Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12213

1 Wednesday, 23 October 2002

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.17 a.m.

5 JUDGE MAY: We're not able to continue with the evidence of the

6 witness at the moment, and therefore it seemed convenient to deal with

7 some matters which are outstanding anyway, some legal argument in relation

8 to Witness 36. There is an application under Rule 92 bis to deal with

9 some part of his evidence under -- with a statement under that Rule, with

10 the production of documents. The amicus has put in a paper, and we will

11 hear from him and from the accused, and then we'll hear from the

12 Prosecution on the matter.

13 Mr. Kay, thank you for your paper. You, I think, accept that the

14 statements are admissible, certainly on the grounds that they relate to

15 political or military background, but you challenge, you say, as a matter

16 of discretion, whether the evidence should be admitted.

17 MR. KAY: In paragraph 13, we set out various points that the

18 Trial Chamber, we feel, should consider in relation to the admission of

19 this evidence in this form. We've got the overriding public interest

20 element, given the importance and detailed nature of the evidence on what

21 are central political and historical issues in the case. One can see that

22 the documents --

23 JUDGE MAY: Give me an example of that. You say that it's

24 central, but just give us an example, please.

25 MR. KAY: If you go to the section of the exhibits detailing, for

Page 12214

1 instance, the creation of the Serbian Autonomous Region of Krajina, and

2 you have there a whole series of exhibits --

3 JUDGE MAY: This would be page -- it seems to be page 6.

4 MR. KAY: Page 6 of the --

5 JUDGE MAY: Statement.

6 MR. KAY: -- statement for 92 bis purposes. As you know from the

7 pre-trial brief and the indictment, the involvement of the accused in

8 these issues is part of the Prosecution case against him, and what we have

9 here is a whole wealth of exhibits, 75 in all, which detail the whole of

10 the movement of the affairs, right from the beginning, from the first

11 exhibit, to the end. And the witness himself comments, in the course of

12 that statement, upon various aspects of the creation. And we --

13 JUDGE MAY: Help us with this: I see the documents, and we will

14 consider them in a moment, of course. We do consider the number. That's

15 something we'll have to take into account. But what sort of comment had

16 you in mind that the witness has made?

17 MR. KAY: Well, if we go to his statement where he refers to

18 Radovan Karadzic, on pages 1 and 2. These might be issues that the

19 accused himself would want to ask questions about, the creation of these

20 parties.

21 JUDGE MAY: He could ask questions, of course. I mean --

22 MR. KAY: Yes, but it's very difficult for him, if this material

23 just comes into being in the courtroom without there having been any prior

24 explanation. For Your Honours in those circumstances to be able to take

25 up this evidence in what is essentially a void -- we do have a statement

Page 12215

1 from him of some ten pages, but two folders of exhibits that detail the

2 creation of these various councils and of the regions themselves and the

3 municipalities, but without any explanation of the context. And as we can

4 see from the indictment and the pre-trial brief, the politics behind these

5 particular developments are part of the case against the accused.

6 JUDGE ROBINSON: Just develop that point, Mr. Kay. I'm very

7 interested in that, the centrality of the evidence to the Prosecution's

8 case. Are you saying that it is central in that the creation of these

9 bodies goes to the establishment of the joint enterprise, the involvement

10 of the accused in that?

11 MR. KAY: Yes. The names that are mentioned, and the particular

12 name which is connected with this witness, is of interest, and I don't

13 want to say any more, as we're in open session. There is plainly a

14 central involvement here and issues that the accused himself would seek to

15 cross-examine upon, but it's a very difficult task for that to be done

16 just through a process where the witness produces these two folders which

17 his statement, which contains a degree of comment. But the Court itself

18 is left without any full explanation, which is very difficult to take up

19 from the statement. It's putting it almost in a void.

20 JUDGE MAY: But we have to be, in a case of this sort, dealing

21 with this volume of material, we cannot be bound by the practices of

22 national jurisdictions. Obviously, this evidence -- or probably, in a

23 national jurisdiction, this evidence would be led live, but here we are

24 faced with a huge amount of material, and we have to find ways of getting

25 through it which doesn't prejudice, of course, the fairness of the trial.

Page 12216

1 I mean, that's the crucial point. And what is being said here is that

2 these documents can be read, this statement can be read, and can be

3 cross-examined, and therefore, no doubt, it's said, there is really no

4 prejudice to fairness. There are gains from the point of view of

5 expedition. If the witness has to go through producing 75 documents, and

6 a cumbrous process, as we know. Whether there's any gain in having him do

7 it as opposed to his producing a statement, it may be more difficult, I

8 agree, to take in, in the way that one is used to in which witnesses

9 produce every single document. But it may be we also have to look at more

10 imaginative and constructive ways of working, if it doesn't affect the

11 fairness of the trial, as I say.

12 MR. KAY: The public interest element is very important on this

13 issue, which I would stress. I mean, the politics of the development of

14 these Autonomous Regions and the municipalities and what was involved has

15 been an undercurrent throughout the case from the opening.

16 JUDGE ROBINSON: In fact, it probably could be said that this is

17 not really historical; it's part of the -- it is, as you say, central. It

18 is almost part of the res gestae. I don't see it as being historical.

19 It's so close to the events that I don't think "historical" is the correct

20 word to qualify it.

21 JUDGE MAY: I would agree, with respect. It's political, of

22 course, which is one of the terms which is mentioned in the Rule.

23 Although on this particular aspect of the case may be rather more central

24 than we usually allow.

25 But let me take you back to the point that I make about the

Page 12217

1 documents. Now, why do we need a witness to go through a list of

2 documents which we can read, the Trial Chamber can read the document. Let

3 me take you to page 3.

4 MR. KAY: Is that of the documents of --

5 JUDGE MAY: I'm sorry. The statement. I'm looking at the

6 statement. You have the documents?

7 MR. KAY: Yes.

8 JUDGE MAY: We don't have the documents. You may be in a better

9 position to deal with them than we are. I'm just looking at page 3, or

10 would it be more convenient to look at page 6, the ones that you had out

11 already?

