Milosevic Transcript 2002-10-23

¹²²¹³

Wednesday, 23 October 2002

[Open session]

[The accused entered court]

--- Upon commencing at 9.17 a.m.

JUDGE MAY: We're not able to continue with the evidence of the witness at the moment, and therefore it seemed convenient to deal with some matters which are outstanding anyway, some legal argument in relation to Witness 36. There is an application under Rule 92 bis to deal with some part of his evidence under -- with a statement under that Rule, with the production of documents. The amicus has put in a paper, and we will hear from him and from the accused, and then we'll hear from the Prosecution on the matter.

Mr. Kay, thank you for your paper. You, I think, accept that the statements are admissible, certainly on the grounds that they relate to political or military background, but you challenge, you say, as a matter of discretion, whether the evidence should be admitted.

MR. KAY: In paragraph 13, we set out various points that the Trial Chamber, we feel, should consider in relation to the admission of this evidence in this form. We've got the overriding public interest element, given the importance and detailed nature of the evidence on what are central political and historical issues in the case. One can see that the documents --

JUDGE MAY: Give me an example of that. You say that it's central, but just give us an example, please.

MR. KAY: If you go to the section of the exhibits detailing, for ¹²²¹⁴ instance, the creation of the Serbian Autonomous Region of Krajina, and you have there a whole series of exhibits --

JUDGE MAY: This would be page -- it seems to be page 6.

MR. KAY: Page 6 of the --

JUDGE MAY: Statement.

MR. KAY: -- statement for 92 bis purposes. As you know from the pre-trial brief and the indictment, the involvement of the accused in these issues is part of the Prosecution case against him, and what we have here is a whole wealth of exhibits, 75 in all, which detail the whole of the movement of the affairs, right from the beginning, from the first exhibit, to the end. And the witness himself comments, in the course of that statement, upon various aspects of the creation. And we --

JUDGE MAY: Help us with this: I see the documents, and we will consider them in a moment, of course. We do consider the number. That's something we'll have to take into account. But what sort of comment had you in mind that the witness has made?

MR. KAY: Well, if we go to his statement where he refers to Radovan Karadzic, on pages 1 and 2. These might be issues that the accused himself would want to ask questions about, the creation of these parties.

JUDGE MAY: He could ask questions, of course. I mean --

MR. KAY: Yes, but it's very difficult for him, if this material just comes into being in the courtroom without there having been any prior explanation. For Your Honours in those circumstances to be able to take up this evidence in what is essentially a void -- we do have a statement ¹²²¹⁵ from him of some ten pages, but two folders of exhibits that detail the creation of these various councils and of the regions themselves and the municipalities, but without any explanation of the context. And as we can see from the indictment and the pre-trial brief, the politics behind these particular developments are part of the case against the accused.

JUDGE ROBINSON: Just develop that point, Mr. Kay. I'm very interested in that, the centrality of the evidence to the Prosecution's case. Are you saying that it is central in that the creation of these bodies goes to the establishment of the joint enterprise, the involvement of the accused in that?

MR. KAY: Yes. The names that are mentioned, and the particular name which is connected with this witness, is of interest, and I don't want to say any more, as we're in open session. There is plainly a central involvement here and issues that the accused himself would seek to cross-examine upon, but it's a very difficult task for that to be done just through a process where the witness produces these two folders which his statement, which contains a degree of comment. But the Court itself is left without any full explanation, which is very difficult to take up from the statement. It's putting it almost in a void.

JUDGE MAY: But we have to be, in a case of this sort, dealing with this volume of material, we cannot be bound by the practices of national jurisdictions. Obviously, this evidence -- or probably, in a national jurisdiction, this evidence would be led live, but here we are faced with a huge amount of material, and we have to find ways of getting through it which doesn't prejudice, of course, the fairness of the trial. ¹²²¹⁶ I mean, that's the crucial point. And what is being said here is that these documents can be read, this statement can be read, and can be cross-examined, and therefore, no doubt, it's said, there is really no prejudice to fairness. There are gains from the point of view of expedition. If the witness has to go through producing 75 documents, and a cumbrous process, as we know. Whether there's any gain in having him do it as opposed to his producing a statement, it may be more difficult, I agree, to take in, in the way that one is used to in which witnesses produce every single document. But it may be we also have to look at more imaginative and constructive ways of working, if it doesn't affect the fairness of the trial, as I say.

MR. KAY: The public interest element is very important on this issue, which I would stress. I mean, the politics of the development of these Autonomous Regions and the municipalities and what was involved has been an undercurrent throughout the case from the opening.

JUDGE ROBINSON: In fact, it probably could be said that this is not really historical; it's part of the -- it is, as you say, central. It is almost part of the res gestae. I don't see it as being historical. It's so close to the events that I don't think "historical" is the correct word to qualify it.

JUDGE MAY: I would agree, with respect. It's political, of course, which is one of the terms which is mentioned in the Rule. Although on this particular aspect of the case may be rather more central than we usually allow.

But let me take you back to the point that I make about the ¹²²¹⁷ documents. Now, why do we need a witness to go through a list of documents which we can read, the Trial Chamber can read the document. Let me take you to page 3.

MR. KAY: Is that of the documents of --

JUDGE MAY: I'm sorry. The statement. I'm looking at the statement. You have the documents?

MR. KAY: Yes.

JUDGE MAY: We don't have the documents. You may be in a better position to deal with them than we are. I'm just looking at page 3, or would it be more convenient to look at page 6, the ones that you had out already?

