1 Wednesday, 14 March 2001

2 [Open session]

3 --- Upon commencing at 9.32 a.m.

4 [The accused entered court]

5 JUDGE RODRIGUES: [Interpretation] Please be seated.

6 Good morning, ladies and gentlemen; good morning to the technical

7 booth, the interpreters, the Registry, the counsel for the Prosecution and

8 for the Defence. We will be resuming our work.

9 Before we call in the next witness, I have two small issues to

10 address.

11 First, Mr. Jovan Simic, where do we stand with respect to

12 Mr. Prcac's health?

13 MR. J. SIMIC: [Interpretation] Good morning, Your Honour.

14 Mr. Prcac is feeling a bit better. He is not able to attend these

15 hearings. I have been informed that President Jorda will be meeting Mr.

16 McFadden, the commander of the Detention Unit, this morning. I have been

17 asked to be in the Detention Unit at 10.30 to address some transport

18 problems. He feels better, but he's not well enough to attend, and it is

19 my belief that he will be incapacitated until the end of the week.

20 After meeting Mr. Prcac and Mr. McFadden, if he is unable to

21 attend, I have some suggestions for Your Honours. I can go through them

22 now or whenever Your Honours prefer.

23 JUDGE RODRIGUES: [Interpretation] Now, perhaps.

24 MR. J. SIMIC: [Interpretation] It is my opinion and my suggestion

25 that if Mr. Prcac is unable to attend the proceedings - and this Defence

1 teams feels that it is absolutely essential that he be present during the

2 cross-examination of Mr. Radic - so as to avoid any loss of time and any

3 upset of the timetable, I would try to abbreviate my case. We could lend

4 a day or two to Mr. Fila, and then I would reduce my time for my case so

5 that we wouldn't upset the timetable while achieving the presence of

6 Mr. Prcac and, at the same time, completing the proceedings as planned.

7 Perhaps you have a better suggestion, and also perhaps the health

8 of Mr. Prcac will improve sufficiently for him to be able to attend.

9 JUDGE RODRIGUES: [Interpretation] Thank you very much for your

10 suggestions and information, Mr. Simic. I'll give the floor to Ms. Susan

11 Somers first and then to Mr. Fila to see whether they agree.

12 Ms. Somers, two questions for you: What is the position of the

13 Prosecution regarding the health of Mr. Prcac, and the suggestion that

14 Mr. Jovan Simic has just made regarding the cross-examination of

15 Mr. Radic?

16 MS. SOMERS: Your Honour, the first item this morning on my agenda

17 was to speak with Mr. Jovan Simic and ask about the condition of

18 Mr. Prcac. He informed me exactly what he informed the Chamber. Our

19 primary concern, of course, is that he get better and is able to have his

20 own presence at the hearings.

21 In terms of the issue of transport, if that's a question, that is

22 being attended to. That has been discussed, as you did, with President

23 Jorda yesterday. That was also discussed within our own ranks. We are

24 preparing to encapsulate what we said yesterday on the record, a written

25 matter. I have just spoken with Mr. Rohde from the Registry about this.

1 In terms of trying to accommodate the presence or not of

2 Mr. Prcac, I don't know logistically how that would affect their case. As

3 for us, we have, other than the two experts and the one civilian, only

4 Mr. Radic's testimony. It may or may not cause a problem in terms of

5 order.

6 One question I wanted to ask the Chamber is whether or not a

7 monitor is available to Mr. Prcac which may also enable one of the

8 counsel, as they are two counsel, to attend. And then if there were

9 issues to be raised, have a substantial -- have a significant enough break

10 so that whatever Mr. Prcac might say to the second counsel could be

11 relayed to the counsel in court to accommodate potential cross-examination

12 questions. It would just be one possible approach.

13 Otherwise, I would have to leave it in the Chamber's hands as to

14 rearranging the order of testimony, and certainly if, as between counsel,

15 there's an agreement on sharing time, that's something out of our hands.

16 We will try to work with the Chamber and counsel. We certainly understand

17 the problem. Any reasonable suggestion we will certainly try to go on

18 with.

19 JUDGE RODRIGUES: [Interpretation] Thank you, Ms. Susan Somers.

20 Mr. Fila, your comment regarding Mr. Jovan Simic's suggestions.

21 MR. FILA: [Interpretation] Of course I have spoken to Mr. Simic,

22 Mr. President, and as you noted in connection with Mr. Kvocka's testimony,

23 Mladjo Radic was present and available. And I think that this solution

24 would be a better one, the one suggested by Mr. Simic, to give Mr. Prcac a

25 chance to really recover properly by staying in his cell. But I will

1 accept any ruling of this Trial Chamber, as I am ready to begin with

2 Mladjo Radic after these three witnesses, but I think that Mr. Simic's

3 suggestion continues to be the best one.

4 JUDGE RODRIGUES: [Interpretation] Thank you very much. Let me

5 confer with my colleagues.

6 [Trial Chamber confers]

7 JUDGE RODRIGUES: [Interpretation] Regarding this matter, the

8 Chamber needs to continue to confer, so we don't have a decision yet,

9 because this is not the moment for a discussion on this matter. We will

10 deal with it later.

11 There is another issue to be addressed before we begin with the

12 testimony, and that has to do with the question of translation that was

13 raised yesterday. I have received a brief memo from the Translation

14 Service, which was also sent to the registry, to Ms. Krystal Thompson,

15 which means that the parties will have copies too, and I wish to tell you

16 what is the upshot of this memo. It is in English, so I'm going to read

17 it in English.

18 [In English] "Reference is made to the B/C/S term 'razvodnik

19 straze,' mentioned at yesterday's hearing at the Kvocka case, page 9212 of

20 the English transcript. We wish to point out that the official CLSS

21 translation of this term has been and remains 'guard shift leader.' This

22 term should not be confused with 'sef smene,'" do you understand, B/C/S,

23 "for which the CLSS translation is 'shift leader.' We are at your

24 disposal for any additional information you may require."

25 [Interpretation] So that is it. The question I have for you now

1 is: Having this information coming from the Translation Unit, and bearing

2 in mind the distinction that we made yesterday between the meaning and the

3 term, a word, and its content, the question is whether we need to do what

4 I suggested yesterday, that is, to hear the original once again, to have

5 it translated - do you have a memo from the Translation Unit? Perhaps we

6 already have it here with us - and then to hear the opinion of the

7 parties. Anyway, I see that Mr. Fila would like to speak, after which I

8 will give Ms. Somers the floor. I think that the position is clear now.

9 MR. FILA: [Interpretation] Mr. President, with your permission, I

10 would like Madam Registrar to give you what I prepared for you, a page

11 from an English/Serbo-Croatian dictionary, with the translation of the

12 term "razvodnik straze," the Benson dictionary. And you will see exactly

13 what it is, and it differs from what the Translation Unit has given you.

14 So there is an adequate term in the English language. It is "corporal of

15 the guard." "Razvodnik straze," according to that dictionary, is

16 "corporal of the guard." So could Madam Registrar please give you a copy

17 of this page. And anyone can perform that function.

18 JUDGE RODRIGUES: [Interpretation] Yes, I'll be glad to have that

19 from you, Mr. Fila.

20 MR. FILA: [Interpretation] I have highlighted the term and you

21 will see what it is. Benson is the best-known dictionary, as far as I

22 know, for our language.

23 JUDGE RODRIGUES: [Interpretation] So what is your suggestion,

24 Mr. Fila, in this connection? What do you suggest?

25 MR. FILA: [Interpretation] I suggest that we use this term that is

1 provided by Morton Benson, "corporal of the guard," and that is not the

2 term used by the Prosecution.

3 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers.

4 MS. SOMERS: Your Honour, when I spoke with the persons, the

5 supervisory personnel at Translation Service, it was explained to me that

6 in fact this dictionary had already been looked at, as had a number of

7 other dictionaries, and I don't think that necessarily the opinion on

8 Benson is shared, but it nonetheless was consulted. And having consulted

9 the dictionaries which are the technical tools of that section of the

10 Tribunal, the persons who have authored that memo have still maintained

11 their position. I think if there is a question about why that was arrived

12 at despite certain non-contextual definitions that are found simply in a

13 dictionary, then perhaps the Chamber could ask for the analysis that goes

14 behind the conclusion. But it was very thoroughly explained to me that

15 all dictionaries relevant had been consulted and that notwithstanding what

16 was in Benson, this particular translation is what is the official one of

17 the unit, and we would, of course, support that. Thank you very much.

18 JUDGE RODRIGUES: [Interpretation] Let me consult my colleagues.

19 [Trial Chamber confers]

20 JUDGE RODRIGUES: [Interpretation] We're going to ask Madam

21 Registrar to give a copy of this memo to the parties. What we believe is

22 that we should admit into evidence these documents, and then it is up to

23 the Chamber to decide. The interpreters already have the terms so I don't

24 think it is necessary to repeat the original version, because everyone

25 knows what the term was that was used. So we are going to admit these

1 documents after they have been given to the parties, and to facilitate

2 things, I can perhaps give my copy to Madam Registrar to copy and give a

3 copy to the parties after the break.

4 I think it is not necessary, after all, to admit into evidence the

5 dictionary because, after all, it is part of the judicial notice. I'm

6 joking. But I don't think it's necessary anyway.

7 Mr. O'Sullivan.

8 MR. O'SULLIVAN: Your Honour, I believe there's one other aspect

9 to this issue that arises out of yesterday's testimony by the witness

10 Delic, because in English, we only heard the term "shift leader" used, and

11 now there appears to be two possibilities, depending on which word in

12 B/C/S is used.

13 The problem is this: When Mr. Fila was questioning Mr. Delic, he

14 apparently used the word "razvodnik straze," which yesterday was

15 translated as "shift leader." When Ms. Somers cross-examined the witness,

16 in English she used the word "shift leader." I don't know what the

17 witness heard in B/C/S, and he answered according to whatever he heard as

18 the B/C/S translation of "shift leader." I think it's important to find

19 out which word the witness heard in B/C/S both when Mr. Fila and

20 Ms. Somers were posing questions, because you'll recall Ms. Somers

21 referred to the Kvocka testimony using the word "shift leader".

22 So there's still a problem in the transcript as it reads from

23 yesterday's questioning of Mr. Fila and the questions of Ms. Somers that

24 were put to Witness Delic, and the only way to resolve it is to hear what

25 the witness Delic heard when Ms. Somers used the word "shift leader."

1 Thank you, Your Honour.

2 JUDGE RODRIGUES: [Interpretation] Excuse me. Mr. O'Sullivan, do

3 you have a suggestion, please?

4 MR. O'SULLIVAN: Yes. Perhaps the easiest solution is to request

5 CLSS to listen to the audiotapes and then they can prepare a memo as

6 they've done on this other matter.

7 JUDGE RODRIGUES: [Interpretation] I have an idea too. I haven't

8 consulted my colleagues. We could call the witness to the witness box

9 once again to clear up the matter, Mr. O'Sullivan. What do you think? If

10 the witness is still available. I think he is.

11 MR. O'SULLIVAN: That's one solution. But I think the record

12 would be clearer based on what was said in court yesterday, because what

13 Mr. Fila said in B/C/S was rendered into English and what Ms. Somers said

14 in English was rendered into B/C/S, and based on this determination we

15 have this morning, we can see which is the correct terminology.

16 JUDGE RODRIGUES: [Interpretation] Yes. But, Mr. O'Sullivan, if I

17 understand your point - and I think it is a good one - due to the fact

18 that we have a concept used by Mr. Fila translated in one way and then

19 Ms. Somers used that translation, the witness was able to respond in a

20 different manner. So if the witness had a good translation, the answer

21 could have been different. Do you understand my point?

22 MR. O'SULLIVAN: Yes, Your Honour, I do.

23 JUDGE RODRIGUES: [Interpretation] To make a correction in the

24 transcript, in my opinion, would not resolve the problem because, after

25 all, it is an interpretation. The question is to see whether the question

1 was put to the witness using the proper term, and what his response would

2 be. Would it be the same or not? That is my question, Mr. O'Sullivan.

3 MR. O'SULLIVAN: Given that the witness is still here, on those

4 limited matters, perhaps he can be questioned. But there is certainly

5 confusion in the transcript right now based on what we've determined this

6 morning regarding terminology, or there may be. I don't know what he

7 heard in B/C/S when Ms. Somers questioned him.

8 JUDGE RODRIGUES: [Interpretation] I see Mr. Fila waving to

9 indicate the witness has already left. Did I understand you correctly,

10 your signs?

11 MR. FILA: [Interpretation] The witness is probably at the airport,

12 I don't know that, but he left this morning at 7.30.

13 If I may make a very simple suggestion which I think would resolve

14 the problem. You have received a memo from the Translation Service as to

15 what I said, the word I used, "razvodnik straze," and how the witness

16 responded. We also know what Ms. Somers said in English. She said "shift

17 leader." So there is no dispute over that. The only thing that is

18 disputed is what the witness heard as an interpretation of what Ms. Somers

19 said, so how the term "shift leader" was interpreted to the witness.

20 There are two possibilities: Either it was translated as

21 "razvodnik straze," which is wrong, or as "sef smene," which is correct

22 and which I did hear. If the Translation Unit were to check Ms. Somers'

23 translation, they will be able to write a memo to tell you that the term

24 used by Ms. Somers, "shift leader," was translated as "sef smene." Then

25 it will be easy for you to decide regarding both points.

1 That would be my suggestion. Thank you.

2 JUDGE RODRIGUES: [Interpretation] Mr. Krstan Simic, after which

3 I'll give the floor to Ms. Susan Somers. Mr. Krstan Simic.

4 MR. K. SIMIC: [Interpretation] Your Honours, I fully appreciate

5 everything that has been said. It is one aspect of the problem which I

6 have every understanding for. However, this translation that has been

7 offered to us by the Translation Service absolutely does not correspond to

8 what a razvodnik straze does. It causes a whole lot of confusion. The

9 word here used is "guard shift leader," a leader of a guard shift. That

10 does not exist. The memo we distributed this morning corresponds to what

11 a razvodnik straze actually does in the military. Razvodnik straze is an

12 ordinary soldier, a private, whose only task is to distribute the guards.

13 He is not a leader; he does not have the status of leader. This can

14 mislead the Trial Chamber, this term, because it uses the word "leader of

15 the guard shift." The duties of an ordinary policeman in a shift were

16 similar to those of a razvodnik straze, a guard distributor, literally.

17 This is not just a matter of linguistics. It is a far more

18 serious issue which can cause very serious consequences, which can have

19 very serious consequences, and that is why I believe that this question

20 needs to be clarified, or at least for the Translation Service to give us

21 the explanation of the functions and activities of a person they describe

22 as guard shift leader, because that, in my opinion, is the gist of the

23 matter, in addition to the simply linguistic aspect.

24 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Simic, we are not going

25 to go on with this discussion. I think it is difficult for us to ask of

1 the Translation Service to describe the tasks of that guard. I think for

2 the Translation Service, all we can expect them to do is give a

3 translation. The content is something that belongs more properly within

4 your responsibilities. But, in any event, we are not going to continue

5 this discussion.

6 I will give the floor to Ms. Susan Somers and, after that, we will

7 review the matter. Since we have already eliminated the possibility of

8 calling back the witness, as he has left, we will reconsider the matter

9 and take a decision. But, in any event, we will not do that without

10 consulting you.

11 Ms. Susan Somers, to wind up this discussion on translation,

12 otherwise we will go on forever, do you have any comment to make in

13 response to what Mr. Fila has just suggested and the remarks made by

14 Mr. Krstan Simic? Quickly, please.

15 MS. SOMERS: Your Honour, thank you. I was just checking

16 yesterday's transcript to indicate that I had read a direct quote from the

17 transcript of the Kvocka cross-examination. I think it would probably be

18 a good idea to have the Translation Service listen to the tapes to hear

19 what was asked of Mr. Delic on both occasions, and that perhaps would put

20 the matter in better light, and then leave it, perhaps, as an issue

21 ultimately for argument. Thank you.

22 JUDGE RODRIGUES: [Interpretation] Very well. I will take into

23 consideration your suggestions, for which I thank you. Perhaps I will

24 consult the Translation Service to get this memo from them. Anyway, we

25 will decide later.

1 I think it is time to go on and call the next witness who is

2 waiting.

3 Mr. Fila, you have the floor.

4 MR. FILA: [Interpretation] Mr. President, all three witnesses are

5 here, and that is good news. In consultation with Ms. Somers, I shall

6 start off with the witness left over from yesterday, and then we're going

7 to have two expert witnesses.

8 The Defence now calls witness Branko Starcevic.

9 [The witness entered court]

10 JUDGE RODRIGUES: [Interpretation] Good morning, Mr. Branko

11 Starcevic. Can you hear me?

12 THE WITNESS: [Interpretation] Yes, I can.

13 JUDGE RODRIGUES: [Interpretation] You will now read the solemn

14 declaration handed to you by the usher, please.

15 WITNESS: BRANKO STARCEVIC

16 [Witness answered through interpreter]

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

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

19 JUDGE RODRIGUES: [Interpretation] You may be seated. Draw closer

20 to the microphone, please, and try to stand as comfortably as possible.

21 Make yourself comfortable. Thank you for coming. You will start off by

22 answering questions put to you by Mr. Fila.

23 Mr. Fila, your witness.

24 THE INTERPRETER: Microphone, please.

25 Examined by Mr. Fila:

1 Q. Could you tell us where and when you were born.

2 A. I was born in Omarska on the 2nd of December, 1948.

3 Q. What schooling have you had?

4 A. Eight years of primary school and a driver's test.

5 Q. Where did you work at the beginning?

6 A. At the beginning I worked in the Cajavec, Rudi Cajavec firm, and

7 later on I worked in Austria for nine years. From Austria, I returned and

8 now work in the Prijedor Bank as a driver.

