1 Monday, 4 March 2002

2 [Open session]

3 --- Upon commencing at 9.03 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: Have the case called [Realtime transcript read in

6 error "Tiff I have the case called"], please.

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

8 IT-99-36-T, the Prosecutor versus Radoslav Brdjanin and Momir Talic.

9 JUDGE AGIUS: I see that this is going to be a heated session,

10 because it says "tiff, I have the case called." So good morning, Mr.

11 Brdjanin. Can you hear me in a language that you can understand?

12 THE ACCUSED BRDJANIN: [Interpretation] Good morning, Your Honour.

13 Yes, I can.

14 JUDGE AGIUS: You may sit down, thank you.

15 General Talic, good morning to you. Can you hear me in a language

16 that you can understand?

17 THE ACCUSED TALIC: [Interpretation] Good morning, Your Honour.

18 Yes, I can hear in a language I understand.

19 JUDGE AGIUS: I think you may sit down. Appearances for the

20 Prosecution.

21 MS. KORNER: Good morning, Your Honours. Joanna Korner plus

22 Denise Gustin for the Prosecution.

23 JUDGE AGIUS: Good morning, both of you.

24 And appearances for Mr. Brdjanin.

25 MR. ACKERMAN: Good morning, Your Honours. I'm John Ackerman, and

1 I appear today with Tania Radosavljevic. My co-counsel, Ms. Maglov, has

2 returned to Banja Luka to do some things there important to this case, and

3 she'll return when she gets those completed.

4 JUDGE AGIUS: I thank you, Mr. Ackerman and good morning to you.

5 Appearances for General Talic.

6 MS. FAUVEAU-IVANOVIC: [Interpretation] Good morning, Mr.

7 President, Your Honours. I am Natasha Fauveau-Ivanovic, assisted by

8 Fabien Masson, and I represent General Talic.

9 JUDGE AGIUS: Merci, we can start and [French phrase]

10 MS. FAUVEAU-IVANOVIC: [Interpretation] Good morning, to you, too.

11 MS. KORNER: Can I deal very swiftly. I know Mr. Ackerman wants

12 to raise a couple of matters -- with the matter that Your Honour raised at

13 the end of Friday's session, which related to the apparent difference

14 between the wording in document -- it's P227, I think. I'll just remind

15 myself -- which is the first set of Crisis Staff gazette.

16 JUDGE AGIUS: Yes.

17 MS. KORNER: Yes, 227. And Your Honour drew attention to the

18 difference in the wording.

19 JUDGE AGIUS: Yes, I remember. Yes.

20 MS. KORNER: "The decision shall come into force on the day it is

21 issued."

22 JUDGE AGIUS: Yes.

23 MS. KORNER: And on the next one: "The decision shall come into

24 effect on the day it is adopted."

25 Your Honour, after court, I had someone who reads and speaks the

1 Bosnian language read through the original. Your Honour, it can be dealt

2 with through the witness, if necessary. But the wording in the original

3 is identical.

4 JUDGE AGIUS: I see.

5 MS. KORNER: It would appear that one translator - and both

6 of these are final translations - has decided to use the word "issued,"

7 and the other "adopted." And that, I'm afraid, is one of the problems

8 about translation is that it's very much a question of what word the

9 translator decides to use. But in fact, in the original, it's identical,

10 the word used. But I imagine that Mr. Dzonlic can deal with that.

11 Your Honour, the second matter is Your Honour asked for whether we

12 had the statute of the Autonomous Region of Krajina. Your Honour, we do.

13 It's already been produced and admitted into evidence. It is Exhibit P80,

14 and it's in the first volume of the Banja Luka documents. If Your Honours

15 have it with you, it's divider 27, I think, or thereabouts.

16 JUDGE AGIUS: Mm-hm. I thank you, Ms. Korner.

17 Anything else? Mr. Ackerman?

18 MR. ACKERMAN: Your Honour, I have two matters, and I hope neither

19 will prolong -- delay our getting to the witness, because I don't intend

20 it to be that way. The first one is I was reminded, I think, by Ms.

21 Korner on Friday that time has passed when I told you I would file my

22 updated pre-trial brief.

23 JUDGE AGIUS: Yes.

24 MR. ACKERMAN: I have forgotten that. And I apologise.

25 JUDGE AGIUS: The Chamber hasn't.

1 MR. ACKERMAN: I'm sure you haven't, Your Honour.

2 There are two possibilities: One, the impetus for the order was a

3 motion filed by the Prosecutor, and it's the position of Ms. Korner that

4 she's really not interested in having me file that document with regard to

5 the law. I suspect, however, the Chamber might be, in spite of that. If

6 the Chamber is, I would then ask -- it will take me about two days full

7 time, I think, to do it, and I haven't found two days to do it yet.

8 JUDGE AGIUS: How long did it take you to file the motion on Rule

9 90?

10 MR. ACKERMAN: I think I spent about six hours working on that

11 motion, Your Honour. But that was a matter of immediate moment in the

12 case, I thought. And the issue of what the law is regarding various

13 matters in this case really won't come into play until the motion for

14 judgement of acquittal at the close of the Prosecutor's evidence, I would

15 think. But in any event, I will do as the Chamber directs me to do,

16 although there's evidence that I didn't when you directed me last time.

17 If you would like me to -- well, what I would prefer to do, if you want me

18 to file it, is to do it after the March break, because I'll have that

19 period of time in which I can do it right and do it properly. If you want

20 me to do it more quickly than that, then I will, but other parts of my

21 duties may suffer as a result.

22 JUDGE AGIUS: Yes. Ms. Korner.

23 MS. KORNER: Your Honour, our interest, as Your Honour may recall,

24 was that we got rather more clarification of what the factual defence

25 was. I -- Mr. Ackerman, I have informed that -- I wouldn't say I wasn't

1 interested, but that I certainly wasn't pushing for any answer on the

2 law. I agree with Mr. Ackerman that it's not likely to arise until the

3 close of the Prosecution's case. So Your Honour, I remain entirely

4 neutral on this.

5 [Trial Chamber confers]

6 JUDGE AGIUS: A woman's heart is always much more tender than

7 mine. I was prepared to give you until the 3rd of April. They have

8 suggested the 10th of April. So Mr. Ackerman, you have an extension up to

9 the 10th of April. Thank you.

10 MR. ACKERMAN: Thank you, Your Honour.

11 The next matter is, this weekend, I was working on the Rule 92 bis

12 material with regard to the Sanski Most part of the case. And in that

13 connection, met with Madam Fauveau with regard to it, and there are some

14 problems with 92 bis which I feel I need guidance from the Chamber on -

15 not today - but I would like to tell you what I see as issues that I think

16 need to be resolved and we need to be given some guidance on. And that's

17 this. I've written down four things that I think are important.

18 Does a decision by Defence counsel not to request

19 cross-examination of a 92 bis witness mean that the Chamber will treat

20 that statement then as true? And if not, how will the Chamber assess the

21 weight of a 92 bis statement? If a 92 bis statement is merely cumulative

22 of other evidence, then why should it be admitted at all? And if it

23 relates to a subject that has been contested with other witnesses, live

24 witnesses, as to that subject, may a 92 bis statement be admitted at all?

25 In other words, if the issue is one that is being contested -- let me take

1 for instance, the conditions in a detention facility. There may have been

2 five witnesses who have come and testified about the conditions in that

3 facility. Each of the five have been cross-examined fairly vigorously

4 involving that issue. There are three 92 bis witnesses who say roughly

5 the same thing about the conditions in the camp. By not bringing them for

6 cross-examination, do we then admit that what they say in their statements

7 is correct or must we challenge their testimony the same way we've

8 challenged the witnesses who came here live?

9 And I think before decisions can be made about whether to accept a

10 Rule 92 bis statement without bringing the witness for cross-examination,

11 we need some guidance regarding those issues. And that might take you

12 some time to ponder among the three of you, but I think it's -- I think

13 it's important for us to know it.

14 JUDGE AGIUS: Yes, Ms. Korner.

15 MS. KORNER: Your Honour, I'm slightly taken by surprise --

16 although Mr. Ackerman mentioned it to me.

17 JUDGE AGIUS: [Microphone not activated]

18 MS. KORNER: I wonder if -- we seem to be putting off an awful lot

19 of things. We're not trying to keep a list of what we put off. But

20 whether Your Honours would -- if Your Honours want to hear argument or,

21 rather, would like assistance on that, whether Your Honours would delay

22 that to give us a chance to consider those points.

23 JUDGE AGIUS: [Microphone not activated]

24 THE INTERPRETER: Microphone, please, Your Honour.

25 JUDGE AGIUS: Yes, certainly, Ms. Korner.

1 MS. KORNER: I mean, the answer to the cumulative one, well, of

2 course, I think that was one of the points, because it's under Rule 92

3 bis (A)(i)(a), where it says: Factors in favour of admitting evidence

4 include, "is of a cumulative nature, in that other witnesses will give or

5 have given oral testimony of similar facts."

6 So the answer to that one would seem very quickly, yes, it is

7 admissible.

8 As to the first question is one to treat it as true, and the

9 third, namely, what's the situation where there has been cross-examination

10 on a particular issue? Your Honour, there are certain provisions that I'm

11 aware of in English law that cover that type of situation, but I think I

12 would -- I'd prefer to have time to consider the matter.

13 JUDGE AGIUS: Certainly. The same applies to us. Obviously, this

14 is something that we'd need to discuss amongst ourselves as well.

15 What I suggest -- the approach I suggest is that when more or less

16 you're ready or you are in a position to discuss this, what I suggest is

17 that the two sides meet and present the Chamber with a joint document,

18 articulating the points that you need direction about. There may be, for

19 example, with regard to the cumulative nature, I think what you have

20 already referred to is in itself self-explanatory and maybe we'd drop that

21 with the question of whether this would be considered to be true or not.

22 I think the Trial Chamber will never give you a clear-cut answer "yes,"

23 because obviously it will depend from case to case and also on the

24 ensemble of -- but in any case, what I suggest is once you are in a

25 position to debate it or to discuss it, make submissions, I would suggest

1 you make -- draw up this joint document, submit it to the Trial Chamber.

2 In the meantime, we would have thought about the matter as well. And then

3 we will give it an hour or so to discuss it, if necessary, or else if we

4 are prepared to hand down a -- not necessarily a decision, but a directive

5 or direction, we will do that. I think that's --

6 MS. KORNER: Your Honour, I would hope we'd be able to reach

7 agreement on it.

8 JUDGE AGIUS: I think so, yes.

9 MS. KORNER: But if not, it may require oral argument and a ruling

10 by Your Honours.

11 Your Honour, as I say, there are a number of matters still

12 outstanding which at some stage I think we better find a morning to deal

13 with.

14 JUDGE AGIUS: Yes. That's -- whenever you like. Whenever you

15 like.

16 MS. KORNER: Yes.

17 JUDGE AGIUS: I mean, you are bringing the witnesses.

18 MS. KORNER: Yes.

19 JUDGE AGIUS: You know what the logistical problems are much more,

20 because obviously the Chamber is not kept informed of what is happening.

21 So any time you make a proper suggestion to that effect, we're open. We

22 will be forthcoming.

23 MS. KORNER: Well, at the moment, Your Honour, there's no question

24 in the near future. We have witnesses stacked up now because it's all

25 taking a lot longer than we anticipated originally. So I would say we've

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1 got witnesses here until the middle of next week.

2 JUDGE AGIUS: Okay.

3 MR. ACKERMAN: I would suppose that it would make sense that this

4 be dealt with sooner rather than later, because someone is going to want

5 to know our view regarding the 92 bis witnesses from Sanski Most, rather

6 soon I would think, rather than two or three weeks from now.

7 JUDGE AGIUS: It's up to you, Mr. Ackerman and Ms. Korner. I

8 mean, very rightly, Ms. Korner said she's been taken by surprise, so I

9 would give her all the time she needs, definitely. And when she's ready,

10 I suppose she can sit down together with you and Madam Fauveau, see what's

11 left that really needs the intervention of the Trial Chamber, and we will

12 meet you on that -- on that issue the earliest possible opportunity.

13 MR. ACKERMAN: Your Honours, I don't know how to raise a new issue

14 without taking someone by surprise.

15 MS. KORNER: It wasn't a complaint.

16 JUDGE AGIUS: Yes, it's not a complaint. It's not a complaint.

17 It's a fair comment. The same applies for us. We were not prepared for

18 it.

19 So can we call the witness. Let's have the witness inside the

20 courtroom and we'll continue with his cross-examination.

21 Do you anticipate to finish your cross-examination today, Mr.

22 Ackerman?

23 MR. ACKERMAN: Yes, I think so.

24 [The witness entered court]

25 JUDGE AGIUS: Good morning to you, Mr. Dzonlic. You are going to

1 be asked once more to read the statement, to tell us the whole truth and

2 nothing but the truth. So please proceed.

3 THE WITNESS: [Interpretation] I solemnly declare that I will speak

4 the truth, the whole truth, and nothing but the truth.

5 WITNESS: AMIR DZONLIC [Resumed]

6 [Witness answered through interpreter]

7 JUDGE AGIUS: You may sit down, thank you.

8 Mr. Ackerman, you may proceed.

9 MR. ACKERMAN: Thank you, Your Honour.

10 Cross-examined by Mr. Ackerman: [Continued]

11 Q. Good morning, Mr. Dzonlic.

12 A. Good morning.

13 Q. I want to start this morning with kind of a digression, I

14 suppose. There was a time during your direct examination when you talked

15 about some guys who came from Belgrade with a whole bunch of money.

16 Do you recall that?

17 A. Yes, I do.

18 Q. And what was that money?

19 A. We called those Serbian dinars, and they became the currency.

20 They were new dinars, Serbian dinars, which came from Belgrade, and they

21 were used as the currency in Banja Luka.

22 Q. Well, what I don't understand is did these people just come hand

23 out money to people? Was it just free money?

24 A. Those people didn't hand out money. It wasn't them. They had

25 with them large amounts of that money. And as I said, they used it to pay

1 for things in the pizzeria, in the restaurant. They paid the expenses,

2 and they said that they had brought the money in a convoy of armoured

3 vehicles and that this was the kind of money that would be the currency

4 used in the future. And they said that the same kind of money -- that

5 they were taking the same sort of money to the Serbian Krajina, to Knin in

6 Croatia.

7 Q. Yes. You told us all those same things before. The question

8 was: Was it just free money? Did they just hand it out to people? I

9 think your answer is no.

10 A. I didn't say they handed out the money to people. I said they

11 used it to pay their expenses, to pay for drinks. They treated people and

12 paid in that money. They didn't give money, as such. I didn't say that.

