1 Thursday, 13 September 2001

2 [Open session]

3 [The witness entered court]

4 [The accused entered court]

5 --- Upon commencing at 9.33 a.m.

6 JUDGE MUMBA: Good morning. Would the registrar please call the

7 case?

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

9 IT-95-9-T, the Prosecutor versus Blagoje Simic, Milan Simic, Miroslav

10 Tadic, and Simo Zaric.

11 JUDGE MUMBA: Cross-examination is continuing with counsel.

12 MR. PANTELIC: Yes. Good morning, Your Honours.

13 WITNESS: ROBERT DONIA [Resumed]

14 Cross-examined by Mr. Pantelic:

15 Q. Good morning, Mr. Donia.

16 A. Good morning.

17 Q. We are trying to be focused today really on the facts and we shall

18 very briefly pass over the examinations.

19 MR. PANTELIC: Your Honours, I would like to know whether all

20 copies of the document that I mentioned yesterday were transmitted in the

21 proper way, a document of Muslim party headquarters that I mentioned

22 yesterday. Do we have enough copies for all parties or --

23 JUDGE MUMBA: Which one was it? The one --

24 MR. PANTELIC: It was the last one without numbering. I

25 just -- because I have enough -- I have enough copies now, and maybe it's

1 easy -- maybe it's better -- yes. I think that's the one, with the

2 translation in English. So if necessary, we could --

3 JUDGE MUMBA: Do you want it produced?

4 MR. PANTELIC: Yes. I would like to have a number.

5 JUDGE MUMBA: Okay. Yes. Just wait.

6 The Prosecution, I hope you had a chat about the document. What's

7 your position?

8 MR. KOUMJIAN: Well, I don't have -- I can understand the document

9 can be marked, but what I was given yesterday, Your Honour, is a

10 three-page document. It bears an ID number from another case, but it's

11 apparently been faxed three times. I have two pages of an English

12 translation and one page in B/C/S, and it's apparent that the English

13 translation goes up through point 4, paragraph 4, and has a signature,

14 while the B/C/S only has three paragraphs.

15 JUDGE MUMBA: So when you were discussing, you didn't compare what

16 Mr. Pantelic is producing and what he gave you? You didn't --

17 MR. KOUMJIAN: Well, I don't read B/C/S, but I didn't notice that

18 until after I left court.

19 MR. PANTELIC: Sorry, my dear colleague, there is a 4 in the B/C/S

20 version. I don't know. Maybe --

21 MR. KOUMJIAN: Perhaps I don't have that copy.

22 MR. PANTELIC: That's the problem. So now, Your Honours, I have

23 enough copies here. Maybe it was a problem with the stapling.

24 So please, Mr. Usher.

25 JUDGE MUMBA: Can the usher assist, please?

1 MR. PANTELIC: This is six copies. Ms. Taylor, is it okay, six

2 copies for all parties? Thank you.

3 JUDGE MUMBA: I would like the prosecuting counsel to describe the

4 document he has just received so we see whether we have an identical

5 document.

6 MR. KOUMJIAN: [Microphone not activated]

7 THE INTERPRETER: Microphone.

8 MR. KOUMJIAN: I received a document consisting of three

9 pages -- excuse me, four pages. The first two pages are in B/C/S and show

10 at the very top line what I presume is a fax identification with a phone

11 number. I don't think it's necessary to read it into the record. It was

12 faxed at 7.47 a.m. on September 12th of this year. The English

13 translation, the first few lines in English are: "SDA Party of Democratic

14 Action, to SDA Srbinje, regarding the instructions from moving out from

15 Srbinje."

16 JUDGE MUMBA: Is it only one page?

17 MR. KOUMJIAN: Sorry. The English is only one page. So I have

18 four pages in total.

19 THE INTERPRETER: Microphone for Judge Mumba.

20 JUDGE MUMBA: The last page on the -- is there a name at the

21 bottom of it?

22 MR. KOUMJIAN: Yes.

23 JUDGE MUMBA: What's the name?

24 MR. KOUMJIAN: "Secretary of SDA, Hasan Cengic."

25 MR. PANELIC: Cengic.

1 MR. KOUMJIAN: Cengic.

2 JUDGE MUMBA: Is that the same, Mr. Pantelic?

3 MR. PANTELIC: Yes. That is correct, Your Honour.

4 JUDGE MUMBA: So now we have an identical document. Any

5 objection?

6 MR. KOUMJIAN: Well, I would have an objection to it being

7 admitted for a lack of foundation, lack of authenticity. I don't know

8 where it came from. But if counsel's simply marking it for

9 identification, I don't know where it came from, but I understand he has

10 the document.

11 MR. PANTELIC: Your Honours, to speed up the things, this document

12 is existing actually in Krnojelac case, Foca second case.

13 JUDGE MUMBA: We shall have an ID number. Then later on, when you

14 have --

15 MR. PANTELIC: I just mentioned that to my colleagues, so they

16 were able enough to check it.

17 JUDGE MUMBA: Can we have an ID number, please?

18 THE REGISTRAR: This document, entitled Instructions From the

19 Party of Democratic Action, shall be titled -- marked for identification

20 ID2/4.

21 MR. PANTELIC: Let's move on.

22 Q. Mr. Donia, could you tell us if you ever met in person --

23 personally, Mr. Hasan Cengic, the Secretary-General of Muslim SDA party?

24 A. No.

25 Q. Being an expert for Bosnian and Muslim topics, we can agree, can

1 we not, that this Muslim party, among other members, also included Croat

2 neighbours -- members and Serbian members of party?

3 A. Very few. Very few members, yes, Serbs and Croats.

4 Q. But assuming that they -- based on what you said on the previous

5 occasions, that these members would be, by religion, by their religion,

6 Christians?

7 A. I don't recognise that I made that statement earlier.

8 Q. Okay. Could you assume now?

9 A. No.

10 Q. So these Croatian and the Serbian members might be Muslim by

11 origin or --

12 A. I'm sorry. What's your question?

13 Q. My question was that assuming that there were some members, Croat

14 members and Serb members, within the SDS Muslim party. So my question is

15 simple. What would be the religious background of these Croat and Serb

16 members?

17 A. They may have been unbelievers, atheists. I can draw no

18 conclusions about their religious --

19 Q. And also Christians?

20 A. They could be anything.

21 Q. Catholic or Orthodox?

22 A. They could be anything.

23 Q. Thank you. Could you inform us now, at the end of this document

24 there is a -- there is a word which is at the end of the letter, Selam

25 Aleykum. Being an expert for Muslim issue, could you tell us what does it

1 mean?

2 A. I don't have the document in front of me.

3 JUDGE MUMBA: Yes, counsel for the Prosecution.

4 MR. KOUMJIAN: I would object to the characterisation of Dr. Donia

5 as an expert for Muslim issues. He hasn't characterised himself that

6 way.

7 JUDGE MUMBA: Yes.

8 MR. PANTELIC: Okay.

9 Q. Being an expert for Bosnia maybe, to be more precise, just tell

10 us, what does it mean, Selam Aleykum? Because in your CV, I see that you

11 are speaking also the other languages, including Serbian Croat. Although

12 this is not maybe other language.

13 A. Well, I won't speak either Turkish or Arabic, which would be the

14 origins of this, but it is a term of greeting, "hello," "good-bye," that

15 came into widespread use in the 1990s among some Bosniaks.

16 Q. You mean Bosnian Muslims, to be more precise?

17 A. Well, as I indicated, in September 1993, the Bosnian Muslim

18 leadership voted to change its name from Bosnian Muslim to Bosniak. So

19 the answer is, in the period prior to roughly September 1993, one would

20 refer to these people as Bosnian Muslims, thereafter as Bosniaks.

21 Q. Yes. I understand that, and I appreciate your explanations, but

22 here within this Tribunal, we are operating with different notions and

23 different words. It means Bosnian Muslims for this ethnic group, Bosnian

24 Serbs for the other, and Bosnian Croats for the third. So it's just a

25 matter of procedural issues, you know.

1 So tell me, Mr. Donia, would it be correct to say that during the

2 war in Bosnia, all three national parties undertook certain steps with

3 regard to the armaments of their units, formations?

4 A. Yes.

5 Q. Including the SDS Muslim party?

6 A. I think the SDS was the Serbian party.

7 Q. Sorry. Sorry. My mistake.

8 A. Yes, including the SDA.

9 Q. Including the SDA. Would it be correct to say that the army wing

10 of SDA party, Muslim party, called Patriotic League?

11 A. An armed formation that was under the control of the SDA as -- I

12 would characterise the Patriotic League that way, yes.

13 Q. Thank you. And would it be correct to say that during the

14 conflict in Bosnia, very many volunteers came outside of Bosnia to fight

15 for various causes?

16 A. What do you mean by "very many"?

17 Q. Thousands, let's say.

18 A. I think a few thousand would be perhaps a better

19 characterisation.

20 Q. Including -- now we are focusing on the Muslim side in the

21 conflict. It is -- I believe it's an indisputable fact that the

22 Mujahedins, the extreme members of Muslim community, and I would say of

23 factions within Muslim community, were also present in Bosnia as members

24 the Bosnian Muslim army forces.

25 A. Is there a question?

1 Q. Yes. That's a question.

2 A. I didn't hear a question. I'm sorry.

3 Q. So in fact, could we agree upon the fact that the members of

4 extreme part of Muslim community called Mujahedins were present at Bosnia

5 under the control of Bosnian Muslim army? In some parts, of course.

6 A. Well, there's two parts to your question. Were they present? I

7 would agree, they were present in numbers, as I've indicated, which could

8 be characterised perhaps as a few thousand. I'm not in a position to

9 render a judgement on whether they were under the control of any Bosnian

10 formation.

11 Q. Thank you, Mr. Donia. Tell me, are you familiar with the fact

12 that during the attack of these extreme Muslim members called Mujahedins,

13 they used to yell -- they used to scream - sorry - to scream Selam Aleykum

14 Allah Akbar? And I'm speaking specifically about the members of these

15 army groups.

16 A. I don't have any direct knowledge of that, no.

17 Q. Could you tell me something about the other issue? You were a

18 very frequent visitor of Sarajevo. When was the first time when you were

19 in Sarajevo, approximately?

20 A. 1965.

21 Q. Good. And at that time do you remember maybe what were the colour

22 of the names of the street plates?

23 A. As I recall, they were - and some of them still are - dark blue

24 with lettering on them.

25 Q. Good. And do you maybe remember some of the main streets' names?

1 For example, could we say that certain streets at that time were named as,

2 let's say, boulevard of JNA, or Tito, or Brotherhood and Unity, you know,

3 in these Communist terms?

4 A. Sure. All streets were named after some Communist hero or

5 Partisan hero or organisation, yes.

6 Q. Good. Now, tell me, Mr. Donia, you claim that you visited also

7 Sarajevo during the recent years - 1992, 1993, 1994, 1995 - I mean, after

8 the 1990s, after the multiparty elections; yes?

9 A. Yes.

10 Q. What is the colour now of the plates, of the street plates in

11 Sarajevo?

12 A. Well, in the course of my visits there, more and more of them have

13 gone from that dark blue to a green.

14 Q. Would it be correct to say that - I don't want to make any

15 conclusions - that a green colour actually is the basic colour for Muslims

16 on their flags, on their details, stuff like that?

17 A. Well, I think it's the party -- or the colour that the SDA

18 prefers.

19 Q. No, no. In general terms, Mr. Donia, speaking about the Islam

20 community in whole.

21 A. I couldn't speak to the entire Islamic community, but certainly

22 the Muslim community and, say, from Saudi Arabia --

23 Q. Okay. Thank you very much. It's enough for me. Another

24 question --

25 JUDGE SINGH: Dr. Donia, I think the question is a simple one:

1 Green is the basic colour of the Muslims?

2 A. And my answer is: I can only speak for that area that is from

3 Saudi Arabia to the west. I just don't know.

4 JUDGE SINGH: What's your answer for that, then?

5 A. As far as I know, it is.

6 MR. PANTELIC: Excuse me, Your Honours, but I'd just like to go to

7 another question, because I really believe that we are wasting time here.

8 So that was my -- that was my initial approach, to cut this line of

9 questioning.

10 Q. Tell me, Mr. Donia, are you familiar about the names, the actual

11 names of the streets now in Sarajevo?

12 A. Yes.

13 Q. Comparing to the Communist-regime street names, could we agree

14 upon the fact that the street names now in Sarajevo are labelled with

15 Muslim origins, for example: Muslim heroes, Muslim writers, Muslim

16 artists, Muslim heroes in the civil war, even Mujahedins, et cetera,

17 et cetera, but all focused on Muslim names?

18 A. Not all. Not all, but many.

19 Q. Many. Thank you. Now, Mr. Donia, yesterday you mentioned that

20 you are a co-founder of the Donia Vakuf Foundation. Is that true?

21 A. Yes.

22 Q. Just -- it's not an important matter, but maybe it's -- it's maybe

23 a word game. Do you know that in Bosnia there are two places called

24 Gornji Vakuf and Donja Vakuf?

25 A. Yes.

1 Q. So probably the idea when you have established your foundation was

2 to be, let's say, more familiar with the local topics and names, and then

3 combining your family name, you established the foundation Donia Vakuf,

4 which sounds like Donia Vakuf. Is it true or -- I mean --

5 A. It's a pun, a bad pun, but it's a pun.

6 Q. Good. Thank you. So could we agree upon the fact that the

7 process of reconciliation, interethnic reconciliation, interconfessional

8 reconciliation in Bosnia, is a crucial one these days?

9 A. Yes.

10 Q. Now, could we agree upon the fact that due to the tragic war in

11 Bosnia, still there are wounds between three communities, I mean wounds on

12 them in their spirit, in the family life, in that these three communities

13 are suffering a lot and, with the help of International Community, with

14 the progressive elements in Bosnian society, trying to resolve these

15 problems, to cure these wounds now?

16 A. Yes.

17 Q. Good. Could we agree upon the fact that the Bosnian anthem is

18 Beethoven's Ninth Symphony?

19 A. I'm sorry --

20 Q. The anthem, you know, the official song of the state. Yes,

21 anthem.

22 A. Yes, anthem, hymn. I don't know what it is. I don't know what it

23 is.

24 Q. Could we agree upon the fact that now official the flag of

25 Bosnia-Herzegovina is a blue flag with the yellow -- one triangle and the

1 stars?