9 Q. Since when have you been working in the Prijedor Bank?

10 A. Since 1987.

11 Q. Are you married? Do you have any children?

12 A. Yes, I'm married and have two children.

13 Q. Did you do your military service?

14 A. Yes, I did my military service.

15 Q. What were you in the army?

16 A. In the army, I was a Corporal, a Private First Class.

17 THE INTERPRETER: Private First Class, which in B/C/S was said

18 "razvodnik." So the interpreter notes, whether it's Private First Class

19 or Corporal, in B/C/S it was Razvodnik.

20 MR. FILA: [Interpretation] As you can see, once again we have

21 "razvodnik straze."

22 Q. In April 1992, what happened to you?

23 A. I was called up and I reported to Omarska and I was distributed to

24 do village guards or village watch at the checkpoints.

25 Q. Was that in Omarska proper, in the village of Omarska?

1 A. Yes.

2 Q. How long did you spend in Omarska proper, the town?

3 A. I spent about a month.

4 Q. What happened next, after that month?

5 A. Afterwards, there were no more village watches. We had to go to

6 the battlefront. And as I was older, they assigned me to the mine, to

7 provide security for the hangars in the mine, to safeguard the hangars in

8 the mine.

9 Q. And you accepted being -- to do this assignment?

10 A. Yes, because I was an older man and it was easier for me to

11 provide security for the hangar rather than go to the battlefront.

12 Q. Did you know that there were people there?

13 A. No, I did not know there were people there. I thought I'd just be

14 guarding the machines inside, the mine machines and machinery used in the

15 mine.

16 Q. What happened next? How did you get to Omarska and when?

17 A. Well, a commander came to fetch me. We were boarded into a

18 vehicle and taken to the mine.

19 Q. How many of you were there, approximately?

20 A. There were about 15 to 20 of us. I don't know exactly.

21 Q. And were you all reservists?

22 A. Yes, we were all reservists.

23 Q. Of the army?

24 A. Of the army. The Territorial Defence, in fact.

25 Q. When you arrived there, what did you see and what happened next?

1 A. I was astounded when I saw the number of people who were there. I

2 did not know what to do. I met comrade Kvocka and said, "What are we

3 going to do? And he said, "Well, I don't know. I don't know what you're

4 going to do." And then I came across a guard. He took us in and said,

5 "You're going to go with us and we're going to distribute you because

6 you're in our shift."

7 Q. Just a moment, please. What happened to the officer who took you?

8 A. He suddenly disappeared. He just left us there, and nothing else.

9 Q. And what happened next with you? What did you do next?

10 A. Another reservist came up to us and said that we were going to

11 replace them.

12 Q. Was he military or police?

13 A. No. It was a military man from the TO, the Territorial Defence,

14 the army, and he led us off. And we replaced each one of the others, and

15 so we would replace them regularly and be replaced regularly, relieved.

16 Q. How long were you relieved in this way?

17 A. Well, I was there for one day, for example, and then the other one

18 would come for the night, and that was how we relieved ourselves, in this

19 regular fashion.

20 Q. Was this 12/24, 12/24 rhythm [as interpreted]?

21 A. Yes.

22 Q. How many months were you there for?

23 A. I was there until August. I was there until August. I came with

24 a bicycle for the last time. I didn't find anyone there. I just found a

25 guard who said, "The people have gone and there's nothing more for you to

1 do here."

2 Q. And what did you do?

3 A. I returned home and reported to the Prijedor Bank and continued

4 driving, as I had done.

5 Q. To put something right that appeared in the transcript, did you

6 say that the shifts were 12/12/24?

7 A. Yes.

8 Q. Where was your guard post within the compound?

9 A. My guard post was in the hangar.

10 Q. What side? The side facing the "white house" or the opposite

11 side?

12 A. It was opposite the petrol pump.

13 Q. Inside the hangar or outside?

14 A. Inside the hangar.

15 Q. How many people were there in the hangar with you?

16 A. Five or six.

17 Q. Throughout the time you spent at this guard post and up to the

18 time that you left Omarska, did you ever report to somebody about what

19 happened during your shift?

20 A. No. We had nobody to hand over a report to because there were no

21 officers or anything.

22 Q. Were you under the command of the police or army, or under no

23 command at all?

24 A. Under no command at all.

25 Q. When you arrived, did you see uniforms in that part of the Omarska

1 centre?

2 A. I saw military uniforms, the SMB olive-green/grey uniforms that we

3 wore, and the policemen, who wore blue uniforms.

4 Q. Were there any special-unit people?

5 A. Yes. In the first days they provided security, and these special

6 units left after a few days.

7 Q. Where were they from?

8 A. They were a special unit. They were masked. You couldn't

9 recognise them.

10 Q. Were they from Omarska or somewhere else?

11 A. No, they were not from Omarska. They were some kind of special

12 unit.

13 Q. You said that of the active policemen, you once saw Kvocka.

14 A. Yes, I did.

15 Q. Did you see him later on as well?

16 A. No, I did not see him later on.

17 Q. Did you see any other active policemen whom you knew?

18 A. I knew Radic as well, and once I --

19 Q. Did you know Mladjo Radic before the war?

20 A. Yes, I did.

21 Q. What was he before the war?

22 A. He was a policeman.

23 Q. Did you socialise with him? Did you meet?

24 A. Yes, we did meet. I knew him.

25 Q. Let us make a distinction. Were you intimate friends with him or

1 just an acquaintance?

2 A. No, no. I was just an acquaintance.

3 Q. And you were born in Omarska, were you not?

4 A. Yes, from Srednja Omarska.

5 Q. Did you know him from then?

6 A. Yes, from Omarska.

7 Q. Did you see any detainees in the Omarska centre?

8 A. In the centre of Omarska?

9 Q. Where you stood guard in the hangar.

10 A. Yes, there were detainees.

11 Q. Can you describe to us what they looked like, what happened to

12 them, why they were there?

13 A. Why they were there I have no idea, but they were tired, they had

14 suffered, they were dirty. And what else can I tell you?

15 Q. Was there a smell of any kind?

16 A. Yes, there was a stench, a bad smell, and every day I had to wash

17 myself and wash my clothes to wash the smell out.

18 Q. Was there any running water; and if so, where, and did you drink

19 it?

20 A. Yes, there were taps, and we drank that water and they drank that

21 water, and there was no other water but the water that came through the

22 taps.

23 Q. Were there any toilets where the people could relieve themselves?

24 A. Yes, there were.

25 Q. Did you happen to notice or hear during your stay there that the

1 people were beaten?

2 A. Well, when those special unit people were there, then there was

3 beating. But later on, everything calmed down, when we took over.

4 Q. Did you see or hear that there were any dead?

5 A. I did hear that there were dead when those special unit people

6 were there, but not later on.

7 Q. Did you happen to see any?

8 A. I personally did not because I was in another place altogether.

9 Q. I should now like to draw your attention to the contact with

10 Mladjo Radic.

11 A. Yes.

12 Q. What was he there?

13 A. He was a policeman.

14 Q. At one point you met him.

15 A. Yes, once in his office, and we had a cup of coffee. He asked me

16 to take to his kum some food, to the hangar, and that is what I did.

17 Q. What was the kum's name?

18 A. I think he was Fazlic. Midhat Fazlic, I think. Because he was a

19 kidney patient, his kidneys were poor, and Radic said to me, "He has this

20 kidney condition. Please help," and I helped.

21 Q. Did he help any other people that you know?

22 A. Yes, he did. Whenever there was some bread left over or anything

23 else, any other food left over, I would take it to the people and they

24 would distribute it, because they were hungry and were not very strong.

25 Q. Why didn't he take this himself but asked you to do it?

1 A. Well, he was not permitted to go down there. He was upstairs,

2 doing his duty; he was by the telephone, that kind of thing. He was sorry

3 because there were a lot of people he knew there.

4 Q. What was he afraid of?

5 A. What?

6 Q. What was he afraid of? Why didn't he dare go himself?

7 A. Well, there were lots of people he knew there, lots of people from

8 Ljubija. They knew him and he said, "I can't go because I feel sorry for

9 those people. I can't go, so you please take these things instead of

10 me."

11 Q. Was he afraid to go?

12 A. Well, I don't know if he was permitted to go there.

13 Q. Why would he be afraid?

14 A. Well, he felt uncomfortable, because when you see the people from

15 Ljubija, the people he lived and worked with, he was sorry and didn't like

16 to go. He felt uncomfortable.

17 Q. You said that you saw him in an office, drinking coffee.

18 A. Yes.

19 Q. Whose office was that? What was the office used for?

20 A. Well, it was a sort of waiting room with a telephone, his office.

21 Q. Who used that office?

22 A. Everybody did.

23 Q. Did it say anything on the door of this office?

24 A. I did not see anything.

25 Q. Was it upstairs?

1 A. Yes, it was. It was on an upper story.

2 Q. Were there many people there when you saw him?

3 A. Yes, there were always lots of people passing by, going to and

4 fro.

5 Q. Were there any civilians there?

6 A. Yes, there were civilians.

7 Q. Were there any investigators from the MUP or anything like that?

8 A. Yes, there were investigators.

9 Q. I should like to clarify one point. In your opinion, could Mladjo

10 Radic order you to do anything?

11 A. No, he could not order us anything. He didn't order us anything,

12 nor did he contact us at all. He didn't have any contact with us either.

13 MR. FILA: [Interpretation] Thank you. I have no further

14 questions.

15 THE WITNESS: [Interpretation] You're welcome.

16 JUDGE RODRIGUES: [Interpretation] Would any of the other counsel

17 like to ask any questions? Mr. Simic is on his feet. Please proceed.

18 Cross-examined by Mr. K. Simic:

19 Q. [Interpretation] Good morning, Mr. Starcevic.

20 A. Good morning.

21 Q. A moment ago you said that when you were brought to Omarska you

22 met Kvocka by chance.

23 A. Yes.

24 Q. Could you tell us the name of the individual whom you said you

25 thought to be Kvocka?

1 A. How do you mean "the name"?

2 Q. What was Kvocka's name?

3 A. Kvocka, Kvocka -- I've forgotten. I can't remember.

4 Q. Did you know that Kvocka, that man Kvocka, from before?

5 A. Yes, I did.

6 Q. Where did you know him from?

7 A. From Omarska.

8 Q. What was he?

9 A. He was a policeman.

10 Q. Did he work for a long time?

11 A. Yes, he did.

12 Q. After that first meeting, you never saw him again, did you?

13 A. No, I didn't see him.

14 MR. K. SIMIC: [Interpretation] Thank you. I have no further

15 questions.

16 THE WITNESS: [Interpretation] You're welcome.

17 JUDGE RODRIGUES: [Interpretation] Any other Defence counsel? I

18 see negative signs coming from the Defence counsel. Now we have the

19 Prosecution, and it is Mr. Waidyaratne.

20 Mr. Starcevic, you will now be answering questions put to you by

21 the Prosecution.

22 Mr. Waidyaratne, your witness.

23 MR. WAIDYARATNE: Thank you, Your Honour.

24 Cross-examined by Mr. Waidyaratne:

25 Q. Witness, when you were called up to the TO, you were a driver

1 attached to the Prijedor Bank; is that correct?

2 A. It is.

3 Q. Now, when you were called up in April, were you given a uniform?

4 A. Yes, I was.

5 Q. Were you provided with a weapon, a gun?

6 A. Yes, we did get them.

7 Q. What was that?

8 A. Well, some old rifles, M-48s.

9 Q. Now, you said that you worked in the checkpoint. Where exactly

10 was your checkpoint during the month of April?

11 A. Those were village guards. We only guarded villages and we

12 checked vehicles travelling so as to prevent anybody from entering the

13 village.

14 Q. Witness, my question, please try to understand. I'm sure it is a

15 very clear question. Where was this checkpoint? Can you give us the

16 location?

17 A. In the village. In the village, in Srednja Omarska village.

18 Q. Could you tell us, thereafter, you said that you agreed to go to

19 the Omarska mine without going to the battlefield. What was the date that

20 you went to Omarska for the first time?

21 A. I think it was late May. I cannot remember the exact date.

22 Q. Who were the others who went with you to Omarska?

23 A. Why, there were some 15 or 20 of us. I cannot recall their names

24 now. All I know is that there were about 15 or maybe 20 of us. We were

25 all elderly people.

1 Q. Now, you say that you're an elderly person. But, say, ten years

2 ago, how old were you?

3 A. Well, I was about 48.

4 Q. Now, Witness, you can't remember any of those people who went with

5 you, who worked with you for more than one month and thereafter who went

6 to Omarska with you?

7 A. I remember a few of them. I remember a few of those people.

8 Q. Please give us their names.

9 A. Uros Vuceta.

10 Q. Is it Uros?

11 A. Uros, U-r-o-s. Rajko Vuceta.

12 Q. Rajko Vuceta?

13 A. Correct.

14 Q. Can you remember any other names?

15 A. Nedjo Vuceta.

16 Q. Nedjo Vuceta?

17 A. Correct.

18 Q. Now, these people also went to the Omarska camp with you; am I

19 correct?

20 A. Yes, you are.

21 Q. And they were in the same shift that you worked in the Omarska

22 camp.

23 A. No, they were not on my shift. They were relieving us or, rather,

24 I relieved them and they relieved me then.

25 Q. Did you see Radic in Omarska often?

1 A. Well, not that often because he was in a different building from

2 the one that I was in.

3 Q. Do you remember that you gave a statement to the Defence counsel,

4 Mr. Ranko Darkic, an attorney? Do you remember giving a statement?

5 A. I did give it, yes.

6 Q. In that statement you said the truth, according to your

7 knowledge.

8 A. I did.

9 Q. Now, Mr. Starcevic, when you were in Omarska, what was the shift

10 that you worked in? In whose shift did you work?

11 A. Radic's shift.

12 Q. Mr. Radic's shift. Do you remember any other persons in

13 Mr. Radic's shift?

14 A. I used to see comrade Kos too.

15 Q. What is this comrade Kos' first name? Is it Milojica?

16 A. I think so, yes.

17 Q. Now, he was also from Omarska.

18 A. He was, yes.

19 Q. He was a reservist.

20 A. Yes, he was a reservist.

21 Q. Now, where did he stand guard when he was on duty?

22 A. I could not know that because I did not see them. I saw him once

23 or twice perhaps, not more than that, and I do not know where he stood

24 guard.

25 Q. Mr. Starcevic, when you went into the Omarska camp, you said that

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1 you met comrade Kvocka.

2 A. I did, yes.

3 Q. Who is this Kvocka? How did you know him?

4 A. I knew him from civilian times and I knew him as a policeman.

5 Q. And he was an active-duty policeman; am I correct?

6 A. Yes.

7 Q. Now, you gave a statement, which I mentioned earlier. Did you say

8 it was Miroslav Kvocka?

9 A. Yes, yes. Miroslav, Miroslav. It had slipped my memory. Yes.

10 Q. And you knew him before the war?

11 A. Yes, I did.

12 Q. Mr. Starcevic, when you met Miroslav Kvocka, what exactly did he

13 tell you?

14 A. He told me, "You look after yourselves. You must fend for

15 yourselves. I have nothing to do with you."

16 Q. Did he ask you to organise yourself?

17 A. No, he did not say anything.

18 Q. Did he say that, if necessary, to speak to any other guard who had

19 been there before you?

20 A. Another guard came who had already been there, and took us there

21 and told us that we would take over shifts from them and they would take

22 shifts from us, so that we should come to stand guard there.

23 Q. Mr. Starcevic, I'm asking as to what Mr. Kvocka said. Did he

24 ask you to speak to any other guards who had been there before you?

25 A. He said, "You manage for yourselves," and at that moment a guard

1 came and said, "You are relieving us."

2 Q. When Mr. Kvocka said, "You manage yourselves," what exactly did

3 you understand by that? Did you go to -- after that discussion, did you

4 go to a place? Did you go to the hangar building?

5 A. We went to the hangar, and a Territorial member met us there,

6 said, "You come with us," and the policeman had nothing to do with us.

7 Q. Now, Witness, you said that you were on the side of the petrol

8 pump.

9 A. Yes.

10 Q. Was it on the side of the "white house"?

11 A. No.

12 Q. Where was it?

13 A. No. It was opposite the "white house". From the petrol pump,

14 from pista.

15 Q. When I --

16 MR. WAIDYARATNE: Please bear with me, Your Honour.

17 [Prosecution counsel confer]

18 MR. WAIDYARATNE: Your Honour, I intend to show the witness a

19 photograph of the Omarska camp to exactly point out as to where he says

20 this petrol pump is.

21 [Prosecution counsel confer]

22 MR. WAIDYARATNE: Your Honour, may I have your permission? This

23 exhibit, which has been marked and admitted, 3/93, I would seek your

24 permission to show this to the witness and to be placed on the ELMO.

25 Thank you, Your Honour.

1 Q. Now, Mr. Starcevic, please have a look at the photograph which is

2 there. That is a photograph which is taken from a model of the Omarska

3 camp. And could you point out as to where -- could you see those

4 buildings in that photograph?

5 A. I see it, yes.

6 Q. Now, can you point out the place -- the "white house" which is

7 there, which is in the photograph.

8 A. Excuse me?

9 Q. In the photograph.

10 A. [Indicates]

11 Q. Now, where was the petrol pump?

12 A. Here, more or less.

13 Q. On the other side. On the other side of the hangar building; is

14 that correct?

15 A. Yes. Yes, that is correct.

16 Q. Thank you. Not on the side of the "white house", but on the other

17 side of the big building?

18 A. On the other side, on the other side.

19 MR. WAIDYARATNE: Thank you.

20 Thank you, Your Honour.

21 Q. Now, you were inside the hangar building when you did your guard

22 duty?

23 A. Yes.

24 Q. Were you there -- you served in the Omarska camp for almost two

25 months or three months. Were you there during this entire period, inside

1 the hangar building?

2 A. Yes, I was.

3 Q. And what time did you come to work, and to whom did you report?

4 A. Well, I would arrive around 6.00 or 7.00, take over from my

5 friend. He would go home. And that is how we alternated.

6 Q. And what time did you normally leave the workplace, the mine?

7 A. As soon as my relief arrives, I go home.

8 Q. And what were you asked to do there?

9 A. We were asked to guard, to see that nobody gets in and that nobody

10 gets out.