MR. KAY: Yes.

JUDGE MAY: What I notice is that what we start with, a notice from the president of the Presidency, and then the next document is the statute of the SAO Krajina, a decision implementing the statute. I mean, all these kind of documents, it seems to me, speak for themselves, and if there is any question of interpretation, why, then, the witness can be asked about it in cross-examination. But you may have some counter-argument. I don't know.

MR. KAY: The involvement of the witness himself in these documents is apparent and on many of them, and I won't be more explicit than that. And how they were produced and how they came about in creation of this political region may well be of great importance in this case, particularly in relation to who did what and what those powers were to be. I take the point that they're not historical, as His Honour Judge Robinson ¹²²¹⁸ said, and they're definitely political, though, and that is their context in what is a case that is deeply involved with politics and the deployment of political power within this region, and others, in which the indictment and the pre-trial brief, and the opening by the Prosecutor, makes it clear that they hold the accused responsible for that, describing him as pulling all the various strings. Well, documents such as these, which actually detail the political set-up of the Autonomous Region, in which the witness himself is apparent, in that context should have an explanation from the Prosecutor, through him, as to exactly what their case is.

JUDGE ROBINSON: I would tend to agree with you. When I said it wasn't historical, I wanted to go on to say that I believe the word "political" in the Rule is misplaced because matters that are political are entirely different from matters that are historical in the temporal sense. And matters that are political can have the kind of status that you have ascribed to them and which -- and from which I think everyone would benefit from having the evidence being led in chief. It may be that perhaps the witness might not need to be led as to all the documents. Perhaps the witness could be led as to some of them, and the others could be tendered.

MR. KAY: The Prosecution has put their case in the motion submitted by them describes the political development of Serb areas of Croatia from 1990 through the beginning of 1992, and in that context, his evidence in 92 bis form, producing this tranche of relevant political material requires a case to be put by them in the form of producing the witness to state what the position is as he sees it. ¹²²¹⁹

JUDGE MAY: But I just wonder whether we don't ascribe too much importance to oral evidence. How does it improve on a statement for the evidence to be given live? What is the magic, as it were, of live evidence about matters such as this? I can see about matters such as events and conversations; yes, of course. But this is simply describing the involvement of institutions, when the story possibly can best be told through the documents. Isn't that right?

MR. KAY: The story can certainly be told through the documents, but what's at stake here is the putting of a case and the making of allegations. If this goes in, no effective case has been put against the accused. How does he then deal with it? Statements have been made in opening, statements have been made by witnesses. This witness himself, who is central to the production of this material from 1990 to 1992 --

JUDGE MAY: What does he say live? I can see in cross-examination he may have things to say, but what does he say live which adds to this particular statement? What do you foresee him doing?

MR. KAY: He's not my witness.

JUDGE MAY: No, but you see, you use the expression such as putting the case. Now, that's for the Prosecution to do; it's not for the witness to do that. And what I'm asking, rhetorically, is what does his live evidence add to what is in his statement and more importantly, perhaps, what's in the documents. And then we have to make a judgement, of course, about that.

MR. KAY: The case that they put is through the witness's evidence. At the moment, they have put a case in opening and in the ¹²²²⁰ ^{BLANK PAGE} ¹²²²¹ indictment and in the pre-trial brief which needs evidential support to have any standing at all. To have made their assertions against the accused and then seek to back it up in the briefest forms by a ten-page statement, and then with two lever-arch files of documents containing detailed historical and political material is not something that the accused can properly meet.

JUDGE MAY: So you would -- I mean, it isn't a question, presumably -- this is about documents, where the witness has to give his evidence live in order that the Chamber can judge whether he's telling the truth about it and whether he comes up to proof. This isn't such a case. But what you're saying, then, is that the Prosecution should go through the documents, pointing out the significance. Is this what you're saying, rather than just putting a document in, saying, "Look at this, paragraph so-and-so"?

MR. KAY: Absolutely. At the moment, it's fairly meaningless, and in our view, doesn't assist the Trial Chamber perhaps in relation to these issues.

[Trial Chamber confers]

JUDGE MAY: Thank you, Mr. Kay, unless there's anything you want to add.

Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] You know that I am emphatically against the application of this Rule 92 bis, which actually boils down, in view of the practice implemented here over the past few months, to limiting my ability to cross-examine. This virtually means that a large ¹²²²² pile of documents and allegations are produced here and then examination of the witness is made impossible. And in this case we see that the witness doesn't even have to testify; he just has to bring the documents. Then I ask myself: What is the purpose of his appearing if he is only in the role of a postman or an archives officer, which he couldn't have been, in view of his position, documents which the Republic of Serbian Krajina issued ever since they were established, the formation of the Serbian Autonomous Region and later on the Republic of Serbian Krajina and other developments? Therefore, in addition to what Mr. Kay has already said and which I think was quite correct, I would just like to add that the main issue which prejudices the possibility of comprehending the truth is the restriction on my abilities to cross-examine.

I still haven't had occasion to review all those documents, and if you have 70 documents, then you must give me a chance to ask the witness about each and every one of those documents and to ask him about the links and the degree to which he can confirm or assert that the government of Serbia, or I personally, or the bodies of the Republic of Serbia, were in any way involved in all this, because there is no doubt that it was not Serbia that installed, in a third of a territory inhabited by the Serbian people. Those people were not installed there by the Republic of Serbia in 1990. Those people have been having there for several centuries. And as we have established, they sought to survive there rather than to restrict the rights of anybody else.