13 Q. So the money was put into circulation in Banja Luka by these guys

14 doing a lot of drinking and eating a lot of pizzas and paying for it? Is

15 that how it got into circulation?

16 A. No, that's not the way it came into circulation. What I said was

17 that they used that money to pay for things, and they said that they used

18 transporters, armoured vehicles, to bring in huge amounts of that money.

19 I didn't see those vehicles myself, but they said that they were bringing

20 large amounts of money. I assumed they were taking that money to the

21 financial institutions because all the financial transactions went through

22 the SDK, the public accountancy service, and they took the money there, I

23 assume, and that's where it was stored.

24 Q. So you think it was just put into banks?

25 A. That service, the SDK, it's a service for payments. It's not a

1 bank. Payment settlement, that's what it does. And daily payments were

2 balanced there. And after a certain amount of time, certainly, that money

3 must have reached the banks.

4 Q. There were dinars in circulation in Banja Luka from World War II

5 up to that time, weren't there?

6 A. Yes, there were dinars.

7 Q. And what you're talking about is the new dinar -- what was called

8 the new dinar; correct?

9 A. Yes. It was now a new currency, a new form, a new appearance of

10 the bank notes, yes.

11 Q. And you know, do you not, that the new dinar did not come into

12 circulation until January 1, 1994?

13 A. I don't know that.

14 Q. Do you deny it?

15 A. That the new dinar entered into circulation in 1994? I said that

16 I didn't know that, the fact it had entered circulation in 1994.

17 Q. All right. When we broke on Friday, we were talking about the

18 relative competencies of the Executive Council of ARK, headed by Nikola

19 Erceg, and the Crisis Staff of ARK. And I had put to you the question

20 that since Mr. Erceg was the person who had appointed the Crisis Staff,

21 then he would necessarily have maintained superior position over the

22 Crisis Staff and could have removed anyone that he had appointed to that

23 Crisis Staff at any time.

24 The next place I want to direct your attention is to -- it's

25 clear, is it not, that Mr. Erceg remained in his position and continued to

1 operate in his position as president of the Executive Council of the

2 Autonomous Region of Krajina after the appointment of the Crisis Staff?

3 You agree with that, don't you?

4 A. Yes.

5 Q. You don't have your documents in front of you.

6 MR. ACKERMAN: Could I get Prosecution Exhibit 227 brought to the

7 witness, please.

8 THE WITNESS: [Interpretation] Your Honour, I do apologise. If I

9 may, before I answer any other question, may I say that as far as I was

10 able to understand, the last time I was examined, the statement that I

11 gave would be given to me here in front of me. So that was my

12 understanding, that I could have that statement here in front of me. Is

13 my understanding correct?

14 MR. ACKERMAN: Your Honour, I think he wants his written

15 statement. And I have no objection to that at all.

16 JUDGE AGIUS: Yes. Do you have any objection to that, Ms.

17 Korner?

18 THE INTERPRETER: Microphone, please, Your Honour.

19 MS. KORNER: Your Honour, I think it's a difference of systems, of

20 course that's the --

21 JUDGE AGIUS: [Microphone not activated]

22 THE INTERPRETER: Microphone, Your Honour, please.

23 JUDGE AGIUS: Sorry about that. If you don't see any objection, I

24 will let him have the documents. Obviously, if you are going to refer to

25 any part of that document, he should -- in my jurisdiction, you would read

1 it out or you would let him see that particular part. So I have no

2 objection at all, and -- like we did with previous witnesses, in any case.

3 MS. KORNER: Your Honour, that's right. And of course I think

4 that's right. Last time he was given his statement.

5 JUDGE AGIUS: Yes, exactly.

6 MS. KORNER: Because he was asked about it.

7 JUDGE AGIUS: So please do.

8 And Mr. Dzonlic, the statement he made on the 5th, 6th and 7th of

9 May, 2001, and the other statement he made on the 11th and 12th of

10 October, 2000.

11 THE WITNESS: [Interpretation] Thank you.

12 MR. ACKERMAN:

13 Q. All right. Mr. Dzonlic, we are talking about number 5 in Exhibit

14 P227. Number 5 is a decree on organising enterprises from parts of the

15 work process; correct?

16 A. I apologise. I can't find it. I have another decision in front

17 of me.

18 Q. The decision is number 5, Exhibit P227, the decree that is signed

19 by Nikola Erceg, several articles.

20 A. Yes, yes.

21 Q. Okay. And that is dated 9 May 1992, is it not?

22 A. Yes.

23 Q. And that's four days after the date that Mr. Erceg appointed a

24 Crisis Staff; correct? The Crisis Staff was appointed at document number

25 2, decision number 2, on 5 May 1992; correct?

1 A. Yes.

2 Q. And this decree is signed by Nikola Erceg as president of the

3 Executive Council?

4 A. Yes.

5 Q. And the preamble indicates that it is pursuant to article 24,

6 section 2 of the ARK statute?

7 A. I can't find that decision. I don't have it. Just a moment,

8 please. Oh, yes. Yes, I see it. I see it. Yes. Yes. Yes, yes. I see

9 it now.

10 Q. And the preamble also indicates that there was a session of the

11 Executive Council on May 9th at which this decree was agreed upon.

12 A. Yes.

13 Q. I want you to go back one document to conclusion number 4.

14 A. Yes.

15 Q. This document refers, if you look at the preamble, to a meeting of

16 the Crisis Staff of the Autonomous Region of Krajina that was held on 8

17 May 1992.

18 A. Yes.

19 Q. And the preamble clearly indicates, does it not, that this was a

20 meeting of the Crisis Staff?

21 A. Yes.

22 Q. If you look at paragraph 1, at least according to the translation,

23 paragraph 1 refers to information that must be supplied to the war staff

24 of the Autonomous Region of Krajina. Is that what it says in B/C/S?

25 A. Yes.

1 Q. And if you look at number 3, it says that: "Presidents of the

2 National Defence Councils are to report to the war staff of the Autonomous

3 Region of Krajina"; correct?

4 A. Yes.

5 Q. Now, you've agreed that this was a meeting of the Crisis Staff.

6 And they're drawing conclusions about things that must be submitted to or

7 reported to the war staff. Do you believe that is a different body, the

8 war staff? Is it different from the Crisis Staff?

9 A. Yes.

10 Q. Now, if you look, then, Mr. Dzonlic, at paragraphs 5 and 6.

11 Paragraphs 5 and 6, the Crisis Staff is making requests; correct?

12 A. Yes.

13 Q. And paragraph 5, they're requesting certain activity on behalf of

14 the military?

15 A. Yes, yes.

16 Q. And paragraph 6, they're requesting certain activity on behalf of

17 the Assembly of the Serbian Republic of Bosnia-Herzegovina.

18 A. Yes.

19 Q. And the reason that the Crisis Staff is using the word "request"

20 is because they have no competence to order either the military or the

21 Assembly of the Serbian Republic of Bosnia-Herzegovina to do anything.

22 All they can do is to request. Correct?

23 A. Could I ask you to repeat that question again, please? I

24 apologise.

25 Q. Yes, that's fine. The reason the word "request" --

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1 MS. KORNER: I'm sorry. I'm going to object, Your Honour. I was

2 half minded to anyhow. It's pure comment. We can all read what the word

3 says. The witness can read what the word says. Whether or not they can

4 only request because they have no competence, that's a matter of comment.

5 This witness can't answer that question. All he can do is read it.

6 JUDGE AGIUS: I would allow [Microphone not activated]

7 THE INTERPRETER: Microphone, Your Honour.

8 JUDGE AGIUS: I would allow the question, Ms. Korner, also because

9 as I read through these documents, I think some sort of clarification from

10 the witness as to whether he sees a distinction between "it's hereby

11 requested" or "presidents of the National Council are to," --

12 "distribution is to be placed" -- "presidents of the ... are to supply."

13 There is a clear distinction when the Crisis Staff are directing the

14 National Defence Council or other institutions and the JNA and the

15 Assembly of the Serbian Republic of Bosnia and Herzegovina. There may be

16 a very simple answer to that, to tell you the truth, and I anticipate what

17 the answer could be. But I would rather have the witness say it.

18 MS. KORNER: Yes. Your Honour, I've no doubt that Mr. Ackerman is

19 perfectly right. I mean, one can read that oneself, and it would seem

20 common sense. What I'm querying is, is whether this witness is in a

21 position to do any more than all of us in reading this. That's my only

22 query.

23 MR. ACKERMAN: Your Honour, I will accept the Prosecution's

24 statement that I'm perfectly right and move forward.

25 JUDGE AGIUS: Yes. Go ahead, Mr. Ackerman.

1 MR. ACKERMAN: Thank you, Your Honour.

2 Q. I'd like you to move forward now, Mr. Dzonlic, to conclusion

3 number 6. Let me know when you've found number 6.

4 A. I've found it.

5 Q. Again, this refers to the meeting of the Crisis Staff of the

6 Autonomous Region of Krajina. And it's the next day. It's now the 9th of

7 May. The last one referred to was the 8th of May, I believe. And on the

8 9th of May, they arrived at some additional conclusions. Correct?

9 A. Yes.

10 Q. They concluded that the war staff should have a press centre, in

11 paragraph 1; right?

12 A. Yes, correct.

13 Q. In the second part of paragraph 2, they concluded that only

14 persons loyal to SRBiH may make decisions on the implementation of general

15 mobilisation in public and economic organisations; correct?

16 A. Yes, correct.

17 Q. And then in the next paragraph, they talk about, "Decisions

18 adopted by the war staff of the Autonomous Region of Krajina are to be

19 strictly respected in all public and economic organisations." Yes?

20 A. Yes, that is correct that the decisions have to be respected by

21 all public and economic organisations, yes. And the word "strictly" is

22 there, must be strictly respected.

23 Q. Yes. And that paragraph refers to decisions of the war staff, as

24 opposed to conclusions of the Crisis Staff, does it not?

25 A. Those are decisions of the war staff of the autonomous region.

1 A. Yes.

2 Q. I'd like you to look now at paragraph 5. Paragraph 5 is

3 characterised as an appeal to the presidents of the National Defence

4 Councils to take immediate steps to disarm paramilitary formations and

5 individuals who illegally own weapons and ammunition." It refers to

6 illegal ownership of weapons and ammunition, does it not?

7 A. Yes.

8 Q. Now, I want to go back for a moment to paragraph 2, where we

9 talked about only persons loyal to the Serbian Republic of

10 Bosnia-Herzegovina. You know, do you not, that in the police ranks, a

11 loyalty oath was presented to police officers to state whether or not they

12 were loyal to the Serbian Republic of Bosnia-Herzegovina? You're familiar

13 with that loyalty oath. I think you've testified about it. Correct?

14 A. Yes, I am familiar with it.

15 Q. Do you know that in the police ranks, 70 per cent of Muslim police

16 signed the oath and 80 per cent of Croatian police signed the oath? Do

17 you believe that to be the case?

18 A. I don't know that, and I don't believe that to be the case in

19 Banja Luka because I know perhaps two policemen who are Muslims who signed

20 this loyalty oath. As for what you have just said, I don't know about

21 that, and I don't believe that those figures are right.

22 Q. Under the law, it was perfectly legal, was it not, for an

23 individual to own a hunting weapon if it was properly permitted -- a

24 permit had been properly issued and the law had been followed, it was

25 legal to own a hunting weapon, was it not?

1 A. Yes. Yes, it was legal.

2 Q. And when the appeal or the order or the request or the conclusion

3 is that individuals should turn in illegally owned weapons, that would not

4 have applied to their hunting weapons, would it, that were legally

5 acquired?

6 A. Yes, that's right.

7 Q. Let's look at decision number 7 now. It's actually conclusion

8 number 7. And this is another meeting of the Crisis Staff held two days

9 later, on May 11th, is it not?

10 A. Yes, it is.

11 Q. And again, in paragraph 1, it speaks of the surrender of illegally

12 acquired weapons, doesn't it?

13 A. Yes.

14 Q. In paragraph 6, it talks about able-bodied men, aged between 18

15 and 55, who have fled from the ARK must immediately return. It's the

16 case, isn't it, that a number of Serbs fled from the ARK to avoid

17 mobilisation?

18 JUDGE AGIUS: Mr. Ackerman, may I remind you that you put this

19 question to the witness at least twice last Friday. And he gave you an

20 answer.

21 MR. ACKERMAN: Well, that should be enough, then, Your Honour.

22 Q. Let's go -- let's go, Mr. Dzonlic, to the next document, number

23 8. The first thing I want to do is just kind of a review. If you go back

24 through the Crisis Staff meetings of 8 May, 9 May, and 11 May, those

25 documents are all conclusions, are they not?

1 A. Yes.

2 Q. If we go to the document at number 8, that's a document that's

3 called a "decision," isn't it?

4 A. Yes.

5 Q. And again, this is a document that is signed by Nikola Erceg?

6 A. Yes.

7 Q. President of the Executive Council. And what he's doing in that

8 document is appointing Mr. Brdjanin to yet another position; right?

9 A. In formal and legal terms, that is right. But in substance, I

10 don't think it was he that appoints him but the Crisis Staff. And in view

11 of the fact that it refers to the secretariat as a body of the Executive

12 Council, the decision is signed by the president of the Executive Council,

13 Mr. Nikola Erceg.

14 Q. You told us, I think the first day that you started testifying in

15 this case, that the Crisis Staff basically substituted itself for the

16 Assembly of ARK, and the executive of ARK was the Executive Council, and

17 that it was the job of the Executive Council to implement the conclusions

18 of the Crisis Staff. Isn't that what you said?

19 A. Yes.

20 Q. And Mr. Erceg, as a person who in the hierarchy of ARK was

21 superior to Mr. Brdjanin, would have had discretion regarding the

22 implementation of the conclusions entered into by the Crisis Staff,

23 wouldn't he?

24 A. Mr. Erceg was at the same time a member of the Crisis Staff, so

25 it's the same people are trying you and the same people are prosecuting

1 you. So you have the same person in several bodies. And so you see, that

2 is illustrative of the way they acted. At the same time, he was president

3 of the Executive Council and a member of the Crisis Staff.

4 MS. KORNER: Your Honour, I'm sorry, can I interrupt for a

5 moment? I missed the way the question was put. It was put: Mr. Erceg as

6 person who in the hierarchy of ARK was superior to Mr. Brdjanin. And --

7 now, that question was put, I think, on Friday, and I don't think it was

8 agreed to by Mr. Dzonlic, but it's now being asserted as a fact, is it?

9 JUDGE AGIUS: Well, I take it it's being put as a question. But

10 certainly what you're stating, that Mr. Dzonlic was very categoric about

11 the power or the status that Mr. Erceg had, yes, you are right. He

12 definitely was very categoric about that, which means that he can

13 definitely answer the question, and he was in the process of answering it.