2 A. Yes.

3 Q. Good. So there is not any green --

4 A. No.

5 Q. -- in this flag. So in the -- well, for your information, because

6 I want to pose another question. Because the official anthem is, believe

7 me, it's the Ninth Symphony, the Joy, the Ode to Joy of Beethoven. So

8 could we agree upon the fact that the International Community and the

9 progressive elements in Bosnia now are trying to be very sensitive among

10 three ethnic communities not to give an advantage to one of them, and they

11 are trying to balance, because this is a very sensitive time? Could you

12 agree or not?

13 A. Yes.

14 Q. Good. But still, Mr. Donia, you being a humanist and a person

15 very committed to the peoples of Bosnia, what was the reason for you not

16 to establish a branch of your foundation, for example, in Bosnian Serb

17 territory in Banja Luka, because -- or in Mostar, because these regions

18 are also a part of Bosnia and Herzegovina? Or maybe you are thinking

19 about that.

20 A. My -- the Donia Vakuf Foundation is one stack of papers on my

21 desk. It has no office, it has no location.

22 Q. Good. But tomorrow maybe you are --

23 A. And it has very few funds.

24 Q. Yes, but -- well, I wish you all the best with your foundation,

25 but probably tomorrow you may consider as a good idea to have your branch

1 office in Sarajevo, Mostar, and Banja Luka, covering all territory of

2 Bosnia and Herzegovina. Would you agree?

3 A. I would love to.

4 Q. Thank you, Mr. Donia. So tell us: What was the reason to use the

5 Muslim and Turkish notion of foundation which we yesterday discussed

6 called Vakuf, a strictly Turkish and Muslim? Is it maybe a one-side

7 approach when you established your foundation?

8 A. No.

9 Q. Why you didn't, for example, say, "This is a foundation for all

10 three communities in Bosnia. This is a Muslim, Croat, and Serb

11 foundation," something like that? Tell me, what was your basic idea to

12 name your foundation as the Vakuf Foundation?

13 A. I thought it was a pun on "Donja Vakuf," the name of the town.

14 Q. Thank you very much, Mr. Donia. I would like to introduce the

15 documents. Actually, this is a translation of the Croat dictionary with

16 this word, with this word "Vakuf," a translation in English too.

17 Good, Mr. Donia. Just one small question. Tell me: I think that

18 being a founder of such a foundation is an honourable thing. I mean, I

19 would be proud if I would be a co-founder of one foundation.

20 JUDGE MUMBA: Can we have an ID number, please --

21 MR. PANTELIC: Sorry, Your Honours.

22 JUDGE MUMBA: -- for the document.

23 THE REGISTRAR: This shall be marked for identification purposes

24 as ID3/4.

25 MR. KOUMJIAN: Your Honour, may I ask the Court a question?

1 JUDGE MUMBA: Yes.

2 MR. KOUMJIAN: I understand these documents are only being

3 admitted for identification, but I presume counsel is going to use them in

4 his examination.

5 JUDGE MUMBA: Yes. The point here is that if all these documents

6 that are being marked ID only and being objected to will be kept by the

7 Registry. If, at a later stage, the parties don't agree as to the

8 admission and they don't raise the point, that means the evidence on that

9 will not be considered.

10 MR. KOUMJIAN: Thank you.

11 JUDGE MUMBA: That's the position with such documents. So it's

12 just that the witness is here, we can't hope to recall him, so we go

13 through it. If at the end of the day it cannot be admitted, then that

14 evidence will not be considered by the Trial Chamber.

15 MR. KOUMJIAN: Thank you. I just was -- my only concern was

16 whether this was an official translation. But thank you, Your Honour.

17 JUDGE MUMBA: You can discuss that afterwards, because it's only

18 marked for ID purposes. It may be not admitted later on, depending on

19 what the Prosecution will say about it. We've already discussed the

20 problem of translation, actually.

21 MR. PANTELIC: Yes.

22 JUDGE MUMBA: I'm sure that Mr. Pantelic is aware.

23 MR. PANTELIC: I already mentioned -- yes, Your Honour. Thank you

24 very much for this remark. And I would be very grateful, I would be very,

25 very grateful if my learned colleagues from Prosecution would provide us a

1 translation service. I would be so happy, because now we can -- in that

2 situation we could resolve all this matter of whether it's official or

3 not, because obviously members of Defence team are no expert of such .

4 JUDGE MUMBA: Yes.

5 MR. KOUMJIAN: Just so we can establish the procedure, I think

6 probably my colleague --

7 MR. PANTELIC: Excuse me, my dear colleague. If you want to speak

8 about the issue of interpretations, I would prefer to speak that after,

9 because we have a witness here and we're in the middle of cross.

10 JUDGE MUMBA: Yes, you can wait. The Trial Chamber has given

11 counsel permission to address the Court, yes.

12 MR. KOUMJIAN: Counsel indicated he'd ask the Prosecution to do

13 the interpretation. I'm not sure what the practice of this team has been,

14 but my understanding was that the counsel is to ask the --

15 JUDGE MUMBA: Translation Unit.

16 MR. KOUMJIAN: -- Translation Unit to provide it. The Prosecution

17 itself cannot provide an official translation.

18 JUDGE MUMBA: Yes.

19 MR. PANTELIC: As I said, Your Honours, I would like to move on,

20 please.

21 MR. PANTELIC:

22 Q. Mr. Donia, tell me, would it be fair to say that in October of

23 1991, in Bosnia, the very serious tensions among and between three ethnic

24 communities occurred and that all three ethnic communities tried to

25 establish their own national goals, including, to some extent, to provoke

1 a certain hatred on the other side or to arrange armament, et cetera, in

2 November 1991?

3 A. There are several questions, I think, you asked there. Could you

4 ask one at a time so I could give you an answer, please?

5 Q. Well, could you summarise your answer regarding these questions?

6 A. Well, you asked, in the first instance, if there were tensions

7 between the national communities in October of 1991, and my response was

8 yes -- or my response would be yes. October of 1991, there were already

9 acute tensions between the national communities.

10 The second part of the question that I heard was were these

11 national communities as, let's say, spokesmen by their national parties

12 engaged in arming. Yes.

13 Were they engaged in a process of provocation, which was another

14 part of your question. I think that is not so clear.

15 Q. Thank you, Mr. Donia. Would it be correct to say that the media

16 took a very important role in this process of raising up tensions in --

17 well, a number of media, to be more precise, in Bosnian community?

18 A. Yes.

19 Q. Including Muslim media?

20 A. Yes, uh-huh.

21 Q. Good. Mr. Donia, I would like --

22 MR. PANTELIC: Mr. Usher, please, could you put this on the ELMO?

23 I have also a translation, and I have enough -- enough copies.

24 JUDGE MUMBA: When you present a document, please describe it.

25 MR. PANTELIC: Yes. Sorry. Sorry, Madam President. That was my

1 mistake. I am now introducing a document, the cover page of Muslim

2 newspaper - I suppose it's weekly newspaper - published in October 1991.

3 The name of this paper is Novi Vox, meaning New Voice or New Vox.

4 So on the ELMO, we now see --

5 JUDGE MUMBA: Can we have the ID number, please?

6 MR. PANTELIC: The ELMO is working.

7 THE REGISTRAR: This document shall be marked for identification

8 purposes ID/4.

9 JUDGE MUMBA: I take it the Prosecution is seeing it for the first

10 time?

11 MR. KOUMJIAN: Yes.

12 JUDGE MUMBA: So at a later stage you will have your comments,

13 after verifying it.

14 MR. KOUMJIAN: Thank you.

15 MR. PANTELIC:

16 Q. So now, Mr. Donia --

17 MR. PANTELIC: May I proceed? Sorry.

18 JUDGE MUMBA: Yes. Counsel may proceed.

19 MR. PANTELIC:

20 Q. We have on our displays cover page of Novi Vox. You are familiar

21 with this newspaper, actually. You were there on many occasions?

22 A. No, I'm not.

23 Q. Good. Thank you for your answer. The unofficial translation, as

24 you see, Your Honours, and my dear colleagues from Prosecutor bench, says

25 that the title of this cover page is, to the best of my knowledge, is

1 "Handzar Division Ready." Is that correct, Mr. Donia?

2 A. Yes.

3 Q. Could you agree with me that Handzar Divisija was a Muslim SS unit

4 during the Second World War, under the command of German SS headquarters?

5 A. Yes.

6 Q. Could we agree upon the fact that this cover page of this

7 Muslim -- Bosnian Muslim magazine might provoke, to some extent, a certain

8 level of fear among the Serbian community? If you are a Serbian, for

9 example, just to put the question --

10 JUDGE MUMBA: Before the question is answered, counsel for the

11 Prosecution is on his feet.

12 MR. KOUMJIAN: I think it calls for the witness to make pure

13 speculation.

14 JUDGE MUMBA: The objection is sustained. Do not ask questions to

15 ask the witness to speculate.

16 MR. PANTELIC:

17 Q. Would you explain us, Mr. Donia, or try describe to describe the

18 cut heads at the end of this -- at the bottom of this cover page, from

19 left to right?

20 A. I can't see the one to the left. I understand you're representing

21 these here to be Radovan Karadzic, Nikola Koljevic, Milosevic, and

22 Seselj. I don't see those names on this document. They're reasonably

23 poor caricatures of those four people.

24 Q. Thank you. Mr. Donia, speaking about the events in the area of

25 Samac, are you familiar with the fact that certain number of Croatian army

1 units intervened in that region, crossing Sava River and commit -- and

2 these Croatian units committed certain serious crimes against the Bosnian

3 Serb population at that time in the neighbouring area of Samac?

4 A. Yes.

5 Q. Do you know that the crimes were committed in -- or could we agree

6 upon the fact that these crimes were committed in the region and in the

7 villages of Sijekovac, Odzak, even Bosanski Brod?

8 A. Yes. I referred to that, I believe, in my paper.

9 Q. Thank you. Yesterday, Mr. Donia, both of us have an agreement

10 upon the fact, not interpretation but the simple fact that the certain

11 numbers of amendments were adopted in 1990, in July 1990; is that

12 correct?

13 A. Yes.

14 Q. And that these amendments are related to the constitutional

15 mechanism of the equality of nations and the mechanism of the protection

16 of vital national interests; is that correct?

17 A. Yes.

18 Q. Could we agree upon the fact that newly adopted Bosnia

19 constitution, which is a part of NATO peace accord, I believe it's

20 Annex 4, also provides even -- even more stringent provisions regarding

21 the possibility of outvoting of one of the ethnic communities and the

22 mechanism for preventing to -- for majority to outvote minority, and also

23 the new Bosnian constitution in Dayton Peace Accord has a mechanism with a

24 veto for this kind of decision which might affect the vital national

25 interest in one of three communities in Bosnia? Yes or no?

1 A. Yes.

2 Q. Thank you.

3 MR. PANTELIC: Now I would like to introduce the Official Gazette

4 of Socialist Republic Bosnia and Herzegovina, published in 1990,

5 consisting of amendments to the Constitution. Also, it's highlighted.

6 All relevant parts are highlighted. Also, first part of constitution at

7 that time in force in Bosnia, with the provisions of Article 1, 2, and 3,

8 please.

9 JUDGE MUMBA: Can we have an ID number only pertaining to the

10 highlighted parts, as counsel said.

11 THE REGISTRAR: The highlighted parts of this Gazette shall be

12 marked for identification purposes ID5/4.

13 MR. PANTELIC:

14 Q. Good. Mr. Donia, my next question would be: Can we agree upon

15 the fact that in the process of scientific approach, historic approach to

16 certain issues --

17 JUDGE MUMBA: Before you proceed, Mr. Pantelic.

18 MR. PANTELIC: Excuse me, Madam President.

19 JUDGE MUMBA: I notice that the highlighting is only in the other

20 language. The English translation of the Official Gazette is not

21 highlighted. Is the translation only pertaining to the highlighted

22 parts?

23 MR. PANTELIC: That is absolutely correct, Madam President.

24 JUDGE MUMBA: All right. Thank you.

25 MR. PANTELIC:

1 Q. So speaking about the process of scientific approach to certain

2 matter and issue for scientific research, could we agree, Mr. Donia, both

3 of us, that to some extent, various angles of view and interpretation and

4 process of taking something out of context of general picture might be

5 characterised as a sort of manipulation?

6 A. Yes.

7 Q. Thank you. So, Mr. Donia, speaking about the famous memorandum of

8 Serbian Academy of Arts - and you also mention this memorandum - could you

9 agree with the following statement:

10 "The sovereignty of the people, at the very foundations of modern

11 civilisation, is the idea that political power is wasted in the people,

12 that the sole legitimate political authority is the one which derives from

13 the freely expressed will of the people and that, therefore, there are no

14 moral or legal grounds for an elite by the will of God, by blood,

15 religion, race, class, ideological credentials, historical merit, or any

16 other grounds to arrogate to itself the right to speak, decide, or use

17 force on behalf of a nation."

18 Does this expression, does this thesis -- do you agree with this

19 thesis?

20 A. Yes.

21 Q. Thank you.

22 MR. PANTELIC: I would like now to introduce this -- I know. I'm

23 respecting the time of these Judge, and there are various points from this

24 memorandum in order to illustrate this situation. My idea was to just

25 take something out from context and then to have a characterisation.

1 Thank you, Mr. Donia.

2 JUDGE MUMBA: Can we have the ID number, please?

3 THE REGISTRAR: This memorandum shall be marked for identification

4 purposes ID6/4.

5 MR. PANTELIC:

6 Q. Good. Mr. Donia, would you agree with me, because you mentioned a

7 poet --

8 JUDGE SINGH: Mr. Pantelic, if you could.

9 MR. PANTELIC: Excuse me, Your Honour.

10 JUDGE SINGH: After you submit a document, give us a minute to

11 read it through.

