1 Wednesday, 28 February 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.00 a.m.

5 JUDGE BONOMY: Mr. Visnjic, the first thing I can deal with this

6 morning is to confirm that 3D515 will be admitted, as you requested.

7 MR. VISNJIC: [Interpretation] Thank you, Your Honour. I just

8 wanted to tell the Bench that this document pertains to the testimony of

9 Jusuf Zhuniqi, Ali Hoti, and Sabri Popaj.

10 JUDGE BONOMY: Thank you.

11 We'll now proceed to hear the submissions that counsel wish to

12 make about the witness Philip Coo and the evidence it is proposed to lead

13 through him, but before we invite counsel for the accused to make

14 submissions we would like to be clear what documents we should have in

15 front of us. We do not want duplications of documents, so let's be as

16 clear as we possibly can.

17 Mr. Hannis, can you help me on that.

18 MR. HANNIS: Well, Your Honour, you should have Mr. Coo's two-part

19 report regarding the forces of FRY and Serbia. And I think -- do you have

20 both the original unredacted version and a redacted version?

21 JUDGE BONOMY: Well, we -- I don't think we should need the

22 unredacted version because apparently, the redactions have simply been

23 done by deletion, which means that page numbers will be adequately

24 referenced through the unredacted -- through the redacted version that we

25 now have.

1 MR. HANNIS: Yeah, I didn't know if you wanted to see the

2 unredacted version to see what had been omitted in case there was some --

3 JUDGE BONOMY: I did actually ask initially for the unredacted

4 one, because I misunderstood what was meant by redaction. I thought it

5 was to do with sensitivity. I didn't realise that was a reference to the

6 way in which the report had been adjusted. I understand that and now the

7 unredacted one seems unnecessary.

8 MR. HANNIS: Okay.

9 JUDGE BONOMY: So there's a two-part document.

10 MR. HANNIS: Yes. And there's an addendum.

11 JUDGE BONOMY: Yes.

12 MR. HANNIS: In addition, you should have his documents that is

13 entitled "Provenance Report" which describes how we received the documents

14 that are referred to in his report.

15 JUDGE BONOMY: Yes.

16 MR. HANNIS: In addition to that you should have his -- this is

17 the most recent, his witness statement --

18 JUDGE BONOMY: I have that.

19 MR. HANNIS: -- that was received last night with an appendix

20 listing certain recently received documents that were not described in his

21 reports or his annex.

22 JUDGE BONOMY: And then I've been handed this further document

23 with a series of exhibit numbers, and it's not clear to me how that fits

24 into the picture.

25 MR. HANNIS: Can you read to me the description to me on the top,

1 Your Honour.

2 JUDGE BONOMY: It's heading exhibit number, tab, document

3 description, date, English, ERN, and it says part one to expert report and

4 then the dates of disclosure.

5 MR. HANNIS: Yes, I think, Your Honour, that's just to assist you

6 in following the footnoted items in the reports. It lists the tab number

7 and also lists the exhibit number. The document you had in your hand

8 lists the exhibit number and the tab number.

9 JUDGE BONOMY: Yes.

10 MR. HANNIS: In the report it only makes reference to tab numbers,

11 because at the time he prepared his report we didn't have exhibit numbers

12 for those items.

13 JUDGE BONOMY: So this is a sort of index?

14 MR. HANNIS: Yes. Actually, Your Honour, what I propose to do is

15 if we reach a resolution today concerning the redactions and if we're

16 going to go forward with his reports, I intend to supplement those reports

17 by inserting the exhibit numbers in the footnotes in addition to the tab

18 numbers, because I think it will make it easier to follow if you've got

19 the exhibit numbers there rather than having to refer to a chart back and

20 forth.

21 JUDGE BONOMY: Personally I think it's essential and I'm grateful

22 that you're doing that.

23 MR. HANNIS: I think that's everything that you should have at

24 this point, Your Honour.

25 JUDGE BONOMY: Thank you.

1 Now, Mr. O'Sullivan, my understanding was that you would take the

2 lead on this, but what we've also heard that other counsel will want to

3 make supplementary submissions. I take it you can confirm that you've

4 worked out among Defence counsel in general how you can presently this

5 without treading on each other's territory.

6 MR. O'SULLIVAN: That's how we intend to proceed, Your Honour.

7 JUDGE BONOMY: Well, we would now invite you to make your

8 submissions.

9 MR. O'SULLIVAN: Thank you, Your Honour.

10 Your Honour, the Chamber ruled in -- as you know on the 13th of

11 July in relation to Mr. Coo at page 840 of the transcript, and you held

12 that he could not testify as an expert because he was too close to the

13 Prosecution team. You found that this did not in any way question his

14 integrity or his efforts to be independent. You said this is a question

15 of perception. Justice has not only to be done must be seen to be done in

16 cases of this nature.

17 You then went on to say that there would be further submissions on

18 the modalities of the testimony that Mr. Coo may be able to give. I wish

19 to address you on two main points; the first is the closeness of Mr. Coo

20 to the Prosecution's team and the language in your decision regarding his

21 independence which is whether real or perceived independence and this has

22 come to light -- these submissions have come to light as of yesterday when

23 around 7.00 last night we received the witness statement of Mr. Coo, both

24 prepared and signed by Mr. Coo. We submit there's new information here

25 that the Chamber should be aware of and consider. That's the first

1 point: Closeness to the Prosecution team.

2 The second point is in the event that Mr. Coo does testify, we

3 would like to make submissions on the modalities that may be appropriate

4 in the circumstances of Mr. Coo. If I can address the Chamber first to

5 the witness statement that we received last night. And I direct your

6 attention to paragraph 9, page 3. Here's what Mr. Coo says about himself

7 and his reports. He says: "My reports are largely a consolidation and

8 presentation of information resident in the documents cited in the

9 footnotes of the reports. Information gained during witness interviews or

10 by reading witness statements is not included."

11 Now, I'll pause there for a second, because this witness statement

12 goes into much detail, partial detail, on the extent to which Mr. Coo has

13 been investigating this case, interviewing and proofing witnesses. I

14 continue at paragraph 9, next sentence: "Where there were assessments or

15 comments in the reports, it was from applying my general military

16 experience to the information in the supporting materials rather than any

17 reliance on other sources."

18 Now, with all due respect to Mr. Coo, if he wants us to believe

19 that he can compartmentalise information that he has absorbed as an

20 investigator, as a member of this team working on this case since 2000, it

21 defies credibility, and one might ask a further question: Why would he

22 compartmentalise? He is on the Prosecution team. His mandate is to

23 assist the Prosecution in the conviction of our clients. He's not an

24 objective observer. He's not mandated as a trier of fact or a trier of

25 law, a professional judge. He's an integral part of the I've been a part

1 which surely he has, and present to you facts.

2 Well, a moment ago I said in paragraph 9 Mr. Coo says

3 that: "Interviews are readings of witness statements is not included."

4 Well, if we look at paragraph 10 of this statement on page 4, page 10, Mr.

5 Coo says he participated in the interview of three of the accused in this

6 case, the questioning of Mr. -- General Pavkovic, General Lazarevic, and

7 General Lukic, when they gave statements to the Prosecution. Paragraph 11

8 he says that he also assisted with the identification of potential

9 non-crime base witnesses.

10 As I said, our submission is he's not just a military analyst;

11 he's an investigator. He's working closely at the structure of this case,

12 the presentation of it, and that is borne out in fact by the reports.

13 Paragraph 12, Mr. Coo says that he was providing technical advice

14 in proofing of witnesses John Crosland, Richard Ciaglinski, Zlatomir Pesic

15 and K82. What Mr. Coo fails to advise us is the following: The witnesses

16 he interviewed not just proofed.

17 Who did he interview? Well, from the VJ he interviewed Nike

18 Peraj, he interviewed K73, he interviewed Aleksandar Vasiljevic, and the

19 Vasiljevic interview, as you may recall, is conducted over a very lengthy

20 period. The disclosure we got fills two folders. There's more. Mr. Coo

21 interviewed John Crosland from the KVM. Mr. Coo interviewed General

22 Drewienkiewicz, Richard Ciaglinski, Dusan Loncar from the MUP. He

23 interviewed K25 and Ljubinko Cvetic.

24 The objection here to Mr. Coo is that he's really performing the

25 task which the Prosecutor has performed in drafting its pre-trial brief

1 and in presenting its opening statement. There the Prosecutor outlined

2 its allegations against the accused. The Prosecution stated the events

3 that they say happened, that are the subject matter of this indictment.

4 Mr. Coo's reports do no more than that and no less. He's repeating the

5 allegations the Prosecutor has based on his reading of materials and

6 interviews and all the other sources that he has considered in the many

7 years he's been a member of this prosecuting team.

8 It does not advance the case or the issues in this case for the

9 Trial Chamber to determine the charges against the accused to hear the

10 evidence of Mr. Coo. It's an analysis of a large body of materials, some

11 of which are exhibits and some of which are not. Now, you've -- Your

12 Honour has pointed out the problem with the footnoting in the tabs. At

13 this point it's virtually impossible -- it was virtually impossible for us

14 to determine by looking at the footnotes whether the items listed in the

15 footnotes are exhibits are not. Last night we received for the first time

16 this table, but certainly some of those materials are exhibits and some

17 are not. Now, Mr. Coo cannot speak to items that are not in evidence.

18 You ruled on that last October, you made a ruling on the admissibility of

19 evidence. But what does he consider? He considers constitutions.

20 JUDGE BONOMY: I think it -- before you advance to that, which I

21 think is a separate matter, I think it's important to bear in mind that in

22 that decision we made it clear that much -- or part of our reasoning was

23 the absence of clarity about the provenance, I think, of some material and

24 also the purpose for which the material was being presented and we clearly

25 envisaged material that had been excluded at that stage coming in under

1 different circumstances, including presentation through a witness. So I

2 don't think that was by any means a final decision on these matters, Mr.

3 O'Sullivan. We were trying to keep control when we made that order.

4 MR. O'SULLIVAN: Your point's well-taken, Your Honour. And if

5 we're talking about Mr. Coo being what amounts to a custodian of records

6 or showing the chain of custody, that's one matter. His report as one can

7 see by perusing it goes well beyond that, and I will come to that point,

8 but your point is well taken and we accept it.

9 But beyond constitutions and legislation, there are references to

10 open sources, books, web sites, as we said interviews with the accused,

11 statements by the accused, public statements in some cases. A review of

12 the documents shows that Mr. Coo lifts sentences out of minutes of the VJ

13 collegium, the Supreme Defence Council, just lifts a sentence out, no

14 context. It would be a 10, 20-page document with the minutes. He lifts

15 one sentence out and tells you what names and what the -- what the speaker

16 in the meeting meant when he said it. This happens over and over.

17 JUDGE BONOMY: Can you identify an example of that for us?

18 MR. O'SULLIVAN: I'll come to that, Your Honour.

19 Now, virtually everything that Mr. Coo says in his report in

20 relation to these underlying materials in the footnotes is either comment,

21 interpretation, opinion, speculation, and conclusion. Now, let's turn to

22 the reports. I submit that in this case this is a book that you can judge

23 by its cover. The title is: "The OTP Military Analyst Report." It's an

24 analyst report. It's prepared as an expert opinion and it's -- but for a

25 few redactions of sections headed "conclusions," it remains an analyst

1 report.

2 If you just turn to the -- and I'll -- I will not go through this

3 whole document with you, Your Honour. It would serve no purpose. But if

4 you look at part 1 of the executive summary, first it's part 1,

5 introduction. Well, that summary is -- goes from pages 2 to 5. Now, if

6 you hold this summary up against the pre-trial brief, there's virtually no

7 difference, which is the point I was talking about earlier. It talks

8 about armed organizations, it talks about the VJ, Supreme Command, MUP,

9 global defence, Joint Command, discipline, and ends with a section

10 called "conclusion." Now, the substance of this material, in my

11 submission, is almost virtually the same as the text of the pre-trial

12 brief, the headings are the same, the contents are the same in a summary

13 form.

14 Let's take a few examples from part 1. If I can direct you to

15 part 1, section A6, paragraph 13. Well, I won't read paragraphs 13, 14,

16 and 15 to you, but paragraphs 13, 14, and 15 provide pure opinion evidence

17 about weapons, weaponry, how they're used, the effect they can have, how

18 they can be used during combat -- the planning of combat operations. This

19 is purely his expert report. Nothing factual about this.

20 Next I'll take you to -- and I believe my colleagues -- one of the

21 things my colleagues will do is direct you to other parts of these

22 reports. But the examples throughout part 1 are replete with what we say

23 is comment and opinion and speculation and narrative and his views about

24 what the underlying materials mean.

25 It gets worse in part 2 in our submission, part 2 of this report

1 and if you go to the first page, again, of part 2 it tells you exactly

2 what it's destined to do. The first page of part 2, introduction on page

3 1. I'm looking at paragraph 2. Mr. Coo writes: "Part 2 examines the

4 structures of the forces of the FRY and Serbia adopted in Kosovo. It

5 examines how these forces were commanded and controlled. In essence, this

6 report seeks to place the structures and methods described in part 1 into

7 the context of the events ..." And it goes on. Paragraph 3 on that same

8 page: "The documents assessed in part 2 corroborate descriptions in the

9 internal organisations of the MUP -- VJ and MUP ..." And it goes on.

10 So by his own admission, this statement -- this report, again, is

11 nothing more than what an expert may do, not what a fact witness could do.

12 In other words, Your Honour, there's no independent quality to this

13 evidence; it's prepared for the purpose of this trial by a member of the

14 team prosecuting this case. It's prepared by one of the parties. And as

15 a fact witness, Mr. Coo is not entitled to give evidence on ultimate

16 issues before the Trial Chamber.

17 Your Honour asked me to give some other examples. Well, I can do

18 that in part 2, part 2A, page 13. I draw your attention to paragraph

19 28. There he's talking about an Albanian component of a local defence.

20 And in that paragraph 28 Mr. Coo writes: "Such a capability would have

21 proven useful. It would have been risky." Well, he's saying what's not

22 there and he's telling you what he thinks would have been helpful to know,

23 what should have been there, what might have been there, how it could have

24 been, and that runs through this whole part 2.

25 Let me take you to part 2D, part 2D, paragraph 1. I'll read it to

1 you: "A number of measures taken late in 1998 and early 1999 serve as

2 indicators of intent at the highest levels in Belgrade to confront the

3 internal security problem in Kosovo with force. This force was to be in

4 the form of a large campaign in which forces of the FRY and Serbia would

5 take the initiative rather than reacting in self-defence or conducting

6 relatively small attacks."

7 He's claiming to know what the intent is. It's a legal issue.

8 He's claiming that it's not an act of self-defence, again drawing

9 conclusions. We know the allegations in this case and that's one of them,

10 but it's not for a fact witness to come here and try to tell you what the

11 facts are.

12 Still in part 2(D) at page 4, paragraph 7, paragraph 7 states:

13 "The sentiments expressed by Milosevic and Milutinovic regarding the

14 conduct of the Pristina Corps under command of Pavkovic at the 8th Session

15 of the Supreme Defence Council appeared dismissive of concerns expressed

16 by, among others, Perisic and international observers."

17 So now he's talking about someone's sentiments and he's qualifying

18 those as dismissive. He's lifting one sentence, qualifying it, offering a

19 fanciful narration of it, or his narration, at least, without any context,

20 and this goes on throughout.

21 One final example, perhaps, and I won't belabour the point. Still

22 part 2(F), page 9, it's paragraph 13, a sentence like this appears

23 regarding discipline. Mr. Coo writes: "A reasonable response to repeated

24 disciplinary problems would be to hold subordinate commanders

25 accountable."

1 So he's offering what his opinion is of a reasonable response.

2 I'll stop there with the examples. As I say, I think anyone

3 reading this and perusing through these two documents can see that these

4 examples are repeated over and over.

5 I'd like to turn to the law briefly, and if I can present to the

6 Chamber and the Prosecution in hard copy, with the assistance of the

7 usher, two decisions. There's one copy for each member of the Bench and a

8 copy for the Prosecutor.

9 The first decision I'd like to draw your attention to is the

10 decision from the Kordic case of 29 July 1999. It's the decision on the

11 Prosecution application to admit the Tulica report and dossier into

12 evidence. In our submission, factually this decision is analogous to the

13 situation we have here, and I turn to paragraph 7 of that decision.

14 Paragraph 7 sets out the Prosecution's proposal of submitting a dossier

15 and a report through an investigator. You see at paragraph 7 the

16 Prosecution has produced two items, the first one being the dossier

17 described in paragraph 7(1) and a report prepared by Mr. Raatikainen,

18 investigations team leader, Office of the Prosecutor.

