²⁸³⁰⁹

Thursday, 30 October 2003

[Open session]

[The accused entered court]

--- Upon commencing at 9.04 a.m.

JUDGE MAY: Yes, Mr. Nice.

MR. NICE: Call Mr. Blewitt, please. I trust that the Chamber has been provided with a revised version of Exhibit 315, that exhibit having been revised with the agreement of your legal officer to make it more useful for the purposes of this evidence.

[The witness entered court]

JUDGE MAY: Yes, we have it, thank you. If the witness would take the declaration.

THE WITNESS: I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth.

JUDGE MAY: Thank you very much. If you'd like to take a seat.

WITNESS: GRAHAM BLEWITT

MR. NICE: Your Honour, the witness statement of Mr. Blewitt, in both English and B/C/S, the English version signed as long ago as October of last year, produces the correspondence that he's going to deal with. For consistency, I could ask that his signed statement be his evidence in chief. In reality, nothing is going to happen apart from production of the statements -- of the correspondence, but --

JUDGE MAY: Yes. It may be helpful if briefly you just went through it, producing it.

MR. NICE: Yes, very well. ²⁸³¹⁰ Examined by Mr. Nice:

Q. Mr. Blewitt, I think that you made a statement a long time ago now, in 2002, about the correspondence in respect of which you are here to give evidence.

A. Correct.

Q. And that statement that you signed was true?

A. It's true and correct.

MR. NICE: If appropriate, may that be given an exhibit number.

THE REGISTRAR: 580, Your Honour.

MR. NICE:

Q. If you would then turn, Mr. Blewitt, to what is an exhibit in the case. It was Exhibit 315, produced by the witness John Zdrilic. When produced it was slightly out of order and there was one additional piece of correspondence that needed to be added to it so there is now a revised and re-ordered index 315. Have you had an opportunity to consider that --

A. I have, yes.

Q. -- overnight?

THE INTERPRETER: Microphone, please, Your Honour. Microphone.

MR. NICE:

Q. You're here at the request of the accused, and indeed at the suggestion of the Trial Chamber, to deal with some correspondence. The position is, Mr. Blewitt, that you've been the Deputy Prosecutor here at the ICTY since the start of the Tribunal in February 1994.

A. February 1994, correct.

Q. You've served under three Prosecutors; Mr. Goldstone, Louise ²⁸³¹¹ Arbour; and Carla Del Ponte.

A. Correct.

Q. In your capacity as Deputy Prosecutor, you are acquainted with correspondence going in and -- coming in and going out of the office?

A. Yes, on a daily basis.

Q. And as to the particular correspondence that you're going to deal with, one of the items was written by you and the others you're familiar with?

A. That's correct.

Q. We can look at them, but very briefly because they've already been examined, look at them briefly in order to give some context to those viewing the proceedings. And if the usher would be good enough to place the relevant pages on the overhead projector as we come to them. Tab 1 of revised Exhibit 315 is a letter of the 17th of March of 1998 from the then-Prosecutor Louise Arbour direct to the accused. It's the only letter that -- one of perhaps two letters I might ask for just a little detail on. If we look at it on the overhead projector to see its structure.

On page 1 - thank you very much - addressed to the accused and dated 17th of March. It says that she, the Prosecutor, is gathering information in relation to developments in Kosovo to determine whether there are grounds for believing that crimes within the jurisdiction of the Tribunal have been committed or may be in the course of being committed. And in the second paragraph makes clear that she's addressing a request for assistance directly to the accused although forwarding the ²⁸³¹² correspondence through the normal channels.

A. That's correct.

Q. In the next paragraph but one, she says she is seeking information from a variety of sources in respect to recent events. And in the following paragraph requires from him a report setting out names of persons killed in Kosovo in March 1998, names of persons arrested, detained, or deprived of liberty in the same month, and details of those who have been charged and decisions of judicial bodies, names of persons injured in Kosovo in March 1998 as a result of acts by any member of a military, paramilitary, police, civilian, or other authority for the Federal Republic of Yugoslavia or the Republic of Serbia. And if we go over the page, please. Further seeking from the accused the names of any persons sexually assaulted. Next bullet point, those forcibly transferred. Next bullet point, details of expropriated property in Kosovo.

And she went on to say that the purpose of determining -- the purpose of all this was to determine whether there was an armed conflict -- beg your pardon: For the purposes of determining whether there was an armed conflict. She also requested the government to provide her with information about the composition, strength, command structure, et cetera, of forces opposing the government forces in Kosovo, detailing their arms, control over territory, and any information relating to the record of compliance with international humanitarian law by opposing forces.

A. That's correct.

Q. So that asking for information from both sides of any conflict ²⁸³¹³ that may have been in existence.

A. Correct. That was the letter signed by Prosecutor Louise Arbour on the 17th of March, 1998.

Q. Thank you. Tab 2 is not something you can deal with. It's been included because it's part of the original exhibit. It's a statement from the federal government.

Tab 3 is a letter from the former Prosecutor to the accused, dated the 15th of October of 1998, explaining that she wishes to resume investigations at the earliest -- in Kosovo at the earliest opportunity, and she proposes to lead a team, including yourself and others. Next paragraph, it's her intention to visit areas where some of the crimes are alleged to have been committed and to meet with government and other officials.

Next paragraph, seeks visas. And that was a letter of the 15th of October.

A. That's correct.

Q. Tab 4, then, please. A letter from Zoran Knezevic from the Federal Republic Minister -- Ministry of Justice, 4th of November. One minute. He refers to the letter of the 15th of October, and in the next paragraph sets out a position saying that the republic was faced with terrorist actions of bandit gangs. Further down, four lines from the bottom of that paragraph: "Police activities were successfully completed on the 29th of September --" six lines, actually -- "when peace set in." Next paragraph, please, Usher. Thank you very much. "There was no war in Kosovo and Metohija. Terrorist groups, made up of criminals and ²⁸³¹⁴ religious fanatics have never been organised under a Joint Command." And then at the foot of that paragraph, he says: "We, therefore, accept cooperation with the Tribunal, but do not accept its jurisdiction concerning events in Kosovo and Metohija, since there was no war there." If we can go to the next page. He asserted at the top of that page that the competent state authorities are investigating crimes committed during terrorist attacks. He sets out the chapter of the legal -- the Federal Criminal Code, and said that, "... each individual case, without exception, will be the subject of detailed investigation," asserts that there will be maximum transparency of court proceedings, and that the International Committee of the Red Cross is guaranteed access. On the next paragraph, he says how experts from other countries - I think it was from Finland - have accepted an invitation to assist experts in forensic scientific exercises. And in the last paragraph asserts that the Federal Republic was fulfilling its international obligations, showing readiness to continue a successful cooperation established by mutual agreements with the International Criminal Tribunal.

A. That's correct.

Q. And that letter was received in the Office of the Prosecutor.

A. Correct.

Q. The next tab, tab 5, is a statement from the federal government which you can't deal with, it's just in the exhibit. And we come then to tab 6, which is the document that's been added to Exhibit 315 and was not formerly before the Trial Chamber. It comes from Milan Grubic, and he here in The Hague as the ambassador. And it ²⁸³¹⁵ says in the first paragraph that he has the pleasure of informing Justice Arbour, having in mind her intention to participate in a conference on international criminal law, that there will be one visa entry or one visa for a seven-day entry made available to her and to the delegation. The penultimate paragraph of this letter says that he confirms again the readiness of the Federal Republic of Yugoslavia to cooperate with the ICTY, which has been expressed and realised in practice. In the last paragraph, says that as security will be guaranteed, ICTY security officers will not be allowed to carry weapons. So by this letter, Mr. Blewitt, is it right that you were provided or going to be provided apparently with visas but for an entirely limited purpose?

