction of Srebrenica towards Bratunac or rather, the industrial zone

9 where they stopped, walked normally, without any panic, at a normal pace,

10 because nobody from our side was disturbing them in any way." Do you

11 stand by that testimony, sir?

12 A. Yes, I do.

13 Q. Now, sir, just to save time, is it fair to say that if I showed

14 you reports from UN military observers and DutchBat and read to you

15 testimony from other UN officers and Muslim civilians about sustained

16 shelling impacting the immediate area of the DutchBat compounds in both

17 Srebrenica and Potocari all through this period from the 6th through the

18 11th, as well as the shelling tracking the column of refugees fleeing

19 from Srebrenica towards Potocari, that wouldn't change your testimony,

20 would it?

21 A. Nothing can change my testimony. I'm telling you what I saw.

22 And I stand by it 100 percent.

23 Q. Now, you were asked the question in your OTP interview at page

24 77: "If howitzers were landing on Potocari and Srebrenica, obviously

25 directed as civilian targets could someone else other than you be

Page 26587

1 responsible?"

2 And you answered: "I just told you that on the main axis of the

3 attack which was on the opposite side from me, there were support units

4 and they had two howitzers known as Vozika [phoen] because it's Russian

5 production and it's self-propelled like a tank." Do you remember that,

6 sir?

7 A. I don't recall it exactly but I think something was not

8 interpreted correctly. How can howitzers fire from Srebrenica at people

9 living Srebrenica? I don't understand that.

10 JUDGE AGIUS: Yes, Mr. Bourgon.

11 MR. BOURGON: Thank you, Mr. President. The interview my

12 colleague is referring to does not appear on the list of documents which

13 were intended to be used by the Prosecution. Neither on the list from

14 yesterday or on today's list so I am a bit surprised to see questions

15 concerning this document.

16 JUDGE AGIUS: Yes, Mr. Thayer.

17 MR. THAYER: Well, that is a simple oversight, Mr. President, I

18 apologize. I'm sure my friend has the interview of his own witness

19 handy. If he doesn't, I can give him a copy and he can look at it, but I

20 think we can survive.

21 JUDGE AGIUS: Let's proceed. Let's proceed. Again try to avoid

22 this recurring as much as you can, please, Mr. Thayer.

23 MR. THAYER: Yes, Mr. President.

24 Q. Now, you were asked in the interview: "Was any part of your

25 artillery used to drive civilians from one area to another?" And you

Page 26588

1 made a sketch of the UN compounds and you said that, "No one shelled them

2 there, I can guarantee that." Do you recall that, sir? That's at

3 page --

4 JUDGE AGIUS: One moment.

5 MR. BOURGON: Reference please, Mr. President.

6 JUDGE AGIUS: Yes, okay, I was just going to say that.

7 MR. THAYER: That's at page 76 and 77.

8 Q. And then you were asked: "You weren't responsible for any mortar

9 positions?" And you answered: "No, no, no. Our forces, and I'm talking

10 about 1st and 2nd Battalion, they didn't have a need to fire, they were

11 not in danger. All the offensive came from the direction of Jadar."

12 That's at page 78. Do you recall that testimony, sir, and do you stand

13 by it?

14 A. Yes, I do. We could not drive away people who were moving

15 towards us.

16 Q. I want to turn your attention now to a different topic, sir. You

17 testified yesterday and that was consistent with your testimony in

18 Blagojevic that the duty officer's assistant when you arrived at the

19 Standard command said that Dragan Obrenovic was asleep because he was

20 tired. Do you remember saying that in Blagojevic at page 8507, sir?

21 A. I think I said that the duty officer told me that the commander

22 was asleep.

23 MR. THAYER: Now, if we may go into private session for just a

24 moment, Mr. President.

25 JUDGE AGIUS: Let's do that. Let's go into private session.

Page 26591

1 that. And there was a very unfortunate exchange but I don't know what

2 the other man was by rank." And then you say, and this is probably a

3 mistranslation or a problem with the transcript, you say: "He was the

4 security man Drago Nikolic."

5 Actually that may not be incorrect, but your next statement is:

6 "He was the security man Drago Nikolic, he involved himself in our heated

7 conversation and the late Dusko Nikolic, he is deceased today, he was

8 also a school friend of mine, he was killed."

9 Now, my first question, sir, is what if anything did Drago

10 Nikolic say during this encounter?

11 A. First I need to say that there were many mistakes in that

12 interpretation.

13 Q. Well, sir, if you want to correct them, please go ahead.

14 A. I didn't have to give it, the man asked for it. I think you said

15 I had to or I needed to, whereas I was requested. There's a difference.

16 That's one thing. Another thing, I said that Drago and Dusko Nikolic

17 approached to protect me from the man. They probably saw that it was an

18 ugly conversation which may result in an incident. Dusko Nikolic was

19 killed the next day on the 15th. I didn't say that Dusko was dead at

20 that point in time. As far as I know he was killed on the 16th, not the

21 15th. That's one thing.

22 Another thing, I know that Drago also intervened but I remember

23 Dusko reacting more vehemently and he addressed the man brusquely. He

24 left and we stayed there talking. I was talking about a handgun and so

25 on.

Page 26592

1 As for Drago, I don't think it was translated correctly.

2 Q. Now, sir, you were asked by Mr. Karnavas same page, 8510: "Let

3 me ask you this, you mentioned Lukic, does he have a first name?" And

4 you answered: "I don't know his first name. I don't know it to this day

5 after all this time. All I know is they referred to him as Lukic. I

6 heard a lot of ugly things about him, bad things about him, and he wasn't

7 at my level. He was a soldier or whatever, but he wasn't in a position

8 to issue any orders to me, let alone me give him my men."

9 And then you were asked: "Where is he from to your knowledge?"

10 And you answered: "As far as I know he was from the surrounding parts of

11 Visegrad." Do you stand by that portion of area tomorrow, sir.

12 JUDGE AGIUS: Yes, Mr. Bourgon.

13 MR. BOURGON: My colleague jumped one line reading from the

14 statement here where it says: "At that time I did not know. Today I do

15 know." He skipped that line. It's very important, Mr. President.

16 JUDGE AGIUS: Yes, Mr. Thayer.

17 MR. THAYER:

18 Q. Well, sir, having heard that, can you tell the Trial Chamber when

19 you learned that he was from Visegrad?

20 A. First of all, don't read it the way you did. You should read it

21 all out. It's not nice of you to skip things. I know very well what I

22 said. I said that at that time I didn't know the man. Now I know of him

23 because I heard about him just like many others did. And I stand by what

24 I said.

25 Q. And my question to you, sir, is what did you hear about him?

Page 26593

1 A. What did I hear? What people were saying, that there was a

2 person from the environs of Visegrad who was with a paramilitary unit.

3 That's all I heard. I have no idea what he was doing, I wasn't with him.

4 It's another matter what I heard from others. It's irrelevant since I

5 didn't see him.

6 Q. And, sir, during the course of these discussions, whatever they

7 were about this Mr. Lukic, it's your testimony that you now believe that

8 this man that you encountered was Lukic from Visegrad, right, that's all

9 I'm try together establish with you. Doesn't matter when you found out,

10 your testimony today is your understanding is this individual who you met

11 on the 15th of July was Lukic from Visegrad; correct?

12 A. I don't know. I can only presume that it was Lukic. It may have

13 been Erdemovic as well. He did not introduce himself and no one

14 addressed him. How should I know? I saw him being arrested but I would

15 never have thought that it was the same person I met in Zvornik. I said

16 I supposed it was Lukic.

17 Q. And you testified in Blagojevic that you thought of him as a

18 freelancer, someone who goes out to loot. And that's at 8578 of the

19 transcript.