19 So there was an accumulation of materials that the investigator

20 reviewed, and he prepared a report on the basis of those materials. Now,

21 the materials are not identical to the ones we have, but we say that's a

22 distinction without a difference; Mr. Coo has done exactly that. He's

23 accumulated materials, he's accumulated knowledge of the case, and he's

24 produced a report.

25 In paragraph 8 the Prosecution says: "The Prosecution proposes

1 that the dossier form part of the record of proceedings and that the

2 investigator who has prepared the report should be called as a summary

3 witness to explain the scope and result of the investigation. It is

4 proposed that the investigator be cross-examined by the Defence on

5 relevant matters arising from the evidence contained in the dossier."

6 I'll stop there.

7 The Chamber ruled at paragraphs 19 and 20, paragraph 20 being the

8 operative paragraph. After having reviewed the nonprohibition of

9 admission of hearsay under the Aleksovski appeals decision paragraph 20

10 states: "In the view of the Trial Chamber the position with regard to the

11 report is somewhat different. The investigator is not reporting as a

12 contemporary witness of fact. He has only recently collated statements

13 and other materials for the purpose of this application. He could, in

14 reality, only give evidence that material was or was not in the dossier.

15 The report, therefore, is of little or no probative value and will not be

16 admitted into evidence."

17 We say that this decision is good law. It represents not only

18 fairness to the accused, it preserves the integrity of proceedings where

19 an investigator is asked to give witness as a fact witness. This Mr. Coo

20 is tainted, we say, he cannot be objective. He has a stake in the result

21 of the outcome of this trial.

22 JUDGE BONOMY: One difference here might be that Mr. Coo might be

23 able to relate documents one to the other in a way that would assist us to

24 make sensible use of these documents because he is a person who is

25 familiar with the structure of the army from his investigations, not from

1 his study of the matter as an expert. And in the case that you've just

2 referred to, it's easy to see why the investigator was going to add

3 nothing to the knowledge of the Trial Chamber.

4 MR. O'SULLIVAN: Well, Your Honour, it seems to me that the

5 question he poses is exactly what Mr. Hannis will do at the conclusion of

6 this case. He will tie it together when all the evidence is in, and if he

7 has a basis to make arguments or ask you to draw inferences, he can. But

8 to have a member of his team come in at this point in the trial during the

9 Prosecution case to tell you that is unhelpful and it's unfair to us. How

10 do we cross-examine someone who's chosen a selective universe of

11 documents? Do we say to him: Well, have you looked at this one, have

12 you considered that, Mr. Coo. You're objective. Do you want us to load

13 him up with a hundred documents of our own and say, well, there, does that

14 change your view; should they all be acquitted now? What are the

15 practical aspects of dealing with him?

16 JUDGE BONOMY: [Microphone not activated] -- about the nature of

17 the things that are said in the paragraphs to which you've referred. But

18 this argument is slightly different. I can see the similarity factually

19 between the two cases, but the one you've referred to is a decision simply

20 that it would have provided no assistance to the Trial Chamber for the

21 investigator to come along and say: These are the statements we took.

22 And what I was suggesting to you is there might be a distinction here

23 where somebody with a military background is involved in investigation and

24 can coordinate the documents. And that's separate from expressing

25 opinions like the one you demonstrated, I think, in relation to the

1 sentiments of the first accused and, indeed, Milosevic along with him.

2 Different point, I think.

3 MR. O'SULLIVAN: It's just very hard to achieve, in my submission,

4 what you are suggesting can be done with his reports. If it were just a

5 question of: Here are the documents I received, here's how they seem to

6 connect, I can look the dates of these exhibits, we received them from

7 this and this archive or from this and this source, but it's not just as

8 simple as that. He's looking at statements --

9 JUDGE BONOMY: I understand it's not -- but can you not see the

10 use that that might be to us? I'm not suggesting that's what the report

11 is doing at the moment.

12 MR. O'SULLIVAN: Right.

13 JUDGE BONOMY: But can't you see that that would greatly assist us

14 to have things put into a sensible order by someone who knows what he's

15 talking about when it comes to investigating documents that come from a

16 military source in answer to an RFA, for example.

17 MR. O'SULLIVAN: Not from this person. Of course, it helps to

18 have sense in this huge amount of documentation, but this isn't the person

19 to do it. It just is patently --

20 JUDGE BONOMY: Who is the person to do that?

21 MR. O'SULLIVAN: It's for the parties to do that to present their

22 case.

23 JUDGE BONOMY: Well, yes, to invite us to draw conclusions, yes.

24 I'm not suggesting that would be his task at the moment. No doubt,

25 Mr. Hannis has got submissions on that. We'll have to make a judgement.

1 But on a much narrower view of this it's, I think, possible to see a

2 difference between what the investigator was doing in Kordic and what the

3 person with a military background is trying to do to assist us in this

4 case, short of, obviously, trying to draw conclusions from the documents.

5 Anyway, you've got another authority to refer to.

6 MR. O'SULLIVAN: If someone is going to do that, they should first

7 be qualified and, with all due respect, not be a captain from the Canadian

8 Army. And second of all, should not be employed by the Prosecutor as a

9 member of their team prosecuting the case. I can't take the point any

10 further.

11 JUDGE BONOMY: Yes, again, that's an argument that has force, but

12 I wonder if it is a practical argument in the context of this sort of

13 case. Somebody's got to raid the archives and come along and present the

14 material to the Trial Chamber. It's not simply a question of leading

15 evidence from people who have been the victims of criminal actions. We

16 have to try and see what material in the archives might link that conduct

17 to the actions of the accused, if any.

18 And we're not here as investigators ourselves to do that as it

19 happens, although some might suggest that that's how these Tribunals ought

20 to be set up. We're not here in that role, although we have a wider role

21 here than a simple adjudication role in an adversarial system, it's not as

22 wide to allow us to carry out our own investigations of this nature.

23 MR. O'SULLIVAN: Now, before I move on in response to that, if

24 we're seeking a person who can do that, this person should also have a

25 report or evidence from the plethora Rule 68 material that has come our

1 way, some of which has been selected by Mr. Coo. He should explain all

2 that. He's been involved in the inculpatory material. He says he's

3 worked to identify the Rule 68. Well, His report, if it's going to put

4 this material before you, it shouldn't just be what he considers proves

5 the guilt of the accused. His report, his evidence should go much further

6 and say, "Well, here's the exculpatory material, here's what

7 mitigates -- "

8 JUDGE BONOMY: You can cross him on that.

9 MR. O'SULLIVAN: But, surely, everything cannot be done through

10 cross-examination, Your Honour. With respect, that's too narrow a view of

11 having what you're seeking, guidance and assistance, from someone who has

12 a stake in the outcome of the trial.

13 JUDGE BONOMY: It can be done in two ways. It can be done by

14 cross-examination and it can also be done in the context of a witness for

15 the Defence of a similar nature who can present the exculpatory material

16 in an analysed form; by that I mean coordinated form that makes it

17 comprehensible to the Bench.

18 MR. O'SULLIVAN: Well, we say that doesn't advance the case to

19 have witnesses of that nature.

20 [Trial Chamber confers]

21 JUDGE BONOMY: Now, Mr. O'Sullivan, you have another authority to

22 refer us to.

23 MR. O'SULLIVAN: The second decision is Appeals Chamber decision

24 from the Milosevic case, 30 September 2002. Decision on admissibility of

25 Prosecution investigator's evidence. There the Appeals Chamber upheld the

1 Trial Chamber decision not to admit the summary evidence of investigator

2 Barney Kelly in relation to Racak. Factually, this decision is not

3 precisely on point, because it deals primarily with summaries of -- or

4 analysis of witness statements.

5 We say that the essence and the language and the principle is the

6 same as this case. And I refer you in particular to the concluding words

7 of paragraph 23, where the Appeals Chamber endorses what the Trial

8 Chamber's found in relation to this witness. It says: "Where the summary

9 of material is prepared by an employee of the party who seeks to rely upon

10 the summary, particularly where the accused is unrepresented by counsel,

11 three points are to be taken into consideration." I won't repeat them,

12 you can see them. We say that this Appeals Chamber opinion is consistent

13 and to some extent endorses the Kordic decision, whereby an employee,

14 investigator, who reviews materials selectively and offers conclusions or

15 opinion or comment that favours his side, his party, can have no probative

16 value. It should not be entertained as evidence coming from someone who

17 purports to be a fact witness, because it's not fact evidence.

18 And those are my submissions, Your Honour. We say that in light

19 of the new statement we received yesterday, we have more information that

20 was not available to us in July when you first ruled and now we can see,

21 by Mr. Coo's own admission and a review of the people he has interviewed

22 and worked with, that he is not independent or impartial. He's not. But

23 if you're inclined -- in the alternative, if you're inclined to hear him,

24 we say that the reports as written, replete as they are and incomplete as

25 they are, cannot form the basis of his evidence. And those are my

1 submissions.

2 JUDGE BONOMY: And is that simply a repetition of the argument

3 that you had advanced in response to me a moment ago that he should have

4 taken a more comprehensive view of the material and incorporated the Rule

5 68 exculpatory material? Is that why you say it's incomplete?

6 MR. O'SULLIVAN: It's incomplete for that reason and it's highly

7 selective in what -- from the materials he has chosen, he's selectively

8 lifting out phrases, sentences, portions of documents, minutes,

9 interviews --

10 JUDGE BONOMY: So it's -- you're -- it's really your whole

11 argument but from a different perspective that, albeit if we were to

12 decide he wasn't tainted sufficiently to exclude him, that we should

13 nevertheless exclude his evidence because of its general tendentious

14 nature. Is that the suggestion?

15 MR. O'SULLIVAN: In a nutshell, yes.

16 JUDGE BONOMY: Thank you.

17 Mr. Petrovic.

18 MR. PETROVIC: [Interpretation] Your Honour, we fully subscribe to

19 what our colleague Mr. O'Sullivan said; however, we would like to add a

20 few things that would be specific, either to our situation or which would

21 be an addition in respect to what he said.

22 It seems to us that the OTP in this case did not observe the very

23 essence of your ruling of the 13th of July and your subsequent decisions

24 that have to do with Philip Coo, namely, our understanding of your

25 decision of the 13th of July and also what you said a few moments ago is

1 that Mr. Coo's possible role could be to identify documents to indicate

2 the provenance of these documents, to say how they were found, and

3 possibly to interpret them. However, to interpret them substantively not

4 by binding them up and giving them some sense in the context of the

5 Prosecution case.

6 The Prosecution, since your decision of the 13th of July until the

7 present day, did not make a single effort to observe the essence and

8 spirit of your ruling. What happened? The expert report of Philip Coo of

9 several hundred pages practically remains the same the way it was on that

10 day, on the 13th of July. However, the other day they just redacted a few

11 less important parts and it's been proffered to you as such as a basis for

12 his testimony. Philip Coo's report in terms of its essence, its

13 methodology, the way in which it was written, remain the same; nothing was

14 changed. What was redacted are superficial, cosmetic changes which do not

15 impact the substance of the main problem relating to Philip Coo, that is

16 to say that the OTP from the month of June onwards could have and must

17 have done two things.

18 They had to do the following: The report of Philip Coo or the

19 statement of Philip Coo as a witness in this situation should be adjusted

20 to your idea that guided you in deciding that Philip Coo could not be an

21 expert, or another thing that would be even better is to find another

22 independent person, an independent analyst, who does not have such ties to

23 the OTP. And that is my understanding of your ruling from last year. The

24 Prosecutor didn't do either one of these things. You have before you a

25 report which only differs in a minor, cosmetic way from what we had in

1 July and which is in its very essence an expert report. It cannot be a

2 witness statement as witness statements are before this Trial Chamber in

3 this Tribunal.

4 Also, there is another thing that pertains to the document itself

5 that we are talking about, and I would like to indicate that in

6 particular; namely, since nothing has been done about this document in

7 actual fact, it actually consists of different levels of opinions that Coo

8 wants to bring into the evidence of this case. He analyses documents and

9 then he gives his own judgement. Sometimes he has a situation from one

10 particular year, say from 1998, and then he resorts to analogy as a

11 logical operation and then infers things for other years. There are some

12 cases where he doesn't really have any evidence and yet again he does draw

13 some conclusions on the basis of -- I can only assume this -- his military

14 experience or his role in the OTP team about which my colleague

15 Mr. O'Sullivan spoke.

16 So, quite simply, the report that is before you is not a basis.

17 If the Court does not accept Mr. O'Sullivan's argument that Mr. Coo should

18 not be heard at all -- but anyway, even if that were not to be the case,

19 what you have in writing should not be admitted as it is. I have many

20 things that support what I have been saying.

21 JUDGE BONOMY: Are you going to give us some examples?

22 MR. PETROVIC: [Interpretation] Yes, Your Honour.

23 I am going to give you some, but if the Trial Chamber believes

24 that I should enumerate all of them, we can deal with this very briefly in

25 writing. I will give some which I believe are an illustration of what

1 I've been saying. For example, in the paragraphs that precede the

2 addendum of Philip Coo's report, that is, the document from November 2006,

3 in the preceding paragraphs in respect of paragraph 10 of the addendum,

4 Philip Coo analyses the minutes of the meeting of the 29th of October,

5 1998, and then in paragraph 10 he says: "While the meeting of the

6 interministerial staff of the 29th of November dealt with events in 1998,

7 it is of relevance to 1999," he says. "The insight provided into how the

8 security situation in Kosovo was dealt with using the joint command is

9 assessed as the model for how a similar situation was dealt with in 1999."

10 When there is a state of war, when the situation is completely

11 different on the ground in Kosovo. So Coo, by resorting to analogy,

12 establishes what happened in 1998 and then he says that's the way it must

13 have been in 1999. That is impermissible. It is an impermissible

14 approach. It is impermissible conclusion and thinking and it runs against

15 the grain of your decision and that would be the only rational reasoning

16 in this matter. Then in paragraph 14 of this same document of 2006, Coo

17 concludes, he says: "The orders of the Joint Command were decisions made

18 by the Joint Command. These decisions were reached with the involvement

19 of the civilian VJ and MUP leadership in Kosovo."

20 This is, again, arbitrary conclusion on Coo's part. He does not

21 give a shred of evidence in this paragraph on the basis of which anyone

22 could claim that any civilians in 1999 were members of a body that he

23 calls a Joint Command. Again, he draws on a parallel to 1998 and he

24 concludes that if in 1998 there were some civilians in some body which

25 denotes a Joint Command, then that would have to be the case in 1999 as

1 well.

2 In paragraph 14 also, the same paragraph, he says: "The orders of

3 the Joint Command from 1999 contain a lack of a seal. That is a

4 shortcoming." That would be wrong for a combat report. He doesn't really

5 have anything on this, and just claiming this out of the blue is wrong.

6 From the point of view of structure, if you look at his report you

7 will see that he resorts to analogy whenever he cannot find any facts.

8 So, for example, in the second part of his report in section B he says

9 that there is something that is called a Joint Command in 1998. In 2001

10 in southern Serbia there is something that he is trying to match to what

11 existed in 1998 and then he concludes: If something exists in 1998 and

12 then if in the same state under the same laws there is something in 2001,

13 then that has to be what was done in 1999, too. So that would be the

14 second part of his report, paragraphs from 40 through 45.

15 In the first part of the report in section A, on control and

16 command, the Army of Yugoslavia, for instance, there are 114 paragraphs.

17 In paragraph 113 out of the 114 --

18 JUDGE BONOMY: Just let me catch up with you, Mr. Petrovic.

19 I was just trying to see what paragraphs 40 to 45 of part 2 are

20 about, and I follow that now. Thank you.

21 Your next point, section A.

22 MR. PETROVIC: [Interpretation] Yes, Your Honour. So in the first

23 part of the report now in section A he talks about control and command of

24 the Army of Yugoslavia. As I said, there are 114 paragraphs in that

25 section. In paragraph 113 under "Conclusions," Coo says that -- actually,

1 he speaks of principles of command in the Army of Yugoslavia and he said

2 there were some refinements to this associated with a body called the

3 Joint Command." In 112 paragraphs of that same section there is not a

4 single word about this, a Joint Command; however, in "Conclusion" after

5 the 112 paragraphs, in paragraph 113 he comes up with this kind of

6 assertion.