14 MS. KORNER: Yes, exactly -- I'm sorry, Your Honour, but my

15 objection is, if one reads the question, it seems to be an assertion of

16 facts, which is not, in our submission, borne out by any evidence that's

17 been given in this case.

18 JUDGE AGIUS: Not yet. You are perfectly right, Ms. Korner. In

19 that regard, you are perfectly right.

20 So perhaps, Mr. Ackerman, could you rephrase the question, not

21 repeating what you have already asked from the witness last Friday,

22 because you put the question last Friday to have witness explain to you

23 how was it that Mr. Erceg was the president of the Executive Council and

24 as witness was putting it, he did not, however, have any executive power

25 which vested instead in the Crisis Staff. That is what he said last

1 time. And perhaps on the basis of that, since in reality if you look at

2 the -- at the hierarchy -- if you look at the hierarchy, then maybe you

3 are right. I mean, Mr. Erceg would appear on top of the list being the

4 president of the Executive Council. But in essence, what witness has said

5 -- has stated throughout, is that he had no power.

6 MR. ACKERMAN: Yes. Well, I can go at that a different way, Your

7 Honour.

8 Q. Mr. Dzonlic, if you look at all of the Crisis Staff conclusions

9 that we've been talking about this morning, those all came from a session

10 of the Crisis Staff held on different days. That's true, is it not?

11 A. Yes, it's true.

12 Q. And I think you told us you don't know who the members of the

13 Executive Council were. You just know that Nikola Erceg was its

14 president.

15 A. Yes.

16 Q. And in line with what you told us about the Crisis Staff

17 concluding and the Executive Council implementing those conclusions as

18 executive decisions, I'd like you to look at conclusion number 9. Have

19 you found that?

20 A. Yes, I've found it.

21 Q. And paragraph 8 of that conclusion, which comes from a meeting of

22 the Crisis Staff on 13 May, says that "Radoslav Brdjanin is to be

23 appointed secretary of the secretariat for traffic and communications,

24 construction, and spatial planning, and the fund for highways and regional

25 roads," the important language there being "is to be appointed." In other

1 words, it carries the implication of a recommendation, doesn't it?

2 A. Yes, yes, that is right.

3 Q. And if you look, then, at the decision of Nikola Erceg of the same

4 day, he did not completely carry out the conclusion of the Crisis Staff,

5 but, using his discretion, made a slightly different decision, didn't he?

6 A. I don't see.

7 Q. Okay. Let me direct your attention --

8 A. Yes, I see the decisions. I was just going to say the following:

9 Both decisions, or rather, the decision and the conclusion were adopted on

10 the same day, the 13th of May. We don't know which came first, the

11 decision or the conclusion. In my judgement, the decision came first,

12 because he was appointed acting secretary. And after that, the conclusion

13 was adopted to appoint him secretary. So I think that is what it is.

14 Q. Well, if you're correct that what the Executive Council does is

15 implement the conclusions of the Crisis Staff, then it should be pretty

16 clear that it's the decision that came second and that Mr. Erceg appointed

17 him as acting secretary, rather than as secretary, as the Crisis Staff

18 asked?

19 MS. KORNER: Your Honour, I should point out they in fact have

20 been copied back to front, because if you look at the numbers, Mr.

21 Ackerman is correct. I don't want anybody to go from a false path. The

22 date of the document -- the number of the document, of the conclusions, is

23 03315/92. The Erceg one is 03316. I'm afraid they were just copied in

24 reverse order.

25 JUDGE AGIUS: Yes, Mr. Dzonlic. You have heard what Ms. Korner

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1 pointed out, namely, that following the official number given by the

2 authorities in the region at the time, it seems that the document

3 containing the conclusions reached by the Crisis Staff in the meeting of

4 the 13th of May, 1992 preceded the decision signed by Mr. Erceg. And on

5 the basis of that, it was pointed out to you by Mr. Ackerman that what

6 this means is that while the Crisis Staff recommended the appointment of

7 Mr. Brdjanin as secretary of whatever it was, Nikola Erceg, president of

8 the Executive Council, only appointed him as an acting secretary of the

9 same section or transport and communications, or whatever it was. What do

10 you have to state in this regard?

11 THE WITNESS: [Interpretation] It's quite clear. I wish to say

12 that the Crisis Staff made a recommendation pursuant to item 8 that

13 Radoslav Brdjanin is to be appointed secretary of the secretariat, and the

14 fact is that the president of the Executive Council, Nikola Erceg,

15 appointed him acting secretary and not secretary -- he appointed him

16 acting secretary, which in my view is only a technical solution, an

17 interim solution. There is no doubt that as acting secretary, he had the

18 same authority that a secretary would have.

19 JUDGE AGIUS: Yes. Thank you.

20 Mr. Ackerman, you may proceed.

21 MR. ACKERMAN:

22 Q. Can I take it that Mr. Erceg could also remove him from this

23 position as acting secretary when he decided to appoint a permanent

24 secretary?

25 JUDGE AGIUS: You answer that question only if you are in a

1 position to answer it.

2 MR. ACKERMAN:

3 Q. If you know.

4 JUDGE AGIUS: Because it involves your knowledge or you knowing

5 what the powers of Mr. Erceg as president of the Executive Council were.

6 If you're not quite sure, you know what to do.

7 A. In my opinion, Mr. Nikola Erceg, as president of the Executive

8 Council, could replace his secretaries, the secretaries of the

9 secretariat, whenever he wanted, because he was the president of the

10 Executive Council.

11 MR. ACKERMAN:

12 Q. Could I ask you to look now at paragraph 6 of document number 9.

13 That's again conclusions of the ARK Crisis Staff of 13 May. It's the one

14 we've been talking about with paragraph 8. We're going to move up to

15 paragraph 6 now.

16 It talks about certificates issued by the Crisis Staff to

17 individuals who are moving out of the Autonomous Region of Krajina. And

18 says, "those certificates shall also be valid for their belongings,

19 household items, furniture, and motor vehicles."

20 That was in fact the case. People were permitted to take

21 household items, furniture, and motor vehicles with them when they left

22 the area, weren't they?

23 A. Yes.

24 Q. And these travel certificates were issued to people from all three

25 ethnicities: to Serb, Muslims, and Croats; correct?

1 A. I don't know whether the travel certificates were issued to

2 citizens of all ethnic groups. As far as I know, I do not know any

3 citizen of Serb ethnicity who needed a travel certificate in order to move

4 away. I even think that citizens of Serb nationality who wanted to leave

5 were not to go and ask for travel certificates. They left in other ways,

6 not by the same procedure that we have already explained.

7 MR. ACKERMAN: Your Honour, I need the witness to be provided with

8 a couple of documents, P295 and P242.

9 Your Honour, I seem to have misplaced my own copy of P242. I

10 wonder if maybe the Prosecution has an extra copy I could refer to or how

11 we might deal with this.

12 JUDGE AGIUS: [Microphone not activated].

13 MR. ACKERMAN: The witness has it. I just don't have one to refer

14 to myself. I apparently left it in my --

15 JUDGE AGIUS: [Microphone not activated]

16 MR. ACKERMAN: Well, and as usual, it's not even the right

17 document. So --

18 JUDGE AGIUS: [Microphone not activated] I was under the

19 impression that last time you --

20 THE INTERPRETER: Microphone, please, Your Honour.

21 JUDGE AGIUS: I am under the impression that last Friday you

22 referred to this document, only to find out that it was not the document

23 you wanted.

24 MR. ACKERMAN: I did.

25 JUDGE AGIUS: And then you told us you wanted another document,

1 but I can't remember which other document you told us you wanted.

2 MR. ACKERMAN: Well, I can't either.

3 Maybe we could take the morning break now and I could get myself

4 better organised? Would that make sense?

5 JUDGE AGIUS: It would make sense to me, too.

6 Ms. Korner?

7 MS. KORNER: No objection, Your Honour.

8 JUDGE AGIUS: Okay. So we can break now. In the meantime, Mr.

9 Ackerman, please could you tell us which other documents you will be

10 making use of? P295, as I understand, and what else?

11 MR. ACKERMAN: Just that, and this one that I am not able to find,

12 and I think P43.

13 JUDGE AGIUS: P43?

14 MR. ACKERMAN: Yes.

15 JUDGE AGIUS: Okay. So we'll break for 25 minutes, resuming at

16 twenty to 11.00. Twenty to 11.00. Thank you.

17 --- Recess taken at 10.12 a.m.

18 --- On resuming at 10.51 a.m.

19 JUDGE AGIUS: Yes. We gave you a little bit more time,

20 Mr. Ackerman. Make sure you've got the numbers right this time.

21 Could you bring in the witness, please.

22 MR. ACKERMAN: Your Honour, I'd like the witness to have P43,

23 P247, and the one we were previously referring to, which I think is P295

24 and P227.

25 JUDGE AGIUS: Before you proceed, Mr. Ackerman, and what I'm going

1 to tell you applies to everyone. I've been asked by the interpreters -

2 very rightly so, because I apologise, but we always let them down, and

3 this is very important for them - to ask you to slow down. And indeed you

4 were actually firing questions a little bit too fast and too soon after

5 the witness was finishing giving you the answer. So please slow down a

6 little bit. And always allow a little bit of a pause between his reply

7 and your next question. I thank you. Also, we are advised not to speak

8 at the same time. And we'll try to be more educated. Thank you.

9 Mr. Ackerman.

10 MR. ACKERMAN: Thank you, Your Honour. Trying get a bunch of

11 lawyers not to speak at the same time may be an impossible task. We can

12 try.

13 Q. Mr. Dzonlic, you will have been handed to you document P43, which

14 is an extract from the minutes of a session of the assembly of the

15 Autonomous Region of Krajina of 17 July 1992. Do you have that document?

16 A. Yes, I do. It is the 18th assembly session, as far as I can see.

17 Q. It is indeed. The first thing I'll draw your attention to is that

18 the document indicates that the assembly was presided over -- the session

19 was presided over by Vojo Kupresanin, who chaired its work. Correct?

20 A. Yes, correct.

21 Q. And if you go to item 2 of this extract, what I really want to

22 point out was that proposals were presented to the assembly. Following

23 the proposal, there was a debate in which members took part. And then a

24 conclusion was adopted. And you'll see that in item 2 and item 3 and item

25 4. Correct?

1 A. Yes.

2 Q. Presumably, once the assembly adopted these conclusions, they were

3 then prepared formally for the signature of Mr. Kupresanin, who was

4 president of the assembly.

5 A. Yes.

6 Q. And the Crisis Staff would have functioned much the same way.

7 There would have been proposals with debates, with votes, and then

8 whatever the conclusion of the members of the Crisis Staff were, that

9 would be formally prepared for the signature of the president. Correct?

10 A. That's how it should be, yes.

11 Q. Yes. If you look at item 4, item 4 was a -- an agenda item

12 regarding verification of decisions, conclusions adopted by the Crisis

13 Staff and the War Presidency of the Autonomous Region of Krajina. And

14 with regard to that, there was a debate. Several members took part. And

15 then those decisions/conclusions were adopted, were they not?

16 A. Yes, that is right.

17 Q. If you know, can you tell us why the ARK Assembly was involved in

18 verifying decisions and conclusions of the Crisis Staff and the War

19 Presidency? Why did that happen? Do you know?

20 A. As far as I know, the decisions have to be verified by the

21 assembly. All decisions of bodies which perform the functions of the

22 assembly are duty-bound to be submitted to the assembly for verification,

23 the assembly being the highest level body, the legislative body which

24 verifies those decisions.

25 Q. Could we go now to a document which you have before you. It's

1 P247. We saw it, I think, on Friday for the first time. I want to first

2 draw your attention to paragraph 3A. Let me draw your attention to

3 something else first. You had before you that -- it's P227, the gazette

4 from ARK. And the last document in that gazette is decision number 28,

5 right at the very end, a decision signed by Nikola Erceg. And the only

6 thing I want to draw your attention to is that that decision was dated 5

7 June of 1992. Do you agree with me about that?

8 A. I apologise. I don't know exactly which document you are

9 referring to.

10 Q. It's at the very end of that gazette, number 28. It's the last

11 item in that gazette.

12 A. Could you at least give me the number, please.

13 Q. 28.

14 A. The number of the decision.

15 Q. 28.

16 A. Dated the 4th of June, 1992, on the appointment of the acting

17 director of the radio television?

18 Q. No. It's the one right after that. There are two 28s, I guess.

19 But the one right after that, the second 28, is a decision signed by

20 Nikola Erceg.

21 A. On the rates of special payment to the automobile association?

22 Q. That's it. All I'm really interested in is the date of that

23 decision. 5 June, 1992; correct?

24 A. 5 June 1992, yes.

25 Q. Now go, please, to Exhibit P247. And that exhibit is dated 14

1 June 1992, is it not? Just nine days later.

2 A. The intermunicipality agreement?

3 Q. That's it.

4 A. Is that the one?

5 Q. Yes, sir.

6 A. The date is the 14th of June, 1992, yes.

7 Q. Which is about nine days after the last decision from the

8 Autonomous Region of Krajina that appears in that gazette; correct?

9 A. Yes.

10 Q. I want to draw your attention to -- on that document paragraph 3A.

11 It says: "We think that the work of the Crisis Staff of the Autonomous

12 Region of Krajina under wartime circumstances should be much more serious

13 and that its politicians and experts should pay more attention to the

14 problems in all constituent municipalities of the Autonomous Region of

15 Krajina." That's what it says, isn't it?

16 A. Yes. I see it. That's what it says.

17 Q. Yes. And this is a document from representatives of Srpska Krupa,

18 Bosanski Petrovac, Bosanski Novi, Bosanska Dubica, Prijedor, Bosanski

19 Most; correct?

20 A. Yes. Only I don't know of this town called Srpska Krupa. I know

21 of a town called Bosanska Krupa. What about -- but Srpska Krupa, I don't

22 know. And all the other towns, I am aware of.

23 Q. It's the same place. It's just people from Bosanska Krupa

24 deciding it ought to be called Srpska Krupa, I'm sure.

25 If you look at paragraph B, 3B, the document says: "We propose

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1 that Vojo Kupresanin be appointed president of the Crisis Staff of the

2 Autonomous Region of Krajina, given the position he currently occupies as

3 president of the Assembly of the Autonomous Region of Krajina."

4 And then it has some words, and then it can't be translated,

5 apparently. Do you see that?

6 A. Yes, I do.

7 Q. So this group from these municipalities apparently are wanting

8 Kupresanin to replace Brdjanin as president of the Crisis Staff; correct?

9 A. I wouldn't say that he should be replaced. They're just

10 suggesting that he should be the president.

11 Q. Well, if Kupresanin is made the president, then Brdjanin probably

12 wouldn't be the president any longer; correct?

