1 Wednesday, 9 March 2005

2 [Open session]

3 [The witness entered court]

4 [The accused entered court]

5 --- Upon commencing at 9.05 a.m.

6 JUDGE ROBINSON: Mr. Nice, yes.

7 MR. NICE: Before re-examination continues, the Chamber will

8 remember yesterday at the conclusion of cross-examination I asked the

9 witness about a possibility of a document reporting to him from his mobile

10 team and the use of bad language; matters he denied. I have since then

11 been -- denied is the wrong word. Matters of which he had no

12 recollection.

13 I have since then had the necessary freedom to use the document

14 concerned. With your leave, may I put one document to the witness and ask

15 him about -- a couple of questions about it and that's all?

16 [Trial Chamber confers]

17 JUDGE ROBINSON: In the exceptional circumstances, we'll allow you

18 to put just one or two questions on that particular document. And I

19 should say that you're hard pressed the Chamber. Mr. Milosevic will have

20 to take some time out of the proceedings today. We have another hearing

21 which is going to be scheduled at about 1.00. So we're going to break

22 first at 10.40 and then at 12.30. 12.30. Yes, Mr. Nice.

23 MR. NICE: If Mr. Nort could very kindly lay this document on the

24 overhead projector, distribute it.

25 WITNESS: DIETMAR HARTWIG [Resumed]

1 Further cross-examination by Mr. Nice:

2 JUDGE ROBINSON: And remember, it's -- there's no German

3 translation.

4 MR. NICE: Oh, yes. I'm grateful for being reminded.

5 Q. Mr. Hartwig, this is, as we discussed yesterday, I think, a

6 document coming to you from mobile Pristina on the 15th of February, one

7 month after Racak. Fine. Thank you. The booth, perfect.

8 If we look at the bottom of the first block, we see that your

9 mobile unit reported "On the way back to Pristina bypassed through the

10 village of Racak where nobody could be seen except an old man who was back

11 for a while in order to check the property there." But then we see from

12 your mobile team under "Humanitarian/human rights," an observation which

13 we can read on the screen - I don't intend to read it out - about donkeys.

14 We saw your sensitivity in your own report yesterday. What we see there

15 about donkeys is entirely inappropriate, isn't it, for a serious mission?

16 A. I'm sorry, I have problems to hear you. It's due to pronunciation

17 or whatever, I have problems with my ears. Are you referring to the

18 statement under humanitarian/human rights?

19 Q. I am. That's an entirely inappropriate remark and shows a lack of

20 professionalism, doesn't it?

21 A. I -- It is an observation which has been brought to paper which is

22 superfluous as a --

23 Q. And never sanctioned by you.

24 A. Pardon?

25 Q. Never sanctioned by you.

1 A. I cannot remember if I -- if I read it. It was -- it was for sure

2 a point for the -- for a discussion or for a -- for a hint to concentrate

3 on real and important things, not something like this. It was basically

4 not our style. It was different to that what I brought in my draft of the

5 weekly assessment where I used something which had been verbally told or

6 which was used by people. This, I agree, is --

7 Q. That's all I need to ask you.

8 MR. NICE: Your Honours, I forgot yesterday to have exhibited the

9 document of October 1998. May that be exhibited.

10 JUDGE ROBINSON: Which one was that?

11 MR. NICE: That was the first -- the second of the two reporting

12 documents for which I had leave to use, and it was dated October 1998.

13 JUDGE ROBINSON: Yes.

14 MR. NICE: And may this document also be exhibited.

15 JUDGE ROBINSON: Yes.

16 THE REGISTRAR: That will be 835.

17 JUDGE ROBINSON: Yes. Mr. Milosevic. I understand there's

18 another one. Do you want this one exhibited too? Yes.

19 THE REGISTRAR: That will be 836.

20 JUDGE ROBINSON: Yes, Mr. Milosevic.

21 Re-examined by Mr. Milosevic: [Continued]

22 THE INTERPRETER: Could the microphone be adjusted, please. Thank

23 you.

24 MR. MILOSEVIC: [Interpretation]

25 Q. Mr. Hartwig, yesterday Mr. Nice gave you a letter which you sent

1 to General Lukic. Do you still have that letter in front of you? If not,

2 we won't lose time over that, but I'd just like to quote a brief portion

3 from the letter, but perhaps it would be easier if the letter were in

4 front of the witness.

5 JUDGE ROBINSON: Yes.

6 THE WITNESS: I don't have that copy of the letter.

7 JUDGE ROBINSON: Have the letter passed over to the witness,

8 please.

9 THE WITNESS: I have another letter in front of me. So we sent it

10 the same. It's not the letter we were talking about yesterday. Yesterday

11 it was a different letter. I think it was the first one I sent, and since

12 I didn't receive any response, I sent another one, and the second one is

13 dated 25 July 2003.

14 MR. NICE: It sounds as though the witness has produced from his

15 hotel room another document which we haven't seen, and if that's the

16 accused's intention in re-examination, well, we better have a copy of the

17 document. I'm not sure what's happened. And I thought --

18 JUDGE ROBINSON: Let --

19 THE ACCUSED: [Interpretation] That is not my intention nor do I

20 know about any other document because I haven't had any contacts with the

21 witness. I'm talking about the document that was produced yesterday by

22 Mr. Nice and quoted from and which I received yesterday from his offices.

23 JUDGE ROBINSON: Was that document exhibited? It's 834, 834.

24 JUDGE KWON: Yes. Mr. Hartwig, we were informed by -- from the

25 Registry that you produced the original letter written in German. Could

1 you give some explanation as to that?

2 THE WITNESS: Yes. What I just try to explain. I don't remember

3 the date I sent the first letter, but since I get -- didn't receive any

4 response, I sent another letter, and this letter I -- before this session

5 I handed over to the Court, and it might be the copy you have in front of

6 you right now, in German. And if I may just in a short version explain

7 what it reads.

8 It's a letter to General Lukic as well, and I begin: "I don't

9 know whether you are this general I met several times in Kosovo between

10 December 1998 and March 1999 --"

11 JUDGE ROBINSON: Okay. All right. Mr. Milosevic, let the witness

12 continue his -- I'll allow him to continue the explanation. Not too long,

13 because we want Mr. Milosevic to return to his examination.

14 THE WITNESS: I just introduce myself in order to remind, because

15 with my name I thought he couldn't begin too much. Then I explained that

16 I'm dealing with some collection of my experience of my observations, and

17 I referred to the event of Racak. And my point was I remember that close

18 to the entrance of that village there was a farmhouse on a forward slope

19 position, and I was told that occasionally MUP was there, and I wanted

20 finally to get a confirmation on whether this was one of the official MUP

21 positions or not. This is the basic contents of this letter.

22 Why I came out with this letter today, yesterday the Prosecution

23 requested to submit a document. This was all I had at home in my -- in my

24 folder, and subsequently this morning I brought it, and I'm very sorry it

25 is late. Thank you very much.

1 JUDGE ROBINSON: Thank you very much. So, Mr. Milosevic, you can

2 return now to the letter on which you wish to put some questions.

3 MR. MILOSEVIC: [Interpretation]

4 Q. Mr. Hartwig, you have already explained to us that you talked

5 several times and contacted General Lukic and that you discussed the

6 situation in Kosovo. I'm going to read out a part of this document, then

7 I'll ask you a question. It is -- in the copy that I have received, it is

8 from line 15 onwards. The lines have numbers. I don't know if you have

9 that in the same way in front of you. And this is what you say: "[In

10 English] The task that you had been given, until the time of our

11 evacuation, at the end could not be carried out, because you couldn't and

12 were not able to use your own means the way you thought it necessary, and

13 which would have been most appropriate to the situation."

14 [Interpretation] Would you please, Mr. Hartwig, be so kind as to

15 explain to us, since you're talking to him about a matter you had

16 discussed previously and you knew about, what was this all about,

17 actually? That is to say, that he wasn't able to use your means which he

18 considered necessary, that he couldn't do that, couldn't use your means.

19 Could you explain what you mean by that.

20 A. As I pointed out yesterday already, I had a very strong impression

21 that security forces tried avoid everything which could have resulted in a

22 violation of the Milosevic-Holbrooke agreement. This was basically the

23 background. And it was like driving with simultaneous using of brakes.

24 That was my impression of this discussion.

25 So basically I was not talking, and I do not intend to express

1 something like he should have used more or whatever concentrated power. I

2 just provide my feeling that they did not or didn't dare to do everything

3 they thought it was necessary.

4 Q. All right. Does that, then, mean this, that there was a greater

5 force at their disposal which would have been more efficacious in

6 resolving the problem that --

7 JUDGE ROBINSON: "Does that, then, mean this..." You're telling

8 him the answer.

9 THE ACCUSED: [Interpretation] All right. Very well.

10 MR. MILOSEVIC: [Interpretation]

11 Q. General Lukic didn't use the force that he had at his disposal.

12 Is that true? Would that be true?

13 A. I think his attitude was, even with the force he had available, he

14 perhaps could have achieved -- achieved. He could have, yes, achieved

15 more if he hadn't had that feeling to avoid international trouble.

16 Q. Very well. So he could have achieved more if he hadn't had an

17 order to respect the Milosevic-Holbrooke agreement, in fact; is that

18 correct?

19 A. This was exactly my impression.

20 Q. Well, does that say something? Does it tell us something about

21 the political position and stance of the country with respect to the use

22 of force in Kosovo?

23 A. Well, if I understand it correctly, there was something going on

24 on the ground which did not equate to the -- to the overall political

25 situation. The international one -- excuse me. To the overall situation

1 with regard to the international situation.

2 Q. So according to your explanations here, the fact that he didn't

3 use force or the means, was because he had political restrictions on that.

4 A. Yes. This was my impression.

5 Q. Thank you, Mr. Hartwig.

6 THE ACCUSED: [Interpretation] That's what I wanted to establish,

7 because, Mr. Robinson, Mr. Nice interpreted it in quite the opposite way

8 and he mentioned Mr. Stanisic yesterday and said that he allegedly said

9 that forces should not be used. I don't believe that Mr. Stanisic did say

10 that.

11 JUDGE ROBINSON: Mr. Milosevic, there's no need to explain to the

12 Chamber why you have asked that particular question.

13 THE ACCUSED: [Interpretation] No, but because I don't believe that

14 Mr. Stanisic made that statement, I would like Mr. Nice to provide it for

15 me. I would like to see it, and it is my right to see that statement if

16 it has something to do with me. But as I say, I don't believe that that

17 is what he said.