12 MR. KAY: Yes.

13 JUDGE MAY: What I notice is that what we start with, a notice

14 from the president of the Presidency, and then the next document is the

15 statute of the SAO Krajina, a decision implementing the statute. I mean,

16 all these kind of documents, it seems to me, speak for themselves, and if

17 there is any question of interpretation, why, then, the witness can be

18 asked about it in cross-examination. But you may have some

19 counter-argument. I don't know.

20 MR. KAY: The involvement of the witness himself in these

21 documents is apparent and on many of them, and I won't be more explicit

22 than that. And how they were produced and how they came about in creation

23 of this political region may well be of great importance in this case,

24 particularly in relation to who did what and what those powers were to be.

25 I take the point that they're not historical, as His Honour Judge Robinson

Page 12218

1 said, and they're definitely political, though, and that is their context

2 in what is a case that is deeply involved with politics and the deployment

3 of political power within this region, and others, in which the indictment

4 and the pre-trial brief, and the opening by the Prosecutor, makes it clear

5 that they hold the accused responsible for that, describing him as pulling

6 all the various strings. Well, documents such as these, which actually

7 detail the political set-up of the Autonomous Region, in which the witness

8 himself is apparent, in that context should have an explanation from the

9 Prosecutor, through him, as to exactly what their case is.

10 JUDGE ROBINSON: I would tend to agree with you. When I said it

11 wasn't historical, I wanted to go on to say that I believe the word

12 "political" in the Rule is misplaced because matters that are political

13 are entirely different from matters that are historical in the

14 temporal sense. And matters that are political can have the kind of

15 status that you have ascribed to them and which -- and from which I think

16 everyone would benefit from having the evidence being led in chief. It

17 may be that perhaps the witness might not need to be led as to all the

18 documents. Perhaps the witness could be led as to some of them, and the

19 others could be tendered.

20 MR. KAY: The Prosecution has put their case in the motion

21 submitted by them describes the political development of Serb areas of

22 Croatia from 1990 through the beginning of 1992, and in that context, his

23 evidence in 92 bis form, producing this tranche of relevant political

24 material requires a case to be put by them in the form of producing the

25 witness to state what the position is as he sees it.

Page 12219

1 JUDGE MAY: But I just wonder whether we don't ascribe too much

2 importance to oral evidence. How does it improve on a statement for the

3 evidence to be given live? What is the magic, as it were, of live

4 evidence about matters such as this? I can see about matters such as

5 events and conversations; yes, of course. But this is simply describing

6 the involvement of institutions, when the story possibly can best be told

7 through the documents. Isn't that right?

8 MR. KAY: The story can certainly be told through the documents,

9 but what's at stake here is the putting of a case and the making of

10 allegations. If this goes in, no effective case has been put against the

11 accused. How does he then deal with it? Statements have been made in

12 opening, statements have been made by witnesses. This witness himself,

13 who is central to the production of this material from 1990 to 1992 --

14 JUDGE MAY: What does he say live? I can see in cross-examination

15 he may have things to say, but what does he say live which adds to this

16 particular statement? What do you foresee him doing?

17 MR. KAY: He's not my witness.

18 JUDGE MAY: No, but you see, you use the expression such as

19 putting the case. Now, that's for the Prosecution to do; it's not for the

20 witness to do that. And what I'm asking, rhetorically, is what does his

21 live evidence add to what is in his statement and more importantly,

22 perhaps, what's in the documents. And then we have to make a judgement,

23 of course, about that.

24 MR. KAY: The case that they put is through the witness's

25 evidence. At the moment, they have put a case in opening and in the

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Page 12221

1 indictment and in the pre-trial brief which needs evidential support to

2 have any standing at all. To have made their assertions against the

3 accused and then seek to back it up in the briefest forms by a ten-page

4 statement, and then with two lever-arch files of documents containing

5 detailed historical and political material is not something that the

6 accused can properly meet.

7 JUDGE MAY: So you would -- I mean, it isn't a question,

8 presumably -- this is about documents, where the witness has to give his

9 evidence live in order that the Chamber can judge whether he's telling the

10 truth about it and whether he comes up to proof. This isn't such a case.

11 But what you're saying, then, is that the Prosecution should go through

12 the documents, pointing out the significance. Is this what you're saying,

13 rather than just putting a document in, saying, "Look at this, paragraph

14 so-and-so"?

15 MR. KAY: Absolutely. At the moment, it's fairly meaningless, and

16 in our view, doesn't assist the Trial Chamber perhaps in relation to these

17 issues.

18 [Trial Chamber confers]

19 JUDGE MAY: Thank you, Mr. Kay, unless there's anything you want

20 to add.

21 Yes, Mr. Milosevic.

22 THE ACCUSED: [Interpretation] You know that I am emphatically

23 against the application of this Rule 92 bis, which actually boils down, in

24 view of the practice implemented here over the past few months, to

25 limiting my ability to cross-examine. This virtually means that a large

Page 12222

1 pile of documents and allegations are produced here and then examination

2 of the witness is made impossible. And in this case we see that the

3 witness doesn't even have to testify; he just has to bring the documents.

4 Then I ask myself: What is the purpose of his appearing if he is only in

5 the role of a postman or an archives officer, which he couldn't have been,

6 in view of his position, documents which the Republic of Serbian Krajina

7 issued ever since they were established, the formation of the Serbian

8 Autonomous Region and later on the Republic of Serbian Krajina and other

9 developments? Therefore, in addition to what Mr. Kay has already said and

10 which I think was quite correct, I would just like to add that the main

11 issue which prejudices the possibility of comprehending the truth is the

12 restriction on my abilities to cross-examine.

13 I still haven't had occasion to review all those documents, and if

14 you have 70 documents, then you must give me a chance to ask the witness

15 about each and every one of those documents and to ask him about the links

16 and the degree to which he can confirm or assert that the government of

17 Serbia, or I personally, or the bodies of the Republic of Serbia, were in

18 any way involved in all this, because there is no doubt that it was not

19 Serbia that installed, in a third of a territory inhabited by the Serbian

20 people. Those people were not installed there by the Republic of Serbia

21 in 1990. Those people have been having there for several centuries. And

22 as we have established, they sought to survive there rather than to

23 restrict the rights of anybody else.