So I think this will open a whole range of issues, and this is a typical example of a witness who is not appropriate for being produced ¹²²²³ under 92 bis. He should come and testify in court, and I should have the opportunity to cross-examine him in detail. So it is my position that the application for him to be treated through this abbreviated procedure should be rejected but that he should be treated in full, covering all the aspects of his testimony, that he should, in other words, appear live.

[Trial Chamber confers]

JUDGE MAY: Yes. We're looking at the time now. I think we're now in a position to deal with the witness, which we will do in private session. But before we do, I should say that, Mr. Nice, we'll postpone your argument until the end of the morning.

[Trial Chamber and registrar confer]

JUDGE MAY: Yes. And we'll go into private session.

[Private session]

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[redacted]

[Open session]

THE REGISTRAR: Your Honours, we're back in open session.

JUDGE MAY: If you need, Mr. Nice, to contact the witness about these matters during any adjournment, you may, of course. Mr. Milosevic, it's for you to cross-examine. You've got up to two and a half hours to do so. Would you bear in mind the necessity of asking any questions which may reveal identity in any way in closed -- or private session, rather. So if there are any questions, particularly about matters which the witness dealt with in private session yesterday, they should, of course, be dealt with in private session. Yes.

THE ACCUSED: [Interpretation] I should like first of all to make an objection and say that this has now become widespread practice, it appears, that all this is taking place in private sessions. It is my firm conviction, and I don't mean only with respect to this witness but with several of the previous witnesses as well, that the arguments put forward for the protection of witnesses are being used too widely and for the public to be excluded from the examination taking place. [redacted]

[redacted]

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[redacted]

JUDGE MAY: That's precisely the point which was in issue. Now, that was in private session, as you know quite well. Now, this objection will stop. No point making it. The Trial Chamber decides on the grounds of the protection of the witness what matters should be in private session. As far as you're concerned, the fairness of the trial involves your being able to cross-examine. There's no prejudice to you having to do it in private session as opposed to public session. The prejudice, I suspect you think you can show is that you're not able to appear in public. Now, that's no prejudice to you.

THE ACCUSED: [Interpretation] Mr. May, I have told you on several occasions here that the only motive that I am availing myself of the opportunity to cross-examine the witnesses is for the public to be able to hear the truth. Now, when you close a session --

JUDGE MAY: What, Mr. Milosevic, you do not understand is this: That it is this Trial Chamber which is trying this case, not the public. Now, all sessions should be, as far as possible, held in public, of course. It is one of the fundamentals of any judicial system and it is a fundamental of this one. But as against this, you must understand that there are problems about the security of witnesses which sometimes overrule the necessity of public sessions. The point which I make is that it does not affect the fairness of the trial, because the trial goes on with your being able to cross-examine the witnesses, albeit in private ¹²²³⁰ session. So it has no bearing on that.

Now, it is of no concern of yours whether the sessions are public or not. What you should concentrate on is your cross-examination, either privately or publicly. Now, you have been told that those matters which were dealt with privately must be dealt with privately today. Bear that in mind. The time that has been wasted on this matter which we've been through several times before will be taken from any cross-examination. Yes.

MR. NICE: Can I make one point? That the observation by the accused which sought to reveal something that was given in closed session of course will be redacted from the transcript. Might the Chamber think it worth explaining to the limited number of people present who happened to have heard it that publication of that which they happen to have heard would itself be a contempt and therefore expose them to liability?

JUDGE MAY: Yes.

MR. NICE: Because we have to be very careful of that.

JUDGE MAY: Yes. The public gallery have heard that warning. It's repeated by the Trial Chamber.

Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] Since this question of identification of the witness is taken as broadly as it has been, I really cannot be certain as to the extent to which any question of mine will help identify him, in view of all the things -- the matters he presented here. But let me try, because I would like to cross-examine the witness in open session and not in a private session, and I should like to say once again ¹²²³¹ that I think that secret, covert trials are the characteristics of times past, and nobody can be proud of those times. As the operation that is being conducted here you call a trial, then I'm sure that it can apply to that too

WITNESS: WITNESS C-[Resumed]

[Witness answered through interpreter] Cross-examined by Mr. Milosevic: [Continued]

Q. [Interpretation] I'm going to ask a few questions which will not disclose the identity of the witness, but they do have to do with you.

[redacted]

A. Right.

JUDGE MAY: [Previous translation continues] ... dealt with in public session? No. We'll have to go into private session for these questions.

THE REGISTRAR: Your Honours, we're in private session

[Private session]

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[redacted]

[Open session]

THE REGISTRAR: Your Honours, we're now in open session.

JUDGE MAY: I should say that we started rather later today, so we propose to do this: To take the break at 5 minutes to 11.00. We'll break then for 25 minutes. And the next session will be between 11.20 and 1.00. Yes.

THE ACCUSED: [Interpretation] Are we in public session again?

JUDGE MAY: We're in open session, yes.

MR. MILOSEVIC: [Interpretation] ¹²²⁴⁹

Q. Very well. You say that you went to the Ozren battlefield. Tell me, what was the motive for you to go to the front there?

A. The first motive was I had no feeling of safety. I doubted that I might have problems because I had abandoned that group and because -- the second reason was that I came from Ozren originally.