20 A. Such loose cannons brought only evil. They were only interested

21 in making profit and gains, nothing else.

22 Q. Now, I want to move to my last area with you, sir. And that's

23 the sweep operation that was conducted on the 17th of July. Can you

24 confirm that this individual Jevic with whom you were working that day

25 went by the nickname of Stalin, that was the nickname that you heard that

Page 26594

1 day?

2 A. I think his nickname was Stalin. I think so.

3 Q. Now, you testified in Blagojevic that you testified -- sorry,

4 that you ordered the prisoners lined up, and that they lie down with

5 their hands behind their back and ordered their hands tied behind their

6 back. That was at lines 8518 of the transcript. Do you remember that,

7 testifying that you ordered the prisoners to line up and to lie down with

8 their hands behind their back and that you ordered that their hands be

9 tied behind their backs?

10 A. First of all, these were not detainees but prisoners. I did

11 order their hands to be tied, although I don't know whether on the back

12 or in the front, but I did order that. That was the natural thing to do.

13 Q. And you said that you used twine from raspberry bushes. Was this

14 rope twine or metal wire, sir? Did you understand the question, sir, was

15 that rope twine or was it metal wire?

16 A. It is true we used rope used to bind raspberry bushes.

17 Q. And your testimony is that those men were taken by Mr. Jevic and

18 the MUP towards Konjevic Polje; correct?

19 A. When the operation was finished, I singled out the children from

20 the group. As for the rest of the people who were in the certain age

21 group, they were taken by Jevic who was supposed to take them to Konjevic

22 Polje. There was no sense in taking them to Bratunac and then later on

23 to Bijeljina. I thought it was a good order to give for them to go to

24 Konjevic Polje.

25 JUDGE AGIUS: Mr. Lazarevic.

Page 26595

1 MR. LAZAREVIC: Just one small correction for the transcript. I

2 believe the gentleman mentioned that it was Momir Nikolic who ordered

3 that, I don't see this in the transcript.

4 JUDGE AGIUS: Is that correct, Mr. Gavric?

5 THE WITNESS: [Interpretation] I said now what I said yesterday,

6 that once the operation was finished I reported to Momir Nikolic who

7 ordered them to be sent to Konjevic Polje rather than to Bratunac.

8 JUDGE AGIUS: Thank you. Mr. Thayer, please.

9 MR. THAYER:

10 Q. Now, sir --

11 JUDGE AGIUS: You've been already 2 hours 50 minutes.

12 MR. THAYER: This is my last section, Mr. President. I'll be

13 able to move through it more quickly I think.

14 Q. Now, you testified that you saw those prisoners the next day at

15 the warehouse or the hangar in Konjevic Polje where the gas station is

16 now; is that correct?

17 A. I stated that I saw those people in front of a warehouse picking

18 up papers and litter. It wasn't a hangar. It used to be a store and now

19 is a gas station.

20 Q. Now, you were asked during your interview with the OTP, and this

21 is at page 37 by Dean Manning:

22 "Question: How many men and boys were in that group that you

23 captured?"

24 And your answer was: "My free assessment 35 to 38."

25 And at the Blagojevic trial you were asked how many prisoners

Page 26596

1 were captured on the 17th and you answered: "35 to 38 or rather a total

2 of 38, of those, 3 children and 35 adults, I think." You stand by that?

3 A. I do.

4 Q. Yesterday again you repeated that number 38; correct?

5 A. Yes. 38 in total including 3 children.

6 Q. And you testified in Blagojevic that they were being guarded by

7 the special police. That was at transcript 8593. Just to clarify,

8 because sometimes that gets translated differently, what did you mean

9 when you said special police guarding those prisoners?

10 A. I had in mind the same group that had been with me the day

11 before. It was the deserters that were sometimes referred to as the

12 special police.

13 Q. Now, you told the OTP at page 33 of your interview that you had

14 information that those prisoners were taken for exchange. Can you tell

15 the Trial Chamber what that information was, and from whom you received

16 it?

17 A. I said that the children were taken to be exchanged. The rest

18 were supposed to go to Bijeljina to be exchanged for the people from the

19 Tuzla area.

20 Q. And how did you know that that was the plan for the adult

21 prisoners?

22 A. During the operation, I remember well, there was much talk about

23 those who surrendered, that they would be exchanged with or for some

24 people from the area of Tuzla and Sarajevo. The place of assembly was

25 supposed to be in Bijeljina, Batkovaca [phoen] or something.

Page 26597

1 Q. And who gave you that information, sir, who told you that?

2 A. I can't tell you. It's a story I heard when we were sitting at

3 the command. Like many, I asked myself what was going to become of those

4 people and then someone from the group said that they were to go to

5 Bijeljina and they would subsequently be exchanged for people from Tuzla

6 and Sarajevo.

7 Q. If we may have 65 ter 3787, please. Now, the OTP has interviewed

8 the boys who you separated out from the group and who you ended up having

9 filmed; correct? Okay.

10 A. Whether the OTP interviewed them, I don't know. And it wasn't me

11 who recorded them. I think there was a TV crew.

12 Q. And that was your idea, sir, was it, to film them, let people

13 know that they were being treated well?

14 A. Yes. There was another reason why I did that, if you want to

15 know.

16 Q. Sure, why don't you share that with us, sir?

17 A. We filmed the children so that there would be no news circulating

18 the globe that children were being caught and shot. That was one thing.

19 Another thing, irrespective of the time period, that document can be

20 useful to many in cases such as this one, those children can testify as

21 to their treatment, how I treated them and how they were treated by the

22 rest. It was my idea and that's how we did it.

23 Q. Okay. Well, we interviewed one of those children, sir. Haso

24 Hasanovic in August of 1996 on the 18th of August. He was 16 years old

25 at the time. And if we can go to page 5 of this document. And sir,

Page 26598

1 we'll get the B/C/S up as well. It's going to be the last page of the

2 B/C/S before the witness acknowledgement. It's the last two paragraphs

3 of the interview. Previous page, please. There you go, you've got it.

4 Okay.

5 Sir, he told the investigators about being captured in the area

6 of Burnice. Is that the area where these prisoners were found, sir?

7 A. Burnice.

8 Q. Apologies for the pronunciation.

9 A. Correct.

10 Q. Now, he spoke of a Serb soldier who said that he wanted to

11 slaughter the prisoners and of another Serb soldier who prevented him

12 from doing that and who appeared to be in charge. That's you; right? We

13 just need an audible answer so we can get it on the --

14 A. Just a moment. This thing happened when they were arrested and

15 brought to the area of Pervani. One of the volunteers was interested in

16 the children that I separated from the rest. He wanted to liquidate

17 them. That's when I reacted because I really found that a bad thing to

18 do. And I told him nicely that a Serb soldier or officer could not kill

19 anybody old, arrested or under age and that's when I called the police

20 and asked them to arrest him.

21 Q. And actually sir, we need to go to the prior page in the B/C/S,

22 I'm sorry. And where the statement says that the man who was in charge

23 said let the children go, that's you, correct, sir?

24 A. Yes.

25 Q. Now, if we go up a little bit in the statement, when he was

Page 26599

1 talking about what happened during their capture, he said: "We were told

2 to lie down and Serb soldiers moved amongst all of us tying our hands

3 with lengths of wire which had already been cut in preparation." Now,

4 again sir, it's your recollection that that was twine, rope twine, not

5 wire; correct?

6 A. It was actually not a rope or a rope twine. It was a simple

7 piece of string.