7 I will give you yet another example where Coo makes an

8 impermissible selection of evidence that is given along with his report,

9 and he makes this selection in a way that actually proves -- is set up to

10 prove -- to prove the Prosecution case. In paragraph 115, he says

11 that: "The Joint Command was established on orders from the president of

12 the FRY in June 1998" --

13 JUDGE BONOMY: Where is paragraph 115?

14 MR. PETROVIC: [Interpretation] Your Honour, that is the first part

15 of the report, section D of that report, paragraph 115.

16 JUDGE BONOMY: In section D I don't have anything like 115

17 paragraph.

18 MR. PETROVIC: [Interpretation] Just a moment, please, Your Honour.

19 Your Honour, I can give you the ERN number if that will help.

20 JUDGE BONOMY: No. You're dealing with part -- the first part of

21 the report, section D.

22 MR. PETROVIC: [Interpretation] Yes.

23 JUDGE BONOMY: And section D is headed: "Supreme Defence

24 Council, Supreme Command, and Joint Command for Kosovo."

25 MR. PETROVIC: [Interpretation] Yes, Your Honour, yes.

1 JUDGE BONOMY: It's a much shorter -- it only has 18 -- 20

2 paragraphs.

3 MR. PETROVIC: [Interpretation] Your Honour, in the version that is

4 in front of me, the first paragraph is 100 and then there is this

5 paragraph that I've been referring to, 115, but now I'm going to take a

6 look. Yes, in the English version it is --

7 JUDGE BONOMY: So does the paragraph start: "The regular members

8 of the SDC were the FRY president and presidents of Serbia and

9 Montenegro ..."?

10 MR. PETROVIC: [Interpretation] Your Honour, now with the

11 assistance of my colleagues I found it because obviously there is a

12 difference. There is a confusion in the paragraphs between the Serbian

13 and the English versions. So could you please look at paragraph 16 of

14 what is in front of you. That is what I started talking about.

15 JUDGE BONOMY: Which begins: "The Joint Command for Kosovo was

16 created in June 199" --

17 MR. PETROVIC: [Interpretation] Yes, Your Honour.

18 JUDGE BONOMY: Thank you.

19 MR. PETROVIC: [Interpretation] So in that case, an impermissible

20 selection is being made in one and the same evidence. The sentence that

21 you just read out is taken out of a letter from the 12th of July, 2000,

22 the Ministry of Justice of the FRY and that is exactly what is stated

23 there, as Coo says. However, in this same report of the 12th of July,

24 2002, already the next sentence says: "The mentioned command functioned

25 until October 1998." Coo ignores already the very next sentence.

1 In the first sentence he establishes that something was in

2 existence in 1998 and then the next sentence, that gives a more specific

3 time-frame, does not exist for him. End of story after sentence 1. So

4 that kind of selectiveness, Your Honour, cannot be of any use to you when

5 making any decision. And it shows partiality; it shows the impermissible

6 level of partiality about which Mr. O'Sullivan spoke a few moments ago.

7 JUDGE BONOMY: Well, just please hold on again. I can't find the

8 sentence you're referring to.

9 MR. PETROVIC: [Interpretation] Your Honour, that's the point. The

10 document -- you will see that in paragraph 16 --

11 JUDGE BONOMY: I'm sorry.

12 MR. PETROVIC: [Interpretation] Footnote 25. Your Honour, if it

13 wasn't clear enough, the first sentence he --

14 JUDGE BONOMY: Yes.

15 MR. PETROVIC: [Interpretation] The first sentence is the one he

16 bases on a document, and the second sentence that I am telling you about

17 is the very next sentence in that document and he simply ignores it.

18 That's footnote 25, along with this part of the report.

19 Further on, Your Honour, by your leave ...

20 JUDGE BONOMY: Yes.

21 MR. PETROVIC: [Interpretation] In section B of part 2 of the

22 report, paragraph 34, Coo draws his own conclusions and makes certain

23 observations on the basis of the minutes of the Joint Command. In A, in

24 paragraph 34, he speaks of the form of meetings, which is already

25 opinion. It is not mere analysis or interpretation of a document. Under

1 D, in the same paragraph 34, he makes a categorisation of the participants

2 in the meeting. He analyses the document that is denoted as the minutes

3 of the Joint Command. He says how many people belonged to this circle

4 that he calls the Joint Command and then he says the members of the Joint

5 Command for which it was assessed that they belonged to the key group. He

6 gives these names in bold letters. So he not only analyses things; he

7 makes a selection as to who the key people are and who the people who are

8 not the key people are.

9 Your Honours, it will be for you at the end of this trial to

10 decide on that. It can certainly not be of assistance to you to have this

11 kind of selection made by Philip Coo.

12 Also, under C, in the very same paragraph 34 - that is what I'm

13 referring to - he analyses the same document and he establishes who it was

14 that provided direction, who had the authority to provide direction. All

15 of that is opinion. All of that is not testimony about the document.

16 Under F, as for the reporting of the Joint Command, in the same

17 paragraph 34 he says: "All of this leads to the conclusion that the Joint

18 Command received its direction from the president of the FRY."

19 Your Honours, all of these are telling examples of reaching his

20 own conclusions, not the kind of evidence that you need.

21 A special paragraph -- a special problem in relation to paragraph

22 34 in terms of your own decision-making is --

23 JUDGE BONOMY: Sorry, but before you move on, where is the --

24 which section draws the conclusion about the president of the FRY?

25 MR. PETROVIC: [Interpretation] Paragraph 34(F), Your Honour.

1 JUDGE BONOMY: As early as that -- yes, sorry, sorry.

2 [Trial Chamber confers]

3 JUDGE BONOMY: Yes, Mr. Petrovic.

4 MR. PETROVIC: [Interpretation] Your Honour, a special problem in

5 relation to this paragraph is the fact that your decision of the 15th of

6 February, 2007, deals with this document, P1468, and you excluded it. And

7 you say that there is not sufficient indication of the reliability of this

8 document in order to attach probative value to it. So everything that Coo

9 says in that paragraph is, quite simply, based on this document that you

10 have already decided upon and in the way in which you did decide.

11 Now I would like to look at paragraph 35, the next paragraph

12 already --

13 JUDGE BONOMY: Again, this is a decision made on the 15th of

14 February.

15 MR. PETROVIC: [Interpretation] Yes, Your Honour, that is your

16 decision that has to do with exhibits that were tendered through

17 Aleksandar Vasiljevic, and your decision was that this exhibit, P1468,

18 should not be admitted. This whole paragraph that I've been talking about

19 is based on that document only.

20 JUDGE BONOMY: Yes.

21 MR. PETROVIC: [Interpretation] Your Honour, the next paragraph,

22 35(F) -- I'm just giving you examples; I'm not giving you each and every

23 case where this occurred. I'm just giving you examples. The

24 communications plan is analysed there, so the Joint Command is part of

25 this. And then he says: "The call signs for the Joint Command confirm

1 the assessment that the planned action was carried out under supervision

2 of the Joint Command."

3 THE INTERPRETER: Interpreter's note: We did not find the exact

4 reference in English.

5 MR. PETROVIC: [Interpretation] So he draws his far-reaching

6 conclusion on the basis of that, that this entire action was carried out

7 under the supervision of the Joint Command.

8 Furthermore, in continuation of this very same paragraph, he says

9 that the Joint Command had a two-fold function, that it had its full

10 complement, so to speak, where the civilians and MUP were in terms of

11 strategic planning and then the operative composition that was engaged in

12 combat operations.

13 Your Honours, all of this is impermissible on the part of Philip

14 Coo. This is, again, selective conclusion.

15 35(M) analyses the document of the 23rd of March, 1999, and it's

16 called "Order," this document is. So now, on the basis of this fact that

17 this document is called "Order," he concludes the following: The Joint

18 Command had executive authority because the subheading and the order's

19 contents provide that. That is also impermissible.

20 In paragraph 35(R), he says Stevanovic took notes at the meeting

21 of the Joint Command. And he says although no one else is referred to in

22 relation to the Joint Command, for example, Sainovic, that does not mean

23 that they were not present. That is not only an example of drawing

24 conclusions but also construing evidence, of speculating.

25 Your Honour, it seems that we have a problem with the transcript.

1 JUDGE BONOMY: I think certainly your reference to 35(R) has not

2 been picked up.

3 MR. PETROVIC: [Interpretation] Yes, Your Honour. My colleague

4 tells me that everything I said for 35(R) was not noted and I will repeat

5 it.

6 THE INTERPRETER: Interpreter's note: It was just interpreted but

7 not read verbatim from the original text.

8 MR. PETROVIC: [Interpretation] It says: "Stevanovic took notes at

9 the Joint Command meeting." And then, Coo says: "Although none of the

10 other people associated with the Joint Command, for example, Sainovic, are

11 mentioned," and our question is why particularly Sainovic. This does not

12 preclude their presence. So that is an example, as I said, not of drawing

13 a conclusion. It is construing evidence.

14 What is of particular interest, along with the second part of the

15 report, in addendum 1, there is a table that was made by Philip Coo

16 himself, and he says that is a table of persons in key positions, so on

17 and so forth. He concludes that Nikola Sainovic is leader of the Joint

18 Command for Kosovo. Again, he draws a conclusion --

19 JUDGE BONOMY: Can you give me a page for that, please. This is

20 the addendum. There are various paragraphs and then --

21 MR. PETROVIC: [Interpretation] Annex 1, along with the second

22 part, at the end of the second part of the report. So it's the first

23 document. When the narrative part ends, immediately after that comes

24 annex 1, "Key Personnel," "Appointments," "Promotions," and so on.

25 JUDGE BONOMY: Thank you.

1 MR. PETROVIC: [Interpretation] Now, in this document --

2 JUDGE BONOMY: I have it, Mr. Petrovic. Thank you.

3 MR. PETROVIC: [Interpretation] In that document, Your Honour, he

4 gives a source for this conclusion, and he says that the source are the

5 minutes of meetings from the 7th until the 10th, in 1998. In 1998 there

6 was not a state of war; in 1999, there was. Again, he's using the wrong

7 kind of analogy, and he even gives an assessment. He says in relation to

8 these meetings, Sainovic had one of the most authoritative roles in the

9 Joint Command. Again, this is an example of drawing a conclusion.

10 The part that is an assessment of the Joint Command, again it is

11 part of this arbitrary concluding - and I don't want really want to burden

12 the Trial Chamber with any more of this - but it seems to me that as for

13 such examples that I have been giving -- I could go on for hours this way.

14 So may I conclude and may I thank you for the time given to us.

15 Philip Coo, first and foremost, is not eligible to be a witness in this

16 case. What was proffered as a basis for his testimony is either, as

17 Mr. O'Sullivan said his Prosecution pre-trial brief looks like final

18 arguments to me, and that is probably the kind of final arguments we are

19 going to hear at the end of this trial. So what is being offered now is,

20 quite simply, impermissible as a basis for his testimony.

21 What we are saying is that we ask the Trial Chamber to exclude him

22 as a witness and if the Trial Chamber does not act in that way, we kindly

23 ask that a witness statement be prepared in the spirit of your decision of

24 the 13th of July, last year, where he will identify documents and where he

25 will not in any way go into the exclusive right and responsibility of the

1 Trial Chamber. And that is what Coo had done in many, many different

2 sections.

3 Thank you, Your Honour.

4 JUDGE BONOMY: Thank you, Mr. Petrovic.

5 Mr. Visnjic, do you have any submissions to make?

6 MR. VISNJIC: [Interpretation] Your Honour, we join the things

7 stated by our learned friends. Nothing further to add.

8 JUDGE BONOMY: Mr. Ackerman.

9 MR. ACKERMAN: Your Honour, I'm going to try to be very brief

10 because the waterfront has been reasonably well-covered I believe.

11 I think if I were to tell you at the beginning what I would ask

12 you to do I would, first of all, ask you to refuse to accept the report of

13 Mr. Coo, since it is nothing more than the expert report that existed when

14 you made your ruling in July. You have to look real hard to find a

15 redaction. You might find one about every 50th page, and it may be a

16 phrase, it's nothing more than that.

17 In your discussion with Mr. O'Sullivan, you were talking about how

18 it would be helpful to the Chamber to have Mr. Coo make links between the

19 various documents that are in this -- this database of documents that

20 exist in this case. And it certainly could be helpful to the Chamber for

21 someone to do that, but Captain Coo has selected the documents that he

22 would make links for and he selected them in his role as a member of the

23 Prosecution team. And so you're not going to get independent links from

24 this particular witness.

25 As Mr. O'Sullivan pointed out, he's not reported to you on the

1 full body of documents that are available in this case, but only those

2 which he thinks will support the Prosecution's position as set out in the

3 indictment and the pre-trial brief.

4 Now, your decision on not allowing Captain Coo as an expert was

5 made long ago, back in July. The OTP could have found a military expert,

6 an independent military expert, not part of their team, to come here and

7 assist you with that matter in making those links and found someone that

8 was competent to do that, a colonel or a general, and not a captain. Your

9 Honour, captains are tactically trained, they are not strategically

10 trained, and yet he is here as a captain trying to give you his

11 conclusions and opinions based on documents that are drafted at a

12 strategic level which he has nothing about. He's not a graduate of West

13 Point, he's not a graduate of Sandhurst, or any comparable military

14 academy. He's not a graduate of any staff and command college. He never,

15 as near as I can tell, commanded a unit in the army. He was simply always

16 a staff officer on the staff of some person who was commanding units in

17 the army. So his competence isn't even sufficient to do what it is that

18 would be helpful.

19 I suggest to you that the Prosecution seeks to put Captain Coo up

20 there on the Bench with you. They want him to sit here in this

21 witness-stand and tell you, as if in a Chamber's conference, that he's

22 looked at the evidence in this case and that he's drawn certain

23 conclusions from it which you should adopt.

24 With all respect, Your Honours, that is your job, perhaps assisted

25 by the final submissions of counsel in this case. What role can Captain

1 Coo perform in this case? He can perform a very important one. He can

2 assist Mr. Hannis in drafting the submissions he will make to you, assist

3 him in telling you how documents come together, but he shouldn't be

4 permitted to come in here and make the submission on behalf of Mr. Hannis,

5 which is what the report does and what his proposed testimony does.

6 You've ruled that he may not testify as an expert. The

7 Prosecution has determined that they are not going to call a military

8 expert to assist you in this regard and yet they continue to try to

9 present Captain Coo as a military expert. Your 13 July decision said

10 this: "It's appropriate for him as an investigator to give evidence on

11 matters of fact, and indeed we will be greatly assisted, we have little

12 doubt, by his evidence in relation to matters of fact identifying what

13 documents he found."

14 Now, I don't know if you expected, but I think it was a reasonable

15 expectation to look forward to a witness statement that would be put

16 together by the Prosecution with Mr. Coo's help to accomplish what it is

17 Your Honours said would be appropriate for him to do. Months went by, and

18 nothing came from the Prosecution in that regard. Several times since

19 then and many times recently, the OTP has been put on notice that there

20 would be a hearing about this matter, that this matter would be subject to

21 a discussion in front of the Chamber.

22 And, Your Honour, now I have a basic complaint. Yesterday at the

23 end of the hearing Mr. Hannis indicated that Mr. Petritsch would be

24 available today rather than tomorrow. At about 12.25 yesterday, Your

25 Honour indicated that there was a possibility, although not a great

1 likelihood, that the Coo matter would be the subject of submissions this

2 morning. At 4.53 p.m. Yesterday, Mr. Haider circulated an e-mail

3 indicating that the Coo matter would come up at 9.00 this morning. At

4 5.53 p.m. yesterday an e-mail was circulated by the Prosecution including

5 a new Petritsch statement and exhibit. At 6.00 p.m., an e-mail was

6 circulated containing proposed redaction to Coo reports, taking some time

7 to look at those, what they really were were the reports we already had

8 with page numbers put on them. And then at 6.55 p.m. last night before a

9 hearing at 9.00 this morning, an e-mail was circulated containing a brand

10 new Coo statement, an exhibit list of additional documents proposed for

11 use during his testimony.

12 Now, Your Honour, this kind of thing, this last-minute provision

13 of new material has occurred repeatedly throughout this trial. The

14 Chamber and counsel have been, I think, more than understanding of the

15 proposition that things do tend to happen at the last minute, especially

16 when you talk to witnesses for the first time in months the day they're to

17 take the stand. And I have been understanding of that and I think Your

18 Honour has an understanding of that; however, this Coo matter is very

19 different. He works at the ATP, he's there every day, presumably. They

20 can talk to him any time. They've known since July that this hearing

21 would take place and what it would be about.