24 So I think this will open a whole range of issues, and this is a

25 typical example of a witness who is not appropriate for being produced

Page 12223

1 under 92 bis. He should come and testify in court, and I should have the

2 opportunity to cross-examine him in detail. So it is my position that the

3 application for him to be treated through this abbreviated procedure

4 should be rejected but that he should be treated in full, covering all the

5 aspects of his testimony, that he should, in other words, appear live.

6 [Trial Chamber confers]

7 JUDGE MAY: Yes. We're looking at the time now. I think we're

8 now in a position to deal with the witness, which we will do in private

9 session. But before we do, I should say that, Mr. Nice, we'll postpone

10 your argument until the end of the morning.

11 [Trial Chamber and registrar confer]

12 JUDGE MAY: Yes. And we'll go into private session.

13 [Private session]

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5 [Open session]

6 THE REGISTRAR: Your Honours, we're back in open session.

7 JUDGE MAY: If you need, Mr. Nice, to contact the witness about

8 these matters during any adjournment, you may, of course.

9 Mr. Milosevic, it's for you to cross-examine. You've got up to

10 two and a half hours to do so. Would you bear in mind the necessity of

11 asking any questions which may reveal identity in any way in closed -- or

12 private session, rather. So if there are any questions, particularly

13 about matters which the witness dealt with in private session yesterday,

14 they should, of course, be dealt with in private session. Yes.

15 THE ACCUSED: [Interpretation] I should like first of all to make

16 an objection and say that this has now become widespread practice, it

17 appears, that all this is taking place in private sessions. It is my firm

18 conviction, and I don't mean only with respect to this witness but with

19 several of the previous witnesses as well, that the arguments put forward

20 for the protection of witnesses are being used too widely and for the

21 public to be excluded from the examination taking place. [redacted]

22 [redacted]

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4 JUDGE MAY: That's precisely the point which was in issue. Now,

5 that was in private session, as you know quite well. Now, this objection

6 will stop. No point making it. The Trial Chamber decides on the grounds

7 of the protection of the witness what matters should be in private

8 session. As far as you're concerned, the fairness of the trial involves

9 your being able to cross-examine. There's no prejudice to you having to

10 do it in private session as opposed to public session. The prejudice, I

11 suspect you think you can show is that you're not able to appear in

12 public. Now, that's no prejudice to you.

13 THE ACCUSED: [Interpretation] Mr. May, I have told you on several

14 occasions here that the only motive that I am availing myself of the

15 opportunity to cross-examine the witnesses is for the public to be able to

16 hear the truth. Now, when you close a session --

17 JUDGE MAY: What, Mr. Milosevic, you do not understand is this:

18 That it is this Trial Chamber which is trying this case, not the public.

19 Now, all sessions should be, as far as possible, held in public, of

20 course. It is one of the fundamentals of any judicial system and it is a

21 fundamental of this one. But as against this, you must understand that

22 there are problems about the security of witnesses which sometimes

23 overrule the necessity of public sessions. The point which I make is that

24 it does not affect the fairness of the trial, because the trial goes on

25 with your being able to cross-examine the witnesses, albeit in private

Page 12230

1 session. So it has no bearing on that.

2 Now, it is of no concern of yours whether the sessions are public

3 or not. What you should concentrate on is your cross-examination, either

4 privately or publicly. Now, you have been told that those matters which

5 were dealt with privately must be dealt with privately today. Bear that

6 in mind. The time that has been wasted on this matter which we've been

7 through several times before will be taken from any cross-examination.

8 Yes.

9 MR. NICE: Can I make one point? That the observation by the

10 accused which sought to reveal something that was given in closed session

11 of course will be redacted from the transcript. Might the Chamber think

12 it worth explaining to the limited number of people present who happened

13 to have heard it that publication of that which they happen to have heard

14 would itself be a contempt and therefore expose them to liability?

15 JUDGE MAY: Yes.

16 MR. NICE: Because we have to be very careful of that.

17 JUDGE MAY: Yes. The public gallery have heard that warning.

18 It's repeated by the Trial Chamber.

19 Yes, Mr. Milosevic.

20 THE ACCUSED: [Interpretation] Since this question of

21 identification of the witness is taken as broadly as it has been, I really

22 cannot be certain as to the extent to which any question of mine will help

23 identify him, in view of all the things -- the matters he presented here.

24 But let me try, because I would like to cross-examine the witness in open

25 session and not in a private session, and I should like to say once again

Page 12231

1 that I think that secret, covert trials are the characteristics of times

2 past, and nobody can be proud of those times. As the operation that is

3 being conducted here you call a trial, then I'm sure that it can apply to

4 that too

5 WITNESS: WITNESS C-020 [Resumed]

6 [Witness answered through interpreter]

7 Cross-examined by Mr. Milosevic: [Continued]

8 Q. [Interpretation] I'm going to ask a few questions which will not

9 disclose the identity of the witness, but they do have to do with you.

10 [redacted]

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14 A. Right.

15 JUDGE MAY: [Previous translation continues] ... dealt with in

16 public session? No. We'll have to go into private session for these

17 questions.

18 THE REGISTRAR: Your Honours, we're in private session

19 [Private session]

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17 [Open session]

18 THE REGISTRAR: Your Honours, we're now in open session.

19 JUDGE MAY: I should say that we started rather later today, so we

20 propose to do this: To take the break at 5 minutes to 11.00. We'll break

21 then for 25 minutes. And the next session will be between 11.20 and 1.00.

22 Yes.

23 THE ACCUSED: [Interpretation] Are we in public session again?

24 JUDGE MAY: We're in open session, yes.

25 MR. MILOSEVIC: [Interpretation]

Page 12249

1 Q. Very well. You say that you went to the Ozren battlefield. Tell

2 me, what was the motive for you to go to the front there?

3 A. The first motive was I had no feeling of safety. I doubted that I

4 might have problems because I had abandoned that group and because -- the

5 second reason was that I came from Ozren originally.