A. That's correct. And there's also a paragraph there that indicates that the Federal Republic of Yugoslavia did not accept any investigation by this Tribunal into Kosovo, and generally certainly not during her stay in the Federal Republic of Yugoslavia.

Q. Thank you. My error to have overlooked that in summarising the document.

Tab 7, please, is a letter sent by the then-president of this Tribunal, Gabrielle Kirk McDonald, dated the 6th of November of 1998. Perhaps you'd like to summarise the effect of this one if you can, as I think you're familiar with it.

A. Yes. This -- the letter was forwarded by the then-president of this Tribunal to the president of the Security Council at the request of the Prosecutor, and that was also as a consequence of the previous letter ²⁸³¹⁶ where the Federal Republic of Yugoslavia had refused to grant visas to the Prosecutor and her staff for the purposes of carrying out investigations in Kosovo. And as a consequence, the president of the Tribunal was advising the Security Council of the failure of the Federal Republic of Yugoslavia to comply with its obligations towards cooperation with the Tribunal.

Q. If we look at the second page of the letter, you can see as an example of the things that she was referring to there, at the top of the page she says this: "As recently as last month -" third line down - "I addressed the Council regarding the failure of the Federal Republic of Yugoslavia to arrest and transfer to the custody of the Tribunal three persons indicted by the Tribunal on the 7th of November, 1995." Were those three persons the persons known as the Vukovar three?

A. Correct.

Q. Thank you very much. Tab 8, then, please, a letter from Justice Louise Arbour of the 6th of November of 1998 to Mr. Knezevic at the Ministry of Justice, acknowledging receipt of his letter. Second paragraph, taking note of his statement that we can't accept cooperation -- we accept cooperation but don't accept jurisdiction, she drawing to his attention that that assertion is not consistent with international law.

In the next paragraph setting out her, the Prosecutor's, mandate, and drawing to his attention the particular requirements of the Geneva Conventions and the significance of an internal armed conflict for other potential charges, concluding that paragraph by saying that investigations ²⁸³¹⁷ are clearly required.

In the following paragraph explaining the Security Council's reaffirmation of the jurisdiction of the Tribunal, and in the next paragraph saying: "Whether or not the Prosecutor has jurisdiction to conduct these investigations, and to produce indictments where the evidence so warrants, is not a matter which falls within the authority of any State to determine and act upon unilaterally. Such a determination is of a judicial nature and can only be made by the Tribunal itself, upon hearing evidence or representations by the Parties formally in court." That letter then 6th of November.

A. That's correct. Forwarded to Justice Minister Knezevic in Belgrade.

Q. We then, please, come to tab 9, which is a letter of the 2nd of February of 1999, sent to Zoran Knezevic by yourself because I think the Prosecutor was away. The letter addressed to the ambassador here in The Hague says you will be grateful for the assistance of the embassy in forwarding the enclosed letter including the Prosecutor's request under Rule 7(B) to Mr. Knezevic.

Then we turn over the page to the next document which is a letter of the 2nd of February as follows: "Dear Mr. Knezevic, I refer to previous conversations that you had with the Prosecutor concerning her investigations into the events in Kosovo. On the Prosecutor's behalf and in her absence overseas, I forward herewith for your information a request under Rule 70 [sic] bis (B), that the president notify the Security Council of the failure of the FRY to comply with its obligations under ²⁸³¹⁸ Article 29 of the Statute..."

The next paragraph: "In her conversations with you, the Prosecutor has expressed a willingness to participate in the litigation of the legal question concerning the Tribunal's jurisdiction over Kosovo. To this end, if you desire to argue this question in open court before the President, the Prosecutor would not oppose such an application."

A. That's correct.

Q. Following --

A. Except that the rule, I think, was pursuant to Rule 7 bis (B), not 70.

Q. 70, yes, 7 bis (B), my misreading of it. If we look at the next bit of this tab, it's a comparatively substantial report and we don't need to go into it in detail, but its overall structure may be of assistance to the Tribunal and those viewing it.

The first page, which is numbered 2 at the foot, sets out the nature of the request being made, and if we go to the second page, which is page 3 at the foot, but right on the screen at the moment -- where you were before, that's fine. Right at the bottom. No. At the top. That's fine. Just absolutely fine.

"That is after a conducting a reasoned evaluation of information received, the Prosecutor has decided the information is credible and tends to show that crimes within the jurisdiction of this Tribunal may have been committed in Kosovo. The Prosecutor need make no further determination to initiate an investigation." ²⁸³¹⁹ Now, the following pages, which are numbered pages 3 to 8, set out the background to the request. Mr. Blewitt, you've read this overnight, I think, or reminded yourself of it overnight. This refers, amongst other things, to the events in Racak?

A. Correct.

Q. And does it also cover issues of compliance or non-compliance?

A. It does.

Q. Setting out the sorts of non-compliance complained of?

A. Correct.

Q. Then if we go to page 8, at the foot, we see a summary of the decision that a sufficient basis exists to initiate an investigation.

A. Correct.

Q. There's nothing I need to draw to the Chamber's attention in respect of that.

The next passage starts at page 11, paragraph 13. This is offences within -- it's headed Offences Within the Jurisdiction of the Tribunal, and it says, as we can see in the middle of the screen: "Second, credible information tends to show that events in Kosovo which have occurred and continue to occur may constitute serious violations of international humanitarian law."

And if we could please go to the next page, and at the foot of it, paragraph 15: "While the Prosecutor has determined that the information she has received tends to show that crimes within the jurisdiction of this Tribunal may have been committed in Kosovo, she is not nor can she be, in a position now to determine exactly which Articles of the Statute may have ²⁸³²⁰ been violated. It is to determine, with the requisite degree of certainty, whether or not evidence will prove the commission of offences in violation of one or more punitive Articles of the Statute of the Tribunal, that the Prosecutor has initiated an investigation into the violent events in Kosovo."

A. Correct.

Q. The next passage of the report deals with the question of the existence of an armed conflict, and that goes on from page 13 to page 16, and there's nothing I need to ask you about that. If we could go, however, to page 16. At the foot of page 16 we see a summary of the evidence upon which this report is founded. And if we then turn over to page 17, just by way of example, paragraph 24 speaks of, "As shown in the following paragraphs, the violent clashes between armed forces -" it specifies those forces - "reached its climax only in 1998. Information, however, in particular from intergovernmental and non-governmental organisations record a long history of serious violation of human rights."

Then the next paragraph records a condemnation of violations of human rights in Kosovo by the UN General Assembly in December 1996.

A. Correct.

Q. Paragraph 26 deals with a visit in October 1997 by Mrs. Rehn, UN Special Rapporteur, and her findings and conclusions and information. Go over the page, please. Paragraph 27: "The occurrence of this violence, whose origin is, as has consistently been pointed out by most available sources, not limited to the Serbian side, is confirmed by the ²⁸³²¹ Federal Republic of Yugoslavia. Its Minister of Justice admitted in his letter of 24 March 1998 to the Office of the Prosecutor that 'In the course of the last few years, the province of Kosovo and Metohija, in the south of Serbia, a large number of terrorist acts have been carried out.'"