22 The only conclusion I can draw with regard to material being

23 provided to us at 6.55 last night, which I'm sure many of us didn't even

24 see until this morning, is it was done deliberately by the Prosecution to

25 make it more difficult for us to make submissions to you this morning

1 regarding that new material, because there is no other -- there is no

2 other explanation. They've had since July to deal with this issue.

3 This new statement that came last night, I think, is revealing

4 with regard to whether you should permit the report of Captain Coo and the

5 testimony that he proposes to give based upon that report. As paragraph 9

6 on page 3, Coo says this: "In their most current form," which is the same

7 form basically you had in July, "my report should simply be the

8 consolidation by someone with a technical understanding of armed

9 organisations of discrete bits of information from a diverse set of

10 documents."

11 Now, first of all, his reports are a great deal more than that, as

12 Mr. O'Sullivan has pointed out to you. His reports deal with

13 constitutions, laws on defence, laws on this and laws on that, and those

14 are not matters that are in the province of someone with a technical

15 understanding of armed organisations. Your Honour, my colleagues have

16 given you examples of places in his report that they argued to you are --

17 are either conclusory or the province of an expert or simply submissions

18 that should be made by the -- by counsel and not by a witness.

19 The challenge is not to find the paragraphs that fit into that --

20 those categories; the challenge is to find a paragraph in the report that

21 does not. And so I could stand here, as Mr. Petrovic told you, I could

22 stand here for hours pointing you to paragraphs that have that conclusory

23 nature to them but it wouldn't take very long to find for you the ones

24 that don't. There aren't very many of them.

25 If what it really was that he was presenting to you was a

1 consolidation of discrete bits of information by one with a technical

2 understanding of armed organisations, that is a classic definition of what

3 an expert report is. After all, what is an expert but one with

4 specialised knowledge who consolidates bits of discrete information into

5 an understandable form, an exercise that presumably judges not sharing the

6 expertise are unable to do themselves. As the Chamber made it clear in

7 his 13 July order, he's not appearing here as a witness to provide the

8 Chamber with an analysis of data based on his technical understanding of

9 armed organisations but as an investigator. The Chamber said that

10 clearly.

11 JUDGE BONOMY: Mr. Ackerman, I'm not -- I mean, I understand what

12 you're submitting, but I think the strength of your argument may be the

13 difference between what's said in that sentence and what's actually done

14 in the report, rather than submit your submission that what's said in the

15 sentence is the definition of an expert. If, for example, where there is

16 an order and that order is preceded by some other authoritative document

17 which isn't an order but may be described to us as a plan of some kind of

18 action, then it is good for us to hear from someone who has an

19 understanding of these things what the temporal relationship appears to

20 be. It is for us, then, to draw conclusions of what that amounts to. A

21 military expert of a far more senior grade might also -- and who's

22 independent, might, I think, draw conclusions that we could rely on. But

23 we decided we would not rely on that type of conclusions for Mr. Coo, but

24 we did expect him to put the documents in some sort of temporal scheme

25 that would assist us to see how they might relate to each other and draw

1 our own conclusion.

2 MR. ACKERMAN: Yeah, I understand that was your expectation.

3 JUDGE BONOMY: That doesn't make him an expert in the sense of an

4 expert for this Tribunal; it makes him an investigator who's looked at

5 things with the technical knowledge of somebody who's been in the army.

6 You probably could do some of this yourself.

7 MR. ACKERMAN: I could, but I don't think you want me testifying.

8 JUDGE BONOMY: No, indeed. But you might feel capable of doing it

9 to some extent and you might also feel that your submissions to us will

10 have an extra degree of strength because of the confidence you get from

11 having had that experience.

12 Now, we don't see that as being an intrusion on the role of an

13 expert in this case, where we have to have some guidance about the

14 documents and we have to have them presented in a way that makes them

15 comprehensible to us.

16 So I would not read quite as much into the sentence that you do,

17 but I think the criticism that's been advanced by you and has been --

18 advanced in more detailed form by the two preceding counsel is a very

19 weighty criticism that we must evaluate it.

20 MR. ACKERMAN: Well, Your Honour, you just said:

21 "If, for example, there is an order and that order is preceded by

22 some other authoritative document which isn't an order but may be

23 described to us as a plan of some kind of action, then it's good for us to

24 hear from someone who has an understanding of these things, what the

25 temporal relationship appears is." Of course it is and I wouldn't suggest

1 otherwise. But that's not what Philip Coo was doing for you, even though

2 you said that's what you wanted him to do for you back in July.

3 JUDGE BONOMY: All I'm trying to do at the moment is distinguish

4 what we see as expertise in this context from, I think, the narrower

5 definition that you were possibly advancing.

6 MR. ACKERMAN: Okay. If you look carefully, Your Honour, at his

7 report, what you see is a report by an advocate advancing a position, as

8 part of the Prosecution team, that is mostly in the nature of a submission

9 or a summary of the evidence, which I think is inappropriate.

10 Now, the other thing that I think is very, very important, and

11 that is that late last night we were given this document that lists all

12 the tabbed documents and exhibit numbers. Because of the lateness of the

13 arrival of that, there's been no opportunity at all to determine which of

14 those exhibits actually has been admitted, which of them have not been

15 admitted, and some specifically not admitted, as Mr. Petrovic pointed

16 out. And before you hear anything from Mr. Coo regarding any of these

17 documents, it seems to me that the decisions first have to be made on

18 whether those not admitted are to be admitted or excluded.

19 And I know, for instance, that several of them, just looking at

20 the tabs in the Coo report, are things that were taken from journalistic

21 sources, web sites, things of that nature. I have no idea what the

22 authenticity of those is, and you haven't seen them so I don't think you

23 do either. So any report or any testimony based on documents, I suggest,

24 that are not part of the evidence in this case would be totally

25 impermissible. And we haven't gotten anywhere near that point, because

1 all we've gotten, finally yesterday, is this rather large document of

2 concordance between the tabs and the exhibit numbers but no indication

3 what the status of those exhibits is.

4 I think I've taken enough time.

5 JUDGE BONOMY: In spite of that problem, which we will obviously

6 have to consider the significance of, we are obtaining considerable

7 assistance from counsel in addressing the approach we ought to take to

8 this evidence. Thank you, Mr. Ackerman.

9 Mr. Bakrac, do you have submissions?

10 MR. BAKRAC: [Interpretation] No, Your Honour. We join everything

11 that was said by our learned friends.

12 JUDGE BONOMY: Mr. Ivetic.

13 MR. IVETIC: Yes, Your Honour, I do. Should I begin now?

14 JUDGE BONOMY: How long do you think you will be?

15 MR. IVETIC: Five to eight minutes, is what I had planned.

16 JUDGE BONOMY: Can I ask the interpreters if they would bear with

17 us for that additional period and then we might have a slightly longer

18 break.

19 THE INTERPRETER: Yes, Your Honour.

20 JUDGE BONOMY: Thank you very much.

21 We will hear you and then we will break before we hear Mr. Hannis.

22 MR. IVETIC: Thank you, Your Honour. I will try not to repeat the

23 matters that have already been stated by my colleagues, but I do want to

24 highlight a few points.

25 As was mentioned by my colleagues, the Coo material is said to be

1 based on his "general military experience." Your Honours also stated that

2 the familiarity of Mr. Coo with the structure of the army could assist

3 you. The one thing that has not been highlighted is that Mr. Coo has no

4 experience, background, et cetera, with respect to the police.

5 The report that has been tendered to us goes beyond merely

6 presenting documents that he acquired in his role as an investigator with

7 the Tribunal, with the OTP; it goes towards analysing these documents,

8 drawing conclusions upon these documents, and, in particular with respect

9 to the MUP, analysing these documents from a military perspective,

10 utilising military terminology and military understanding of how units

11 function.

12 The report throughout, when dealing with the MUP, says, "It is

13 assessed that" or "It is probably so." Indeed, with respect to at least

14 several instances I can remember from dealing with the RDB, it is

15 specifically said: "Little information is available because of the

16 secretive nature of the RDB. No documents were available, but it is

17 assessed that the RDB functioned" thus and so.

18 Those are improper for a fact witness. Whether we call him an

19 expert, a pseudo-expert, or merely an opinion witness, he, based upon the

20 order of the Court from July, cannot render speculation, conclusions, et

21 cetera, in his report, even if those conclusions/speculation are based

22 upon the documents that he is tendering into evidence and giving us

23 information about the provenance of.

24 I'd like to highlight just a few points. For instance, in part 2

25 of his report, there is a section entitled (E): "Association of FRY and

1 Serb Organisations and Units with Crimes." This section does not relate

2 to documents that Mr. Coo is tendering or has analysed; this purports to

3 be a lesson to the Trial Chamber of how witnesses ought to be interpreted,

4 how witness testimony ought to be interpreted, and what witnesses really

5 mean when they say "paramilitaries"; and what inferences ought to be drawn

6 from the testimony of witnesses as to descriptions of units and whom they

7 belong to.

8 That section, and it's linked to the appendices A through C of

9 part 1 of the part, and indeed in part 1 of the report, I think it's page

10 127, in particular several paragraphs where it is said: "These could be

11 or probably are what witnesses meant when they referred to

12 paramilitaries." These types of inferences are impermissible in any form,

13 let alone from a person who is supposed to be a fact witness, essentially

14 being the linkage for documents that were received from official sources

15 to the Trial Chamber to assist in terms of understanding those documents.

16 This report and these sections of it, in addition to the other

17 sections - I'm only highlighting something that hasn't been touched upon

18 because I think it's important - go well beyond and intrude upon the

19 providence of the Trial Chamber to make these determinations.

20 I submit it's improper for the OTP, through any witness, to make

21 such a submission. And I'm baffled that it's in this report, in this

22 form; to have a witness, a fact witness from the OTP, one of their

23 investigators, tell the Trial Chamber: "Well, when the witness says X, Y,

24 and Z, they really mean this" or "It should be inferred that they refer to

25 this." That is improper, I think, in any form and I think that --

1 JUDGE BONOMY: Can you identify just a specific example of that?

2 MR. IVETIC: Sure. Page 98 is open on my screen.

3 JUDGE BONOMY: Yes.

4 MR. IVETIC: I apologise. I'm trying to find the exact paragraph

5 that I had been reading in my --

6 JUDGE BONOMY: Yeah, I think I see the -- paragraph 2 in that

7 page.

8 MR. IVETIC: Paragraph 2 in that page is one, but there is one

9 that was particularly -- that I thought was particularly interesting in

10 terms of -- paragraph 4 on the next page is also one of these that is

11 troubling, because it says: "When a distinction between military and MUP

12 cannot be made easily, it is still possible to demonstrate that the

13 attacking organisation was, nevertheless, an official organised armed

14 group." In essence, it goes on to state that: "With the number of

15 persons there, it was too organised and there would not have been the

16 possibility for other outside groups to do it." That's, I believe, in the

17 following paragraphs.

18 In essence, what is trying -- what is trying to be done here is to

19 provide linkage to the armed official entities of the state organs over

20 whom the accused may have had some linkage to with the events that

21 witnesses have testified to. Essentially, Mr. Coo is trying to fill the

22 gaps of the OTP's fact witnesses, and in this section in particular. And

23 I think that is impermissible. And I think pretty much in this section,

24 most of the paragraphs relate to that, and several times -- for example,

25 paragraph 6, "Witnesses also might describe a mix of uniforms." And it

1 goes on to give a lecture or instruction on how that should be

2 reconciled. Again, these are not relating to documents, these are not

3 relating to anything that would be admissible through Mr. Coo, and I think

4 for those reasons and the reasons that have been addressed by my

5 colleagues, either Mr. Coo ought not testify or this material should be

6 precluded from his testimony and should be limited to what I thought he

7 was going to be doing, which is introducing documents received from

8 official sources and assisting the Trial Chamber with respect to the

9 temporal linkage of those documents; that is to say, which documents are

10 or were said to be in full force and effect.

11 And I don't know if he can go that far, because he does make

12 certain conclusions, for instance, page 29 of part 1, where he just

13 assumes that laws from the old JNA might be identical to VJ documents that

14 he didn't have in his possession and therefore might apply. I can make

15 the same kind of speculation, but I surely wouldn't expect the Trial

16 Chamber to rely upon that. And I think in this instance, based upon the

17 lack of material that Mr. -- based upon the basis for Mr. Coo's

18 statements, I don't think he's better qualified than I am to make any such

19 speculations or counterspeculations.

20 So these are all problems that I think need to be addressed if,

21 indeed, we are to have Mr. Coo offer any testimony that would be

22 probative, relevant, and appropriate for this matter.

23 I thank you for the time.

24 JUDGE BONOMY: Thank you, Mr. Ivetic.

25 Mr. Hannis, how long do you think you might take to respond?

1 MR. HANNIS: No more than a half an hour, Your Honour.

2 JUDGE BONOMY: Very well. It's unlikely we'll be able to make an

3 immediate determination of this, so your witness should be available in

4 half an hour after the break.

5 We'll break now until five minutes past 11.00.

6 --- Recess taken at 10.42 a.m.

7 --- On resuming at 11.13 a.m.

8 JUDGE BONOMY: Mr. Hannis.

9 MR. HANNIS: Thank you, Your Honour.

10 Now, I want to begin by pointing out that we are in your hands on

11 this matter; it is up to your discretion, Your Honour. We think under

12 Rule 89(C) you should find this evidence as helpful and relevant and that

13 you should allow Mr. Coo to testify and for his reports to be admitted.

14 Now, whether we call him an expert or an analyst or a summary witness or a

15 fact witness or a custodian of records, I think that's your focus, is that

16 evidence helpful to you and would it be prejudicial to the Defence to

17 allow this evidence in. We say no, for reasons that I'll discuss as we go

18 along.

19 I want to address some of the specific remarks by my learned

20 friends across the way. Mr. O'Sullivan began by talking about one of the

21 problems was Mr. Coo's closeness to the OTP and the Prosecution. And when

22 he mentioned about his being a part of this team and having testified in

23 Milosevic, he failed to mention, conveniently perhaps, that Mr. Coo has

24 also testified in this Tribunal as an expert witness in the Limaj case, a

25 prosecution against a KLA individual. We say that that goes to show his

1 impartiality and his lack of bias.

2 We also say that basically everything in his report is tied to a

3 document or documents. There are issues about the sources that have been

4 raised, but we say that goes to the weight. There are issues that some of

5 what he says are conclusions. But there are different kinds of

6 conclusions, Your Honour, and there is a scale or a continuum. For

7 example, I could be called somewhere to be a witness about this trial or

8 about lawyers in this case, and although I might not qualify as an expert

9 witness, I've been in courtrooms for 25 years or so, I've watched a lot of

10 trials, I've watched a lot of lawyers, and I might say that a particular

11 lawyer on the other side was somewhat long-winded or I might say a lawyer

12 on the other side was very precise and to the point and I would then cite

13 to a reference in the transcript to support my point and I think that

14 would be evidence that might be helpful to the finder of fact that I was

15 presenting that evidence to and it could be verified by resort to the

16 documents that I'm pointing to when I made those conclusions, those

17 non-expert conclusions.

18 JUDGE BONOMY: You don't think if you were a non-expert witness

19 you should simply cite to the length of the submission made or argument

20 advanced and leave it to the Court to decide whether that is long-winded,

21 following a submission that might be made by the lawyer acting in your

22 behalf that to speak for 25 minutes on this point was long-windowed.

23 MR. HANNIS: I could, Your Honour, but if there are 50.000 pages

24 of transcript, it might be helpful to that finder of fact to have me tell

25 them where to look for that.

1 JUDGE BONOMY: That, I agree. It's the next bit. You might

2 express the view that the person is long-winded or direct and to the

3 point, that's the bit that perhaps you can only do if you're an expert.

4 MR. HANNIS: Yes, but I --

5 JUDGE BONOMY: And you could qualify as an expert but at the

6 moment you're hypothesising that you're not, and I wonder if, in fact, you

7 then take it too far. You use yourself as an example but an example of

8 someone who's not an expert and then you draw an expert conclusion or you

9 say it's not an expert conclusion, it's a conclusion any member of the

10 public can draw.

11 MR. HANNIS: Yes, but I can give testimony about it as a fact

12 witness because I was there. And I can help direct that finder of fact

13 where to look for that proposition I'm supporting; otherwise, I could --

14 the Prosecutor in that case could submit the 50.000 pages to the Judge and

15 say: "It's in there somewhere."