Q. So I understand that your motive was to seek shelter from the danger, threatening, from the group that you had left.

A. Eighty per cent, 80 per cent of the reason.

Q. Yes. Well, then, did you go there prompted by any other motives except to save your life from the group which you had abandoned?

A. Yes. I went as a volunteer, because the whole area I come from originates from there, and no one went there as a volunteer. I was perhaps the first.

Q. Very well. You even testified about Lovas, and mentioned the names of those responsible for the events in Lovas?

A. That was just my answer to the question about whether I had heard any rumours.

Q. Very well. Is it true that not one of those persons was a member of the JNA or the Ministry of the Interior of Serbia?

A. No. They were all locals, at least the persons that I mentioned.

Q. Very well. You say that after the fighting in Vukovar, the JNA took a large number of Croats to collection centres in Serbia because they wanted to remove them from the area, as they were afraid that local armed TO members in the villages around Vukovar might perhaps kill them. Is that right? ¹²²⁵⁰

A. I didn't state that exactly.

Q. Well, please tell us. Describe the situation. For what I'm asking you is: Is it true that members of the JNA were saving Croatian civilians from possible destruction, or also prisoners, saving them from the danger they could have been exposed to from the local inhabitants?

A. Yes, that too. But in the statement there is reference to the interception of a bus and other buses that were taken on a deviating route.

Q. So precisely the incident you are mentioning was an attempt to seize the prisoners from the army; is that right?

A. Yes. In one case, yes.

Q. Is it even -- do you know that the army even changed routes to avoid passing through areas where there was a danger for people to kidnap the prisoners?

A. Yes. They took a different route.

Q. In your conviction, did the army do that to save the lives of those people?

A. I think so, yes.

Q. And were there several situations when the local populations blocked the path when the army was taking away prisoners, trying to stop them and to seize them from the army? Was that just one case or were there several incidents of that kind?

A. I heard that there were another couple of cases, but I cannot confirm that with certainty. I know of this one for sure.

Q. Is it true that in connection with the events in Lovas, JNA ¹²²⁵¹ officers intervened with the government of SAO Slavonia, Baranja and Western Srem and they protested and intervened in that connection?

A. As I said with regard to Lovas, I heard stories about what had happened, and I also heard stories in a there was some dispute or conflict; between whom, and for what reason, I don't know exactly.

Q. Very well. I think that you spoke in open session about becoming a volunteer in 1993 within the ranks of the Serbian volunteer guards of Zeljko Raznjatovic, Arkan, and that you went to Krajina.

A. Correct.

Q. This was after the fall of Maslenica, wasn't it?

A. Yes.

Q. So that was virtually after the incursion of Croatian forces into the UN-protected area; wasn't it?

A. I don't know whether it was a protected area, but anyway, the Croats captured Maslenica and some areas on Mount Velebit, and then the whole Republic of Serbian Krajina, the Knin area and our area, were mobilised. Before that, the situation was peaceful.

Q. This Serbian volunteer guard, of which you were a member, when they arrived in the Republic of Serbian Krajina, did they place themselves under the command of the army of Republika Srpska, the army of the Republika Srpska Krajina?

A. Yes. We were accountable to them and we received orders from them.

Q. Do you believe that they acted in a disciplinary -- disciplined manner in executing tasks? Did they or rather you, did you go around ¹²²⁵² ^{BLANK PAGE} ¹²²⁵³ burning, looting, killing, or doing anything that could be called a crime?

A. From the time I became a member of the Serbian volunteer guard, I can say that it was the most disciplined and most responsible army that existed in the theatre of war.

Q. That is what my information tells me, too so I just wanted to check whether, in your opinion, as you were a participant, was any crime committed by them against the civilian population, or anything like that.

A. Throughout the duration of the operation, we didn't have any contact with the Croatian civilians, but only with our own, because these were all battles on the front line, in other words, in uninhabited areas mostly.

Q. Very well. Since in the aggression by the Croatian army in 1993 the Serbian villages suffered Islam Grcko, Kasica, and mixed villages, Murvice, Gornji Zimonjic and so on, so you came to that area to provide protection for them, preventing the possibility of the attack against Serbian villages escalating. Is that right?

A. Yes. We formed a line and we launched a counterattack to restore control over captured territory.

Q. Do you know that on that occasion some soldiers of the United Nations were killed by the Croatian side?

A. I personally did not know that.

Q. So you were in Republika Srpska Krajina at the Knin field of operations from January until March 1993, as a volunteer; is that right?

A. Yes.

Q. Is it true that this volunteer unit, and you, at the Knin theatre ¹²²⁵⁴ of operations, did not have anything to do with the JNA or the Republic of Serbia, in any sense whatsoever?

A. With the exception that there were quite a number of people from the Republic of Serbia; otherwise we had nothing to do with the Serbians, I mean our men had nothing to do with them.

JUDGE MAY: We have had a note from the audiovisual booth that the videotape has to be changed now. We would have to adjourn for that to be done. So we'll take the adjournment early. We'll adjourn now for half an hour.

--- Recess taken at 10.45 a.m.

--- On resuming at 11.16 a.m.

JUDGE MAY: Yes, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. In March 1993 you returned because of wounding, and your unit stayed behind for another two months; is that right?

A. Not because I was wounded, but an old injury. I was injured in my foot, and because of very cold whether on Mount Velebit, I started haemorrhaging.

Q. After that, you said that a unit was formed called the Super Tigers, and you were asked whether they went into action, and your answer was that in those days there were no actions. Is that right?