A. Correct.

Q. So that the report is dealing with matters on both sides. Paragraph 28 turns to the words of the comprehensive report prepared by Human Rights Watch and sets out quite a lot of material from that on that page and on the following page?

A. That's correct.

Q. We go over to page 20. The report refers to the report of the Secretary-General pursuant to Resolutions 1160 and 1199 of the 3rd of October, 1998. We can see the conclusions there. For example, if we turn over to page 21 and look at the foot of that page: "I am outraged by reports of mass killings of civilians in Kosovo, which recall the atrocities committed in Bosnia and Herzegovina. Following reports concerning the killing of 20 Kosovo Albanian internally displaced persons in Gornje Obrinje in the central Drenica area on 28 September, a Kosovo Diplomatic Observer Mission team witnessed at least 14 bodies, some severely mutilated. Most were children and women at ages ranging from 18 months to 95 years. The Serb authorities denied any involvement of the police force in these atrocities."

We go over the page. We see the same report deals with the other side of the picture, at the top of the page, recording: "While the victims of the conflict are overwhelmingly ethnic Albanians, Kosovo Serbs ²⁸³²² are suffering as well," and goes on to deal with that.

A. Correct.

Q. So the report that you were sending on behalf of the OTP attempting to be evenhanded, Mr. Blewitt?

A. I would say that, yes.

Q. Thank you. Page 23 of the report, paragraph 31, reference to Racak, and the position of Ambassador William Walker is set out.

A. Correct.

Q. And over the page at 24, paragraph 32, reactions of the international community provide further indicia for the existence of an armed conflict.

A. Correct.

Q. Again, make sure that we have both sides in mind, paragraph 33 towards the foot of this page: "Public information tends to show that the Kosovo Liberation Army may be considered as the main and sufficiently organised and responsible armed group in the violent opposition to the military and police forces of the Federal Republic of Yugoslavia ..."

A. Correct.

Q. And then if we go over to page 26, we see the conclusion of the Prosecutor at paragraph 36. Thank you very much. "The Prosecutor concluded that the information was credible and tended to show that crimes within the jurisdiction of the Tribunal may have been committed in Kosovo. In particular, the Prosecutor concluded that credible information tends to show that an armed conflict may exist in Kosovo, and that fighting was and is going on between two sides: military and police forces connected to ²⁸³²³ the Federal Republic of Yugoslavia and/or the Republic of Serbia on one hand, and armed and organised units and groups, including the KLA, associated with the Kosovar Albanian community on the other. The level and intensity of violence used by the armed groups involved may be illustrated by the resort to the armed forces by the Federal Republic of Yugoslavia, but also by the devastating impact on the civilian population, and is further evidenced by the involvement of the international community."

A. Correct.

Q. So that was the report that you sent on the -- or in the absence of the Prosecutor?

A. That's correct.

Q. Tab 10 is a document you can't deal with but it comes from the original exhibit.

Tab 11, the 26th of March of 1999, from the Prosecutor to the ambassador here in The Hague, Milan Grubic, asking that he should convey the attached letters as a matter of urgency to the accused in this case and to other listed senior officials in the Federal Republic of Yugoslavia for whom they are intended.

A. That's correct.

Q. Is she making it clear that she was going to make public the fact that these letters were being sent?

A. That's correct.

Q. We come to the very last letter in the exhibit with which we are concerned, tab 12, her letter of the 26th of March to this accused. ²⁸³²⁴ The first paragraph saying: "As you will be aware, the failure of the Federal Republic of Yugoslavia to cooperate with my office regarding the investigation of war crimes in Kosovo has been reported by the Tribunal's President to the Security Council of the United Nations. Not only have my investigators been denied access to Kosovo to conduct their own on-site investigations, the departure of the personnel of the OSCE Kosovo Verification Mission has meant that the presence of independent observers has been severely curtailed.

"In that context, and in the light of current reports of escalating violence in Kosovo, I am gravely concerned that serious violations of international humanitarian law continue to be committed. Lest you be in any doubt as to the relevant law, a copy of the salient portions of the text of the Statute of the International Tribunal is attached for your information."

She sets out the jurisdiction, and in the next paragraph says: "It is my intention to investigate all serious violation of international humanitarian law that merit prosecution in the international forum, particularly those involving attacks on the civilian population. Meanwhile, I believe that everything must be done to deter the commission of future crimes. I therefore look to you to exercise your authority over your subordinates; to exercise your leadership in order to prevent the commission of further crimes; and to take all necessary steps to punish any of your subordinates who commit serious violations of international humanitarian law in Kosovo."

So, Mr. Blewitt, between March 1998 and March 1999, in summary, ²⁸³²⁵ had the OTP been doing all that it could properly to investigate matters that were coming to its attention from a variety of sources?

A. That's correct, yes.

Q. And in your judgement, had the accused been put on notice but -- directly by the first and last letters but of course by the intervening letters going to other officials, of the state of knowledge of the OTP at that time?

A. Absolutely correct, yes.

Q. Thank you very much. If you wait there, you will be asked further questions about these letters.

JUDGE MAY: We will tidy up the new Exhibit 315. I request the registry to substitute the new index and exhibit as it appears here. Mr. Milosevic, it's now your opportunity to cross-examine. Cross-examination of this witness is limited to those matters which are dealt with in the examination-in-chief, so the scope is limited. The reason is this: The witness has been brought here purely to produce these documents and correspondence. It was done because you will remember that when the earlier witness, an investigator, did so -- or attempted to do so, it was not considered right. The Trial Chamber thought that a more senior representative of the Office of the Prosecutor should be present so that you would have the opportunity to cross-examine him about these particular matters.

So it is your opportunity to cross-examine him, but I warn you that the scope is limited, as I have said, to the matters covered in the examination-in-chief. ²⁸³²⁶ Very well.

THE ACCUSED: [Interpretation] I assume, Mr. May, in view of the fact that a moment ago Mr. Nice stated by commenting various letters that were exchanged between Mr. Blewitt, Ms. Arbour, and the government of Yugoslavia, that this side behaved objectively and without bias. In addition to the letters that you are limiting me to, surely you cannot restrict my right to call in question the objectivity and lack of bias or, rather, the credibility of the side which is represented in this case both by Mr. Blewitt and by Mr. Nice --

JUDGE MAY: Yes.

THE ACCUSED: [Interpretation] -- as they are testifying about themselves.

JUDGE MAY: You have heard the ruling. It is limited to the questions relating to the examination-in-chief.

THE ACCUSED: [Interpretation] I was just saying that during the examination-in-chief, Mr. Nice said and highlighted the objectivity of what Mr. Blewitt is representing here.

JUDGE MAY: He did not raise -- did he not raise any issues in relation to objectivity. He merely commented on the letters. Now, it's your opportunity to do so. Questions about the objectivity are irrelevant.

Now, Mr. Tapuskovic, I really don't think you can be involved in this, please.

Yes.

THE ACCUSED: [Interpretation] Mr. May, are you prohibiting me from ²⁸³²⁷ calling in question or challenging the credibility of this witness?

JUDGE MAY: Yes, I am. Now, move on.