16 JUDGE BONOMY: Yes. I suspect we won't have too much trouble with

17 the proposition that Mr. Coo might help us identify the documents that are

18 relevant to the issues that we're considering and help us on their

19 authenticity and so on. But it's the conclusions that are to be drawn and

20 even the one that you mention, whether a person is long-winded or not, may

21 not be an expert conclusion but it's one that the finder of fact would

22 draw rather than the witness.

23 MR. HANNIS: I hear you, Your Honour.

24 Mr. O'Sullivan, as well as Mr. Petrovic and Mr. Ackerman, made a

25 similar complaint regarding his report. And what we tendered to you now

1 after redactions, pointing out that there's very little difference between

2 this and what was originally submitted as his expert report. We agree

3 with that, Your Honour, but we point you to your remarks that you made at

4 the time in July. You suggested that based on the reading of it at the

5 time, it appeared that there was -- there didn't appear to be a lot that

6 was blatantly expert opinion. We say that's because Mr. Coo is being

7 conservative and understated in his report; that's why not many changes

8 were required to remove those particularly opinionated matters where he

9 made an assessment or he drew a conclusion.

10 Mr. O'Sullivan cited two cases to you that he argues stand for his

11 position that this witness should be excluded, the Kordic and the

12 Milosevic decisions. One of the distinctions we think that appears

13 between those cases and this case, in both of those, the summary or the

14 expert -- the investigator was trying to bring before the Court witness

15 statements, and we agree that's not a proper way to do that. That

16 subverts -- that goes around the rules. We can't get in that hearsay

17 evidence without the opposing party having an opportunity to

18 cross-examine, and that would have been the effect if those two witnesses

19 had been allowed to testify the way it was proposed.

20 And with regard to the Milosevic decision, Mr. O'Sullivan made

21 reference to paragraph 23 of that decision and the Trial Chamber talked

22 about how if it was going to allow a summary, one of the things that would

23 be necessary is that the Trial Chamber can be satisfied as to the

24 reliability of the method by which that summary had been made. And it

25 listed three things: Number 1: A summary that material should not be

1 regarded as reliable unless the material itself is in evidence so that the

2 Trial Chamber may make its own assessment of the material.

3 In this case, the material that Mr. Coo is summarising is

4 documented in the footnotes, not all of it has been admitted into evidence

5 yet, Your Honour, but is accessible and available for the Trial Chamber to

6 review. And we are hoping to get all or most of it in through Mr. Coo, in

7 part based on his provenance report, which will establish how these

8 materials came to be in the OTP's possession, and he can point to why we

9 say they are authentic based on stamps, seals, the means by which they

10 were obtained, the parties from who we obtained them, their links and

11 logical connection with other known items already in evidence, et cetera.

12 Number 2, the Trial Chamber, in paragraph 23, said: "If the Trial

13 Chamber were to rely upon the summary without having the opportunity to

14 make its own assessment of its reliability, the public perception of a

15 verdict based on the summary would be that the verdict was unsafe."

16 Well, you will have an opportunity to examine that material and

17 make any decision before you reach any conclusions. And if the statements

18 were admitted the summary would become unnecessary. We say that's not the

19 case here. We say the summary is a road map for you, for Your Honours to

20 find your way through this huge collection of documents and evidence.

21 One of the comments Mr. O'Sullivan raised was that the report of

22 Mr. Coo follows the pre-trial brief or the indictment. I would suggest

23 that it's the other way around. In many ways the pre-trial brief follows

24 Mr. Coo's report. His initial report was written in connection with the

25 Milosevic case, and the indictment filed in this case was written after

1 that.

2 Mr. Coo -- this demonstrates a problem with this institution and

3 in-house experts. We are aware of the dangers of trying to use in-house

4 experts; although, we as an institution in the OTP have done that in a

5 number of trials in this building. One of the difficulties in getting

6 inside experts -- I mean outside experts is that some of the most likely

7 qualified individuals to talk about expert matters related to the

8 conflicts in the Balkans are often going to be parties or going to be

9 individuals who lived there and are going to come in with a -- with an

10 automatic bias toward one side or the other because of where they lived,

11 what organisation they were a member of, et cetera. And it's difficult to

12 get experts from the region.

13 JUDGE BONOMY: You're re-arguing the matter that's been decided,

14 Mr. Hannis. There's no question of us re-considering the decision to

15 refuse to consider this to be expert evidence. We're not going to do

16 that. We're not going to rely on his opinions with confidence because of

17 the fact that he's too close to the OTP. So to the extent that that sort

18 of material remains in his report, you are, I think, with us in some

19 difficulty.

20 MR. HANNIS: Okay. One of the arguments was that Mr. Coo

21 shouldn't be allowed to testify because he has a stake in the outcome of

22 this trial. We say he does not have a particular stake in the outcome of

23 this trial. As we indicated, he testified in the Limaj case as well as

24 the Milosevic case. He gets paid the same every day regardless of which

25 case he testifies in or he doesn't testify in.

1 JUDGE BONOMY: But I take it the OTP were seeking a conviction in

2 both of the cases.

3 MR. HANNIS: Your Honour, as a Prosecutor I like to say I'm

4 seeking justice. Now, whether that results in a conviction will depend on

5 what happens at the end of the day. But he gets no bonus, he gets no

6 percentage deal, he gets no bounty for testifying in this case or it's not

7 dependent on the outcome of the case.

8 And regarding that, Mr. Coo, as has been indicated to you,

9 identifies substantial amounts of Rule 68 material for the Defence which

10 has been provided to them because he helped point it out for us. And in

11 connection with that, in his report one of the matters that's an issue in

12 this case is whether or not the MUP was subordinated to the VJ during the

13 time of the war. And in his report he expresses some doubt about whether

14 that actually occurred or not. So we suggest that's another item that

15 shows that he is impartial.

16 Mr. Petrovic -- well, this goes again to the suggestion that we

17 should have gotten a different or an independent expert after the

18 decision. I'll move on to some of the examples he pointed out in the

19 statement. In the addendum at paragraph 10, talking about the Joint

20 Command, and he says that: "There was no evidence of civilians in the

21 Joint Command in 1999." We say those arguments go to the weight of what

22 Mr. Coo has said, it shouldn't be a basis for excluding his evidence. In

23 paragraph 16(D) -- section (D) in part 1 of his report he complained that

24 Mr. Coo has omitted a footnote -- a sentence from the document in footnote

25 25. However, Mr. Coo does talk about that second sentence regarding the

1 October 1998 date later on in his report in part 2(B) at page 46 or

2 paragraph 46.

3 There was also a complaint about the fact that in paragraph 113 at

4 page 52 of part 1 that for the first time he mentions Joint Command, but

5 if you read the rest of that sentence, you'll see that Mr. Coo says: "A

6 Joint Command is discussed elsewhere in the report later on," as indeed it

7 was.

8 There was an argument by Mr. Petrovic in Exhibit 1468, these are

9 the Joint Command minutes from 1998 has not been admitted. It has not

10 been admitted. We tendered it in connection with Witness Vasiljevic. We

11 made an argument; you made a decision that there was not sufficient

12 probative value or sufficient authenticity at this time, and we will, I

13 think, make further submissions again to try and persuade you to admit it.

14 We don't think your earlier decision necessarily bans it from being

15 admitted later on.

16 JUDGE BONOMY: Can you remember what the particular problem was

17 with that document?

18 MR. HANNIS: Your Honour, it's handwritten notes, there is no

19 signature and there is no seal, but we -- well, I'll make my arguments

20 about that at another time.

21 JUDGE BONOMY: No, no. It was just that I couldn't remember the

22 particular circumstances. I thought there must be something unusual about

23 it, but that confirms it. Thanks.

24 MR. HANNIS: Okay. In conclusion Mr. Petrovic said that Philip

25 Coo is not eligible to be a witness. Your Honour, I suggest it's not a

1 matter of eligibility; it is a decision for you to make based on whether

2 or not you find him helpful and whether the evidence is relevant.

3 Mr. Ackerman made the point that Mr. Coo was only a captain, not a

4 colonel or a general. We say that goes to weight. If any of you were in

5 the military, you can probably analogise to your own lifestyle. Because

6 someone is a colonel or a general doesn't necessarily mean that they might

7 be a better witness, a better leader, or a better anything. You should

8 judge the individual based on him or her, not necessarily the rank that

9 they held. And this is a witness that will be submitted for your approval

10 and subject to cross-examination.

11 Mr. Ackerman also raised the complaint about not knowing which

12 exhibits are in. We did provide the provenance report on the 14th of

13 February. That list does show which of the exhibits have already been

14 admitted.

15 Mr. Ivetic made the point that Mr. Coo is military experienced but

16 no particular expertise regarding the police. We don't disagree with

17 that; however, in the context of this case and this conflict we say these

18 police were acting much more like a military unit than the standard or

19 typical policemen or constable that we might be more familiar with.

20 In conclusion, Your Honour, we say this is a matter for your

21 discretion under Rule 89. We say this evidence is relevant. We believe

22 that Mr. Coo's report and his testimony can be helpful to the Trial

23 Chamber. The Defence complaints are basically all matters that can be

24 dealt with best in cross-examination. And finally, Your Honour, I think

25 you ought to have him in just so you can see he's not the villain he's

1 been made out to be. Thank you.

2 JUDGE BONOMY: Well, I think we've seen him before, at least,

3 Mr. Hannis.

4 MR. ACKERMAN: Your Honour, can I have five seconds?

5 JUDGE BONOMY: Yes.

6 MR. ACKERMAN: Your Honour, I appreciate Mr. Hannis pointing out

7 my neglect in mentioning his testimony in the Limaj case. I think what

8 that shows that he is a very loyal OTP employee and is willing to tailor

9 his reports to whatever the OTP indictments require.

10 MR. HANNIS: I'd like to strike that, Your Honour.

11 JUDGE BONOMY: I take it we're competing in the humour stakes at

12 the moment, Mr. Ackerman. The remarks that needed to be made have been

13 made.

14 [Trial Chamber and legal officer confer]

15 [Trial Chamber confers]

16 JUDGE BONOMY: We'll be giving a decision on this fairly quickly

17 once we've had a chance to consider all the arguments more fully, and

18 meanwhile, we would like to proceed to hear the next witness.

19 Now, Mr. Stamp, who is the next witness?

20 MR. STAMP: Thank you very much, Your Honour. The next witness is

21 Mr. Wolfgang Petritsch.

22 [Trial Chamber confers]

23 [The witness entered court]

24 JUDGE BONOMY: Good morning, Mr. Petritsch. Would you please make

25 the solemn declaration to speak the truth by reading aloud the document

1 which will now be shown to you.

2 THE WITNESS: Yes, Your Honour.

3 I solemnly declare that I will speak the truth, the whole truth,

4 and nothing but the truth.

5 JUDGE BONOMY: Thank you. Please be seated.

6 Mr. Stamp.

7 MR. STAMP: Thank you, Your Honour. Did you have a question or

8 should I proceed?

9 JUDGE BONOMY: No.

10 MR. STAMP: Thank you --

11 JUDGE BONOMY: I'm inviting you to start your examination.

12 MR. STAMP: Very well.

13 WITNESS: WOLFGANG PETRITSCH

14 Examination by Mr. Stamp:

15 Q. Good morning, Ambassador. Could I ask you to begin by stating

16 your full name and your present occupation or posting.

17 A. My name is Wolfgang Petritsch, and I'm presently the Austrian

18 permanent representative to the United Nations in Geneva.

19 Q. In 1997, were you appointed to any particular position?

20 A. Yes. In 1997, I was appointed the Austrian Ambassador to Belgrade

21 to the Federal Republic of Yugoslavia. That was in September/October of

22 1997.

23 Q. And in 1998 were you given any additional responsibilities?

24 A. In September of 1998 I was chosen to be the European Union Special

25 Envoy for Kosovo by the European Union foreign ministers.

1 Q. And you were in that position while you were the ambassador to

2 Yugoslavia as well?

3 A. Yes, this is true, but I was basically the EU Special Envoy and

4 did -- that was an internal agreement with my government, between my

5 government and the European Union act in my full capacity as European

6 Union Special Envoy.

7 Q. You remained in the position in respect to Yugoslavia until July

8 1999 I take it?

9 A. That's correct.

10 Q. And I understand in -- well, where were you posted in the latter

11 part of 1999, 2000, 2002?

12 A. In 1999 in the end of June, I was appointed by the European Union

13 heads of state and government to be the High Representative of the

14 international community for Bosnia and Herzegovina.

15 Q. And you remained in that position until when?

16 A. I remained in that position about three years till May of 2002.

17 Q. I understand, Ambassador, that you recently were the recipient of

18 some award for your work?

19 A. Yes, that's correct. I was awarded the European Award for Human

20 Rights.

21 Q. When was this?

22 A. That was last week in Strasbourg.

23 Q. Do you -- did you give a statement in -- to the ICTY in respect to

24 your work in Kosovo as European envoy?

25 A. Yes. That must have been in 1999, I guess.

1 Q. Yes, that statement is dated the 14th of May, 1999, and the 9th of

2 June, 1999.

3 A. That's correct.

4 MR. STAMP: I'm referring to Exhibit 2792, Your Honours.

5 Q. And subsequently, on the 2nd of July, 2002, did you attend at this

6 Tribunal to testify in the trial of Slobodan Milosevic?

7 A. Correct. I was called to be a witness in the case.

8 Q. Have you had an opportunity recently to review the transcript in

9 that case -- the transcript of your testimony in that case?

10 A. Yes, only lately I had a look at it, and there are a few

11 corrections which I wanted to make.

12 Q. Well, I'd like to take you first to page 7256.

13 MR. STAMP: Your Honours, I'm referring to Exhibit 29 -- I beg

14 your pardon 2798 -- P2798, and that is pages 7256, 7.

15 Q. You spoke in both your statements and in the Milosevic case about

16 the events surrounding the negotiations at Rambouillet, and you were asked

17 questions about it.

18 A. Yes, that's correct.

19 Q. And I see here at page 7256 that you refer to what is 257, and if

20 I could just read it from line 18: "I do not want to go too much into the

21 details and technicalities of this, but the 257, these are the so-called

22 implementation chapters of the Rambouillet Accords: Police

23 implementation, civilian implementation, police implementation, and

24 military implementation. And these were, as I tried to explain

25 previously, the technical side which for this reason first you need a

1 political part of the agreement and then based upon these, the text and

2 the concreteness of the political agreement, you then in turn put the

3 technical -- the implementation paragraphs and chapters."

4 And if I may just skip along down to the bottom of page 7257 where

5 you were asked in reference to these parts. And before I proceed, I

6 should point out for the record before I forget that the exhibit number

7 for the transcript is 2793. I think on the -- today's transcript it was

8 not correctly stated at lines -- in line 6.

9 So if we may now go to the bottom of page 7257 you were

10 asked: "Tell me, these 83 pages of the military section of the draft, why

11 were they handed over to the Yugoslav side after the last day of the

12 negotiations at Rambouillet?"

13 And you said in response: "Because that was a point in time where

14 the necessary prerequisites on the part of the political agreement were

15 negotiated and therefore this was a time to hand over the military part of

16 the agreement."

17 The -- an interpretation of that is that you were accepting and

18 agreeing that this part of the agreement 257 and the military part of the

19 agreement was handed over after the last day of the negotiations. Is that

20 correct?

21 A. No, that's not correct. This is a misunderstanding. I must have

22 misunderstood the accused, because it was clear - and that is, of course,

23 also documented - that the first final draft was handed over on the 18th

24 of February and the final draft after the second extension of the

25 Rambouillet negotiations, on the 23rd of February in the morning, that was

1 then asked -- at the time the parties were asked to come and comment and

2 respond to this final act by 1300 hours in the afternoon.

3 Q. Thank you.

4 A. So this is -- I would like to correct this. This is a

5 misunderstanding, very clearly, that this was handed over clearly within

6 the framework of the Rambouillet negotiations. It would have not been

7 possible even technically to hand it over after the end of Rambouillet,

8 clearly.

9 Q. And just for the record, what was the last day of the Rambouillet

10 negotiations?

11 A. That was the 23rd of February.

12 Q. Now, apart from that correction and some minor technical errors,

13 is the transcript of your testimony true, to the best of your

14 recollection? That is, if you were asked the same questions, would your

15 answers be the same?

16 A. Basically yes. There are a few new answers in there where -- are

17 factual errors when I mixed up Bosnia and Herzegovina, where I just came

18 from, where instead of saying Kosovo, of course, it would be correct to

19 say Kosovo, such minor lapses are in there, but basically it is my

20 understanding today what it was back then in 2002.