18 MR. MILOSEVIC: [Interpretation]

19 Q. Mr. Hartwig, yesterday Mr. Nice read out to you something from a

20 document, a report or a book. I haven't got the book here with me, but I

21 remembered the event and incident that he referred to. It was about the

22 killing of -- or the death of a group of -- of -- Delijaj family members,

23 and that was a subject which we discussed yesterday. And it was a report

24 on how a large number of civilians were killed as well. And in that same

25 report, it said that 14 policemen were killed.

1 Would you now please tell me, as an experienced soldier, if there

2 was a clash or conflict of some kind in which 14 policemen lost their

3 lives, is it possible that those 14 policemen were killed by innocent,

4 unarmed civilians? Would that be possible?

5 MR. NICE: Your Honour, how can we have this type of question

6 taking valuable time in re-examination or anywhere else? The accused's

7 re-examinations - I just pause to make the obvious point - are becoming

8 evermore extended with an effect on the available time to him and the time

9 that the Court has to hear valuable evidence, but this particular question

10 passes the bounds.

11 JUDGE ROBINSON: The Chamber is in agreement. Ask another

12 question, Mr. Milosevic.

13 THE ACCUSED: [Interpretation] Very well.

14 JUDGE ROBINSON: And there's no need to spend so much time in

15 re-examination of this witness.

16 THE ACCUSED: [Interpretation] Well, this witness, in my opinion,

17 was questioned -- cross-examined by Mr. Nice in a very inappropriate way,

18 so I have to clarify certain points, and I'm sure you had noticed that

19 too.

20 JUDGE ROBINSON: Had the Chamber found Mr. Nice's

21 cross-examination to be inappropriate, we would have certainly said so.

22 Let us proceed quickly.

23 MR. MILOSEVIC: [Interpretation]

24 Q. Mr. Hartwig, I'm going to proceed as quickly as possible.

25 Mr. Nice showed you a document that came from, as it says, the RC

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1 Belgrade. The 22nd of October is the date. And in that regard and having

2 to do with that, you said that the editor of Koha Ditore, Koha Ditore, as

3 I said, told you that based on the law governing information, if an

4 untruth was published, he could be fined heavily. Is that what you said

5 yesterday?

6 A. Yes. I referred to that discussion with the chief editor and the

7 publisher of Koha Ditore, but this was in January and didn't have to do

8 anything with this report, because at 23 October I wasn't in the Kosovo

9 yet.

10 Q. I'm not talking about the report per se. You didn't read the

11 report. But it was following a question related to this report that you

12 said that the editor-in-chief of Koha Ditore said that if he published any

13 lies or untruths, he could be fined financially. Is that what he told

14 you?

15 A. That's what I told, yes.

16 Q. You have long experience. Is it customary that if somebody

17 publishes a lie in the papers, that they have to pay a fine, or is that a

18 measure of special repression in any way?

19 A. I don't know what international rules are. I know in my country

20 what there has been published. Normally nobody takes account or takes any

21 note unless somebody has been directly accused and it is going to become a

22 case to a court.

23 So with -- with -- if somebody publishes a lie or something like

24 this, I have to admit I don't know whether it will --

25 JUDGE ROBINSON: Thank you. Thank you. The witness can't help

1 you much on that point. He doesn't have expertise in that area,

2 Mr. Milosevic.

3 MR. MILOSEVIC: [Interpretation]

4 Q. Do you know anything at all, since it was said here that some

5 newspapers were banned, do you know any newspapers that were banned in

6 Yugoslavia?

7 A. This I don't know. I mentioned that we on an almost daily basis

8 got the Kosovar Sot and the Koha Ditore, the Times edition, and we could

9 receive it at least until I went to that conference in Sarajevo on the

10 14th or 15th of March.

11 Q. Very well. I shall not dwell on this any further. Do you

12 remember any explanations given to the effect that if religious or ethnic

13 hatred was instigated, then some consequences would follow?

14 A. No. I haven't heard anything like this.

15 Q. Very well. Thank you.

16 THE ACCUSED: [Interpretation] Mr. Robinson, under Rule 68 I

17 received a large number of documents, as you are aware. I should like to

18 use only a few of them, following up on the questions asked by Mr. Nice

19 concerning the report.

20 JUDGE ROBINSON: [Previous translation continues] ... arise out of

21 cross-examination?

22 THE ACCUSED: [Interpretation] Well, I hope it does arise out of

23 cross-examination, because Mr. Nice was trying to demonstrate that they

24 did not provide accurate daily reports. He tried to emphasise the fact

25 that the witness did not bring any reports, and here among the exculpatory

1 documentation I selected just a few, and I would like to go through them,

2 if you believe that is relevant. If you don't, I won't do it.

3 I should like to ask the witness if certain of these things are

4 based on his reports. For instance, I have a document --

5 THE INTERPRETER: And the interpreter didn't catch the number.

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 JUDGE ROBINSON: What's the question? You've read enough.

19 MR. NICE: Can I assist the Chamber in this way. I'm not sure

20 that this really arises out of re-examination in any classical way, but as

21 ever, I don't want to be seen to be obstructing the accused laying

22 whatever he can and thinks is relevant before the Chamber, but the Chamber

23 will recall that I explained that documents of this kind which were

24 available to us under restriction were the subject of special applications

25 by us to release them from restriction in order to provide them to the

1 accused well before he led this witness in chief. So he's always had this

2 material, and if he wanted to lead it, the time to have dealt with it was

3 in evidence in chief, but as I say --

4 JUDGE ROBINSON: Not necessarily. It's for him to choose how he

5 does his examination-in-chief. The real question is whether it arises out

6 of cross-examination.

7 Mr. Kay.

8 MR. KAY: There is a large file of material. There's one from

9 each area of Bosnia, Croatia, Kosovo, and that's what the accused is

10 using, which was supplied as an entirety relating to Kosovo from the Rule

11 68 material, and in our submission, it plainly arises in the -- in

12 relation to the style of cross-examination by the Prosecutor of the

13 witness who was head of the particular mission relating to the competence

14 of his particular monitoring mission. It's a shame that the documents

15 haven't been reproduced.

16 JUDGE ROBINSON: Thank you, Mr. Kay. Yes.

17 JUDGE BONOMY: Mr. Hartwig, the -- this document that's being read

18 to you was described as prepared by the Pec team. Is that a document that

19 you would be responsible for preparing?

20 THE WITNESS: No.

21 JUDGE BONOMY: Well, that answers the question, I think. It's

22 immaterial to the case [microphone not activated].

23 JUDGE ROBINSON: Mr. Milosevic, you've heard the answer. It's not

24 relevant. The witness didn't prepare it. So ask another question.

25 THE ACCUSED: [Interpretation] Mr. Robinson, I can ask this witness

1 in a different way whether the Pec team was subordinated to him.

2 MR. MILOSEVIC: [Interpretation]

3 Q. Was it, Mr. Hartwig?

4 A. Yes.

5 Q. Was the Pec team able to send its reports?

6 A. Yes.

7 JUDGE ROBINSON: Sent their reports to whom?

8 THE WITNESS: They send it to the -- to the regional office at

9 Pristina.

10 JUDGE ROBINSON: That's your office?

11 THE WITNESS: Yes.

12 JUDGE ROBINSON: Yes.

13 MR. MILOSEVIC: [Interpretation]

14 Q. Would it be fair to say that this report of the Pec team is -- was

15 in a way within your jurisdiction and that it came from a group that you

16 headed, that you led?

17 A. It was a report which included information obtained on the -- on

18 the spot, and it was amalgamated and sent to me. And I -- in my area of

19 responsibility, it was to be included in the Pristina daily report and in

20 the weekly report.

21 JUDGE ROBINSON: Yes, Mr. Milosevic. Move on.

22 MR. MILOSEVIC: [Interpretation]

23 Q. You interrupted me. Apparently Ramush asked the man -- "to join

24 the man, took his car and 2.500 Deutschmark [In English] that the uncle

25 carried with him. The family has not heard anything from him since then

1 and asked the team if it was possible to find out whether he is still

2 alive or not."

3 JUDGE ROBINSON: What's the question? What is the question? You

4 have been reading it for some time now.

5 MR. MILOSEVIC: [Interpretation]

6 Q. My question is, Mr. Hartwig, do you remember how many such

7 robberies and kidnappings there were by the KLA against Albanian citizens?

8 JUDGE ROBINSON: No, I'm not allowing that. That doesn't really

9 arise at all. And there's no obligation, Mr. Milosevic, to follow up on

10 every point made in cross-examination. Just select those that are

11 critically important to your case.

12 THE ACCUSED: [Interpretation] Very well, Mr. Robinson. This also

13 speaks volumes on the issues which opened the door of -- to broader

14 controversies.

15 MR. MILOSEVIC: [Interpretation]

16 Q. Now, another document. 025-5342, RO Pristina, 17 February 1999.

17 So this was sent to you from Pec on the 17th of February, 1999. This is

18 what it says: "[In English] Headlines DPK says, KLA never will give up

19 their weapons to NATO." [Interpretation] Then it explains: "[In English]

20 I cannot believe that KLA will give up their weapons to the NATO forces

21 and we will support them in this point in the strongest way. KLA must be

22 transformed into another military concept. There will be mechanism to

23 keep the peace. Between NATO and KLA there are optimal relations."

24 JUDGE ROBINSON: Yes. Yes. What's the question now?

25 THE ACCUSED: [Interpretation] The point here is between NATO and

1 KLA, there are optimal relations. That's the 17th of February, 1999.

2 Before the decision to bomb Yugoslavia was taken, before the beginning of

3 the war on the 24th of March, optimum relations between NATO and the KLA.

4 You asked a witness earlier, which said that the KLA was NATO's infantry.

5 MR. MILOSEVIC: [Interpretation]

6 Q. I am asking this question: At the time, were you aware of the

7 fact that there is a relationship, any sort of relationship between the

8 NATO and the KLA, let alone an optimum one?

9 A. I don't -- at this time I didn't know of any direct relationship

10 between NATO and KLA, but it was an open saying that KLA received support,

11 and the media partially reported on who there might be behind. Since I

12 don't have any --

13 JUDGE ROBINSON: Sorry. You say that it was an open saying that

14 KLA received support. Support from whom?

15 THE WITNESS: That part I was just trying to --

16 JUDGE ROBINSON: I see. Okay.

17 THE WITNESS: It was saying that they were supported by foreign

18 countries. I remember one -- one discussion with somebody during the

19 Rambouillet talks when the former US foreign secretary, Mrs. Albright,

20 encouraged the KLA party in the talks to sign the agreement, otherwise,

21 the support would be withdrawn. And I asked an American, "What does that

22 mean?" and he smiled at me and said, "Well, then all humanitarian aid will

23 be stopped for Mother Teresa humanitarian aid organisation."