11 Q. Now, guard in the sense -- whom were you guarding? Was it the

12 detainees?

13 A. Both the detainees and the machinery.

14 Q. And who told you this, as to what you should do?

15 A. From those who were before me, who had already been assigned

16 there.

17 Q. Was it the guards?

18 A. The guards.

19 Q. Now, did you know about any other shift leaders who were there?

20 Did you know any shift leaders?

21 A. I did not, no.

22 JUDGE RODRIGUES: [Interpretation] Mr. Fila.

23 MR. FILA: [Interpretation] The witness never once said the words

24 "shift leader." Not only that he did not know any shift leaders, he

25 never used the word. During his examination-in-chief, not once were the

1 words "shift leader" used.

2 JUDGE RODRIGUES: [Interpretation] Mr. Waidyaratne.

3 MR. WAIDYARATNE: Thank you, Your Honour. That's why I -- when I

4 realised that he didn't do, I used --

5 MR. FILA: [Interpretation] The time is already up.

6 MR. WAIDYARATNE:

7 Q. Was anybody in charge of the shifts?

8 A. No.

9 Q. You spoke about Mr. Radic calling you to the office in the

10 administration building.

11 A. He didn't call me. I was just passing by and he invited me to

12 drop by and have a cup of coffee.

13 Q. How many times did you go to the office?

14 A. I did not go to the office. I did have a cup of coffee there

15 once, but I didn't really go there to see him often.

16 Q. Now, Mr. Starcevic, you said that you passed by the administration

17 building; is it correct?

18 A. Yes, when I went to have my lunch.

19 Q. Where did you have your lunch?

20 A. We had our lunch in the administration building. Below the

21 administration building there was a restaurant.

22 Q. So you used to go there almost daily to have your lunch?

23 A. Yes.

24 Q. Now, this office that you spoke of, in which floor was this

25 office?

1 A. Second floor, I believe.

2 Q. That was above the restaurant?

3 A. Yes. I think so, yes.

4 Q. When you went and -- when you met Mr. Radic, who else? Were you

5 alone with Mr. Radic or were there any other people in that office?

6 A. At that occasion I was alone with Radic because he had invited me

7 in.

8 Q. Now, when he was alone, he made this suggestion to you to take the

9 food to Mr. Fazlic; is that correct?

10 A. It is. He asked me. He said, "Will you please take this food to

11 him, because he has a kidney complaint. So come, please; help him. Take

12 this food to him."

13 Q. Did he have the food with him at that time?

14 A. No, he did not.

15 Q. It was on some other occasion that he wanted you to take the food;

16 is that correct?

17 A. No.

18 Q. When did he ask you to take the food?

19 JUDGE RODRIGUES: [Interpretation] Mr. Waidyaratne, will you please

20 take care of the time you have.

21 MR. WAIDYARATNE: Yes, Your Honour. I have one more minute. I

22 would appreciate it if I am given that opportunity, Your Honour. I would

23 beg you to have that one minute.

24 JUDGE RODRIGUES: [Interpretation] I do not think it is one minute,

25 but, yes, I give you that one minute. Yes, please, move on.

1 MR. WAIDYARATNE: Thank you, Your Honour.

2 Q. Now, did you know that Mr. Fazlic was in the hangar building at

3 the time that Mr. Radic asked you for that request?

4 A. Fazlic was where I was; in the hangar.

5 Q. Did you know at the time that Fazlic was in the hangar building

6 when Mr. Radic asked you to help him, or did Mr. Radic tell you that

7 Mr. Fazlic was in the hangar building?

8 A. No, because I knew Fazlic. I knew Fazlic.

9 Q. So you knew Fazlic was detained in the hangar building; is that

10 your position?

11 A. I knew Fazlic and Fazlic complained to me, telling me that he had

12 this kidney problem.

13 Q. Did Mr. Radic ask you to look after Mr. Fazlic?

14 A. Well, yes --

15 JUDGE RODRIGUES: [Interpretation] Mr. Waidyaratne, I do not know

16 if the Prosecution has a watch. But if you do have a watch, I believe

17 that your minute lasts longer than 60 seconds; isn't that so?

18 MR. WAIDYARATNE: There are no more questions, Your Honour. I

19 conclude. The witness had not answered that last question. Thank you.

20 After he finishes.

21 JUDGE RODRIGUES: [Interpretation] Yes.

22 MR. WAIDYARATNE:

23 Q. Witness, could you kindly answer that last question, please. Did

24 Mr. Radic ask you to look after Mr. Fazlic?

25 A. Well, yes, he did, because he was a very ill man.

1 MR. WAIDYARATNE: Thank you, Your Honour. Thank you, sir.

2 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Waidyaratne.

3 Mr. Fila, do you have any further questions?

4 MR. FILA: [Interpretation] Only to clarify a couple of points.

5 Re-examined by Mr. Fila:

6 Q. [Interpretation] How many times did you see Radic during your stay

7 in Omarska?

8 A. In Omarska, you mean, or in the camp?

9 Q. In the camp.

10 A. Well, I saw him a few times. I cannot really say.

11 Q. When you say "a few times," two or three times? Is that it?

12 A. Yes.

13 Q. Could you conclude on those two or three occasions if he had any

14 position in the camp?

15 A. No.

16 Q. You say that you were on Radic's shift. Does that mean that you

17 were on the same shift with him on those two or three occasions? Does it

18 mean that you were there at the same time?

19 A. Yes. He was on my shift.

20 Q. When you use the word "reservist," a reservist said to you this

21 and that, do you mean a reserve Territorial member, as you were yourself?

22 A. Yes.

23 Q. So a reservist, a Territorial member, told you to go and guard

24 whatever, wherever you then went to guard.

25 A. Yes.

1 Q. Did those reservists and policemen have anything in common?

2 A. No.

3 Q. This petrol pump that was shown you, now, how far is it; 100

4 metres, 200 metres?

5 A. About 200, 250 metres.

6 Q. You mean from the hangar?

7 A. Yes.

8 MR. FILA: [Interpretation] Thank you. I have no further

9 questions.

10 JUDGE RODRIGUES: [Interpretation] Mr. Simic, do you have any

11 additional questions? No? Very well.

12 Judge Riad.

13 JUDGE RIAD: [Interpretation] Thank you.

14 Questioned by the Court:

15 JUDGE RIAD: Mr. Starcevic, good morning.

16 A. Good morning.

17 JUDGE RIAD: Before you went to Omarska, how far did this

18 acquaintance with Mr. Radic exist? Were you simply acquaintances or

19 friends?

20 A. We were acquaintances.

21 JUDGE RIAD: You were acquaintances. Now, when you were in the

22 camp, you would pass by his office and he would invite you to have

23 coffee. This office was the office of the administrator? What was this

24 office?

25 A. Just an ordinary room.

1 JUDGE RIAD: There were many offices like that? Everybody had

2 their office? Every guard had an office?

3 A. I wouldn't know that.

4 JUDGE RIAD: You wouldn't know that. You said that there were

5 also investigators coming into the office. Was this office used for

6 investigation too, or were they coming to give reports?

7 A. No. I do not know where the investigators were. I do not know

8 where they conducted their investigations, because I had coffee with Radic

9 only once and I do not know anything else.

10 JUDGE RIAD: What did you see them doing in this office? You said

11 they would be coming in. For coffee?

12 A. Where? I don't understand the question. Which office?

13 JUDGE RIAD: The office of Mr. Radic where you went for coffee.

14 You said that the investigators would be coming in. What would they be

15 doing in this office?

16 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila.

17 MR. FILA: [Interpretation] Mr. President, my apologies, but Judge

18 Riad is mentioning investigators and the witness said that he was alone

19 with Radic and had coffee with him. He never said it was Radic's office;

20 he never said that the investigators went into that office. I do not know

21 what to say. My apologies, but I do not think we should put into the

22 witness' mouth something that he had not said.

23 JUDGE RODRIGUES: [as interpreted] Mr. Fila, the witness repeated

24 several times, that is correct.

25 JUDGE RIAD: I heard he said lots of people would pass by the

1 office and investigators would go in, and the transcript is there. If the

2 witness says that, then I have to ask him.

3 A. The only time I saw the investigators would be when they arrived

4 in a bus. But I never saw where they went, what room they entered. And I

5 do not know the offices. The only office I had been into was Radic's, and

6 after that, I never went there again.

7 JUDGE RIAD: The investigators did not come into this office. You

8 said before that they came into this office, and I noted it down. Did you

9 see them in the office?

10 A. No, no, no, I did not. I did not see them do that.

11 JUDGE RIAD: You said that Mr. Radic had to stay upstairs and he

12 would not take the food to his friend Fazlic because he stayed upstairs,

13 doing his duty. What did you mean by "doing his duty"?

14 A. Well, I mean being on duty upstairs, like me being on duty in the

15 hangar.

16 JUDGE RIAD: His duty was upstairs, you mean?

17 A. Yes.

18 JUDGE RIAD: What would be his duty, in your opinion; to sit in

19 the office or to walk around? What was his duty?

20 A. I do not know what his duties were.

21 JUDGE RIAD: You said his duty kept him upstairs.

22 A. I do not know that. Did he have to or not, I don't know.

23 JUDGE RIAD: You spoke that you worked in Mr. Radic's shift.

24 A. Yes.

25 JUDGE RIAD: What would be his role in this shift? Why do you

1 call it Radic's shift?

2 A. Well, just like that, I cannot really say. It could be anyone. I

3 said that I was on Radic's shift because we went together, as if we would

4 be going to work. But he went in that direction and I went to the

5 hangars.

6 JUDGE RIAD: I mean, was he commanding the shift? Was he

7 directing the shift?

8 A. No, no, no.

9 JUDGE RIAD: Now, you said that you were just simply acquaintances

10 before, but he asked you to take the food -- to take the medicine to

11 Mr. Fazlic. Would he ask any guard to do such things?

12 A. Well, I don't know if he'd ask any guard to do that. Or did he

13 ask me simply because I was in the hangar? Because I was there and also

14 Midhat was in the same place, Midhat was there too.

15 JUDGE RIAD: Did he know that you were a friend of Midhat Fazlic?

16 A. I did not know.

17 JUDGE RIAD: But were you acquainted with Fazlic? Were you a

18 friend of his?

19 A. Yes. We had met in the camp; we came to know each other down

20 there.

21 JUDGE RIAD: Thank you very much.

22 JUDGE RODRIGUES: [Interpretation] Thank you, Judge Riad.

23 I should like to avail myself of this opportunity to make a

24 correction in the transcript. No, it's not really a correction.

25 On page 35:18, at the end of Mr. Fila's intervention, what I said

1 was that the witness will answer, and the transcript in English says:

2 [In English] "Mr. Fila, the witness repeated several times, that

3 is correct."

4 [Interpretation] I did not say that. What I said, and I repeat it

5 to make it quite clear, I said, "Mr. Fila, the witness will answer," and

6 that is it. We already discussed this. We have here this record.

7 All right. I now give the floor to Judge Wald.

8 JUDGE WALD: Witness, you said that during the month of April, you

9 were working or guarding at a checkpoint in Omarska centre, or in

10 Omarska. Now, during that period, did you have anybody in command over

11 you? Did you have anybody that told you what to do or gave you orders?

12 This is at the checkpoint now, not at the camp. Did you have a chain of

13 command that you were in at the checkpoint - not the camp; at the

14 checkpoint in Omarska - somebody that told you what to do, gave you

15 orders, you reported to, at the checkpoint?

16 A. Yes.

17 JUDGE WALD: Okay. Now, you told us, I believe, that when you

18 came to the camp -- and I'm reading from your statement, but I believe

19 your testimony was, in conformity:

20 "We didn't have a commander or anyone over us, and all we had to

21 do was keep to agreements, come regularly and punctually, and be

22 responsible for our own organisations."

23 In essence, I believe you said this morning that one of the

24 Territorial reservists who was already on duty told you what the shift

25 was, what the hours were, and you agreed to take over his post at the

1 hangar. Is that basically right?

2 A. Yes, that is right.

3 JUDGE WALD: Okay. Now, did that particular Territorial

4 reservist, or the person you made this agreement to take over this post,

5 did he stay in the camp after you came and took over his post or did he

6 leave?

7 A. He left.

8 JUDGE WALD: He left. So if nobody -- okay. If nobody was over

9 you or you didn't have a commander, as you said, that all you had to do

10 was keep to the agreement and come regularly and punctually, what would

11 happen if you didn't? If the Territorial reservist was no longer there

12 and there wasn't anybody over you, could you, in effect, change your post,

13 go somewhere else, not come punctually, not come regularly? Did that

14 happen? If the people that made these agreements on the first day left

15 and your people replaced them, nobody was there to enforce the agreement;

16 is that right? So did everybody just come every day, even though there

17 was nobody to make them do it?

18 A. One had to attend. One had to come and take over from somebody

19 else. So you had to come. You had to be present. You couldn't allow

20 anyone to stay on guard for 24 hours. I mean, everybody has to go home

21 once in a while.

22 JUDGE WALD: When you say you had to, what does that mean? I

23 mean, you had to. Was that just something you felt within yourself or

24 that something would happen to you, somebody would do something if you

25 didn't do that?

1 A. Well, that is the wartime labour obligation and also human

2 obligation, to relieve another man.

3 JUDGE WALD: So that if some days somebody didn't show up on their

4 guard post -- I mean, maybe they were sick or maybe something happened and

5 somebody didn't show up on their guard post, what would happen? Who would

6 take over somebody's guard post that just didn't come?

7 A. Well, he would have to find a friend and ask him to go in his

8 stead, or somebody else from the same shift, or anyone, or from a

9 different shift.

10 JUDGE WALD: So it was up to the -- you're telling us it was up to

11 that guard to make his own arrangements for a substitute; nobody else

12 would order anybody to do it in his place. Is that what you're saying?

13 A. Yes, I do.

14 JUDGE WALD: Okay. When you came on your shift, did you check in

15 with anybody, like a duty officer or anybody, say, "I'm here," or not?

16 A. No.

17 JUDGE WALD: No. There was no duty officer that you checked in to

18 to say that you were there?

19 A. No.

20 JUDGE WALD: Okay. Now, was there anybody -- if you were inside

21 the hangar shift, the prisoners couldn't stay there all the time. I mean,

22 they went out to lunch and they had to go to the bathroom, I assume, at

23 certain times. There were certain reasons why they could go outside the

24 hangar. How would you know that, or how would you know it was all right

25 to let the prisoners go out a certain time? Did anybody else come and

1 say, "We want these prisoners to come with us now," other guards, other

2 soldiers would say to you? Well, how did you know when it was time for

3 them to go to lunch, or what if they had to go to the bathroom?

4 A. Well, naturally, they would let us know when the lunch is and then

5 people would all go to lunch. If the weather was nice, they could go out

6 into the yard and have a walk and get some fresh air, things like that.

7 JUDGE WALD: Nobody came and said at lunchtime, "Your people can

8 come to lunch now. A group of your people can come to lunch"? They just

9 went when they felt like it?

10 A. No. From the restaurant, somebody would come. When the lunch

11 would be ready, they would come and tell us, "Yes, people can come to have

12 lunch."

13 JUDGE WALD: Would that be a guard, or who from the restaurant?

14 A. Cooks, as a rule.

15 JUDGE WALD: So people who were just civilian workers in the

16 restaurant would come and say -- would go all around the camp and say,

17 "Okay, it's lunchtime, your people can come now"?

18 A. Yes.

19 JUDGE WALD: Okay. If something happened while you were on shift,

20 I mean, if a disturbance of any kind came, what would you do? Who would

21 you go to? If a prisoner tried to escape, just say, or two prisoners got

22 in a fight or something unusual happened on the shift and you weren't able

23 to take care of it yourself, where would you go? What would you do?

24 A. I would have to inform the guards, but there were no such

25 occasions in my case.

1 JUDGE WALD: Who? But you must have had in your mind, as a good

2 reservist, what you would do if one arose. Who would you go to to get

3 help?

4 A. There were no problems, and I don't really know who I would go to.

5 JUDGE WALD: So you --

6 A. Because --

7 JUDGE WALD: So you weren't prepared, in your own mind -- if some

8 kind of disturbance or emergency happened, you didn't know what you would

9 do, how you would get help?

10 A. I didn't know what I would do, nor did I get any such orders.

11 JUDGE WALD: Right. And nobody ever -- not orders, but nobody

12 ever told what you should do if something happened? If, for instance, you

13 were told -- you did tell us that somebody at some point said your job was

14 to prevent other people from coming in or these prisoners from getting

15 out; is that right? I mean, that was your idea of what your job was, to

16 make sure nobody got -- that shouldn't came in or the prisoners didn't get

17 out? Is that fair to say what you thought your guarding job was?

18 A. Yes, that is the job of a guard.

19 JUDGE WALD: All right. Now, if a person tried to escape -- I

20 know they didn't on your shift, but if a person tried to escape, you, as a

21 policeman, would have been caught between running after the person to try

22 to prevent them and still guarding all the rest of the people in the

23 hangar. You must have -- well, let me just say: Did you have any plans?

24 A. I am not a policeman.

25 JUDGE WALD: Well, you were -- okay. You were a reservist guard

1 or -- what would you say you were? How would you describe what you were?

2 A. I was a guard.

3 JUDGE WALD: Okay. But as -- all right. As a guard, you didn't

4 have -- you had not formulated in your own mind any -- what you would do

5 in the circumstance where you were caught between trying to run after a

6 prisoner and remained to guard the remaining prisoners?

7 A. What I would do? I would probably let that one man go and guard

8 the others. I wouldn't run after him.

9 JUDGE WALD: Okay. My last question: You said, I believe, that

10 at one point you thought - you thought - Mr. Radic wanted you to take food

11 to his friend in the hangar because he wasn't permitted to go down where

12 the detainees were. If nobody -- if there was no commander in the station

13 and Mr. Radic was just, in your view, an ordinary policeman, but there was

14 nobody over anybody, who would have told him? Who did you think could

15 have told him that he couldn't go down among the detainees? Where would

16 he have gotten any such prohibition from?