12 MR. PANTELIC: Pardon me. That's my mistake. Sorry, Your

13 Honours. Excuse me.

14 May I proceed, Your Honours? Just give me a sign, please.

15 JUDGE MUMBA: Yes.

16 MR. PANTELIC: Thank you.

17 Q. Mr. Donia, speaking about Njegos and his work, The Mountain Rat

18 [sic] -- sorry, my bad English. "Mountain Wreath." Could we agree, both

19 you and me, about the following thesis:

20 "To write about Njegos at the present time is, of course,

21 slightly hazardous. The fascist Balkan tragedy that is being played out

22 with the aid of the powers of Western Europe and America has led to

23 nationalistic feelings that have been seen to act adversely on the

24 acceptance of the national culture of all parties. Thus there have been

25 attacks on the works of Ivo Andric, who is a Nobel Prize winner in 1961,

1 and also on Njegos. I am informed that some nitwit wrote article

2 suggesting that Njegos wrote in favour of genocide. People have always

3 been and, I fear, always will be thus, but perhaps one might quote the

4 words of George Samson regarding Milton's "Paradise Lost," a poem does not

5 become unreadable when its technology is no longer accepted."

6 Would you agree with this?

7 A. Not fully. Not fully, no.

8 JUDGE MUMBA: What document is that? Because we haven't -- is it

9 within ID6?

10 MR. PANTELIC: No, no, no. That's another document that I'm going

11 to provide you, Your Honours.

12 JUDGE MUMBA: What you should be doing, before you read anything

13 out of a document, you introduce it, you let us have it, let every party

14 have it before you read it.

15 MR. PANTELIC: I appreciate. Thank you for your directions, Madam

16 President. So this is a part of the book of the author Goy, "The Saber

17 and the Song," Njegos, "The Mountain Wreath," published in Cambridge by

18 one of the well-known Njegos - this is the last paragraph - expert for

19 Njegos work. So I have these four copies here. Six, sorry.

20 JUDGE MUMBA: Can we have the number, please?

21 THE REGISTRAR: This extract titled "The Saber and the Song" shall

22 be marked for identification purposes ID7/4.

23 MR. PANTELIC: Can I proceed?

24 JUDGE MUMBA: Yes. Yes.

25 MR. PANTELIC: Thank you, Madam President.

1 Q. So, Mr. Donia, although you are not a constitutional lawyer, an

2 expert for constitutional law, but speaking from your heart, from your

3 soul, speaking from your personal point of view about certain protections

4 and mechanisms in modern civilisation in the state with the rule of law,

5 would it be correct to say that for important issues in one society in

6 terms of constitutional law issues, at least a qualified a majority, at

7 least two-thirds of votes for changes of borders or for changes of the

8 structure of the state might be followed?

9 That means -- my question is for you, having known all these

10 issues and also knowing the situation in Bosnia, because you rely in your

11 report on certain events in Bosnian parliament, so my question is: Would

12 you agree with me, with the thesis that for the serious constitutional

13 issues, for the serious national and vital national issues, the certain

14 safeguards within the constitutional frameworks must be followed, as a

15 person?

16 A. I'm sorry. What was the last part of your question? Certain

17 what?

18 Q. Certain safeguards in the constitutional framework in order to

19 prevent over-voting and, you know, to protect the vital interests of the

20 nation must be followed.

21 A. Yes.

22 MR. PANTELIC: Thank you.

23 Now, Your Honours, I'm introducing two documents. First is

24 chapter 4 of the Constitution of Bosnia and Herzegovina at that time in

25 force, regarding the mechanism how and with which majority it can be done.

1 JUDGE MUMBA: When you say "at that time," what year? What year?

2 MR. PANTELIC: It's year -- well, in 1991 and 1992 as well, prior

3 to conflict, it was in force. This constitution was enacted in 1974, and

4 then with the amendments that I just provided to you prior to my

5 submissions, in 1990. So that's a whole issue. And also I would like to

6 provide the constitutional provisions from the Bosnia and Herzegovina

7 constitution that I mentioned yesterday with regard to the association of

8 the municipalities and the constitutional framework for this. So two

9 documents. Only a few, I think one or two, articles are highlighted, and

10 then the English translation follows the ...

11 JUDGE MUMBA: Can we have the numbers?

12 THE REGISTRAR: The first document, with "Cooperation and

13 Association of Municipalities" at the top shall be marked for

14 identification purposes ID8/4, and the other document with "Change of the

15 Constitution of Bosnia-Herzegovina" at the top shall be marked for

16 identification purposes ID9/4.

17 JUDGE MUMBA: Yes, you may proceed.

18 MR. PANTELIC: Thank you, Madam President.

19 Q. Mr. Donia, could we agree upon the fact that in October 1991 a

20 memorandum about the sovereignty of Bosnia and Herzegovina was adopted by

21 the majority of Bosnian Muslim and Bosnian Croat delegates in the

22 parliament of Bosnia and Herzegovina?

23 A. Yes.

24 Q. Could we also be agreed upon the fact that by this act, the

25 pattern of the qualified majority and also the mechanism for the

1 protection of the interest of -- vital interest of one of three

2 constitutive nations were not followed by this particular memorandum?

3 A. I don't know.

4 Q. What is your position? Would you agree or not with the following

5 approach? I'm now citing the book "The War in Bosnia-Herzegovina: Ethnic

6 Conflict and International Interventions," written by Steven L. Burg and

7 Paul S. Shoup. I suppose, Mr. Donia, that these names are familiar to

8 you.

9 A. Yes, they are.

10 JUDGE MUMBA: What page?

11 MR. PANTELIC: Just a moment, Your Honours.

12 Yes. The usher, please. It's page 78, chapter 3, and the

13 paragraph 1, 2.

14 Q. So first of all, would you agree with me, Mr. Donia, that these

15 two authors are well-distinguished American scholars with a very

16 impressive work, especially in regard with the issue of Bosnia and

17 Herzegovina?

18 A. Yes.

19 Q. Thank you. So now, this --

20 MR. PANTELIC: Sorry. ID? Shall I wait for ID number or --

21 JUDGE MUMBA: Yes, please.

22 Can we have the number?

23 THE REGISTRAR: This extract from "The War in Bosnia-Herzegovina"

24 shall be marked for identification purposes ID10/4.

25 JUDGE MUMBA: And Mr. Pantelic, before I forget, when discussing

1 these documents which the Prosecution have yet to make a stand on, please

2 make the book available to them as well.

3 MR. PANTELIC: Absolutely. By all means, Madam President.

4 Q. As a matter of fact, I don't want to challenge certain parts of

5 your report with referring to the other parts of the other sources. I

6 mean, it's the never-ending story. But just as a matter of fact,

7 Mr. Donia, could we agree with the following interpretation: "The

8 memorandum justified --" I believe it's the second paragraph:

9 "The memorandum justified the actions of the parliament as a

10 matter of constitutional principle. It asserted that the position in the

11 memorandum," speaking about memorandum of sovereignty, "expressed the will

12 of the majority of the Assembly and, as such, the political will of the

13 citizens of Bosnia and Herzegovina. Consequently, they constitute an

14 obligatory basis for the conduct of the state and political bodies of the

15 republic. This seemed to contradict to the next point in the memorandum

16 that the Assembly recognise simultaneously the right of the parliamentary

17 minority to claim and realise every one of its legitimate

18 interests - ethnic, cultural, economic, and social - provided this is

19 achieved without the use of force and in a legal and democratic manner."

20 Then the author says:

21 "The rights of the minority does depend entirely on how

22 'legitimate interests were defined,'" et cetera, et cetera.

23 Then I'm going to the second paragraph:

24 "Changes in borders of Bosnia, the platform stated, could only be

25 approached with a two-thirds vote in a popular referendum."

1 And then we are coming to the expression:

2 "While 'constitutional' in nature, the memorandum and the

3 platform hardly reflect the kind of consensus necessary to make a

4 constitution meaningful. Instead, they appear to reflect the efforts of

5 one or two groups to impose their will on the third. In this respect, the

6 Bosnian Muslim leadership was simply following the practice that had taken

7 hold in Yugoslavia since 1988, majorities using constitutional reform as a

8 weapon to impose their own political agendas on minorities," et cetera,

9 et cetera.

10 So could you agree, both of you, that this assumption and this

11 approach would be correct?

12 JUDGE MUMBA: Counsel for the Prosecution.

13 MR. KOUMJIAN: An objection to Mr. Donia commenting, because part

14 of this section that was read out deals with constitutional issues. He's

15 testified he's not a constitutional law expert. I don't know if the

16 authors of this document are either, but I'd like to cross-examine them

17 about that.

18 JUDGE MUMBA: Yes.

19 The objection is sustained, Mr. Pantelic.

20 MR. PANTELIC: Thank you, Madam President. Let me rephrase this

21 question.

22 Q. Mr. Donia, being an expert for Bosnia and Herzegovina issue and

23 also well informed about the events in Bosnian parliament in the time of

24 1991, speaking from a position of historian and speaking to some extent

25 from position of a layperson with regard to the issues, constitutional

1 issues, would you agree with me that this chapter reflects, on realistic

2 and objective manner, the situation in Bosnia at October 1991?

3 A. Not wholly, no, I would not.

4 Q. Thank you, Mr. Donia. Tell me, by the way, why you didn't mention

5 in your CV that you are a co-founder of Donia Vakuf Foundation that we

6 spoke of earlier? What is the reason? I mean, I would be proud to put in

7 my CV such thing.

8 A. If you saw the resources that the foundation has, you'd realise

9 that it's practically pocket change. It's not worth mentioning. It's not

10 a significant amount of money. It's not a significant institution.

11 Q. I believe that we are not speaking about money. I'm speaking

12 about your efforts as a historian, as a scientific person, to work for the

13 welfare of all three ethnic communities in Bosnia, and especially you are

14 committed to all these cases here. Why not simply put this fact in your

15 CV? That was my question, but --

16 JUDGE MUMBA: No, Counsel. It's not correct to say that the

17 witness is committed to all these cases here. It is the decision of the

18 Prosecutor --

19 MR. PANTELIC: Absolutely, Madam President.

20 JUDGE MUMBA: -- to choose experts for their cases.

21 MR. PANTELIC: Absolutely.

22 JUDGE MUMBA: So it's not the choice of the witness.

23 MR. PANTELIC: I absolutely concur with your position. Thank you

24 so much. Pardon me.

25 Q. Good. Mr. Donia, let's finish this. Mr. Donia --

1 MR. PANTELIC: Please, Mr. Usher, I have some documents here.

2 These are six.

3 JUDGE MUMBA: What are these documents we are receiving?

4 MR. PANTELIC: Madam President, I would like to present to

5 the -- as a matter of fact, as a matter of clarification, I would like to

6 present to the witness certain provisions of various constitutions with

7 regard to the mechanism of preventing the, you know, important interests

8 in the states, as well as the national interests. These are the, by

9 chance, Constitution of Zambia, then Constitution of Singapore, and

10 Constitution of Canada.

11 Q. So would you --

12 JUDGE MUMBA: Are these constitutions current?

13 MR. PANTELIC: Excerpts, yes. Highlights.

14 JUDGE MUMBA: No, no. What I'm asking is: Are these the

15 constitutions which are valid today?

16 MR. PANTELIC: Yes. Yes, that's correct.

17 JUDGE MUMBA: Yes. So can you describe each one, for which

18 country, so we know what we are discussing?

19 MR. PANTELIC: That's right. I just want to -- although Mr. Donia

20 is not an expert for these issues, but still, my question is -- you know,

21 the spirit of law --

22 JUDGE MUMBA: No, no, no. You haven't described the documents

23 yet, so we don't know what these things are.

24 MR. PANTELIC:

25 Q. Okay. Mr. Donia --

1 JUDGE MUMBA: No, no. Not Mr. Donia. Address the Trial Chamber.

2 Tell the Trial Chamber. You have so many documents. "The first one I

3 would like to discuss is so-and-so," dated whatever. Then we have the

4 number. And the second, you know, before you ask the witness, please.

5 MR. PANTELIC: Okay. Madam President, the first document is the

6 excerpt from the Constitution of Zambia preamble, speaking about

7 the -- well, speaking about the protection of nations, and also speaking

8 about the mechanism and the way how certain important constitutional

9 issues should be followed, by which principle.

10 JUDGE MUMBA: Can we have the number, please, from the registry?

11 THE REGISTRAR: The extract from the Constitution of Singapore

12 shall be marked for identification purposes ID11/4. The extract from the

13 Constitution of Canada shall be marked for identification purposes ID12/4,

14 and the extract from the Constitution of Zambia shall be marked for

15 identification purposes ID13/4.

16 MR. KOUMJIAN: Your Honour, may I address the Chamber?

17 JUDGE MUMBA: Yes, Counsel.

18 MR. KOUMJIAN: Your Honour, I would ask the Trial Chamber to ask

19 counsel what the relevance of these three documents, which apparently are

20 going to take at least some of the Court's time, are. I don't think the

21 Court --

22 JUDGE MUMBA: Yes. Actually, you are taking the words out of my

23 mouth, because I wanted them described first and then we deal with that.

24 So counsel may as well answer.

25 MR. PANTELIC: Absolutely, Madam President.

1 JUDGE MUMBA: Particularly that the witness is not a

2 constitutional expert.

3 MR. PANTELIC: Absolutely. We know that, but still we are making

4 a certain comparison between the fact that existed in Bosnia in terms of

5 constitutional law in 1991, and the expert is actually covering this

6 period of events in October 1991. And then my question to him would be

7 not focused on his constitutional law knowledge, but rather the principle

8 of fairness, the principle of his personal feelings to certain provisions,

9 not more.

10 JUDGE MUMBA: Yes. The other point is that the witness is seeing

11 these constitutional provisions for the first time in the witness box, I

12 take it.

13 MR. PANTELIC: Yes. I'm not trying --

14 JUDGE MUMBA: So how does --

15 MR. PANTELIC: If you will allow me, I will just pose the

16 question: Mr. Donia, could you --

17 JUDGE MUMBA: No, no. You see, Mr. Pantelic --

18 MR. PANTELIC: "Could you agree with me with the following

19 expression," nothing more, and now we are finishing.

20 JUDGE MUMBA: No. The witness hasn't had an opportunity to study

21 this. He doesn't even know the background political policies,

22 constitutional theories of these countries.

23 MR. PANTELIC: I understand.

24 JUDGE MUMBA: At least not to the knowledge of the Trial Chamber.

25 MR. PANTELIC: I am focusing --

1 JUDGE MUMBA: So he cannot answer anything on these documents,

2 Mr. Pantelic, please.

3 MR. PANTELIC: Then he's free to say, "No, I'm not familiar."

4 JUDGE MUMBA: No, no, no. The Court cannot allow a question which

5 is basically unfair to a witness to be asked.