13 A. Well, yes, if that were to be so, yes.

14 Q. If you look at paragraph F, it begins with these words: "The

15 Serbian Democratic Party must make itself felt." And then the next

16 paragraph: "Accordingly, personnel changes should be made in the Crisis

17 Staff of the Autonomous Region of Krajina and with a view to urgently

18 breaking with individuals who have decided to obstruct the work of the

19 Serbian Democratic Party in the Autonomous Region of Krajina and to

20 question the lofty goals which have galvanised the Serbian people."

21 So it appears, does it not, that they are wanting the leadership

22 of the Crisis Staff to be changed to Vojo Kupresanin because the current

23 leadership of the Crisis Staff is not implementing the lofty goals of the

24 SDS properly, but obstructing the work of the SDS? Isn't that what it's

25 -- what's being said there?

1 A. In my view, there was political struggle within factions of the

2 SDS, and this group of people wanted this, this group that submitted this

3 request. They had such a political stance, and they wanted Mr. Kupresanin

4 to take over, rather than Mr. Brdjanin. And I think that this is evidence

5 of political struggle.

6 Q. Look now, will you please, at document P295. Now, this document

7 is the Official Gazette of the Autonomous Region of Krajina, is it not?

8 A. Yes. Number 4.

9 Q. Issue number 4, yes. And the first decision that appears is

10 number 48, dated 9 June 1992.

11 A. Yes.

12 Q. Issued while Brdjanin was president. And this document is five

13 days prior to this meeting of the Sanska Una people that we were just

14 referring to, is it not?

15 A. Yes.

16 Q. Now, what I want you to do, Mr. Dzonlic, just to save time, if

17 you'd look at the very end of this gazette, you will find that the last

18 decision is 1 August 1992, dated 1 August, 1992, signed by Cedo Aleksic,

19 MD. And what I'm really interested in is the date of 1 August 1992.

20 A. Yes, I see that. I see the date, the 1st of August.

21 Q. Yes. If you just look, then, from item number 48, the decision of

22 9 June 1992, through the rest of that gazette. Tell us if you find any

23 other conclusion, decision, order, or document of any kind authored by

24 Mr. Brdjanin, or that his name appears as president or anything of that

25 nature.

1 A. No, I don't see that. I don't see a single decision signed by

2 Brdjanin.

3 Q. Yes. And with that, I thank you. And that's all the questions I

4 have of you.

5 MS. KORNER: Your Honour, before --

6 JUDGE AGIUS: Yes.

7 MS. KORNER: Before Madam Fauveau starts her cross-examination,

8 I'd hate to, as it were, go back to a theme that I raised at the end of

9 the last cross-examination. Whatever Mr. Ackerman may think of the rule

10 at the moment, the rule is, as we discussed, that he should put his case.

11 And on Friday, he cross-examined the witness about the speeches of

12 Mr. Brdjanin on two bases. One is that he didn't hear them himself, or

13 alternatively, that they were in 1993 and part of a witness statement

14 which, in fact, was not adhered to by the witness was read to him. But

15 that's not the point.

16 If the case is that Mr. Brdjanin made those speeches but that they

17 weren't heard by this gentleman or they were made in 1993 but not 1992,

18 then fine. He's put that case. But if his case is, as I anticipate, that

19 they were never said, those words in particular were never said by Mr.

20 Brdjanin, then exactly the same applies to this witness as to the previous

21 witness. It must be put.

22 JUDGE AGIUS: Yes. Mr. Ackerman, this is always without prejudice

23 to the matters you raised in your motion regarding the applicability or

24 the legality of the specific Rule, under Rule 90 that we will discuss

25 later on. But for the time being, what do you have to state in relation

1 to what Ms. Korner had just pointed out?

2 MR. ACKERMAN: Only that I have not forgotten to ask the witness

3 any questions that I wanted to ask him. I've completed my

4 cross-examination.

5 MS. KORNER: Well, in that case, Your Honour, I am taking it, as I

6 am entitled to, that there is no challenge to what this witness said he

7 heard Mr. Brdjanin say, other than the fact it may have been said in 1993

8 or it was not heard by this witness.

9 JUDGE AGIUS: Yes.

10 MS. KORNER: But the actual words were used.

11 JUDGE AGIUS: Yes. I think we can proceed with the

12 cross-examination by the Defence team for General Talic. Madam Fauveau.

13 Now, Mr. Dzonlic, as you may have heard me say already, you are

14 now going to be cross-examined by a different Defence team, that's the

15 Defence team for General Talic.

16 Madam Fauveau, may I ask you if you anticipate to finish your

17 cross-examination today?

18 MS. FAUVEAU-IVANOVIC: [Interpretation] I hope so, Mr. President.

19 But before beginning, I should like to ask for counsel from you. As Madam

20 Korner has just said, do I have to put the same question as Mr. Ackerman,

21 or will it otherwise be considered as -- that I do not contest something

22 if I don't do that?

23 JUDGE AGIUS: I would rather not answer the question myself,

24 because the matter has been raised officially and formally by Mr.

25 Ackerman. And later on it will be decided.

1 In the meantime --

2 MS. KORNER: Your Honour, for my purposes, if Madam Fauveau takes

3 the same view or rather, her case is identical to that put forward by Mr.

4 Brdjanin on certain matters -- although I'm at a loss at the moment to

5 know really what case has been put -- but then all she has to do is say

6 she adopts this cross-examination, on whatever points it is, and I will

7 take it that she also contests it.

8 Your Honour, while I'm -- and I'm sorry, Madam Fauveau -- Your

9 Honour, I'm somewhat concerned about that, I have to say, about

10 Mr. Ackerman's attitude.

11 JUDGE AGIUS: You're not the only one.

12 MS. KORNER: The real difficulty is this: As Your Honours knows,

13 I have no doubt at all for having heard the earlier cross-examination that

14 Mr. Brdjanin's case on these topics is "I never said those words." And

15 Mr. Ackerman is declining, as far as I can see, to put it to the witness.

16 And Your Honour, the difficulties is knowing what sanction Your Honour

17 has, if it turns out, should Mr. Brdjanin give evidence, that he does deny

18 that and it's not been put. However ...

19 MR. ACKERMAN: Your Honour, I don't believe that I can violate

20 Rule 97 without being subjected to very severe sanctions, and I will not

21 violate Rule 97, regardless of what Rule 90(H)(iii) seems to say. I think

22 Rule 97 is much more binding upon me.

23 JUDGE AGIUS: Mr. Ackerman, I mean, why are you bringing into play

24 Rule 97, to be frank with you, in relation, when we are speaking of the

25 applicability of Rule 90(H)(ii), I don't know. Because there may be

1 instances where, in trying to do what you are required by 90(H), you may

2 internally feel that you -- there is a chance of revealing what your

3 client may have told you in confidence. But not necessarily so. I mean,

4 you don't have to reveal anything of the sort. What Article -- what Rule

5 90(H)(ii) says is that in the cross-examination of a witness who is able

6 to give evidence relevant to the case for the cross-examining party - so

7 that's requirement number 1, the ability to give evidence relevant to the

8 case for the cross-examining party - counsel shall put to that witness the

9 nature of the case for that party for whom that counsel appears which is

10 in contradiction of the evidence given by the witness.

11 What you are required to do under this section is to show to the

12 witness himself in the course of the cross-examination that either before

13 he makes a statement in reply to your question, or during or after, that

14 you have -- that the nature of the case of the person you are representing

15 in this courtroom is in contradiction or appears to be in contradiction to

16 what the witness is stating. This is the crux of the matter. You don't

17 have to say, "It's because my client told me so." You are not requested

18 to make affirmations as to what your client may have told you in

19 confidence. Certainly not. But if you have reason to believe that within

20 the material that you have in the defence of your client, you have

21 material which is in contradiction to what the witness is stating, then in

22 terms of Rule 90(H)(ii), you are bound to let that witness know or face

23 the witness with that fact.

24 I mean, why you put in play Rule 97 as if it is -- as if it is in

25 contradiction or as if it is transdiametrically opposed to Article -- to

1 Rule 90(H), I don't know. Because Rule 90(H) definitely does not nullify

2 the effects of Rule 97.

3 MS. KORNER: Your Honour, I absolutely agree with Your Honour.

4 It's faux naivete to say that this rule has nothing to do with that one.

5 Your Honour, at the moment, my concern is, whatever Mr. Ackerman may think

6 of this Rule, Your Honours made a ruling and Mr. Ackerman is not abiding

7 by it. We can -- and I think if this is going to go on, because the next

8 witness, I anticipate some of the evidence is also going to be strongly

9 disputed.

10 JUDGE AGIUS: The next witness is going to be very difficult.

11 MS. KORNER: Exactly. And if Mr. Ackerman is not prepared to put

12 his case --

13 JUDGE AGIUS: Madam Korner, I have read his statement. We are

14 going to have a difficult session. I anticipate it.

15 MS. KORNER: Well, I'm not quite clear what Your Honour is

16 referring to there. But nonetheless, in respect of Mr. Brdjanin's case,

17 if Mr. Ackerman is not going to do it, and is in our submission flouting

18 Your Honour's ruling, oral ruling, given then I think before I call the

19 next witness, we better deal with his motion, deal with it on an oral

20 submission.

21 JUDGE AGIUS: On the other hand, I'm not going to press it any

22 further at this stage because in relation to the one or two questions that

23 you mentioned, because I am positive that if -- unless my memory is

24 playing tricks on me, but I am pretty sure that at a certain point in time

25 during one of last week's sittings, Mr. Ackerman did put it to a witness

1 that Mr. Brdjanin actually never said those words. And I can remember Mr.

2 Dzonlic replying that -- answering, "No, I heard him personally say those

3 words."

4 MS. KORNER: Your Honour, that's not actually what was put. I've

5 got the LiveNote here. It was Friday.

6 JUDGE AGIUS: No. That was not Friday. This was earlier.

7 MS. KORNER: Well, this was the first opportunity he did to

8 cross-examine on it. I think you're thinking about the previous witness,

9 about two witnesses ago.

10 JUDGE AGIUS: No, no, this is Mr. Dzonlic.

11 What do you have by way of a transcript?

12 MS. KORNER: Your Honour, this is page 2553 of our version of

13 LiveNote on Friday.

14 "Q. You told us you heard Mr. Brdjanin make certain

15 statements on the radio in 1991 and 1992, statements

16 about Muslim people, about the numbers who should remain

17 in the Banja Luka region. You're familiar with the

18 statements I am referring, to are you not?

19 A. Yes.

20 Q. Would you like to change your testimony about that and

21 agree with me first of all that you didn't hear those

22 statements but was simply told that he had made those

23 statements. In other words, you didn't hear them direct

24 but -- "

25 JUDGE AGIUS: That's what I remember very vividly.

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1 MS. KORNER: Yes. But it's not the same thing. "Other people

2 told you about him making those statements."

3 JUDGE AGIUS: But I think he pressed the questions further.

4 MS. KORNER: I'm going to, Your Honour.

5 "No, I wouldn't like to change my testimony and I

6 cannot agree with you that I heard it from someone

7 else.

8 Q. Would you like to change your testimony and

9 agree with me that it was only in 1993 that you heard --

10 you directly heard, Mr. Brdjanin or someone told you that

11 they had heard Mr. Brdjanin say certain things on the

12 radio? In other words, the suggestion is that even if

13 you did hear it -- I mean, it was in 1993. And then I

14 didn't say, when I heard him, I didn't say that he said

15 such and such a thing in 1992, and in 1993, someone else.

16 When I was speaking, I think we were talking about what

17 he said in 1991. And in 1992 and 1993, as far as I can

18 remember, in the statement I made."

19 And so on and so forth. And then what was read to him was part of

20 a witness statement - not adhered to by the witness when he gave evidence,

21 I may add, but he didn't at least identify that - about Mr. Brdjanin being

22 very frequently on the radio, TV, and in the newspapers, especially in

23 1993. Before that, he was obviously not considered respectable as a

24 spokesperson of the SDS. In 1991 and 1992, he was rarely interviewed.

25 And after a number of questions about that, he said finally, the

1 witness: "I can't say, I can't say that I disagree -- agree or disagree

2 because I'm not qualified to speak about the media. All I can say is that

3 I personally heard him on the media. Not once but several times, I heard

4 him."

5 Now, Your Honour, the Rule requires, in our submission, if the

6 case for Mr. Brdjanin is that he never used those words in 1991, that he

7 should put it.

8 JUDGE AGIUS: Yes, definitely.

9 Always without prejudice, because I think we can bring this to a

10 conclusion. I mean, always without prejudice to your motion, which will

11 be debated and decided upon later on. But I think at this present moment,

12 faced with the - call it whatever you like - objection, remark, or issue

13 that has been raised by Ms. Korner, and given also the possibility that

14 this Trial Chamber later on may -- I'm not saying that we will -- but this

15 Trial Chamber might actually come to a conclusion adverse to what you

16 contend or what you expect by -- or what you request in your motion, Mr.

17 Ackerman. So I would suggest to you at this point in time to play it

18 safe. If after having read -- after having heard what Ms. Ackerman [sic]

19 read out from last Friday's transcript -- Ms. Korner -- Ms. Korner read

20 out from last Friday's transcript, it appears to you that it is wise to

21 put it to the witness that your client never uttered the words that he

22 mentioned in his testimony, I would do it now. Always without prejudice

23 to your motion, as stated earlier.

24 Why risk your motion being rejected and then being faced with a

25 situation which can no longer be remedied?

1 MR. ACKERMAN: Your Honour, this -- this matter has become popular

2 in the Chambers that are in trial. Apparently after Ms. Korner raised it,

3 it was raised both in the Bosanski Samac trial and in the Galic trial.

4 It's my understanding- and I haven't - I haven't actually looked at with

5 any detail the transcripts - but it's my understanding in both the Galic

6 and the Bosanski Samac trial, the Chambers ruled that failure to put your

7 case to the witness does not preclude you in any way from contesting the

8 issue when it comes time to put on your own case. And in addition, I

9 can't imagine how I could contest whether or not my client made certain

10 statements without revealing what he has told me about whether or not he

11 made those statements, and I don't think I can do that without his consent

12 pursuant to Rule 97 or pursuant to the ethics of my profession, which I

13 take very seriously. And so even though you have invited me to do that,

14 Your Honour, I must respectfully decline, pursuant to the ethics that bind

15 me and the plain language of Rule 97.

16 JUDGE AGIUS: Okay.

17 Madam Fauveau, you may commence your cross-examination.

18 MS. FAUVEAU-IVANOVIC: [Interpretation] Before beginning, I should

19 like to inform the Chamber that I adopt the cross-examination of Mr.