17 A. I don't know that.

18 JUDGE WALD: All right. Thank you.

19 JUDGE RODRIGUES: [Interpretation] Thank you very much, Judge Wald.

20 Mr. Starcevic, we have no further questions for you. Thank you

21 very much for coming here, and we wish you a safe journey home. I'm going

22 to ask the usher to accompany you out.

23 THE WITNESS: [Interpretation] Thank you.

24 [The witness withdrew]

25 JUDGE RODRIGUES: [Interpretation] We're now going to have a

1 half-hour break.

2 --- Recess taken at 11.14 a.m.

3 --- On resuming at 11.48 a.m.

4 JUDGE RODRIGUES: [Interpretation] Please be seated.

5 I see Mr. Fila on his feet.

6 MR. FILA: [Interpretation] Mr. President, the Defence calls Stanko

7 Bejatovic, our expert witness, an expert on the Criminal Code, and he will

8 be cross-examined by the Prosecution using 20 minutes of their time.

9 JUDGE RODRIGUES: [Interpretation] So, Mr. Usher, please bring in

10 the witness.

11 MS. SOMERS: Your Honour, may I ask a question of the comment?

12 JUDGE RODRIGUES: [Interpretation] Yes, Ms. Susan Somers.

13 MS. SOMERS: Thank you. I'm not clear of the distinction, "20

14 minutes of their time." This is part of the Defence case and we simply

15 are asking for a bit of cross. I'm not quite clear what the distinction

16 in time was there. Perhaps I could ask.

17 JUDGE RODRIGUES: [Interpretation] I think this was an idea

18 suggested to us by Mr. Fila, that is, that he is offering the report as

19 the examination-in-chief and then you will cross-examine for 20 minutes,

20 and after that Mr. Fila will have the chance to ask additional questions.

21 Why? I think you understand it very well, why this has been

22 decided. You objected to the admission of the report without

23 cross-examination, so the Chamber felt that you should have an occasion to

24 cross-examine on the points which prompted your objection. You have 20

25 minutes for clarification, but you will begin immediately, as you have the

1 report already. Have I answered your question?

2 MS. SOMERS: I think perhaps I wasn't clear. I understand that we

3 have 20 minutes, and we're very grateful to the Chamber for giving us the

4 opportunity. It was "of our time" -- it's not being ticked off from time

5 that we have available for our own case. In other words, this is, as part

6 of the Defence's case, a standard cross-examination - that's all I'm

7 trying to clarify - and it's limited to 20 minutes. That's my

8 understanding; is that correct? Thank you, Your Honour.

9 JUDGE RODRIGUES: [Interpretation] Yes.

10 MR. FILA: [Interpretation] Mr. President, as you know, I have two

11 more days left, Thursday, Friday, and you owe me one day. So all I have

12 is three and a half days which I will not use up. But all I wanted to say

13 was that the Prosecution has 20 minutes so that it shouldn't be 40

14 minutes. But I didn't want to be too explicit about it. That was my

15 meaning.

16 JUDGE RODRIGUES: [Interpretation] Very well. Let us have the

17 witness brought in, please.

18 [The witness entered court]

19 JUDGE RODRIGUES: [Interpretation] Good morning, Mr. Bejatovic.

20 Can you hear me?

21 THE WITNESS: [Interpretation] Yes, I can.

22 JUDGE RODRIGUES: [Interpretation] You are now going to read the

23 solemn declaration given to you by the usher, please.

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

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

1 WITNESS: STANKO BEJATOVIC

2 [Witness answered through interpreter]

3 JUDGE RODRIGUES: [Interpretation] Please be seated.

4 THE WITNESS: [Interpretation] Thank you.

5 JUDGE RODRIGUES: [Interpretation] Mr. Bejatovic, you are here to

6 answer questions which will be put to you by the Prosecutor. So, in a

7 sense, your report represents the examination-in-chief, and we have given

8 the opportunity to Madam Prosecutor 20 minutes to ask you questions to

9 clarify certain points.

10 So, Ms. Susan Somers, you have the floor now.

11 Cross-examined by Ms. Somers:

12 Q. Professor Bejatovic, the cases before this Tribunal for which you

13 have prepared expert reports, would you be kind enough to tell us, please,

14 which they are?

15 A. Before I answer this question, I should like to make a brief

16 remark. In the report that I filed, I saw that there was an error under

17 paragraph 8, second sentence. It has been misinterpreted that a prison

18 punishment for rape is "around the maximum." It should say "around the

19 minimum."

20 THE INTERPRETER: We apologise. We do not have a copy.

21 A. In preparing my report, I relied on the legal practice of

22 present-day Yugoslavia, Serbia and Montenegro, and the former Yugoslavia

23 linked to the criminal offence of rape. So I have reviewed the cases of

24 rape in former Yugoslavia and present-day Yugoslavia, and on the basis of

25 that analysis, I have compiled my report.

1 MS. SOMERS:

2 Q. Thank you for the clarification. Could you tell us, please, which

3 cases before the entire Yugoslavian Tribunal you have provided reports

4 for?

5 A. I only had one report in the Foca case, which was terminated, I

6 think, a month ago. That is the only case in which I participated before

7 this Tribunal.

8 Q. As a testifying witness, yes. As a consultant, no other cases at

9 all either, as a non-testifying consultant? That's it, just one?

10 A. Yes, yes. No, I have not been a consultant.

11 Q. Thank you. Then I just want to make sure, for the order of

12 things, the expert statement that you provided in the Kunarac case, which

13 is referred to as the Foca case, was dated 3 July 2000, filed 4 July, and

14 that was the sole report, as I understand it from your testimony, that you

15 filed, other than in this case; correct?

16 A. Yes. Yes.

17 Q. Now, you also gave live testimony in the Kunarac case. I believe

18 it was 11 September 2000. Do you recall coming to the Chamber on behalf

19 of -- I believe one of the Defence counsel had asked you to come in, and

20 you gave live testimony in front of Judges Mumba, Hunt, and Pocar; is that

21 correct?

22 A. Yes. Yes.

23 Q. You were asked -- principally, the concern of the Prosecution in

24 that case was the aggravating factors which were considered in practice

25 before the courts of the former Yugoslavia. And I would like to ask

1 if -- when you were in the cross-examination phase of your testimony, do

2 you recall being asked about certain factors that were not spelled out in

3 your particular report? And I would specifically ask if you recall a

4 question to you by the Prosecutor about ethnically-based motives as an

5 aggravating factor in rape in the former Yugoslavia in sentencing.

6 The question was: "However, an ethnically-based motive would be

7 considered an aggravating factor, wouldn't it, when it comes to

8 sentencing?" Your answer was: [As read] "Certainly. If these motives

9 were to be established, that is, for these motives the crime was

10 committed, if this were to be proven, that is, that those motives -- that

11 these were the motives with which this was committed."

12 So ethnically-based motives behind the act of rape would in fact

13 be considered an aggravating factor under the practice in the former

14 Yugoslavia; that is correct?

15 A. I said that, but the following should be borne in mind: In the

16 judicial practice of former Yugoslavia and present-day Yugoslavia linked

17 to rape, such motives were never established in a single case; only if,

18 through evidence, it were to be established that such motives existed

19 would that apply, but such motives were never established in the former

20 Yugoslavia or in the present-day Yugoslavia. And this is something that I

21 wish to underline. There were no such motives ever established in any

22 case of rape.

23 Q. However, should they have been, or if they are in another

24 case -- well, should they have been established, then ethnically-based

25 motives would have been, as I understand your testimony, an aggravating

1 factor. That would just be a yes or a no, if you can help us, please.

2 A. I'm sorry. I need to add that, according to Yugoslav Criminal

3 Code and judicial practice, no individual factor can be judged in

4 isolation. They are always judged in combination with all the other

5 factors and circumstances. But if there was evidence to confirm that

6 particular element alone, then only then would that apply. But according

7 to Yugoslav criminal law, all the circumstances are judged together and in

8 combination.

9 Q. Yes, of course. I think that's understood from your paper. But

10 it was -- what I'm trying to understand from you is that the answer is:

11 Yes, if everything else was looked at as it should be, then

12 ethnically-based motives would be among the mix of aggravating factors to

13 be considered. That's essentially what I'm asking.

14 A. On condition that that is proven, that such motives existed.

15 Q. Thank you very much. Of course.

16 Another question that was asked of you, and I wanted to make sure

17 it was perfectly clear, was: Would it be an aggravating circumstance if

18 the crime of rape were committed against a very weak or vulnerable person,

19 physically weakened, or a detainee, for example? And your answer

20 was -- Sorry. In fairness, let me give you the entire scenario.

21 You were asked: "Beside the mitigating and aggravating factors

22 you have already listed and told us, would it be an aggravating factor if

23 the crime was committed against a particularly vulnerable person, for

24 instance, detained persons?" Your answer: "If that were to be

25 established, that would certainly be an aggravating circumstance."

1 Then the question was again put to you: "And would it be an

2 aggravating circumstance if the person - I'm sorry - if the crime was

3 committed against a very weak person, physically weak person?" And your

4 answer: "Well, you see, that is estimated in each and every particular

5 case. If it were to be proven that the person concerned, because of his

6 physical capacities, was not in a position to offer any resistance and did

7 not offer any resistance --"

8 THE INTERPRETER: Counsel, slow down, please.

9 MS. SOMERS: I'm sorry, Interpreters.

10 Q. "... then that is to be taken into account. However, in view of

11 his or her physical constitution, if he or she was in a position to offer

12 resistance, then that would also be taken into account." And then you go

13 on below to say: "If a victim, for physical reasons, could not offer

14 resistance for various reasons, then that is different."

15 MS. SOMERS: For counsel and the Chamber, that is on the

16 transcript from Kunarac at page 5391 and the page before it, 5390.

17 Q. Do you recall that particular interaction between you and the

18 Prosecutor?

19 A. Yes, I do.

20 Q. And so for purposes of our understanding, the fact that an alleged

21 victim might be either vulnerable because of detention or physical

22 condition would also be an aggravating factor to be taken into account

23 with the mix of aggravating factors. Would that be a fair statement,

24 Doctor?

25 A. Yes, but you keep underlining one fact which cannot be accepted.

1 You keep insisting on one factor in isolation from others. A person may

2 be physically very weak and that may not be considered an aggravating

3 circumstance because that fact must be considered in combination with all

4 the other factors. What I'm trying to say, that in the judicial practice

5 of former Yugoslavia and present-day Yugoslavia, we did have cases when

6 the victims of such a crime were physically extremely weak, but that fact

7 was not considered an aggravating circumstance. Why? Because even such

8 victims, in quite a number of cases, by their conduct and certain other

9 circumstances, contributed to the commission of that crime, so that

10 generally speaking, that fact in itself cannot be considered an

11 aggravating factor.

12 Q. Your comment about the detained person, the status of being a

13 detained person, if it were considered with all other factors, which I

14 think you've indicated is a must in an analysis of mitigating factors,

15 then that also would be an aggravating factor if properly viewed in

16 context; is that correct?

17 A. It may, but need not. It need not necessarily be an aggravating

18 circumstance.

19 Q. It could be considered -- it could be assessed to see whether it

20 is an aggravating circumstance. Perhaps I should be a bit more clear. It

21 may or may not, but it could be assessed and considered a possible

22 aggravating circumstance, depending?

23 A. You see, according to our legislation - and not only the Yugoslav

24 Criminal Code, but according to most Criminal Codes - no individual

25 circumstance when sentencing can a priori, in itself, be considered an

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1 aggravating or a mitigating circumstance. In one case it may be one, and

2 in another, another. So we cannot give a clear answer as to what would be

3 the case in a particular case.

4 Q. Yes. Doctor, Professor, I'm not asking you to say that any one;

5 I'm saying that among the factors could be considered would be detention

6 status, among the factors, as a possible aggravating factor. Yes or no?

7 I mean, this was your testimony. Do you stand by it?

8 A. That factor has to be taken into consideration but in the context

9 that I have described.

10 Q. I wanted to ask about -- I'm sorry. Did you want to say something

11 else, Doctor?

12 A. In that connection, I wanted to underline another fact. As an

13 individual who is also president of the association for criminal law, I

14 have monitored certain such cases that occurred in the territory of

15 Bosnia-Herzegovina, and let me tell you one of the conclusions I reached.

16 I was told on one occasion that in a collection centre where there were

17 quite a large number of detained, relatively young male and female

18 persons, and where they were detained for up to a month, I was told by the

19 detainees that there were cases when those persons themselves initiated

20 certain sexual relationships with the guards who were in those collection

21 centres. So you see, that also is a factor that has to be taken into

22 consideration.

23 Q. Professor Bejatovic, when you were asked to prepare this paper by

24 counsel for Mr. Radic - I want to clarify something - were you asked to do

25 a study in connection with rape in peacetime or rape in a wartime, armed

1 conflict setting? Do your comments, your observations, in your paper

2 reflect a peacetime setting or a wartime setting for this particular case?

3 A. My report applies to the regulations on this criminal act and the

4 judicial practice of the former Yugoslavia and the present-day Yugoslavia,

5 and that was clearly stated in my report.

6 Q. The reason I ask is that in the Kunarac case you were asked about

7 whether or not you had considered rape in connection with, I believe, the

8 genocide statutes, which are wartime related, and you indicated that you

9 were told -- the question was:

10 Q. In this particular case we are dealing with here in

11 this courtroom, we are talking about war crimes. You are

12 aware of this, aren't you?

13 A. No. I was told that it is the crime of rape that is

14 being considered here. That is what I was told. Not war

15 crimes. I have been informed that this is a classical

16 crime of rape, that that is what the indictment says.

17 And the crime of rape is something quite different from

18 Article 142 of the Criminal Code of Yugoslavia.

19 Now, that confusion that may or may not have persisted during the

20 Kunarac case, was it clarified to you by Mr. Fila, or whichever counsel

21 you dealt with, that your report would deal with situations involving

22 armed conflict, wartime?

23 A. We didn't have any such discussions. But I would like to say the

24 following in that connection: According to our criminal legislation, and

25 as far as I know, all comparative Criminal Codes do not provide for rape

1 as a war crime. In view of that, I don't think such an act, such a crime,

2 can be considered a war crime.

3 Q. Have you been involved with any cases yourself in the former

4 Yugoslavia where persons were prosecuted for rape of detainees or

5 prisoners during time of conflict?

6 A. Not actively. But through the media, through various scientific

7 meetings, we did discuss instances of rape that occurred during the

8 conflicts in the territories of the former Yugoslavia.

9 Q. In the testimony in Kunarac, then, you did become aware through

10 cross-examination that the thrust of the issues before this Tribunal deal

11 with rape in an armed conflict setting; that's correct? Just through the

12 cross-examination, it was made clear to you that we were talking about a

13 different scenario than, perhaps, the peacetime setting.

14 A. No. You see, I do not view that in that way. We are talking

15 about the crime of rape. The only thing is is that it happened in the

16 territory of the former Yugoslavia while a conflict was ongoing. Myself

17 or my colleagues never analysed rape as a war crime, as an act against

18 international law.

19 Q. So you have had no real experience with that, and when you came to

20 this Tribunal, it was the first time that you had effectively been asked

21 to make this type of discussion; in fact, it was cross-examination in

22 Kunarac that brought this to your attention.

23 A. It is correct to say that not only do I have no such experience,

24 but no one else in the territory of the former state. Rape is a domestic

25 crime and not an international crime, and therefore no one can have

1 experience with it.

2 Q. I was looking through your -- excuse me. Before I go on to that,

3 there have been questions, though, in Bosnia-Herzegovina, which, of

4 course, we're not looking at as former Yugoslav law, where detainees [sic]

5 in district military courts have been found guilty of rape in 1992 actions

6 involving the soldiers of the army of Republika Srpska. Are you familiar

7 with those cases? I think you were asked about them during cross in

8 Kunarac. In principle, there has been some discussion but not necessarily

9 under former Yugoslav law.

10 A. There was rape in the former Yugoslavia and today, and that is

11 evident from my report. But not once was it established that rape was

12 committed for ethnic or some other such reasons.

13 Q. You had mentioned cases where detainees in collection centres or

14 in some other form of detention had possibly initiated sexual relations

15 with guards. Has it been the position of your courts --

16 A. Yes.

17 Q. -- thank you. Has it been the position of the courts in the

18 former Yugoslavia that it is appropriate for policemen who have a

19 relationship of, as it were, keeper to the detainees to have sexual

20 relations with the detainees or prisoners? What has been the experience

21 in the former Yugoslavia?

22 A. No, there were no such cases in the former Yugoslavia. You didn't

23 understand me correctly. The cases that I have referred to were not

24 processed, but people have spoken to me about it from their experience in

25 life, not from court proceedings. Rape of persons in detention and

1 persons held in custody were never found in the former Yugoslavia or the

2 present-day Yugoslavia.

3 Q. Professor Bejatovic, the paper which you submitted on behalf of

4 accused Radic was submitted January 30th, 2001. Now, that was after you

5 testified in Kunarac. I went through the list of aggravating or possible

6 aggravating factors and I did not notice the factors that you were asked

7 about in Kunarac, such as detention status or -- I'm sorry,

8 ethnically-motivated crime. Am I correct that those were not listed in

9 this report filed in January even though they were discussed before the

10 Tribunal, another Chamber of the Tribunal, in September? Those are not

11 listed in your particular report before this Chamber?

12 A. I compiled my report on the basis of an analysis of the judicial

13 practice of the former Yugoslavia and the present-day Yugoslavia, and as I

14 have already said, no such circumstances existed.

15 Secondly, in writing this report, I did bear in mind the

16 discussions in the Foca case. But in my report, I did not intentionally

17 want to take it into consideration for two reasons: First, to discuss

18 something in detail, one must have at one's disposal all the relevant

19 evidence from the case, which I don't have; secondly, as far as I know,

20 there is an assumption of innocence until a sentence becomes effective.

21 Therefore, we cannot talk about that particular case as having been

22 definitively judged, and that is why I did not analyse it in my report.

23 Q. So the list on page 5 in the English of your --

24 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers.