THE ACCUSED: [Interpretation] Mr. May, we have here a document, your document with all your markings, and it is called Final Report Submitted to the Prosecutor by a Commission Founded to Review the NATO Bombing Campaign of Yugoslavia and which the witness has --

JUDGE MAY: Yes. This is the whole point of what I've been trying to explain to you and obviously failing. That is irrelevant to these questions. Your questions are limited to the scope of the examination-in-chief. It's not to be a wide-ranging opportunity for you to question the bona fides of the Prosecution.

If you have any questions about these letters, you can ask them. Otherwise, I will assume you don't have any.

THE ACCUSED: [Interpretation] Mr. May, I do indeed have questions, and you will not be able to deny that this can be linked with the letters of Ms. Arbour.

Cross-examined by Mr. Milosevic:

Q. [Interpretation] In view of your own criteria, Mr. Blewitt, and in view of the fact that in the letter that Louise Arbour sent to me on the 26th of March, 1999 -- so, Mr. May, I'm referring to the letter -- it says that there is a responsibility with the people holding responsible positions. Will you please explain the following, because this letter says that there is responsibility on people with responsible positions.

JUDGE MAY: Let the witness have the document. It is our tab 12.

MR. MILOSEVIC: [Interpretation] ^{28328 BLANK PAGE 28329}

Q. This letter says that people in responsible positions have responsibility. So will you explain to me the following: In your report, which I have here --

JUDGE MAY: Which report are you referring to?

THE ACCUSED: [Interpretation] This report submitted by the Commission Founded to Review the NATO Bombing Campaign of Yugoslavia. It says quite the opposite.

JUDGE MAY: Irrelevant. Irrelevant. Now, what is the question that you have in relation to this? Just refer us to the document, will you, tab 12, and tell us what passage you're asking about. I haven't found it yet.

THE ACCUSED: [Interpretation] Mr. May, Ms. Arbour says that there is responsibility of individuals including persons in position of authority. You can find that in the letter. And in this document which I am quoting from, it says --

JUDGE MAY: No. I've told you. I've told you. Deal with this document. Where does it say there are positions of responsibility? Which paragraph are you referring to in tab 12?

MR. NICE: I think it's the last paragraph, the passage I read, the end or penultimate line or thereabouts.

JUDGE MAY: What does it say? "I therefore look to you to exercise your authority over your subordinates, to exercise your leadership," et cetera.

Yes. What is your question about that, Mr. Milosevic?

MR. MILOSEVIC: [Interpretation] ²⁸³³⁰

Q. My question is: Mr. Blewitt, in your letter or, rather, the letter signed by Ms. Arbour, you say that persons in positions of authority have responsibility. How is it possible that in your review of the responsibility of NATO for its aggression against Yugoslavia, you say on page 40 --

JUDGE MAY: Well, that's irrelevant. It doesn't matter about that. You're now trying to set up some sort of argument that the OTP, I suppose, the Prosecution have written in different terms than somebody else. Whether that's true or not, I don't know. It doesn't matter. As far as this witness, Mr. Blewitt, is concerned, he is dealing with this correspondence alone. He's not here to be argued with about different OTP letters.

Now, it's up to you. If you want to call some evidence about that document, of course you can do so in due course. You can ask a question about the letter, of course, but an argument about some other document is irrelevant.

THE ACCUSED: [Interpretation] The arguments are from a document coming from the same source, and they are in contradiction with what is stated in the letter. And I don't understand.

JUDGE MAY: Have you any other questions or not? It's very simple. If you don't ask questions as you're ordered to by this Court, then you will not be allowed to ask questions.

THE ACCUSED: [Interpretation] Mr. May, a moment ago, Mr. Nice quoted this letter dated the 26th of March.

JUDGE MAY: Yes. We've heard this argument. There's no point. ²⁸³³¹ Let's move on to something else.

MR. MILOSEVIC: [Interpretation]

Q. In that letter, is it clear, Mr. Blewitt, that this letter was sent two days after the beginning of the NATO aggression on Yugoslavia, which started on the 24th of March?

A. I can't remember the day that the NATO bombing commenced. I take your date as being accurate. If that is an accurate date, then yes, this letter would have been sent two days after the commencement of that bombing.

Q. And in the letter, as you yourself can see, it is stated that the violence in Kosovo is intensifying. Isn't that right, Mr. Blewitt?

JUDGE MAY: In which letter? Yes. Second paragraph, tab 12.

MR. MILOSEVIC: [Interpretation]

Q. This is stated in the letter of the 26th of March. Is it clear, then, that the violence in Kosovo is escalating due to the beginning of the aggression of NATO against Yugoslavia?

JUDGE MAY: No. This is not what the witness is going to deal with. Now, if you -- if you want to ask questions about these documents, you can, but we're not going to go on like this because it's pointless. The witness isn't here for a free-ranging attack on the Prosecution, which no doubt you wish to launch. He's here purely to deal with these letters.

THE ACCUSED: [Interpretation] I too am talking about the letters, Mr. May. I'm also referring to those letters. I don't see that there is any possibility of you not allowing me to offer arguments to show the lack of truthfulness in these letters on the part of this same subject who is ²⁸³³² sending those letters.

JUDGE MAY: I have just ruled, and instead of arguing with the ruling, you'd be better doing some cross-examination on the relevant matters.

Now, if you propose to ask some questions about them, you can, but any questions about NATO are irrelevant as far as this witness is concerned.

THE ACCUSED: [Interpretation] Mr. May, I can understand your sensitivity to any mention of crimes committed by NATO against Yugoslavia.

JUDGE MAY: That is a totally improper remark, as you know. Now, we're not going on like this. Either you're going to ask some relevant questions or we're adjourning, and that's the end of it.

THE ACCUSED: [Interpretation] I consider these questions to be relevant, and I link them --

JUDGE MAY: You've been told that the Court does not, and you must be governed by that.

THE ACCUSED: [Interpretation] Very well. I'll come back to that.

MR. MILOSEVIC: [Interpretation]

Q. You quoted, for example, the letter of the justice minister, Mr. Knezevic - I assume I can refer to that at least - in which he says that Yugoslavia does not accept the jurisdiction of the Tribunal in connection with the events in Kosovo and Metohija.

Mr. Blewitt --

MR. NICE: I think this is tab 4.

MR. MILOSEVIC: [Interpretation] ²⁸³³³

Q. -- you're an international lawyer, aren't you? You specialise in international law?

A. I was admitted to practice law in Australia. Primarily I've practised in criminal law. I don't hold myself out as being an international law expert.

Q. But now you are holding a position to which you were appointed on the basis of a decision of the Security Council, isn't that right, when this Tribunal was established, as it is called.

A. I was appointed by the Secretary-General of the United Nations after this Tribunal had been created by the Security Council.

Q. Very well. You just mentioned that the Security Council established this Tribunal. Are you aware, as a lawyer, that the Security Council has no authority to set up any Tribunals?

JUDGE MAY: No. This isn't for the witness. It is a matter we've already ruled on. It's a matter of law.

THE ACCUSED: [Interpretation] Mr. May, if you remember, I requested that in connection with this legal matter, you ask for an advisory opinion of the International Court of Justice, which has the competence to deal with legal matters. Of course you didn't do that because you know full well that the opinion of the International Court of Justice would be that you are an illegal court.

JUDGE MAY: You made that point a great many times. We've heard it. We take no notice of it. Now, let's find a question which the witness can answer.

THE ACCUSED: [Interpretation] It appears that the witness can only ²⁸³³⁴ answer questions as to whether those letters were sent or not.