6 Q. So I understand that your motive was to seek shelter from the

7 danger, threatening, from the group that you had left.

8 A. Eighty per cent, 80 per cent of the reason.

9 Q. Yes. Well, then, did you go there prompted by any other motives

10 except to save your life from the group which you had abandoned?

11 A. Yes. I went as a volunteer, because the whole area I come from

12 originates from there, and no one went there as a volunteer. I was

13 perhaps the first.

14 Q. Very well. You even testified about Lovas, and mentioned the

15 names of those responsible for the events in Lovas?

16 A. That was just my answer to the question about whether I had heard

17 any rumours.

18 Q. Very well. Is it true that not one of those persons was a member

19 of the JNA or the Ministry of the Interior of Serbia?

20 A. No. They were all locals, at least the persons that I mentioned.

21 Q. Very well. You say that after the fighting in Vukovar, the JNA

22 took a large number of Croats to collection centres in Serbia because they

23 wanted to remove them from the area, as they were afraid that local armed

24 TO members in the villages around Vukovar might perhaps kill them. Is

25 that right?

Page 12250

1 A. I didn't state that exactly.

2 Q. Well, please tell us. Describe the situation. For what I'm

3 asking you is: Is it true that members of the JNA were saving Croatian

4 civilians from possible destruction, or also prisoners, saving them from

5 the danger they could have been exposed to from the local inhabitants?

6 A. Yes, that too. But in the statement there is reference to the

7 interception of a bus and other buses that were taken on a deviating

8 route.

9 Q. So precisely the incident you are mentioning was an attempt to

10 seize the prisoners from the army; is that right?

11 A. Yes. In one case, yes.

12 Q. Is it even -- do you know that the army even changed routes to

13 avoid passing through areas where there was a danger for people to kidnap

14 the prisoners?

15 A. Yes. They took a different route.

16 Q. In your conviction, did the army do that to save the lives of

17 those people?

18 A. I think so, yes.

19 Q. And were there several situations when the local populations

20 blocked the path when the army was taking away prisoners, trying to stop

21 them and to seize them from the army? Was that just one case or were

22 there several incidents of that kind?

23 A. I heard that there were another couple of cases, but I cannot

24 confirm that with certainty. I know of this one for sure.

25 Q. Is it true that in connection with the events in Lovas, JNA

Page 12251

1 officers intervened with the government of SAO Slavonia, Baranja and

2 Western Srem and they protested and intervened in that connection?

3 A. As I said with regard to Lovas, I heard stories about what had

4 happened, and I also heard stories in a there was some dispute or

5 conflict; between whom, and for what reason, I don't know exactly.

6 Q. Very well. I think that you spoke in open session about becoming

7 a volunteer in 1993 within the ranks of the Serbian volunteer guards of

8 Zeljko Raznjatovic, Arkan, and that you went to Krajina.

9 A. Correct.

10 Q. This was after the fall of Maslenica, wasn't it?

11 A. Yes.

12 Q. So that was virtually after the incursion of Croatian forces into

13 the UN-protected area; wasn't it?

14 A. I don't know whether it was a protected area, but anyway, the

15 Croats captured Maslenica and some areas on Mount Velebit, and then the

16 whole Republic of Serbian Krajina, the Knin area and our area, were

17 mobilised. Before that, the situation was peaceful.

18 Q. This Serbian volunteer guard, of which you were a member, when

19 they arrived in the Republic of Serbian Krajina, did they place themselves

20 under the command of the army of Republika Srpska, the army of the

21 Republika Srpska Krajina?

22 A. Yes. We were accountable to them and we received orders from

23 them.

24 Q. Do you believe that they acted in a disciplinary -- disciplined

25 manner in executing tasks? Did they or rather you, did you go around

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1 burning, looting, killing, or doing anything that could be called a crime?

2 A. From the time I became a member of the Serbian volunteer guard, I

3 can say that it was the most disciplined and most responsible army that

4 existed in the theatre of war.

5 Q. That is what my information tells me, too so I just wanted to

6 check whether, in your opinion, as you were a participant, was any crime

7 committed by them against the civilian population, or anything like that.

8 A. Throughout the duration of the operation, we didn't have any

9 contact with the Croatian civilians, but only with our own, because these

10 were all battles on the front line, in other words, in uninhabited areas

11 mostly.

12 Q. Very well. Since in the aggression by the Croatian army in 1993

13 the Serbian villages suffered Islam Grcko, Kasica, and mixed villages,

14 Murvice, Gornji Zimonjic and so on, so you came to that area to provide

15 protection for them, preventing the possibility of the attack against

16 Serbian villages escalating. Is that right?

17 A. Yes. We formed a line and we launched a counterattack to restore

18 control over captured territory.

19 Q. Do you know that on that occasion some soldiers of the United

20 Nations were killed by the Croatian side?

21 A. I personally did not know that.

22 Q. So you were in Republika Srpska Krajina at the Knin field of

23 operations from January until March 1993, as a volunteer; is that right?

24 A. Yes.

25 Q. Is it true that this volunteer unit, and you, at the Knin theatre

Page 12254

1 of operations, did not have anything to do with the JNA or the Republic of

2 Serbia, in any sense whatsoever?

3 A. With the exception that there were quite a number of people from

4 the Republic of Serbia; otherwise we had nothing to do with the Serbians,

5 I mean our men had nothing to do with them.

6 JUDGE MAY: We have had a note from the audiovisual booth that the

7 videotape has to be changed now. We would have to adjourn for that to be

8 done. So we'll take the adjournment early. We'll adjourn now for half an

9 hour.

10 --- Recess taken at 10.45 a.m.

11 --- On resuming at 11.16 a.m.

12 JUDGE MAY: Yes, Mr. Milosevic.

13 MR. MILOSEVIC: [Interpretation]

14 Q. In March 1993 you returned because of wounding, and your unit

15 stayed behind for another two months; is that right?

16 A. Not because I was wounded, but an old injury. I was injured in my

17 foot, and because of very cold whether on Mount Velebit, I started

18 haemorrhaging.

19 Q. After that, you said that a unit was formed called the Super

20 Tigers, and you were asked whether they went into action, and your answer

21 was that in those days there were no actions. Is that right?