25 MS. SOMERS: Have I got two minutes or am I out?

1 JUDGE RODRIGUES: [Interpretation] You have, I think, already used

2 at least three minutes over your time.

3 MS. SOMERS: I'm sorry.

4 JUDGE RODRIGUES: [Interpretation] I also deducted the time that

5 the professor took to make corrections in his report. I keep insisting.

6 Do you have a watch or not?

7 MS. SOMERS: I do.

8 JUDGE RODRIGUES: [Interpretation] Surely there's someone in your

9 team who can help you manage your time, Ms. Susan Somers. So your last

10 question now, please.

11 MS. SOMERS: Yes. Thank you very much, Your Honour. I'm sorry.

12 My watch is perhaps not in sync with the rest of the Chamber's.

13 Q. Professor, this is the last question --

14 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers, I won't let

15 that pass. There's a clock here and all we have to do is look at it. I

16 don't control the time on the basis of my watch. There's this clock; it

17 is the same clock that we are all looking at. So please proceed.

18 MS. SOMERS: Thank you, Your Honour. I do apologise. I am five

19 minutes behind. I apologise for that on my own.

20 Q. I'm sorry, Professor, the very last question is: The list of

21 factors, then, that you did include on the English page 5 of your report -

22 I won't list them out; they're there for everyone to see - you chose not

23 to add the factors which you specifically were asked about in Kunarac,

24 such as the detainee status and the other issue of ethnically motivated.

25 That was a deliberate choice? That's my last question.

1 A. My assignment in writing this report was to contribute to the

2 practical implementation of Article 24 of this Statute. In accordance

3 with the provisions of that article, all I can write in my report and

4 testify about is based on the positive laws of the former Yugoslavia and

5 present-day Yugoslavia and on the basis of judicial practice. We know

6 what judicial practice is. So the Foca case cannot be taken into

7 consideration because it is a case that has still not been terminated.

8 MS. SOMERS: Thank you, Professor.

9 JUDGE RODRIGUES: [Interpretation] Thank you very much, Ms. Susan

10 Somers.

11 Mr. Fila, any re-examination?

12 MR. FILA: [Interpretation] Just one point.

13 Re-examined by Mr. Fila:

14 Q. [Interpretation] Could you please describe the crime of rape

15 according to the domestic law of the former SFRY and all the five

16 republics; what the perpetrator needs to do, what applies to the victim?

17 In just a few sentences, please.

18 A. In response to the question of the Defence, I wish to state the

19 following: The crime of rape, in present-day Yugoslavia, has been

20 addressed in an identical manner as it was prescribed in the former

21 Yugoslavia.

22 Despite the fact that each of the republics that used to

23 constitute the former Yugoslavia have regulated the crime of rape with

24 their own laws, they are identical. The only difference was the passive

25 subject in the Criminal Code of Slovenia.

1 So it would be correct to say that this crime, in its basic form,

2 in former and present Yugoslavia, is regulated in such a way: A crime

3 exists if a male person, by use of force or threat, compels a female to

4 submit to sexual intercourse by force and inflicts serious bodily injury

5 upon her.

6 Therefore, according to the former and present law, the active

7 subject must use force or threat towards the passive subject or a threat

8 against a close relative of that passive subject, and that force must be

9 such as to create the impression of the victim that the crime will be

10 committed. Also, that passive subject must resist as far as possible,

11 showing that she does not comply even tacitly, that the person does not

12 accept such treatment.

13 So let me underline that this is the definition that applies in

14 the laws of the former Yugoslavia and all the newly-created states.

15 Q. Is it similarly dealt with in all other domestic legislations?

16 A. As far as I know, yes. The only difference is with respect to

17 this passive subject, because some Criminal Codes envisaged that a passive

18 subject may even be a wife. This is only exceptional. The other

19 difference is the maximum penalty. As for all the other characteristics,

20 they are almost identical in civilised societies.

21 MR. FILA: [Interpretation] Thank you very much. I have no further

22 questions.

23 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Fila.

24 Judge Fouad Riad.

25 Questioned by the Court:

1 JUDGE RIAD: Professor Bejatovic, good morning.

2 A. Good morning. Yes, I can hear you.

3 JUDGE RIAD: I would like to have the benefit of your experience

4 and knowledge to enlighten me on a further question. You mentioned that

5 rape against a vulnerable person or a physically weak person could be an

6 aggravating circumstance, and you mentioned that judgements do

7 not -- would not accept that if the victim contributed to the commission

8 of the crime. Now, what would you call a contribution of the victim to

9 the crime? I have in mind a case of a person where there is a great

10 discrepancy of force, whether in prison or elsewhere, where the victim

11 complies because the situation of the discrepancy does not leave any space

12 for something else. Would you consider that as contribution?

13 A. Your Honour, that can be interpreted in that way. But on the

14 other hand, we must bear in mind - and this is what we see from practice,

15 not only in Yugoslavia, but in practice throughout the world - that a

16 passive subject is -- an individual, if they are weak and appear weak, can

17 give cause for the perpetration of that criminal act. So in a situation

18 of that kind, we must look at the behaviour of that passive individual and

19 look at all the circumstances.

20 And I want to go back to the case that I mentioned a moment ago to

21 the Prosecutor, when I talked -- discussed this situation in the former

22 Yugoslavia with respect to these cases. It is normal for me to know that,

23 for example, if in a collection centre - and there were collection centres

24 of this kind, many of them - if there are people who are 20 years old, 30

25 years old, and spend one month there or two months there, and in many of

1 the collection centres the conditions weren't so bad, it is normal that

2 young individuals of this kind, after a month or two, have the desire for

3 sexual intercourse. So we must look at that situation within that context

4 as well.

5 JUDGE RIAD: Good. Now, you mentioned that there should always

6 be, if I understood rightly, use of force or threat. Now, does it need to

7 be a positive, active use or an implicit threat? There is a threat if you

8 are in a superior position and the victim knows what could happen to her

9 without even proceeding? What do you think? Should it be a real, actual

10 threat or an implied threat, potential threat?

11 A. The threat must be actual, real, and it must be continuous in

12 time. So that threat, according to our Criminal Code, must last until the

13 crime is carried out, until we consider that a crime has been committed.

14 And I have described what we mean by the crime being committed. Now, if

15 this threat stops before the crime has actually been committed, and after

16 the threat the individual does not give resistance, as provided by law, to

17 the perpetrator, then a crime does not exist. So the threat must be real,

18 actual, and continuous until the crime has been considered to have been

19 committed --

20 JUDGE RIAD: Even if --

21 A. -- completion of the crime.

22 JUDGE RIAD: Even if the victim is vulnerable, as you said, or in

23 a total situation of inferiority and weakness?

24 A. I said what I meant by "weak" and "vulnerable" and the

25 circumstances. These are all factors that must be assessed for each

1 individual case and gone into individually.

2 JUDGE RIAD: Thank you very much.

3 A. May I add just one more point, please. In Yugoslavia there is the

4 practice - and I think it is a good practice, and it exists not only in

5 Yugoslavia but elsewhere - two or three times we take students to visit

6 the detention centres, prisons, and very often the students - and these

7 are people we're talking about, 21, 22, young people - when they visit

8 institutions where the women are the inmates, there are various indices,

9 and this would provide an answer to your question.

10 JUDGE RIAD: Thank you very much.

11 JUDGE RODRIGUES: [Interpretation] Madam Judge Wald has the floor.

12 JUDGE WALD: In order to help me to understand better how the

13 Yugoslavia law interprets force or threat of force, which you have said is

14 a prerequisite or a material requirement for rape, consider the following

15 situation: If somebody is in prison, detention, or under the at least

16 physical authority of someone else, say a guard, and the guard comes to

17 the prisoner and says, "I have the power to get you out of here more

18 quickly than you will otherwise if you submit to me," but there is

19 no -- there's no threat of beating or that sort of thing, but, "If you

20 want to get out of here, if you want to see your family again, then submit

21 to me," would that be considered rape under Yugoslavian law?

22 A. In a case of that kind, there is no rape as a crime, according to

23 Yugoslav law, because for the crime of rape to exist, the resistance on

24 the part of the passive subject, the woman victim, must be actual,

25 serious, and continuous, as I said before. In your case, there is no such

1 resistance and therefore no crime of rape, according to our law.

2 JUDGE WALD: Okay. You have answered my question, but I would

3 add: I do not think that is by any means universal law.

4 JUDGE RODRIGUES: [Interpretation] Thank you very much, Madam Judge

5 Wald.

6 Professor, when you say that the resistance must be

7 continuous - what is the term? - a quo and ad quem?

8 A. The passive victim -- the criminal act does not consider to have

9 been completed -- the passive victim must not agree to it. And according

10 to criminal law, and not only Yugoslav criminal law, a crime has been

11 committed only when there is penetration of the male sex organ into the

12 female sex organ. Up until that point, that alleged victim or passive

13 subject must resist, must put up resistance to the best of their physical

14 abilities. If, once the act has been committed, she ceases to give

15 resistance or does not give resistance, then there is no crime of rape;

16 the crime of rape is not recognised in those cases. And that is one of

17 the reasons why in our judicial practice, as in the judicial practice of

18 the former Yugoslavia, you have a relatively large difference between the

19 accused -- people accused of rape and people actually found guilty and

20 sentenced for rape.

21 JUDGE RODRIGUES: [Interpretation] I don't think I understood you

22 properly, Professor. The continuousness that you say must exist, the

23 continuousness in the victim's resistance that you talked about, where

24 does it start and where does it end? Where does the resistance start and

25 where does the resistance end for us to be able to consider that violation

1 and rape has taken place?

2 A. Resistance must take place at the precise moment when any act has

3 been taken by the active subject vis-à-vis the passive subject with the

4 aim of performing this crime. So the moment that woman is a victim, when

5 the passive subject has understood that she is going to be raped, she must

6 start setting up resistance immediately in the manner I described, and

7 that resistance -- she must keep up that resistance until the act has been

8 committed. If this passive subject offered resistance but the resistance

9 was not continuous, that is to say, it ceased at the last moment, when the

10 two sexual organs were conjoined, then there is no crime of rape. And

11 that is the united stand of Yugoslav criminal theory and judicial

12 practice, not only in this present Yugoslavia but in the former Yugoslavia

13 as well.

14 JUDGE RODRIGUES: [Interpretation] You spoke about physical

15 resistance, Professor. Does the law of ex-Yugoslavia or the present

16 Yugoslavia consider other types of resistance, not only physical

17 resistance?

18 A. Yes, of course. If the passive subject was not able to set up

19 physical resistance, then there should be all other types of resistance

20 which are in line with the capabilities of the passive subject and

21 correspond to the passive subject's make-up. So it doesn't only mean

22 physical resistance.

23 Theoretically speaking, we can think of other forms of

24 resistance. For example, a young man and a young woman going out in a car

25 together. They drive in a car together and they come into a situation and

1 the young woman cannot give physical resistance, but she can call help,

2 she can call out, "Help," she can resort to other forms of resistance.

3 But the resistance, as I say, must be adequate and suited to the

4 circumstances. If the passive subject does not offer any kind of

5 resistance within these limiting frameworks, then there is no crime of

6 rape.

7 JUDGE RODRIGUES: [Interpretation] Let us move on to another

8 aspect. Imagine, please, Professor, that somebody has read a piece of

9 paper, a newspaper, which states that in order for rape to have been

10 committed, the crime of rape to have been committed, the victim must offer

11 physical resistance. In the meantime, he finds himself in a situation in

12 which the victim does not offer physical resistance but says, "I don't

13 want to. I don't wish to." In the meantime, the active subject has in

14 his mind that there must be physical resistance and he consumes the act;

15 he goes ahead with the act. Is that rape or is it not?

16 A. We cannot consider the crime of rape to have taken place if the

17 passive subject just says, "I don't want to," without resorting to

18 anything else. For the crime of rape to exist, not only according to our

19 own criminal legislation, the passive subject must set up adequate

20 resistance. If the victim just says, "I don't want to," and doesn't take

21 any other measures of resistance, then it is clear that there is no crime

22 of rape, and that is normal. And nobody, I think, in Yugoslavia, and

23 anybody else, would question a situation of that kind, would consider it

24 as such.

25 JUDGE RODRIGUES: [Interpretation] Therefore, can we conclude that

1 from that point of view, if the passive subject, if the victim says, "I do

2 not want to" but does not offer physical resistance, does that mean that

3 she is in fact saying, "Yes, I want to"?

4 A. Yes, if she was able to offer resistance. If she was able to

5 offer resistance and has just said, "I don't want to," then it's normal

6 that in fact that would imply what you have just said.

7 JUDGE RODRIGUES: [Interpretation] Another question, Professor.

8 What does Yugoslav legislation have to say on active and passive subject

9 with respect to sex?

10 A. In addition to the crime of rape, the Yugoslav legislation

11 provides for other forms of criminal acts, crimes, contrary to nature,

12 crimes contrary to nature.

13 JUDGE RODRIGUES: [Interpretation] I apologise, Professor. What I

14 wanted to ask was this: Let us consider this hypothesis and its curiosity

15 on my part. For example, where the victim or the passive subject is a

16 witness, can we inverse the situation and have violation where the passive

17 subject is a man? We have considered the matter where the passive subject

18 is the woman. What about the other sex?

19 A. Criminal legislation does not provide for cases of that kind,

20 although there have been theoretical discussions. But for the time being,

21 the law does not provide for that, because we say that it is when -- the

22 law provides for when a male, a man, does this act towards a female, and

23 we considered it in wedlock. For the moment, the male cannot be the

24 passive subject of rape, for the moment, as the law stands at present.

25 JUDGE RODRIGUES: [Interpretation] Very well. Thank you. I think

1 Madam Judge Wald has an additional question.

2 JUDGE WALD: Thank you for indulging me. I just have one question

3 to help me understand, again a hypothetical. If a guard, in a situation

4 of detention, says to the prisoner, "I want you to have sex with me, and

5 if you resist, I'm going to beat you," and the prisoner goes ahead and

6 submits, does not resist, thereby bringing down a beating, is that rape or

7 is she under a duty to resist even at the cost of a promised beating?

8 A. In a situation of that kind, she has the duty to resist for the

9 crime to be rape.

10 JUDGE WALD: Even if she's going to be beaten and has been told

11 and has reason to believe from past experience that his threat of a

12 beating can be brought down? Is that really Yugoslavian law?

13 A. On the basis of what does she know that she will actually be

14 beaten?

15 JUDGE WALD: Because she may have seen other people in the same

16 situation beaten in the past.

17 A. No, there were no cases of that kind, as far as I know. But in

18 that particular case, she would have to offer some resistance, some sort

19 of resistance.

20 JUDGE WALD: Thank you.

21 A. Therefore, the norms of Yugoslav criminal law are clear there on

22 that point. The situation would be quite different if that

23 individual - and this is a hypothesis. Let's take the hypothesis - if she

24 were tied, if she were bound, her arms, her legs, her mouth, then she

25 would not be able to set up resistance of any kind. But in all other

1 situation she can offer resistance, and she is duty-bound to offer

2 resistance to prevent the crime from taking place, the act from taking

3 place.

4 JUDGE WALD: What if he says, "If you don't submit to me, I'm

5 going to kill you," and he's a guard; he's got a pistol in his belt. She

6 has to take that chance of being killed?

7 A. Even in a case of that kind she must assess whether he would

8 actually do it or not.

9 JUDGE WALD: Okay. Thank you.

10 A. The fact itself, only that fact, cannot be taken into

11 consideration for the crime to be rape.

12 JUDGE RODRIGUES: [Interpretation] I would like to insist on one

13 point in this matter. I don't know if I understood the answer properly.

14 So even if there is the threat of death, of a killing, if somebody -- if

15 the active subject threatens to kill the passive subject -- let us say a

16 man is threatening a woman, he is threatening her with death, to kill her

17 if she does not accept to have sexual relations with him, and if the woman

18 really believes this, that she's going to die unless she consents, if she

19 does not offer physical resistance, is that rape or is it not, Professor?

20 Is that considered rape or not?

21 A. I personally feel that this is a theoretical construction. Viewed

22 from the aspects of theory, that could be so, but that is theory, the

23 realm of theory. It is an assumption, a hypothesis.

24 JUDGE RODRIGUES: [Interpretation] No. I apologise for

25 interrupting you, Professor. This is not a theory. It does happen in

1 real life. In many circumstances, a man says to a woman, "Unless you

2 consent, I will kill you."

3 A. Yes, Your Honour, but there are many other situations, and not

4 only in our own legal practice, but others. A man says to a woman, "I'm

5 going to kill you. I'm going to throw you out of the window," from the

6 fifth or sixth floor, and she doesn't submit, so therefore -- and he

7 doesn't do anything. So that -- you cannot prove intent there. So this

8 passive subject must weigh the situation up, weigh the danger up, weigh

9 the threat up, and, in keeping with that entire situation, to see whether

10 he actually means it or not. Because practice tells us otherwise. There

11 are many cases where a young girl goes to a young man's flat and says she

12 doesn't consent, and he threatens to throw her out the window and nothing

13 comes of that threat.

14 JUDGE RODRIGUES: [Interpretation] I have another question. Let us

15 look at this problem from the other side, from another angle. If I

16 understood you correctly, you said, when giving the definition of rape, I

17 think you said that for rape there must be force exerted, and you also

18 said menace, threat. What I want to know is: Do you have to have force

19 and threat or just one of those two, for the definition, in your Criminal

20 Code?

21 A. I did not speak about my own definition, I spoke about the legal

22 definition. Therefore, according to our own laws, it is threat or force,

23 not both. Threat or force. But both must be of the kind that I

24 mentioned. So it is not cumulative, it is either/or, either one or the

25 other. That is the legal formulation, it is not my own definition and

1 formulation. It is the law.

2 JUDGE RODRIGUES: [Interpretation] Okay. I think we ought to wind

3 up. But Judge Fouad Riad has an additional question. Otherwise, we would

4 be discussing this forever. We are a Tribunal, we are not a faculty of

5 law. That is why we'll have to put a time limit. Otherwise, we could go

6 on discussing this question for a long time. I did myself ask the

7 question you were answering as a professor, but if you were a judge, this

8 would be a hypothesis.