6 MR. PANTELIC: Yes. Okay. I understand.

7 JUDGE MUMBA: That's part of our duty.

8 MR. PANTELIC: Yes, I understand. But my position was, Madam

9 President, just to give an impression about the constitutional mechanism,

10 because this witness is relying on certain mechanism.

11 JUDGE MUMBA: No, no, no. His expertise is on the country which

12 he has discussed. He didn't discuss Singapore, Zambia, Canada, unless you

13 show us the particular paragraph.

14 MR. PANTELIC: Yes, I will show you, Madam President. That's my

15 intention. I would like to submit to the witness a certain -- as I

16 already submitted Constitution of Bosnia at that time, and this witness is

17 speaking -- I don't know, actually -- I don't have the paragraph here, but

18 on the first version of his report, which is, yes, paragraph 93 in his

19 report, that to -- very extensively about constitutional matters.

20 JUDGE SINGH: Mr. Pantelic.

21 MR. PANTELIC: Yes. Yes, Your Honour.

22 JUDGE SINGH: If I may assist you a little bit there. Now,

23 generally in constitutional provisions around the world, it is well known

24 that legislative changes can be made by a simple majority. But insofar as

25 constitutions are concerned, it is also generally known, or well known,

1 that these vital -- there are vital safeguards for the nation which can

2 only be amended or done away with a two-thirds majority. Perhaps you want

3 to pose that question to the witness as part of a general --

4 MR. PANTELIC: Thank you so much, Your Honour. That was my --

5 exactly my intention.

6 JUDGE SINGH: So that you don't need these documents then. Just

7 ask him this. Perhaps he will be able to answer.

8 MR. PANTELIC: Thank you very much, Your Honour, for my

9 assistance.

10 Q. So we are speaking in your report about the process of referendum,

11 about the process of plebiscite, about the sovereignty of the nation, and

12 also to some extent about the domestic, Bosnian domestic mechanism of

13 protection of the rights of ethnic communities in Bosnia. And now my

14 question would be: Could you agree, Mr. Donia, that -- for example, you

15 said -- I'm don't remember, but correct me if I'm wrong. You said that

16 there is no Muslim nation as such.

17 JUDGE SINGH: Mr. Pantelic, you haven't posed the question that

18 you started off on and which I rephrased for you. Would you like to ask

19 that question or would you like to abandon it?

20 MR. PANTELIC: Okay.

21 Q. Okay, Mr. Donia. I would like to pose you the following

22 question: Could you agree with me with the fact that based on the

23 well-developed constitutional systems in the world, a two-thirds majority

24 for sovereignty -- for voting for sovereignty or for changes of borders or

25 in order to protect the vital interests of the nation should be followed?

1 A. I can't -- that's a constitutional question. I just don't know

2 that much about other constitutional systems. I can't answer your

3 question.

4 MR. PANTELIC: Thank you very much, Mr. Donia.

5 I have no further questions.

6 JUDGE MUMBA: Thank you. I take it that's the last counsel,

7 because I was told four counsel. That's the last counsel. Thank you.

8 The Prosecution, any re-examination?

9 MR. KOUMJIAN: Thank you, Your Honour. I hope to be very brief.

10 I would like to ask the witness questions about one document that was put

11 to him by counsel for Mr. Blagoje Simic, and that was the report to the

12 General Assembly from the Special Rapporteur.

13 JUDGE MUMBA: Has it got a number?

14 MR. KOUMJIAN: That was --

15 [Prosecution counsel confer]

16 MR. KOUMJIAN: I believe it's ID --

17 JUDGE MUMBA: Yes. The registry will announce the number for us

18 so that we all know which document to look at.

19 THE REGISTRAR: This number has been marked for identification

20 purposes as ID2/1.

21 JUDGE MUMBA: Yes, Counsel. Proceed.

22 MR. KOUMJIAN: Thank you.

23 Re-examined by Mr. Koumjian:

24 Q. Mr. Donia, in your knowledge of the conflict in the former

25 Yugoslavia, was it common for the various parties who had been involved in

1 war crimes to attempt to hide those crimes from the International

2 Community?

3 A. Yes.

4 Q. Referring to the report that counsel showed you, the first counsel

5 to cross-examine you, regarding the trip of -- I've been trying to avoid

6 pronouncing his name, so I've been called him "the Special Rapporteur,"

7 but I believe it's Mr. Mazowiecki. Turning to paragraph number 28, is it

8 not correct that the Special Rapporteur reported to the Security Council

9 that the Special Rapporteur has had only limited access to prisons and

10 other places of detention in Serbian-controlled Bosnia? Is that true? Is

11 that what he reported?

12 A. Yes.

13 Q. Turning now to the conclusions of the report in paragraph 134, did

14 not the Special Rapporteur conclude that:

15 "Between the first and second missions of the Special Rapporteur

16 in August and October 1992, ethnic cleansing has continued and in some

17 regions intensified. Arbitrary executions, terrorist attacks against

18 homes and places of worship, and the taking of hostages continue,

19 primarily in Bosnia and Herzegovina but also in the UN-protected areas.

20 The victims are primarily Muslim and Croatian civilians."

21 Did he report that?

22 A. Yes, he did.

23 Q. And I'd like you to comment on the next conclusion of the Special

24 Rapporteur. It's correct that he concluded that:

25 "The continuation of ethnic cleansing is a deliberate effort to

1 create a fait accompli, in flagrant disregard of international commitments

2 entered into by those who carry out and benefit from ethnic cleansing."

3 Did he report that?

4 A. Yes, he did.

5 Q. And how does this conclusion of the Special Rapporteur fit into

6 the point made in your report about creating facts on the ground by ethnic

7 cleansing?

8 A. Well, I think it basically states that same reality, perhaps at a

9 time in advance of the international negotiations that made it reality,

10 but it was a reference to ethnic cleansing as a strategy to secure maximum

11 territorial advantage for the party engaged in ethnic cleansing.

12 MS. BAEN: Your Honour, excuse me. To speed things up, we're

13 happy to stipulate to this report that there was ethnic cleansing. It's

14 just that the point is, it didn't happen, according to this report, in

15 Bosanski Samac.

16 JUDGE MUMBA: No, no, no, no. Counsel is reading the report

17 itself.

18 MS. BAEN: But we're going to stipulate --

19 JUDGE MUMBA: He's not giving evidence.

20 MS. BAEN: We were just going to stipulate, to save time, that the

21 report is accurate and that we agree that there was ethnic cleansing, just

22 not in Bosanski Samac. Just to kind of speed things on. That's all I

23 offer, Your Honour.

24 JUDGE MUMBA: Yes, I'm very familiar with strategies.

25 Counsel, please.

1 MR. KOUMJIAN: I've finished my redirect examination. Thank you,

2 Your Honour.

3 JUDGE MUMBA: Thank you very much, Dr. Donia, for assisting the

4 Tribunal with your evidence. You are now free to go.

5 [The witness withdrew]

6 JUDGE MUMBA: It's just the right time to go back to our

7 outstanding matters and our decisions on the outstanding motions, and then

8 the parties can raise other matters before we go for our break or before

9 we call the next witness.

10 The decision on the Prosecution motion to have one additional

11 witness, that is Roko Jelavic, added to its witness list, filed on 7

12 September; and the response of Milan Simic dated 10 September; and the

13 same response the three other defendants joined in orally.

14 The decision of the Chamber is as follows: Pursuant to Rule 73

15 bis, "After the commencement of a trial, the Prosecutor may, if he so

16 wishes ..." up to the end of the Rule. It does give the Prosecutor the

17 liberty to vary the list of witnesses or to include another witness they

18 had originally left. The Trial Chamber notes that the Prosecution

19 withdrew Roko Jelavic from its witness lists of its own volition. The

20 Trial Chamber is satisfied that this witness was withdrawn from the list

21 on account of his health and not because his testimony would be considered

22 repetitive. The Trial Chamber is satisfied that his testimony is relevant

23 and does not constitute new charges. The presentation of his evidence

24 will not prejudice the Defence or any defendant who have already got the

25 witness statement and who were previously able to prepare for this

1 particular witness who was withdrawn from the list on 6 July. So the

2 parties have enough time. The Prosecution motion is granted.

3 The next motion was filed -- it was a joint Defence motion in

4 limine regarding legal conclusions. This was by all the four accused,

5 filed on 10 September. This motion is misconceived, in the view of the

6 Trial Chamber.

7 The Trial Chamber finds that it's not necessary to ask the

8 Prosecution to respond, hence its decision. Drawing legal conclusions

9 based on the interpretation of facts presented by witnesses forms part of

10 the Trial Chamber's duties in the performance of its task. A witness or

11 indeed counsel, therefore, cannot be allowed to make legal conclusions.

12 The motion is dismissed.

13 The next one was the accused Blagoje Simic motion for

14 determination on the issue whether Bosnia and Herzegovina was a state in

15 terms of international law prior to 22nd May, 1992. This motion was filed

16 on 27th August this year, and the Prosecution responded on 31st August.

17 The Defence motion may be understood as merely intending to raise

18 the issue of status of Bosnia and Herzegovina before 22nd May, 1992. At

19 this stage of the proceedings, recognising that this is matter for trial,

20 as one of the paragraphs in the Defence motion mentions and that they are

21 not seeking an immediate decision.

22 The issue raised in the motion is a matter to be determined at

23 trial after both parties have presented their evidence. It is therefore

24 not necessary for the Trial Chamber to make a ruling at this stage.

25 However, the Trial Chamber takes judicial notice of the fact that both

1 parties -- of the fact agreed by both parties that Bosnia and Herzegovina

2 was admitted as a member of the United Nations on the 22nd May, 1992.

3 I wish to remind the parties that the Pre-Trial Chamber also took

4 judicial notice of the other facts in relation to the same issue on 25th

5 March, 1999, if you check the records of the proceedings of this case, at

6 pre-trial stage.

7 Bosnia and Herzegovina proclaimed its independence on 6th March,

8 1992, and the second fact that was taken judicial notice of it was that

9 the independence of Bosnia and Herzegovina as a state was recognised by

10 the European Community on 6th April, 1992, and by the United States on the

11 7th of April, 1992. Besides that, the other matters will be decided after

12 the trial is over, when both parties have adduced their evidence.

13 We may as well use this time for any other matters or any other

14 oral motions that the parties may have. I'll ask the Prosecution.

15 MR. DI FAZIO: Yes. Thank you. If Your Honours please, the only

16 matter that I wanted to raise on the issue of motions was the question of

17 the admission of the telephone interviews, but that has already been

18 decided upon, and so therefore, before I say anything further about that,

19 I must ascertain whether the Chamber is prepared to hear from me on that

20 issue, a decision already having been made. In other words, do you regard

21 yourselves being functus officio and the matter is closed, or do you wish

22 to hear from me in respect of the further matters that I did wish to put

23 to the Chamber on that issue? If you take the view that the matter is now

24 closed and beyond argument, I won't proceed any further. If you wish to

25 hear from me, however, I've got a few brief submissions to make.

1 JUDGE MUMBA: Unless you are discussing matters concerning our

2 decision which do not raise in issue the decision itself.

3 MR. DI FAZIO: In issue.

4 JUDGE MUMBA: The Trial Chamber's decision itself that the three

5 excerpts cannot be admitted into evidence. If your address is on the

6 motion but not raising -- not objecting to the decision of the Trial

7 Chamber. But if it's a question of -- I don't know whether in such a

8 matter you can have additional evidence or anything like that. I doubt

9 it.

10 MR. DI FAZIO: Yes. That's essentially what it is. It was just

11 some factual background to one of the issues that the Trial Chamber

12 raised, which was the awareness of the defendants being interviewed of the

13 indictment. You asked me some questions about that, about that matter,

14 and I wanted to respond, but in the meantime, I received a copy of the

15 decision, and that's all that --

16 JUDGE MUMBA: Yes. Perhaps you can say it. Let's have it on the

17 record. Perhaps we can respond right away.

18 MR. DI FAZIO: Thank you. If Your Honours, please, there were, in

19 fact, substantial moves made to inform all of the defendants in this case

20 of the existence of the indictment.

21 The indictment was confirmed by Judge Vohrah on the 21st of July,

22 1995, and you'll find this information in a report on measures taken by

23 the Prosecutor for the personal service of the indictment and warrants of

24 arrest, and that report was put in on the 28th of May, 1997. I believe it

25 forms part of the court record.

1 JUDGE MUMBA: Yes.

2 MR. DI FAZIO: And was signed by, I believe, the counsel then

3 acting in the case, Ms. Nancy Paterson.

4 JUDGE MUMBA: Yes.

5 MR. DI FAZIO: She reported that arrest warrants had not been

6 executed and that the Prosecutor had taken reasonable steps to provide the

7 defendants with information about the existence by seeking publication --

8 existence of the indictment by seeking publication of newspaper

9 advertisements announcing the indictment.

10 On the 19th of October, 1995, the Registrar sent the original

11 arrest warrants to the Prime Minister of the Bosnian Serb administration

12 in Pale, Republika Srpska. That was a gentleman named Mr. Dusan Kostic.

13 And also to a gentleman named Danilo Dusan. He was at the bureau of

14 Republika Srpska. So the government authorities, in effect, in the

15 Republika Srpska were informed.

16 At the time Lugar, or Slobodan Miljkovic, was also included on the

17 indictment. He apparently had knowledge of the fact that he was being

18 charged, because he provided an interview in a Serbian newspaper called

19 Telegraph on the 19th of December, 1995, in which he was quoted as saying

20 that he had received a booklet from Belgrade entitled "Rules of Procedure

21 and Evidence" and "Rules Governing Detention," and that he said that this

22 indicated that the Hague got its information from Belgrade and that in

23 fact, "I am being tried in Belgrade."

24 So he was obviously aware that he was in some sort of trouble, so

25 to speak, with the -- in respect of indictments issued against him.

1 On the 23rd of January, 1996, advertisements regarding the

2 indictments were sent by the Registrar of this -- of the ICTY to the

3 Charge d'Affaires of the embassy of the Federal Republic of Yugoslavia in

4 The Hague and again to Mr. Dusan Kostic, Prime Minister of the Bosnian

5 Serb administration in Pale in Republika Srpska.

6 On the -- later that -- on the 7th of October, although -- that's

7 not relevant. I'll withdraw that.