22 A. There were no military actions.

23 Q. Were there any other kind of actions?

24 A. For providing security for certain important persons, political

25 parties, or politicians from Krajina.

Page 12255

1 Q. You were then asked what kind of caps they wore. You said they

2 wore black ones. And then they asked you to specify -- or more

3 specifically, whether they wore red caps, and then you said that a unit

4 called the Red Berets wore red berets, but that they were not in that

5 area.

6 A. At that time they were not.

7 Q. Afterwards you said that they were disbanded. Some went to

8 provide security for individuals, some were released home. Simply, the

9 unit was disbanded.

10 A. Yes.

11 Q. You also mentioned, as far as I gathered -- you provided some

12 certificates regarding your participation in combat. I understand that

13 you have two certificates of some kind, and both come from the Republic of

14 Srpska Krajina; is that right?

15 A. One is from the Republic of Srpska Krajina and the other from

16 Republika Srpska.

17 Q. In your statement, it says that in 1994, in mid-1994, that you

18 were ordered to report, and you corrected and you said that you were not

19 order, that you were called, and you could have not responded. It wasn't

20 an order; it was an offer for you to join a unit. Is that right?

21 A. It wasn't an order that I had to carry out. It was up to me

22 whether I wanted to or not.

23 Q. So some kind of volunteer unit was being formed?

24 A. It wasn't the formation of a volunteer unit. It was our own unit

25 that had been disbanded and was being remobilised.

Page 12256

1 Q. Yes, but on the basis of the free will of people who wanted to

2 participate, not on the basis of any order?

3 A. Of course. Not everyone responded.

4 Q. And there's no doubt that these were volunteers, is there?

5 However, you say that together with that unit you went to the autonomous

6 province of Western Bosnia, the region of Velika Kladusa.

7 A. Yes.

8 Q. And that you had several assignments over there. On page 17 of

9 your statement, you say that Serbs from Serbia proper could not fight on

10 the Bosnian battle fields. Is that right?

11 A. Not that they were not allowed to, but regular units should not

12 have been present in the area where we were. But this didn't apply to the

13 population of Serbs. Who wanted to be a volunteer could.

14 Q. I'm not talking about volunteers. Serbia has 10 million

15 inhabitants. I'm just saying that there were no units from Serbia

16 officially there.

17 A. No, they were not allowed to be there.

18 Q. So there's no dispute that these were volunteers. And as far as I

19 have been able to gather, it is also not in question that this unit was

20 engaged by the autonomous province of Western Bosnia, not to fight but to

21 provide instructions to their combatants to assist them in their training,

22 and not to take direct part in any kind of military activities. Is that

23 right?

24 A. The assignment to give instructions came later. Initially we took

25 part in operations.

Page 12257

1 Q. Yes, but yesterday you said they didn't respect orders not to take

2 part in operations because their task was only to assist and instruct. Is

3 that right or not?

4 A. Later on we learnt that we should not have taken part in direct

5 operations but only indirectly.

6 Q. In your statement, it says that you stayed there until the

7 liberation of Velika Kladusa, but yesterday you corrected that and said

8 you went earlier because you were wounded.

9 A. Yes, I was wounded on the 21st of November.

10 Q. Very well. While you were there, did you know anything about the

11 situation in the region of Velika Kladusa and about the fact that the

12 population of the autonomous province of Western Bosnia, which is Muslim,

13 was opposing what I would call the extremist Muslim wing of the army of

14 Alija Izetbegovic?

15 A. Yes. Before that, there was the autonomous region of Western

16 Bosnia, and then the 5th Corps and the units of Alija Izetbegovic expelled

17 them, and then came the second stage, with our instructions, when we

18 restored control of those territories.

19 Q. As you were there for a couple of months, did you learn anything

20 about the horrors committed by members of the 5th Corps of Atif Dudakovic

21 against the Muslim population of the autonomous province of Western Bosnia

22 against civilians and fighters of Fikret Abdic?

23 A. I do know that all the combatants in Western Bosnia were first

24 captured by the corps, that they were exposed to torture, mistreatment,

25 and that a large number of them were killed.

Page 12258

1 Q. The inhabitants of Western Bosnia, were they disposed friendly

2 towards you? Were they friendly towards you or were they giving the

3 impression of people who were moderates, who were in favour of having a

4 communal life, and who wanted things to become more stable, to develop the

5 economy, for a peace agreement to be signed, anything of that kind? Did

6 you learn about that while you were there?

7 A. Well, I can give you my own personal opinion, and it's this:

8 People whose conduct was proper and who were friendly, I didn't meet

9 anybody like that on the battlefield, even among my own people, that is to

10 say, among the Serbs.

11 Q. You were asked, when we were in private session, so I don't know,

12 Mr. May, whether we ought to go back to a private session now.

13 JUDGE MAY: Yes.

14 THE ACCUSED: [Interpretation] But I'm following the order of the

15 examination-in-chief.

16 JUDGE MAY: Yes. If the matter was dealt with in private session,

17 it should be dealt with again in private session.

18 [Private session]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 12259

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16 [redacted]

17 [Open session]

18 THE REGISTRAR: We're now in open session, Your Honours.

19 MR. NICE:

20 Q. You were asked some questions about the evidence that you gave of

21 your going from Belgrade and then eventually going across into Bosnia,

22 through Bosnia, and into Croatia to fight, and the accused suggested to

23 you that there was no question of Serbs from Serbia proper fighting. Can

24 I just read the two passages that touch on this in your statement? One is

25 at page 17 and one is at page 18, and ask for your comment. On page 17,

Page 12292

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Page 12293

1 the witness says this in his statement:

2 "We crossed the border over a bridge in the area of Bijeljina. I

3 knew that there was an embargo and that no equipment or personnel from

4 Serbia proper were allowed in the territory of Bosnia-Herzegovina.

5 However, while we were waiting to cross, I heard rumours that we were

6 waiting for Russian UN members to take their duties over at the bridge, as

7 they could be bribed to let us cross."