8 Q. All right. May we have 65 ter 3786, please. If we can go to

9 page 2 of the B/C/S, please. We also spoke with another one of those

10 boys, Azmir Jusufovic on February 22nd, 2003. This is his statement, his

11 transcript or, sorry, a summary of a phone conversation with him,

12 information report memorializing a conversation on the 19th of February

13 2002 at 1615 hours. Now, Azmir Jusufovic told us that he was captured in

14 this area of Burnice and taken with other children to the Kaolin factory

15 to the Bratunac Brigade command. Sounds like another one of these

16 children, correct, that you rescued or that you separated?

17 A. I don't know their names. I ordered Milan Nedeljkovic to put the

18 children in our car for security reasons, and I brought them personally

19 in front of the command of the Bratunac Brigade. I turned them over to

20 the military police and ordered them strictly not to touch them and give

21 them food and this is what I told to Filipovic at the command that they

22 should be covered by the media reports in order to avoid any future

23 situations where people would say that we might have killed these

24 children or ill treated them or something to that effect.

25 Q. Now, Azmir Jusufovic told the OTP that after they were captured,

Page 26600

1 that is after the group he was with of adult men were captured, he "saw a

2 soldier who had a bundle of approximately 30 to 50 lengths of silver

3 colour wire which were folded in half and were hanging on his belt. He

4 saw the Serb soldiers tying up the hands of Muslim prisoners with such

5 wire."

6 I ask you again, sir, are you sure it was twine and not wire

7 which was used that day to tie up the Muslim prisoners.

8 JUDGE AGIUS: Yes, Madam Fauveau.

9 MS. FAUVEAU: [Interpretation] I will kindly ask the witness to

10 remove the earphones in order to propose my objection to the Prosecutor's

11 question.

12 JUDGE AGIUS: Let's make sure that he doesn't understand French.

13 Go ahead, Ms. Fauveau.

14 MS. FAUVEAU: [Interpretation] Mr. President, I have allowed my

15 learned friend to ask questions about the first statement referring to

16 the 15th of July. Is there anything, any piece of evidence that the

17 Prosecutor has about the 18th of July to prove that the two young boys

18 were precisely the ones that the witness has referred to so far?

19 JUDGE AGIUS: Yes, Mr. Thayer. And before you respond to that, I

20 notice also Mr. Bourgon. Perhaps you will then reply to both of them.

21 Mr. Bourgon. Thank you, Ms. Fauveau.

22 MR. BOURGON: Thank you, Mr. President. I did not say anything

23 in this line of questioning by the Prosecution, however, I wish to

24 highlight the fact that this is of course the Prosecution at its best in

25 terms of disclosure. These documents that my colleague is using right

Page 26601

1 now were put on the list of exhibits to be used for cross-examination

2 yesterday. The Prosecution has cross-examined this witness years ago in

3 the Blagojevic case and he has described everything about those kids that

4 he says that he saved. Following which the Prosecution at some point in

5 time did some interviews and obtained some material that was not

6 disclosed to us. Was it available, they will say that it was probably

7 available on EDS and those millions and millions of pages on EDS.

8 The situation is on 1 May of this year we indicated that Mr.

9 Gavric here present would be a witness in this case in exactly they know

10 what he was supposed to speak about. They had all the information in

11 order to make this available to us so we could at least at a minimum of

12 decency so that we can show the information to the witness so that he may

13 prepare and explain his story.

14 I think Mr. President, this is a flagrant violation of the rules

15 of disclosure that the Prosecution has. Again they are abusing as they

16 have done throughout this case disclosure, and as a minimum when the

17 witness will retire for the break, I would ask that these documents be

18 given to him so he has a chance to read them because he has never seen

19 them before, these have never been discussed with him. The Defence has

20 never been aware that these documents existed. We have done our

21 homework. We have done what we are supposed to do. We have checked for

22 all documents related to Mr. Gavric, but we did not obtain this

23 information through our search procedure. As a minimum he should be

24 given an opportunity to read this and then I will ask him a few questions

25 in terms of what he did when he saved those children who are still alive

Page 26602

1 today, and what they say in those statements. Thank you, Mr. President.

2 JUDGE AGIUS: Thank you. Yes, Mr. Thayer, will you start with

3 Ms. Fauveau's objection.

4 MR. THAYER: Mr. President, these documents were disclosed in the

5 Srebrenica folder of EDS, the specific Srebrenica folder in February of

6 2006. First of all, we placed these exhibits on our list of

7 cross-examinations yesterday and they were disclosed in that way again

8 yesterday pursuant to the rules that we've been following for the last

9 two years of this trial. I frankly do not understand my friend's

10 argument that there has been some violation here. There has been no

11 violation.

12 We put on our case in chief for two years and abided by the rules

13 that the Trial Chamber had set up. We are now cross-examining witnesses

14 and giving them lists of documents that we intend to use. If my friend

15 thinks that there's anything that he needs to do with these documents, he

16 is free to do that. If either of them want to sit on their redirect or

17 cross, if it happens to be my friends from the Miletic team, they are

18 certainly quite capable of asking this witness any question they want

19 about these documents.

20 This witness has acknowledged and testified about rescuing these

21 children. He has confirmed that it was the area of Burnice. The witness

22 statement that I'm in the process of questioning him about refers to

23 being captured in Burnice, so frankly this objection is absolutely

24 without merit.

25 JUDGE AGIUS: Yes, Mr. Bourgon, and let's bring it to a close,

Page 26603

1 please.

2 MR. BOURGON: Thank you, Mr. President. My colleague entirely

3 misses the point. They always come back with the same argument that this

4 was put in some kind of Srebrenica folder back in February of 2006. This

5 is always the same thing that they are saying and we have the same

6 argument. There are rules of disclosure and those rules have not been

7 followed. If they know that we are going to call a witness and they have

8 information, information that is against that witness, they have to

9 disclose this to us. This information about three kids that were saved

10 by one of our witnesses, it is entirely incorrect for them, that's the

11 question, they know we are calling the witness, they know what the

12 witness will talk about, they have the information, and they keep it in

13 their back pocket until the witness is on the stand. That's why I say

14 that the Prosecution is abusing the Trial Chamber's order allowing them

15 to wait until cross-examination begins to file -- to give us a list of

16 documents. Because that's when the list is given. They sit there and

17 the minute that they get up for their first question they press on the

18 button and they issue their list by surprise, keeping this in their back

19 pocket.

20 Can my colleague tell me today that how many months he has known

21 about those kids and those documents that he did not give the Defence

22 hoping to take us by surprise? He is not taking us by surprise. He is

23 talking an honest witness and an honest man who came here to testify

24 about three kids that he saved, and now he is being completely taken by

25 surprise with documents that as a minimum he should have had the

Page 26604

1 opportunity to have a look at before so he can explain his story and he

2 can explain the difference. We don't even know if those kids are the

3 same ones that he is referring to. There is no evidence to that other

4 than an area. Thank you, Mr. President.

5 JUDGE AGIUS: Before we deliberate can either of you read out to

6 us what was the contents of the 65 ter summary that was provided by the

7 Nikolic Defence team to the Prosecution regards to this witness.

8 MR. THAYER: If I may have a moment, Your Honour, I can pull

9 that.

10 [Prosecution counsel confer]

11 MR. THAYER: Mr. President, I have it here.

12 [Trial Chamber confers]

13 JUDGE AGIUS: Yes, before you read out the 65 ter summary,

14 Mr. Bourgon, what kind of disclosure duties are you referring to in this

15 case? Normal disclosure or any other special kind of disclosure?