8 And then of course, on the documents itself, you can see, if you

9 read through the documents, that there was obviously a considerable

10 awareness on the part of the defendants of the predicament in which they

11 faced, namely, the issuance of the indictments and the charges against

12 them. And indeed, if you go through the recorded -- the transcript of the

13 recorded telephone conversations, you will see that they have an awareness

14 of the fact that the ICTY investigators were interested in them, awareness

15 of rights, and presence of counsel, and you can see that throughout the --

16 throughout the three telephone interviews.

17 On the 26th of April, 1996, the first telephone conversation,

18 telephone interview occur. If you read it, you will see at page 1 that it

19 was really a telephone conversation initiated by Mr. Tadic, Mr. Miroslav

20 Tadic. You'll see that again at page 3. And at page 4, he offered to

21 answer questions. In respect of his, Mr. Tadic's, awareness of rights, he

22 was advised of his rights on page 3, and he stated that he was speaking

23 voluntarily.

24 JUDGE MUMBA: Yes, but counsel, before you proceed with Mr. Tadic,

25 let's say, is there any evidence that the indictment was served on him?

1 MR. DI FAZIO: No.

2 JUDGE MUMBA: Before that first interview or even the second or

3 even the third interview?

4 MR. DI FAZIO: No.

5 JUDGE MUMBA: Is there any evidence -- as we put in our decision,

6 that we were not satisfied that he was fully aware of --

7 MR. DI FAZIO: If that is regarded -- if the fact of delivery of

8 the indictment into their hands is regarded as the crucial factor, then I

9 can't assist the Tribunal any further. If that's the view that you take,

10 that's --

11 JUDGE MUMBA: That's the view of the Trial Chamber, because the

12 rules on service of the indictment and interrogation of an indicted person

13 are clear.

14 MR. DI FAZIO: Yes.

15 JUDGE MUMBA: The moment the accused spoke to whoever on the

16 Prosecution side and they knew that he was a person who had been indicted,

17 they should have followed the steps of making sure the indictment is

18 served and it is understood by the suspects.

19 MR. DI FAZIO: Well, if that's --

20 JUDGE MUMBA: Because that was the basis of our decision. We were

21 not satisfied that they understood what the indictment was all about in

22 the absence of service and that they realised that they were facing war

23 crimes.

24 MR. DI FAZIO: Yes.

25 JUDGE MUMBA: We are not satisfied. So nothing more --

1 MR. DI FAZIO: As the Chamber pleases, I'll abandon that

2 application to re-open the issue.

3 JUDGE MUMBA: So our decision stands.

4 MR. DI FAZIO: Thank you. The other issue that I wanted to raise

5 is a general one regarding the documents in this case for the future.

6 In 1999, there was an order made admitting the evidence, the

7 documentary evidence in this case, into evidence. That followed upon a

8 Prosecution submission which had been filed on the 10th of February,

9 1999. It was entitled, Prosecutor's Request for Admission of Documentary

10 Evidence, and it had attached to it an annex, which I have attached, too,

11 myself, and it indicated that the Prosecutor sought the admission of a

12 number of documents.

13 Now, the documents on that annex, although not corresponding

14 entirely with the documents that form the 65 ter list of exhibits, was

15 substantially the same, and it included many of the -- what the

16 Prosecution regards as its crucial documents, Variant A and B documents

17 and so on. They're almost completely the same, apart from the addition of

18 a few documents that occurred in later years.

19 JUDGE MUMBA: Yes.

20 MR. DI FAZIO: And in the course of the submission of the motion,

21 rather, Ms. Nancy Paterson said:

22 "Virtually all of the attached documents are either official

23 documents provided by governmental agencies, the records of the

24 controlling Serb political party, or documents obtained from the relevant

25 authorities at the Banja Luka Military Court. The majority of the

1 attached documents were either provided to the Prosecution by one or more

2 Defence counsel or were given to the Office of the Prosecutor by

3 governmental authorities in Bosanski Samac, Odzak, Orasje, and Banja

4 Luka."

5 And then contended that issues relating to the authenticity and

6 reliability should not preclude their admission at this stage, and

7 submitted that the relevance and probative value of the documents is

8 apparent from the face of the documents.

9 Remember, at this stage they were coming up for trial, I believe,

10 and subsequent events meant that this trial that we're now engaged in was

11 postponed for various reasons.

12 An order followed that motion, on the 19th of March, 1999, signed

13 by His Honour Judge May presiding, and it said:

14 "The Prosecution request for admission shall be granted and the

15 documents listed in the annex shall be admitted subject to the right of

16 the defence to object to the admission of any particular item at the time

17 it is presented in evidence."

18 I'm not entirely sure what that means, but it seems to say yes,

19 they're admitted, but you can object to them.

20 JUDGE MUMBA: Yes. We'll discuss that, I think, after our break.

21 MR. DI FAZIO: Thank you.

22 JUDGE MUMBA: Because it is after 11.00 now. Then we'll give the

23 Defence the right of response, as usual, so we can decide firmly what the

24 status of these orders and the documents is now that the trial has

25 opened.

1 We will take our break now and resume the proceedings at 11.30

2 hours.

3 --- Recess taken at 11.05 a.m.

4 --- On resuming at 11.30 a.m.

5 JUDGE MUMBA: Yes. We were discussing the issue of documents or

6 any other matters. The Prosecution.

7 MR. DI FAZIO: Thank you. If Your Honours please. To get to the

8 point, my concern is to try and identify the documents that are going to

9 be objected to. That's why I've raised this issue of their having been

10 admitted subject to objection back in 1999. And we've seen that there was

11 some confusion when the Variant A and B document was sought to be

12 introduced into evidence. That caused a flurry of activity on the part of

13 the Prosecution with gathering evidence, authenticating the document, and

14 so on, and that's an exercise that I'd like to keep to a minimum if I

15 could.

16 So that could be avoided if there is a direction to the Defence

17 that they tell the Prosecution which particular documents out of that list

18 of 112-odd documents that are on our 65 ter list, which of those documents

19 they object to. We will then be --

20 JUDGE MUMBA: Yes, because I thought that was dealt with at the

21 pre-trial stage. They were informed if they have any objections and all

22 that. When you discussed behind the scenes with them, they should have

23 indicated that. I thought that stage would have been reached already.

24 MR. DI FAZIO: I thought it had. I might -- perhaps I was wrong

25 in that, particularly given the existence of this motion. So that's what

1 I'd like to do so that I can say we can ascertain --

2 JUDGE MUMBA: So we can have a smooth trial.

3 MR. DI FAZIO: Yes. That's precisely my objective.

4 So it may be that there's very few documents that will be objected

5 to, it may be that all of them will be. But we've got to get evidence if

6 there are objections, and we have to start gathering that evidence now so

7 that there's no complaint of such evidence being later introduced in order

8 to get the final admission of documents.

9 So that's an issue I wanted to raise. I have other issues. Do

10 you want me to continue with those?

11 JUDGE MUMBA: Why don't we finish them and then I'll ask the

12 Defence if they have any other matters?

13 MR. DI FAZIO: The remaining issues is just something that will

14 arise in the evidence of the next witness, Mr. Tihic. There are included

15 in the list of exhibits a whole heap of photographs. They're referred to

16 in the 65 ter list as F1 through to -- I can't recall the number, but

17 there are 72-odd photographs. On the 65 ter document, you'll see next to

18 the list of the photograph a description of what it depicts. I propose,

19 when Mr. Tihic is giving his evidence, to lead him on that. I'd like to

20 know if that's going to be objected to. I propose to lead him because I

21 think it will save time, and if there is any objection to my adopting that

22 procedure, then it's better that we --

23 JUDGE MUMBA: How do you pronounce his name?

24 MR. DI FAZIO: Tihic, Sulejman Tihic.

25 JUDGE MUMBA: Yes. Mr. Tihic. Yes. So you have this list of

1 documents and you're saying that you'd like to lead him to save time.

2 MR. DI FAZIO: List of photographs. And it probably won't arise

3 this morning because of the time, but if when we get to that point, I

4 propose to lead him through and tell him what it depicts, in effect, by my

5 leading question. If there is to be an objection, I'd like to know now so

6 I don't launch upon that issue in that manner.

7 JUDGE MAY: That's all?

8 MR. DI FAZIO: That's all.

9 JUDGE MUMBA: Thank you. I will now turn to Defence counsel. On

10 the list of documents already served on the parties by the Prosecution or

11 the lists that were served especially pre-trial and during pre-trial and

12 the orders that the Prosecutor mentioned, what I want from you is to

13 indicate whether -- is to say whether you have all these lists and you

14 have the actual copies of the documents and that you have among those

15 documents there are some you're going to object to.

16 I don't want us to go into the details, just to indicate, so that

17 we agree whether or not we need to give you time to discuss with the

18 Prosecution and see whether the matter can be resolved, or if it can't be

19 resolved, then during the trial, you have to record your objections and

20 your reasons for objections.

21 Yes, Mr. Pantelic.

22 MR. PANTELIC: Thank you, Madam President. In fact, I'm in

23 position to inform this Trial Chamber that our learned colleague from

24 Prosecutor bench and also my learned colleagues from the Defence, we are

25 all these weeks and months, we are working in very good manner, in good

1 spirit of cooperation, including these context concerning the sources of

2 certain documents, exhibits, authenticity, et cetera. So it's an ongoing

3 process, and we are in touch.

4 I would also like to emphasise that to some extent, we are facing

5 certain passive approach from the Prosecutor's side with that regard. For

6 example, these days, we were trying to have an additional overview of the

7 documents in order to facilitate these proceedings, to reach certain

8 conclusions for some number of documents, but due to the extensive work,

9 which is a fact of common knowledge of the Prosecutor's side in preparing

10 this case and in conducting this case, probably they weren't able to, you

11 know, opening speech, you know, and organisation with the witnesses,

12 probably that was a fact why they didn't contact us during this week. But

13 I do believe that by the end of this week, at these days, even weekend, we

14 can resolve that matter on our common benefit and in order to facilitate

15 these proceedings here.

16 JUDGE MUMBA: Yes, because there are lists which you have received

17 from the Prosecution.

18 MR. PANTELIC: That is correct.

19 JUDGE MUMBA: And all I'm saying is if you can indicate out of

20 those lists which documents you are going to object to, at least before

21 the end of Friday. Because, I mean, the Trial Chamber doesn't have to

22 give you a timetable, the Prosecution, when you should meet. At least we

23 are not sitting in the afternoons this week, so this is a matter which is

24 urgent and it should be resolved by all parties. So the moment you

25 indicate to them, then they will find out whether or not they need to do

1 anything more other than to insist that they wish their documents

2 admitted.

3 The other point I wanted to mention with the Defence also is that

4 when the Defence have documents on which they want to cross-examine a

5 Prosecution witness, they must give copies of those documents to the

6 Prosecution. The reason is that at this stage we cannot demand that the

7 Prosecution -- the Defence lay out their case, because of the Rules. But

8 if you are going to use any documents which are not from the Prosecution

9 during your cross-examination, please give them notice, otherwise it will

10 delay the whole proceeding.

11 MR. PANTELIC: Absolutely.

12 JUDGE MUMBA: And also, it is not a good practice to keep

13 documents pending admission simply because the other party didn't have

14 notice. I know that in practice it is very common for the Defence to

15 spring documents on a Prosecution witness when he didn't have any

16 instructions on it from his counsel and when counsel themselves didn't

17 even know about the document. Because, you see, you must understand that

18 when a witness has come for his evidence, all he knows is the evidence he

19 is giving. Should you spring any document on him, it is only fair that

20 the Prosecution should know about it, should discuss it with their witness

21 before the witness comes on the scene, you see, so that they can

22 understand each other and how they are going to approach the document, you

23 see. It is not a good practice to surprise the witness when he's already

24 in the witness box.

25 MR. PANTELIC: I understand your instructions, Your Honour, and I

1 can assure that I will follow these directions and suggestions for the

2 proceedings.

3 JUDGE MUMBA: So that's that on the documents.

4 Any other matters from the Defence? That's all, before we call

5 our next witness? That's all.

6 MR. PANTELIC: Madam President, can we have just a few seconds?

7 My colleagues want to confer with me.

8 JUDGE MUMBA: Yes.

9 [Defence counsel confer]

10 MR. ZECEVIC: Just one thing that -- there is just one thing, Your

11 Honours. We don't -- I believe I am saying for the whole Defence. We

12 don't oppose to the leading questions on the photographs. No problem

13 about that. And there is something Mr. Pantelic has also.

14 JUDGE MUMBA: Yes, Mr. Pantelic.

15 MR. PANTELIC: Excuse me, Madam President.

16 JUDGE MUMBA: I just want to inform counsel that the registry is

17 still looking into the laptop and the bed issues.

18 MR. ZECEVIC: Thank you, Your Honour.

19 MR. PANTELIC: Your Honour, I'm in a situation to inform you that

20 immediately after the beginning of the testimony of Professor Dr. Donia,

21 it came to our attention that the attachment to his report regarding the

22 part where is -- part related to the expert witness testimony in previous

23 cases within this Tribunal --

24 JUDGE MUMBA: Which --

25 MR. PANTELIC: It is -- I don't know exactly. There is no page.

1 JUDGE MUMBA: Part of his CV?

2 MR. PANTELIC: Part of his CV, first page prior to appendix B.

3 JUDGE MUMBA: Yes.

4 MR. PANTELIC: In the chapter Expert Witness Testimony.

5 We -- during our process of reviewing four relevant documents, it came to

6 our attention that the case the Prosecutor versus Miroslav Kvocka and the

7 submission entitled "Review of the Expert Witness Statement on March

8 2001," in fact, after reviewing the public record, in fact it was

9 confidential. And then we immediately contacted our learned colleagues

10 from the Prosecutor in order to have this document, because from our point

11 of view, it was of substantial value. They informed us, actually this

12 morning, and yesterday afternoon, that they cannot lift the

13 confidentiality from this document because -- that's another matter. It's

14 even not notified here in his CV that this particular document was

15 confidential. So therefore, we were in very serious situation, didn't

16 have enough time to address to the relevant Trial Chamber in that case.