A. There were no military actions.

Q. Were there any other kind of actions?

A. For providing security for certain important persons, political parties, or politicians from Krajina. ¹²²⁵⁵

Q. You were then asked what kind of caps they wore. You said they wore black ones. And then they asked you to specify -- or more specifically, whether they wore red caps, and then you said that a unit called the Red Berets wore red berets, but that they were not in that area.

A. At that time they were not.

Q. Afterwards you said that they were disbanded. Some went to provide security for individuals, some were released home. Simply, the unit was disbanded.

A. Yes.

Q. You also mentioned, as far as I gathered -- you provided some certificates regarding your participation in combat. I understand that you have two certificates of some kind, and both come from the Republic of Srpska Krajina; is that right?

A. One is from the Republic of Srpska Krajina and the other from Republika Srpska.

Q. In your statement, it says that in 1994, in mid-1994, that you were ordered to report, and you corrected and you said that you were not order, that you were called, and you could have not responded. It wasn't an order; it was an offer for you to join a unit. Is that right?

A. It wasn't an order that I had to carry out. It was up to me whether I wanted to or not.

Q. So some kind of volunteer unit was being formed?

A. It wasn't the formation of a volunteer unit. It was our own unit that had been disbanded and was being remobilised. ¹²²⁵⁶

Q. Yes, but on the basis of the free will of people who wanted to participate, not on the basis of any order?

A. Of course. Not everyone responded.

Q. And there's no doubt that these were volunteers, is there? However, you say that together with that unit you went to the autonomous province of Western Bosnia, the region of Velika Kladusa.

A. Yes.

Q. And that you had several assignments over there. On page 17 of your statement, you say that Serbs from Serbia proper could not fight on the Bosnian battle fields. Is that right?

A. Not that they were not allowed to, but regular units should not have been present in the area where we were. But this didn't apply to the population of Serbs. Who wanted to be a volunteer could.

Q. I'm not talking about volunteers. Serbia has 10 million inhabitants. I'm just saying that there were no units from Serbia officially there.

A. No, they were not allowed to be there.

Q. So there's no dispute that these were volunteers. And as far as I have been able to gather, it is also not in question that this unit was engaged by the autonomous province of Western Bosnia, not to fight but to provide instructions to their combatants to assist them in their training, and not to take direct part in any kind of military activities. Is that right?

A. The assignment to give instructions came later. Initially we took part in operations. ¹²²⁵⁷

Q. Yes, but yesterday you said they didn't respect orders not to take part in operations because their task was only to assist and instruct. Is that right or not?

A. Later on we learnt that we should not have taken part in direct operations but only indirectly.

Q. In your statement, it says that you stayed there until the liberation of Velika Kladusa, but yesterday you corrected that and said you went earlier because you were wounded.

A. Yes, I was wounded on the 21st of November.

Q. Very well. While you were there, did you know anything about the situation in the region of Velika Kladusa and about the fact that the population of the autonomous province of Western Bosnia, which is Muslim, was opposing what I would call the extremist Muslim wing of the army of Alija Izetbegovic?

A. Yes. Before that, there was the autonomous region of Western Bosnia, and then the 5th Corps and the units of Alija Izetbegovic expelled them, and then came the second stage, with our instructions, when we restored control of those territories.

Q. As you were there for a couple of months, did you learn anything about the horrors committed by members of the 5th Corps of Atif Dudakovic against the Muslim population of the autonomous province of Western Bosnia against civilians and fighters of Fikret Abdic?

A. I do know that all the combatants in Western Bosnia were first captured by the corps, that they were exposed to torture, mistreatment, and that a large number of them were killed. ¹²²⁵⁸

Q. The inhabitants of Western Bosnia, were they disposed friendly towards you? Were they friendly towards you or were they giving the impression of people who were moderates, who were in favour of having a communal life, and who wanted things to become more stable, to develop the economy, for a peace agreement to be signed, anything of that kind? Did you learn about that while you were there?

A. Well, I can give you my own personal opinion, and it's this: People whose conduct was proper and who were friendly, I didn't meet anybody like that on the battlefield, even among my own people, that is to say, among the Serbs.

Q. You were asked, when we were in private session, so I don't know, Mr. May, whether we ought to go back to a private session now.

JUDGE MAY: Yes.

THE ACCUSED: [Interpretation] But I'm following the order of the examination-in-chief.

JUDGE MAY: Yes. If the matter was dealt with in private session, it should be dealt with again in private session.

[Private session]

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[Open session]

THE REGISTRAR: We're now in open session, Your Honours.

MR. NICE:

Q. You were asked some questions about the evidence that you gave of your going from Belgrade and then eventually going across into Bosnia, through Bosnia, and into Croatia to fight, and the accused suggested to you that there was no question of Serbs from Serbia proper fighting. Can I just read the two passages that touch on this in your statement? One is at page 17 and one is at page 18, and ask for your comment. On page 17, ¹²²⁹² ^{BLANK PAGE} ¹²²⁹³ the witness says this in his statement:

"We crossed the border over a bridge in the area of Bijeljina. I knew that there was an embargo and that no equipment or personnel from Serbia proper were allowed in the territory of Bosnia-Herzegovina. However, while we were waiting to cross, I heard rumours that we were waiting for Russian UN members to take their duties over at the bridge, as they could be bribed to let us cross."