16 MR. BOURGON: Mr. President, the disclosure I'm referring to

17 could be right under Rule 68. Now let me explain to you why it falls

18 under Rule 68. In the Rule 65 ter summary we provided, we say that

19 Gavric testified before the International Tribunal in the Prosecutor

20 versus Blagojevic and Jokic case. In that case when the witness

21 testified, he testified at length about saving those three kids. If the

22 Prosecution has information that can tend to provide information as to

23 what this witness did with those three kids, they cannot hide this

24 information from us until cross-examination time. This witness actually

25 saved those three kids --

Page 26605

1 JUDGE AGIUS: One moment, Mr. Bourgon, if you are referring

2 specifically to Rule 68, in this case we are only possibly dealing with

3 the first two paragraphs thereof, the first one refers to mitigatory or

4 exculpatory material. I don't understand you to be submitting that this

5 is the kind of material in this case. I don't understand it to be your

6 submission. If I'm not correct, please correct me strait away.

7 The other paragraph which is the second one which is without

8 prejudice to the exculpatory disclosure, exculpatory material, the

9 Prosecution shall make available to the Defence in electronic form

10 collections of relevant material held by the Prosecutor together with

11 appropriate computer software with which the Defence can search such

12 collections electronically. So if this is the case I'm just asking you

13 because we are trying to find a solution to this impasse between, but if

14 you could be more specific, please.

15 MR. BOURGON: Mr. President, if the Prosecution possesses

16 information that confirms that our witness that we will present actually

17 saved three kids, it goes to his credibility. It can affect the way his

18 testimony will be seen by the Trial Chamber, and they ought to give that

19 information to us. Because the information, those statements from the

20 kids, they were obtained by them. I don't know if it was a time when

21 they still wanted him to testify before certain person pleaded guilty,

22 but when they obtained that information, there was a purpose for the

23 Prosecution obtaining this information, obtaining those statements.

24 These have to be disclosed to the Defence if they know about it and if

25 they know we are going to call the witness. They are completely taking

Page 26606

1 us by surprise.

2 JUDGE KWON: Rule 68 (1) does not include the material which

3 would affect credibility of the Defence evidence. Only Prosecution

4 evidence. So how does it fall under Rule 68 material? It's a disclosure

5 of exhibits to be used during the cross-examination, which should be

6 guided by the guideline.

7 JUDGE AGIUS: And let's listen also to the summary that you

8 provided and I'll of course give you an opportunity.

9 MR. BOURGON: Yes, I can read that summary, Mr. President.

10 JUDGE AGIUS: Yes, please.

11 MR. BOURGON: It was a very short summary. It referred

12 specifically the fact that Gavric testified before the international

13 Tribunal in the Blagojevic case and that he will state that on 17 July,

14 the day that he conducted the sweep operation, that's not written there,

15 he saw in Konjevic Polje area an enormous number of bodies of dead enemy

16 soldiers.

17 MR. McCLOSKEY: Mr. President, if I could just ask my friend to

18 read the summary as it's written, at least the summary I have here which

19 is different.

20 JUDGE AGIUS: There are two summaries?

21 MR. BOURGON: I will read exactly the summary. Gavric testified

22 before the international Tribunal in the Prosecutor versus Blagojevic and

23 Jokic, case number IT-0260. Gavric will provide evidence confirming that

24 Dragan Obrenovic slept at the Zvornik Brigade command during the night

25 between 14 and 15 July 1995. He will also state that on the morning of

Page 26607

1 15 July 1995, Drago Nikolic was present at the Zvornik Brigade command.

2 Gavric will finally state that on 17 July, he saw in the Konjevic Polje

3 area an enormous number of bodies of dead enemy soldiers.

4 JUDGE AGIUS: Thank you.

5 MR. BOURGON: Mr. President.

6 JUDGE AGIUS: Would you like to add anything else before we

7 conclude this debate.

8 MR. BOURGON: Yes, Mr. President.

9 JUDGE AGIUS: Yes, go ahead.

10 MR. BOURGON: Proofing notes were disclosed to the Prosecution on

11 30 September. In these proofing notes we specifically referred to the

12 fact that the witness did not when reading -- when questioned about his

13 testimony in the Blagojevic case indicated to us any material differences

14 from what he testified then to what he will testify the next day. With

15 that information, Mr. President, the Prosecution was fully aware that we

16 would speak about what happened on the 17th of July, the search

17 operation, and those three kids. They obtained specific information for

18 that purpose which must be disclosed to the Defence before their

19 cross-examination start so at least the witness is not taken like this by

20 surprise for something that he did that was good.

21 JUDGE PROST: Mr. Bourgon, I still am not clear on your response

22 to Judge Kwon's question, which was, how does this obligation arise under

23 Rule 68 in terms of the provisions of paragraph 1, where is the

24 obligation you're talking about on the Prosecution to disclose to the

25 Defence before their cross-examination starts? Where does that flow from

Page 26608

1 Rule 68 in this instance?

2 MR. BOURGON: Judge, I thank you for your question. I mentioned

3 Rule 68 I can build an argument on Rule 68. I prefer maybe to simply put

4 the obligations of the Prosecution on simple decency when they know that

5 we will lead a witness and they take us by surprise by not giving us that

6 information.

7 JUDGE PROST: And you are saying there is a different obligation

8 on the Prosecution in cross-examination than there is on the Defence.

9 Because you certainly wouldn't argue that the Defence would have an

10 obligation to disclose that material in advance.

11 MR. BOURGON: I agree with you, Judge, I think there's

12 definitely, a definite different between what applies to the Prosecution

13 and what applies to the Defence. The basic difference, Judge, that we --

14 that is very often in our view not being maybe taken into consideration

15 to its right importance is the fact that the Prosecution has a different

16 duty. They have to meet their case beyond a reasonable doubt, they have

17 the burden of proof, and if they have evidence in their possession, they

18 have to disclose that.

19 It is the right of an accused to know the case he has to meet.

20 If I say to the Prosecution, I have a witness, and this witness will come

21 and say something and they have information that will affect that

22 evidence, they have to disclose it to me, if they have it.

23 JUDGE PROST: I have your point.

24 JUDGE AGIUS: Thank you. Yes, Mr. Josse, please let's not

25 compound it any further, but please go ahead.

Page 26609

1 MR. JOSSE: That's exactly what I wanted to hear, Your Honour,

2 really is this: If the ruling impacts only on this witness, then of

3 course we have nothing to add but if this is being blown up into some

4 general discussion about Rule 66 and Rule 68, apropos Defence witnesses

5 and Prosecution obligations, then we do have submissions.

6 JUDGE AGIUS: I would understand that. Thank you. That brings

7 to an end this discussion. Let me confer one last time with my

8 colleagues. Mr. Thayer, would you like to add anything or I thought you

9 were renouncing to that.

10 MR. THAYER: Mr. President, just again to confirm, that this

11 material was disclosed to the Defence February 22nd, 2006 by Ms. Stewart

12 in an e-mail which attaches a spreadsheet which lists these witnesses'

13 names.

14 JUDGE AGIUS: Okay.

15 [Trial Chamber confers]

16 JUDGE AGIUS: We will have the break now because it's quarter to

17 6.00, 25 minutes, and after that we'll come back with our decision and

18 then we will continue with the testimony and finish. I want to make sure

19 that you finish this witness today.

20 MR. THAYER: No question, Mr. President.

21 JUDGE AGIUS: Thank you.

22 --- Recess taken at 5.45 p.m.

23 --- On resuming at 6.15 p.m.

24 JUDGE AGIUS: So to conclude the chapter, having heard your

25 respective submissions and having discussed amongst ourselves, we see the

Page 26610

1 position as either side as follows: Given the circumstances, namely what

2 the circumstances that both of you have described, we do not see that in

3 any case there has been any kind of transgression, violation of the rules

4 of disclosure in this case as regards this witness much so let's proceed.

5 As far as the point raised by Ms. Bourgon, Madam Bourgon, I think

6 -- Madam Fauveau, sorry, my apologies to you, Mr. Bourgon, and to you,

7 Ms. Fauveau. It's not the first time that I have mixed this up. I hope

8 it will be the last.