9 Judge Fouad Riad, you have the floor.

10 JUDGE RIAD: I just want to clarify a point, because in your

11 answers, you were concentrating on the intent of the person committing the

12 act. Now, this intent, the victim cannot definitely, sufficiently know

13 it. But would it be enough if the circumstances give a likelihood of the

14 seriousness of the threat?

15 A. Intent is one of the elements which, according to our Criminal

16 Code, is taken into account when sentencing is weighed up. But that

17 intent is analysed with respect to all the circumstances related to a

18 case. So perhaps the victim cannot gauge the intent itself at the point

19 in time.

20 If a man has raped just one woman, then that is one intent; if he

21 has raped more than one woman, then the intent is quite different. So

22 intent or motive must be ascertained on the basis of an analysis of the

23 case in its entirety, with all its factors and circumstances. What is

24 important for our Criminal Code is that no circumstance that I spoke about

25 in my report, and no circumstance from the Criminal Code viewed from the

1 aspects of the Criminal Code, is provided for in advance as aggravating or

2 mitigating. The character that this factor takes on in each individual

3 case is a matter of that concrete case and circumstance.

4 But what is meritorious for the Court is to see how they are

5 behind, to analyse the case as a whole with all the factors and

6 circumstances - not only those stipulated in Article 41 of the Criminal

7 Code but all the other circumstances which were characteristic for that

8 particular case - and on the basis of this all-embracing, comprehensive

9 analysis will a judgement and sentencing take place.

10 JUDGE RIAD: Thank you.

11 JUDGE RODRIGUES: [Interpretation] I see Mr. Fila on his feet.

12 MR. FILA: [Interpretation] Mr. President, let us just

13 differentiate between something. To your question, whether the victim

14 must be a woman, the answer was something else. There is a crime when a

15 man rapes another man but it is not called rape. There is another term

16 used for that case, when it is a man violating a man, if that is at all of

17 assistance to you.

18 Perhaps because of the translation, the interpretation, it is this

19 serious threat. If the professor allows me, I can answer. If serious

20 threat existed that there would be bodily harm, then, of course, the crime

21 of rape is recognised. But it is up to the Court to assess whether the

22 threat is serious or not serious. That is up to the Court.

23 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila, we shall have to

24 finish because otherwise we will enter into a discussion about threat,

25 whether it is serious, semi-serious, or whatever. Thank you, Mr. Fila,

1 for your assistance on that point.

2 Mr. Professor Bejatovic, we have no further questions to ask you.

3 We are satisfied with the clarifications you made, explanations you gave.

4 We thank you for coming here and wish you a lot of good deliberation and

5 actions when you go back to your country.

6 THE WITNESS: [Interpretation] Thank you too.

7 But may I be allowed to add something to what Mr. Fila said? And

8 you interrupted me.

9 The Yugoslav Criminal Code, in addition to the crime of rape where

10 the passive subject can only be a woman, there is another criminal act --

11 two other criminal acts where the passive subject may be a man. But that

12 is a subject apart, it is a separate area. If you need to, we can speak

13 about that. So the sexual freedom of the man from this aspect --

14 JUDGE RODRIGUES: [Interpretation] No, Professor, we are satisfied

15 with what we have heard so far. Thank you for coming, and the usher will

16 escort you out of the courtroom.

17 THE WITNESS: [Interpretation] Thank you too, Your Honour.

18 [The witness withdrew]

19 JUDGE RODRIGUES: [Interpretation] Mr. Fila, I think it is time for

20 a lunch break. That is what you were going to suggest?

21 MR. FILA: [Interpretation] Yes.

22 JUDGE RODRIGUES: [Interpretation] We accept your suggestion, and

23 we'll adjourn for 50 minutes. Please take a look at the clock in the

24 courtroom, and the 50 minutes is based on that clock.

25 --- Luncheon recess taken at 12.53 p.m.

1 --- On resuming at 1.45 p.m.

2 JUDGE RODRIGUES: [Interpretation] You may be seated.

3 Right. Mr. Fila.

4 MR. FILA: [Interpretation] Your Honours, the Defence calls its

5 last witness, the psychiatrist, Dr. van den Bussche, and Ms. Somers will

6 be able to use my 20 minutes.

7 JUDGE RODRIGUES: [Interpretation] Yes, but not abuse them.

8 [The witness entered court]

9 JUDGE RODRIGUES: [Interpretation] I can see that you can hear me

10 now. Good afternoon.

11 THE WITNESS: Good afternoon.

12 JUDGE RODRIGUES: [Interpretation] You will now read the solemn

13 declaration which the usher will give you.

14 WITNESS: BERNARD VAN DEN BUSSCHE

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

16 whole truth, and nothing but the truth.

17 JUDGE RODRIGUES: [Interpretation] You may be seated, Doctor. Very

18 well. Dr. van den Bussche, you are here to provide some clarifications

19 relative to your psychiatric finding. Mr. Fila, who is the Defence

20 counsel, has submitted your report as your testimony, and we shall now

21 proceed to your cross-examination, which will be conducted by Ms. Somers.

22 Thank you very much for coming and accepting to answer these questions.

23 Ms. Somers.

24 Cross-examined by Ms. Somers:

25 Q. [Previous translation continues]... English, that is fine with

1 you?

2 A. Yes, that is fine.

3 Q. Tell us, please: When you received the assignment to do a joint

4 report, was it your understanding that you would interview the subject

5 Radic jointly or simply come to joint -- to conclusions in consultation

6 one with the other?

7 A. Well, first of all, we didn't know each other, and we had a very

8 limited time to perform the assessment. So after the initial phone call

9 from me to Belgrade, I heard that Ms. Najman was coming to -- my

10 colleague, Ms. Najman, was coming to Holland about within a week. But

11 then at the last minute I got another call that she was delayed, so we had

12 only six days left to perform the assessment together. And we made the

13 first appointment to meet each other in front of the --

14 Q. I'm sorry, Doctor, to interrupt you. My question was: Was it

15 your understanding that your joint report would be a report involving a

16 simultaneous joint interview of the subject --

17 A. Joint written, joint written, but --

18 Q. But not simultaneous interview of the subject? Just yes or no,

19 please.

20 A. The written question is joint written report.

21 Q. And separate, independent interviews with the accused; correct?

22 A. Yes.

23 Q. Now, that did not happen, did it?

24 A. Well, in a certain way it happened. She -- Ms. Najman saw

25 Mr. Radic the day before and she asked questions - I don't know which

1 one - and she was together with me when we talked again.

2 Q. But at no time did you, one-on-one with Radic, have your

3 interview; Dr. Najman was always present. Is that correct?

4 A. No, that's not correct. She did -- she talked with Mr. Radic

5 alone and she talked together with me, but she didn't ask any questions.

6 I asked the questions and she was listening. And because I asked the

7 questions in Dutch, so the translator interpreted the questions in

8 Yugoslavian and she was following -- listening to what I was asking.

9 Q. But she was always --

10 A. She wasn't intervening.

11 Q. She was always with you in a room when you talked with Radic?

12 A. Yes.

13 Q. You never had a one-on-one, independent interview without --

14 A. She --

15 THE INTERPRETER: Could counsel please slow down. Could you

16 make pauses, please, between question and answer.

17 MS. SOMERS:

18 Q. [Previous translation continues]... Radic. You had never met

19 alone with Radic; is that correct? Just yes or no, please.

20 A. I haven't been alone with Radic.

21 Q. Tell me, please: You indicated on one of the pages of your report

22 that you had had contact -- on page -- it looks like - let me see - 4 of

23 the report, you indicated that, at the top of it, in English:

24 "Since this was a medical, psychiatric assessment, I, Bernard van

25 den Bussche, consulted the medical service of the prison by telephone in

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13 and English transcripts.

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1 order to verify the medical problems experienced by the defendant."

2 You were aware, then, that you could have contact to communicate

3 with the medical service of the detention facility; is that right?

4 A. Yes.

5 Q. Now, you also indicated in your report --

6 THE INTERPRETER: Could the counsel and the witness please make a

7 pause between question and answer.

8 MS. SOMERS:

9 Q. [Previous translation continues]... the position, but that you

10 were aware there was a nurse there and at some point you spoke with a

11 nurse; is that right?

12 A. No. I tried to --

13 MS. SOMERS: I'm sorry. I'm too fast.

14 JUDGE RODRIGUES: [Interpretation] Would you please slow down,

15 Ms. Somers, please, because there are interpreters here working, even

16 though you speak the same language. So the interpreters need you to make

17 a pause between the question and an answer.

18 MS. SOMERS:

19 Q. I'm sorry, Dr. van den Bussche. You did not consult directly with

20 the medical doctor, Valke?

21 A. I tried to contact the medical doctor, but he wasn't there, and I

22 had to finish my report in two days, so the only possibility was to talk

23 with the nurse.

24 Q. On page 12 of your report you have made a comment that says:

25 "His mood was slightly agitated and indignant, but with an evident

1 somber undertone. His emotions were close to the surface. When we

2 started to talk about his wife and children, he began to cry. To a

3 certain extent there were and are suicidal thoughts."

4 I turn your attention to page 6 of the report, where Radic says to

5 you:

6 "My wife has been here twice. Once the Red Cross paid for her to

7 come, my son too, and once a cousin. What can I say? How are they going

8 to survive? It is only thanks to Ms. Vera Petrovic, a psychiatrist with

9 whom I have regularly spoken, that I am still alive. Otherwise I would

10 have hanged myself. I've thought of it several times. What's holding me

11 back?"

12 Now, Dr. Najman, your colleague, also submitted a report in which

13 she, on page 6 of hers - and I hope you have read it - indicated likewise

14 there are discrete test signs that could indicate the danger of suicide.

15 Two people have made this observation. Did you report these findings to

16 the medical service? Is there a report that you submitted to the medical

17 service about ideas concerning suicide which you describe in the present

18 tense, on page 12 of your report: "To an extent there were and are"?

19 A. Well, I didn't phone or contact the medical doctor because, in my

20 opinion, there are suicidal thoughts but not in a very severe way.

21 Q. It appears from your report that you have taken at face value

22 almost everything that Mr. Radic may have told you. Is there a particular

23 reason that you did not take at face value this talking about suicide?

24 How did you distinguish what's to be accepted and what is not?

25 A. I have taken nothing at face value, because that's also not

1 possible, because I don't have collateral data. I almost have not any

2 collateral data besides the general indictment. So that means that when I

3 have to give -- to tell you what Mr. Radic is saying, those are his words,

4 and I'm not in the possibility to check those words, because I can't talk

5 with family, I don't see witness accounts; I only have the general

6 indictment.

7 Q. Did you mention to Dr. Najman your concerns or your observations

8 about the suicide? Did you speak about those?

9 A. We talked about that, yes.

10 Q. Did she tell you about --

11 A. But can I explain?

12 Q. No. Did she tell you about a patient whom she also worked with in

13 this Tribunal named Slavko Dokmanovic? Did she mention Dokmanovic?

14 A. Yes.

15 Q. And did she tell you that he, in fact, committed suicide?

16 A. Yes.

17 Q. And after having learned that, you took no action whatsoever to

18 notify the officials, the Chamber, the registry; is that correct?

19 A. That's not completely correct. I told you before it was my

20 opinion -- there is a difference between somebody who is very suicidal or

21 not, and it's my profession to check if somebody is very severe suicidal

22 or not. And besides that, I had signs that Mr. Radic had a good relation

23 in the United Nations Detention Unit with the psychiatrist, and he told me

24 about that. So if I would have the impression that he would be very

25 severe depressed -- and I said in my report that he has not a severe

1 depression. He has dysthymia. That means there's a mild depression. So

2 if I would say he has dysthymia and he is very suicidal, I would say

3 something very wrong.

4 Q. Now, that psychiatrist is Dr. Petrovic, about whom Mr. Radic spoke

5 to you; is that right?

6 A. Yes.

7 Q. Are you aware from Dr. Najman that that was the psychiatrist who

8 testified about the condition of Slavko Dokmanovic before he committed

9 suicide?

10 A. No.

11 Q. I would like to ask you, please, you indicated that you didn't

12 have -- you never had access to many materials. I think you just called

13 them collateral materials. You had an indictment?

14 A. I had only the general indictment, yes.

15 Q. Now, were you aware that at the time you interviewed Mr. Radic,

16 that the trial had been going on for some two months and that there was

17 witness testimony?

18 A. Yes, but -- yes, but I find all the witness testimony -- I

19 received more information from the Registry -- I received more information

20 from the Internet than from the Registry.

21 Q. You're suggesting that there's no value to the testimony of people

22 who claim to have been the object of various acts?

23 A. Within -- we had only six days to perform the report. That means

24 that we received the general indictment, that we have to talk with the

25 accused, and that we have to write a joint written report. That means

1 that the value of our report is limited. You are asking me questions

2 about the limitations of our report. So I can't do more than I have done

3 within the limited time this Court has given me to perform the report.

4 And there are many restrictions to my report.

5 Q. Six days are how many working hours, please? A number.

6 A. How many? I worked about 60 hours -- I worked about 60 hours in

7 six days.

8 Q. Are you suggesting --

9 A. But it's not enough time.

10 Q. Are you suggesting that, according to professional standards, 60

11 hours is not sufficient time to conclude what you had to do in concert

12 with another mental health professional? Is that what you're telling us?

13 A. Yes, that's what I'm telling you.

14 Q. Thank you. Tell me, please, did you ask to see the videotape of

15 the record of interview given by Mr. Radic to an investigator of this

16 Tribunal not too long after his arrest? Did you ask to see that?

17 A. I didn't know that there was a videotape.

18 Q. You have testified in other cases in this Tribunal - Jelisic, for

19 example - haven't you?

20 A. Yes.

21 Q. You know the procedures of this Tribunal, do you not?

22 A. In a certain extent.

23 Q. Did you make any effort to try to get ahold of the direct

24 examination of Mr. Radic that he gave at the very beginning of --

25 THE INTERPRETER: Could you slow down, please.

1 MS. SOMERS: I'm sorry.

2 A. I tried to get as much possible information and I asked the

3 Registry to give me all kinds of relevant information. So I am -- that's

4 what I did.

5 Q. So your sole source of information was Mladjo Radic himself and,

6 apparently, the indictment; would that be it?

7 A. Yes, that's right. That's correct.

8 Q. Now, tell me, please, the conclusions --

9 MS. SOMERS: I apologise to the interpreters. I'm speaking very

10 rapidly because of time constraints. I will slow down.

11 Q. The conclusion which you came to at the end of your report, on

12 page 12, was that conclusion a diagnosis contained in the tool which you

13 indicated you used called the DSM-4, which is Diagnostic and Statistical

14 Manual of Mental Disorders, fourth edition?

15 A. Yes, that's correct.

16 Q. So you're indicating that the conclusion which you came to, which

17 was Mr. Radic was a man -- let's see. How is it phrased? "The wrong man

18 in the wrong place at the wrong time." Is that found in the DSM-4?

19 A. No. I tell you, first of all, there is an error in the

20 translation of the -- of my Dutch version to the English one, because in

21 my Dutch version, I wrote in English "an ordinary man at the wrong place

22 at the wrong time," and not "the wrong man." That's first of all. So

23 that's an error. I wrote "an ordinary man," and that's crucial.

24 Q. Is that in the DSM-4?

25 A. That's not in the DSM-4. And the DSM-4, I write about dysthymia.

1 Because an ordinary man is not a person who has a disorder.

2 Q. You call it dysthymia. Is it dysthymic disorder you're referring

3 to? Is that what you're talking about?

4 A. Yes. It's a mild form of depression.

5 Q. Now, Dr. Najman used not the DSM-4, she used a system, I think

6 it's called --

7 A. The ICD-10.

8 Q. Yes, the ICD-10, which is from the World Health Organisation, a

9 very different analytical tool, diagnostic tool; correct?

10 A. Not a very different diagnostic tool. In all our handbooks, there

11 is -- the DSM-4 and the ICD-10 are mixed, so there is about 80 per cent

12 overlap, 20 per cent not. But in regard to dysthymia or dysthymic

13 disorders or personality disorders, they are the same, both in the

14 national diagnostic systems.

15 Q. So you used separate diagnostic tools and came to a conclusion

16 that you got only through the information given to you by Mladjo Radic,

17 within the presence of Ana Najman, who is culturally and linguistically

18 familiar with Radic? Is that how it is, as you use the term, in a

19 nutshell?

20 A. No. We used the same diagnostic instruments. There was no

21 difference between the diagnosis she made and I made.

22 Q. On page 13 of your report, essentially what you do is indicate to

23 the Chamber, because this is for whom this report is intended, "I do not

24 have the exact answer" - and the question, of course, was how ordinary men

25 can become ruthless war criminals - "I do not have the exact answer. All

1 I can do is recommend reading on this matter with which you are probably

2 familiar." And you proceed on page 13 to give a reading list.

3 Is this a profession -- is a typical, for you, professionally

4 rendered opinion or diagnosis, responsive to what the Registry asked you

5 to produce? Is this how you always do it?

6 A. No, no. I just gave -- this is not a typical reading list. These

7 are just a few of the books of a typical reading list. But I mentioned

8 them only -- I mentioned only these five books because they focus a little

9 bit on the subject of "ordinary man," but they don't focus on the overall

10 problem.

11 Q. Can you tell me, please, did you do your own testing, or did you

12 rely on the testing of Ana Najman?

13 A. I did my own testing. But we are not two of one kind, we are two

14 of a different kind. So that means that my instrument is the clinical

15 interview and her instrument is far more the psychological testing. What

16 you do afterwards is to resemble your clinical, professional interview, or

17 my clinical, professional interview, you discuss it, compare it with her

18 testing. So we tried to do our job independent of each other, and then

19 after discussing, you try to write a joint written report.

20 Q. Are you suggesting that what you did was a structured, clinical

21 interview in accordance with professional standards?