21 Q. And the matters that you have stated in your statement of 1999,

22 are they true and correct, to the best of your recollection? And again

23 that is, were asked to speak on the same matters, would you say the same

24 things?

25 A. To the best of my recollection, yes, this is true, I would

1 basically argue and respond along the same lines.

2 MR. STAMP: Your Honours, the statement and the transcript,

3 Exhibits 2792 and 2793 respectively, I tender them up and ask that they be

4 received in evidence.

5 JUDGE BONOMY: Thank you.

6 MR. LUKIC: Your Honour, I apologise.

7 JUDGE BONOMY: Mr. Lukic.

8 MR. LUKIC: Thank you. I apologise, and I apologise to Ambassador

9 Petritsch, but we noticed our friends in the opposite side that we would

10 object on only small portions of these documents, and it is regarding

11 mentioning of my client by Ambassador Petritsch, because I think that that

12 thing was investigated by the Office of the Prosecutor, and that was

13 established that there was no such a conversation intercepted. And it

14 refers to Ambassador's statement from the 14th of May, 1999, page 7, last

15 paragraph, which is P2792. And it also refers to Milosevic transcript,

16 page number 1295, lines 22 to 24. And I note --

17 JUDGE BONOMY: Just a second. You said page 7 --

18 MR. LUKIC: Yes, Your Honour.

19 JUDGE BONOMY: Final paragraph.

20 MR. LUKIC: That's right.

21 JUDGE BONOMY: This is the English version you're talking about?

22 MR. LUKIC: Yes, Your Honour.

23 JUDGE BONOMY: And where's the reference to an interception?

24 MR. LUKIC: Not interception. There is a reference to a

25 conversation between -- regarding Racak.

1 JUDGE BONOMY: So when you used the word "intercepted," is that a

2 wrong --

3 MR. LUKIC: It was not intercepted. The investigation was

4 conducted and Mr. Hannis admitted that there is no such conversation

5 reported anywhere, and that's only published in some New York newspaper,

6 but I think it was published in Washington Post.

7 JUDGE BONOMY: The statement says: "The discussion between

8 Sainovic and Sreten Lukic was also reported in the press," so that

9 suggests there's an earlier reference to it. Is it referred to somewhere

10 else in the statement?

11 MR. LUKIC: No, Your Honour.

12 JUDGE BONOMY: Mr. Petritsch, can you help us with this?

13 THE WITNESS: Yes. At the time there was a report and I guess sir

14 is right, it was in one of the US newspapers about an alleged telephone

15 conversation between Mr. Sainovic and Mr. Lukic, and that was reported in

16 the press about at the same time that is indicated here, the 15th of

17 January, and I was simply making a reference to this without identifying

18 myself with the veracity of it.

19 JUDGE BONOMY: I understand that.

20 THE WITNESS: Basically.

21 JUDGE BONOMY: I understand that. I think what Mr. Lukic is

22 saying is that since this emerged as evidence, it's been investigated and

23 the Prosecution seem to be accepting that there is, in fact, no such press

24 report. Now, what's your response to that?

25 THE WITNESS: I have seen the press report myself. I believe it's

1 quite easy to verify whether there was, indeed, a press report or not. To

2 my recollection, there was a press report.

3 JUDGE BONOMY: It can't -- it can be difficult, because newspapers

4 produce so many editions in one day and sometimes finding a press report

5 can be a difficult exercise. Mr. --

6 MR. STAMP: If I might assist.

7 JUDGE BONOMY: Yes.

8 MR. STAMP: The press report does exist. What happened on the day

9 in question is that when the issue arose, Mr. Hannis indicated that he

10 would -- that he could not - and I'm speaking now from memory - he could

11 not verify the existence of the press report. And it is, I think, on that

12 basis why my friend has accepted that the Prosecution was saying that

13 there was no such press report. But I -- the situation was communicated

14 to me earlier this morning and I did check. So the press report does

15 exist. Now, to the extent that this is evidence --

16 JUDGE BONOMY: Well, as far as --

17 MR. STAMP: -- if we --

18 JUDGE BONOMY: As far as we are concerned, that would not be

19 evidence.

20 MR. STAMP: Indeed.

21 JUDGE BONOMY: And therefore, this argument is rather -- is

22 largely academic. It's interesting to know, but it will not be taken

23 account of in our deliberations unless we hear from the journalist who can

24 tell us accurately or with authority that this took place.

25 MR. LUKIC: Thank you, Your Honour.

1 JUDGE BONOMY: So we shall delete that sentence from the statement

2 as irrelevant in the circumstances.

3 MR. LUKIC: And I apologise, I quoted the transcript as well. So

4 it's Milosevic transcript, page 1295, pages -- lines 22 to 24, Your

5 Honour.

6 JUDGE BONOMY: Thank you.

7 MR. LUKIC: Same thing.

8 JUDGE BONOMY: Thank you very much.

9 MR. LUKIC: Thank you.

10 JUDGE BONOMY: Well, we shall also have no regard to that as a

11 matter of fact.

12 Mr. Stamp.

13 MR. STAMP: Yes. Thank you, Your Honours.

14 Your Honours, I propose to deal with the evidence in respect to

15 the Rambouillet issues first before I go back to 1998 so I do not -- from

16 a chronological approach.

17 JUDGE BONOMY: Very well.

18 MR. STAMP: Can we call up Exhibit 474, please.

19 JUDGE BONOMY: Just, sorry, one thing I have overlooked.

20 Mr. Lukic, the transcript page is accurate, is it, 1295? It's not

21 7295?

22 MR. O'SULLIVAN: It is 7295.

23 MR. LUKIC: I have this page in front of me, and it is scanned

24 page, obviously, and it does say 1295.

25 JUDGE BONOMY: I think it's 7295.

1 MR. LUKIC: It should be 7295.

2 JUDGE BONOMY: Thank you very much.

3 Mr. Stamp.

4 MR. STAMP: P494, could that be ...

5 Q. Ambassador, that's the front page of a document that you have had

6 the opportunity to review yesterday. Is that document -- or let me ask

7 you an open question.

8 That document is a copy of what, can you say?

9 A. This document seems to be a copy of the Rambouillet Accords, the

10 Interim Agreement For Peace and Self-Government in Kosovo, February the

11 23rd, 1999.

12 Q. Can you say if and when this draft was handed over to the parties

13 at Rambouillet?

14 A. This whole text, of course, was a matter of negotiations,

15 approximated talks, as we called it, between the two sides. And the final

16 draft with all the minor and minute corrections and also the way it was

17 changed over time in terms of structure, whether it was the way it is now

18 in front of us with all these technicalities, technical changes, calling

19 it a framework or calling it an article or chapter and so on, that was

20 presented to the two sides on the 23rd of February, 1999, between 9.30 and

21 10.00 in the morning.

22 Q. Was it signed by the parties?

23 A. Our intention was at the time, since it became clear over the --

24 over the days prior to February the 23rd, that we will not be able to

25 finish the talks and that we would then propose a recess for about two and

1 a half weeks, because it was indicated in the last couple of days while,

2 practically, the whole text as of February the 18th was known to the

3 parties, the entire text, that they need more time. That was indicated

4 both from the Kosovo Albanian side and also from the Serb Yugoslav

5 delegation, that they would need more time.

6 What we were asking, therefore, on the 23rd in the morning, by

7 handing over the final draft, was to respond by 1300 hours whether they

8 would be ready to go on in a second leg after the recess of about two and

9 a half weeks, based on this text. And it was understood that the

10 political part of the accords, of the agreement, was more or less settled,

11 whereas the implementation part was to be dealt with in more detail after

12 the resumption of the conference in mid-March.

13 Q. Briefly, could you just tell us what the political part involved

14 and what the implementation part involved.

15 A. Yes. The political part basically was guided by the basic

16 principles, which were part of the invitation to the two sides, which

17 spelled out that there should be an enhanced degree of autonomy and that

18 the sovereignty of the Federal Republic of Yugoslavia would be

19 maintained. It is also, of course, stressed that the international

20 community is committed to the sovereignty and territorial integrity of the

21 Federal Republic of Yugoslavia.

22 These were the two -- how should I say? This was the framework,

23 basically. These were the basic parts of the basic principles, where

24 there was also in the basic principles the international engagement based

25 upon the Rambouillet Agreement in Kosovo. This, in turn, was a reference

1 to UN Resolution 1199 of September 1998.

2 So, in Rambouillet, the common understanding was that these

3 political parts, meaning now the constitution, the president, the

4 president of the assembly, the judicial issue, the whole institutional

5 set-up of a democratic entity, would be basically agreed, clearly also

6 with the understanding that nothing is agreed unless everything is

7 agreed. But basically the understanding was that this part does not need

8 to be the subject of our negotiations once we resume the talks in Paris.

9 For the implementation, that is basically the two issues of what

10 is called in these accords Implementation I and Implementation II. I

11 would just like to see where the -- that is chapters -- chapters 5 and 7.

12 And in addition we also agreed that we would look into chapter 2, police

13 and civil public security.

14 So the whole security and implementation issue was -- or issues

15 were those who would have then -- with the understanding of both sides, be

16 the subject of the second round of negotiations.

17 Now, chapter 5 is called, as I've already indicated,

18 Implementation I, and it talks about the institutions of the

19 implementation mission, OSCE, in cooperation with the European Union. And

20 that, again, refers to the basic principles which were part of the

21 invitation and upon which the positive reaction to the invitation was, of

22 course, based. By accepting the invitation, the two sides also accepted

23 the basic principles, including that the implementation would be done by

24 inviting the OSCE, in cooperation with the European Union, to constitute

25 an implementation mission in Kosovo. Now, that is Implementation I and it

1 is basically referred to as the civilian part of any implementation

2 exercise.

3 So now maybe in parenthesis I should add here: For all these

4 considerations we had one model and that was the Dayton Accords, which was

5 signed by the Yugoslav side, which the Yugoslav side clearly was

6 intimately accustomed and knew exactly what this was. And I should like

7 to recall that, of course, the Dayton Accords has a civilian

8 implementation side and a military implementation side. So I was talking

9 here about the civilian implementation side, chapter 5.

10 Now, chapter 7 --

11 Q. Before you go on.

12 MR. STAMP: I don't know if it would help the Court if I tell --

13 if I indicate that chapter 2 that was referred to just now is at page 557

14 of the document. I think I should use the ERN number; K0364658. Chapter

15 5, Implementation I, which was just referred to, is as 4654 -- I beg your

16 pardon. The first one, chapter 5, I'm not sure if the --

17 THE WITNESS: Chapter 5 is 568 in this copy.

18 MR. STAMP: 568 and that is at K0364654. And chapter 7 is at

19 K0364656.

20 JUDGE BONOMY: Why don't you just give us the page number --

21 MR. STAMP: Sorry?

22 JUDGE BONOMY: -- and don't mind all the jargon numbers. What's

23 the page at the top -- the number at the top of the page?

24 THE WITNESS: 573.

25 MR. STAMP: 573.

1 JUDGE BONOMY: Very well. That's all we need. Thank you.

2 MR. STAMP: Yes. Before you go on to speak a little bit more

3 about chapter 7, may I just also indicate, since I've interrupted - I'm so

4 sorry about that - that the reference to United Nations Security Council

5 Resolution is a document already in evidence. That resolution is already

6 in evidence and it's P456. I just mention that for the purpose of

7 cross-referencing, Your Honours.

8 Q. Thank you, Ambassador. I'm so sorry to have interrupted you, but

9 go on now.

10 A. Thank you. Chapter 7, Implementation II, is now the so-called

11 military implementation side, which was basically signed and drafted by

12 NATO and military experts, as this is usually the case. And it also

13 includes, importantly for the Yugoslav side, that the acceptance of VJ

14 border-guard forces and 1.500 members of the Yugoslav border-guard

15 battalion as well as an additional number of VJ, Vojska Jugoslavija,

16 personnel, an additional number of VJ personnel totalling no more than

17 1.000.

18 So that is important to mention in this context; that part of the

19 military implementation side, there would have been a Yugoslav force --

20 Yugoslav forces there.

21 Important in this context is - and I would like to call your

22 attention to - Article 8, operations and authority of the KFOR. With your

23 permission, I would like to go on a little bit because this is a crucial

24 part of the whole agreement, because in it, it is mentioned that KFOR and

25 its personnel shall have the legal status, rights, and obligations

1 specified in appendix B to this chapter, which we might then later on

2 refer to. And it is clearly spelled out in this implementation, military

3 implementation issue, that it solely refers to Kosovo.

4 I read, and I quote: "The KFOR shall have," KFOR meaning Kosovo

5 Force, "The KFOR shall have complete and unimpeded freedom of movement by

6 ground, air, and water into and throughout Kosovo." "Into Kosovo and

7 throughout Kosovo," I would like to underline. And I continue: "It

8 shall, in Kosovo, have the right to manoeuvre and so on."

9 That is very important, particularly because appendix B has to be

10 read in relation to Article VIII, Roman VIII, of the accords.

11 Q. Thank you.

12 JUDGE BONOMY: Can you clarify for me just one point. When you

13 talk about the VJ force forming a border guard, which border are you

14 referring to?

15 THE WITNESS: I'm referring to the international borders of

16 Yugoslavia to FYROM, to Macedonia, and to Albania.

17 JUDGE BONOMY: Thank you. But that's the border between Kosovo

18 and FYROM and Albania.

19 THE WITNESS: Correct. Of course, we only speak about Kosovo and

20 therefore every reference is in regard to Kosovo. But the authority and

21 the responsibility of the Federal Republic of Yugoslavia was, or would

22 have been, fully respected in regard to the international border crossings

23 and the 5-kilometre security zone along the border between Kosovo and the

24 two neighbouring states, FYROM, Macedonia, and Albania.

25 JUDGE BONOMY: Thank you.

1 Mr. Stamp.

2 MR. STAMP: Thank you, Your Honour.

3 Q. May I just follow-up on that. What is the significance of that?

4 It might well be self-evident, but just for the record what is the

5 significance of that in terms of how it reflects on this agreement's

6 recognition, or not, of the territorial integrity of the FRY, including

7 Kosovo?

8 A. Well, it was a direct reference to the territorial integrity and

9 sovereignty of the Federal Republic of Yugoslavia, as expressed on several

10 occasions in this text. That was, so to speak, one of the practical

11 consequences of this commitment on the part of the international community

12 and the negotiators, to include actively the Yugoslav and the Serbian side

13 in the execution of these accords.

14 Q. Thank you. Now, you referred to annex (B). Could we move

15 on to -- I'm sorry I don't have the e-court numbers, but it's K0364663 and

16 that's page 586 on the printed text, on the -- page 23 in e-court.

17 A. Appendix (B), page 586?

18 Q. Page 586, yeah. And in photograph 1 there are -- I just refer in

19 passing and quickly to the definition of NATO. And at paragraph 2 there

20 is a reference to the obligation of NATO personnel to respect the laws of

21 the FRY and their obligation to refrain from more activities not

22 compatible with the nature of the operation.

23 MR. STAMP: And if we could move on to the next page, page --

24 Q. I think on the left you have paragraph 8. Could we look at

25 paragraph 8 and reflect upon it.

1 A. All right.

2 Q. Well, can you commentate. What is your understanding of the

3 meaning of this paragraph?

4 A. First, I think in order to set the stage for this rather technical

5 issue of this appendix (B), one needs to go a little bit into military

6 language, NATO-slang, so to speak. This status of multi-national military

7 implementation force is basically modelled along the so-called SOFAs,

8 Status of Forces Agreement, which all international troops, be they under

9 the UN or other regional organisations, have to conclude with the inviting

10 state, so to speak. That is a little bit like the diplomatic immunities

11 that are on a routine basis established between countries who have

12 diplomatic relations.

13 Now, transfer this on to the military side, there you have SOFAs,

14 Status of Forces Agreements, basically every time when a mighty national

15 force is invited to some peace implementation any place, anywhere. So

16 that is something which is more a routine thing than anything else, and it

17 is clear that it deals with the legal status, with the rights and

18 obligations of the military personnel. And as you can see here, it starts

19 out with definitions, what are we talking about. We're talking about

20 NATO, what does NATO mean; we are talking about authorities in the FRY,

21 what does this mean; NATO personnel; and so on. And we come down also to

22 what you just mentioned before, the -- also that NATO personnel shall

23 respect the laws applicable in the FRY, whether Federal Republic, Kosovo

24 or other, and so on, and shall refrain from activities and so on.