9 As far as your -- the point raised by you, I think it's a matter

10 of testimony which we will evaluate at the end of the day. If there is

11 no evidence that we are talking of the same individuals, then obviously

12 we are going to discard what deserves to be discarded.

13 Yes, let's continue. And conclude, please.

14 Mr. Bourgon, I'm glad I didn't address you as Mr. Fauveau.

15 Mr. Bourgon, will there be a redirect?

16 MR. BOURGON: Yes, there will be, Mr. President. I figure about

17 20 minutes.

18 JUDGE AGIUS: About 20 minutes. Okay. Will you conclude,

19 please, Mr. Thayer, thank you, allowing 20 minutes or so for Mr. Bourgon.

20 We've still got till 7.00.

21 MR. THAYER: I'll do my best within that 15 minutes,

22 Mr. President.

23 Q. Now, sir, let's see if we still have 3786 on the screen. If we

24 can go to the first page of the B/C/S, please. We can see that Azmir

25 Jusufovic told the OTP that he was captured in Burnice, he recalls that

Page 26611

1 it was in the afternoon hours possibly the 18th of July 1995. And if we

2 go to the second page he indicates that he was taken to the Kaolin

3 factory in Bratunac.

4 Now, sir, as far as you are aware, was there any other group of

5 Muslim children who were rescued by a VRS officer during this day sweep

6 or during this period when you were conducting this sweep and that who

7 were brought to the Bratunac Brigade headquarters?

8 A. This boy, Jusufovic, you say that he was 16. At the time he told

9 me he was 14 and that he was from Kasaba near Milici. I remember him

10 well. As for the other two children, they may have been 9 or 10, I think

11 they were two twin brothers. Nice kids. On the 17th in the evening is

12 when I arrived and handed them over to the Bratunac Brigade command.

13 That is what I said a moment ago and I don't know whether there's any

14 need to repeat.

15 Q. I don't think so, sir. I think we can agree, can we not, that

16 Mr. Ju sufovic was simply off by a day when he told us that it was on the

17 18th, when I think we can all agree it was on the 17th?

18 A. He was taken on the 18th from the Bratunac Brigade to be

19 exchanged.

20 Q. What I meant was, the day he was captured, if he said I was

21 captured on the 18th, he is off by a day and we can agree on that;

22 correct?

23 A. Yes, we can.

24 Q. Now, the question I asked you before all the excitement was, he

25 told the OTP that, and I quote: "He saw a soldier who had a bundle of

Page 26612

1 approximately 30 to 50 lengths of silver colour wire which were folded in

2 half and were hanging on his belt. He saw the Serb soldiers tying up the

3 Muslim prisoners with such wire."

4 Again I just want to find out from you sir, does that change your

5 testimony, does it refresh your recollection in any way as to whether it

6 was a string I think as you told us or whether it was wire?

7 A. I don't know what would needed for me to change it. If it was

8 silver wire, I would say it was rather expensive piece of metal. We did

9 not have that. We had strings that we used to tie the people up.

10 Q. Now, if we can go back to 3787, please. This is the statement of

11 Haso Hasanovic. If we could go to page 5 of the English and that will be

12 the last page of the B/C/S again before the witness acknowledgement.

13 We'll need the prior page, please.

14 JUDGE AGIUS: Yes, Ms. Fauveau.

15 MS. FAUVEAU: [Interpretation] Before we move on to those

16 paragraphs, could the Prosecutor please determine on what date the boys

17 were taken prisoner? It is the fourth page in the English and I believe

18 the -- towards the end of the statement in the B/C/S.

19 JUDGE AGIUS: Yes, Mr. Thayer.

20 MR. THAYER: Mr. President, I if I may just continue my

21 cross-examination so I can finish in time. If my friend has any question

22 she thinks need to be asked, we --

23 JUDGE AGIUS: She won't be in a position to ask questions, no, so

24 let's accommodate Madam Fauveau if you can and proceed without major --

25 MR. THAYER: I'm not even sure what the page she is referring to

Page 26613

1 is.

2 MS. FAUVEAU: [Interpretation] Page 4, the first paragraph.

3 JUDGE AGIUS: Of the English version. Okay.

4 MR. THAYER:

5 Q. Now, sir, there's reference in this statement to the 15th of July

6 Mr. Hasanovic saying he was captured. As we just talked about with this

7 other boy that you say you knew well, doesn't it sound like he is off by

8 a couple of days in his recollection of the dates? I mean, there's no

9 disagreement, is there, among us that these boys were rescued by you on

10 the 17th of July? There's no doubt in your mind about that date, is

11 there, sir?

12 A. First of all, I don't know if those are the children, the same

13 children that I referred to. I don't know if somebody found some other

14 children in another area. It cannot be on the 15th. I was not in the

15 field then. It is on that day that I returned from Zvornik and was on

16 leave. I was deployed on the 17th, as I've already stated.

17 Q. Well, you'll recall, sir, when I asked but this boy just a few

18 minutes ago, Haso Hasanovic, you were quite certain that when he was

19 describing a Serb soldier saving his life from somebody that wanted to

20 slaughter him, that volunteer you spoke about, you had no hesitation

21 identifying yourself as that person; right?

22 A. That child was 9 years old. I quite doubt that his dates are

23 correct. I have some other information. There was another group that I

24 saved and they survived. They told me that they had to undergo special

25 proofings or preparations when approached by the Prosecution.

Page 26614

1 JUDGE AGIUS: Yes, Ms. Fauveau.

2 MS. FAUVEAU: [Interpretation] Could we please see the first page

3 of this statement and date of birth of the boy.

4 JUDGE AGIUS: Yes, Mr. Thayer.

5 MR. THAYER: This is the 16-year-old boy that I --

6 JUDGE AGIUS: Okay. Let's proceed.

7 MR. THAYER: -- spoke about earlier.

8 JUDGE AGIUS: And you interviewed him on -- in 1996?

9 MR. THAYER: He was interviewed in 1996, that's correct,

10 Mr. President.

11 JUDGE AGIUS: Okay. Let's proceed.

12 MR. THAYER:

13 Q. Sir, trying my best to finish up in the time, but you just

14 referred to some other group of boys that you rescued that we've never

15 heard about either in your Blagojevic testimony or in any proofing note

16 or anywhere else, so I want to make sure that we are not withholding

17 anything from the Trial Chamber. Why don't you tell us now what you are

18 talking about, because I just asked you whether there was any other group

19 that you were aware of that was rescued from the area of Burnice during

20 this period of time and you said no, so now you are telling us that there

21 was a group. Why don't you tell us about that, sir.

22 A. Those were not children. It was a group that was captured after

23 the Srebrenica operation in Alibegovic, in the area of Srebrenica. I

24 think it comprised five or six people.

25 Q. Right. Now, that was something entirely different, sir. That

Page 26615

1 was in October of 1995 in the southwest area of Srebrenica, Alibegovic,

2 as you said and those were adult males who you drove personally to a

3 place that begins wise a K, and I am afraid I can't remember the name but

4 I'm sure you can tell the Trial Chamber what that place was that you

5 drove the seven adults --

6 A. Sokolac Knezina.

7 Q. I'm not even going to try to pronounce that, sir, but we are not

8 talking about boys there, are we, we are talking about an entirely

9 different group of people from the boys that you rescued on the 17th;

10 right?

11 A. Yes. I wanted to point that out because it can be of assistance

12 for the Court and perhaps for someone who was accused.

13 Q. Okay. So just one last time, sir, to your knowledge, there was

14 no other group of young boys or boys of any age other than the ones that

15 you rescued to your knowledge in that area of Burnice during that period

16 of time when you were conducting that sweep that were taken to the Kaolin

17 factory Bratunac command; right?