22 A. Yes, because that's my profession since about 15 years. And I'm

23 the quality manager of the forensic assessments in Holland. I've

24 performed about 1.000 forensic assessments. We also discussed this matter

25 last year at the World Psychiatric Association Congress in Madrid, and I

1 discussed it with my colleagues of the American Association for Psychiatry

2 and Law, and they all had some ethical questions about the limited time

3 and possibilities we were given by this Court to perform our job.

4 MS. SOMERS: No further questions. Thank you.

5 JUDGE RODRIGUES: [Interpretation] Very well. Thank you.

6 Additional questions, Mr. Fila?

7 MR. FILA: [Interpretation] Yes.

8 Re-examined by Mr. Fila:

9 Q. [Interpretation] I heard this quick cross-examination, and what I

10 should like to know, in the end, is whether Dr. van den Bussche accepts

11 this report as a joint report drawn by him and Mrs. Najman, and whether he

12 still stands by all that the report says.

13 A. Yes.

14 MR. FILA: [Interpretation] I do not have any further questions.

15 JUDGE RODRIGUES: [Interpretation] Thank you.

16 Judge Riad, do you have any questions?

17 JUDGE RIAD: [Interpretation] Yes, Mr. President.

18 Questioned by the Court:

19 JUDGE RIAD: Dr. van den Bussche, good afternoon.

20 I just understood at the end of your testimony that -- you

21 mentioned the American Association for Psychiatry and Law, they all had

22 some ethical questions about the limited time and possibilities you were

23 given by this Court to perform your job. What were these ethical

24 questions?

25 A. Well, all my colleagues were a little bit amazed by the fact that

1 we had to do the job within the limited period of six days, because in a

2 regular -- in a regular court case in one of the countries like Europe --

3 in Europe or in the States, a forensic expert is given at least a few

4 weeks to perform a job. You try to receive -- you are given as much data

5 by the court, and it's not in a way that you have to ask to receive data,

6 no; they are provided and there is an unlimited access to data. In the

7 case of the assessment of Radic, the forensic assessment of Radic, I was

8 limited in my experience.

9 It's also very important that we are -- that you have the

10 opportunity to talk several times with the defendant in a few weeks,

11 because there is, of course, a difference when you talk only once with

12 somebody and if you have the possibility to talk twice or three times.

13 Because in the first -- the first time you talk to somebody, it's not wise

14 to confront somebody. It's better to wait with that, for example, as a

15 technique until the last time you speak to somebody.

16 JUDGE RIAD: But --

17 A. And also -- also another ethical question is what I've seen in

18 this Court, with all due respect for you, is that sometimes only one

19 psychiatric examination is asked; another time, there is a psychiatric and

20 psychological examination asked; sometimes, there is psychiatric

21 examination asked -- assessment asked, performed by two psychiatrists.

22 That's something we, as psychiatrists, internationally, don't understand

23 so much, because you have to regulate that.

24 In our international standards, it's usually that in a severe case

25 there is always a psychiatric and psychological report together, and not

1 only a psychiatric report; and that, for example, even in very severe

2 court cases, there is an examination of the social circumstances by a

3 social worker.

4 JUDGE RIAD: Now, still the fact remains that you made a report,

5 and you stand by this report.

6 A. I stand by this report in the limit -- in the limitations of the

7 time I was provided, because we -- in terms of diagnosis, I had enough

8 time. But that's -- but with regard to the other questions, it's far more

9 difficult.

10 JUDGE RIAD: For instance, when you spoke of -- sorry.

11 A. Yes. If you asked me what is the present mental state of the

12 defendant, then it is like a snapshot, and for a snapshot, you need not

13 that much time. But if you ask, for example, what are the possibilities

14 for resocialisation, then I need far more data, material, to answer that.

15 That's more like a movie. Or if you ask somebody responsible for the

16 crimes, that's -- therefore, to answer a question like that, you also need

17 far more data.

18 So in regards to the diagnosis of my report of Radic, I had enough

19 time. But in regard to other questions, I think my report is restricted.

20 JUDGE RIAD: But you had very positive conclusions. You said,

21 "The suicidal thoughts are not severe."

22 A. Yes, because that's my profession, to check that. If his

23 depression -- if he really had depression, then it would be another

24 matter. But he had a mild dysthymia, and that is something that -- he had

25 dysthymia or a dysthymic disorder, so that's not severe depression. It's

1 a slightly, slightly depressed mood.

2 He also had an -- and also I checked, of course, his suicidal

3 thoughts, because if somebody is suicidal, then you also ask, "If you

4 would try to commit suicide, how would you do it?" Mr. Radic had no

5 plans, he had no crystalised plans to commit suicide. It was more an

6 attempt for help, a cry. But from my experience, he was not somebody --

7 he's not somebody who is going to commit suicide on the short term. It

8 may be different when he's -- when he would receive a long sentence. And

9 then you have to see how he's going to be during his detention.

10 JUDGE RIAD: So you had enough time to reach such a finding.

11 A. Yes. Therefore, we had enough time.

12 JUDGE RIAD: What about when you said that he is an ordinary man

13 in the wrong place at the wrong time? What made you reach that fact?

14 A. What I mean by "ordinary man" is that he is somebody -- he's a

15 primitive man without a personality disorder, in my opinion.

16 JUDGE RIAD: What about the wrong place and the wrong time?

17 A. The war circumstances. So an ordinary man or a man without a

18 personality disorder or a man without a severe psychiatric disorder in

19 very stressful war circumstances.

20 JUDGE RIAD: You mean that could happen to any man, any normal

21 person?

22 A. Yes.

23 JUDGE RIAD: Thank you very much.

24 JUDGE RODRIGUES: [Interpretation] Yes. Thank you very much, Judge

25 Riad.

1 Judge Wald.

2 JUDGE WALD: Dr. van den Bussche, I have two questions. One: Did

3 you agree with everything that Ms. Najman had in her separate report? Let

4 me give you a few examples, although I don't have it in front of me, and I

5 hope my memory is correct, but yours may be more accurate. But I believe

6 that she referred to Mr. Radic as a person who had great respect for

7 authority and was not likely to flaunt authority or to go against

8 authority or to initiate a kind of proactive conduct that would be against

9 rules or authority. But my basic question to you is: Did you agree with

10 all of her conclusions, or was it more of a, well, those are the

11 conclusions she draws from her material, these are the conclusions I draw

12 from my material, and there isn't anything contradictory in them? If you

13 would just explain a little bit what the nature of the agreement between

14 you about each other's reports was.

15 A. The nature of the agreement is, first of all, that we both came to

16 the same conclusion in regard to his mood disorder.

17 JUDGE WALD: Okay.

18 A. That there was a mild form of depression called dysthymia, or

19 dysthymic disorder, so there was no disagreement. And then in regard to

20 his personality traits, we had, in fact, the same opinion and we used

21 maybe different words. Sometimes we both had the opinion that Mr. Radic

22 was a primitive man --

23 JUDGE WALD: Excuse me. When you say "primitive," maybe you could

24 tell me a little more what you mean.

25 A. Primitive is not mature, yes? Primitive, simple, not mature.

1 That's in fact another word, yes? Or you can say a little bit childish in

2 a certain way. Further on, we agreed in regard to the other traits, like

3 that he is, in our opinion, obedient to authority and that he is

4 passive-dependent. That means he is not such an independent man. And

5 further on, we found separately no signs of specially anti-social disorder

6 personality traits.

7 JUDGE WALD: Okay. My second question --

8 THE INTERPRETER: Microphone, please.

9 JUDGE WALD: My second question is: You've given us a little bit

10 of an indication, but I'd like you, if possible, to elaborate, if you wish

11 to. If you would have had more time, if you had had what you consider to

12 be the appropriate amount of time that you would normally expect in an

13 evaluation of this kind -- you've mentioned that you would have had other

14 interviews, you would have had a series of interviews to get more of an

15 evolving picture, and you've also mentioned that you might have tried to

16 get more information about -- of a social background kind of thing. Are

17 there -- what other elements of a more detailed evaluation that you didn't

18 have time for here, can you tell us?

19 A. The evaluation of the witness accounts, for example. I have only

20 the personal information of Mr. Radic and I've seen the general

21 indictment, but I don't have seen [sic] the witness accounts. And in this

22 case, in a certain way it was for me easy, because Mr. Radic was denying

23 the facts. But if he would have said, "I have committed the crimes," then

24 I would have been in a difficult position, because then I have to only

25 make a conclusion on his comments about the crimes and I have no

1 information about witnesses.

2 JUDGE WALD: Let me just ask you one follow-up question on that

3 and then I'll be through, because it's come up in the cross-examination,

4 both of you and of Ms. Najman. But I'm wondering, from your expert point

5 of view, if you just read witness transcripts, which would -- or you

6 watched -- maybe you could watch a video - I don't know - of witnesses,

7 don't you have an expert problem too in evaluating whether they're telling

8 the truth or credible or -- when you haven't seen them and talked to them?

9 A. Yes, of course, of course, but I don't look at those interviews as

10 a judge. You know, in fact, I'm not -- it's not my job to say if it's

11 true or not true. So I look at other aspects of the interview.

12 JUDGE WALD: Such as?

13 A. In the Dutch system we are used to that, so we see all the

14 interviews of the investigating judge or the police. So we read them, and

15 you look more at contradictaries [sic] for example, or if somebody --

16 sometimes it's very clear that somebody is lying, or you look at the

17 reactions. So I look more at the behavioural aspects.

18 JUDGE WALD: So basically, you would have had more interviews, you

19 would have looked more at the social background, you would have looked at

20 whatever was available to you --

21 A. Yes.

22 JUDGE WALD: -- that would fill out the interstices of the

23 indictment?

24 A. Yes.

25 JUDGE WALD: Okay. Thank you very much.

1 JUDGE RODRIGUES: [Interpretation] Thank you very much, Madam Judge

2 Wald.

3 Dr. van den Bussche, I have a lot of questions, but I shall be

4 quick, otherwise we won't be able to finish on time. Let me begin by

5 saying that one needs to have some kind of communication between this

6 Tribunal and psychiatrists, a kind of exchange of information, because

7 this Tribunal is rather specific and different from the normal courts that

8 you have in Holland. But I think we need to hear and understand your

9 findings in a rather broader context. Quickly, Dr. van den Bussche, the

10 relationship between psychology and psychiatry, because that is what you

11 try to do. Could you explain that a little for us?

12 A. Well, our disciplines have, I would say, added value. So as a

13 psychiatrist we are more focused on the severe psychiatric disorders, and

14 as a psychologist you are more focused on the personality traits. And so

15 we are more -- I would say, as behavioral experts we are more -- yes, we

16 have added value and we give added information to each other, and there is

17 in a certain way an overlap.

18 JUDGE RODRIGUES: [Interpretation] That means, Dr. van den Bussche,

19 that each one of you have certain specific diagnostic instruments that you

20 use; is that right?

21 A. Yes, that's correct.

22 JUDGE RODRIGUES: [Interpretation] I come to your report now.

23 Perhaps that led you to your conclusion, so we're just making comments,

24 because, after all, you're an expert witness. You mentioned in your

25 report that psychiatric and psychological assessment, purely disciplinary

1 assessment, is universally considered, and you agree with that, that it

2 was a wise decision and that it was wise to have experts of different

3 nationalities taking part. Could you comment on that, please.

4 A. Yes, I think it was a wise decision, because I think also this

5 Court has the intention to cross-purchase [sic] international law. And I

6 think it was for me the first time I worked together with a colleague from

7 abroad, and it was compared with the former assessment I made for this

8 Court where I had to work alone. It was, in my opinion, because I -- when

9 I was talking to Mr. Radic, for example, I asked the questions and the

10 interpreter was translating the questions, and Ms. Najman was listening

11 and she made two times little comments and she made a comment on what the

12 translator was translating to me. And it was not -- it was more

13 additionary [sic] explaining of a special situation. So she made a few

14 things clear about the transcultural differences, and that was for me very

15 good that those things happened. There was also -- there's a

16 little -- the language barrier was a little bit diminished by that, the

17 transcultural language barrier. And also later on in the discussion, then

18 without the defendant, she could explain me more about different regions

19 in Yugoslavia or different attitudes or different values and norms.

20 JUDGE RODRIGUES: [Interpretation] Dr. van den Bussche, do you

21 consider the presence of another expert or another discipline present

22 during the interview, would you consider that an inconvenience or an

23 advantage, from the standpoint of your observations?

24 A. Well, this time it was an advantage, but it was also because

25 Ms. Najman and I, we had time enough to make some appointments how we are

1 going to do the interview. I said, well, I like to prefer to ask the

2 questions and that you are not going to involve at the moment in the

3 questions, because otherwise you get confused enough tongues and two

4 captains on the boat and you are not working independent. And she agreed

5 with that, and that was in fact very collegial of her - how do you say

6 it? - it was very nice that she did that, and she was very at a

7 professional distance following the report. But it would be wise to

8 have -- it would be wise to have more time to make appointments about

9 that. Now we had to do it just before we entered the United Nations

10 unit.

11 And if I compare it -- of course, I have to compare it with my

12 Dutch situation as a witness expert, then usually I work for risk

13 assessments or forensic assessments for the Court in Holland. I worked

14 always together with a psychologist, and what we do is that usually the

15 psychologist has two meetings where he does the psychological testing,

16 alone, without a psychiatrist, I have an interview alone, and then we do

17 one or two interviews together. So we make a mix out of it. So I think

18 it will be wise that if the psychologist sees the accused alone, the

19 psychiatrist alone, but also one or two times together. Because when you

20 are with two, that has also more profits, because one of the experts can

21 look at a distance to what is happening, and sometimes it's very helpful

22 to see pitfalls you would not see if you would be there alone.

23 JUDGE RODRIGUES: [Interpretation] Could it be said that since we

24 have a multidisciplinary approach, if I may call it that, that is, by

25 psychology and psychiatry, they combine each other and they're

1 individualised and there are moments when the individual traits are

2 established, or what is specific, and also what they have in common?

3 Could it be put that way?

4 A. Yes, that's correct.

5 JUDGE RODRIGUES: [Interpretation] Very well. We have spoken at

6 length about time constraints. I must tell you that if such a situation

7 occurs again, and if it is this Chamber, you can call us up and tell us,

8 "I need more time." But taking this particular case into consideration,

9 you said that you would have needed at least to see a person one, two, or

10 three times. I understand that very well. But it is also true that there

11 was someone else present for the purpose of observation. Could it be said

12 that the fact that another person was present would, in a sense, make up

13 for the time you were lacking and the number of times you would need to

14 be -- to see the person?

15 A. Yes, that's correct. And besides that, we both work very hard.

16 So in a certain way it's correct that we -- at the end, we couldn't check

17 any more our translations, because Ms. Najman, she had to leave the

18 country. She was only allowed to stay for six days, so she needed to take

19 a plane back to Belgrade. So we had to send our -- she wrote -- she

20 writes, of course, in the Serb language and I write in Dutch. So she

21 translated it from Serb in German, and I translated everything from Dutch

22 in German. And we were reading our reports and then we send it to the

23 Registry for the translation from Serb in English, Serb, French, and

24 Dutch, English and French. So we made an outline and we hoped that it was

25 a good translation, but we saw that we couldn't discuss any more together

1 the translation of those.

2 JUDGE RODRIGUES: [Interpretation] Dr. van den Bussche, would you

3 agree with me in saying that cooperation -- allow me to use the word - the

4 cooperation of the patient is always important, both for the work of the

5 psychiatrist and for the work of the psychologist, and if time is saved,

6 that if one economises with the time, it is better if you do it together

7 than if you do it separately? What are your views about that?

8 A. I agree completely with that. I think that cooperation is the

9 best, to do it together, and as well as for the best for saving time,

10 because that allows different people or disciplines to make a plan

11 beforehand, and it's always good in saving time.

12 JUDGE RODRIGUES: [Interpretation] Dr. van den Bussche, and from

13 the standpoint of the patient, to see the patient two, three, four, or

14 five times. If, on the other hand, you can only see him once or twice,

15 how does that affect the cooperation of the patient?

16 A. Well, I think if you -- well, I look to myself. If I look to

17 myself, when I meet somebody for the first time in a new job, I'm always a

18 little bit more prudent, and that's a normal reaction in the first meeting

19 with somebody. You are not going to say everything in the first meeting,

20 who you are or what you are doing. So you need time for what we call

21 contact role, and that's something every one of us needs. And therefore

22 we -- behavioral experts like to have at least two times the possibility

23 to talk with the defendant, or, if possible, three times, because then you

24 can also see if somebody has the capacities to make contact in a more

25 mature way. Because the third time you talk with somebody, it's usually

1 completely different than the first time, because the first time everybody

2 is a little bit cautious, because you want to know, to learn the other

3 one.

4 JUDGE RODRIGUES: [Interpretation] Yes. I think you're very

5 familiar with the process of development of human relations,

6 relationships. First they are formal and superficial, and then later they

7 become deeper and informal. Do you agree with that?

8 A. Yes, I agree with that.

9 JUDGE RODRIGUES: [Interpretation] Very well. Thank you. Another

10 question, Dr. van den Bussche. It's out of curiosity I'm asking you

11 this. The handbooks that you mentioned, do they provide the answer to the

12 question: How can an ordinary man become a war criminal? Do those

13 handbooks provide the answer? That is my question.

14 A. No.

15 JUDGE RODRIGUES: [Interpretation] I knew that I could have not

16 even asked that question. It is just to joke a little bit. But we are

17 dealing with very serious matters here. I interrupted you. I'm sorry.

18 Please go on.

19 A. Those handbooks, they don't provide all the answers. They give a

20 little bit more insight in the answers. And after the Nuremberg and Tokyo

21 Tribunal -- this is the third war tribunal, international tribunal. So

22 when I look to psychiatrists and psychologists worldwide, then the only

23 reference material or research data are books written on facts happened

24 during the Second World War, by colleagues. And afterwards, there isn't

25 so much research worldwide about thoughts or facts or thrivings or reasons

1 why somebody committed war crimes at that moment. And there are a few

2 centres nowadays - one is called Solomonay Centre [phoen] in University of

3 Pennsylvania, where they try to study multidisciplinary -- or they do

4 multidisciplinary research or what -- sometimes make -- what to find the

5 questions -- were asked on the questions, to find answers on the

6 questions. But it's not simple -- it's not simply a matter of diagnosis.