24 JUDGE ROBINSON: Yes, Mr. Milosevic. Yes. Would you pass over

25 those documents so we can see them, or have them put on the ELMO.

1 THE ACCUSED: [Interpretation] With your leave. These two. I

2 haven't yet gone through the rest.

3 May I continue?

4 JUDGE ROBINSON: Let us just see the documents.

5 THE INTERPRETER: Microphone for the President, please.

6 JUDGE ROBINSON: Let us see the documents.

7 THE ACCUSED: [Interpretation] I quoted the highlighted part.

8 JUDGE ROBINSON: And in accordance with the practice,

9 Mr. Milosevic, you should have had copies for the Chamber and the

10 Prosecutor.

11 THE ACCUSED: [Interpretation] Well, Mr. Robinson, this is

12 re-examination. I cannot prepare so thoroughly for re-examination and

13 prepare all the copies required. These documents have been filed, and I

14 suppose they're all available on your computers. I received them from the

15 side opposite.

16 JUDGE ROBINSON: You had the benefit of last evening.

17 THE ACCUSED: [Interpretation] Very well. May I continue?

18 JUDGE ROBINSON: Yes. Yes.

19 MR. MILOSEVIC: [Interpretation]

20 Q. I have a report of the 31st of January of the main centre in

21 Belgrade, regional items Kosovo. And then it says "Security/military,"

22 and then it goes on to say: "[In English] Team Pec on 30th of January,

23 investigating judge of the Rogova incident. 15 bodies had been

24 identified. They originated from Rogova, Donje Ratis, Klecka, and --"

25 JUDGE ROBINSON: Mr. Nice is on his feet.

1 MR. NICE: As to Rogova, I specifically did not ask questions

2 about Rogova. I had plenty of questions to ask, had material prepared,

3 but I may have even said I would ask questions about Rugova if I had time.

4 I didn't have time because I set myself a time limit of 50 per cent of the

5 examination-in-chief and I stuck to it.

6 JUDGE ROBINSON: Mr. Milosevic, I'm not allowing it. It doesn't

7 arise. No questions were asked about it. And we really need to be

8 bringing this re-examination to an end.

9 THE ACCUSED: [Interpretation] With all due respect, Mr. Robinson,

10 I have -- I remember Mr. Nice saying to the witness that he didn't bring

11 his documentation, that he didn't bring team reports, and I have here a

12 lot of team reports, all of which confirm the findings that the witness

13 reflected in his notes. Each single detail can be found in team reports

14 if they are read carefully.

15 So generally speaking, all the challenges of his testimony boil

16 down to claims that he did not have team reports, that he did not have

17 appropriate documentation, that his notes were based on nothing, and I

18 have the team reports here, and they reflect faithfully the testimony of

19 the witness, the evidence he gave challenged by Mr. Nice.

20 [Trial Chamber confers]

21 JUDGE ROBINSON: Mr. Milosevic, I think the point that you make is

22 a valid one, that Mr. Nice did cross-examine to the effect that the

23 witness didn't bring his reports, and you are now bringing documents to

24 confirm what the witness said. Nonetheless, there is still an issue as to

25 whether Rogova was mentioned. I understand that you did raise it in your

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1 -- you did raise it in your examination-in-chief, because on that basis,

2 then, I'd allow you to put questions on it, because as a matter of

3 principle, the point that you make is valid.

4 But you are using your time, Mr. Milosevic, and you have to

5 consider whether this is the best use of the time that you have available

6 to you.

7 THE ACCUSED: [Interpretation] All right, Mr. Robinson. I'll skip

8 Rogova. It's enough that the report confirming it exists. But let us

9 move on.

10 MR. MILOSEVIC: [Interpretation]

11 Q. We have a report of the Prizren team -- let us move away from Pec.

12 Price team, it says. From Prizren team to RO Pristina. 29 January 1999.

13 Then it says -- this is document R025-5661 and 5662. "[In English]... and

14 police MUP forces and SAJ (Special Anti-terrorist Unit) in front of the

15 yard, where fighting between terrorists and police took place this very

16 morning at 06.15. The outcome of the fight was 24 terrorists and 1 MUP

17 dead." 24 terrorists and 1 MUP dead.

18 [Interpretation] So, Mr. Hartwig, is this one of your reports

19 showing how some terrorists got killed in this attack? That's a report of

20 the 29th of January, 1999.

21 A. I remember the event, but I can't connect it to the -- to the date

22 or to the time. I remember that there was a shooting, that there were a

23 lot of victims, but that there were victims -- I think it was reported --

24 I think you mentioned it, it was reported by the team, and subsequently it

25 was also used for the regional office daily report.

1 Q. Very well. It was important for me that you should confirm that.

2 THE ACCUSED: [Interpretation] I wish to tender this, too,

3 Mr. Robinson.

4 JUDGE ROBINSON: Yes. Give that a number. Do we have a copy?

5 THE ACCUSED: [Interpretation] Please.

6 JUDGE KWON: 284. The one that is on the ELMO. The second is

7 coming.

8 THE REGISTRAR: One to be D284.

9 MR. MILOSEVIC: [Interpretation]

10 Q. Further on, we have a document R025629 of the 29th of January,

11 1999, ECMM restricted. It reads: "Kosovo --"

12 JUDGE BONOMY: Before you read this, can you help me by

13 identifying which of Mr. Hartwig's tabs this particular document might

14 support? Because presumably that's the exercise you're going through,

15 trying to support the tabs by reference to official documents. Now, which

16 tab does the one you're now dealing with support?

17 THE ACCUSED: [Interpretation] This relates to the background,

18 although it can also support tab 1 and tab 2, because they describe the

19 general circumstances. And this report goes into details on the same

20 matters. Mr. Hartwig wrote about events without going into details, but

21 obviously he did that based on detailed reports.

22 JUDGE ROBINSON: Mr. Milosevic, I said that the point that you

23 made was a valid one to the extent that in Mr. Nice's cross-examination,

24 he put to the witness that he didn't have any of the -- his reports to

25 support what he was saying, and you're now bringing those reports. But in

1 order to be valid, the questions that you are putting must relate to

2 something which the witness said, and this is why Judge Bonomy asked about

3 the tabs.

4 So I won't allow you simply to put questions on the basis of the

5 validity of the principle that I -- that I outlined. It has to relate to

6 something which the witness said in his examination-in-chief, something

7 that was in the tabs. Otherwise, it's not relevant. We would be here for

8 the rest of the day.

9 THE ACCUSED: [Interpretation] Very well, Mr. Robinson. As I

10 remember, the witness said that the police reacted to KLA provocations; to

11 ambushes, attacks, murders, killings. I had asked the witness whether

12 during the time when he headed the observers mission of the European

13 Union, there was a single case when the police attacked anybody

14 unprovoked. He answered no. All these reports speak of precisely such

15 events. All these events involve clashes between the KLA and the police.

16 There was not a single instance where the police would attack an innocent

17 civilian.

18 In one document, there is a reference to a policeman who took

19 away, confiscated 800 Deutschmarks from somebody, whereupon the chief of

20 police conducted an investigation, found the policeman and sanctioned him.

21 All of this confirms the truth; namely, that the police reacted to

22 attacks.

23 JUDGE ROBINSON: Mr. Nice's cross-examination and the points that

24 he put went to the credibility of the witness, and your re-examination --

25 in your re-examination, you're seeking to rehabilitate the witness, and

1 you have put some of the reports to him. You might then consider whether,

2 having put one or two, do you need to put so many more? What you're

3 seeking to do is to rehabilitate the witness, and that can be done by

4 putting one or two of the reports to him to confirm what he said. It will

5 not be the best use of your time in re-examination to spend another half

6 an hour continuing this exercise. You have made a point.

7 If you haven't shown in two -- if you have not established --

8 THE ACCUSED: [Interpretation] I see.

9 JUDGE ROBINSON: -- in two reports that the witness is credible,

10 that what he said was truthful even though he didn't have the reports

11 there, then I don't think you are going to do it by putting another three

12 or four or six reports.

13 MR. NICE: I hesitate to interrupt, but to add this point:

14 Although I certainly drew to the attention of the witness and the Court

15 that he'd come here without his supporting materials and without making

16 efforts to get the best materials so that we were relying on drafts, my

17 questions were actually far more devoted to the expressions made by the

18 witness in the documents that he did produce, and the only tab that I

19 questioned as to whether it existed at all, for obvious reasons, namely I

20 hadn't been able to satisfy myself that there was an underlying original

21 document up was tab 12, if you remember. And other than that, I didn't

22 challenge the existence of other versions of these documents. I just

23 wanted to know why we were being treated to the drafts and not the final

24 versions.

25 JUDGE ROBINSON: I think it was more general than that, Mr. Nice,

1 to be fair.

2 MR. NICE: As Your Honour pleases, but that was the focus of my

3 intention.

4 JUDGE BONOMY: You did actually accuse the witness of being Serb

5 biased, Mr. Nice, and therefore there's justification in trying to

6 undermine that proposition, but it's how it's being done that I question

7 rather than the proposition that the accused is entitled to do it.

8 MR. KAY: If the accused wants to get in the whole volume of these

9 reports which corroborate the testimony of this particular witness,

10 perhaps a device can be found in the same way that the Prosecutor got in

11 the blue book through Mr. Coo, as I remember. They are documents from the

12 time, they are from an official party, they're a collection that are

13 within the archives of the Prosecution, and they're cumulative. Maybe a

14 92 bis (A) route can be used.

15 JUDGE BONOMY: Thank you for trying to bring some sanity to the

16 Defence, Mr. Kay.

17 JUDGE ROBINSON: I think that would make sense, Mr. Milosevic.

18 You could introduce that whole bundle of documents through the mechanism

19 suggested by Mr. Kay. We would be quite prepared to consider their

20 admission. The Prosecutor did the same thing.

21 THE ACCUSED: [Interpretation] Very well. Then I'm going to give

22 you all these documents that have to do with the work of the teams. Not

23 to burden you too much, I'm going to make a selection. But before I

24 finish that, I would like to read something out to you and to put a

25 question to the witness, because this actually supports what he had said

1 already.

2 MR. MILOSEVIC: [Interpretation]

3 Q. Does he remember the following, because this has to do with the

4 reports of the Prizren team sent to his office on the 17th of January,

5 1999. It says: "[In English] First time --" [Interpretation] Before that

6 he says, "The team met two of the five sons of Avdi Berisha (1933) from

7 the village of Brestovce ..." et cetera, et cetera, who was abducted, and

8 then it says "[In English] This is the first time local Albanians admit

9 that kidnappings exist amongst their own, performed by UCK." Their own.