25 Now, it is basically dealing with administrative issues between

1 the -- the KFOR and the -- Belgrade, the capital. Now, when it -- second

2 important point is to say that this is the first draft that NATO experts

3 provided for the -- for the Rambouillet Accords. So that, as we know, was

4 never negotiated. Now, therefore, it came as it was drafted without any

5 negotiation, without any talks because the Yugoslav side refused to talk

6 about it, and only the Yugoslav side, of course, was the partner in this.

7 You cannot deal with the Kosovar representative on this because you can

8 only deal with a sovereign state, not with a nonstate actor, as in the

9 case of Kosovo. So therefore, it was clear that the partnership is

10 between the international community, represented by the negotiators, and

11 the government in Belgrade, represented by the delegation. So that is

12 important as a second point to know.

13 Third, as I already said, no negotiation. So therefore, we have

14 the text as it was written and drafted by those NATO experts. And as I've

15 said before, there might be the impression created, and that was

16 widespread criticism on this, if one reads this in isolation that it

17 actually means NATO would have the right to - let me put it this way - to

18 occupy the Federal Republic of Yugoslavia. This clearly was never any

19 intention, and I think now I have to turn a common sense argument.

20 Can anyone imagine that any country, like France, like Great

21 Britain, who were traditionally very close to Yugoslavia and clearly also

22 for many, many other reasons, that they would sign up to something which

23 would allow NATO to occupy the whole territory of the -- of the Federal

24 Republic of Yugoslavia. I'm a bit more extensive on this because I

25 consider this a crucial point in this whole controversy. And clearly,

1 because of the non-engagement of the Yugoslav side, we never managed to

2 reach the point to take on board suggestions of the -- of the Yugoslav

3 side. That is, again, to repeat, the first draft as a basis for future

4 talks, negotiations, testing, making it more precise, making it more

5 understandable and all this stuff. That is what I would like to comment

6 on this.

7 Q. Thank you. Arising from that just a couple of --

8 JUDGE BONOMY: Well, do you want to do that just now or --

9 MR. STAMP: Oh, I'm sorry.

10 JUDGE BONOMY: We're well into our time for a break.

11 MR. STAMP: I'm in the hands of the Court.

12 JUDGE BONOMY: Yes. I think it might help us if the questions

13 could be more focused and we got some shorter, more direct answers, to

14 particular issues that you see of particular relevance. After all, we can

15 read and interpret documents for ourselves.

16 MR. STAMP: Very well.

17 JUDGE BONOMY: Mr. Petritsch, we have to break now for roughly

18 half an hour. The usher will show you where to wait. If you could please

19 leave the courtroom with the usher now. Thank you.

20 [The witness stands down]

21 [Trial Chamber confers]

22 JUDGE BONOMY: We shall resume at quarter to 1.00. Thank you.

23 --- Recess taken at 12.24 p.m.

24 --- On resuming at 12.48 p.m.

25 [The witness takes the stand]

1 JUDGE BONOMY: Mr. Stamp.

2 MR. STAMP: Thank you, Your Honour.

3 Q. The military parts of what you referred to as the implementation

4 sections of the accord, I think you said were drafted by NATO experts.

5 Did you or your team participate in the drafting of these areas?

6 A. No.

7 Q. There was a contact group. Can you remind us who were the members

8 of the contact group?

9 A. The so-called contact group consists of the United States, Russia,

10 Great Britain, France, Italy, and Germany in addition also the European

11 Union.

12 Q. And during the Rambouillet discussions, talks at Rambouillet,

13 there was a group of mediators?

14 A. Yes. The contact group appointed the three troika to mediate to

15 do the day-to-day work that was for Russia, Ambassador Boris Mayorski; for

16 the United States, Christopher Hill; and for the European Union, myself.

17 Q. With respect to the military aspect of the implementation

18 provisions, was any party responsible for that?

19 A. Well, that was clearly, as I already indicated, the task of the

20 NATO experts, but in our troika team, clearly, since Russia is not a

21 member of NATO, neither is Austria, where I come from, it was clear that

22 Chris Hill was dealing more with the military side of this these accords,

23 whereas Boris Mayorski and myself, we were dealing with more as an

24 emphasis put on the political, the civilian side of the agreement.

25 Q. If I could take you back to the talks themselves. Can you tell us

1 briefly what, if anything, was the preparatory work by this troika for the

2 conference at Rambouillet?

3 A. Well, not so much by the troika, but the United States had already

4 in the region a Special Envoy for Kosovo, that was Chris Hill, who already

5 in early September of 1998, presented a first draft of such a peace

6 agreement to both sides, to the Kosovar Albanian leadership and to

7 Belgrade, to the government there, president of Serbia, Mr. Milutinovic,

8 as well as, of course, also president of Yugoslavia, Mr. Milosevic, and

9 others, their experts, and so on.

10 I was later on appointed UN Special Envoy in order to work

11 together with Chris Hill. That was as of early October of 1998, when

12 Chris Hill already had about a third or fourth version, so to speak, what

13 we at the time then called a shuttle diplomacy travelling between Pristina

14 and Belgrade, picking up ideas from both sides, and trying to integrate

15 them into this agreement. And with about -- it was about the fourth or

16 fifth or even sixth version that then became the basis, so to speak, of

17 the Rambouillet Accords. So by the time we met in Rambouillet, both sides

18 already knew the political, the civilian aspects of a possible deal pretty

19 well.

20 Q. Thank you. Now, while you were at Rambouillet, what was the

21 framework in which these talks, these discussions, were conducted? In

22 other words, what were the mechanisms used by the mediators in order to

23 try to arrive at agreement among the parties?

24 A. Well, in a way, it was the continuation of this shuttling between

25 the two delegations. There were great difficulties at the beginning

1 because the Yugoslav delegation didn't want to share the same room for the

2 opening initially, so it was clear to us that we would have to separate

3 and then be the messengers in between. And, of course, we were conducting

4 what is called proximity talks. We were all in the same castle, but we

5 were never -- with one exception, really there was never a direct meeting

6 between the two delegations. But that was to be expected and probably

7 also was necessary in order to make any progress at all.

8 Q. I'd like to take you through, Ambassador, through some documents

9 relating to the discussions at Rambouillet. First document is P02662.

10 MR. STAMP: Could that be brought up, please.

11 Q. This is an e-mail dispatch of the 10th of February, 1999, from the

12 Austrian Embassy in Paris to the foreign affairs office in Vienna. And I

13 would like you to tell us first, there's a system in which these

14 diplomatic dispatches are created and transmitted?

15 A. Yes, this was a dispatch report which was put together and then

16 authorised by me, put together by my assistant, Mr. Kickert, and then

17 authorised by me, and it deals with the first couple of days in

18 Rambouillet, and that was a report which was sent for internal purposes,

19 for information purposes, to my headquarters in Vienna so that they knew

20 what was happening there, since they were not part of the negotiations.

21 Q. At bullet point 2, there is reference to demand by the Yugoslav

22 delegation for the Contact Group to sign the "General Elements." Can you

23 comment briefly on what this is about.

24 A. Yes. These are basically the establishing a general framework

25 within which the substance of the negotiations are going to take place,

1 and they were sent already along with the invitation, as I've already

2 indicated, to both sides and were nonnegotiable. This was by accepting

3 the invitation, one accepted also the basic elements and the general

4 elements, so to speak, as a basis for and the framework for the ensuing

5 negotiations. Now, the Yugoslav delegation then, for some reason which I

6 don't know why, wanted these to be signed by the two sides. And we

7 considered this not necessary because by -- as I said before, by accepting

8 the invitation, one also accepted these nonnegotiable basic elements.

9 Yeah. So it was something which was obviously redundant. And then

10 eventually after a couple of days on the 10th of February the delegation

11 from Belgrade then finally decided or was able to be convinced that this

12 is actually not necessary.

13 What they were aiming at - and that was absolutely legitimate -

14 was to stress the sovereignty and territorial integrity of the Federal

15 Republic of Yugoslavia that was a standing feature, understandably so,

16 throughout the negotiations. But since that was already included there,

17 then the two chairmen of these negotiations, the Foreign Ministers Cook

18 from the UK and Vedrine from France, they then also in this meeting with

19 the Yugoslav side made it also orally clear that this clearly is a bedrock

20 of our negotiations.

21 JUDGE BONOMY: It may be I'm recalling things inaccurately, but is

22 there not a stage later when these elements are amended?

23 THE WITNESS: No, they were never amended. Actually, they were

24 one - and I would have to go into my book where I have a copy of it - and

25 since I wrote this I distinctly remember I sort of overlooked either -- to

1 put in -- I had territorial integrity and maybe I forgot for sovereignty

2 or something like this and that raised the suspicion that there was

3 something, but of course, that was just an oversight on my part. But

4 therefore we stressed that this clearly, territorial integrity and

5 sovereignty is part and parcel of it, but they were never amended in the

6 sense, because this was set in stone, so to speak.

7 JUDGE BONOMY: I have in mind that at the very last minute in

8 these negotiations there was introduced the idea that within three years

9 there would be a referendum on the future of Kosovo.

10 THE WITNESS: That is an altogether different issue and belongs to

11 the final clause which I believe we will still reach and discuss it, and

12 then I'm, of, course ready to explain what this is all about.

13 MR. STAMP:

14 Q. Let's finish that document and get back to this, if we may. The

15 penultimate bullet point on that first page indicates that the Serbian

16 Yugoslav delegation had already finished drafting its comments and is

17 waiting for direction from Belgrade. Was that typical of the way the

18 Yugoslav delegation conducted its negotiations or atypical?

19 A. I'm a bit lost. That's -- oh, the penultimate, yes. Yes, I must

20 say that that was clearly the case that they were obviously in constant

21 touch with Belgrade and sometimes indicated that they would have to wait

22 for directions from Belgrade, which of course we had to respect but which

23 also led to some delays.

24 Q. And in the next bullet point there's reference to parallel

25 preparatory work on appendix 2 (security) and 1-A (military) by the NATO

1 experts of the Contact Group states has been concluded."

2 A. Yes.

3 Q. "1-A, however, still needs to be dealt with by the NATO bodies

4 ..." And it goes on.

5 I take it that even at this stage the work in respect to the

6 implement -- the military implementation was -- well, had been concluded.

7 Can you comment on that.

8 A. Yes. One needs to recall that the original plan was to have a

9 one-week meeting in Rambouillet. And in case at the end of this first

10 week there is progress, then one would go on for yet another week, but

11 that would then have to be decided by the Contact Group foreign ministers

12 convening in Paris, in Rambouillet. Now, therefore, clearly everything

13 had to be theoretically and in principle ready already by the first week.

14 So that is the indication for what I said before, that the NATO experts

15 from the Contact Group states were working on what was then at the time

16 called annex 2 and annex 1-A.

17 The nomenclature as changed over time, as I already indicated at

18 the very beginning; so therefore, you have it here annex 2 which then

19 became something else later on as well as the military annex at the time

20 called annex. Why? It's easily to explain, because at the time we were

21 still following the Dayton model which has annexes, if I recall correctly,

22 I don't know, 12 or 14 annexes. A general part and then annexes. That

23 was the original idea, because the Dayton model served in many ways as the

24 guiding model for the Rambouillet talks.

25 Q. So as you indicated, the intention was to have these provisions

1 ready from very early during these talks?

2 A. Yes.

3 Q. If you look at the second page of this document, under the

4 heading "Future Schedule."

5 A. Yes.

6 Q. The first item under "Future Schedule" is: Thursday, 11

7 February: Next meeting of the negotiators with Cook/Vedrine (and probably

8 again on Saturday evening or Sunday morning):

9 A. Mm-hmm.

10 Q. Possible handover of the appendices relating to security,

11 military, and implementation."

12 Does that say anything about the intention of the mediators in

13 respect to the preparation and delivery of that aspect of the--

14 A. Yes, that's correct. Clearly, we were under time restrictions.

15 We wanted, as was stipulated by the Contact Group, be finished by the end

16 of this week, the original schedule; and therefore, we of course had to

17 factor into our planning when would these annexes be presented to the

18 Yugoslav side, in particular, and also in an informative way to the Kosovo

19 Albanian side. Clearly that was written on the 10th, and so that would

20 have been then -- that was I guess Wednesday or something like this. And

21 then Thursday, the 11th, and so we were planning at the time towards the

22 end, Saturday or Sunday, to be able to -- provided we finished the

23 political, the civilian parts of -- the institutional parts of the

24 negotiations. That was clearly afterwards not the case, as we know.

25 Q. Now, before we move on from this document, immediately above the

1 section "Future Schedule" there's a paragraph which reads: "Following the

2 proposal of the negotiators, there will be a short meeting with Minister

3 Sainovic and then with the entire Serbian/Yugoslav delegation in order to

4 clarify the issues of signing the 'Basic Elements' and the sovereignty and

5 territorial integrity of the FRY once and for all ..."

6 Can you comment on that aspect, particularly in relation to what

7 reasons were there, if any, for a meeting with Mr. Sainovic first. Did

8 that indicate anything about his role and responsibilities in these

9 negotiations?

10 A. Yes, that's correct. We had this meeting with the two co-chairs

11 of these peace negotiations, the two foreign ministers, and we're talking

12 about the way forward. And one thing was to ask the two foreign ministers

13 to address Mr. Sainovic, whom we considered to be the political head of

14 the delegation to -- and he was also - how should I say? - a very correct

15 and pleasant partner to talk to so that our suggestion was for the two

16 foreign ministers to address him and to see how far they can get in

17 convincing him that there is a political necessity to now come to a

18 positive close of these negotiations and also to convey to him what I said

19 already before, basic elements they are a condition sine quo non, thus no

20 signing necessary, first, and, secondly, that the sovereignty and

21 territorial integrity of the Federal Republic of Yugoslavia is absolutely

22 secured and will be part and parcel of this document, Rambouillet.

23 Q. Thank you. Before we move on just for the record, the foreign

24 ministers you referred to were Cook and Vedrine?

25 A. Yes, Foreign Ministers Cook from the UK and Vedrine from France.

1 Q. Can we now turn to P2661. This is for the 18th of February, 1999,

2 approximately a week after the one that we are -- just discussed. The

3 first three bullet points indicate the progress or the lack of progress,

4 perhaps, that you had made. But I would like you to comment first on the

5 fourth bullet point. Ambassador Hill travelled to Belgrade on the 16th of

6 February, accompanied by the French PD" -- PD is political director.

7 A. That is correct.

8 Q. "Errera and the British deputy political director Ricketts ... a

9 one-hour-long joint meeting of the three was followed by three-hour-long

10 talks between Hill and Milosevic and Milutinovic. Apart from the threat

11 of bombardments of Serbian targets and the issue of stationing NATO

12 troops, according to the USA, the following main points have emerged

13 during the current drafting of the agreement as the most sensitive to the

14 FRY."

15 Now, firstly, I take it this discussion between Christopher Hill,

16 Mr. Milutinovic, and Mr. Milosevic was reported to you?

17 A. That's correct.

18 Q. By who?

19 A. By Mr. Hill.

20 Q. Can you comment on the -- on this passage I just read, on this

21 part of the dispatch, particularly in relation to the issue of the

22 stationing of NATO troops.

23 A. Yes. Well, it was -- it became clear during the first

24 international mission in Kosovo, the so-called KDOM, Kosovo Diplomatic

25 Observer Mission, which was based on an agreement between Presidents

1 Milosevic and Yeltsin, Moscow agreement of June 1998, and this KDOM

2 started in July 1998, that without a robust military component,

3 international presence in Kosovo will not be able to stop the escalation

4 of the conflict; on the contrary, NATO became increasingly nervous and

5 engaged in this issue because it turned more and more into a military

6 confrontation between the Yugoslav security forces and the KLA in the

7 course of the Kosovo Diplomatic Observer Mission's presence there between

8 July and October of 1998 with displacements going in the hundreds of

9 thousands in Kosovo and refugees crossing the borders into Albania,

10 Macedonia, and other parts of the region and beyond, so that it was -- it

11 became very clear that there is not -- that this Kosovo Diplomatic

12 Observer Mission, just by observing the escalation of the conflict, will

13 not do the trick.

14 Then in October Richard Holbrooke negotiated with Mr. Milosevic.

15 A second international mission, the Kosovo Verification Mission, that was

16 an OSCE mission. Again, it was unarmed, because the Yugoslav side would

17 not agree to the -- to an armed component, and NATO in the meantime had

18 already issued what is called an ACTORD, act order, which means that the

19 Secretary-General can now, without going back to his political masters,

20 order an attack on the respective country. So the situation was extremely

21 difficult and very, very tense, but the conflict escalated further on the

22 ground so that it became clear that without a robust military component on

23 the side of the international peace organisations, it will not work out.