MR. MILOSEVIC: [Interpretation]

Q. Mr. Blewitt, is it clear from the letter by Minister Knezevic in response to your letter that he says that you have no jurisdiction over the events in Kosovo? And I quote from this letter: "In the course of this year, the Republic of Serbia was faced with terrorist actions of bandit gangs in a part of Kosovo and Metohija where a large number of terrorist attacks were carried out against citizens of all nationalities, representatives of the authorities, and particularly law enforcement officers. Those gangs committed grave crimes against citizens belonging to all national communities. As a result of a decisive police action, their activities were put under control and their core groups destroyed. Police activities were successfully completed on the 29th of September, since when it has been peaceful in the entire territory of Kosovo and Metohija. The citizens who were forced to temporarily leave their homes due to terrorist attacks are now returning and economic, social and public life in Kosovo and Metohija is being normalised rapidly." And then it goes on to say: "There was no war in Kosovo and Metohija. Terrorist groups made up of criminals and religious fanatics have never been organised under a Joint Command, neither have they controlled the territory nor respected basic laws of humaneness, nor could they have been considered an army on any grounds. The international community has also clearly defined the actions of these groups as terrorist ones."

Are you aware of that, that the international community also ²⁸³³⁵ qualified these actions by these groups as terrorist acts?

A. First of all, it is clear that Minister Knezevic did report those matters in this letter to former Prosecutor Louise Arbour. I can't recall specifically now what the international community had been saying in respect of the events that were occurring in Kosovo in terms of the alleged crimes being committed by the Kosovar Albanians, whether they were described as terrorist or not. I just cannot recall that at this stage.

Q. Well, Mr. Blewitt, I will remind you. From Resolution 1160 of 1998, and it says adopted by Security Council at its 3868th meeting, on the 31st of March, and it says: "Clearly acts of terrorism by the Kosovo Liberation Army or any other group or individual and all external support for terrorist activities in Kosovo including finance, arms and training," et cetera.

And then later on it says again: "... calls upon the Kosovo Albanian leadership to condemn all terrorist actions and emphasises that all elements in the Kosovo Albanian community should pursue those goals by peaceful means only."

And then again in point 3 underlines that the way to defeat violence and terrorism in Kosovo, and so on and so forth. So several times in the Resolution 1160 there is this reference. Then again in Resolution 1199 of the 23rd of September, 1998, condemning all acts of violence by any party, as well as terrorism in pursuit of political goals by any group or individual.

That is written in the following Resolution, 1199. And then in point 6 of that Resolution it says again that -- it insists that the ²⁸³³⁶ leadership -- let me read it in the original: "... insists that the Kosovo Albanian leadership condemn all terrorist actions." And these positions about it are repeated later on.

Then you have a Resolution. As you don't remember, I would like to remind you, refresh your memory. Resolution 1203, which again makes mention of terrorism in pursuit of political goals. And then again it insists that the Albanian leadership condemn acts of terrorism, et cetera. So you are aware that what is written here by the minister of justice, who says that the international community too has clearly defined the actions of these groups as terrorist actions, that this was indeed terrorism. Isn't that clear?

A. I accept what -- I accept what you say, that these matters were reported and are contained in Security Council resolutions.

Q. Well, is it then clear, Mr. Blewitt, that you, precisely through these actions of yours, incited terrorism in Kosovo and protected terrorism in Kosovo, and that is that that is the only place in the globe where terrorism is protected?

MR. NICE: That seems to be an inappropriate question unless it's being suggested that by the writing of these letters matters were incited, but I'm not sure that that is what the accused is suggesting.

JUDGE MAY: I take that to be the question. The witness can answer.

THE WITNESS: I certainly don't accept that this was in any way protecting terrorism. The position of the Prosecutor was clearly that she would investigate all violations of international humanitarian law being ²⁸³³⁷ committed in Kosovo.

MR. MILOSEVIC: [Interpretation]

Q. Mr. Blewitt, Mrs. Arbour, in her letter of the 26th of March, mentions as an additional argument that nothing can be ascertained and the Verification Mission leaving Kosovo, and actually this happened in order to enable the NATO bombing, the NATO bombing in support of terrorism in Kosovo. Is that clear?

JUDGE MAY: No. That's a totally improper question. Yes. Move on.

THE ACCUSED: [Interpretation] Well, it seems, Mr. May, that all the questions that I'm asking would appear to be improper.

JUDGE MAY: Yes. Try and find a proper question.

THE ACCUSED: [Interpretation] Mr. May, we have a situation here in which this so-called Prosecution testifies itself, for itself, and that now you're going to tell me which questions I can ask about the testimony they are testifying about for themselves. I think this is a farce which has been absolutely no sense to it.

JUDGE MAY: Very well, then. Mr. Blewitt, it appears the accused has no further questions he wishes to ask.

THE ACCUSED: [Interpretation] I do have many questions for Mr. Blewitt.

JUDGE MAY: Proper questions, proper questions, Mr. Milosevic. And to explain the position, because you plainly do not understand it, this witness is here for this purpose: What the Prosecution are seeking to prove through the introduction of this document - or these documents - ²⁸³³⁸ is that these matters were brought to your notice, that the existence of alleged crimes and the like, violations of international humanitarian law were brought to your notice at the time. Now, that's the point which is being addressed by these letters. It's not generally the witness giving evidence for the Prosecution generally. Of course not. No Prosecutor can do that. But what they can do is to produce evidence on specific points, and that is the specific point.

THE ACCUSED: [Interpretation] Well, if you want to prove in that manner that the Prosecution, the so-called Prosecution, should have informed me about what was going on in Kosovo, well, here you have it, then, in the correspondence that you have provided here. You have disclosed it.

And here we have the letter by the minister of justice. At page 2 of the original, it says: "The competent state organs in the legally defined process investigate all criminal acts that have taken place since the attack." And you know full well from the testimonies that have been given here that it was the position of the leadership, and my own position, indeed, to have every war crime prosecuted in Kosovo, and generally every -- every war crime, generally speaking, anywhere.

JUDGE MAY: We have these letters, and of course we will take account of them, and you will be able to address us about them in due course.

Now, have you any more questions for the witness? Any other documents you want to draw to his attention in this bundle as you did with the last one? ²⁸³³⁹

THE ACCUSED: [Interpretation] Well, Mr. May, you have limited my right to refer to any documents except to the letters that you have presented here. I wanted to draw the attention of the public to this document which indicates that we're talking about a smoke screen here to mask the crimes committed by NATO.

JUDGE MAY: Very well. Very well. Now, move on. Let's find a proper question.

MR. MILOSEVIC: [Interpretation]

Q. Mr. Blewitt, did you know -- were you aware of, at the time of writing these letters, that -- did you know about the information that at the time, in March 1998, in Kosovo there were various terrorist groups at work which were linked to Osama bin Laden who, precisely for that reason, spent some time in Albania not to develop relations, diplomatic relations between Albania and Afghanistan --

JUDGE MAY: Let us stick to the point. What is the question?

MR. MILOSEVIC: [Interpretation]

Q. Well, my question is the following: In view of the work that you're doing, Mr. Blewitt, your job, and linked to this March 1998 letter, do you have the obligation of states towards terrorism, and does terrorism enjoy the protection of international criminal law, for example?

A. Clearly not. However, this Tribunal is responsible for prosecuting serious violations of international humanitarian law, as set out in the Statute of the Tribunal.