17 Simply, I would like to see your directions or instructions how we

18 can get this document, and then, based on this fact, because we think that

19 it's a very important document about the whole presentation of Mr. Donia's

20 case, we would like to, by the way of oral motion, with your leave, of

21 course, to ask, respectfully ask for the ruling regarding the possibility

22 that we, as Defence counsel, would be in a situation to call Mr. Donia for

23 re-examination based on the certain findings in this confidential

24 document. Because up to now we don't know what is -- maybe there is

25 something in favour of the Defence. Maybe -- who knows? It's

1 confidential material, which a little bit surprised me why the expert

2 opinion report is confidential. And that brings me to another conclusion

3 that probably there are some matters of very important -- of great

4 importance in this report which might have an impact or influence on all

5 our work here with Mr. Donia. Thank you.

6 JUDGE MUMBA: The Prosecution, are you ready with your response on

7 that issue or do you need some time to consider it?

8 MR. DI FAZIO: Well, the issue was raised by Mr. Pantelic with us,

9 and indeed, I think, other Defence counsel as well on several occasions.

10 It's a confidential document and we don't have access to it.

11 JUDGE MUMBA: Which one is this? The one under Miroslav Kvocka?

12 MR. DI FAZIO: Yes.

13 JUDGE MUMBA: The one titled "Review of Expert Witness Statement"

14 up to the end of the quotation marks? Is that the one?

15 MR. PANTELIC: That is correct, Your Honour, yes.

16 JUDGE MUMBA: The one that was submitted on March 2001?

17 MR. DI FAZIO: Yes.

18 JUDGE MUMBA: Yes. It was submitted before this Trial Chamber

19 trying this case, isn't it?

20 MR. DI FAZIO: No.

21 JUDGE MUMBA: Because the Prosecutor versus Kvocka -- I thought it

22 was submitted in the case before the Trial Chamber which was trying that

23 case.

24 MR. DI FAZIO: Yes, before Kvocka. In that case, yes.

25 JUDGE MUMBA: Yes. So counsel can go before the Trial Chamber and

1 ask for leave, like the other applications for confidential material to be

2 released to the --

3 MR. DI FAZIO: I have no problem with that. I have absolutely no

4 problem at all. It's a matter for them to make the application. They

5 sought it from us. We couldn't get it because it's confidential. So I'm

6 not -- I can't --

7 JUDGE MUMBA: The procedures are there. The practice direction,

8 the rules are there for asking for confidential materials before various

9 Trial Chambers.

10 MR. DI FAZIO: Yes. Let me make the Prosecution's position

11 plain. We don't object to the Defence obtaining this document, we don't

12 seek to stand in their way, and that's our position generally, other than

13 the fact that they follow the appropriate procedures. I'm silent on the

14 issue -- we have no problem with their getting it. I mean, I must say

15 that not having seen the document and not knowing what the reasons were

16 for the order were in the first place, so --

17 JUDGE MUMBA: Of course, the Prosecution in this case have nothing

18 to do with why it was submitted confidentially, because it wasn't before

19 Simic.

20 MR. DI FAZIO: Yes, that's right.

21 JUDGE MUMBA: So the Defence counsel who want to get hold of this

22 document must apply according to the procedures to get hold of it. If the

23 Trial Chambers agree, or if it's the President that has to agree, then

24 they'll have it; if not, then they won't have it. But I must caution the

25 counsel that when you're applying for confidential document to be

1 released, you must describe it sufficiently and give reasons why you feel

2 it will assist your case. Because the Trial Chambers who have to decide,

3 or if it's the President, have to be satisfied that it is relevant to your

4 case, it is important that you have it for the preparation of your Defence

5 case. So you must be very particular about that, okay?

6 MR. PANTELIC: Yes. I appreciate your advice, Madam President.

7 We are very well aware of that. Just for a matter of clarification, you

8 stated that it was before Simic. In fact, it was before Kvocka we are

9 speaking.

10 JUDGE MUMBA: No. I was saying to the Prosecution that this was

11 not a matter before Simic case.

12 MR. PANTELIC: Yes, before Simic case. Yes. But still, as I

13 said, it's a little bit surprising -- it's a surprising matter why the

14 expert opinion was confidential. And then I'm coming to the basis of my

15 oral motion, with your leave, with your permission, that in case the

16 Defence would consider that additional testimony of certain portions of

17 this confidential document with relation to this particular case might

18 occur, so we just would like to reserve our right to call Mr. Donia for

19 very limited purposes and re-examination, in the course of trial.

20 JUDGE WILLIAMS: I just have a short question. This quite clearly

21 was a review of another expert witness statement by Dr. Donia. My

22 question is: Have you had the opportunity to read the witness statement

23 by Dr. -- is it Nenad --

24 MR. PANTELIC: Kecmanovic.

25 JUDGE WILLIAMS: Yes. So is that available to you?

1 MR. PANTELIC: Yes.

2 JUDGE WILLIAMS: So that you would therefore know what Dr. Donia

3 was being asked to comment on?

4 MR. PANTELIC: Exactly. That's the point. So we know what is the

5 public document, which is the Professor Nenad Kecmanovic's initial

6 opinion, expert opinion. He was an expert, I believe, on behalf of

7 Defence in that particular case. And then we have another document, which

8 is the second opinion, or simply, as it said, "Review of Expert Witness

9 Statement, but it is confidential," and now we don't know in which

10 direction it goes, which area covers. Simply like that. It doesn't

11 matter -- you can understand me, Your Honour. We don't want to leave

12 anything unresolved in this case, for the benefit of our clients and

13 according to the conduct of our profession, code of conduct of our

14 profession. That's our ...

15 JUDGE MUMBA: Any other matter?

16 MR. PANTELIC: Does that please you?

17 JUDGE SINGH: Just one question there. Dr. Donia lives in the

18 United States? He lives in the United States?

19 MR. PANTELIC: That's right.

20 JUDGE SINGH: Now, what is the time frame for gaining this

21 information by the Defence? Is Dr. Donia going home today, tomorrow, day

22 after tomorrow? And you do understand that he may have to be called back

23 again from the States. So these are also areas which I think you have to

24 explain to the Court, as well as you probably also have to explain

25 that -- I mean, you had the opportunity to look into these matters earlier

1 and make the necessary applications to the Court, and why was this matter

2 overlooked?

3 MR. PANTELIC: Yes, I understand your question, Your Honour. In

4 fact, we were provided with Mr. Donia's report in the time frame provided

5 by the Rules, I mean regulated by the Rules, and we quickly reviewed all

6 these footnotes and sources, and nothing was so suspicious to us or so

7 important. When we asked -- when we are trying to obtain this particular

8 review of expert witness statement, in the Court's register they told us

9 that it is confidential. So if we were in a situation to know -- because

10 that's an omission here. If we would be in a situation to know that this

11 particular document is confidential, then we would follow the regular

12 way. But we acted promptly, in good faith. We informed our learned

13 colleague from the Prosecutor side. We worked together. They said,

14 "Well, we are not the right address for this."

15 So, Your Honour, I have to outline that the procedure of lifting

16 of confidentiality is quite long within the practice of this institution.

17 So coming to your first question, I do believe that it would be

18 appropriate at the end of trial or, I mean, Prosecutor case, in a month or

19 two or whenever it's possible, in case that we found something important

20 in this review. So I would say it's not a matter for these days. We are

21 going to file an adequate request to the other Trial Chamber in question

22 and then we shall see the final outcome on that.

23 JUDGE MUMBA: Counsel for the Prosecution, you wanted to say

24 something?

25 MR. DI FAZIO: I just wanted to reply, as it were, to some of the

1 matters raised by my learned friend.

2 JUDGE MUMBA: On this very matter?

3 MR. DI FAZIO: On this very matter. Is this the appropriate time

4 for me to do so?

5 JUDGE MUMBA: Yes.

6 Mr. Pantelic, can you sit down?

7 MR. DI FAZIO: I'm not entirely sure if it's being said that an

8 application to recall Dr. Donia will be made. I'm not sure. I think it's

9 been foreshadowed as a possibility at some stage in the future. If that's

10 all it is, then there the matter will lie. If the indication is clear

11 that there will be an application in the future on behalf of the defendant

12 Blagoje Simic to recall Dr. Donia, then I can definitely assure the

13 Tribunal that if he is to be recalled, it will be over the strenuous

14 objections on the part of the Prosecution.

15 The general position of the Prosecution is that if this

16 confidential report was a crucial item that the Defence needed for the

17 cross-examination of Dr. Donia, then the appropriate time for taking steps

18 to get it was before the trial. I'm told by my learned colleague,

19 Ms. Reidy, that she informed Defence on Monday afternoon that the

20 appropriate measure or measures were to approach the Registry directly and

21 that the Prosecution was unable to help in the provision of this

22 document. So that is the general position - I hope it's clear - of the

23 Prosecution.

24 JUDGE MUMBA: Yes, it is clear. The point that the Defence were

25 making for not having done so in time is because when they looked at the

1 document as it is, it didn't indicate "confidential," so they were not

2 aware that they wouldn't easily get it. If you look at the CV as it is,

3 the copies that we have --

4 MR. DI FAZIO: Yes.

5 JUDGE MUMBA: Yes. It doesn't show that this was admitted

6 confidentially.

7 MR. DI FAZIO: That may be so, that may be so, but by Monday that

8 had clearly become apparent. But by Monday that had clearly become

9 apparent.

10 JUDGE MUMBA: Monday this week?

11 MR. DI FAZIO: Monday this week.

12 JUDGE MUMBA: Yes.

13 MR. DI FAZIO: At the latest, I might add, because my recollection

14 is that it was raised for discussion even beforehand. I know that the

15 Defence pressed me to get the document and I said I'd see what I could

16 do. But in any event, by Monday afternoon the matter was crystal clear,

17 and by that stage, I say that that was the appropriate time at which any

18 application should be made.

19 JUDGE MUMBA: Yes. We'll deal with it if it comes to that.

20 Because they've said that if they find anything of benefit to their

21 clients, then they will do so; if not, then they may not apply for

22 Dr. Donia.

23 MR. DI FAZIO: I suppose this discussion is somewhat speculative,

24 because we're not really faced with any real application.

25 JUDGE MUMBA: Any real application, no. No.

1 Any other matters from the Defence? No.

2 Can we have the next witness on the stand, please?

3 [The witness entered court]

4 JUDGE MUMBA: Can I have the Registry assist and approach the

5 Bench, please?

6 [Trial Chamber and registrar confer]

7 JUDGE MUMBA: Would the witness make the solemn declaration,

8 please?

9 WITNESS: SULEJMAN TIHIC

10 [Witness answered through interpreter]

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

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

13 JUDGE MUMBA: Thank you. Please sit down.

14 The Prosecution.

15 MR. DI FAZIO: Thank you, Your Honours.

16 Examined by Mr. di Fazio:

17 Q. What is your full name?

18 A. Sulejman Tihic.

19 Q. And where do you now live?

20 A. In Sarajevo.

21 Q. Are you familiar with an area of Bosnia known as Bosanski Samac?

22 A. Yes.

23 Q. Did you once live there?

24 A. Yes.

25 Q. When did you live there?

1 A. From the time I was born until the 17th of April, 1992.

2 Q. Did you have children there?

3 A. Yes. I was married and I had three children. I still have three

4 children.

5 Q. Are they living with you in Sarajevo?

6 A. Yes.

7 Q. How long has your family generally lived in the area of Bosanski

8 Samac?

9 A. From the time of inception of Bosanski Samac, that is, from 1862,

10 when the Turkish sultan Aziz established Bosanski Samac and populated it

11 with refugees who had been driven out from Serbia and other areas.

12 Q. Did your grandfather live there and your great-grandfather?

13 A. Yes. They too lived in Bosanski Samac.

14 Q. Do you still have any connections with the town or with the

15 municipality in the sense of owning property or any other connections that

16 you may have?

17 A. I have property in Bosanski Samac which has been returned to me

18 and which I restored, and I come to Bosanski Samac once in two weeks,

19 approximately. My children spend even more time there, and that is the

20 town where I want to live again, to come back to one of these days.

21 Q. I take it then that you have had an opportunity to see the

22 municipality and the town as it is post-1992?

23 A. Samac has changed inasmuch as it lost the character of a town and

24 has become more of a village. Certain buildings, such as the mosque or

25 the Catholic church, which were the sites of the city, are now destroyed,

1 as were some private buildings. At the same time, the green areas, the

2 parks, which were also a feature of the city, are now being used to build

3 various facilities, office space. And the area where the mosque used to

4 be has been used to build a residential and office centre.

5 Q. I want to ask you about your academic qualifications. I don't

6 think it's in dispute that you are a lawyer. Can you tell the Chamber of

7 your legal qualifications and when you obtained them and where you

8 obtained them?

9 A. I graduated from the law school in Sarajevo in 1975. After that,

10 I did a period of internship in court and passed the bar exam. After that

11 I worked as a judge of the municipal court in Bosanski Samac until 1979.

12 Q. Can you just pause there, please? Can I ask you, when did you

13 pass your bar exam?

14 A. On the 21st of April, 1976.

15 Q. You indicated that having done your bar exam, you went straight

16 into working as a judge in Bosanski Samac. Is that a common feature of

17 the legal system in Bosnia, because it's not a common feature in common

18 law systems, and can you explain how it comes to be that you so soon

19 become a judge?

20 A. That was a common occurrence, and it was in accordance with the

21 law. First of all, I did a period of internship at the court for a year,

22 then I passed my bar exam, and then I started working full time.

23 Q. Can I ask you in which court you started working and from what

24 years you worked as a judge?

25 A. I started working in the municipal court of Bosanski Samac in 1976

1 and worked until 1979, when I was elected public prosecutor for three

2 municipalities: Modrica, Bosanski Samac, and Odzak. I continued working

3 there until the 16th -- the 6th of March, 1983, when I opened my own law

4 office, and I continued working in that office until 1992, when the attack

5 on Samac started.

6 Q. What was your position when you were actually working as a judge?

7 Did the judges have different titles? Was there a president of the court,

8 for instance?

9 A. There existed the president of the court, and judges had their own

10 departments, criminal law, civil law, non-contentious or contentious

11 proceedings, and so on.

12 Q. You said that you opened your own law office. Where was that?

13 A. That was on the 6th of March, 1983, in Bosanski Samac.

14 Q. Did you remain in private practice, as it were, until 1992?

15 A. Yes.

16 Q. There were -- I think this is also beyond dispute. There were

17 Muslims and Croats and Serbs living in the municipality and the adjoining

18 areas of Bosanski Samac. Did you have clients from all of those ethnic

19 groups?