10 "That not all killings and disappearances are political, but also

11 performed for private reasons, just using the situation as a cover. And

12 that the UCK does indeed install a rule of terror in non-extremist

13 villages. All of this we have been aware of already for several months,

14 but for the first time the persecuted Albanians admit to it. It is of

15 importance to mention that the two sons spoke fluent French and started to

16 talk only after our Albanian interpreters left the premises."

17 [Interpretation] Mr. Hartwig, you received this report. During

18 your stay, were you aware of the volume of terror exercised by the KLA

19 against the Albanian population and how far it went?

20 A. From many discussions with other people, I knew that UCK was

21 trying to expand by numbers, and I think I mentioned something like either

22 they become members of UCK or at least they support UCK. And I also

23 talked about -- that case I remembered was this young medical doctor which

24 was forced to join UCK, and in order to convince him that it would be the

25 better solution, some of his personal guests were wounded by bullets.

1 Q. Very well.

2 THE ACCUSED: [Interpretation] Not to waste any time, if you

3 consider this to be a waste of time, that is, Mr. Robinson, I am going to

4 submit these documents to you if you believe that this is the best way of

5 handling this. This report from the 15th of January, 1999, Albanians

6 killed by the KLA, then the report of the Prizren team about the role of

7 the KLA and FARK, the ECMM report with a separate part dealing with Kosovo

8 only, then the conflict between the KLA and the border guards near the

9 border itself, then the report of the Pec team speaking of the conflict

10 again between the KLA and the police.

11 If necessary, I'm going to read out the numbers, too. I'll do it

12 gladly. Your number is always here because it was always registered by

13 the opposite side. In fact, I received it from them in the first place.

14 The report of the Prizren team about this first admission by the

15 Albanians that the KLA is abducting persons in Albanian villages and that

16 there is a reign of terror there.

17 JUDGE ROBINSON: Mr. Milosevic, just to be clear, these are all

18 reports that would have been sent to Mr. Hartwig or to Mr. Hartwig's

19 office?

20 THE ACCUSED: [Interpretation] Or reports that from the Pec,

21 Prizren and other teams in Kosovo, or his office in Belgrade, those parts

22 that have to do with Kosovo and that are -- that came from him.

23 For example, this report that says that although it's been known

24 for several months that the Albanians have been saying that the KLA has

25 been terrorising them, this is what the Prizren team sent on the 17th of

1 January, 1999, to the regional office. So this is a perfectly valid

2 document that went through the witness's hands, because from his team in

3 Prizren, it was sent to -- if you want to reject those that are not from

4 his teams, that is for you to decide. But as for the general documents

5 that are written in Belgrade, it always says what came from Kosovo, and

6 whatever came from Kosovo came from him because it has to do with the

7 European Union mission. If you exclude that, that is your own affair, but

8 I simply want to hand all of this in.

9 So then it's the Pec team to the Pristina office --

10 JUDGE BONOMY: May I interrupt just briefly. It's not our affair.

11 It's you that's conducting this Defence.

12 Now, I wonder if I can get some assistance from Mr. Kay. Mr. Kay,

13 this could easily be done by simply asking the witness to confirm that

14 these are documents which passed through his hands. That was the method

15 that you were suggesting here.

16 MR. KAY: Yes.

17 JUDGE BONOMY: The problem that that raises, as I see it, is that

18 the Prosecution haven't been faced with this as part of a case and now

19 they can't cross-examine these documents at all. Now, obviously Mr. Nice

20 may accept that that's just the reality of the situation. The alternative

21 might be to find another witness to present these as evidence in chief

22 and, if necessary, they could be cross-examined, I suppose.

23 MR. KAY: We've been discussing this. We thought the producer who

24 produced it to the Prosecution in the first place might be a way of

25 bringing it in through Rule 92 bis (A) as being cumulative of the

1 testimony of this witness.

2 JUDGE BONOMY: But to a certain extent we could solve the problem

3 at the moment in relation to at least the ones that the witness is

4 familiar with.

5 MR. KAY: Yes.

6 JUDGE BONOMY: And that would be subject to Mr. Nice accepting

7 that course of action because I can see that it could prejudice him to

8 some extent.

9 MR. NICE: Dealing with Mr. Kay's point, the person who produces

10 the documents to us, and of course as the Chamber will appreciate they

11 originally came under a method of protection, is not somebody who is going

12 to be available to or useful as a witness.

13 The second point is of course in making the very elaborate

14 arrangements we did to have these documents freed of their restrictions

15 and provided to the accused, we were forecasting that he might want to use

16 them.

17 That brings me to the point I made earlier that the proper way to

18 have used them if he had prepared his case properly would have been to

19 have put them in in chief in some way or another. Then I could have

20 cross-examined on the basis of them. I could, of course, have put them

21 all in myself but time restraints just simply don't allow us that as a

22 possibility, which is why I identified the only document about which I had

23 existential concerns, tab 12, and focused on the content, as I hoped on

24 the others drawing to the attention of the witness his failure in simply

25 not trying to get the original documents himself to help us.

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1 The present position is deeply unsatisfactory. It's not of our

2 creation; it is of the accused's. My suggestion is, frankly, let the

3 documents in, yes I have been prejudiced in that I haven't been able to

4 cross-examine on them, but let them in. I can make comments on them, if

5 necessary, in closing arguments an may the accused be invited to be more

6 workmanlike and more practical in presenting documents of this kind with

7 subsequent witnesses.

8 JUDGE BONOMY: Well, may I say, Mr. Nice, that I consider that a

9 very reasonable approach. Thank you.

10 JUDGE ROBINSON: Those documents which were sent to the witness --

11 [Trial Chamber confers]

12 JUDGE ROBINSON: Mr. Milosevic, hand over the documents to the

13 witness so that he can have a look at them.

14 MR. MILOSEVIC: [Interpretation]

15 Q. The microphone. Mr. Hartwig, please, would you look at these

16 documents and tell us whether all of these documents are documents of your

17 organisation, that is to say the European Monitoring Mission.

18 JUDGE ROBINSON: Yes, Mr. Hartwig.

19 THE WITNESS: They are reports from the teams. They were all the

20 reports from our office to Sarajevo or from my office to Belgrade or vice

21 versa.

22 JUDGE ROBINSON: Thank you. Mr. Nice, do you wish to see them?

23 MR. NICE: Later we will do.

24 JUDGE ROBINSON: Okay. We'll admit them, then, under one number.

25 THE REGISTRAR: One number, yes. Your Honour, can I give the

1 number to the previous documents dated 29 of June, 1999. That will be

2 D285. And this bundle of documents will be entered as D286.

3 JUDGE ROBINSON: Yes, Mr. Milosevic.

4 MR. MILOSEVIC: [Interpretation]

5 Q. Thank you, Mr. Hartwig. I have no further questions.

6 JUDGE ROBINSON: Mr. Hartwig -- Mr. Hartwig, that concludes your

7 testimony. Thank you for coming to the Tribunal to give it, and you may

8 now leave.

9 [The witness withdrew]

10 MR. NICE: Before we move on, can I raise something in private

11 session very briefly.

12 JUDGE ROBINSON: In private session.

13 MR. NICE: Yes, please.

14 [Private session]

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 [Open session]

11 JUDGE ROBINSON: Yes, you have an objection.

12 MR. NICE: Your Honour, as to the next witness, Mr. Lituchy, it's

13 a little hard to know, as ever, exactly what it is that the accused wishes

14 to raise with and through this witness. We've seen the documents, and I

15 don't know if the Chamber has had an opportunity of looking at them. In

16 which case it's hard to do more than outline the objection, it may be that

17 the Chamber will want to deal with the objections as the witness goes

18 through his proposed testimony, but let me outline our position briefly,

19 as I will always do in procedural matters because of the time implications

20 of procedural arguments.

21 There is a document which contains a report. The report contains

22 a number of interviews, in our submission the material is inadmissible for

23 one of two reasons: Either A, it's irrelevant because it concerns bombing

24 of Serbia --

25 JUDGE ROBINSON: [Microphone not activated] -- would you

1 Mr. Nice -- yes.

2 [Trial Chamber confers]

3 JUDGE ROBINSON: Let's go back to private session.

4 [Private session]

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 [Open session]

17 MR. NICE: Back to the proposed exhibits of Mr. Lituchy and the

18 inference I can draw from those documents as to what it's expected that

19 the witness will be asked to give in evidence. Two grounds for arguing

20 that the material's inadmissible: One, the interviews recorded are, many

21 of them, related to either the bombing of Serbia or what happened to

22 non-Albanians either at the end of or after the conclusion of the bombing.

23 So simply irrelevant because it doesn't touch on the issues of why people

24 left Kosovo.

25 The other ground for exclusion is that some of the people

1 interviewed and the nature of the interviews, which are detailed

2 interviews, may contain material that relates to this indictment but it's

3 material that shouldn't come in in a secondhand interview of this kind.

4 For example, two of the people interviewed towards of end of this bundle

5 of material are members of the provisional Executive Council, which you

6 will recall we dealt with at some -- in some detail with the witness

7 Andric and which may well be material evidence. Now, what's being done

8 here is there is an attempt to bring in evidence in the form of interviews

9 with these people when the people themselves, who are fully identified,

10 should be before the Court as witnesses, because, of course, I'm not in

11 any position to cross-examine the people who are being interviewed on this

12 tape, and in light of recent rulings, there wouldn't be much purpose in my

13 going and having them interviewed by an investigator elsewhere and seeking

14 to put those interviews in.

15 So the material, in our respectful submission, is or is very

16 likely to be seen to be inadmissible for one of those two reasons.

17 There are other problems with the report which I can deal with in

18 cross-examination or otherwise, but if the Chamber gets an opportunity to

19 go through it, either now or in the break, you will see that the

20 interviews are conducted by people with agendas of their own, with

21 preconceived notions. The interviews are not conducted at all in a way

22 that would be acceptable in a Court. And therefore, it's our submission

23 that this evidence is or is going to be found to be inadmissible.