Q. Well, it was precisely these events, the events of March 1998, that the special envoy of the US president, Gelbard, described publicly as ²⁸³⁴⁰ being terrorism in Kosovo and Metohija. And you're writing letters about the protection of terrorism in Kosovo and Metohija. Is that clear or not? Did you check out that -- the information anywhere? Did you ever conduct an investigation of any kind to establish what the scope of and scale of terrorism was, how it was financed, how it was organised, with what goals in mind, and how that terrorism came to be linked with the Clinton administration which launched the aggression against Yugoslavia?

JUDGE MAY: Now, we're getting well away -- we're going well away from what the witness can possibly answer.

The witness has dealt with your point about protecting terrorism. He's made it plain that there was no question of any such thing. You've had -- let me just tell you this: You can have one hour with this witness, we've decided, and you've had half of it now. So bear that in mind in designing your questions.

THE ACCUSED: [Interpretation] Mr. May, there's absolutely no sense of limiting time or not limiting time if you're not going to allow me to ask my questions. Then I don't see the point of it and the object of this farce.

MR. MILOSEVIC: [Interpretation]

Q. Mr. Blewitt, please, as you wrote at the time about some violations of human rights and so on, which is something that the judiciary of Yugoslavia deal with, of course, and that's not being challenged, but did you ask for information, facts and figures from the competent institutions of the day that in Kosovo there were terrorist groups rampant of different types, different names to them? I don't want ²⁸³⁴¹ to read out all their names here and now.

A. Yes. I believe -- I believe that request was made in Prosecutor Arbour's letter addressed personally to you on the 17th of March, 1998.

Q. Did you ask to receive information from other relevant international institutions, INTERPOL and others, which had intelligence about international terrorism and the terrorist connections from other services as well which were in the function of raising this false indictment against me about terrorism in Kosovo? Did you ask anybody for that or did you focus your attention exclusively on the accusation -- on accusations of the Yugoslav government for protecting itself and defending itself from terrorism?

A. I don't accept all of the contingents in your question, however, the Prosecutor's office did in fact seek all relevant information from all possible relevant sources, and I'm not in a position to disclose which specific sources such information was sought.

Q. So do you mean to say that you do have that information and that there are services which provided you with that information? Is that right? Is that what you're saying, but that you can't disclose them; is that right?

A. What I'm saying is we did seek relevant information and material from a wide variety of sources and that in the response to the request for such information, we did in fact receive information and material that was relevant to our investigations.

THE ACCUSED: [Interpretation] Mr. May, I should like to remind you that I asked you to issue an order that -- or, rather, that information be ²⁸³⁴² disclosed, the information that the services of the principal countries of the NATO member states have with respect to the events in Yugoslavia, the aggression against Yugoslavia and terrorism in Kosovo --

JUDGE MAY: I've stopped you, Mr. Milosevic, for the reason that this isn't the time to discuss these general matters. You're examining this witness.

MR. MILOSEVIC: [Interpretation]

Q. Do you remember that in all that information that you say you were able to collect, that you had a unit of the Mujahedin which was entitled Abu Bekir Sadik, for example, which was active in Kosovo at that time? For example, just to quote an example, not to mention the others. But that is something that is in the focus of attention of the international community at the moment. Did you have that at least?

A. I have no recollection of such information.

Q. Well, do you remember any information coming in to you with respect to the Kosovo terrorists, Albanians and their links with Osama bin Laden? You don't have that information either?

A. I certainly cannot recall anything at the time about bin Laden, and specifically, I cannot recall particular pieces of information that we received as a result of our investigations. We had information and evidence coming in from a variety of sources on a daily basis. I personally did not process that information, it was done by staff members in the Office of the Prosecutor. But the matters that you're raising, the specific items, I certainly have no recollection of such information.

Q. Do you remember that it was precisely at the time when you were ²⁸³⁴³ writing these letters, which is the first half of 1998, do you remember this piece of information, that, for example, 33 Albanians who did not wish to join a terrorist organisation were killed by those same terrorists, and that during that period of time, the terrorists killed more Albanians, in fact, than they did Serbs, that they terrorised their own people and, of course, the target of attack were the police organs and the organs of power and authority generally. That during that period of time they killed more Albanians than they did Serbs, and that the state protected its inhabitants, its population from terrorism regardless of their ethnicity.

A. I am aware of the general nature of some allegations along the lines that you suggest in your answer and I can say that the Prosecutor's office was determined to establish the truth as to what was actually happening in Kosovo, and that was one of the reasons why the letter was sent to you on the 17th of March, 1998.

Q. Therefore, you accept the fact that you knew about terrorist activity in Kosovo. Is that right, Mr. Blewitt?

A. I accept that we knew that there were serious violations of international humanitarian law being committed regardless of the fact whether they were being characterised as terrorist acts.

Q. I don't understand why you're trying to avoid saying whether as criminal terrorist acts or whatever. My question is a direct one: Do you know about the scope of terrorist activities in Kosovo and Metohija in 1998? Was that something you knew about, the scope and scale of terrorist activities in Kosovo and Metohija in 1998 and the casualties and victims ²⁸³⁴⁴ among the civilian population, precisely victims of that terrorism and amongst the members of the police force, the organs of power and authority, et cetera? So were you aware of terrorist activities? Please give me a yes or no answer.

A. I'm not avoiding your question. What I'm saying is that we were aware of the fact that crimes were being committed and that they were being characterised in some quarters as acts of terrorism. What I'm saying is that from the Prosecutor's point of view, the crimes that were being committed, particularly those against the civilian population, were crimes that fell within the jurisdiction of this Tribunal and we had a responsibility to investigate such allegations, and that's what we were doing, regardless of whether or not those crimes could also be characterised as being acts of terrorism.

Q. Well, then, did you, if you had an awareness and consciousness of that, that there was terrorism going on in Kosovo, did you consider yourself to be responsible and competent of questioning the right of the state, the organs of the Republic of Serbia and of the Federal Republic of Yugoslavia, to protect their own population from terrorism?

A. Definitely not.

Q. Well, where, then, do we see terrorism in your letters? You just raise questions. You ask whether somebody fell casualty following the acts of organs of authority. But find me any mention of terrorism in your letters, although I showed you three or four UN Security Council Resolutions with respect to terrorism in Kosovo. Do you mention with -- in a single word terrorism anywhere in your letters at all? ²⁸³⁴⁵

A. The word "terrorism" does in the appear on the letters. However, it's quite clear that the Prosecutor had received information that there were allegations that crimes falling within this Tribunal's jurisdiction were being committed and that the Prosecutor had an obligation to investigate such crimes.

Q. Now, within those crimes, the crimes you say come under the competence of this court which is illegal but is legal for you, now, within those crimes, do you include terrorism or not?

A. The crime of terrorism in itself does not form part of this Tribunal's jurisdiction. However, the crimes that constitute terrorism, such as murder and all of the other serious violations of international humanitarian law, can also be characterised as both acts of terrorism and crimes falling within the jurisdiction of this Tribunal.

Q. All right, Mr. Blewitt. Now, within the competence of what you call the Tribunal, that is to say under your competence, do you include the NATO pact aggression against Yugoslavia, for instance, which was carried out without a UN Security Council decision and --

JUDGE MAY: No. We're going back to an old topic which we've already dealt with.

THE ACCUSED: [Interpretation] We haven't even started dealing with the topic, Mr. May, because you --

JUDGE MAY: Yes. We have ruled it -- we have ruled it irrelevant.