8 You then deal with the detail of the movements.

9 On page 18, you say this:

10 "Frenki ordered the Red Berets would not participate in further

11 combat operations because we had a number of losses which were allegedly

12 difficult to justify in reports, as Serbs from Serbia proper were not

13 supposed to be engaged in the Bosnian battlefield."

14 Are those two passages in your statement correct?

15 A. In the first portion, you said "bribed the Russians." I don't

16 know that I said "bribed." I think I said that they should reach an

17 agreement with the Russians about the crossing of the river.

18 Now, in the other section where there were problems, there were

19 problems because of the death of Colonel Mita and Colonel Kole, so it was

20 difficult to justify, because one of them was a high-ranking official of

21 the special police in Erdut, and his photograph came out in the obituary

22 published by the Belgrade papers. And after the stories that were told

23 that he was a high-ranking officer in Serbia as well, in the police force.

24 So because of those losses, those deaths, we weren't allowed to go into

25 direct action.

Page 12294

1 Q. You were asked questions about involvement with or no involvement

2 with the JNA or MUP, but just remind the Judges: Were you paid for the

3 operations you were performing in this area?

4 A. In Kladusa, yes.

5 Q. Yes. And the payment you received was actually paid to you, apart

6 from the per diems, back where?

7 A. Part of our salaries we received in Kladusa itself and the second

8 half when we went back to our headquarters in Belgrade.

9 Q. Do you actually know yourself where those funds came from that

10 paid you, or not?

11 A. There aren't any documents about it except a piece of paper which

12 we would sign to say that we had received the money that we were given.

13 But once again, the stories and rumours were that part of our salaries

14 came from the MUP of Serbia, and the second part came from Arkan himself.

15 Q. And you were actually paid at what location?

16 A. I said: We were paid in part in Kladusa, and the rest of it was

17 paid when we went on leave to Arkan's headquarters.

18 Q. Thank you. And then finally, about the Red Berets, a couple of

19 things. Frenki -- have we actually got Frenki's full name from you? Do

20 you know his full name?

21 A. No.

22 Q. The Red Berets that you saw, do you know where they came from,

23 what was their original source?

24 A. I can't tell you exactly where they were stationed all the time,

25 but the leading -- leaders of the Red Berets was linked up to Lipovacka

Page 12295

1 Suma. That was the starting point. Belgrade, Mount Tara, from Tara back

2 to Lipovacka Suma, where we would collect up our equipment and went back

3 to Bosnia. Now, whether they had any permanent barracks or anything of

4 that sort, I don't know, but that's where they left from, and that part of

5 those offices were in those barracks.

6 Q. And do you know whether those Red Berets were members of any other

7 group or had been members of or were derived from another group?

8 A. The stories going round were that the Red Berets were members of

9 the state security of Serbia.

10 Q. Thank you very much.

11 MR. NICE: Nothing else. Thank you, Your Honour.

12 JUDGE MAY: Witness C-020, that concludes your evidence. Thank

13 you for coming to the Tribunal to give it. You are now free to go.

14 [The witness withdrew]

15 MR. NICE: Can we return, when the Court is properly open, to the

16 argument this morning?

17 JUDGE MAY: Yes. We'll deal with that. We've got until 1.00. We

18 might as well start now.

19 MR. NICE: Very well. The argument, or the discussion of the

20 application of 92 bis is not only important for this witness, but it's

21 also important for the way forward generally. We are present, I should

22 say, reviewing witnesses to come in the weeks ahead to discover how much

23 of their evidence might properly be approached on a part 92 bis basis and

24 then we'll be approaching crime-base witnesses and some others on the

25 basis that they may be taken truly 92 bis. We've delayed making this

Page 12296

1 first review until we've seen how these first witnesses have gone.

2 I should say as to this particular witness, to meet one of the

3 concerns about publicity or a public hearing, that there has been a public

4 version of the witness statement --

5 JUDGE MAY: Let's get the blinds up.

6 MR. NICE: Your Honour, shall I carry on? There's a public

7 version of the witness's statement filed on the 16th of October, so that

8 the problem that sometimes has been raised about 92 bis statements being

9 difficult for the press, and so on, to review in time is one that doesn't

10 apply. The statement is substantially complete, with one or more minor

11 redactions, and that was served on the 16th of October. And although the

12 associated documents aren't yet available publicly, and although it might

13 be administratively difficult to arrange for that to happen in advance of

14 testimony, I can see no reason why, on a one-off basis, that shouldn't be

15 arranged as well, were that to be judged important from the point of view

16 of public accessibility of all this material. So far as those documents

17 are concerned, those were served on the accused's associates. He claimed

18 not to have had them on the 17th of October. Of course, there's a

19 considerable amount to be read. That's one of the reasons we aren't

20 working five days a week, because there is, of course, work to be done in

21 the days when we aren't sitting.

22 So that much by way of opening observations.

23 It seems there may be some misunderstanding, but I can't believe

24 this to be the case, about what's intended. The position is that this

25 witness is going to be a very substantial witness in any event. His

Page 12297

1 evidence in chief, even if this part of it goes in 92 bis, is likely to

2 occupy several days, perhaps three. The accused and the amici have been

3 provided with tapes and transcripts of material. The transcripts are in

4 excess of a thousand pages. They've been provided as followings: to the

5 amici on the 20th of September, to the accused on the 2nd of October.

6 In the course of his wide-ranging testimony, he is bound to cover

7 and to comment on many of the matters set out in a neutral,

8 straightforward way in the 92 bis statement. I'm not suggesting the

9 witness won't be straightforward, but insofar as there are comments on

10 these documents and comments on the events that are proper to come from a

11 witness, they will come from him in his direct testimony in any event.

12 And what we seek to do by this 92 bis application is to save probably two

13 days of testimony, which is testimony that really puts in the basic

14 library of documents and the basic structure of events. It is essential

15 for some witnesses, and this is one, to have a standard library of

16 materials to which we can all turn. The options are taking an extra two

17 days putting the material in, which can be saved by putting it in for

18 pre-reading in this way, and then it being easier for all of us to refer

19 to the documents in questioning and in cross-examination.