20 A. Most of my clients came from the ranks of Serbs and Croats,

21 because the Muslims were the least numerous ethnic group in Bosanski

22 Samac.

23 I socialised with them, I visited their homes on their religious

24 on other holidays, Christmases, Easters, et cetera. My clients usually

25 invited me, and I accepted those invitations gladly. They also visited me

1 at Bajram, both Serbs and Croats. We visited each other at home, and we

2 got along very well. Even, for example, on the last Bajram, the

3 then-president of the SDS visited me in my office, Mr. Blagoje Simic, and

4 so did the president of the HDZ party. At that time, I also went to the

5 Orthodox church on the Orthodox Easter. And we recognised each other's

6 holidays, religious holidays.

7 Q. Thank you. I want to ask you some questions about your political

8 career. Have you ever joined the Communist Party in Yugoslavia, in the

9 former Yugoslavia?

10 A. Yes.

11 Q. When did you join?

12 A. That happened after the attack of the Soviet Union against

13 Czechoslovakia in 1968, when people joined the League of Communists en

14 masse, especially young people. I was in high school then, and I was then

15 admitted into the League of Communists. I attended the higher school of

16 economics at the time.

17 Q. Did you eventually come to leave the party?

18 A. Yes. I left the party on the 4th of August, 1990.

19 Q. You've told the Chamber of your initial reasons of joining the

20 party. Were they the same reasons that kept you in the party until you

21 left it, namely, the Soviet invasion of Czechoslovakia?

22 A. You see, we saw the Soviet attack on Czechoslovakia as a potential

23 threat to Yugoslavia. That was the general feeling. However, at that

24 time, anyone who wanted to get involved in politics or to occupy a serious

25 position or a position of responsibility had to be a member of the League

1 of Communists. And that was especially true in rural areas, in smaller

2 towns, where you couldn't even be the manager of a grocery if you were not

3 a member of the party, let alone the judge or the prosecutor. So there

4 were a lot of people who became members of the party for those reasons.

5 Q. Could you have maintained and advanced a career in law without

6 being a member of the party?

7 A. I couldn't. Of course I couldn't be a judge without that. In

8 theory, perhaps, I could have, but not in practice.

9 Q. Thank you. There's been evidence that nationalist parties emerged

10 in the former Yugoslavia in the early 1990s, one of which was the SDA.

11 A. Yes.

12 Q. I'm sorry, I've forgotten temporarily what it stands for, but I

13 think we're all agreed that it was a party that was essentially supported

14 by the Muslim community in the former Yugoslavia.

15 Did you ever join that party?

16 A. Yes, I did. I became a member of the Party of Democratic Action,

17 the People's Party, whose membership came mostly from the ranks of

18 Bosniaks, that is, Muslims. That was on the 4th of August, 1990.

19 Q. There's also been evidence in the case that the other parties that

20 emerged in the early 1990s were the HDZ, and they were supported in the

21 main by the Croat community in Bosnia, and the SDS, which were supported

22 in the main by the Serb community in Bosnia. Does that accord with your

23 experience?

24 A. That's correct. That's how it was.

25 Q. Now, you said you joined the SDA in August 1990. Did you achieve

1 any positions in the ranks of the party of the SDA?

2 A. At the outset, no, but at the first elections held in autumn 1990,

3 in November 1990, I was on the list of that party's candidates for

4 Bosanski Samac. I was first on the list.

5 Q. Is that something special, the fact that you were first on the

6 list? Did that qualify you for higher rank within the party? I don't

7 understand. Can you explain that, please?

8 A. For every election, a list of candidates is made for a certain

9 level of power. There is a list of candidates for the municipal assembly,

10 and it had to contain 50 names. I was first on that list, and I was

11 elected deputy to the municipal assembly. Later, in 1991, I was elected

12 president of the party for Bosanski Samac.

13 Q. Can you briefly explain to the Chamber what the 1990 elections

14 were? Were they national Bosnian elections?

15 A. Those were general elections at the level of Bosnia and

16 Herzegovina for municipal assemblies and for the assembly of the Socialist

17 Republic of Bosnia and Herzegovina, eight -- except national parties,

18 other parties took part in the elections too, such as the SDP, the

19 Reformists, the Liberal Party, the Socialist Party, and some others,

20 perhaps. Those were the first multi-party elections ever to be held in

21 Yugoslavia, that is, in Bosnia and Herzegovina.

22 Q. I don't want you to go into too much detail, but can you give the

23 Chamber a broad outline of what the results were?

24 A. The results of the elections showed that national parties had

25 won, that the League of Communists, as the party was then called, was

1 ousted after 50 years in power. The biggest vote-getter was the SDA or

2 the Party of Democratic Action because the Muslims were the most numerous

3 nation, followed by the SDS, and the third winner wars the HDZ.

4 In Bosanski Samac, where the Muslims were the smallest ethnic

5 group, HDZ was in the first place, then the SDS, then the SDP, the

6 Reformists, and only then came the SDA and the Liberal Party. So the

7 nationalist parties or the national parties had a convincing or

8 overwhelming win over the level of the republic and at the level of the

9 municipalities. And the government was consequently formed in some sort

10 of coalition, perhaps not coalition but alliance, and an agreement was

11 reached at the level of Bosnia on Herzegovina to the effect that the

12 biggest vote-getter among the parties get the office of the president of

13 the assembly, the next vote-getter gets the president of the Executive

14 Board, and the third largest vote-getter gets the offices of chief of

15 police and so on. That was essentially the agreement.

16 In Bosanski Samac, the HDZ got the office of the president of the

17 municipality, the secretary, and the chief of police. The SDS got the

18 office of the president of the executive board, and the secretary of the

19 secretariat for defence, the director of the revenue office; and the SDA

20 party got the office of the vice-president of the executive council.

21 Q. What particular rank did you hold within the SDA at the time of

22 the 1990 elections, what specific position?

23 A. At the time of the elections, I was a simple member of the SDA

24 party, and I did my job as lawyer. After the elections, I worked as a

25 deputy, and simultaneously, I was the president or the chairman of the

1 municipal local community, but that was volunteer work. My profession was

2 that of a lawyer.

3 Q. Yes. Did you achieve rank within the SDA beyond that of a simple

4 member?

5 A. Later on, I got the position of president of the party for Samac,

6 and later, I became head of the Main Board, and within the municipal

7 assembly, apart from being a deputy, I was also a member of the council

8 for security.

9 Q. And were these all positions that you obtained or reached

10 pre-April 1992?

11 A. Yes. All those positions were ones I was elected to before

12 April. In fact, yes, I was elected to those positions.

13 Q. I want to skip a decade. Can you now tell us what your current

14 occupation is?

15 A. I am now full time vice-president of the SDA party, and I also

16 occupy the position of the vice-president of the People's Assembly of

17 Republika Srpska.

18 Q. How did you obtain the position of full-time vice-president of the

19 People's Assembly of Republika Srpska?

20 A. I'm not professionally in that position, that is volunteer work,

21 but I was elected as the people's deputy to the national assembly, the

22 People's Assembly of Republika Srpska. In effect, this is my third term

23 of office in the national assembly of Republika Srpska. One of the

24 officials was supposed to be a non-Serb, and since I have a lot of

25 experience as a deputy in the assembly, it was decided last year in

1 December, at a session of the national assembly, that I should be

2 vice-president.

3 Q. Do you currently continue your legal work or do full time -- or is

4 politics now your full-time occupation?

5 A. It's now my full-time occupation.

6 Q. I just want to turn to another topic, namely, the town itself and

7 the surrounding areas and municipalities, and I'm asking you to bear in

8 mind that the questions I'm asking you are really referring to the

9 pre-April 1992 period of time.

10 Firstly, the town of Bosanski Samac itself. Again, I think its

11 beyond dispute members of all three ethnic groups lived in that town. Can

12 you give us any idea of the proportions in which they lived in the town of

13 Bosanski Samac in the period of time leading up to April of 1992?

14 A. In the town itself, there was -- there were most Muslims in the

15 town itself, those who declared themselves as Muslims, then Serbs, Croats,

16 and there was a significant number of citizens who declared themselves as

17 Yugoslavia Slavs.

18 Q. What about the surrounding areas around the town, the rural areas

19 around the town? Were there many Muslims living in those areas?

20 A. Muslims did not live in the surrounding area. Those were mostly

21 Serb or Croat villages. In the entire municipality, as far as I can

22 remember the census of 1991, there were about 44 per cent Croats, 42 per

23 cent Serbs, and about 7 per cent Muslims, and the rest is accounted for by

24 Yugoslavs and other categories.

25 Q. Have you any idea why people described themselves as Yugoslavs?

1 In the census, I mean. Why they might choose to describe themselves as

2 Yugoslavs.

3 A. For different reasons, you see. There were a lot of citizens in

4 Yugoslavia at the time who felt as Yugoslavs, and that's how they declared

5 themselves at censuses. But most of them came from mixed marriages, I

6 believe, or themselves formed a mixed marriage and, therefore, declared

7 themselves that way. That occurred mostly in urban communities where the

8 mixture was the most pronounced, and that's how citizens declared

9 themselves. Most of the category of Yugoslavs came from Bosnia and

10 Herzegovina.

11 Q. You referred to mixed marriages. Can you comment on the numbers

12 of mixed marriages that occurred in Bosanski Samac? I mean by that the

13 town and the municipality. Was it a reasonably common phenomenon or was

14 it exceptional?

15 A. As far as I can remember, in the municipality of Bosanski Samac,

16 1.800 people declared themselves as Yugoslav, 200 out of this number in

17 the town of Samac itself, and the rest were inhabitants of surrounding

18 villages.

19 As for how many mixed marriages there were exactly, I can hardly

20 say. I don't think there is a record of that. But you can -- you can

21 draw your own conclusions on the basis of this figure of 1.800.

22 Q. Thank you. The villages around -- surrounding the town of

23 Bosanski Samac and also in the neighbouring municipality of Odzak, were

24 they inhabited by mixed ethnic populations or were they predominantly

25 either Croat or Muslim or Serb?

1 A. In the municipalities of Bosanski Samac and Odzak, villages were

2 either Serb or Croat. There were no Muslim villages.

3 Q. Any reason for that, the absence of Muslim villages?

4 A. The reason is that Bosanski Samac and Orasje are new settlements

5 which came into existence when Serbs were driven out of Serbia and the

6 Turkish Sultan Aziz formed these villages constituting the so-called new

7 Azizia, and there were no Muslims there in that area at all anywhere,

8 including villages. The first Muslims appeared there in Modrica and

9 towards Central Bosnia.

10 Q. Again, I think it's generally accepted that in terms of religion,

11 Serbs tend to be members of the Orthodox faith, Croats tend to be members

12 of the Catholic church, and Muslims, that speaks for itself, of course.

13 Were there places of worship, mosques, Catholic churches, Orthodox

14 churches, present throughout the municipalities Bosanski Samac and Odzak?

15 A. Speaking of the town, both in Samac and in Odzak, there were

16 temples, of houses of worship of all three religions. However, in

17 villages, since villages were either Serb or Croat, they had either a

18 Serbian Orthodox or a Catholic church respectively. It is common in

19 Bosnia that you found all three churches in every town, but in villages

20 you find one house of worship, depending on the religion of the locals.

21 Q. I think it's agreed in this case that you were arrested in April

22 1992. At that time, was there a mosque and a Catholic church in Bosanski

23 Samac?

24 A. There were both a Catholic church and a mosque in Bosanski Samac.

25 Q. And what about Odzak? Can you tell us about the situation in

1 Odzak pre-April 1992, the town of Odzak?

2 A. I know there was a mosque in Odzak, if that's what you mean.

3 Q. What about a Catholic church in Odzak?

4 A. I can't remember now where this Catholic church was.

5 Q. You've given evidence that since April 1992 you have returned to

6 Bosanski Samac and that there is no longer a mosque or Catholic church.

7 Does that situation apply, at least insofar as the mosque is concerned, in

8 Odzak?

9 A. When I arrived in Bosanski Samac, not only was the mosque missing,

10 there was even no rubble from the building. Everything was razed to the

11 ground, as if there had never been a mosque there. The entire location

12 where the mosque used to stand was violated, if I may use this word, by

13 the construction of the residential and office centre. After 1995, when I

14 came to Odzak, I found an empty space there, too, where the mosque used to

15 stand. There was just a clearing. But I believe that a mosque, that a

16 new mosque is being built now by the Muslims of that town.

17 Q. Just going back to the population distribution, in Bosanski Samac

18 you said that all three groups lived in the town. Did they tend to be

19 confined to particular areas of the town or were they distributed mixed

20 throughout the town?

21 A. It was mostly mixed. There were no areas in the town which were

22 exclusively populated by one or another ethnic group. There could have

23 been a higher ratio of one ethnic group in one area compared to the

24 others, but there were no strictly one-nation areas.

25 Q. Are you familiar with the term "Posavina"?

1 A. Yes.

2 Q. What does it mean?

3 A. In my view, Posavina comprises municipalities from Brcko, Orasje,

4 Bosanski Samac, Odzak, Bosanski Brod, Derventa, Modrica, up to Gradac

5 perhaps. It was the richest part of Bosnia and Herzegovina, I believe.

6 You could often hear it referred to as "little Kuwait," because in Modrica

7 there was one oil refinery; in Brod there was another oil refinery; there

8 were ports in Brcko, in Bosanski Samac; there were bridges across the Sava

9 River; in Brcko, Orasje, Samac, Brod, a railroad. It was a wealthy part

10 of the country. People were well-off.

11 Q. You've used or, rather, described the term to indicate a

12 geographical area. Does it have any political connotations to you?

13 A. Before April 1992, that area was divided into districts. It never

14 was one entity, one whole. But after 1992 you could hear it referred to

15 as a canton, as a region of some sort. But in fact, this area was one

16 whole and functioned as a whole. People lived that way, communicated with

17 one another.

18 Q. Did it have duty-free areas?

19 A. Yes. There was a duty-free zone, I believe, both in Brcko and in

20 Bosanski Samac, or it was only about to be established in Bosanski Samac.

21 Certain companies, I know, were supposed to build factories there and

22 plants in the neighbourhood of the port in Bosanski Samac.