24 It may be that the Chamber will want to ask the accused exactly

25 what he wants to elicit from the witness on the grounds of its asserted

1 admissibility. I would remind the Chamber that at an earlier stage in the

2 evidence of the witness Anastasijevic there were interviews that were

3 admitted when they were the interviews of people identified as

4 co-perpetrators and where they constituted to some degree, I think,

5 declarations against interest, but the Chamber drew a line between

6 admitting those interviews and rejecting interviews of others who weren't

7 in the joint criminal enterprise but who otherwise would have been

8 valuable sources. In our submission, that ruling, which was some time ago

9 but no doubt still operating on the Chamber's mind, would again be a

10 reason for excluding the interviews of potentially substantial witnesses

11 dealt with here.

12 JUDGE ROBINSON: Thank you, Mr. Nice.

13 Mr. Milosevic, very quickly in response.

14 THE ACCUSED: [Interpretation] The first reason that Mr. Nice

15 mentioned, namely that these were non-Albanian witnesses and that they're

16 therefore irrelevant, is quite incorrect, because first and foremost, it

17 is Albanian witnesses, and then there are Roma and Egyptians too. That is

18 to say, witnesses who are victims. Albanians, Roma, Egyptians, that is to

19 say non-Serbs who fled to Serbia.

20 The second point I wish to make is the following: These

21 interviews were conducted in 1999, so any procedural objection that would

22 have to do with this trial is senseless.

23 As you know, I was kidnapped and brought here on St. Vitus Day in

24 2001, practically two years after these interviews. These interviews were

25 conducted with people who --

1 JUDGE ROBINSON: Mr. Milosevic, I just want to say that that

2 matter was examined by the Tribunal, and there is no basis for that

3 comment. Continue.

4 THE ACCUSED: [Interpretation] Further on in these tabs you

5 received transcripts, I hope, of these tapes in their entirety, but I do

6 not intend to spend time by playing these tapes in their entirety. There

7 are about three hours of these interviews. So although you have these

8 complete tapes, it's not only a selection that's been handed over to you,

9 but out of these three hours of tapes, about 40 minutes in total were

10 taken out in order to save time. However, you have received the tapes in

11 their entirety. If anybody wishes to make a more extensive analysis, to

12 listen to the entire interview, that is quite possible. What I think --

13 what I wish to exhibit here is much shorter.

14 I think that this is very important. We talked about Albanians

15 who fled to Macedonia, so now we're talking about Albanians who are

16 fleeing to Serbia. We are talking about Roma and Egyptians who are

17 non-Albanians. This has to do with a great many relevant matters that are

18 under discussion here.

19 JUDGE ROBINSON: Mr. Kay.

20 MR. KAY: Yes. The important distinction is this report was not

21 prepared for these proceedings, of course. It arises virtually

22 contemporaneous to the time. It deals with aspects of evidence relating

23 to Serbia and Kosovo. It was evidence being prepared, it seems, for a

24 commission being held at the time investigating the matter of the NATO

25 bombing.

1 The Court will remember that in relation to video evidence,

2 Mr. Spargo, the second ever witness in the case, produced a series of

3 videotapes of over three hours relating to refugees of a general nature;

4 and a later witness, Sadik Kadriu, produced some videotape as well as two

5 reports, Exhibit 39 and Exhibit 49, which were for his commission, a

6 private commission investigating killings that had taken place. That was

7 ruled admissible by the Trial Chamber on the basis that such reports which

8 were at the time were part of the evidence of the Tribunal and the

9 Tribunal would attach appropriate weight to them having considered them,

10 that they would admit them into evidence and consider how to deal with

11 them --

12 JUDGE ROBINSON: Mr. Nice made a point that had a temporal aspect

13 to it. I'm not sure that I quite understood it, that it doesn't explain

14 why people left Kosovo.

15 Mr. Nice, could I just hear you on that point again?

16 MR. NICE: Yes. The burden of most of these interviews is what

17 was happening at the end of June or after June 1999 has nothing to do with

18 why people left Kosovo. It has to do with what the effects of the bombing

19 were on them and matters of that sort and therefore it's probably just

20 simply not relevant.

21 JUDGE ROBINSON: Yes.

22 MR. KAY: They're statements by people as to why they left Kosovo

23 on June the 11th and other periods, what they had been through at that

24 particular time. They obviously emerge in Serbia having left Kosovo, and

25 that's the connection, but it's all Kosovo specific and relating to the

1 issue.

2 JUDGE ROBINSON: Thank you, Mr. Kay.

3 Mr. Milosevic, just on that last point. Do you want to say

4 anything just on the last point made by Mr. Nice, the timing aspect?

5 THE ACCUSED: [Interpretation] Well, to tell you the truth, I

6 didn't understand that anything like this could be challenged at all. And

7 Mr. Nice shows us propaganda programmes by the BBC with an incorrect

8 translation of them and that is accepted, whereas here this is original

9 material that we're dealing with, with witnesses and so on.

10 JUDGE ROBINSON: You're not answering the particular point. You

11 can't restrain yourself. I mean, it's -- it's almost a puerile instinct

12 that you have.

13 We'll consider this.

14 THE ACCUSED: [Interpretation] I wish to add one more thing,

15 Mr. Robinson.

16 JUDGE ROBINSON: Yes.

17 THE ACCUSED: [Interpretation] Mr. Nice -- or, rather, Mr. Nice

18 mentioned that witnesses can be called. For some that holds true. For

19 others, it doesn't, because one of the Albanians who --

20 JUDGE ROBINSON: I don't need to hear you on that point. I don't

21 need to hear you on that point. I'm more concerned about the other point.

22 We'll take a break now. It may be that we might -- I think we'll

23 take a break for 25 minutes.

24 --- Recess taken at 10.35 a.m.

25 --- On resuming at 11.08 a.m.

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1 JUDGE ROBINSON: The Chamber's ruling is that the witness may give

2 evidence. That is, of course, without prejudice to particular objections

3 being taken to any particular piece of evidence on the basis of relevance

4 or any other ground.

5 Mr. Milosevic, the witness may be called.

6 THE ACCUSED: [Interpretation] I call the witness whose name is

7 Barry Lituchy.

8 [The witness entered court]

9 JUDGE ROBINSON: Let the witness make many declaration.

10 THE WITNESS: I solemnly declare that I will speak the truth, the

11 whole truth, and nothing but the truth.

12 JUDGE ROBINSON: You may sit.

13 WITNESS: BARRY LITUCHY

14 JUDGE ROBINSON: Mr. Milosevic, you may begin your examination.

15 THE ACCUSED: [Interpretation] Thank you, Mr. Robinson.

16 Examined by Mr. Milosevic:

17 Q. [Interpretation] Good afternoon, Mr. Lituchy -- or, rather, good

18 morning. Tell us, please, to begin with, briefly, something about your

19 professional career and your CV, your biography in general.

20 A. Well, my name is Barry Michael Lituchy, I was born in New York

21 City in 1959, I attended University of Pennsylvania where I received a

22 bachelor's degree in European history. I also attended University of

23 Pennsylvania and received a master's degree in Russian and Soviet history-

24 THE INTERPRETER: Could the witness please slow down, thank you.

25 JUDGE ROBINSON: You've heard that.

1 THE WITNESS: Yes. Sorry about that. That's New York. I also

2 attended for one year the Frei Universitat Berlin. I spent a little bit

3 of time at Moscow university. I studied French, German, Russian and

4 Serbo-Croatian. I also attended New York University as Ph.D. candidate

5 and completed the course work and Ph.D. oral and written exams in Russian

6 history, Soviet history, general European history, Eastern European

7 history, history of technology and history of science. I completed about

8 half of my dissertation. I haven't finished it yet.

9 I worked briefly as a journalist in the 1980s, I then began

10 writing about Yugoslavia beginning in about 1990, and gradually that

11 became the main focus of my research and work. I've written many

12 articles, many research pieces about Yugoslavia in the last 15 years, some

13 of which have been published in books, others in magazines and newspapers.

14 I'm the editor and contributing author to a forthcoming book on the study

15 of the Holocaust in Yugoslavia entitled The Holocaust in Yugoslavia,

16 Testimonies and Analyses.

17 I've taught as adjunct professor and university lecturer for the

18 last 18 years at various colleges and universities in the United States;

19 New York University, Brooklyn College, Medgars College, LaGuardia

20 Community College, and Kingsborough Community College where I've taught

21 for the last six -- excuse me, nine years, and I currently am teaching

22 there. I teach modern European history primarily, although I've taught

23 other subjects.

24 I -- I began my research on the Holocaust in Yugoslavia

25 approximately 11 years ago. I was the initiator and co-organiser of the

1 first international conference and exhibition on the Holocaust in

2 Yugoslavia at my college --

3 JUDGE ROBINSON: Thank you. Thank you, Mr. Lituchy. I think

4 Mr. Milosevic can take it over from here now.

5 THE WITNESS: Oh, sorry.

6 THE ACCUSED: [Interpretation] Thank you, Mr. Robinson.

7 MR. MILOSEVIC: [Interpretation]

8 Q. Mr. Lituchy, you are one of the founders of the Research Institute

9 in Jasenovac. Or the official title is Jasenovac Research Institute, with

10 its headquarters in New York; is that right?

11 A. That's correct.

12 Q. How did that come about? How did it come about that Jasenovac

13 became one of your preoccupations and the subject of your research work?

14 A. As I was studying the subject of the break-up of Yugoslavia and

15 the worsening conditions in republics of former Yugoslavia and the

16 worsening human rights conditions relating to various factors, I -- it

17 became clear to me that the subject of the Holocaust was fundamental and

18 central to the whole history, not only of Yugoslavia and the Balkans but

19 of -- to European history and to the whole story of the break-up of

20 Yugoslavia.

21 I think that one would have to be a rather poor historian,

22 especially of the Holocaust, if one didn't recognise that the story of the

23 history of the Holocaust and human rights are indivisible. The promotion

24 of human rights, because the first lesson of the Holocaust is "never

25 again."

1 In the case of Yugoslavia, I think what we saw was that "never

2 again" was not learned as the first lesson. The first lesson was missing

3 from the textbooks, and that was because the story and the history of the

4 Holocaust in Yugoslavia was not adequately studied. It was not adequately

5 learned. In fact, to a great extent it was suppressed, and that was --

6 that laid the foundations for what happened in the 1990s, and therefore it

7 -- I don't believe it would have been possible for many of the things

8 that happened in the 1990s to have occurred if the lessons of the

9 Holocaust in Yugoslavia had been learned properly in the first place.

10 That's my short answer to that question.

11 Q. Thank you, Mr. Lituchy. And did you delve into the reasons for

12 which the subject of the Holocaust was left aside and put into a

13 second-rate position?

14 A. Yes, of course. Shall I continue?

15 MR. NICE: Before he does, the first answer has a feel of it, the

16 feel of an expert report. If we're going into the next question and

17 answer, it sounds as though it's expert again.