20 JUDGE MAY: The issue -- two issues seem to be raised, one which

21 is -- or may be important for the Rule, the other one which is maybe of

22 importance to the case but doesn't strictly apply to the Rule. As I

23 understand it, the amicus makes these points: He says, first of all,

24 these documents relate to a central issue in the Prosecution case, namely,

25 the creation of the SAO Krajina; and he says, secondly, as I understand

Page 12298

1 it, that you should be making your case through the documents. And what I

2 took him to mean is you should perhaps be indicating what may be of

3 significance and what may not, as opposed to just giving us the documents

4 to read.

5 MR. NICE: I'm quite sure that, as to the second point, matters of

6 significance will be dealt with by reference to documents and/or to

7 historical events by the witness insofar as it's necessary for our case to

8 do so. It is not necessary for those purposes that he slavishly goes

9 through all the documents to set out the structure, and the documents --

10 JUDGE ROBINSON: I don't think he has to go through all of them,

11 but a point that I take account of is that the accused is not represented,

12 and in considering issues of fairness, that has to be taken into

13 consideration. It seems to me that not only is this a matter that is

14 central to your case - and for my part, I don't consider it falls under 92

15 bis A(i)(b) - it speaks of matters relating to relevant historical,

16 political, or military background, emphasis on background. This is not

17 background. It is so central to the case, it can hardly be described as

18 background.

19 But back to the point I was making. I think in assessing the

20 question of fairness to an accused who is not represented, it is essential

21 that he has a clear knowledge of the Prosecution evidence, and if the

22 Prosecution witness were led and the significant points highlighted, I

23 believe that that would be -- that would significantly enhance the whole

24 fairness of the case to the accused. I don't believe, for from own part,

25 that it is necessary to go through all the documents, for him to be led on

Page 12299

1 all, but I think he could be led on, say, two or three from each section,

2 and the others could be put in.

3 MR. NICE: I have little doubt that he will be taken through two,

4 three, or many more, per section at some stages, but that it's not

5 necessary - and I respectfully differ from Your Honour on this - it's not

6 necessary to lay the material out as a single and separate methodical

7 exercise which will simply consume a large amount of time, when that can

8 properly be pre-read. Because the way he expresses himself in the

9 proposed 92 bis statement is essentially neutrally and objectively.

10 Can I come back to perhaps Your Honour's first point in a second

11 to make this point as to the statement itself. We know from earlier 92

12 bis exercises that where any particular part of a 92 bis statement - which

13 would probably be summarised as to its effect by the advocate before the

14 document or as the document goes in - where any particular part of it is

15 decided appropriate for evidence to be given viva voce, then that happens,

16 and it can either happen because the Chamber or the accused makes it clear

17 that it should happen in respect of a particular paragraph right at the

18 beginning, or - and this might be another way of approaching this

19 particular problem - if the statement of this particular witness, if this

20 statement were to be accepted, pre-read by the Court, with the documents

21 considered in advance and, as I say, the material available publicly, and

22 if the witness's evidence is then heard in the way that we propose,

23 lasting two or three days in chief, with a review thereafter, the Chamber

24 might say: Yes. Well, we can now see that there's absolutely no need to

25 go through slavishly any part of this statement, or any other of these

Page 12300

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Page 12301

1 documents, save perhaps for the following. And it would be desirable to

2 have the witness give those parts of the material live before

3 cross-examination.

4 To come back, then, to Your Honour's first point. As, of

5 course, we all understand, 92 bis's list of factors is not exhaustive and

6 is only exemplary, and indeed the amici do not suggest that this material

7 falls outside the provisions of 92 bis. This material is either

8 historical or political background, in reality - and there, of course, I

9 must respectfully differ from views already given by the Chamber - or is

10 sufficiently analogous to it as to merit favourable consideration for the

11 purpose of 92 bis. For what is it doing? It's simply laying down the

12 standard documents and the standard publicly available - if I use the word

13 "history," that's in itself tendentious - the publicly available account

14 of the sequence of events that led to the creation of the bodies at

15 particular dates in time.

16 JUDGE MAY: The argument is that this is -- it's only an argument,

17 but the argument is that this is central to your case. Would you deal

18 with that for us, please.

19 MR. NICE: Yes.

20 JUDGE MAY: Therefore, I suppose, the Rule should not apply.

21 MR. NICE: The establishment of the entities is not what's

22 essential to this case; it's what happened once those entities were

23 established.

24 JUDGE MAY: The indictment concerns various events thereafter.

25 MR. NICE: Yes. So it's not actually the mere establishment of

Page 12302

1 the entities themselves that was criminal or is charged; it's what people

2 did once those events had happened and once those bodies had been

3 established. So that we respectfully -- although these are always matters

4 of definition and shades of grey, and so on and so forth, but we

5 respectfully do not accept, at all, that these are themselves matters

6 central to this indictment or to the charges against this accused.

7 Your Honour, for those reasons, we would say that this is

8 material that really must be taken, or should be taken, in a way that will

9 save time, bearing in mind that there are all the safeguards available

10 should the Chamber subsequently think: Well, maybe either generally or

11 maybe in respect of this paragraph or that, it would be better to have the

12 evidence live from the witness before cross-examination, or even

13 afterwards. There is no prejudice the accused in a position to

14 cross-examine. He's been given the longest lead time that we've been able

15 to arrange for him to review the material. His associates have got the

16 documents so that they can review them. No prejudice. His

17 cross-examination time will of course be limited, but although the

18 Chamber has recently generally applied a policy whereby time for

19 cross-examination is matched to the time taken in evidence in chief,

20 the reality is that time, whether greater or lesser than the amount taken

21 in chief, has to be related to the needs of the accused to deal with the

22 case against him. And therefore, I'm sure the Chamber won't deprive the

23 accused of an adequate opportunity to deal with all the evidence of this

24 forthcoming witness, the evidence live and, as we would suggest, the

25 evidence that can be presented in advance, in writing, in this form. And

Page 12303

1 Your Honour will not be surprised to know that I would urge on the Court

2 the appropriateness of the observations Your Honour Judge May made - I'm

3 not suggesting as other than a proposition for consideration - arguments

4 about how we must find ways, in a case like this, of being efficient and

5 innovative, and how indeed there is no necessary advantage of oral

6 evidence over written evidence in relation to matters of this kind. Oral

7 evidence is, of course, important where issues of credibility arise. On

8 these matters, which are, for the most part, if not almost completely,

9 matters of public record, the credibility of the witness is hardly likely

10 to be an issue at all, much more so, of course, where he starts to comment

11 on these events, which he will be doing in his evidence live in any event.