THE ACCUSED: [Interpretation] Mr. May, are you claiming that it is irrelevant for me to ask Mr. Blewitt, who considers himself to be competent for crimes committed on the territory of the former Socialist ²⁸³⁴⁶ Federal Republic of Yugoslavia, whether the NATO pact aggression was --

JUDGE MAY: Yes. Yes. Now, we've had this argument. There's no point going over it yet again.

MR. MILOSEVIC: [Interpretation]

Q. Mr. Blewitt, was the bombing of hospitals a criminal act?

JUDGE MAY: No, no, no. He's not dealing with that. You can ask him, of course, about the subject matter of these letters, and you've done so. Now, do you want to ask him about any other of these letters or not? Can we call it a day?

MR. MILOSEVIC: [Interpretation]

Q. Mr. Blewitt, in view of the fact that you mention the killing of people and violence, is the killing of several tens of civilians in a column in Kosovo by the NATO Air Force --

JUDGE MAY: Yes. What's your next question?

THE ACCUSED: [Interpretation] Well, my next question is this, Mr. May:

MR. MILOSEVIC: [Interpretation]

Q. Is it a crime to destroy a peaceful mining town by the name of Aleksinac?

JUDGE MAY: Now, we've been over this. Mr. Milosevic, it appears you're not paying attention and therefore I must consider whether we shouldn't call this cross-examination to an end. If there are any more questions about the letters, you can ask them. If you want, for instance, to ask about the document which was produced to the president on the 1st of February, 1999, which sets out a great number of allegations, if you ²⁸³⁴⁷ want to ask about that, now is your opportunity. It's been admitted in evidence. If you want to challenge any part of it, you should do so rather than trying to argue about things which you've been told that you can't.

THE ACCUSED: [Interpretation] If you're concerned with entry into this document, you can say that I challenge all the allegations made in the letters, because I would require several days to ask questions, which you're not allowing me to do, with respect to all these findings, Mr. May. So for the transcript, for the record, you can say that I challenge all the statements and allegations made, because they are untruthful and tendentious and do not correspond to the truth at all.

JUDGE MAY: That is a matter about which the witness can deal with.

Mr. Blewitt, you've heard the suggestion by the accused that the allegations made in the letters, presumably sent by your office to him and other officials of the Federal Republic, are untruthful and tendentious. That is the characterisation which he chooses to use. What were the sources -- I mean no need to detail it, but what were the sources of the allegations which were made, and were they made tendentiously?

THE WITNESS: Certainly not, Your Honour. The -- the material that the Prosecutor of the day was relying upon were from a variety of sources, including media reports, reports from governments, letters from concerned groups, including non-governmental organisations. It was from a variety of sources, Your Honour. I don't know that I could be specific to ^{28348 BLANK PAGE 28349} enumerate them all, but they were numerous, consistent, and certainly, from the Prosecutor's point of view, raised sufficient concern that required, in her view, that they should be investigated.

MR. MILOSEVIC: [Interpretation]

Q. All right, Mr. Blewitt. You yourself raised an indictment against me in May 1999 for the events that took place in 1999, that is to say it took you just several months to collect all the evidence, as you say, and raise the indictment, although nothing was accessible to you, which is highly contradictory; isn't that right?

A. No, that's not right. The investigation had commenced in 1998. Investigations had been ongoing. Despite the fact that we did not have access in the latter part of 1998 and 1999 to Kosovo, we were nevertheless able to continue to gather evidence. It was only in May of 1999 that we had sufficient evidence, we believe, to establish the allegations contained in the indictment beyond reasonable doubt, and it was at that time that the indictment was issued.

Q. Ah, that's very good, Mr. Blewitt. You yourself say that you weren't present, that you gathered evidence for the indictment. Now, why did it take you 11 years to decide to raise the indictment for Bosnia and --

JUDGE MAY: No, that's not for the witness to answer.

MR. MILOSEVIC: [Interpretation]

Q. Very well, Mr. Blewitt. Is it true and correct that the material for raising that so-called indictment, for issuing it, that you received that from the British intelligence service? I assume that that is -- ²⁸³⁵⁰

JUDGE MAY: No. That's not a question for the witness.

THE ACCUSED: [Interpretation] Well, I don't seem to know what the questions for this witness are. Perhaps you could tell me what questions I'm supposed to ask, Mr. May.

JUDGE MAY: In the minutes you have -- in the minutes you have left, you can ask the witness questions about these letters, anything you challenge in them, anything which you disagree with. Of course you can put that to him. Or anything you want to point out from the Yugoslav side, you can point that out if you want.

MR. MILOSEVIC: [Interpretation]

Q. Mr. Blewitt, isn't it enough for you, you being a legal man, you sent out these letters, with respect to the competence and authority of the person responding, writing the answer, or the contents of what the minister of justice is telling you, that the competent state organs in the legal proceedings will look into all crimes and are duty-bound to look into all crimes, what do you have to criticise there? What do you wish to add, and where is the problem? Is anybody saying there were no criminal acts, anybody from Yugoslavia, or are they saying quite the opposite, that the competent state bodies will investigate all crimes committed? So what is it? We consider our organs to be competent. You consider yourself to be competent. We don't consider to you be legal and lawful; you do consider yourself to be legal. But there is one thing which is not in dispute, and that is that if criminal acts exist, then --

JUDGE MAY: Wait a moment. Wait a moment. You asked the witness a question. He should have the opportunity of answering it. ²⁸³⁵¹ It effectively is this: Isn't it enough that the Ministry of Justice was writing to you, Mr. Blewitt, telling you that the competent state organs were looking into the crimes? That's the real question there.

THE WITNESS: The Prosecutor was certainly aware that there was a claim that all crimes being committed in the Federal Republic of Yugoslavia, including Kosovo, were being investigated. Certainly we would never contest the right of the Federal Republic of Yugoslavia to investigate and to prosecute persons who had committed such crimes. However, in addition, we were not satisfied that all the crimes being committed by both sides to the conflict that we saw were in fact being investigated, and it's quite clear that this Tribunal has a concurrent jurisdiction with national authorities, including the Federal Republic of Yugoslavia, so clearly that country had the right to investigate. However, as I say, the Prosecutor, if not satisfied that those investigations were being undertaken properly and fully, then it fell within her competence to also investigate.

MR. MILOSEVIC: [Interpretation]

Q. Is it beyond dispute that what you call the Prosecutor and the Office of the Prosecutor conducted its investigations or reduced those investigations only to those matters which could lead to charges against members of the police and the army of Yugoslavia while totally excluding, as shown by this document of yours, the crimes committed by NATO in Yugoslavia?

JUDGE MAY: We've been -- we've dealt with that. We're going to ²⁸³⁵² adjourn now. Twenty minutes. And you will have ten minutes more, Mr. Milosevic, to conclude your examination.

Mr. Blewitt, we must -- we must warn you formally, as we do warn all the witnesses, not to speak to anybody about your evidence until it's over.

THE WITNESS: Yes, Your Honour.

--- Recess taken at 10.30 a.m.

--- On resuming at 10.55 a.m.

JUDGE MAY: Yes, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. Mr. Blewitt, precisely in connection with these letters of yours, you are familiar with Article 25 of the United Nations Charter, I assume. Let me remind you if you don't quite recollect the contents, but it says that states are obliged to respect the decisions of the Security Council if they are in accordance with the United Nations Charter; isn't that right?