You then deal with the detail of the movements. On page 18, you say this:

"Frenki ordered the Red Berets would not participate in further combat operations because we had a number of losses which were allegedly difficult to justify in reports, as Serbs from Serbia proper were not supposed to be engaged in the Bosnian battlefield." Are those two passages in your statement correct?

A. In the first portion, you said "bribed the Russians." I don't know that I said "bribed." I think I said that they should reach an agreement with the Russians about the crossing of the river. Now, in the other section where there were problems, there were problems because of the death of Colonel Mita and Colonel Kole, so it was difficult to justify, because one of them was a high-ranking official of the special police in Erdut, and his photograph came out in the obituary published by the Belgrade papers. And after the stories that were told that he was a high-ranking officer in Serbia as well, in the police force. So because of those losses, those deaths, we weren't allowed to go into direct action. ¹²²⁹⁴

Q. You were asked questions about involvement with or no involvement with the JNA or MUP, but just remind the Judges: Were you paid for the operations you were performing in this area?

A. In Kladusa, yes.

Q. Yes. And the payment you received was actually paid to you, apart from the per diems, back where?

A. Part of our salaries we received in Kladusa itself and the second half when we went back to our headquarters in Belgrade.

Q. Do you actually know yourself where those funds came from that paid you, or not?

A. There aren't any documents about it except a piece of paper which we would sign to say that we had received the money that we were given. But once again, the stories and rumours were that part of our salaries came from the MUP of Serbia, and the second part came from Arkan himself.

Q. And you were actually paid at what location?

A. I said: We were paid in part in Kladusa, and the rest of it was paid when we went on leave to Arkan's headquarters.

Q. Thank you. And then finally, about the Red Berets, a couple of things. Frenki -- have we actually got Frenki's full name from you? Do you know his full name?

A. No.

Q. The Red Berets that you saw, do you know where they came from, what was their original source?

A. I can't tell you exactly where they were stationed all the time, but the leading -- leaders of the Red Berets was linked up to Lipovacka ¹²²⁹⁵ Suma. That was the starting point. Belgrade, Mount Tara, from Tara back to Lipovacka Suma, where we would collect up our equipment and went back to Bosnia. Now, whether they had any permanent barracks or anything of that sort, I don't know, but that's where they left from, and that part of those offices were in those barracks.

Q. And do you know whether those Red Berets were members of any other group or had been members of or were derived from another group?

A. The stories going round were that the Red Berets were members of the state security of Serbia.

Q. Thank you very much.

MR. NICE: Nothing else. Thank you, Your Honour.

JUDGE MAY: Witness C-020, that concludes your evidence. Thank you for coming to the Tribunal to give it. You are now free to go.

[The witness withdrew]

MR. NICE: Can we return, when the Court is properly open, to the argument this morning?

JUDGE MAY: Yes. We'll deal with that. We've got until 1.00. We might as well start now.

MR. NICE: Very well. The argument, or the discussion of the application of 92 bis is not only important for this witness, but it's also important for the way forward generally. We are present, I should say, reviewing witnesses to come in the weeks ahead to discover how much of their evidence might properly be approached on a part 92 bis basis and then we'll be approaching crime-base witnesses and some others on the basis that they may be taken truly 92 bis. We've delayed making this ¹²²⁹⁶ first review until we've seen how these first witnesses have gone. I should say as to this particular witness, to meet one of the concerns about publicity or a public hearing, that there has been a public version of the witness statement --

JUDGE MAY: Let's get the blinds up.

MR. NICE: Your Honour, shall I carry on? There's a public version of the witness's statement filed on the 16th of October, so that the problem that sometimes has been raised about 92 bis statements being difficult for the press, and so on, to review in time is one that doesn't apply. The statement is substantially complete, with one or more minor redactions, and that was served on the 16th of October. And although the associated documents aren't yet available publicly, and although it might be administratively difficult to arrange for that to happen in advance of testimony, I can see no reason why, on a one-off basis, that shouldn't be arranged as well, were that to be judged important from the point of view of public accessibility of all this material. So far as those documents are concerned, those were served on the accused's associates. He claimed not to have had them on the 17th of October. Of course, there's a considerable amount to be read. That's one of the reasons we aren't working five days a week, because there is, of course, work to be done in the days when we aren't sitting.

So that much by way of opening observations. It seems there may be some misunderstanding, but I can't believe this to be the case, about what's intended. The position is that this witness is going to be a very substantial witness in any event. His ¹²²⁹⁷ evidence in chief, even if this part of it goes in 92 bis, is likely to occupy several days, perhaps three. The accused and the amici have been provided with tapes and transcripts of material. The transcripts are in excess of a thousand pages. They've been provided as followings: to the amici on the 20th of September, to the accused on the 2nd of October. In the course of his wide-ranging testimony, he is bound to cover and to comment on many of the matters set out in a neutral, straightforward way in the 92 bis statement. I'm not suggesting the witness won't be straightforward, but insofar as there are comments on these documents and comments on the events that are proper to come from a witness, they will come from him in his direct testimony in any event. And what we seek to do by this 92 bis application is to save probably two days of testimony, which is testimony that really puts in the basic library of documents and the basic structure of events. It is essential for some witnesses, and this is one, to have a standard library of materials to which we can all turn. The options are taking an extra two days putting the material in, which can be saved by putting it in for pre-reading in this way, and then it being easier for all of us to refer to the documents in questioning and in cross-examination.