18 JUDGE ROBINSON: Mr. Milosevic, you have heard the objection.

19 You're asking the witness to testify as an expert.

20 THE ACCUSED: [Interpretation] No. No.

21 JUDGE ROBINSON: What are you asking him to testify as? To what

22 facts, then, are you asking him to testify?

23 THE ACCUSED: [Interpretation] He was in Yugoslavia. In 1995 he

24 worked and met refugees from Krajina. In 1999 he met refugees from

25 Kosovo. I'm not sure whether you're getting the volume, whether you can

1 hear what I'm saying.

2 Anyway, he had contacts with refugees and had direct contacts with

3 the victims of the conflict in Yugoslavia.

4 JUDGE KWON: Go to the points.

5 JUDGE ROBINSON: Yes. Ask him about those issues. Those are fact

6 issues then.

7 THE ACCUSED: [Interpretation] I will get to those questions, too,

8 but I wanted to introduce the witness, and I wanted to lead him -- or

9 introduce him by giving a basic explanation of the kinds of things he

10 deals in.

11 [Trial Chamber confers]

12 JUDGE ROBINSON: Mr. Milosevic, before you ask the next question,

13 let me ask Mr. Lituchy this: You spoke of the Holocaust in Yugoslavia.

14 THE WITNESS: Yes.

15 JUDGE ROBINSON: Are you then equating what happened in Yugoslavia

16 with the Holocaust in Germany in the Second World War?

17 THE WITNESS: It was an extension of that, yes. It was part of

18 the -- it was part of the overall story of the Holocaust in -- during 19

19 -- during World War II, yes, part of the racial genocide that were

20 committed during World War II, yes.

21 JUDGE ROBINSON: Well, as your testimony progresses, I'll return

22 to this to see exactly what you mean by that comparison.

23 Mr. Milosevic, yes.

24 THE ACCUSED: [Interpretation] Very well. Well, we can clear that

25 up straight away.

1 MR. MILOSEVIC: [Interpretation]

2 Q. Are you referring, when you speak of genocide during World War II,

3 do you have in mind the genocide against the Serbs that was committed

4 during World War II?

5 A. I'm speaking about the triple genocide against Serbs, Jews, and

6 Romas, racial genocide that was committed against three groups during

7 World War II in the territory of Yugoslavia at that time and that were --

8 that were -- are very well documented and recognised because there were

9 racial laws against these three groups in the Independent State of

10 Croatia, and those groups were also persecuted elsewhere in the territory

11 of Yugoslavia during World War II.

12 Q. And what connection were you able to establish between the

13 genocide committed during World War II and the events of the 1990s,

14 Mr. Lituchy?

15 A. There are many connections. I think I should back up for a second

16 and say that I'm not trying to compare the events. I'm trying to show the

17 connections between them, the historical legacies. First of all --

18 MR. NICE: This is clearly expert evidence, and I don't -- I'm not

19 going to mind if the accused and the Chamber want in it. I can't

20 cross-examine on it because I haven't been prepared for it.

21 JUDGE ROBINSON: Mr. Milosevic, return to issues that are more

22 related to factual matters. Because we have had evidence on --

23 THE ACCUSED: [Interpretation] All right, very well.

24 JUDGE ROBINSON: -- on this issue already.

25 THE ACCUSED: [Interpretation] Fine.

1 MR. MILOSEVIC: [Interpretation]

2 Q. For example, one factual matter which links this up. Did you

3 happen to establish, for instance, that the leader of the Bosnian Muslims,

4 Alija Izetbegovic, had ties with Nazi groups during World War II, and did

5 that have anything to do with the activities of his own group --

6 JUDGE ROBINSON: Mr. Milosevic, we can't allow that. That's a

7 very leading question. That's a very leading question, and it is not the

8 kind of fact issue that is going to help the Chamber.

9 THE ACCUSED: [Interpretation] Very well.

10 MR. MILOSEVIC: [Interpretation]

11 Q. Mr. Lituchy, did you establish any personal links between the

12 events that took place during World War II and the 1990s' events?

13 A. Well --

14 JUDGE ROBINSON: No. Mr. Milosevic, let's deal with the issues

15 that are very relevant to the indictment; the interviews that he had with

16 refugees, issues of that kind.

17 THE ACCUSED: [Interpretation] I will, of course, come to those

18 issues, but I have questions to ask before that, and I said that certain

19 forces from outside supported in the break-up of Yugoslavia Nazism and

20 Islamic fundamentalism and used that, harnessed that to bring about war in

21 Yugoslavia. And I think that it is quite in order for me to be able to

22 ask this witness questions about that. But if you consider otherwise, I

23 can move on.

24 JUDGE ROBINSON: I will allow him to answer that question.

25 THE WITNESS: Well, I think one of the most important things aside

1 from the fact that human rights and the need to, for instance, carry --

2 conduct interviews with refugees and learn about what happened to them is

3 connected to understanding the history of human rights in the Balkans,

4 understanding also what the greatest war crimes were, and also

5 understanding that some of the political forces that committed the worst

6 atrocities in the history of the Balkans were still alive and active even

7 into the 1990s. And Alija Izetbegovic was a war criminal during World War

8 II and a collaborator with -- I'm sorry with the Nazi forces --

9 MR. NICE: I have an objection. Apart from the fact that this is

10 clearly expertise, looking at Mr. Lituchy, I don't think he was around in

11 World War II in order to be giving direct evidence of fact. There is

12 something extremely disturbing about these sorts of easily made

13 allegations about a person who is dead. There's a question of dignity and

14 decorum involved here as well. I realise that won't concern the accused,

15 and I say that quite conscious of what I'm saying, but there has to be a

16 limit to how far rein is being allowed to witnesses like this. And I

17 can't deal with it for the reasons I've already explained.

18 JUDGE ROBINSON: I'll allow the witness to answer this as a matter

19 of historical fact. He can speak to that.

20 THE WITNESS: With all due respect, Your Honour, the -- the fact

21 is -- has been well -- has been published that Alija Izetbegovic -- it was

22 in the New York Times in his obituary, in fact, that he was a convicted

23 war criminal and a collaborator with the Nazis. That was published the

24 day after he died in the New York Times. So it's very well known fact.

25 So I think to get to the main point, the preservation of certain

1 former Nazi collaborators from World War II over the decades as a result

2 of various reasons, particularly obviously foreign -- foreign forces, that

3 these -- that these actors again played a role in the persecution of

4 national minorities in Yugoslavia in the 1990s and particularly in Kosovo

5 we can say that if it were not for the fact that there were these foreign

6 forces involved with and these long-standing traditions connected to World

7 War II fascism, the rebirth of fascism in the Balkans would not have been

8 possible and that there is no coincidence that they're pro -- that their

9 programme of racial persecution and racial genocide was the same. These

10 are -- these are -- this is not a reinvention but, rather, a continuity, a

11 pattern.

12 And this comes -- this is something that is -- comes clear

13 actually when you interview the victims of oppression and racial

14 persecution in places like Kosovo, that they are aware that these are

15 long-standing conflicts, that they did not begin yesterday, that they are

16 holdovers from the World War II period when many of these -- these

17 political movements were first created.

18 JUDGE ROBINSON: Thank you, Mr. Lituchy.

19 Mr. Milosevic, bear in mind we have had evidence on this linkage

20 already.

21 THE ACCUSED: [Interpretation] Very well.

22 MR. MILOSEVIC: [Interpretation]

23 Q. Mr. Lituchy, were you in Yugoslavia in 1995?

24 A. Yes, I was.

25 Q. And what were you doing there in Yugoslavia at that time?

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1 A. I came there for two reasons. I -- I -- I first became very

2 concerned with the -- the refugees from Croatia, the Serbian refugees in

3 particular, because when that -- when that event occurred, it was clear in

4 the -- from following it in the US media, that it wasn't giving -- wasn't

5 being given any attention at all, and it was a massive humanitarian

6 catastrophe.

7 I -- I recognise it was given attention in -- in other European

8 media, for example, but in the United States, where I'm from, there was no

9 attention, practically no attention. It was blacked out of the media,

10 virtually non-existent. And I felt -- I felt at that time that it was --

11 it was important for me to go there and collect testimonies of refugees

12 and victims of persecution, find -- and make some inquiry into what had

13 happened to them and why. But I had also intended to conduct interviews

14 with Holocaust survivors in Serbia. So I -- I also did that during my

15 trip. Actually, in the end I wasn't able to -- actually, while I was

16 there that was when the bombing of Bosnia began, and I was there during

17 that period as well. But I was mostly concerned with interviewing Serbian

18 refugees from Croatia and Holocaust survivors from World War II.

19 Q. Mr. Lituchy, in view of the fact that you noticed that there was

20 no reporting in America about the ethnic cleansing of Serbs from Croatia,

21 did you turn to media and say that you could report on events from

22 Yugoslavia on that?

23 A. Yes, I did. As a matter of fact, I contacted --

24 Q. And who did you contact?

25 A. I contacted a number of radio stations, for example. I had some

1 contacts in the media, and I was -- I offered my services to them. I was

2 also hoping to get media credentials from them. Actually, none of these

3 -- none of these media outlets were interested, even ones that were quite

4 -- that tended to be quite interested in the past in refugee crises

5 and human rights issues. So I was -- I was really dumbfounded.

6 Dumbfounded.

7 Q. Do you know in these events in 1995 when you were in Yugoslavia,

8 do you know how many Serbs were expelled from Krajina and killed?

9 A. I don't know the exact number, but my understanding is it's around

10 a quarter of a million that were expelled during that period in 1995. I

11 don't know the exact number that were killed.

12 Q. Explain this to me now, please, as an American dealing in public

13 affairs and history and so on. How is it possible that what happened and

14 what many, and among them the co-president of the Conference on

15 Yugoslavia, Lord Owen, qualified as the greatest ethnic cleansing of the

16 1990s in the conflict in Yugoslavia, how did it happen that this was not

17 in the focus of attention of the media in your country, that it was thrown

18 out and sidelined?

19 JUDGE ROBINSON: I don't see the relevance. I don't see the

20 relevance of that.

21 THE ACCUSED:: [Interpretation] Very well. Will it be relevant if

22 I ask the witness this: How does he explain the fact that the largest

23 ethnic cleansing, that is to say a quarter of a million people, and masses

24 of people killed and bombed columns of refugees, et cetera, that this

25 boils down to the responsibility of one single general here, General

1 Gotovina, for instance, who wasn't even one of the most important

2 participants in those events?