12 So, Your Honour, unless either of my colleagues thinks there's

13 anything else I should add, this is an exercise that would assist the

14 Chamber by providing it in advance with necessary detail, will save a

15 considerable amount of time, will create no prejudice, and if in the event

16 it's thought to be an exercise that went too far in respect of this

17 paragraph or that, can be put right on the day.

18 JUDGE KWON: So the only concern is -- for the Prosecution is

19 time, to save time?

20 MR. NICE: No. First of all, if a primary concern of the

21 Prosecution was to save time, I don't think that the Chamber would

22 probably criticise us for that, because I understand that the Chamber is

23 itself very concerned with the saving of time, so it's pretty high on our

24 list of priorities. But I think in addition to that, we take the view

25 that with cases of this scale and complexity, it is important in the

Page 12304

1 overall management of the case that we use the appropriate methods for

2 having evidence considered. 92 bis provides, for example, through this

3 witness, one method whereby in a modern court, and without a jury, with

4 literate Judges - I don't mean that in any offensive sense, but I mean

5 absolutely literate Judges, able to consume large quantities of material

6 swiftly - it is simply paying artificial respect to perhaps procedures

7 that are inappropriate and rooted in another age to think that every word

8 has got to be given live in court. In a modern scientific age, I don't

9 think anybody would really argue that that is the most efficient way of

10 dealing with things.

11 JUDGE KWON: Just let me raise this before we adjourn, before we

12 rise. In terms of time, as you know, this Trial Chamber is allowing the

13 accused, for the time of his cross-examination, the same time as the time

14 spent by the Prosecutors for his examination-in-chief. So if a part of

15 evidence of a witness would be given in the form of 92 bis, the accused

16 might be given less time than when we would have heard the witness live.

17 So I wonder -- I wonder that the Prosecution has that in mind and whether

18 the Prosecution has been requested for such arrangement by the witness.

19 MR. NICE: Absolutely not. We have it in mind. I've addressed it

20 already, and we're going to come to it again in due course, perhaps in

21 another setting. My understanding is that with an accused who is not

22 represented and who has taken the attitude this accused has to this

23 Chamber, that the equality of time for examination-in-chief and

24 cross-examination is largely a rule of thumb which applies where there is

25 no reason for an exceptionally long period of time to be granted to him.

Page 12305

1 Where material goes in by 92 bis, of course different considerations

2 arise. And as I've already suggested, the true measure of time that the

3 accused must have is the amount of time that he needs, given the evidence

4 that is before the Court from the particular witness. And so --

5 JUDGE MAY: I don't think it's thought a difficulty. We could

6 extend the time for correction if cross-examination, if approved, if we

7 thought it right, if the statement was admitted under 92 bis, but we

8 really have to get away from some very outmoded practices which require

9 all evidence to be given orally when there's very little point to it.

10 Now, there's one minute left. Mr. Kay seems to be anxious to say

11 something.

12 JUDGE KWON: Just a second. You expect two days for

13 examination-in-chief?

14 MR. NICE: No. Three days as it is. With this material, another

15 two days, perhaps up to five days in chief will be required for this

16 witness.

17 JUDGE KWON: Thank you.

18 JUDGE MAY: Yes.

19 MR. KAY: I can see in the Prosecutor's presentation that there

20 are a large number of documents that they could skim over which would take

21 a very short period of time, such as the appointment of ministers. But

22 documents concerning the statute --

23 JUDGE MAY: Such as the statute. Why do we need to have evidence

24 given about the statute? Just produce it.

25 MR. KAY: The statute and the constitution, as I understand it, is

Page 12306

1 going to be evidence that he's giving anyway, and this particular witness

2 is going to be dealing with that anyway. So taking it out of this

3 section, I'm not really sure what's happening there, because the

4 Prosecution have said quite clearly that he is going to be referring to

5 these documents.

6 JUDGE MAY: Is there any reason why, if we can reach some sort of

7 sensible compromise about this, with witnesses going on as long as this,

8 is there any reason why this evidence shouldn't be led, if you're trying

9 to insist that it all be given, led in the literal sense?

10 MR. KAY: We have relaxed rules about that, and a vast many of

11 those documents can be dealt with in that way, as I say. But there are

12 other documents which are very particular to the indictment. If we look

13 at paragraph 6 of the indictment, we can see how the case is put there:

14 Forcible removal of the majority of the Croat and other non-Serb

15 population to become part of a new Serb-dominated state through the

16 commission of crimes in violation of Articles 2, 3, and 5. These areas

17 included those regions that were referred to by Serb authorities.

18 JUDGE MAY: What would be helpful is for you to identify the

19 documents which you say are of significance in this. And since we're not

20 sitting tomorrow or Friday, you can do that, and we'll give our decision

21 on Tuesday morning, as it will be.

22 MR. KAY: Yes.

23 JUDGE MAY: Because it's important that this is -- opposed to a

24 generalised argument. If you're right that there are specific documents

25 which should be dealt with by live evidence, then they should be

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Page 12308

1 identified. At the moment, speaking for myself, I'm not with these

2 generalised arguments that evidence should be given orally when it doesn't

3 seem to be necessary, but it may be that there are some specific documents

4 about which evidence should be given, and of course we would look at that.

5 MR. KAY: Yes.

6 JUDGE ROBINSON: Particularly, also if you could relate it to the

7 indictment, as you just did.

8 MR. KAY: Yes.

9 JUDGE MAY: Very well. We'll adjourn now. Tuesday morning.

10 --- Whereupon the hearing adjourned at 1.02 p.m.,

11 to be reconvened on Tuesday, the 29th day of

12 October, 2002

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