JUDGE MAY: The issue -- two issues seem to be raised, one which is -- or may be important for the Rule, the other one which is maybe of importance to the case but doesn't strictly apply to the Rule. As I understand it, the amicus makes these points: He says, first of all, these documents relate to a central issue in the Prosecution case, namely, the creation of the SAO Krajina; and he says, secondly, as I understand ¹²²⁹⁸ it, that you should be making your case through the documents. And what I took him to mean is you should perhaps be indicating what may be of significance and what may not, as opposed to just giving us the documents to read.

MR. NICE: I'm quite sure that, as to the second point, matters of significance will be dealt with by reference to documents and/or to historical events by the witness insofar as it's necessary for our case to do so. It is not necessary for those purposes that he slavishly goes through all the documents to set out the structure, and the documents --

JUDGE ROBINSON: I don't think he has to go through all of them, but a point that I take account of is that the accused is not represented, and in considering issues of fairness, that has to be taken into consideration. It seems to me that not only is this a matter that is central to your case - and for my part, I don't consider it falls under 92 bis A(i)(b) - it speaks of matters relating to relevant historical, political, or military background, emphasis on background. This is not background. It is so central to the case, it can hardly be described as background.

But back to the point I was making. I think in assessing the question of fairness to an accused who is not represented, it is essential that he has a clear knowledge of the Prosecution evidence, and if the Prosecution witness were led and the significant points highlighted, I believe that that would be -- that would significantly enhance the whole fairness of the case to the accused. I don't believe, for from own part, that it is necessary to go through all the documents, for him to be led on ¹²²⁹⁹ all, but I think he could be led on, say, two or three from each section, and the others could be put in.

MR. NICE: I have little doubt that he will be taken through two, three, or many more, per section at some stages, but that it's not necessary - and I respectfully differ from Your Honour on this - it's not necessary to lay the material out as a single and separate methodical exercise which will simply consume a large amount of time, when that can properly be pre-read. Because the way he expresses himself in the proposed 92 bis statement is essentially neutrally and objectively. Can I come back to perhaps Your Honour's first point in a second to make this point as to the statement itself. We know from earlier 92 bis exercises that where any particular part of a 92 bis statement - which would probably be summarised as to its effect by the advocate before the document or as the document goes in - where any particular part of it is decided appropriate for evidence to be given viva voce, then that happens, and it can either happen because the Chamber or the accused makes it clear that it should happen in respect of a particular paragraph right at the beginning, or - and this might be another way of approaching this particular problem - if the statement of this particular witness, if this statement were to be accepted, pre-read by the Court, with the documents considered in advance and, as I say, the material available publicly, and if the witness's evidence is then heard in the way that we propose, lasting two or three days in chief, with a review thereafter, the Chamber might say: Yes. Well, we can now see that there's absolutely no need to go through slavishly any part of this statement, or any other of these ¹²³⁰⁰ ^{BLANK PAGE} ¹²³⁰¹ documents, save perhaps for the following. And it would be desirable to have the witness give those parts of the material live before cross-examination.

To come back, then, to Your Honour's first point. As, of course, we all understand, 92 bis's list of factors is not exhaustive and is only exemplary, and indeed the amici do not suggest that this material falls outside the provisions of 92 bis. This material is either historical or political background, in reality - and there, of course, I must respectfully differ from views already given by the Chamber - or is sufficiently analogous to it as to merit favourable consideration for the purpose of 92 bis. For what is it doing? It's simply laying down the standard documents and the standard publicly available - if I use the word "history," that's in itself tendentious - the publicly available account of the sequence of events that led to the creation of the bodies at particular dates in time.

JUDGE MAY: The argument is that this is -- it's only an argument, but the argument is that this is central to your case. Would you deal with that for us, please.

MR. NICE: Yes.

JUDGE MAY: Therefore, I suppose, the Rule should not apply.

MR. NICE: The establishment of the entities is not what's essential to this case; it's what happened once those entities were established.

JUDGE MAY: The indictment concerns various events thereafter.

MR. NICE: Yes. So it's not actually the mere establishment of ¹²³⁰² the entities themselves that was criminal or is charged; it's what people did once those events had happened and once those bodies had been established. So that we respectfully -- although these are always matters of definition and shades of grey, and so on and so forth, but we respectfully do not accept, at all, that these are themselves matters central to this indictment or to the charges against this accused. Your Honour, for those reasons, we would say that this is material that really must be taken, or should be taken, in a way that will save time, bearing in mind that there are all the safeguards available should the Chamber subsequently think: Well, maybe either generally or maybe in respect of this paragraph or that, it would be better to have the evidence live from the witness before cross-examination, or even afterwards. There is no prejudice the accused in a position to cross-examine. He's been given the longest lead time that we've been able to arrange for him to review the material. His associates have got the documents so that they can review them. No prejudice. His cross-examination time will of course be limited, but although the Chamber has recently generally applied a policy whereby time for cross-examination is matched to the time taken in evidence in chief, the reality is that time, whether greater or lesser than the amount taken in chief, has to be related to the needs of the accused to deal with the case against him. And therefore, I'm sure the Chamber won't deprive the accused of an adequate opportunity to deal with all the evidence of this forthcoming witness, the evidence live and, as we would suggest, the evidence that can be presented in advance, in writing, in this form. And ¹²³⁰³ Your Honour will not be surprised to know that I would urge on the Court the appropriateness of the observations Your Honour Judge May made - I'm not suggesting as other than a proposition for consideration - arguments about how we must find ways, in a case like this, of being efficient and innovative, and how indeed there is no necessary advantage of oral evidence over written evidence in relation to matters of this kind. Oral evidence is, of course, important where issues of credibility arise. On these matters, which are, for the most part, if not almost completely, matters of public record, the credibility of the witness is hardly likely to be an issue at all, much more so, of course, where he starts to comment on these events, which he will be doing in his evidence live in any event. So, Your Honour, unless either of my colleagues thinks there's anything else I should add, this is an exercise that would assist the Chamber by providing it in advance with necessary detail, will save a considerable amount of time, will create no prejudice, and if in the event it's thought to be an exercise that went too far in respect of this paragraph or that, can be put right on the day.