20 Ackerman, particularly where he contests the statement of the witness

21 regarding the consequences of non-response to the mobilisation call by Serb

22 persons.

23 Cross-examined by Ms. Fauveau-Ivanovic:

24 Q. [Interpretation] Mr. Dzonlic, you told us that you were a member

25 of the War Presidency of Banja Luka that was based in Zenica, Travnik,

1 and Sanski Most. Is that correct?

2 A. Yes, that is correct.

3 Q. Could you tell us the composition of that War Presidency.

4 A. The president of the War Presidency was, for a while, Ibrahim

5 Robovic. Members were Husein Basic, Atko; Zujic Emir, Novalija Amir, --

6 no, Sorry. He was appointed instead of Robovic to the position of

7 president in 1993, I think it was, towards the end of 1993. Then there

8 was Saric Imran, myself, and a lady, Jadranka. I don't know her surname.

9 It was not the same -- the composition was not always the same. People

10 were replaced depending on how satisfactory their work was. I can't

11 remember any more names. Oh, yes, I do remember one more. Safedin

12 Begovic. He, too, was a member of the War Presidency for a while.

13 Q. Were all the members of this presidency of Muslim ethnicity?

14 A. No. There was this lady, and she was by nationality a Croat.

15 Q. So except this lady, all the other members were Muslim?

16 A. [No interpretation]

17 Q. When was this War Presidency established?

18 A. I arrived in Travnik on the 26th of February, 1993. And at that

19 time, the presidency had already been formed, and it had its headquarters

20 in Zenica. So I don't know exactly the date when the first presidency was

21 set up, but it performed its functions right through until the Dayton

22 Accords at the end of 1995, so that I assume that it may have been formed

23 already in April 1992, or rather, 1993. No, sorry, I apologise. No. I

24 arrived on the 26th of February, 1993, in Travnik, and the presidency had

25 already been formed, and I don't know exactly the date of the

1 establishment of that presidency because I was not a member of that first

2 presidency. I became a member of the presidency after maybe half a year.

3 So it could be in -- I became a member in July or August 1993 of that

4 presidency.

5 Q. Could you tell us what were the tasks and functions of that War

6 Presidency.

7 A. It's very difficult for me to specify all the duties of the War

8 Presidency, but I could tell you that the main duty of the War Presidency,

9 in view of the fact that it existed ex-territorially, was to rally all

10 citizens of Banja Luka municipality that had been expelled and who were

11 residing in the territory of Central Bosnia, that is, Zenica, Travnik.

12 Q. You also told us that you were the secretary of the Assembly of

13 the region of Banja Luka, which was also based in Travnik. What were the

14 functions of that assembly?

15 A. I was secretary of the Assembly of the district of Banja Luka.

16 That was temporarily based in Travnik. The district were the wartime

17 schedule of organisation of Bosnia-Herzegovina. And the assembly were the

18 legislative body of the district, that is, the functions of the assembly

19 were performed by the War Presidency of the district, and there was an

20 executive body, an executive board as an executive body. I think that I

21 cannot list all the duties of that body because there was a decree on the

22 formation of the district, and the main task and aim and meaning was to

23 take care of the people that had been expelled, to organise them as best

24 as they could, to keep a record of the displaced persons. Those were the

25 main tasks.

1 Q. You were also a judge of the military tribunal in Travnik in

2 1993?

3 A. Yes. I think it was from the 30th of March until, I think, the

4 30th of September. I was a judge of the district court of the Travnik

5 district. And when later on I was relieved of my judicial duties and

6 appointed to the position of secretary of the Assembly of Banja Luka

7 district, based in Travnik.

8 Q. Could you tell us whether the court in which you worked was a

9 civil or a military court?

10 A. It was a district military court.

11 Q. So it was a military tribunal, was it not?

12 A. Yes, a military tribunal.

13 Q. Could you tell us, attached to which army was this tribunal?

14 A. It was not formed within the scope of the army. The military

15 court was formed by the district of Travnik. The district of Travnik.

16 And it was not formed by the army. It was formed by the Travnik district

17 on the basis of a decree on the formation of a district as the wartime

18 organisational structure of the state of Bosnia-Herzegovina during the

19 aggression.

20 Q. Before becoming judge in this court, had you been mobilised?

21 A. I arrived in Travnik, and I met a friend of mine who had been at

22 the university with me. In view of the fact that a large number of judges

23 from Travnik had left before I arrived in Travnik, they were short of

24 staff, and I myself, at his invitation, agreed to report of the court.

25 And in fact, that was my mobilisation. I had a wartime assignment as

1 judge of the district military court in Travnik, and that was considered

2 to be the post I was mobilised to.

3 Q. By which army were you mobilised?

4 A. I was not mobilised by the army. I was mobilised by the municipal

5 secretariat in Travnik.

6 Q. Let me rephrase my question. What army was there in Travnik in

7 1993?

8 MS. KORNER: Your Honour, I'm sorry to stop this. But I wonder

9 where we are going. We're well into 1993 now and out of the period --

10 JUDGE AGIUS: I know, Ms. Korner. [Microphone not activated]

11 MS. KORNER: If Madam Fauveau would like to explain the relevance

12 perhaps very briefly. But at the moment, I can't see the relevance as to

13 what army he was mobilised in in 1993.

14 JUDGE AGIUS: Yes. Madam Fauveau, I had a big temptation of

15 stopping you earlier, actually, when you were continually putting

16 questions referring to the period following witness's arrival in Travnik.

17 Perhaps at this point in time, before we can decide whether you can go

18 ahead asking questions relative to this period, you could tell us what the

19 relevance of the sequence of the questions -- your sequence of questions

20 is.

21 MS. FAUVEAU-IVANOVIC: [Interpretation] As regards the questions

22 relative to the War Presidency, I wanted to show that the Muslims and the

23 Croats had their own War Presidency.

24 As for the last question, I will move on.

25 But I think at the end of my cross-examination it will be quite

1 clear why I put this question to the witness.

2 JUDGE AGIUS: Okay. Please proceed.

3 MS. FAUVEAU-IVANOVIC: [Interpretation] I shall move on to the

4 mobilisation which took place in September 1991.

5 Q. You told us that the mobilisation was decided in 1991; is that

6 right?

7 A. Yes, that is what I said, as far as I can remember.

8 Q. In September 1991, was Bosnia still a part of Yugoslavia?

9 A. I explained that earlier on during my cross-examination. I can

10 repeat what I said then. Bosnia and Herzegovina was a part at the time,

11 but of the so-called rump Yugoslavia, because the republics of Croatia and

12 Slovenia had acquired independence.

13 Q. Do you know when Slovenia and Croatia acquired independence and

14 were recognised as such?

15 A. I think it was -- I don't know the exact date, but I think in

16 September -- before September 1991. I don't know the date. But it was in

17 the course of 1991, I think.

18 Q. Would you agree with me that Croatia and Slovenia were recognised

19 as independent states on the 15th of January, 1992? You don't know, or

20 you're saying that that is not true?

21 A. I don't know. I think they were independent in 1991 already. I

22 don't know about this date, the 15th of January, 1992. As far as I know,

23 they acquired independence in 1991. But I don't know about this -- it's

24 possible. I just think it was in 1991.

25 Q. Would you agree that failing to respond to the call for

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1 mobilisation was considered a criminal act?

2 A. Yes.

3 Q. You said that quite a number of people who did not respond to the

4 mobilisation lost their jobs.

5 A. Yes, I did say that.

6 Q. Would you agree with me that in Bosnia-Herzegovina in 1991, there

7 were two labour codes in force, a federal one and a republican one,

8 employment laws?

9 A. I know that there was a law on labour relations of the Republic of

10 Bosnia and Herzegovina, and I know that there was a law on basic rights

11 stemming from employment. So there were two laws. Now, which was at the

12 republic or the federal level, I can't say. But there were not two

13 identical laws at the federal and the republic level. One was the law on

14 labour relations and one was the law on basic rights stemming from

15 employment, as far as I can now recall.

16 Q. If I were to suggest to you that the Law on Basic Rights Stemming from

17 Employment was a federal law, would you be -- would you agree with me?

18 A. Yes.

19 Q. Would you agree that two laws envisaged measures for the

20 termination of employment?

21 A. Yes.

22 Q. Did you know that according to the federal law on employment, non-respect

23 of National Defence obligations involved the termination of employment?

24 A. I do not know that failure to respond to mobilisation according to

25 the law on basic rights stemming from employment resulted in termination

1 of employment.

2 Q. On page 9 of your statement in October of 2000, you said that the

3 government of Bosnia-Herzegovina decided that it was responsible for

4 mobilisation.

5 A. I apologise. Could you tell me, please, which date? Your

6 statement of which date?

7 Q. It is the statement of October 2000, page 9.

8 A. I have received it in English. I do know that the government --

9 I'm sorry. I got my statement in English. Oh, here it is in Bosnian.

10 I'm sorry.

11 MS. KORNER: I'm told he should have the B/C/S version in front of

12 him.

13 JUDGE AGIUS: He has it.

14 MS. FAUVEAU-IVANOVIC: [Interpretation].

15 Q. It's page 9, paragraph 1, the second sentence.

16 A. But I think that it is not the same page in my Bosnian version as

17 the one you are mentioning -- in Serbian. In any event, I stated, and

18 said, as far as I can now remember, that the government of the Republic of

19 Bosnia-Herzegovina took a decision, according to which, on the territory

20 of Bosnia-Herzegovina, it was only the defence ministry of the Republic of

21 Bosnia-Herzegovina that was competent for proclaiming mobilisation, and

22 not the municipal secretariats or other institutions.

23 Q. You also said that that decision of the government of

24 Bosnia-Herzegovina annulled the Yugoslav federal law. It is page 9 of the

25 Serbo-Croat version of your statement of October 2000. It is page 9,

1 after all.

2 JUDGE AGIUS: [Microphone not activated]

3 A. I said that it was --

4 JUDGE AGIUS: It starts in the Bosnian --

5 A. -- made null and void.

6 JUDGE AGIUS: It starts on page 8, the last two lines of page 8 in

7 the Serbo-Croat version, and continues then on page 9. So you should have

8 it in front of you now. And what Madam Fauveau is referring to is

9 obviously the last part, or the second half, of the first paragraph on

10 page 9.

11 MS. FAUVEAU-IVANOVIC: [Interpretation] I think, Mr. President,

12 that the witness still doesn't have the right version.

13 JUDGE AGIUS: Mr. Dzonlic, we are referring -- or you are being

14 referred to your interview or your statement following the interviews of

15 the 11th and 12th of October of the year 2000.

16 I also have before me the B/C/S version of that statement. And if

17 you have the same document that I have and you look at page 9, you will

18 see that the paragraph at the very top starts: [B/C/S phrase] That is the

19 paragraph that Madam Fauveau is referring you to.

20 Correct, Madam Fauveau?

21 MS. FAUVEAU-IVANOVIC: [Interpretation] Yes, Mr. President.

22 JUDGE AGIUS: Now, that paragraph actually starts the page before.

23 The beginning of that paragraph is on the previous page, where it

24 states: [B/C/S phrase]

25 Now, the relevant part of that paragraph or from that paragraph,

1 for the purpose of Madam Fauveau's question, is the second half of the

2 second part of the paragraph that you were reading at the top of page 9 of

3 that document.

4 And while the witness is thinking, Madam Fauveau, I've been asked

5 to draw your attention and kindly ask you to pause a little bit following

6 witness's reply until it's completely translated before you proceed with

7 the next question. Thank you.

8 MS. FAUVEAU-IVANOVIC: [Interpretation] Thank you, Mr. President.

9 I shall take care to do so.

10 Q. You did indeed say that this decision of the government of Bosnia

11 and Herzegovina made null and void the Yugoslav law.

12 A. Yes.

13 Q. Would you agree with me that a decision of a government cannot

14 annul a law?

15 A. I agree with you that it cannot be annulled. But it can be put

16 out of action, so to speak, because of the situation. But I do agree with

17 you; it cannot be made null and void.

18 Q. So in fact this decision of the government of Bosnia and

19 Herzegovina was an illegal one.

20 A. I don't consider it illegal. It was passed by the government of

21 Bosnia and Herzegovina through a legal procedure.

22 Q. Yes. But you agree that laws and decisions of the republic have

23 to be in accordance with the federal laws?

24 A. I already said previously that the federal laws at that point in

25 time, in view of the situation -- at least, that is how they were treated

1 -- this was no longer the state of SFRY. And from that standpoint,

2 because it was rump, procedurally laws existed because things had still

3 not been clearly defined, but there was a rump Yugoslavia. And I even

4 think that the Presidency of Bosnia and Herzegovina made the

5 recommendation that no citizens of Bosnia-Herzegovina should respond to

6 that mobilisation, being the highest body of authority in Bosnia and

7 Herzegovina.

8 Q. But in September 1991, Bosnia was still not independent.

9 A. That is true; it wasn't independent. But Bosnia and Herzegovina

10 within Yugoslavia was -- had the status of an equal member. It had its

11 own assembly, its bodies, its government, as did all the other republics

12 of the former Yugoslavia, and it was able to pass decisions, and it was

13 for those reasons that it took this decision as well.

14 Q. Yes. But the decision of Bosnia-Herzegovina has to be in

15 accordance with federal decisions and laws.

16 A. In principle, yes. But in reality, no, because the Yugoslav

17 People's Army, according to the law, should have protected the borders of

18 Bosnia-Herzegovina -- no, sorry, the borders of SFRY. And it didn't

19 protect the borders of SFRY. So you see there's a discrepancy between

20 what was real and what was formal or official.

21 Q. Precisely. Since you are mentioning that, when the JNA went to

22 Slovenia and Croatia to make war, wasn't that war precisely in order to

23 protect the borders, the boundaries, of Yugoslavia?

24 A. As far as I know, it didn't fight in Slovenia. It withdrew from

25 Slovenia. And in Croatia, it captured lines that it had drawn. I'm not

1 an expert for these things, so -- all I know is that it withdrew from

2 Slovenia, and that in Croatia, it captured certain lines itself imagined

3 and took up positions along those lines.

4 Q. So according to you, there was no fighting in Slovenia in June

5 1991?

6 A. I wouldn't call that fighting or combat. There were just certain

7 excesses. But in essence, it withdrew and left Slovenia.

8 Q. I shall move on to another subject. You said that judges of

9 Bosniak nationality were removed because they did not respond to the order

10 for mobilisation.

11 A. Yes. One of the reasons for their replacement was that one, that

12 they didn't respond to the mobilisation.

13 Q. Could you specify whether they were removed because they didn't

14 respond to the mobilisation or because they were of Bosniak nationality.

15 A. The judges were replaced because they did not respond to the

16 mobilisation, and I think the President of the court was dismissed on the

17 basis of decision that Bosniaks could not hold positions of authority.