18 A. As far as I remember, I can tell you about the three children

19 only. The next day when the children were supposed to leave, I went to

20 Sokolac.

21 Q. Now, going back, if we can, to the --

22 JUDGE AGIUS: Yes Ms. Nikolic.

23 MS. NIKOLIC: [Interpretation] Your Honours, I think we don't have

24 the witness's complete answer. He said that the next day I went to

25 Sokolac, and he seems to have trailed off, perhaps the witness can repeat

Page 26619

1 JUDGE AGIUS: Yes, let's keep it low key and proceed and conclude

2 because we have to decide what is going to happen tomorrow as well.

3 Re-examination by Mr. Bourgon:

4 Q. I only have a few questions for you, sir.

5 A. Go ahead.

6 Q. In the period from January to July of 1995 are you aware of

7 orders that were issued to the Bratunac Brigade amongst others not to

8 fire your guns on the town of Srebrenica?

9 A. As far as I know, we were forbidden to open any fire at the

10 general area of the Srebrenica enclave. I think it was on the 17th of

11 April 1993, that it happened the last time. On the 18th it was the

12 orthodox Easter and as of that day onwards, it was strictly forbidden.

13 Q. Now, many questions were put to you concerning the 25th of May

14 1995 by my colleague. I only have one very simple question. To the best

15 of your recollection, when shots were fired in the direction of

16 Srebrenica on that day, was it as a result of incoming fire on friendly

17 forces?

18 A. It is my opinion that a decision was made to return fire because

19 to fire from a tank from a safe area, that is something I cannot

20 comprehend. How come they had a tank there?

21 Q. If I can have in e-court please, 5D1161. I would like to have

22 page 4 in English. Well, let's start with the first page in both English

23 and B/C/S. Just so you know what this document is, before I turn to the

24 section I want to ask you about, this is a report from the Main Staff of

25 the army of the Republika Srpska, and it is addressed, first of all, to

Page 26620

1 the president of Republika Srpska, but as well as to the command of the

2 corps and we see in the second line Drina Corps. Do you see this, sir?

3 A. I'm not with you. I don't know what you are aiming at.

4 Q. I just wanted you to say -- to -- whether you can confirm that

5 this is a report from the Main Staff to, amongst others, the Drina Corps,

6 and that it is dated the 25th of May 1995? And then I will put a

7 question to you on a section of this document.

8 A. The Main Staff sent this to the Drina Corps, he could not send it

9 to a brigade command. It had to follow the chain of subordination with

10 the corps command on the top, and from there orders would come down the

11 line of command to lower units.

12 Q. If I can turn on this document, please, and have page 4 in

13 English, and page 5 in B/C/S. Sir, I'd like to draw your attention where

14 it says at paragraph 6 of this document, which refers to "in the zone of

15 operations of the Drina Corps." I will read this in English where it

16 says, paragraph (a): "The enemy in the zone of operations of the corps,

17 the focus of enemy activities was on positions of the 1st Birac Infantry

18 Brigade which were attacked by with 82 millimetre mortars. At 10.45 the

19 enemy fired four projectiles on the village of Kiseljak killing a woman.

20 At paragraph (b) it reads: "The situation in the corps, the units

21 responded to enemy fire in a timely manner, targeting the observed

22 targets. All corps units are maintaining the highest level of combat

23 readiness. Artillery fire was opened on the Srebrenica and Gorazde

24 enclaves as well as the Tuzla airport. Units have been placed at the

25 highest level of combat readiness."

Page 26621

1 Sir, does this information which of course would not have been

2 available to you, because it was only sent to the corps, but the

3 operational situation depicted in this document, does that match what you

4 perceive on that day that the Bratunac Brigade responded to enemy fire

5 when those shots were fired on Srebrenica?

6 A. The only thing that matches this what happened on the 20th of May

7 at 7.10 and I told you what happened then and I don't know about the

8 rest, I don't know when it was that an enemy group was infiltrated and

9 killed a soldier in the area of Zargon [phoen] and on the following day

10 or even on the same day there was an ambush in Zeleni, there were four or

11 five of our men were killed, among them was a police officer called Ostra

12 who had been called from retirement. He had been retired before.

13 Q. Sir, I'd just like to confirm, at the paragraph I'm referring to,

14 I'm not sure if you have it before you, is 6(b) and at 6(b) it says the

15 units and situation in the corps, the units responded to enemy fire in a

16 timely manner, and then it talks about fire was opened on the Srebrenica.

17 Does that matches your information that when the Bratunac Brigade fired

18 any shells on Srebrenica, it was in response to enemy fire?

19 A. I'm only aware of the thing that happened on the 20th of May at

20 7.10. I don't know anything else.

21 Q. If I could have in e-court 3358. P3358. Sir, this is a document

22 that was shown to you by my colleague during cross-examination, and it's

23 a document that bears your name and where we see that Colonel Lazic is

24 mentioned. Bearing in mind the questions that were put to you by

25 Mr. Karnavas in the Blagojevic case, bearing in mind the questions that

Page 26622

1 were put to you by myself yesterday, and the questions that were put to

2 you today by the Prosecution, to the best of your recollection, why was

3 the name of Colonel Lazic included on this document?

4 A. Colonel Lazic must have been at the Bratunac Brigade at the time.

5 That's why his name is mentioned together with the brigade commander's

6 name as a person who had either order us directly or who had

7 alternatively conveyed somebody else's order to return fire.

8 Q. And, sir, do you know, and I insist on the words know, do you

9 have knowledge, if this Colonel Lazic had any authority to order the

10 Bratunac Brigade to fire on Srebrenica?

11 A. I know nothing about that particular authority.

12 Q. Sir, my colleague put questions to you concerning the locations

13 of your gun positions, one of which was the B1 battery in the Repovac,

14 and you answered that the guns located there were the 76 millimetre guns.

15 My question is the following: This battery position, the soldiers that

16 occupied this position, are those the ones that you picked up on the

17 night of the 14th or the 15th when you travelled by bus from Bratunac to

18 Zvornik?

19 A. Yes, that part of the unit went down or rather came down and

20 accompanied me to Zvornik.

21 Q. Sir, do you know a soldier by the name of Todor Gavric, and is he

22 one of the soldiers that served on this gun position?

23 A. Yes, I know he was a member of the crew, and his battery

24 commander was Stevo Ilic.

25 Q. And, sir, as the chief of artillery in the Bratunac Brigade was

Page 26623

1 it your role to relay the firing orders given to you by your commander or

2 to issue your own orders to fire on your own authority? What was your

3 role as the chief of artillery in this regard?

4 A. My role was to carry out the orders of the brigade commander to

5 whom I was subordinated. I could give him my proposals but he had the

6 last word. Save for a very exceptional moment when the commander gave me

7 his authority to act in cases of major threats posed against our

8 positions.

9 Q. Thank you, sir. At page 26479, which is yesterday -- well, let

10 me first. My colleague asked you a question about the fact that

11 Obrenovic was sleeping that night, and he asked you a number of questions

12 as to what you stated in the Blagojevic case in this respect. Now,

13 yesterday at page 26479 you stated based on the information received that

14 night, it was your view that Obrenovic was in his office probably

15 resting. Do you have any reason to believe or any information which will

16 allow you to believe that Obrenovic was not resting in his office that

17 night?

18 A. If he had been anywhere further afield, the duty operations

19 officer would have called him by phone. But since he didn't do that, but

20 physically left the room and go somewhere, I can only suppose that he

21 actually physically went to see Obrenovic and convey my message to him.