JUDGE KWON: So the only concern is -- for the Prosecution is time, to save time?

MR. NICE: No. First of all, if a primary concern of the Prosecution was to save time, I don't think that the Chamber would probably criticise us for that, because I understand that the Chamber is itself very concerned with the saving of time, so it's pretty high on our list of priorities. But I think in addition to that, we take the view that with cases of this scale and complexity, it is important in the ¹²³⁰⁴ overall management of the case that we use the appropriate methods for having evidence considered. 92 bis provides, for example, through this witness, one method whereby in a modern court, and without a jury, with literate Judges - I don't mean that in any offensive sense, but I mean absolutely literate Judges, able to consume large quantities of material swiftly - it is simply paying artificial respect to perhaps procedures that are inappropriate and rooted in another age to think that every word has got to be given live in court. In a modern scientific age, I don't think anybody would really argue that that is the most efficient way of dealing with things.

JUDGE KWON: Just let me raise this before we adjourn, before we rise. In terms of time, as you know, this Trial Chamber is allowing the accused, for the time of his cross-examination, the same time as the time spent by the Prosecutors for his examination-in-chief. So if a part of evidence of a witness would be given in the form of 92 bis, the accused might be given less time than when we would have heard the witness live. So I wonder -- I wonder that the Prosecution has that in mind and whether the Prosecution has been requested for such arrangement by the witness.

MR. NICE: Absolutely not. We have it in mind. I've addressed it already, and we're going to come to it again in due course, perhaps in another setting. My understanding is that with an accused who is not represented and who has taken the attitude this accused has to this Chamber, that the equality of time for examination-in-chief and cross-examination is largely a rule of thumb which applies where there is no reason for an exceptionally long period of time to be granted to him. ¹²³⁰⁵ Where material goes in by 92 bis, of course different considerations arise. And as I've already suggested, the true measure of time that the accused must have is the amount of time that he needs, given the evidence that is before the Court from the particular witness. And so --

JUDGE MAY: I don't think it's thought a difficulty. We could extend the time for correction if cross-examination, if approved, if we thought it right, if the statement was admitted under 92 bis, but we really have to get away from some very outmoded practices which require all evidence to be given orally when there's very little point to it. Now, there's one minute left. Mr. Kay seems to be anxious to say something.

JUDGE KWON: Just a second. You expect two days for examination-in-chief?

MR. NICE: No. Three days as it is. With this material, another two days, perhaps up to five days in chief will be required for this witness.

JUDGE KWON: Thank you.

JUDGE MAY: Yes.

MR. KAY: I can see in the Prosecutor's presentation that there are a large number of documents that they could skim over which would take a very short period of time, such as the appointment of ministers. But documents concerning the statute --

JUDGE MAY: Such as the statute. Why do we need to have evidence given about the statute? Just produce it.

MR. KAY: The statute and the constitution, as I understand it, is ¹²³⁰⁶ going to be evidence that he's giving anyway, and this particular witness is going to be dealing with that anyway. So taking it out of this section, I'm not really sure what's happening there, because the Prosecution have said quite clearly that he is going to be referring to these documents.

JUDGE MAY: Is there any reason why, if we can reach some sort of sensible compromise about this, with witnesses going on as long as this, is there any reason why this evidence shouldn't be led, if you're trying to insist that it all be given, led in the literal sense?

MR. KAY: We have relaxed rules about that, and a vast many of those documents can be dealt with in that way, as I say. But there are other documents which are very particular to the indictment. If we look at paragraph 6 of the indictment, we can see how the case is put there: Forcible removal of the majority of the Croat and other non-Serb population to become part of a new Serb-dominated state through the commission of crimes in violation of Articles 2, 3, and 5. These areas included those regions that were referred to by Serb authorities.

JUDGE MAY: What would be helpful is for you to identify the documents which you say are of significance in this. And since we're not sitting tomorrow or Friday, you can do that, and we'll give our decision on Tuesday morning, as it will be.

MR. KAY: Yes.

JUDGE MAY: Because it's important that this is -- opposed to a generalised argument. If you're right that there are specific documents which should be dealt with by live evidence, then they should be ¹²³⁰⁷ ^{BLANK PAGE} ¹²³⁰⁸ identified. At the moment, speaking for myself, I'm not with these generalised arguments that evidence should be given orally when it doesn't seem to be necessary, but it may be that there are some specific documents about which evidence should be given, and of course we would look at that.

MR. KAY: Yes.

JUDGE ROBINSON: Particularly, also if you could relate it to the indictment, as you just did.

MR. KAY: Yes.

JUDGE MAY: Very well. We'll adjourn now. Tuesday morning.

--- Whereupon the hearing adjourned at 1.02 p.m., to be reconvened on Tuesday, the 29th day of

October, 2002