18 And I know that the president of the civil section of the municipal court

19 in Banja Luka, who was a Croat by nationality, was replaced from his

20 position as president of the civil department because he was a Croat.

21 Q. Could you tell us what was the destiny of the prosecutor of Banja

22 Luka municipality? Was he also dismissed?

23 A. I don't know about the prosecutors. But let me just add that

24 judges, women, were dismissed on the basis of the decision that

25 responsible positions cannot be held by Muslims because women, after all,

1 were not obliged to respond to mobilisation. And they were replaced

2 merely because they were Muslim.

3 Q. The municipal prosecutor, that is an important position, is it

4 not? So I assume that prosecutors of Muslim and Croat ethnicity were also

5 dismissed.

6 A. I assume so, too, though I'm -- as I said, I don't know. But I

7 assume that the same applied to them. I assume only.

8 Q. Banja Luka also had a public attorney, Javni Pravobranicac. Could

9 you explain to the Chamber the function of this public attorney.

10 A. The public attorney's office is a separate and special institution

11 of the prosecution, the judiciary. In the former socialist system, it was

12 intended to defend the public interest, to protect the public interest,

13 before various institutions in the name of the state bodies, as a

14 representative of the state authority, when the interest of those

15 authority was involved. So it represented the interests of public

16 institutions.

17 Q. Would you agree with me that the function of this public attorney

18 was a very important function?

19 A. For me, it's not important. But in the former system, it did have

20 a rather important role, if I can put it that way.

21 Q. Could Muslims and Croats continue to hold that position?

22 A. I don't know, but I'm saying again, I assume that the same applied

23 in that case too, because this applied to all institutions and then that

24 should also apply to that institution, too. It does apply.

25 Q. Do you know who was the public attorney for Banja Luka

1 municipality in 1992 and 1993?

2 A. No, I don't know.

3 MS. FAUVEAU-IVANOVIC: [Interpretation] Could the registrar please

4 give the witness Defence Exhibit DB33.

5 Q. Would you agree that that is the resignation of the public

6 attorney of Banja Luka?

7 A. Yes, I would agree.

8 Q. And the date of the resignation is the 14th of May, 1993, is it

9 not?

10 A. Yes, it is.

11 Q. And the public attorney was Mr. Edin Hergic, was it not?

12 A. Yes, Edin Hergic.

13 Q. Would you agree that Mr. Edin Hergic, the public attorney of Banja

14 Luka in May 1993, was a Muslim or a Bosniak?

15 A. Yes, I agree.

16 Q. When you arrived in Travnik in 1993, were there any Serb judges

17 over there at the court?

18 A. Yes, there were Serb judges in the court, in the building of the

19 court, only they worked in the civil court. And the military court was

20 housed in that building. There weren't any in the military court, but

21 there were some in the civil court.

22 Q. Could you give us the names of those Serb judges?

23 A. I can't give you the names of the judges. I just know that -- I

24 am not from Travnik, but people who knew them -- it was known that there

25 were some.

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1 Q. During the hearing last Wednesday, you spoke of a decision

2 according to which the Serbs who were not loyal to the SDS could not hold

3 important positions. Do you remember saying that?

4 A. Yes. Loyalty was required. Only those Serbs who had expressed

5 loyalty and patriotism could hold certain positions; I remember that.

6 Q. So actually, certain people could not hold important posts,

7 regardless of their nationality.

8 A. The Bosniaks couldn't; the non-Serbs couldn't hold any responsible

9 positions. As for the Serb, those who were loyal, who expressed

10 patriotism, they could hold such positions.

11 Q. But you agree with me that the decision also applied to Serbs?

12 A. There are two decisions. We saw there was one decision saying

13 that non-Serbs cannot be. And there was another decision, a separate

14 decision, which says only loyal Serbs who have demonstrated patriotism.

15 And as far as I remember even, there was a decision according to which it

16 was said that the SDS was the only party that was representative of the

17 Serb people. It is a fact that Bosniaks and Croats could not hold certain

18 positions. As for Serbs, it was required that they manifest loyalty,

19 patriotism. And I've already explained how they proved their loyalty and

20 patriotism.

21 Q. During the hearing of the 26th of February, 2002, you said that at

22 the time when members of Serbian defence forces appeared in Banja Luka,

23 you thought that they were members of the regular forces; is that right?

24 A. That was my impression. Not the regular army. For me, the

25 regular and legal army was the Army of Bosnia and Herzegovina. But in

1 quotation marks, one could say members of the army that was in Banja Luka,

2 because they were wearing military uniforms. And I believed that they

3 were people who are in the Serbian army. But I don't consider it legal,

4 and I never considered it legal.

5 Q. Mr. Dzonlic, speaking about the SOS, you said, "At the time I

6 thought that these were members of the regular army, to -- as I didn't

7 know that SOS existed. So I thought that they were indeed members of the

8 Yugoslav People's Army."

9 This is LiveNote, Tuesday, 26th of February.

10 What I am interested in is when you said that "I thought," did you

11 think at the time that they were members of the JNA, or do you think today

12 that they were members of the JNA?

13 A. No. I said that they were members of the army, which was in Banja

14 Luka. Members of that army, the army that was in Banja Luka.

15 Q. Yesterday you said -- no, not yesterday. On Thursday, you said

16 that you met a dozen or so men, that you referred to as "ninjas."

17 A. That is how we called them, because they are the people who

18 brought that money that we discussed a moment ago, and they were wearing

19 such uniforms. And amongst ourselves, we called them ninjas. That's the

20 name we gave them, because they reminded us of the ninjas from films.

21 Q. This pizzeria in which you met them, who owned this establishment?

22 A. I don't know who was the owner. I just know that it may have been

23 opened about six months or a year before that. I don't know who was the

24 owner.

25 Q. When did you see these men? In what period of time?

1 A. I said it was in 1992. I know it was warm, because we could sit

2 outside late in the evening. So I can't tell you exactly when it was.

3 But it was warm weather, and I think that one could sit outside until

4 10.00 without being cold. And it is judging by that, because it was warm,

5 that I assume it was in the spring or the summer.

6 Q. You said that you were able to sit outside until 10.00 p.m.

7 without being cold. Could you stay outside after 10.00 p.m.?

8 A. I may have stayed out, but I never stayed until 10.00, and I don't

9 think that you could even. I'm not quite sure, but I think, by then,

10 there was the curfew already. But I would return home around 9.00. But I

11 do know that it was warm because one could sit outside on the balcony. I

12 remember that it was warm. That's why I'm saying it was warm. So I

13 wouldn't stay outside after 9.00 ever.

14 Q. When you met these people in the pizzeria, were they disagreeable

15 with you?

16 A. No, they were not disagreeable in relation to anyone. Only, they

17 gave me the impression that they were showing off. I don't know what the

18 right term would be. But they weren't bullying anyone or anything.

19 Q. Was anyone else disagreeable with you in that pizzeria?

20 A. No, no one.

21 Q. You also said that these men had brought money from Belgrade.

22 A. Yes.

23 Q. Could you tell us, what was the currency in use in Banja Luka in

24 1992?

25 A. The dinar, the dinar, the "Yugoslav dinar," I think it was called.

1 But it was then that they brought this new dinar, this new money in. And

2 they said, "This will from now on be the means of payment, the new dinar."

3 And indeed, after a short while, it was the currency in use. It was also

4 the Yugoslav dinar, only the appearance had changed, I think. The

5 pictures on the notes were different and maybe the bank notes -- the value

6 of the bank notes changed. But that was the means of payment in use.

7 Q. But in 1992, the official currency in Banja Luka was still the

8 Yugoslav dinar, was it not?

9 A. Yes, yes. Even though, in reality, the Deutschmark was used most,

10 the Deutschmark in real life, in daily dealings.

11 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, I am now

12 moving on to another subject. Perhaps this would be an appropriate moment

13 for the break.

14 JUDGE AGIUS: Thank you, Madam Fauveau. I would agree with you.

15 We can now break for about 25 minutes, resuming at ten to 12.00, ten to

16 12.00 -- sorry, ten to 1.00.

17 --- Recess taken at 12.22 p.m.

18 --- On resuming at 12.54 p.m.

19 MS. KORNER: Your Honour, can I return very briefly -- because

20 obviously Mr. Dzonlic needs to come back to Rule 90(H). Your Honours

21 actually made a ruling on the 21st of February at page 2131 of the

22 transcript. Mr. Ackerman is actually not theoretically, but practically,

23 flouting that ruling and says he's not going to obey it because his

24 contention is this Rule is in breach of the Statute, and of Rule 97, which

25 interestingly is not mentioned once in the motion that he filed.

1 But Your Honour, it seems to me that this is clearly -- unless

2 Your Honours are persuaded by what's -- the contents of the motion, Your

3 Honours have very factually been invited to change your ruling. Your

4 Honour's ruling stands, and Your Honour, what we would have to say would

5 be identical to the way I put the case effectively when we argued it

6 orally. It is going to have a serious effect, not only on this trial but

7 from what Mr. Ackerman says, and I believe that's correct, on other trials

8 as to how this Rule is applied.

9 I was wondering -- and can I say straight away that Madam Fauveau

10 told me they intend to file something on this matter tomorrow or this

11 afternoon --

12 MS. FAUVEAU-IVANOVIC: [Interpretation] Today.

13 MS. KORNER: Right. But I was wondering whether in a sense

14 whether Your Honours, having got their motion, having perhaps heard me

15 again orally, could make a ruling. And if it is along the lines of the

16 ruling that Your Honour has already made, then Your Honours do have power

17 to grant us what I would call a certificate for appeal. Your Honour, it's

18 clearly -- whichever way Your Honours rule, it's going to go to the

19 Appeals Chamber.

20 JUDGE AGIUS: [Microphone not activated]

21 MS. KORNER: Your Honour, Rule 73(C) states that: "The Trial

22 Chamber may certify that an interlocutory appeal during trial from a

23 decision involving evidence or procedure is appropriate for the

24 continuation of the trial. If such certification is given, a party may

25 appeal to the Appeal Chamber without leave".

1 Your Honours, I would invite Your Honours to perhaps consider the

2 matter before we call the next witness and make a ruling.

3 Mr. Ackerman, whatever his personal views, is obliged --

4 JUDGE AGIUS: Just to make sure that we have the same text --

5 MS. KORNER: Oh, I wonder if it's been changed.

6 JUDGE AGIUS: And also, I may inform you that it is also -- what

7 you have here is also under review. What you have here is also under

8 review.

9 MS. KORNER: Your Honour, I'm just -- Your Honour is quite right.

10 It may have changed. Yes.

11 JUDGE AGIUS: Exactly.

12 MS. KORNER: It has. I'm sorry. I'm reading the old version.

13 JUDGE AGIUS: I think it is the amended version.

14 MS. KORNER: Yes, thank you very much, Your Honours. You are

15 quite right. The amended version reads: "The Trial Chamber may certify

16 that an interlocutory appeal during trial from a decision involving

17 evidence or procedure is appropriate for the continuation of the trial

18 upon a request being made within seven days of the issuing of the

19 decision. If such certification is given, a party may appeal to the

20 Appeal Chamber, without leave, within seven days of the filing of the

21 certification."

22 Your Honours, I'm grateful. Unfortunately, I still haven't

23 produced a printed version.

24 JUDGE AGIUS: And also what you have here is also being -- is

25 under review at the present moment.

1 MS. KORNER: I wasn't aware.

2 JUDGE AGIUS: There may be some further changes within a very

3 short time.

4 MS. KORNER: I wasn't aware of that, Your Honour. I hope it's not

5 to abrogate the rule.

6 JUDGE AGIUS: At the next Plenary, which will be in April,

7 probably. In April, as early as April, there may be some changes to this

8 as well.

9 MS. KORNER: Well, Your Honour, I would encourage Your Honour,

10 therefore, if the idea is to abrogate the Rule, in other words to remove

11 it --

12 JUDGE AGIUS: No, no, no. We're not talking of Rule 90.

13 MS. KORNER: No, Rule 73. I appreciate that

14 JUDGE AGIUS: No. It's going to be modified, presumably. I mean,

15 I can't say that it the will definitely be modified. But there's some

16 discussion going on.

17 MS. KORNER: Your Honour, I'd be grateful really because for the

18 moment it is not enough for Mr. Ackerman to say, "I decline the oral

19 decision that Your Honours have made."

20 JUDGE AGIUS: Well, I think we have two issues here. Or before I

21 express myself, let me hear what Mr. Ackerman has to say.

22 MR. ACKERMAN: Your Honour, I don't have with me the transcript of

23 the discussion we had previously regarding this, but it's nowhere near as

24 clear as Ms. Korner would suggest to you it is. I recall early on in the

25 transcript that I made the point that I should not be required to put to

1 the witness something that could only come from my client. And Your

2 Honour saying, "I absolutely agree with you about that." So that's in the

3 transcript, and that's all --

4 JUDGE AGIUS: I said, Mr. Ackerman, "You need not tell the witness

5 that -- or reveal that this information is forthcoming from your client."

6 But basically, you as a lawyer, know very well that before you embark on

7 defending someone, you have meetings and meetings and meetings, and

8 conferences with your client, so that you are put in a position to be able

9 to defend your client to the best of your ability. It doesn't mean to say

10 that the moment you open your mouth and make a statement which is based on

11 the information that your client has given you, in order to put you in a

12 position to defend him, that you are violating the rule under 97. Of

13 course it doesn't. It will violate if you come out here and you will say,

14 "I had a discussion with my client, and my client told me this and told

15 me that." That would be in blatant violation of Rule 97 and any rule of

16 ethics by which all lawyers are -- all lawyers are bound. But telling

17 Mr. Dzonlic as a witness: "I put it to you that you may be wrong in that

18 these words were never uttered by my client, Mr. Brdjanin," does not mean

19 that you are revealing necessarily what Mr. Brdjanin said or may have told

20 you. He may have told you nothing about it. But you are there, and you

21 have -- you have taken upon yourself the responsibility of defending your

22 client. And what I tried to hint at you, to suggest to you before,

23 leaving completely unprejudiced your legal rights to have Rule 90(H)(ii)

24 contested was to play it safe and not find yourself possibly later on in a

25 situation whereby what Ms. Korner threw in your face, in inverted commas,

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1 at a certain point in time would prejudice your case. I mean, because you

2 never know how this 90(H) business is going to finish. I don't know. You

3 don't know, and Ms. Korner doesn't know. I mean, it would be very, very

4 pre-emptive on my part to even hint at where we could be heading. We

5 haven't even started discussing the matter, because we are waiting for a

6 response from the Prosecution. And now we also hear that the Defence team

7 for General Talic is going to file a motion. So the matter is quite open,

8 much more open than it possibly was last Friday or earlier on this

9 morning. I see no -- absolutely no harm in taking -- I mean, the stand --

10 the rigid stand that you have taken, I can understand. But not when I

11 tell you that whatever argument you may have in putting forward the motion

12 that you have presented last week remains unprejudiced. Then I don't see

13 any reason any more. Because what I was trying to do was to help, rather

14 than put you in a difficult position.