22 Q. Thank you, sir. Today you were asked some questions about the

23 encounter with someone who you stated and there were discussions about

24 name Lukic. First, I would like to come back to what you said in the

25 Blagojevic case, and I quote from page 8510 in the transcript. The

Page 26624

1 question was put to you at lines 21: "All right. Do you know where

2 Mr. Lukic was from? Do you know at that point in time?" Answer line 23:

3 "At that time I did not know. Today I do know."

4 Sir, all the questions were put to you yesterday and today, to

5 the best of your recollection is that exactly the situation as it is?

6 A. I'm absolutely certain that I did not know that man. I only

7 supposed and I do still that it was Lukic. However, a lot of people have

8 read a lot of things about this man, Lukic, that he hails from the

9 vicinity of Visegrad, that his brother was killed in an operation to

10 arrest either him or somebody else. That's what I know about him.

11 Q. One last question on this topic. My colleague read to you part

12 of the transcript on the same page 8510, lines 16 to 17, and the question

13 my colleague read to you was: "All right. Let me ask you this, you

14 mentioned Lukic. Does he have a first name?" Your answer was: "I don't

15 know his first name. I don't know it to this day after all this time.

16 All I know is they referred to him as Lukic."

17 My question is, based on this part of the transcript which was

18 read to you, did at any point in time on the morning of the 15th July

19 1995 either Dusan Nikolic or Drago Nikolic refer to the first name or the

20 second name of that young man with the one uniform -- one-piece uniform

21 that you met?

22 A. Yesterday when you questioned me and earlier today when the

23 Prosecutor questioned me, I said it loud and clear, when they came behind

24 me, had they known him, they would have referred to him by his first or

25 last name, Dule would have used his name as they were having that

Page 26625

1 argument. I'm 999 percent sure that they did not know him. How could

2 have they known him? He just turned up there as an individual. They

3 could not know him. They didn't know him, I'm sure of that.

4 Q. Thank you, sir. I move to the last issue raised by my colleague,

5 which is concerning those kids that you testified about yesterday and

6 today. My first question is, I'd like you to confirm, because I think

7 you said that today, that you did not know and you still do not know

8 their exact names; is that correct?

9 A. Correct, I don't know the name. Some family names have been

10 mentioned, but they don't ring any bells. The twins only told me that

11 they were from Karacici, which is a village near Srebrenica and the other

12 blond, an older child told me that he was 14, that he was from Kasaba and

13 that he was an orphan. This is what the children told me and there was

14 no reason for me to double-check their words. Why should I have done

15 that.

16 Q. And sir, when you -- when this event took place, you mentioned

17 now specifically three kids that were separated and you mentioned what

18 you did about those three kids, but was there any other kid that day, was

19 there a fourth kid that you saved that day, to your recollection?

20 A. No, no. I don't know. I mentioned three kids. I described how

21 they looked, and these kids, I'm sure, would be able to recognise me.

22 I'm sure of that.

23 Q. If I can have in e-court, please, 3786. Sorry, 3787. And in

24 English on page 4 of 9. Now, let me read you a part of what appears

25 before you. I don't think it is available in your language but I will

Page 26626

1 read it to you, and that is at the end of the page -- it's also page 4 in

2 B/C/S. And I read four lines from the bottom of the before-last

3 paragraph: "I did not know the three --" sorry, just a bit higher: "The

4 man who was in charge said to let the children go and he cut the wire

5 that tied my hands behind my back with a knife. The commander then took

6 me to the first bus and I sat in there and found another three kids. I

7 did not know the three, but I talked to one of them and he said he was

8 Hasmir from Nova Kasaba and that he was around 15 years old, and he said

9 that he had been caught an hour ago." Sir, this fourth kid obviously

10 because the three kids are sitting in the bus, this fourth kid, it is

11 possible that it was not you that took this fourth kid or that was there

12 to cut the wire?

13 A. First of all, is it possible to cut a piece of wire with a knife?

14 I doubt it. And that child from Nova Kasaba is the child that contacted

15 us, surrendered, he wore a white T-shirt, he was the first one to

16 distance himself from the group, and then returned to the group and asked

17 them to surrender themselves and this is as much as I can remember. I

18 remember the blond kid and I also remember the two twins and I really

19 can't recall a fourth child. As far as I can remember, there were three

20 kids. That's as much as I can recall.

21 JUDGE AGIUS: Are you at the end, Mr. Bourgon?

22 MR. BOURGON: This is it, Mr. President. Thank you, I have no

23 further questions.

24 JUDGE AGIUS: Thank you. Mr. Gavric, on behalf of the Trial

25 Chamber I wish you thank you for having come over, on behalf of everyone

Page 26627

1 I also wish you a safe journey back home. You will now be assisted by

2 our staff.

3 THE WITNESS: [Interpretation] Thank you.

4 [The witness withdrew]

5 JUDGE AGIUS: Documents? Mr. Bourgon?

6 MR. BOURGON: Thank you, Mr. President. I don't know if the

7 Trial Chamber has received our list of documents.

8 JUDGE AGIUS: Two documents, no?

9 MR. BOURGON: Two documents. The picture 3DIC 224, which the

10 witness marked.

11 JUDGE AGIUS: And 5D01161, 5D01161.

12 MR. BOURGON: No, Mr. President, this is 5D1 --

13 [Defence counsel confer].

14 JUDGE AGIUS: That's what we have.

15 MR. BOURGON: Yes, indeed Mr. President. I had the wrong number

16 in front of me, it's 5D1161.

17 JUDGE AGIUS: Okay. Any objection from anyone. Mr. Thayer?

18 MR. THAYER: No, Mr. President.

19 JUDGE AGIUS: Objections from the other Defence teams? So these

20 two documents are admitted. Now the Borovcanin team had also two

21 documents.

22 MR. LAZAREVIC: Yes, Your Honours, we have two documents.

23 JUDGE AGIUS: We have the exhibit numbers 4DP00121 and 4DP00255.

24 MR. LAZAREVIC: That's precisely.

25 JUDGE AGIUS: Any objection from anyone?

Page 26628

1 MR. THAYER: No, Mr. President.

2 JUDGE AGIUS: Okay. They are also admitted. Then we have your

3 exhibits, Mr. Thayer?

4 MR. THAYER: Yes, Mr. President. We've circulated a list. If I

5 can recite them or we can just rely on the list that we've --

6 JUDGE AGIUS: I think we can rely on the list.

7 MR. THAYER: -- that we've distributed.

8 MR. BOURGON: No, Mr. President, I need to follow line by line

9 because I have objections.

10 JUDGE AGIUS: All right. Then we need to do it tomorrow.

11 MR. JOSSE: If it helps in terms of time, we have submissions

12 about this list as well.

13 JUDGE AGIUS: Seems it will take us some time.

14 [Trial Chamber confers]

15 JUDGE AGIUS: While we get a feedback from the rest of the staff

16 to see whether they are prepared to stay a little bit longer, you've had

17 this list already, Mr. Bourgon, can you indicate to us which ones you are

18 objecting to? Did you follow, Mr. Bourgon? And how long do you think

19 your submission will take?

20 MR. BOURGON: Mr. President. Maybe if my colleague is ready, I

21 need 5 minutes just to look at the list but it will be very short but I

22 need to look at some of these issues especially those last statements

23 that I need to assess before I can say whether I oppose or not,

24 Mr. President.

25 JUDGE AGIUS: Yes, Mr. Josse.

Page 26629

1 MR. JOSSE: Well, I can be precise. It's 3786 and 3787 we object

2 to but perhaps before I make my submission, I'd invite my learned friend

3 to explain why he wants them in, for what purpose, because if he is

4 prepared to concede that they are there for a limited purpose then I'm

5 not going to pursue the point.