23 Q. I want to turn to another topic, that is, the issue of the

24 municipalities in Bosnia. You are familiar, are you, with the workings of

25 the municipal assemblies and the structure of municipal government in

1 Bosnia as it existed in 1992? That's a question.

2 A. Yes.

3 Q. The reason you're familiar is - correct me if I'm wrong - because

4 of your legal training and because of the fact that you've been a player

5 in municipal politics, especially in Bosanski Samac?

6 A. Yes.

7 Q. What were the main organs of municipal government in Bosanski

8 Samac in the period of time up to April 1992?

9 A. Well, I would like to say, before the first multiparty elections,

10 the Municipal Assembly's organisation had changed. Before, the Assembly

11 had three chambers: the socio-political chamber, the local community's

12 chamber, and the associated labour chamber. Before the elections, the

13 statute had been changed and it was decided that the Assembly should only

14 have one chamber, the Municipal Assembly comprising 50 deputies. The

15 Municipal Assembly had its president, it had an executive council as the

16 municipal government. In the municipal government - in the Executive

17 Council, in other words - there were leaders of the municipal services.

18 Q. What was the function of the Executive Council?

19 A. The Executive Council was a municipal government in charge of

20 resolving municipal problems falling within the jurisdiction of the

21 municipality. This it did either directly or proposed various solutions

22 to the Municipal Assembly, which was in fact the parliament and which

23 passed decisions.

24 Q. How often would the Municipal Assembly meet and deliberate upon

25 issues?

1 A. I believe that the meetings of the Municipal Assembly were held

2 monthly, or twice a month. I'm not quite sure. But the Executive Council

3 worked, was in session, between the two Municipal Assembly meetings and

4 resolved problems.

5 Q. Are you familiar with something called the Territorial Defence

6 system?

7 A. Yes. The Territorial Defence was part of the municipal government

8 and it was called the Territorial Defence staff. And there was also the

9 Secretariat for Territorial and National Defence, which also dealt with

10 Territorial Defence matters. There was a Secretariat of the Ministry of

11 the Interior, the police, in other words. In the Bosanski Samac

12 municipality, there was a special secretariat, the Public Revenues

13 Secretariat, and there was also a Cadastre service.

14 Q. Did the Territorial Defence actually have an office or

15 headquarters or place from which it ran its operations in Bosanski Samac?

16 A. The Territorial Defence headquarters was across the street from

17 the building of the municipality and of the Secretariat of Internal

18 Affairs. In addition to having offices, it also had warehouses for

19 equipment. The headquarters of the Territorial Defence was organised

20 within the framework of the republics of the former Yugoslavia and they

21 were linked with the republican headquarters for Territorial Defence.

22 They had their own organisation, they had units, and very often exercises

23 were held. The units held exercises within the Territorial Defence

24 headquarters. The TO headquarters had also weapons, their own weapons,

25 which prior to the war the JNA took over.

1 Q. Where were the weapons kept? And I'm talking about the period of

2 time before the JNA took over. Where were they normally kept?

3 A. Well, I cannot say that with certainty. Probably in the

4 warehouses of the TO headquarters.

5 MR. DI FAZIO: If Your Honours please, I want to show the witness

6 a document. It's referred to in the Prosecution's list of exhibits as

7 item C1 and is, in fact, the statute of the Bosanski Samac municipality.

8 I believe copies have been given to the Chamber's legal officers. Defence

9 have copies. Does the Chamber have copies?

10 JUDGE MUMBA: Yes.

11 MR. DI FAZIO:

12 Q. First of all, Mr. Tihic, the document that has been produced to

13 you has on the front page, I believe, a heading. Would you describe it,

14 please?

15 A. Well, I received the English version of the text.

16 Q. I'm very sorry. That's not what I intended. I think the B/C/S

17 version would be more suited to you.

18 A. Well, it says in the title "Socialist Republic of

19 Bosnia-Herzegovina, municipality of Bosanski Samac, statute, municipality

20 of Bosanski Samac, clean version, Bosanski Samac, 1986."

21 Q. Thank you. Are you familiar with that document? I mean by that,

22 have you seen it before, do you know what it represents, and so on?

23 A. Yes. I've seen it, I'm acquainted with it, I know its

24 significance and the matters that it deals with.

25 Q. Would you just have a quick look through the contents? I don't

1 mean read every single page and line, but just have a general look at the

2 document.

3 A. Well, the statute regulates issues within the jurisdiction of any

4 municipality, which also goes for the Bosanski Samac municipality, as it

5 has been regulated by the Constitution of Bosnia and Herzegovina. You

6 have there the structure of the government, the various authorities.

7 Q. Yes. Thank you. If I may interrupt you there. Is that, in fact,

8 the statute of the municipality of Bosanski Samac from 1986, final

9 version?

10 A. I believe so. I think it is that document.

11 MR. DI FAZIO: If Your Honours please, I seek to introduce that

12 into evidence.

13 JUDGE MUMBA: Any objection from the Defence?

14 MR. PANTELIC: Madam President, on behalf of all Defence counsel,

15 we don't have any objections, save problem in translations, but we have to

16 check. If something, we can always --

17 JUDGE MUMBA: You can always raise it, yes.

18 MR. PANTELIC: The document can be admitted. No objection. Thank

19 you.

20 JUDGE MUMBA: Can we have an exhibit number, please?

21 THE REGISTRAR: This document titled "Statute of the Bosanski

22 Samac Municipality" shall be marked for the record Prosecutor's Exhibit

23 P6.

24 MR. DI FAZIO: I just pause here, if Your Honours please. What

25 you have before you -- I assume you have the full copy, the B/C/S, but for

1 your purposes, the English is a summary translation of portions of that

2 document. I just want to make that clear. It doesn't purport to be a

3 full, complete translation of the document, and the portions that I'm

4 going to refer to, therefore, in English will have been selected from

5 various parts.

6 JUDGE MUMBA: Yes, for purposes of your case. Yes.

7 MR. ZECEVIC: Your Honour, I'm sorry. We have to clarify

8 something. We received the whole document, the "Statute of the

9 Municipality of Bosanski Samac," not the summary.

10 JUDGE MUMBA: The one in English?

11 MR. ZECEVIC: In English language. This is the one in English

12 language. The whole document.

13 JUDGE MUMBA: Yes. Counsel can --

14 MR. ZECEVIC: And in Serbian, of course.

15 JUDGE MUMBA: Counsel can explain, because I understood that what

16 has been reproduced here are only those passages for case of the

17 Prosecution. Perhaps counsel can explain.

18 MR. DI FAZIO: Yes. I have before me a summary translation. You

19 can see the words "summary translation" at the top on the right-hand side

20 on each page. If my learned friend doesn't have that and has the benefit

21 of having the full and complete translation, then that's even better.

22 MR. ZECEVIC: I agree, Your Honours, that this is better, but I

23 made this morning one objection to the Prosecutor that within these

24 summaries, they included the notes made by their investigators, which

25 should be struck out, because they're making a reference to another which

1 is not the content of the document, so it's completely a position of

2 somebody who is reviewing that document.

3 JUDGE MUMBA: Yes. Counsel, that was --

4 MR. ZECEVIC: And I was assured that this would be done. That is

5 why I didn't raise the objection, because I thought that this was the

6 whole document, and this document is admissible and part of evidence with

7 no problem at all.

8 MR. DI FAZIO: Mr. Zecevic did raise that issue with me, and I

9 agree what he says. Any comments, obviously investigators' notes that

10 might be in the summary translation, I do not wish to be included in --

11 or, rather, for the Court to ignore those particular comments.

12 JUDGE MUMBA: But how do we identify the comments?

13 MR. DI FAZIO: My learned friend only pointed me to one particular

14 item - that's all that I'm aware of - and that was a reference to a book

15 written by a witness called Dragan Lukac. I don't know, as I stand here,

16 precisely where in the English summary translation it is, perhaps he could

17 indicate to us, but I don't recall it being -- I just don't know where it

18 is. But if my friend wants those words expunged, I entirely agree with

19 him and I have no problem in expunging those words.

20 JUDGE MUMBA: Where are they? Which article?

21 MR. DI FAZIO: I'm afraid I can't see them in the document. I

22 wonder if my friend might be in fact referring to another document, which

23 was a Gazette.

24 JUDGE MUMBA: Can the Defence counsel show the Court which --

25 where the comments are?

1 MR. ZECEVIC: Your Honours, actually, those are the documents

2 which are given to us yesterday, although they were already disclosed to

3 us in original, I mean, Yugoslav versions, in the Serbian language.

4 In this English summary translation, not only one, but this is a

5 repetitive thing that they have notes all over these documents, in

6 italics, or in brackets or -- and I talked to my learned colleagues over

7 there, and they promised that they will strike out these notes and then we

8 wouldn't have any problems like this.

9 And moreover --

10 JUDGE MUMBA: Can you --

11 MR. ZECEVIC: If you permit me, Your Honour. Moreover, I would

12 insist in the future that the document which is presented as the evidence

13 and presented to the Court is actually given to us or just so we don't get

14 in this position, the same document, because we received the whole copy,

15 the translation of the Statutes, and the Court and the rest of the -- rest

16 of the people in this courtroom received the summary. So we would insist

17 that we get the same documents so we can object if there is anything to

18 object.

19 JUDGE MUMBA: Counsel, is that correct, that what was disclosed

20 before to the Defence is not actually this summary translation?

21 MR. DI FAZIO: Everyone in the court has exactly the same

22 document.

23 JUDGE MUMBA: No, no, no. Before this sitting, what was

24 disclosed? Was it this summary translation?

25 MR. DI FAZIO: The documents that we have now. The documents that

1 we now have before us.

2 I just don't know whether the reference to Mr. Dragan Lukac is in

3 the Statute. I can't see it. There is another document called C2 which I

4 intend to produce in later which is the Gazettes. It might be that it's

5 in there, but I'm not dealing with that document now. I'm dealing merely

6 with the Statute, the 1986 Statute, and that has a summary translation. I

7 can't see anything in it relating to a reference to this gentleman.

8 JUDGE WILLIAMS: Excuse me. I just have a question of

9 clarification as to essentially what the word "summary" means. I know

10 what I have in front of me is a document containing 41 pages and going up

11 to Article 347. I see in the context, just flipping through it now, pages

12 now and again, we'll say, for example, Article X to Y deleted. Does that

13 mean those articles have been deleted for the purpose of the summary or

14 have they been deleted by the legislature and are no longer part of the

15 document? Because it strikes me that a document of 347 articles, where

16 it's only on the occasional page that we have the highlighting, is not a

17 summary, as such.

18 So I'm a little bit confused as to the meaning of the word

19 "summary translation."

20 MR. DI FAZIO: Yes. They're selective translations, in effect.

21 Bits of the document have been selected and translated for the purposes of

22 the Prosecution. Where there are translation, I think, I'm confident that

23 they are word-for-word, verbatim translations, but they are selected parts

24 of the Statute that have been translated.

25 For example, on page 31, you'll see Articles 227, 228, 229, and

1 there's nothing underneath that that indicates that those documents --

2 that those articles have been translated.

3 JUDGE MUMBA: What about the second part of the question, the

4 deletions which are shown here?

5 MR. DI FAZIO: Would Your Honours just bear with me?

6 [Prosecution counsel confer]

7 JUDGE MUMBA: Page 32, for instance, article -- right in the

8 middle of page 32, Article 241 to 282 deleted. That was the second part

9 of the question. What does that mean?

10 MR. PANTELIC: Madam President, I think with -- Mr. Tihic appeared

11 as witness. He is a Serbian -- a Bosnian version of his colleagues, so he

12 can check easily whether the genuine version, how many articles is there,

13 and then there is not a problem. So with your permission, I think that

14 our colleague Tihic could help us.

15 JUDGE MUMBA: Thank you, Mr. Pantelic.

16 Counsel for the Prosecution, do you agree that the document which

17 the witness is looking at is the actual Statute?

18 MR. DI FAZIO: Yes.

19 JUDGE MUMBA: In Serbo-Croat? Because the problem here -- like

20 the Judge did ask, what does this mean, the deletions. Was it in the

21 same, was it originally deleted, or are the deletions done by the Office

22 of the Prosecution to save paper or what?

23 MR. DI FAZIO: If Your Honours' please, it's now 1.00, and we've

24 come to the end of today's session. Can I assure the Chamber that I will

25 answer the question of the deletions, I'll look into the procedures

1 adopted by this Translation Unit and find out what the words "deleted"

2 mean.

3 JUDGE MUMBA: And please discuss with Defence counsel --

4 MR. DI FAZIO: I'll do that.

5 JUDGE MUMBA: -- on whether or not this is the document they have,

6 and also compare with the Serbo-Croat version. Because it's entirely --

7 it's okay if the Prosecution is producing excerpts of a statue or a bylaw

8 or a piece of legislation. That is entirely acceptable, provided we are

9 given a correct description --

10 MR. DI FAZIO: Yes.

11 JUDGE MUMBA: -- of the document. So it's now 1.00. So please

12 deal with that or any other document you want to produce. We had a

13 similar problem earlier on of having different numbers on different

14 documents. So please deal with that so that tomorrow morning we can

15 continue smoothly.

16 JUDGE SINGH: Mr. di Fazio, I have a question for you. Do I

17 understand you correctly to say that these are not entirely extracts but

18 they are summaries? In other words, they're not accurately translated;

19 first question.

20 The second question I would like to pose to you is that you have

21 admitted this document as Statute, Municipality of the Bosanski Samac,

22 with that heading. Perhaps you may wish to reconsider marking it or

23 entitling it as Summary Translation of Statute or extracts, or whatever it

24 is.

25 The third matter I'd like to bring to your attention is the matter

1 which Defence counsel has just raised, the question of the original

2 document.

3 So may I suggest that you mark the translation, in whatever form

4 it is, as Exhibit P6, and the original document as P6A, so that if they

5 need to cross-examine this particular witness, then we have both documents

6 on the record.

7 MR. DI FAZIO: Thank you. If Your Honour pleases, I think that's

8 an entirely useful idea, and I'll make sure that that happens.

9 MR. ZECEVIC: Thank you, Your Honours.

10 JUDGE MUMBA: The Court will rise and continue proceedings

11 tomorrow at 0930 hours.

12 --- Whereupon the hearing adjourned at 1.00 p.m.,

13 to be reconvened on Friday, the 14th day

14 of September, 2001, at 9.30 a.m.

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