15 I mean, let's put it like this: You -- I don't know what the law

16 is like in the United States on this particular matter. But I am sure

17 that you know that in many common law jurisdictions, this is not unheard

18 of. This is something that exists in many countries. And it exists

19 precisely because the purpose, the raison d'etre, of the cross-examination

20 varies according to jurisdictions. Over here, if you look at 90(H), the

21 first -- the very first paragraph of 90(H), you will immediately see what

22 was in the mind of the Judges when they introduced this new rule way back

23 in 1999.

24 In the first paragraph of 90(H), what we did -- I wasn't here at

25 the time, but it's -- I belong to the team now. What we did was we

1 specified the parameters of cross-examination, something that was needed,

2 because unfortunately or fortunately, I don't know, we were having cases

3 here where lawyers came from different jurisdictions and sometimes from

4 jurisdictions where the system -- the whole system of -- or the whole

5 concept of cross-examination does not exist. So basically you have the

6 first rule which is common to practically all of the systems which I am

7 aware of, where you have a cross-examination, and that is that

8 cross-examination, on principle, should be limited to the subject matter

9 of the evidence in chief. That is the basic rule as it obtains in all

10 jurisdictions that I know of -- I know of where you have

11 cross-examination.

12 Then you have another instance, another section, where

13 cross-examination can delve into. And that is if you, as the lawyer

14 conducting the cross-examination, want to put questions affecting the

15 credibility of the witness. Again, that is something that is common to

16 most of -- or if not all the jurisdictions that I know of where you have

17 the cross-examination system.

18 And then finally, something that was introduced but which exists

19 in most common law jurisdictions that I know of: Cross-examination can

20 also get outside the parameters of the first two instances, the first two

21 sections, in other words, the subject matter of the evidence in chief, or

22 matters referring to credibility, if you jump out of those boundaries and

23 you embark on a cross-examination purporting to put questions to obtain

24 answers which are relevant to your case, the case of your client, then all

25 of a sudden immediately the provisions of paragraph 2 of section 9(H) --

1 or when I say "section," pardon me. I'm used to sections and articles. I

2 don't usually work with rules. But then immediately, automatically, the

3 provisions of para 2 of Rule 90(H) come into play. And this is where you

4 are required by this section if you are going to ask questions to the

5 witness, purporting to obtain evidence from him which is relevant to your

6 case, you have to tell him or her what your case is, number one. And

7 secondly, that if he's saying "white," you have reason to believe that he

8 is not saying the truth because you have evidence in your hand which says

9 "black." This is what is required from you under 90(H), para 2, which is

10 a logical sequence to para 1 of 90(H), and it is something that exists in

11 many jurisdictions.

12 If need be when we come to a decision -- we can tell you it exists

13 in -- it exists in Singapore, it exists in the United Kingdom, it exists

14 in Malta, it exists in several places. I don't know if it exists in the

15 United States. I haven't checked. And to be frank with you, I have a

16 book now which I took with me over the weekend to read but I never managed

17 to get it to because I was reading the statements of the witnesses we will

18 be hearing next week.

19 MR. ACKERMAN: I know that it doesn't exist in the United States

20 or Canada. That part I'm certain of.

21 JUDGE AGIUS: Canada, I don't know either. But I can check very

22 easily with Canada because I --

23 MR. ACKERMAN: I also know it doesn't exist in any country that's

24 part of European Community because it would violate the European

25 Convention of Human Rights, I believe.

1 JUDGE AGIUS: That's your contention. That's my contention

2 MR. ACKERMAN: Yes, that's my contention.

3 JUDGE AGIUS: Your contention in your motion is that this is in

4 violation of the fair trial of the due process, the whole -- because you

5 will be bound to reveal this and that, and it is in violation of your

6 client's right to remain silent. This is the point in issue, and this is

7 what we will decide later on when we come to the crux of the matter.

8 MR. ACKERMAN: But Your Honour -- I'm sorry.

9 JUDGE AGIUS: Yes. Go ahead, Mr. Ackerman. I mean, I'm not

10 arguing with you. I'm just telling you the Chamber's point of view,

11 trying to pave the way for a smoother procedure, more or less.

12 MR. ACKERMAN: Your Honour, it's not just my contention. It in

13 fact does not exist within the European Community, with the exception of

14 the United Kingdom. And I think it's in great jeopardy because of the

15 United Kingdom's adherence to the European Convention of Human Rights.

16 But that is an argument for a latter time.

17 What I say to you now is this: It may be that I don't fully

18 understand this Rule because I've never encountered it before, but just at

19 first glance, and later reflection, I believe that what I've said in my

20 motion is correct. Now, what you are inviting me to do with regard to

21 this witness, I think I have already done. I'm not flouting your decision

22 of last Friday in any respect, I don't believe. I think I have put to the

23 witness what it is that I am prepared to put to the witness at this point.

24 It seems to me that it makes little difference if the information

25 contained in a question that I put to the witness comes to me as a result

1 of a privileged communication with my client. Whether I say this came

2 from my client or whether I not disclose that, I think it's obvious that

3 that's where it came from.

4 JUDGE AGIUS: You don't have to say anything, Mr. Ackerman. The

5 whole thing is this -- I mean, let me move one further step ahead and say

6 that it may well be the case, as has been decided in other jurisdictions,

7 that the -- putting the nature of the case of your client to the witness,

8 it being in contradiction to the evidence given by the witness, may

9 sometimes be implied. Sometimes -- most of the time, it needs to be

10 expressed. But it is not excluded that it may be implied, considering the

11 sequence of the questions that you embark upon.

12 What I was trying to explain to you is this, that irrespective of

13 the fact that you are contesting the validity -- the legal validity of

14 this particular provision, for the time being, there is the provision and

15 there is a ruling by this Trial Chamber which is binding, at least for the

16 purposes of this trial. What Ms. Korner is suggesting or is recommending

17 or is asking is for the Trial Chamber to apply the provisions of 73(C) so

18 -- providing for an appeal before we even reach the stage of deciding -

19 deciding - the motion that you have brought forward.

20 Am I correct, Ms. Korner?

21 MR. ACKERMAN: I don't think that's what she's asking.

22 JUDGE AGIUS: Yes, of course. This is why I'm repeating to you,

23 because I -- I consider the ruling -- the point raised last week, and the

24 ruling given by this Tribunal as something which is completely different

25 when it comes to the nature, are different to the motion or to the essence

1 or substance of the motion that you are raising now, because what you're

2 raising now is the intrinsic validity of one of the Rules of this

3 Tribunal. What you raised last time was the applicability of -- or the

4 way Rule 90(H)(ii) ought to be applied by this Tribunal. And that is what

5 we decided on last week.

6 On the decision tendered down verbally, orally last week. I think

7 it is the case of you as Defence counsel, once you have the word of the

8 Trial Chamber, that the rest remains unprejudiced, to follow according to

9 the lines dictated by or shown by our decision and put to the witness, who

10 has told you what he has told you and -- upon cross-examination, the

11 nature of the case of the party. In French, if you remember, I told you

12 that -- to me, the translation is not a literal translation. There is

13 more sense in what is -- what appears in the French version than what

14 appears in the English version -- to show him that you are not accepting

15 what he is saying but that you have material in your hand which is in

16 contradiction to what he stated. This is all that the Prosecution asked

17 you to do and this is all that the ruling of this Trial Chamber asks you

18 to do, if we have to follow, or if we are to follow the provisions of this

19 -- of this paragraph. The rest remains unprejudiced.

20 You may within a very short time convince this Trial Chamber that

21 all in all, this provision runs counter to your client's right to remain

22 silent. It may run counter to any other privilege which your client may

23 have by way of a fair trial in due process. I don't know. How can I tell

24 you before how we are going to decide that matter? I don't know. And my

25 two colleagues don't know, because we haven't even started discussing it.

1 MR. ACKERMAN: Your Honour, I -- I'm in full agreement with what

2 you've said, and that is that I must comply with your ruling of last

3 Friday. Just because I'm contesting this particular provision doesn't

4 mean I'm entitled to ignore it, because it is the law, as I stand here

5 now, and will continue to be the law until it's changed, if it is.

6 I find myself in a bit of a quandary and dilemma because I don't

7 want to do something that is -- has a negative effect on my client's case,

8 but by the same token, I don't want to do something that will hurt my

9 client's case. So I don't know where to proceed now. I think I have done

10 what I am required to do and what I should do in this cross-examination

11 with regard to the provisions of this Rule. I don't think I have failed

12 to ask any questions that this Rule would say that I should ask.

13 JUDGE AGIUS: That's your point of view. You may be right; you

14 may be wrong.

15 MR. ACKERMAN: I think I'm right.

16 JUDGE AGIUS: You may be wrong, depending on the final decision

17 that there will be, if there is one, on what Article 90(H)(ii) means --

18 effectively means, read in conjunction in the same context as Article --

19 as para 1 of that provision, of that Rule.

20 MR. ACKERMAN: No, I don't think that's it at all. I don't think

21 it has anything to do with what the Rule means. It has to do with this --

22 JUDGE AGIUS: No. But let me ask you a very simple question.

23 MR. ACKERMAN: Yes.

24 JUDGE AGIUS: Between these two cases, proceeding the way you want

25 or you are wishing -- you wish to proceed, and proceeding the way Ms.

1 Korner is suggesting, whereby in actual fact there is a provision made

2 beforehand for a possible appeal against the decision that we handed down

3 last week -- I mean, because does it make sense -- I mean -- or any

4 logical -- is there any -- do you see any logic at all in having that

5 decision remaining unchallenged qua the decision, the ruling of this

6 Tribunal, dating back to the 21st of February and proceeding with the --

7 with the motion? I mean, to me, what makes sense is appealing that

8 decision and pushing the other motion, too. But if that is what makes

9 sense, then the suggestion of Ms. Korner certainly is the way -- is the

10 way to go about it. I mean, I will -- I will pre-empt the issue before

11 you decide whether it's the case of appealing against my ruling or our

12 ruling of last week. I apply or bring into operation the provisions of

13 para (C) of Rule 73. You have every opportunity to file an appeal against

14 that decision that, ruling, while keeping in -- under consideration until

15 we come to a final conclusion the fresh -- the new motion that you have --

16 that you have presented, which to me presents this -- the same -- presents

17 for the first time a challenge to Article -- to Rule 90(H)(ii). What we

18 had before us last week was not a challenge to -- against Article

19 90(H)(ii). It was a challenge to the interpretation or the way that the

20 Prosecution pretended that particular Rule ought to be applied.

21 MR. ACKERMAN: I think the record will show, Your Honour, that I

22 suggested in my argument that it violated Article 21 of the Statute.

23 JUDGE AGIUS: You did. But basically what we decided was not

24 whether it was in violation of this or that principle. What we decided

25 was what actually that matters -- what that Rule in effect meant and how

1 it should be applied. And the request was precisely to that effect. It's

2 only this motion now that challenges directly the -- the Rule itself.

3 MR. ACKERMAN: Well, let me try to make my position with regard to

4 this particular witness as clear as I can, because I don't want there to

5 be a misunderstanding between me and the Trial Chamber.

6 The allegation of the Prosecution is that certain statements were

7 made by Mr. Brdjanin during the year 1992. I have looked at or had looked

8 at every issue of the Glas newspaper which I can get my hands on, that the

9 witnesses all say will reflect these statements. I have a CD-ROM that has

10 all of the material taken from the radio station that's all in B/C/S, so I

11 cannot read every word of it, but I have people who are in the process of

12 looking at it and have been in the process of looking at it for some time.

13 As I stand before you today -- and that doesn't mean it won't

14 change. But as I stand before you today, I have found not one bit of

15 evidence either from the radio/TV material, or from the newspaper Glas

16 that Mr. Brdjanin made any of these statements.

17 JUDGE AGIUS: That's precisely what Ms. Korner --

18 MR. ACKERMAN: So -- but I cannot stand here and say to the

19 witness, without having complete knowledge as to whether it appears in the

20 Glas or any of these radio things, because I tell you, I have not seen

21 every one of them yet. I haven't found every one of them yet. But as far

22 as I know at this point, no such statements were made between April and

23 December 1992. Now, I could turn out to be wrong. There may be a Glas

24 that I haven't seen yet. And I don't want to challenge this witness,

25 saying, "Isn't it true that these statements were not made at all during

1 1992," and then have Ms. Korner walk in with a videotape that I haven't

2 seen or an issue of Glas and make me look like a fool.

3 JUDGE AGIUS: That's always a risk. Ms. Korner herself has come

4 here saying that there are some documents which the Prosecution know the

5 existence of but they have been unable to bring forward. No one would be

6 in the least surprised if these documents turn up in your case sometime

7 during this trial. It could -- I mean, what do we do then?

8 But the whole thing is -- again, I read to you, and I invite you

9 to read the text in French. You have to confront the witness or [French

10 phrase]. In other words, whatever you have -- you may not have

11 everything, and you -- no one expects you to have everything, just as no

12 one expects he Prosecution to be in possession of all the evidence that

13 is required to convict your client and General Talic. They may have some

14 witnesses, but not all. You may have evidence, but not all. You may have

15 some evidence, but not all. But if you have reason to believe -- this is

16 what is required from you. If the -- you have asked a direct question to

17 the witness on cross-examination purporting to obtain from him a piece of

18 information which fits in the nature of your case.

19 First you have to tell that witness what you are contending.

20 Secondly, if after you have told that witness what you are contending,

21 that witness tells you, "No, this is not light green, this is dark blue,"

22 and you have every reason to believe that he is not telling you the truth

23 or you have evidence in your hand or material elements in your hand,

24 elements related to your case or your client's case, which can be put --

25 of which the witness can be made aware of to show him that he can be

1 contradicted, you are duty-bound to do it in terms of Rule 90(H)(ii).

2 This is what 90(H)(ii) -- whether it's legal or not is another matter.

3 MR. ACKERMAN: I think I did it.

4 JUDGE AGIUS: But it's definitely got nothing to do with what your

5 client may have told you inside your office, or wherever you meet him.

6 MR. ACKERMAN: I did that. I said to him, "Isn't it the case that

7 you did not hear Mr. Brdjanin make these statements during year 1992?"