24 Again, we were reminded, of course, of Bosnia and Herzegovina where it

25 only started to work once there were NATO-led troops first in Bosnia and

1 Herzegovina.

2 So clearly, in the political talks with the political leaders of

3 Yugoslavia and Serbia, the issue of an international military presence was

4 constantly on the agenda. There was -- invariably in any of the meetings

5 that issue was addressed by Chris Hill primarily, because the Americans

6 clearly have the -- had the lead on this, but also by the Europeans,

7 expressed through the presence of the political directors, of the two

8 co-chairs of the Rambouillet talks.

9 Q. Thank you. What -- or should I set a context. You referred

10 earlier to the role, the continued role, of the Yugoslav Army in border

11 affairs, in managing the borders. What was envisaged at this stage to be

12 the role of the international force?

13 A. The role of the international force was primarily to restore a

14 safe and secure environment, as this is called in diplomatic lingo, to

15 Kosovo. And in the context, in the concrete context, of Kosovo, of

16 course, also the demilitarisation of KLA. It became all too obvious that

17 the Yugoslav Army, which in a conventional sense, of course, was much

18 superior to the KLA, could win any battle but it cannot win the war, so to

19 speak, against this group of rebels.

20 So therefore, it was clear what Kosovo needs is a full

21 disarmament, and there that would have been the second and most likely

22 most challenging role of this NATO presence -- NATO-led presence there.

23 The plans were, by the way, that clearly other non-NATO countries,

24 including Russia, would have joined this. Again, Dayton and Bosnia was

25 the example where this had happened.

1 Q. Thank you. In respect to what you have just said, I would like to

2 refer you again to the previous exhibit, a matter I should have dealt with

3 there and that is 2662 -- P2662. At the end of the fifth bullet point I

4 just refer you to this: "Final contentious issues, withdrawal time-scale

5 for the MUP linked to the disarming of the KLA and implementation,

6 supervision, and involvement of the UN Security Council."

7 This was the role you indicated you envisaged for the

8 international presence, military presence, in the FRY?

9 A. That's correct, yeah.

10 Q. Sorry. In Kosovo?

11 A. In Kosovo, yes, yes, in Kosovo. Clearly, we are always talking

12 about Kosovo.

13 MR. STAMP: If we could return to Exhibit 2661 on the second page

14 of the English translation -- and as a matter of fact, the penultimate

15 paragraph of the document.

16 Q. It reads that: "The new draft agreement was revised on 17

17 February at the Contact Group expert level (without the Russian Federation

18 and finished in consultation with the Russian Federation in the night

19 between the 17th and 18th of February."

20 The initials there are, that also refers to the Russian

21 Federation; am I correct?

22 A. Yes, RF is Russian Federation.

23 Q. Could you briefly in a sentence or two tell us why it is that the

24 new draft agreement revised on the 17th of February was done without the

25 participation of the Russian Federation.

1 A. Well, it was not done without the participation of the Russian

2 Federation, but it was at the expert level that the issues were worked out

3 first and then they put in what came as feedback from the two sides and

4 then subsequently with a consolidated version of this draft the Russians

5 then joined -- the Russian experts then joined the group so that before we

6 went the next day to hand over this final draft - and you need to keep in

7 mind that we wanted to end by the end of the second week, which was the

8 20th - so therefore, on the 18th it was necessary to tell them: Okay.

9 Now, guys, this is now the final draft, that is what is indicated here, so

10 that they should consider it final, meaning that no major changes in terms

11 of structure, in terms of new ideas, and so on, can come in. We can talk

12 about nuances, but that's -- and of course concrete issues. This is

13 enough. There are enough such smaller concrete issues, very important

14 ones, they can be dealt with, but that is now basically the final draft

15 upon which we want now to finalise our work in Rambouillet by the 20th

16 originally.

17 Q. Could we move quickly to document 563 -- P563. This is the

18 diplomatic dispatch of the 19th of February. And it reads: "On the 18th

19 of February" -- this is the third paragraph.

20 "On the 18th of February at 1900 hours the Yugoslav/Serb

21 delegation presented its provisional opinion, noting that the draft had

22 been improved but not indicating any change of position. Criticism was

23 levelled at the following key points."

24 And it indicates a variety of areas where criticisms were levelled

25 at. The first question is this: The Yugoslav/Serb delegation presented

1 its provisional opinion to what?

2 A. Now, at the time when we, as I might recollect, as we handed over

3 the integral draft agreement, it was clear that we first have to -- and in

4 Rambouillet we have to finish the political part, so to speak. Yeah. So

5 therefore our focus -- they had the whole text; however, for the rest of

6 the time in Rambouillet we would have to focus on the political part as we

7 called it, and therefore we asked the delegation to focus now on the

8 civilian part, on the political part of the agreement and tell us what are

9 the problems that you still might have with this part of the agreement.

10 And this -- these are the points that they made at the time.

11 Q. Thank you.

12 MR. STAMP: If we could move to the next page.

13 Q. In the English translation in the middle of the page we see

14 that: "Ambassador Hill met Milutinovic in Paris on the evening of 18

15 February. Outcome negative ('absolutely unproductive'); Milutinovic now

16 in Rambouillet."

17 Firstly, were you at this meeting?

18 A. No, I was not. That was again conveyed to me by Hill and I am

19 quoting here "absolutely unproductive." In the German original of this

20 dispatch it's in English "absolutely unproductive."

21 Q. What is the meeting about, were you told?

22 A. Yes, of course. The meeting was -- since Mr. Milutinovic, who was

23 not formally part of the Serbian/Yugoslav delegation, had taken quarter in

24 Paris, so he was contacted there, and got also more and more involved in

25 the political side. Now, since we were coming to a close, it was very

1 important for us to have additional political decision-makers from

2 Belgrade in Paris. Therefore, we welcomed the presence of President

3 Milutinovic, and Chris Hill took the opportunity to talk to him.

4 Again, as I say, I do not have a verbatim transcript of the

5 meeting. Basically, it was summed up by Chris Hill that it was not

6 productive. And they were talking clearly about the contentious issues,

7 the open issues, and how to resolve them, including clearly also the

8 military side.

9 And then that was written on the -- I believe on the 19th, and

10 then in the meantime Mr. Milutinovic had arrived in Rambouillet and took a

11 more active stance than also in -- personally in the negotiations.

12 Q. And I see in the next paragraph that Hill further informed you

13 that he had been instructed by Albright, I think, that being Madeleine

14 Albright --

15 A. The Secretary of State at the time, the US Secretary of State.

16 Q. -- to go to speak with Mr. Milosevic in Belgrade.

17 A. Yes. There he told me that he has to deliver a bilateral message

18 from Secretary Albright to President Milosevic in person, and he did

19 not -- he did not get the chance to meet with Mr. Milosevic on this second

20 visit to Belgrade.

21 JUDGE BONOMY: Mr. Petritsch, what is a bilateral message?

22 THE WITNESS: Bilateral message, US to Yugoslavia, whereas the

23 negotiations were, of course, a multi-lateral affair. There were some,

24 particularly the United States, who got more and more active in these

25 final stages of the negotiations, where clearly it was the point of

1 finding an equal -- a balanced outcome, meaning between the civilian and

2 the military part, to impress upon President Milosevic that there is a

3 necessity for a military component there. Unless this will happen,

4 there's not going to be a chance to demilitarise the KLA and to provide a

5 safe and secure environment for the future peaceful development of Kosovo.

6 JUDGE BONOMY: Is this a message that others involved were not

7 prepared to be party to?

8 THE WITNESS: No, that was not the -- that was not the question,

9 in fact. The --

10 JUDGE BONOMY: So why, then, did the United States find it

11 necessary to go out on a limb and deal separately with Milosevic at this

12 stage?

13 THE WITNESS: That escapes my information. I do not know why this

14 was, but clearly it was in the context of -- that the negotiations were

15 frustrating some and it was moving closer now to an end. And since it was

16 clear that in all these issues, fundamental, political issues, it was

17 President Milosevic who called the shots, that it would be the best to

18 deliver a direct message from Washington.

19 JUDGE BONOMY: That I don't understand. Why not a message from

20 everyone? If Milosevic calls the shots, why don't you send somebody

21 representative of all the people in the international community who are so

22 concerned about this?

23 THE WITNESS: This has --

24 JUDGE BONOMY: It sounds like the United States calling the shots

25 rather than --

1 THE WITNESS: That already happened -- that already happened two

2 days earlier on the 16th, when the US, the UK, and France delivered the

3 same message.

4 JUDGE BONOMY: The same message?

5 THE WITNESS: A message, yes.

6 JUDGE BONOMY: Mr. Stamp.

7 MR. STAMP:

8 Q. Well, do you know what the message was?

9 A. I can only speculate and I wouldn't want to speculate.

10 Q. Very well.

11 A. Clearly, it was in the very narrow context of finalising and

12 successfully finalising the Rambouillet Accords with all the elements,

13 civilian and military parts.

14 Q. Finally, in this document, the last paragraph, I'll just read it:

15 "The submission of the Yugoslav/Serb delegation's written opinion

16 on the new draft agreement was scheduled for 1000 hours on 19 February.

17 However, the opinion had not yet been presented as at 1330 hours."

18 This is in reference, I take it, to the draft agreement that you

19 said was delivered to them on the 18th?

20 A. Yes, that is correct.

21 MR. STAMP: If we could move to Exhibit P562.

22 Q. We see that: "On the 19th of February, at 1400 hours, the

23 Yugoslav/Serb delegation presented its written opinion on the Final Draft;

24 this was," according to the text here, "this was a little different from

25 the previous one and entailed the deletion of entire sections and

1 chapters."

2 A. Yes. The first dispatch -- the previous dispatch that went out

3 only captured events up till 1300 hours, and the second dispatch then from

4 February the 20th, at 6.00 in the morning, then, of course, was able to

5 report on the 1400 hours delivery of the Yugoslav/Serb delegation's

6 comments.

7 Q. The document discusses, in general, the progress of the talks.

8 Without going into that, can I direct your attention to page 2. It

9 begins -- the paragraph beginning, "Serbian President Milutinovic," and

10 continues on in the English version. And I'll read it.

11 "Serbian President Milutinovic spent 19 February in the Chateau

12 holding lengthy talks with the undersigned and Ambassador Mayorski; no

13 progress made. Milutinovic apparently did not appreciate the need for

14 rapid decisions: An attempt to protract the negotiations, evidently. He

15 himself proved more intransigent than his delegation on the political

16 part. Bombing Serbia would lead to massacres. In comparison with the

17 Contact Group's ultimatum, the Austro-Hungarian ultimatum of 1914 was, he

18 felt, couched in polite and reserved language."

19 Firstly, "bombing Serbia would lead to massacres," who said that

20 at this meeting?

21 A. That was said by Mr. Milutinovic.

22 Q. In the context of the discussion that you -- well, firstly, what

23 language were you speaking at that time?

24 A. We were speaking English. Mr. Milutinovic speaks excellent

25 English.

1 Q. And in the context of the discussions you were having at the time,

2 what did you understand him to mean?

3 A. Well, it was very clear we were talking about the military

4 component of the peace accords, and it was clear that if -- unless we are

5 successful, there is going to be the NATO activation order, and we, the

6 negotiators, will be out of the game. So it was -- it became very, very

7 clear at the time that either we reach a peaceful agreement with -- set

8 out in the proposal, including a military component, in order to, as I

9 already said, secure a safe and secure environment in Kosovo for all its

10 people there; and secondly, to be able to demilitarise the KLA, which was

11 part of the agreement. And unless we succeed, there is going to be

12 another main actor there, which is NATO, clearly.

13 In response to this, then Mr. Milutinovic, President Milutinovic

14 at the time, said that that would definitely lead to massacres, meaning on

15 Albanians in Kosovo. That was my understanding, I should add.

16 Q. In your statement that you gave to the OTP, you indicated that

17 another person was present at these meetings, one Stambuk -- sorry, I

18 probably should get the appropriate reference. Vladimir Stambuk, and this

19 is the middle of page 3 of the statement, had said to you: "If NATO bombs

20 fall, there will be a massacre in Kosovo."

21 Was this the same occasion or different occasion and

22 circumstances? How do you relate it?

23 A. Well, I do not distinctly now recall because we had very frequent

24 meetings in the castle with -- and encounters with all members of the

25 delegation. I remember that we were with, in the case of Mr. Stambuk,

1 sitting with the -- after dinner with Chris Hill and some other of our

2 aides and we were talking about the situation. And in this context, to my

3 recollection, Mr. Stambuk said this; however, I should add that while I

4 was a witness here in this same room in the Milosevic case, Mr. Milosevic

5 came back to this issue after, obviously, having contacted Mr. Stambuk and

6 Mr. Stambuk said he never had said this.

7 So I just wanted to put the record straight, but I still maintain

8 that this was my recollection of what he said at the time.

9 Q. Well, having also seen now the dispatch in respect to what

10 Mr. Milutinovic said, how does -- is that a part of your recollection as

11 well?

12 A. Yes, absolutely.

13 JUDGE BONOMY: Well, are these -- do you think these are two

14 separate occasions or --

15 THE WITNESS: That was -- these were, to my recollection, two

16 separate occasions, yes.

17 JUDGE BONOMY: Mr. Stamp, is the reference to what Mr. Milutinovic

18 allegedly said contained in the statement?

19 MR. STAMP: No, it is not, Your Honour.

20 THE WITNESS: No. I only read it when I saw our internal reports

21 which were written, which now this is based on that I recollected that the

22 meeting with Mr. Milutinovic. I have not consulted these reports prior to

23 my testimony in 1999 or then in 2002 when I was here. These, I only saw

24 now.

25 If -- Your Honour, if I may add. The nature of these dispatches

1 are such that clearly, they are not for public -- for the public eye

2 originally. Yeah. They were internal reports, ad hoc reports, not

3 covering the entirety of the process in Rambouillet, clearly, because we

4 had other means of communication, telephone, and so on and so on. It was,

5 of course, a very turbulent time so that these reports are very much ad

6 hoc, very much written immediately after the event, but not in a

7 systematic way.

8 MR. STAMP:

9 Q. What was, to your understanding, Mr. Milutinovic referring to when

10 he spoke about according to this dispatch the Contact Group's ultimatum?

11 A. Well, he was talking about the -- the Rambouillet Accords. It was

12 the 19th, so he was in full cognizance of the integral text of the

13 Rambouillet Accords and that was his reaction.

14 JUDGE BONOMY: Can you find a suitable place to interrupt, please,

15 Mr. Stamp.

16 MR. STAMP: Could I, with your leave, Your Honours, finish this

17 document that I'm -- I have two or three questions on --

18 JUDGE BONOMY: Sorry, finish?

19 MR. STAMP: This document.

20 JUDGE BONOMY: Yes.

21 MR. STAMP: If we move to the last paragraph of the document.

22 Q. It indicated that: "During the morning there was a rapprochement

23 of views on the political parts. More important outstanding part now is

24 Yugoslav 's agreement to the Implementation Annexes (including stationing

25 of NATO troops)."

1 You have the original German text?

2 A. Yes.

3 Q. Can you just tell us what the German text says? This should be

4 corrected.

5 A. Should I read it to you?

6 Q. Yes. Read it to us.

7 A. [German spoken].

8 Q. Sorry. No, no, no.

9 A. I was wondering.

10 Q. Sorry, sorry. I didn't mean that way. Translate it for us.

11 A. Okay.

12 Q. I want to know if --

13 A. Okay.

14 Q. I'll be very specific. The sentence reads in the

15 translation: "During the morning there was a rapprochement of views on

16 the political parts. Most important outstanding part now is Yugoslav's

17 agreement to Implementation Annexes," here it says "including stationing

18 of NATO troops." Is that what your copy says, including?

19 A. No, it doesn't say "including." It says "above all, in German

20 "vor allem"?

21 MR. STAMP: Thank you, Your Honour, that's all.

22 JUDGE BONOMY: Thank you. We have to conclude our session for

23 today. The court is required by others, and we will have to resume your

24 evidence tomorrow. Overnight, as I'm sure you were told before, it's

25 vital that you do not discuss any part of your evidence with anyone. We

1 shall resume at 9.00 tomorrow morning. The usher will now show you the

2 way from the court and we will see you again at 9.00 tomorrow.

3 THE WITNESS: Thank you.

4 [The witness stands down]

5 --- Whereupon the hearing adjourned at 1.47 p.m.,

6 to be reconvened on Thursday, the 1st day of

7 March, 2007, at 9.00 a.m.

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