3 JUDGE ROBINSON: That's a comment. You must formulate your

4 questions in -- in the proper manner, and you have had enough experience

5 now to do that.

6 THE ACCUSED: [Interpretation] Very well.

7 MR. MILOSEVIC: [Interpretation]

8 Q. Mr. Lituchy, how and how much -- how much would be better, were

9 your activities linked to the question of refugees in the Balkans, and how

10 does this relate to your research work on the genocide committed against

11 the Serbs during World War II? So your activities on the issue of

12 refugees in the Balkans and your activities in the 1990s, how does that

13 relate and is connected with the question of the genocide committed

14 against the Serbs in World War II?

15 A. One of the -- one of the obvious things that we have learned is

16 that Holocaust denial and the failure to learn the lessons of the

17 Holocaust in the Balkans, in Yugoslavia during World War II, laid the

18 foundation for the continuation of war crimes, the continuation of racial

19 enmity. There could not be any reconciliation. There could not be a

20 foundation for human rights if the lessons of the Holocaust and of

21 racial --

22 JUDGE BONOMY: Mr. Lituchy, we've had this already.

23 THE WITNESS: Sorry.

24 JUDGE BONOMY: Just so you're under no misapprehension about the

25 position you're in here, if any party to one of these cases wishes to

1 bring expert evidence, then they're free to do that, but there are certain

2 rules apply about producing reports, and so on. It's not your expertise

3 that is the issue here today, otherwise there would have been a report

4 prepared. Our concern is with the factual investigations you've carried

5 out.

6 As I understand it, you've already answered this question.

7 THE ACCUSED: [Interpretation] Very well.

8 MR. MILOSEVIC: [Interpretation]

9 Q. Mr. Lituchy, did you have occasion to meet and talk to many Serb

10 refugees from Croatia, for instance, at any time?

11 A. Yes, in 1995 I did.

12 Q. And what did they tell you?

13 A. Well, they were recounting on videotape, because I was also

14 filming them, their -- how and why they were expelled from Croatia, what

15 was done to them, and they -- I don't know if I could assess right now all

16 of the conclusions that I drew from that, but it was clear that there was

17 a planned -- a pattern of racial persecution against the Serbian

18 population of Croatia. That's -- that's clear from any -- okay.

19 Q. Yes. Thank you, Mr. Lituchy. Thank you. Let's focus on -- this

20 is what -- let's focus on Kosovo, since that's what we're dealing with.

21 Now, what do you base your knowledge on with respect to the events

22 in Kosovo and Metohija, your knowledge?

23 A. I don't think there's anything I could base it on that's more

24 important than my interviews of refugees from Kosovo. There's nothing --

25 there is no information, there's no hard evidence that I could rely on, or

1 any information at all, for that matter, that I would rely on, I think

2 that would override or take precedence over the information I obtained

3 from the refugees who were expelled or persecuted from Kosovo. That would

4 be the basis. That's the most important basis of my knowledge.

5 Q. And the conversations that you mentioned you had in 1999

6 immediately after the NATO pact aggression; is that right?

7 A. Yes. That was in --

8 Q. And where did you conduct those conversations? Where did you talk

9 to the refugees from Kosovo and Metohija?

10 A. I conducted interviews with these refugees in Belgrade and also in

11 the suburbs of Belgrade, northern suburbs.

12 Q. And what was the national structure of the refugees that you

13 interviewed?

14 A. Our delegation as a whole interviewed Serbian refugees. I did not

15 do the Serbian interviews, but I personally conducted the interviews with

16 Roma refugees, Egyptian refugees, with Albanian refugees, and subsequently

17 with a Jewish refugee as well. Let's see. Am I missing any -- oh,

18 members of our delegation also interviewed Turkish -- Yugoslav Turks who

19 were refugees, but I didn't conduct those -- those interviews.

20 Q. When you say delegations or groups, who made up that group? How

21 many of you were there? The names aren't that important but how many

22 members did that group number, the one that conducted the interviews?

23 A. There were approximately 16 of us who travelled for two weeks in

24 -- around the -- around Serbia, around Yugoslavia, observing damage during

25 -- following the bombing or during the bombing, and a number of us

1 conducted interviews, but I conducted probably the most of the -- most of

2 the interviews. This is something we planned to do prior to our

3 departure, because we wanted to learn the reasons for the -- for what had

4 happened to these refugees and the specifics, the specific details.

5 Q. All right. Mr. Lituchy, to the best of your knowledge and

6 following on from what you've just said and the information that stems

7 from those interviews, is there a common cause that made these people

8 leave Kosovo regardless of their national or religious affiliation, that

9 is to say regardless of whether they were Albanians, Roma, Egyptians,

10 Serbs? Is there a common denominator, a common or general cause for them

11 to leave Kosovo?

12 A. Well, there were two primary causes, I would say, and two

13 secondary causes, but the -- if -- that's the first part of my answer.

14 The second part of my answer would be that, is there a common

15 denominator? I would say that there is perhaps one common denominator as

16 a cause of the expulsion of all of these national groups and as well as

17 Albanians from Kosovo -- all of the national groups were to one extent or

18 another persecuted and expelled, and the main cause was KLA, the Kosovo

19 Liberation Army's use of terrorism against these national groups. That's

20 the one common denominator, although there are other causes.

21 Q. And tell me, in what way were you able to contact those people,

22 come into contact with them?

23 A. The -- I organised the delegation. I organised the interviews,

24 but I had a lot of help from my contacts in Belgrade, particularly my

25 contacts with the Roma federation, and they were extremely helpful in --

1 in providing the logistics to hold these, to make these interviews.

2 JUDGE ROBINSON: Mr. Milosevic, the witness said that there were

3 other causes, and he should tell us what the other causes are.

4 THE WITNESS: Well, one of the -- one of the -- the other one of

5 the two primary causes from the interviews, and I'm basing this purely on

6 my own investigation, was the bombing, the NATO bombing. That's -- I

7 mean, that's -- in many cases that's why people had to flee. They had to

8 flee bombing. Of course that's not -- that's not a common denominator.

9 Not everybody fled because of the bombing, but everybody did flee -- who

10 did flee because of Kosovo Liberation Army terrorism.

11 The two secondary causes, I think, that were very important for

12 the refugee crisis in June of 1999 were, first of all, the failure of KFOR

13 forces, and I suppose also UNMIK, to provide security for non-Albanians

14 and -- non-Albanian nationalities and for those Albanians who may not have

15 been members of the KLA.

16 Finally, a fourth reason, at least as far as I know and from --

17 from my investigation, is that the -- the absence of -- this is something

18 that was told to us especially by Roma refugees, that once the Yugoslav

19 army and police forces left Kosovo, the people did not feel safe. They

20 did not feel that they could continue to live in Kosovo, and that

21 obviously is a -- was a very significant reason for some of the people to

22 flee.

23 Those are the four reasons.

24 JUDGE ROBINSON: Thank you. Yes, Mr. Milosevic.

25 MR. MILOSEVIC: [Interpretation]

1 Q. Mr. Lituchy, you said that the Roma federation helped you

2 establish contacts. Perhaps others did, too, but let me put a specific

3 question to you. Did anybody from the government of the Republic of

4 Serbia or Yugoslavia give you any assistance in establishing contacts?

5 A. No. No, not at all. No.

6 Q. Did any representatives of the then-authorities of Serbia or

7 Yugoslavia -- when I say representatives of the authorities, I'm referring

8 to any representatives of the authorities at any level -- did any of these

9 representatives, any such representatives, rather, attend meetings with

10 refugees from Kosovo and Metohija?

11 A. No, never. Never. The only representatives that were there were

12 from the Roma federation. Who were not being -- obviously who were not

13 being interviewed.

14 Q. And agreement to have these interviews conducted by you and the

15 members of your delegation, was this an expression of their free will of

16 the interviewees, or did anybody bring pressure to bear against them in

17 order to have them grant interviews to you, to the best of your knowledge?

18 A. No. It was completely voluntary. I -- obviously not everyone

19 wanted to give interviews. We -- we could very well have -- we would have

20 liked to have had more -- conducted more interviews. Not everybody wanted

21 to, but those who did want to we interviewed. I think there was -- the

22 desperation was so great that these people wanted to tell, wanted to give

23 witness to what happened to them. They wanted to tell their stories.

24 Q. And how did you get in touch with the Albanians from Kosovo with

25 whom you had interviews at that time?

1 A. That was also thankful -- we thank the Roma federation for that.

2 That was through our connections with them that they organised that for

3 us.

4 Q. Now, when we're talking about general impressions, about all these

5 people that you talked to, what was indeed your general impression about

6 the psychological state that they were in just before the interviews were

7 conducted and while they were being conducted?

8 A. They were, to varying degrees, in terrible psychological state.

9 They were in terrible emotional state. Many of them had seen their

10 fathers, brothers killed, other family members murdered. They themselves

11 had been either tortured -- some of them had been tortured, some of them

12 had simply been threatened with death. They were extremely afraid. They

13 were nervous. They were -- they were desperate and often crying. In some

14 cases. In other cases it was -- it appeared that they were stoic, but

15 nevertheless extremely afraid, terrorised.

16 Q. And what kind of knowledge did you gain then?

17 A. Excuse me, knowledge? Could -- I didn't -- knowledge about what?

18 Q. About what had happened to these people, through the interviews

19 that you conducted.

20 A. Well, we learned a number of things. We learned that the -- that

21 in many -- that in almost all cases, whether they were Romas or Albanian

22 opposition people or Egyptians or Jewish or Turks, we learned that they --

23 or Serbs, we learned that they had been -- that their lives had been

24 threatened and that what we learned was that one of the obvious things

25 that happened was that in the days immediately after the withdrawal of

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1 Yugoslav forces and the arrival of KFOR forces, this facilitated the

2 arrival on the scene in many towns across Kosovo where they had not been

3 active before, the KLA and -- and really a mass -- a dark -- perhaps the

4 darkest day in recent European history, the mass expulsion of maybe as

5 many as 130.000 Romas and hundreds of thousands of Serbs and other --

6 other non-Albanian peoples. Certainly there was also at least the

7 expulsion of at least 20.000 - we were told from our investigation by

8 Albanians who were extremely knowledgeable about non-KLA Albanian

9 political movements - that at least 20.000 Albanians had been forced to

10 flee by the KLA because they would not cooperate with the Albanian KLA

11 movement. They were considered traitors. They were not considered loyal

12 to the -- if they were not -- if they were not loyal to the KLA.

13 MR. NICE: Well, Your Honours --

14 JUDGE KWON: Mr. Lituchy, by Albanian opposition people, you mean

15 those Albanians who were not loyal to the KLA.