6 JUDGE AGIUS: Yes, Mr. Thayer. First of all, what is the

7 position with the interpreters and everyone? Okay, we go on a little bit

8 more, but please try to be reasonable and keep your comments as brief as

9 possible.

10 Yes, Mr. Thayer?

11 MR. THAYER: Mr. President, our position has been not to

12 introduce the entire statement when a portion is read. Given the

13 excitement that we had about these statements, we would offer them for

14 whatever purpose the Trial Chamber deems appropriate. My friends

15 complained about their alleged late disclosure. If there's any arguments

16 that they want to make, we thought it would be the best practice to give

17 the Court the entire statement. If the Court decides it doesn't want it

18 that's fine. It's absolutely fine with us. It's not our practice to

19 offer the entire statement.

20 JUDGE AGIUS: Yes, Mr. Josse.

21 MR. JOSSE: That doesn't really help a great deal frankly.

22 JUDGE AGIUS: Let me -- give me one minute so that I consult with

23 my colleagues.

24 MR. JOSSE: Thank you.

25 [Trial Chamber confers]

Page 26630

1 JUDGE PROST: Mr. Josse and Mr. Bourgon, it's a bit difficult in

2 the situation because Mr. Thayer utilized portions of the statement in

3 questioning the witness, and those portions will obviously be on the

4 record. If there are suggestions as to the -- the identification of

5 these boys and whether they were the same children, it may be to the

6 advantage of the Defence to have the whole statement in for the purposes

7 of us assessing that whole issue. So but if the Defence is objecting to

8 their admissibility, that would be the purpose for which the Trial

9 Chamber is of the view that those statements in their entirety might be

10 of benefit.

11 MR. JOSSE: Speaking on behalf the Gvero Defence, Your Honour, we

12 would have no objection to the admissibility of the whole statement on

13 that basis, in other words, if it purely was considered in the context of

14 this witness's evidence. I have no objection to that.

15 JUDGE AGIUS: Thank you Mr. Josse and thank you Judge Prost.

16 Ms. Fauveau?

17 MS. FAUVEAU: [Interpretation] Mr. President, I would like to

18 join the objections that have been raised by Mr. Josse. We don't have

19 any objections if these documents are admitted for a limited aim, but as

20 far as the veracity of the statement, I don't think it can be done for

21 that purpose.

22 JUDGE AGIUS: That would have never been in our mind in any case.

23 So Mr. Bourgon?

24 MR. BOURGON: We take the same position, Mr. President, we thank

25 the Trial Chamber, we also agree that the statement should go in in their

Page 26631

1 entirety but for the limited purpose identified by the Trial Chamber.

2 And having looked at the list, although I do have a standing objection

3 that we will put on paper definitely regarding Rule 65 ter and the way

4 that the Prosecution is by the back door introducing a large quantity of

5 new documents and new evidence as part of the Defence case which is

6 entirely contrary to what it should do, Mr. President, other than that we

7 have no objections for the documents. Thank you.

8 JUDGE AGIUS: Thank you. So we are all admitted. Now,

9 Mr. Bourgon in particular, we received information in the course of the

10 day, actually first thing that reached us this morning that there is some

11 problem, major problem with the witness that you had planned to produce

12 tomorrow against whom a subpoena was issued. My understanding is that

13 the subpoena has been served, but there is a practical problem in that he

14 hasn't -- he is not in possession of a passport as yet. He has applied

15 for one and that it is anticipated that he may be available, probably

16 will be available mid-October or so. Is that information correct to

17 start with?

18 MR. BOURGON: To begin with, yes, Mr. President that is correct.

19 JUDGE AGIUS: And having said that, what are your plans? Shall

20 we start -- on Monday of course we'll start with the Borovcanin Defence

21 and you will make arrangements in due course with the Borovcanin Defence

22 to fit in your witness sometime in October or November or whenever you --

23 MR. BOURGON: Mr. President, there are other developments that I

24 wish to inform the Trial Chamber about.

25 JUDGE AGIUS: Please.

Page 26632

1 MR. BOURGON: But before I do so, I need to put on the record

2 that when the issue came out of this witness obviously we probably did a

3 mistake by not requesting the protective measures along with the

4 subpoena, although we thought that we had implicitly done so by

5 requesting the confidentiality of the subpoena. What I feel important to

6 put on the record today is that I failed to understand the stance taken

7 by the Prosecution concerning the fact that this witness should not be

8 given protective measures and their opposition after I explained to my

9 colleague exactly what the situation of the witness was.

10 Further, to our application the Trial Chamber rendered its

11 decision that it would interview the witness. For the past few days we

12 have been trying to contact the witness, and we did so very recently,

13 very, very recently after he has been issued with a subpoena, we

14 explained to him this interview process and due to his state of mind and

15 for the reasons that I indicated previously to the Trial Chamber, we will

16 be withdrawing the witness, Mr. President. Which puts an end to the case

17 for the Defence of Drago Nikolic.

18 JUDGE AGIUS: Thank you very much, Mr. Bourgon. Would you like

19 to have anything discussed tomorrow?

20 MR. BOURGON: No, Mr. President, but if we have a couple of more

21 minutes. First I'd like to say that withdrawing the witness implies

22 maybe a request that the subpoena be cancelled, the subpoena that was

23 issued again the witness.

24 JUDGE AGIUS: Okay. We'll look at that and we'll do that.

25 MR. BOURGON: And we had planned to -- we had anticipated to

Page 26633

1 finish earlier today and one thing that we wanted to do at the end the

2 presentation of the case for the Defence is to read out two letters that

3 we've received from witnesses who appeared during our case, two -- one is

4 from the witness 3DW1 which was the Colonel Landry who testified last

5 week and one was witness from the previous week.

6 Both witnesses thought it was absolutely necessary to underscore

7 the outstanding service and the assistance they received while they were

8 here, especially by the victims and witness's section. They were very

9 impressed and they left the Tribunal with a very very good impression.

10 We had statements to read, but due to the time we won't read the

11 statements but we think it's important to pass on the message. They said

12 that they like -- their experience was something that they will remember

13 in a positive sense.

14 JUDGE AGIUS: Thank you, Mr. Bourgon. And that's pleasant music

15 to our ears. What we will do is if my colleagues agree and I'm sure they

16 will, is that I would ask you to file these letters if you have no

17 problems in doing that, and once they are filed, the registrar is to

18 communicate a copy of the letters to the president of this Tribunal and

19 to the registrar and to the registrar and to the head of the division,

20 victims and witness's division. Thank you Mr. Bourgon.

21 MR. BOURGON: Mr. President, I was about to forget something due

22 to the time, I'm sorry, there are just -- of course this ends the

23 presentation of the case for the Defence of Drago Nikolic. However, that

24 is of course subject to some motions that we still have to file. I

25 indicated that last week. We will be filing these motions. And also one

Page 26634

1 very important issue, and that was that obviously as you saw,

2 Mr. President, the accused did not make a statement at this time.

3 However, it is very likely that he will be requesting to make such a

4 statement at a later time, whether it is part or not part of the case for

5 the Defence. This is something that is still being considered very

6 actively. Thank you, Mr. President.

7 JUDGE AGIUS: We'll reserve our position on that. Before we

8 conclude, I would like on behalf of the Trial Chamber to thank the -- all

9 the staff, registry, our own staff, the recorders, the interpreters, the

10 technicians and of course all of you present here for having cooperated

11 and overstayed by almost 20 minutes. Thank you very much. We will

12 reconvene on Monday and Mr. Lazarevic, you will start with your Defence

13 case. Thank you.

14 --- Whereupon the hearing adjourned at

15 7.17 p.m. to be reconvened on Monday, the 6th day

16 of October 2008, at 9.00 a.m.