8 JUDGE AGIUS: And the whole issue is you put two possibilities,

9 according to Ms. Korner, to the witness. You did not put the third

10 possibility, which to Ms. Korner is the most important. In other words:

11 "I put it to you, Mr,. Dzonlic that you may be living an illusion, that

12 you are completely mistaken, because the -- we can prove with the evidence

13 that we have that these statements were never made by Mr. Brdjanin." Or

14 you don't even go that far. You can tell the witness, "I put it to you

15 that it is the contention -- it is the firm belief and conviction of this

16 -- of my client that these words were never -- were never uttered by

17 him." It's -- the thing is that you have to put it black on white with

18 the witness that if you have asked for some information from him which

19 fits in your case and he hasn't given it to you, then you have to tell

20 that witness that in spite of the fact that he has answered "white," you

21 can prove that it is black and not white. In other words, you can -- you

22 have elements in your possession that will prove him wrong.

23 MR. ACKERMAN: Well, Your Honour, I can't imagine that anybody in

24 this courtroom could in their wildest imagination believe that if I put

25 such a question to this witness, he will say, "Oh, oh, you're right. I'm

1 lying." I mean, when is that -- what century is that going to happen in?

2 That's never going to happen. So what we're doing here is something

3 that's just kind of -- it seems to me a major waste of time.

4 I've made it very clear to Ms. Korner just a few moments ago what my

5 position is. I have not found any of these statements in the newspaper or

6 in the television or in the radio. That's my position. And I've stated

7 that basically to this witness. I don't know how I can go any further.

8 If I say to him, "Isn't it true that you're lying that Mr.

9 Brdjanin didn't make these statements," he's just going to say, "No, I

10 heard them. I'm telling the truth." What else could he possibly say?

11 JUDGE AGIUS: But the situation otherwise is -- you will be worse

12 off. Because what do you have? You have question number one and question

13 number two, and you never put the question to the witness whether it could

14 well be that he's completely mistaken and these words were never uttered

15 by your client in 1992 or whenever.

16 MR. ACKERMAN: I've done. I said --

17 JUDGE AGIUS: You haven't. No. What you have -- what you have

18 done, if Ms. Korner -- I don't doubt it, if Ms. Korner read the transcript

19 correctly, the two questions that you put to the witness do not cover that

20 part of the scenario. You never put to the witness the possibility that

21 irrespective of 1992 or 1993, he may be completely wrong, be completely

22 misguided and misinformed that these words were never really uttered by

23 your client. This is the whole issue. If the question is not put, what

24 do you have? You have a -- a question that referred to 1993 and you have

25 an answer referring to 1993 and you also have a question relating to 1992

1 and you have an answer relating to 1992. But you never had a question

2 putting into doubt whether Mr. Brdjanin uttered those words or not. And

3 you have an answer -- a reply by the witness stating that he heard

4 personally these words. In other words, you have a situation -- this is

5 why such a -- a Rule is important. You have a situation whereby the

6 statement of the witness that he personally heard these words on the radio

7 or on TV, whether in 1992 or 1993, has not been challenged directly by you

8 -- directly with the witness. You have never -- you haven't contested

9 that. You have asked the witness more than one question but never put

10 into doubt whether those words were actually stated. This is what Ms.

11 Korner's objection is all about, and this is what the Trial Chamber is

12 trying to obviate in your client's interest, after all, I mean, because I

13 have no interest in making speeches here. But it seems to me that you are

14 -- you have still not grasped the -- you have -- Ms. Korner is smiling.

15 You have still not grasped the real import of Rule 92 --

16 90(H)(ii). It's my firm belief and possibly because you don't have it in

17 your system in your jurisdiction.

18 MR. ACKERMAN: Your Honour, the only -- the only issue about these

19 statements is whether my client made these statements in 1992. And I

20 think I asked him that. I said, "Isn't it the case that these statements

21 were -- that you heard these statements from other people or that they

22 were made after 1992?" I believe that's what I asked him. Isn't that

23 what I asked him?

24 MS. KORNER: Your Honour, what -- Mr. Ackerman still doesn't grasp

25 the point because each time we raise this point, he goes back to the

1 privilege that his client enjoys. If Mr. Brdjanin were to give evidence -

2 and there is no obligation on Mr. Brdjanin to give evidence by

3 this method - and during the course of that evidence were to assert, "I

4 never, whether it was 1991, 1992, or 1993, said no less than two or five

5 per cent of Muslims shall stay in Banja Luka" or "they can all eat winter

6 cabbage," which is the other one that seems to be common, then none of

7 that has been put to the witnesses. And the first thing that is going to

8 be said by cross-examination to Mr. Brdjanin: "You have recently invented

9 this. This wasn't part of your defence. You're just saying whatever you

10 want to get out of it."

11 Now, I don't know how Mr. Ackerman is going to stop that. And the

12 way of stopping that is by -- his client's case, whether it comes from his

13 client or documents being put fairly and squarely. Counsel are not meant

14 to invent defences. Counsel get defences from what their client tells

15 them and it is not a breach of privilege to say to the witness: "I put it

16 to you, Mr. X, that you're not telling the truth or that you're mistaken."

17 This Rule, 97(H) is meant to stop -- Mr. Brdjanin told me in conference or

18 Mr. Brdjanin will say this or will that. That's what he can't reveal.

19 That's the privilege. But what it doesn't do is prevent him from putting

20 his case.

21 Your Honour, I'm sorry it's now taken so long again, because

22 actually, Your Honour is right. My suggestion was going to be either we

23 had a further part of the argument but that in actual fact, the way to

24 resolve this really is only going to be for Mr. Ackerman either to abide

25 properly by the ruling or to appeal the ruling Your Honour made last week.

1 JUDGE AGIUS: You are right there.

2 MR. ACKERMAN: Well, to bring matters to a conclusion, I hope,

3 what I would suggest is that before we call the next witness, that

4 Ms. Korner and I each have a -- a moment or whatever the Trial Chamber

5 decides is an appropriate amount of time, to argue the motion that I have

6 filed.

7 JUDGE AGIUS: Certainly, yes.

8 MR. ACKERMAN: And that we then have a decision from the Chamber

9 as soon as possible with regard to that, that I think both of the matters

10 need to be part of an appeals process, if there's going to be an appeal.

11 And --

12 JUDGE AGIUS: Yes. But that -- in the meantime, I would apply,

13 therefore, 73(C), with regard to the ruling that we handed down last week

14 straight away, because it also makes sense that if you're going to appeal

15 or she is going to appeal -- I mean, it's -- let's say you lose -- you get

16 an adverse decision on this new motion. It only makes sense if you appeal

17 both.

18 MR. ACKERMAN: Yes.

19 JUDGE AGIUS: Yes. Madam Fauveau, I'm sorry to have kept you

20 waiting. I saw you standing up. Yes, go ahead.

21 MS. FAUVEAU-IVANOVIC: [Interpretation] As we are discussing Rule

22 90(H), I wish to inform the Chamber that our conclusions relates to the

23 difference between the English and the French version, because in the

24 English version, counsel is obliged to confront the witness with the

25 elements in his possession. According to my understanding of the French

1 language - and it is not my mother tongue; I may be wrong - the elements

2 it has in its possession are elements which counsel can submit to the

3 witness but certainly not an element derived from a conversation with his

4 client, because in that case, the Rule would say that he should confront

5 the witness with the elements he is familiar with, not that he has in his

6 possession.

7 JUDGE AGIUS: Anyway, I don't think we can proceed any further

8 with the discussion.

9 Will you please make a formal request verbally for the application

10 of Rule 73(C) being specific as to which ruling you want --

11 MS. KORNER: Well, Your Honour --

12 JUDGE AGIUS: You want the certification.

13 MS. KORNER: Well, Your Honour, it's not my appeal, because I

14 abide by it. It's Your Honour's ruling which I accept and wish to have

15 applied. It's Mr. Ackerman who does not wish to apply or submits that

16 Your Honours ruling does not require him to put his client's case to the

17 witness.

18 JUDGE AGIUS: Yes, Mr. Ackerman.

19 MR. ACKERMAN: Well, then I will do it, Your Honours. I will make

20 a formal request under Rule 73(C) that the Trial Chamber certify that an

21 interlocutory appeal with regard to the matters decided -- I think it was

22 last Friday -- with regard to Rule 90(H)(ii) --

23 JUDGE AGIUS: That wasn't last Friday. It was much earlier than

24 that. The 21st.

25 MS. KORNER: Your Honours, it's the ruling of 21st of February of

1 this year and the ruling starts in the unofficial transcript -- or the

2 argument starts in the unofficial transcript at page 2. And I can't

3 remember where the ruling is now. But it's there.

4 MR. ACKERMAN: Well, the Rule requires that this application I'm

5 making be made within seven days, and that time has expired. I think you

6 can extend it and still accept the application. I'm not sure of that. But

7 if that's the case, it should have been made by March 1, and it was

8 not.

9 JUDGE AGIUS: Yes. The Trial Chamber -- upon the request by

10 Mr. Ackerman, Defence counsel to accused Brdjanin, considering or taking

11 into consideration in particular the debate on the import -- import of its

12 ruling on the -- on its ruling of February 21st, 2002, on Rule 90(H)(ii),

13 taking also into consideration the filing of a separate motion challenging

14 -- by accused Brdjanin challenging the legality of the said Rule, deems

15 it appropriate to allow for an interlocutory appeal, as this would

16 evidently be necessary for the continuation of this trial. The

17 certification under Rule 73(C) is being given also -- in spite of the fact

18 -- or notwithstanding that more than seven days have passed or have

19 elapsed since the issuing of the February 21st decision.

20 So that the position, and we will soon have to stop. I think we

21 ought to bring the witness in so that I can explain to the witness why he

22 has been kept waiting for three quarters of an hour outside, without being

23 heard.

24 MR. ACKERMAN: While we're waiting for the witness, may we -- may

25 we argue the formal motion, the written motion, at the conclusion of the

1 testimony of this witness then?

2 JUDGE AGIUS: May we argue what?

3 MR. ACKERMAN: The written motion that I filed.

4 JUDGE AGIUS: Yes. But that's going to be argued -- I mean, I'm

5 still waiting for the motion that Madam Fauveau will be filing.

6 MR. ACKERMAN: I think she will file it either today or ...

7 JUDGE AGIUS: She said today.

8 MS. FAUVEAU-IVANOVIC: [Interpretation] I will file it after the

9 hearing.

10 MR. ACKERMAN: I'm just wondering if it's appropriate to argue

11 that matter tomorrow or does Ms. Korner need more time. I think the

12 quicker we dispose of that, the better things will be.

13 MS. KORNER: Yes.

14 JUDGE AGIUS: Yes, Ms. Korner.

15 MS. KORNER: Yes, I think really it's all so tied up with the

16 appeal that it seems to me that all those matters can be raised in the

17 appeal and the Appeals Chamber can then look at whether or not it's in

18 breach of the Statute.

19 Your Honours have made a ruling, have given leave for an

20 interlocutory appeal, and I would have thought that that's the way to go

21 about it. I -- it personally sees to me that that is really the matter

22 the Appeals Chamber should look at, is this Rule in breach of the Statute,

23 and if not, how should it be applied?

24 JUDGE AGIUS: Yes, exactly. Basically what Ms. Korner is very

25 intelligently, I must say, suggesting or putting it, is that you could now

1 avail yourself of this certification, file an appeal straight away against

2 the decision of this Chamber of February 22nd, and the appeal would have

3 as a ground not only what you may have argued last week or whenever we

4 handed down our decision but also the new elements that you are bringing

5 forward in your motion challenging the legality of Rule 90(H)(2). Because

6 basically, if you win on that score, our decision of February 21st,

7 although it had nothing -- it did not deal with that -- with that matter

8 or with that -- with that matter, would fall automatically if your appeal

9 is upheld -- is upheld. I don't know if I'm making myself clear.

10 MR. ACKERMAN: You're make yourself clear. I just don't know

11 quite how I'm going to appeal a decision that's not been made, because

12 there are matters raised in my motion to Rule 90(H)(2) after which there's

13 no decision.

14 JUDGE AGIUS: Well, what Ms. Korner is suggesting is very

15 obvious. I mean, your motion, new motion, will remain in abeyance, so to

16 say, because this same substance of it would be the grounds of appeal

17 against our decision of February 21st.

18 MR. ACKERMAN: You're probably right. I just need to look at the

19 transcript.

20 JUDGE AGIUS: I hope I understood you well, Ms. Korner.

21 MS. KORNER: You did.

22 JUDGE AGIUS: Yes. If I am making a mistake, please tell me,

23 because I -- sometimes things get difficult and get out of hand.

24 MS. KORNER: Mr. Ackerman made it plain in the course of the

25 argument that his suggestion was that this Rule was in breach of the

1 Statute. It appears in the transcript. And so one of the grounds of

2 appeal against the decision will be on the basis that the Rule should not

3 stand at all because it is in conflict with the Statute.

4 JUDGE AGIUS: Yes. Exactly. And perhaps because in my -- in our

5 ruling we just mentioned you, the Trial Chamber is making it clear also

6 that what applies to you applies also to Madam Fauveau, obviously,

7 particularly knowing now that we know that it is the intention of General

8 Talic to file a motion.

9 Now, you may decide whether it's worth your while to file the

10 motion or not, but I -- at this point in time, I would say go ahead. And

11 on the basis of the fact that you have filed your motion, you can actually

12 join hands with Mr. Ackerman in appealing against the February 21st

13 decision, because you would have the same interests, even though the

14 argument may be different, you would have the same interest.

15 Can I have the witness, please.

16 Mr. Dzonlic, we don't like it -- we don't like keeping witnesses

17 waiting outside for more than it is necessary, and it was the intention of

18 this Trial Chamber to finish with your testimony this morning. However, a

19 legal problem has arisen which needed to be debated before we could

20 proceed with your cross-examination. So unfortunately, we took the past

21 three quarters of an hour discussing the legal problem involved, with the

22 result that I apologise to you for having kept you waiting outside, not

23 knowing exactly what was happening, and also as a result of that, you will

24 have to come again tomorrow morning. Again, my apologies. I'm sorry, but

25 it was not something capricious. This was something that we had to do

1 because it was a very important legal matter -- there was an important

2 legal matter involved. I thank you. You may now withdraw. And hopefully

3 tomorrow morning you will finish your testimony within a very short time.

4 I thank you.

5 THE WITNESS: [Interpretation] I understand fully, Your Honour.

6 Thank you.

7 [The witness stands down]

8 JUDGE AGIUS: So again, my apologies to the interpreters. Maybe

9 also during the debate we were exchanging and -- remarks very fast. My

10 apologies. We will meet tomorrow morning at 9.00.

11 --- Whereupon the hearing adjourned at 1.49 p.m., to

12 be reconvened on Tuesday, the 5th day of March,

13 2002, at 9.00 a.m.

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