16 THE WITNESS: Correct.

17 MR. NICE: Your Honour, the answer that's just been given relates

18 to a period after the withdrawal of Serb forces, effectively after the

19 allegations raised in this indictment. It's not concerned with the

20 movement of people from Kosovo out of Kosovo, it's concerned with the

21 movement of people out of Kosovo after the period of which this indictment

22 is concerned. It seems to -- possible to argue that it's entirely

23 irrelevant to this indictment. I can't see what its relevance is.

24 THE ACCUSED: [Interpretation] Mr. Robinson.

25 JUDGE ROBINSON: Yes.

1 THE ACCUSED: [Interpretation] What Mr. Nice says is not correct.

2 Witnesses testify about events in Kosovo and Metohija, about the time that

3 is relevant. What is correct is that after the war ended, they were

4 interviewed, but basically they were interviewed about what had happened

5 at the time which is relevant in your view.

6 JUDGE ROBINSON: We'll consider the point.

7 [Trial Chamber confers]

8 JUDGE ROBINSON: Mr. Milosevic, you have to make sure that the

9 witness gives evidence about the period covered by the indictment. KFOR

10 and UNMIK, that's after the indictment. But he can give evidence about

11 the interviews, people telling their stories as to why they fled during

12 the war, but we don't want evidence about events after the period covered

13 by the indictment. And some of what he just said did relate to that

14 period. So let him concentrate on the interviews relating to the period

15 covered by the indictment, why the people fled.

16 THE ACCUSED: [Interpretation] Certainly. Certainly, Mr. Robinson.

17 I'll make sure I do that. But I would like to draw your attention to the

18 behaviour of the KLA to the Serbs and Roma and Turks and Egyptians and

19 Roma. That's a question that has to do with all times. This is constant

20 behaviour. That's what witnesses speak about all the time, and that is

21 why I believe it is relevant. It's a permanent thing.

22 MR. MILOSEVIC: [Interpretation]

23 Q. Mr. Lituchy --

24 JUDGE ROBINSON: You've heard what I said. Bear that in mind.

25 THE ACCUSED: [Interpretation] I shall certainly bear that in mind,

1 Mr. Robinson, rest assured.

2 MR. MILOSEVIC: [Interpretation]

3 Q. Mr. Lituchy, now we are going to look at parts of some of your

4 interviews, although we handed in all of your tapes. However, before we

5 start playing the tapes, I have to clarify certain matters with you

6 beforehand.

7 Tell me, as far as Albanians are concerned, Albanians who were

8 interviewed, do you believe this should be dealt with in closed session,

9 for the sake of their own safety and security, or do you think that we can

10 deal with this in open session?

11 Let me be quite clear on this: I'm not talking about the Roma,

12 the Egyptians, the others. I'm just talking about the Albanians.

13 A. Yes. Yes. It's my opinion that it would be risky and we would be

14 putting the lives of the Albanians at risk if this was -- if their

15 identities were known. So I don't think that it would be wise to -- to do

16 that, no.

17 JUDGE ROBINSON: Mr. Nice.

18 MR. NICE: No advanced warning of this. This is typically a

19 matter that, if it was ever going to be raised, should have been raised,

20 as a professional lawyer would have done it, in advance. I absolutely

21 object to this on the following basis: If this evidence or material is

22 going in and if it's going to go in as evidence, it's going to go in on

23 the basis that presumably what is said by the people concerned is

24 truthful.

25 Now, we've already seen by material not yet admitted as evidence

1 but in relation to the witness Andric, people may say one thing in

2 interviews which they then explain later they never intended to say. If

3 the material is put out publicly so that the people can see it, there is

4 an outside chance that I may be able to deal with the people concerned

5 insofar as they're not fully identified in the tape and find out whether

6 they meant what it is said they said or what is shown they said. The

7 things dealt with in private session, even that possibility to deal with

8 this evidence is going to be denied me. So that this material -- well,

9 first of all, simply to have a witness express the very generalised

10 concerns that Mr. Lituchy has addressed without substantiating it by

11 reference to any particular Albanian is pretty unsatisfactory, the Chamber

12 may think, but it will have the effect of making this evidence beyond my

13 ability in any way to test.

14 JUDGE ROBINSON: Mr. Lituchy --

15 THE WITNESS: Yes.

16 JUDGE ROBINSON: -- I'd like you to elaborate on the statement that

17 you made, Albanians will be at risk. I need to have a more substantial

18 reason.

19 THE WITNESS: Yes. I'll give you two reasons. The first reason

20 is that the KLA functions classically as a fascist paramilitary

21 organisation that is determined to destroy first and foremost its

22 political opponents. That means kill.

23 Number two, of the three Albanians I interviewed --

24 JUDGE ROBINSON: There were just three?

25 THE WITNESS: Three in this video, yes.

1 JUDGE ROBINSON: Yes.

2 THE WITNESS: I'm sorry to say that one of them was already

3 murdered by the KLA, and that's why I'm concerned.

4 JUDGE ROBINSON: Is this just a wild allegation or --

5 THE WITNESS: No, it's a fact. It was reported in the media.

6 JUDGE ROBINSON: Has there been any arrests?

7 THE WITNESS: No.

8 JUDGE ROBINSON: Well, any charges against members of the KLA

9 for --

10 THE WITNESS: That I don't know.

11 MR. NICE: And, Your Honour, it may be worth observing that of the

12 other two, since the witness has now identified the one who is dead, the

13 other two are prominent members of the community, I think, he will

14 confirm, who are members of the provisional Executive Council, just like

15 Mr. Andric himself. Why they should be protected from the public

16 disclosure of what they said on some earlier interview entirely escapes

17 me.

18 While I'm on my feet, if there is any intention to adduce

19 effectively the interview of a person who is dead, the Chamber will recall

20 that Rule 92 bis was introduced following an episode before this Chamber

21 in the Kordic case specifically to deal, amongst other things, with the

22 mechanisms for introducing evidence of dead witnesses. This is not the

23 way that was envisaged, nor is it an appropriate way.

24 JUDGE ROBINSON: Mr. Nice, apart from the question of timing, that

25 there is no notice given of it, isn't this a matter that the Tribunal

1 cannot ignore, the possibility that the lives of persons to whom testimony

2 relates may be at risk?

3 MR. NICE: It's not question of ignoring it. It's a question, if

4 I may say so, of dealing with the thing properly. If these named

5 prominent individuals have any anxieties, it is for the accused in the

6 normal way, through his associates or through Mr. Kay or Ms. Higgins or

7 someone else, to get from those witnesses their express desire to be

8 protected in some way from risk. That hasn't happened. It's just

9 speculation by this person.

10 JUDGE ROBINSON: Did we not protect persons like this during the

11 Prosecution case?

12 MR. NICE: I can't immediately put my finger on an example where

13 we did, but what is quite clear is that wherever there was protective

14 measure, especially in the case where the accused was so insistent that

15 absolutely everything should be given in public, we were careful to dot Is

16 and Ts in supporting requests for protective measures by inquiries made

17 either contemporaneously with the evidence itself or very close to by

18 investigators who contacted the affected party. We don't have that here.

19 JUDGE ROBINSON: Yes, well I grant you that, that you did follow

20 the certain procedures which haven't been followed here. But the

21 substances of the matter still needs to be addressed.

22 MR. NICE: Your Honour, these are prominent people. There is no

23 evidence that they express concerns for their own position. If this

24 material is heard in closed session, there's no way I can deal with the

25 issue, either in cross-examination or by raising the material with the

1 witness, I suppose. I don't know.

2 JUDGE BONOMY: Why is that, Mr. Nice, if you know who the people

3 are?

4 MR. NICE: I beg Your Honour's pardon?

5 JUDGE BONOMY: Since you know who they are --

6 MR. NICE: Since they're named here, now I know exactly who the

7 witness is speaking about.

8 JUDGE BONOMY: What is the difficulty then?

9 MR. NICE: First of all, if it's closed session, I'd have to have

10 leave to explain to them what's been said about them and identify to them

11 the fact that they've been referred to in this way. But there's also, of

12 course, the practical problem that we've encountered with the Andric

13 evidence, that even if I go and find from them that they express contrary

14 views or qualified views, how can I deal with it? Because as things stand

15 at the moment, although I can probably put the fruits of such inquiries to

16 this witness, I couldn't certainly get the material in as evidence,

17 although that's something I'm going to address more generally in another

18 way.

19 JUDGE BONOMY: That may be a question of timing, as you know.

20 What pages should we be looking at in this document?

21 MR. NICE: I think what the witness has in mind -- if you look at

22 the index, you find the index, something headed Contents, and I'm grateful

23 to Ms. Graham for having perused late last night the extracted compact

24 disk containing what I forecast the accused will want to lay before you,

25 numbers 5 and 17 on the list are what's going to be the subject of

1 evidence, but it's number 17 which comes first on the CD. So you have to

2 find number 17.

3 Now, unfortunately, the pages aren't numbered. I'm sorry, I

4 haven't got a numbered one. It's page 127. I'm grateful to Ms. Dicklich.

5 And at page 127 -- I've got it here. What we have is three names, and

6 it's the one in the middle who is dead, and the other two are alive.

7 Now, you can then -- I'm not -- for reasons of caution I'm not

8 going to identify them by taking you through the detail, but you can read

9 for yourselves what is said. If you look down a few lines to the first

10 question, "Please introduce yourself," then get answer. So we can see

11 what the first person's role in affairs is.

12 And if you go over to --

13 JUDGE KWON: Mr. Nice, could you hold it a minute.

14 MR. NICE: Sorry.

15 [Trial Chamber confers]

16 JUDGE ROBINSON: To deal with what is virtually an application,

17 protective measures, we will go into private session so we can deal with

18 it more effectively. I will also hear from Mr. Milosevic and Mr. Kay.

19 [Private session]

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17 [Open session]

18 JUDGE ROBINSON: As indicated earlier, we are going to take the

19 adjournment now, and we will resume this hearing tomorrow morning at 9.00

20 a.m. -- oh, I'm sorry. We have another hearing tomorrow morning at 9.00.

21 We will resume this hearing at 10.15, 10.15.

22 THE ACCUSED: [Interpretation] And last time -- last time you said

23 10.50. Is it 10.50 or 10.15?

24 JUDGE ROBINSON: Yes. It's 10.50, ten minutes to eleven. Thank

25 you.

1 We will adjourn.

2 --- Whereupon the hearing adjourned at 12.32.p.m.,

3 to be reconvened on Thursday, the 10th day of

4 March, 2005, at 10.50 a.m.

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