7 JUDGE RODRIGUES: [Interpretation] To round off the issue, I have

8 one more question, Dr. van den Bussche. You spoke about a clinical

9 interview, a "structured clinical interview" was the word used. I don't

10 think we are doing clinical interviews here, but in the exchanges between

11 the parties we do have structured interviews but not clinical interviews.

12 So what type of interviews would you be able to use under these

13 circumstances? Could you, for instance, use a non-structured interview or

14 an interview of a mixed nature, part of it structured and another part

15 non-structured?

16 A. The structural interviewing is a special form of structured

17 interviewing and it's a kind of technique. And we -- as a professional,

18 you learn the technique. Of course, it is not a clinical setting. We

19 call it a clinical structural interview. That means that the setting that

20 I'm talking with somebody else is, in fact, the clinical aspect. That's

21 my clinical point of view as a doctor. So I'm not interviewing somebody

22 because I'm interested in him or I want to know him like, for example, I

23 want to know a friend, but I'm focusing in the interview on special

24 aspects and I keep the -- or I am the director of the interview, I am the

25 authority in the interview. I don't allow the other one to take over the

1 interview. I give direction to the interview. That's what we call the

2 clinical aspect of it.

3 JUDGE RODRIGUES: [Interpretation] Another question, Dr. van den

4 Bussche: You spoke at some length about dysthymia in connection with

5 depression, suicidal tendencies, and so on.

6 I would like you to answer this question: This dysthymic

7 disorder, is it adequate in detention conditions? If you're observing

8 this in conditions of detention or in normal life, would there be a

9 difference between the two? Do you understand my question?

10 A. I understand your question. Dysthymia or this disorder is a mild

11 form of depression, and it is, in fact, a mood disorder which is very

12 common with a high rate in the population. It can be caused due to

13 different circumstances. It can be caused, for example, by detention, but

14 it can also be caused because of a divorce, of a loss. So there are

15 different factors, different circumstances, let's say, stress factors,

16 that can follow or cause the dysthymic disorder.

17 JUDGE RODRIGUES: [Interpretation] Yes. But, Dr. Van den Bussche,

18 to establish such a dysthymic disorder under conditions of detention or in

19 normal life, which condition is more disturbing for you, from the

20 diagnostic point of view and from the point of view of treatment?

21 A. That's a difficult -- a difficult question to answer.

22 JUDGE RODRIGUES: [Interpretation] Let me repeat my question again

23 and speak more slowly because I see that the translation wasn't quite

24 correct.

25 My point was: Dysthymic disorders under conditions of detention

1 and dysthymic disorders under conditions of normal life, which case causes

2 more concern for you either in terms of diagnosis or in terms of

3 treatment?

4 A. In terms of treatment, I would say dysthymic disorder under

5 conditions of detention, because when somebody is in detention, then he

6 usually doesn't have so much contact with his network or his friends and

7 he is, most of the time, alone. When somebody is dysthymic not in

8 detention but in society, then he still has the possibility to ask his

9 friends for help or his family or his relatives instead of going straight

10 to a psychiatrist. For a mild form of depression, it's not always

11 necessary to go straight to a psychologist or a psychiatrist. I always

12 advise people, "First talk with your friends and don't go straight to the

13 shrink."

14 So when somebody has dysthymia in detention, then it's wise to

15 monitor it a little bit better, in the long term. Because if somebody,

16 for example, stays half a year or a year in detention, there can be

17 depression, and maybe during the real depression, suicidal thoughts can

18 worsen or can be, indeed, very risky.

19 JUDGE RODRIGUES: [Interpretation] Thank you very much, Dr. van den

20 Bussche. I know that we could continue this discussion but we have to

21 finish today. We have heard our expert witnesses and we were able to see

22 that there's always scope for more discussion. But, as I have already

23 said, we are a Tribunal and not a university or something like that, to

24 discuss all these issues.

25 In any event, I do wish to say that there is an interest in

1 maintaining this contact between a judicial structure, which is slightly

2 different from the one you're used to working in, and the judicial

3 structure here is specific because various judicial systems are

4 represented. We also have very structured discussions here regarding the

5 rules of examination of witnesses, cross-examination, what may be asked,

6 what may not be asked. If you were in the public gallery, perhaps you

7 would come to the conclusion that there would be plenty of scope for you

8 to teach us to find the structure, to organise ourselves and discipline

9 ourselves, all in the interests of justice, which is why we are here. So

10 if a problem of time should arise again, please contact us.

11 Is there anything that you would wish to add regarding your

12 experiences in this case?

13 THE WITNESS: No, thank you. It is very clear what you have told

14 me.

15 JUDGE RODRIGUES: [Interpretation] Very well, then. Thank you very

16 much for coming, and we wish you every success in your future work. We

17 shall ask the usher to accompany you out now.

18 [The witness withdrew]

19 JUDGE RODRIGUES: [Interpretation] Mr. Fila, I believe you have

20 something to say just now, and we also have something to decide about.

21 Please proceed.

22 MR. FILA: [Interpretation] To complete my case, this was the last

23 witness. We have one more who has submitted his testimony in writing -

24 the Prosecution has a copy, the Registry, which means you too - and that

25 is an agreement between the Prosecutor, my learned friend Niemann, for him

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1 personally to hear that witness in Australia. I accept that in advance

2 and all of us accept it to be tendered into evidence. Ms. Somers has

3 abided by that agreement, and I propose that this document be tendered and

4 admitted. It is the statement of Witness Idriz Mujkic, given on the 13th

5 and 14th of May, 2000, in Australia, to Attorney Niemann.

6 That brings to an end my case, with the exception of the

7 cross-examination of the accused Mr. Mladjo Radic.

8 JUDGE RODRIGUES: [Interpretation] In other words, Mr. Fila, we

9 will not begin the cross-examination of Mr. Radic.

10 MR. FILA: [Interpretation] As far as I'm concerned, we can.

11 JUDGE RODRIGUES: [Interpretation] Yes, Ms. Susan Somers.

12 MS. SOMERS: Your Honours, on the issue of Mr. Mujkic, counsel is

13 correct, there was a standing agreement between Mr. Niemann and Mr. Fila,

14 and therefore we have no objection to its admission.

15 I would like to clarify. We weren't sure exactly when we would

16 finish this week because of other considerations. The expert report,

17 which is the counterreport, as it were, to Kecmanovic's report, does the

18 Chamber have any concern if it's submitted either by Friday or next week,

19 since it is simply a report and there's not any live testimony involved?

20 Is there any particular issue? Counsel is shaking his head no, but I

21 wanted to make sure that the Chamber has no problem.

22 It will be coming in from the United States by fax and courier,

23 and if it arrives after close of business on Friday or something, I just

24 wanted to make sure there was no problem for the Chamber.

25 JUDGE RODRIGUES: [Interpretation] I was just thinking that we can

1 finish our work today because we have no further witnesses. Is that

2 right, Mr. Fila?

3 MR. FILA: [Interpretation] Yes, we have no more witnesses, and I

4 don't know what the situation is about tomorrow. President Jorda can tell

5 you what the situation is. But, personally, the condition of Mr. Prcac

6 appears to be such that it would be better that we do it in the way we

7 have suggested. As far as I'm concerned, I am ready to comply with any of

8 your decisions.

9 JUDGE RODRIGUES: [Interpretation] Before giving you the floor,

10 Ms. Susan Somers, Mr. Jovan Simic, is there any chance - I assume you will

11 say no - but is there any chance of having Mr. Prcac present here

12 tomorrow, or after tomorrow?

13 MR. J. SIMIC: [Interpretation] Your Honour, Mr. Prcac -- I was

14 there at a meeting with the President of the Tribunal, Mr. Jorda, the

15 commander of the Detention Unit, Mr. McFadden, and Mr. Prcac said he would

16 try to come tomorrow if he is able to. In any event, Mr. Jorda will talk

17 to you; that is what he told us. He said that should he be unable to come

18 because of his condition, that the cross-examination of Mr. Mladjo Radic

19 can go ahead without him. But we would request a videotape so that we

20 might analyse that testimony together, subsequently.

21 On the other hand, it is the opinion of the Defence that Mr. Prcac

22 is not able to follow the proceedings without his condition worsening. So

23 I'm afraid we must leave the decision in Mr. Prcac's hands. My advice to

24 him was to be very careful, to do whatever he considers to be best for him

25 because, after all, that will be the best solution for all of us, that he

1 must assume the risk. After all, the final decision is up to you and to

2 the President of the Tribunal.

3 JUDGE RODRIGUES: [Interpretation] I think you just made a third

4 suggestion. We have your suggestion that we have the cross-examination of

5 Mr. Radic during your Defence time, Ms. Susan Somers was to have a kind of

6 videolink, and now you are telling us a third possibility, to videotape

7 the cross-examination of Mr. Radic and you would review it with Mr. Prcac

8 together and then you could put your questions during your Defence case.

9 Is that correct? I see. Well, that's very well.

10 Let me give the floor to Ms. Susan Somers now. I saw that you

11 wanted to say something, but perhaps you could tell us what your reaction

12 is to this suggestion given by Mr. Jovan Simic.

13 MS. SOMERS: I want to make sure, Your Honour, that I completely

14 understand. That would be the suggestion that His Honour President Jorda

15 had come forth with? We will leave this, actually, in the Chamber's

16 hands. We would agree to any one of these methods which would best suit

17 everyone's interests. We understand the particular situation. So on that

18 point, I would say we'll leave it in your hands.

19 I did have another question before you, and I'm sorry to be

20 repetitive, but I wanted to just let --

21 THE INTERPRETER: Please slow down, Ms. Somers.

22 MS. SOMERS: -- our expert in the US know where he stood in terms

23 of getting things here, or does it not make any difference as long as it's

24 before the proposal --

25 THE INTERPRETER: Could the counsel slow down, please.

1 MS. SOMERS: -- it is certainly possible by Friday, we thought,

2 because we'd have it for the close of the Radic case, assuming we would

3 have gone till Friday. I just don't want to cause any paperwork problems

4 for the Chamber or for counsel. So if, for example, it arrives Friday by

5 fax and by courier Monday, may we simply submit it that way in a filing?

6 JUDGE RODRIGUES: [Interpretation] No, I don't see any difficulty.

7 Even if it comes later, the two documents will be attached when they

8 arrive. So there's no problem even if the documents are admitted next

9 week or after that. No problem.

10 MS. SOMERS: Thank you very much. I will relay that to the

11 individual.

12 If the Chamber would allow us to understand, if the suggestion

13 that was proffered by Mr. Simic this morning about time being given up

14 later for, let's say, at the end of the case, that would be an extra day

15 attached to the overall time? Is that how that would work? It would be

16 taken off of the time from Mr. Simic's case? I'm not quite clear of the

17 dynamics of that or the logistics.

18 I just wanted to remind the Chamber that Mr. Saxon's

19 cross-examination would be his day, and then whatever I did not use in the

20 cross of Mr. Radic, and I think I used fewer than 11 hours. So there's a

21 little bit of overlap. Just so that the Chamber doesn't worry about

22 scheduling it for a day certain and then finding that there might be an

23 hour or a half hour on the next day, I just wanted to remind the Chamber

24 of our time factor.

25 If that option is what the Chamber goes for, just so it knows on

1 the calendar, I think there were -- how many hours totally? There were

2 5.5 hours allotted for the cross. However the Chamber chooses to do it,

3 just to factor that in, if I may.

4 JUDGE RODRIGUES: [Interpretation] How many? How many?

5 MS. SOMERS: It was 5.5. It was one day and then I think --

6 JUDGE RODRIGUES: [Interpretation] Five and a half hours? Is that

7 what you're saying?

8 MS. SOMERS: Hours. Excuse me just a second.

9 [Prosecution counsel confer]

10 MS. SOMERS: Your Honour allotted for Radic and Kvocka 16 hours

11 totally, however we were to distribute them. It was an internal

12 decision. I used, I believe, 11 -- or less than 11, fewer than 11 hours,

13 and that was -- if the Court wishes, I can dig back into the transcript.

14 I just wanted not to mess your schedule --

15 JUDGE RODRIGUES: [Interpretation] Twelve hours. I'm sorry for

16 interrupting you. Eleven hours, 59 minutes, so you can say 12 hours.

17 MS. SOMERS: All right. Yes, I used 12, Your Honour. I thought

18 that the Court, though, for the two defendants, gave 16 totally. I'll

19 check back, but that was my recollection of things when I started. So

20 I'll check it out.

21 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers, we will look

22 into that. Yes, we granted a certain number of hours in total, that's

23 true, but the impression I had was that you had finished with the

24 cross-examination of Mr. Kvocka and you didn't use all the time. As you

25 know, the time of the examination-in-chief for Mr. Radic was one hour, 45

1 minutes, so we were reckoning on two hours. We learnt from Mr. Fila, who

2 is always magnanimous. At the end, you will have three hours or two

3 hours, 56 minutes, according to our accounts, the arithmetic done by Madam

4 Registrar and myself. So the time that you will have at your disposal,

5 taking into account the total amount granted by the Chamber, three hours

6 are left, that is, two hours and 56 minutes, to be precise.

7 MS. SOMERS: I think there may have been, perhaps, a different

8 understanding on our part. But rather than spend the Chamber's time right

9 now, if you would permit me to take a look back at what was in the

10 transcript so that I don't erroneously tell you something, then I'll do

11 that for tomorrow. Thank you.

12 JUDGE RODRIGUES: [Interpretation] Yes. Then there was the

13 question that Mr. Jovan Simic was going to clarify. He will correct me if

14 I'm wrong. What Mr. Jovan Simic suggested was that, within the time

15 planned for his case, he would give you time to cross-examine Mr. Radic.

16 Did I understand you correctly, Mr. Jovan Simic?

17 MR. J. SIMIC: [Interpretation] Yes, Your Honour. I will try to

18 summarise our case, so I would leave one working day for Mr. Fila.

19 JUDGE RODRIGUES: [Interpretation] But we were about to reach a

20 third solution, the third suggestion that Mr. Jovan Simic made, that is,

21 that we could begin tomorrow with the cross-examination of Mr. Radic. The

22 video and audiotape would be provided to Mr. Jovan Simic, who could, in

23 peace here or somewhere else, review it with Mr. Prcac, and if counsel has

24 any questions to put to Mr. Radic, he would do so in his time. That

25 witness will always be here so there's no problem in that regard.

1 That is why, for the moment, I wish to consult Mr. Jovan Simic to

2 see whether we can do that, then Mr. Fila, to see if he agrees, and then

3 Ms. Somers.

4 So, Mr. Jovan Simic, have I understood you correctly? Would it be

5 possible to do that?

6 MR. J. SIMIC: [Interpretation] Yes, Your Honour, I think that

7 would be quite in order. I'm expecting Mr. Prcac to appear tomorrow,

8 however; I must say that.

9 JUDGE RODRIGUES: [Interpretation] Very well. So we have two

10 possibilities in front of us.

11 Mr. Fila, what is your opinion?

12 MR. FILA: [Interpretation] My opinion is -- or, rather, we're

13 quite ready to begin tomorrow, that is no problem for us, and we could

14 finish also by tomorrow and give the Prosecution the time for their

15 cross-examination. But I think, perhaps, it would be advisable to consult

16 President Jorda, because the doctors were over there to see Mr. Prcac. I

17 will accept whatever is decided by Your Honours.

18 JUDGE RODRIGUES: [Interpretation] I don't think there's any need

19 to consult the President of the Tribunal who has nothing to do with this

20 case. I'm sorry.

21 MR. FILA: [Interpretation] No, but apparently a doctor was

22 present, so Mr. Jorda spoke to the doctor, perhaps. That was my motive.

23 JUDGE RODRIGUES: [Interpretation] Yes, but Mr. Fila, we are

24 working under the hypothesis that if Mr. Prcac will be here, we will

25 work. If Mr. Prcac is not here because the doctor says, "No, you're not

1 fit to go," then we will carry on as suggested by Mr. Jovan Simic. That

2 would be the solution.

3 Ms. Susan Somers, surely you will not say no after this whole

4 discussion. Ms. Susan Somers.

5 MS. SOMERS: I have that much power, Your Honour? Your Honour, of

6 course, we will certainly accommodate the situation as is necessary.

7 I do think, though, because there is this possible

8 misunderstanding or miscommunication on the amount of time, we do need to

9 resolve that in order to effectively move forward tomorrow. I don't know

10 whether my colleague will be able to pull it up very quickly.

11 In principle, if we have to proceed as was suggested, of course

12 it's okay with us. But I do want to make sure we get the record straight

13 on the other issue. Thank you.

14 JUDGE RODRIGUES: [Interpretation] Very well. What we are more

15 interested in is the first part of your answer. The question of time

16 means asking Madam Registrar to look at the account time and what the

17 Registry has as the time consumed.

18 What we're interested now is in adjourning. The interpreters and

19 all of us have been working for a very long time so I think we ought to

20 close for today. We'll adjourn and reconvene tomorrow at 9.20 for the

21 cross-examination of Mr. Radic.

22 Mr. Fila.

23 MR. FILA: [Interpretation] I just wish to know whether you have

24 accepted the agreement between Ms. Somers and myself and admitted it,

25 admitted the testimony of that witness into evidence.

1 JUDGE RODRIGUES: [Interpretation] Yes, we have.

2 Before we adjourn, one more point, if I may. We have the report

3 by Dr. van den Bussche and we must take that into consideration. What the

4 Chamber is going to decide is the same decision that it took with respect

5 to the report by the psychologist, Mrs. Najman; that is to say, that

6 report will be tendered into evidence and adopted with a number by the

7 Registry; that is to say, there will be no number P or D. It will be the

8 Registry's number allotted to the report.

9 Having said that, I adjourn the meeting until tomorrow morning at

10 9.20.

11 --- Whereupon the hearing adjourned at 3.11 p.m.,

12 to be reconvened on Thursday, the 15^th day of

13 March, 2001, at 9.20 a.m.

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