A. That's correct, yes.

Q. The decisions of the International Court of Justice are a source of law, or one of the sources of international law. That is also beyond dispute, isn't it?

For instance, the decision of the International Court of Justice on -- in 1973, its advisory opinion in connection with the presence of South Africa and Namibia, it was confirmed in that connection that states are not entitled to abide by the decisions of the Security Council if they are in contravention of the UN charter. I assume you are aware of that. ²⁸³⁵³ Is that right or not?

JUDGE MAY: This isn't matter for the witness, to debate matters of law with him, because matters of law are for us to determine.

THE ACCUSED: [Interpretation] I am assuming that the witness is basing his own activities on matters of law, on the rules and laws of international law.

JUDGE MAY: What is the relevant question?

THE ACCUSED: [Interpretation] The relevant question is that Article 29 of the UN Charter, it is enshrined by that Article that the Security Council can form a commission or a rapporteur to look into individual matters but it cannot form any kind of court.

JUDGE MAY: That seems the same argument again. We're not going to deal with that.

MR. MILOSEVIC: [Interpretation]

Q. Hans Kelsen, in a book The Law of the UN, in 1950 wrote that the Security Council does not have any judicial competence. Do you agree with that? He says its members are not independent --

JUDGE MAY: Mr. Milosevic, this is a waste of time trying to debate these matters, which have all been decided anyway, so they're all stale. There's no point debating them with the witness. If you want to refer him to a passage in the letters, of course you may do so, but your time is running out.

THE ACCUSED: [Interpretation] What I'm referring to here is that the state is not obliged to abide by a decision of the Security Council that is not in accordance with the UN Charter, and this obviously is not ²⁸³⁵⁴ in accordance with the Charter of the United Nations.

JUDGE MAY: We've heard your arguments. You can address us, if it's relevant, in due course. But let's try to find a question, if you have one, which this witness can properly deal with.

THE ACCUSED: [Interpretation] Very well, Mr. May.

MR. MILOSEVIC: [Interpretation]

Q. I assume that a valid question for this witness is whether this so-called Prosecution of yours is independent and autonomous from what is called the Tribunal here.

JUDGE MAY: What do you mean by that? I'm not sure if I understand the question.

THE ACCUSED: [Interpretation] Let us put aside for the moment the unlawfulness of the court and the Prosecution, but the question is whether the Office of the Prosecutor that Mr. Blewitt is representing, is it independent of the court, of the Tribunal?

JUDGE MAY: That's not a proper question for the witness. I mean, are you suggesting that there is something in these letters which indicates otherwise? What is the point?

THE ACCUSED: [Interpretation] The point is that I would like to get an answer to my question whether they are acting independently and do they consider themselves to be independent or not.

JUDGE MAY: Yes. The witness can deal with that.

THE WITNESS: Yes, I do have the understanding that the Prosecutor is an independent organ of this Tribunal, and that independence is stipulated in Article 16 of the Statute of the Tribunal. ²⁸³⁵⁵

JUDGE MAY: Furthermore, does the Prosecution act independently, and were you acting independently insofar as these letters to which we've referred are concerned?

THE WITNESS: Yes, Your Honour. The investigations being undertaken by the Prosecutor were in accordance with the -- her independence under the Statute, and these letters were forwarded in carrying out her duties and mandate under the Statute.

MR. MILOSEVIC: [Interpretation]

Q. Very well, Mr. Blewitt. Since you have said that you are independent, can you answer the following question: Why do you not ask for an advisory opinion of the International Court of Justice regarding the legality of your activities?

JUDGE MAY: That is totally irrelevant. Mr. Tapuskovic, is there anything you would like to ask of the witness, please?

THE ACCUSED: [Interpretation] So you won't let me ask him any more questions?

JUDGE MAY: No, because you're just asking him irrelevant questions. If you have got a relevant question, I shall allow you to ask it. You've got three or four minutes left.

THE ACCUSED: [Interpretation] Very well.

MR. MILOSEVIC: [Interpretation]

Q. Mr. Blewitt -- You won't let me ask him a single of the questions that I consider to be relevant.

Tell me, please, are you duty-bound pursuant to your own Article ²⁸³⁵⁶ Rule 68 to disclose to me all exculpatory material?

A. Yes. That is enshrined in Rule 68 of the Tribunal's Rules of Procedure and Evidence.

Q. Very well. Now, please answer this question quite specifically: Have you disclosed to me all materials, information, and facts that you have learnt about in the process of drafting this document about the NATO crimes in Yugoslavia and the report submitted by your commission formed to review the NATO bombing campaign against the Federal Republic of Yugoslavia?

JUDGE MAY: Just a moment. Just a moment. That's not a question for the witness. It's way outside the matters which we've said you could ask him questions about, but so that the position is clear, those who have the conduct of this Prosecution who are here today are aware of that duty to disclose all relevant exculpatory material, and it's the duty of the Trial Chamber to ensure that that particular rule is followed. So any relevant exculpatory material will be disclosed to you. Now, you've time for one more question.

MR. MILOSEVIC: [Interpretation]

Q. My question was whether those materials that you came to collect when investigating NATO crimes against Yugoslavia have been disclosed to me or not, or are you claiming that everything is contained in this report?

JUDGE MAY: We're not dealing with the report, but the witness can deal, of course, with any materials which came about as a result of these questions -- these letters. ²⁸³⁵⁷ Were any materials disclosed, Mr. Blewitt, do you know, in relation to these documents?

THE WITNESS: Your Honour, all matters that the Prosecutor was obliged to disclose to the accused have been disclosed.

JUDGE MAY: Mr. Tapuskovic.

MR. TAPUSKOVIC: [Interpretation] Your Honours, I must say straight away that before I arrived at court today, it was quite clear to me that it is not possible to raise any legal matters linked to these documents, and I really had no intention to go into any matters of law in that connection. When I tried to rise at the beginning, I simply wanted to point out that Mr. Nice, at one point in time, did indeed say that the Prosecution was impartial, because in the document tab 9 there is reference to the suffering of the Serbs. These were the words uttered by Mr. Nice, and I simply wanted to say that and nothing more. So my questions will be very brief, and I will deal only with the document under tab 11.

Questioned by Mr. Tapuskovic:

Q. [Interpretation] It is a letter sent to Mr. Slobodan Milosevic on the 26th of March of 1999.

Mr. Blewitt, on the 26th of March when this letter was sent, wasn't that two days after the beginning of the NATO bombing campaign in Kosovo or, rather, after the beginning of the war which went on for a couple of months? Wasn't that two days after the beginning of the war, because the war started on the 24th?

A. I think, in answer to an earlier question, I indicated I couldn't ²⁸³⁵⁸ recall the date of the commencement of the NATO bombing, however I was prepared to accept the proposition that it commenced on the 24th of March, and I still adhere to that position.

Q. Since Ms. Arbour, and I'm sorry that she's not present because she might be able to answer this better, but in this letter as quoted by Mr. Nice, it is stated that a request was made to investigate all serious violations of international humanitarian law, on the 26th of March. Can you answer this question: Was it possible under conditions of war, during a bombing campaign when all of those people were in jeopardy, was it possible to ensure investigations until the war ended, that is, sometime in June? So was it possible to respond adequately to a request of this kind at that time and under those conditions?

A. I'm not sure that I'm in a position to answer that question. However, this letter was a culmination of --

Q. Thank you.

JUDGE MAY: No. Let the witness finish.

THE WITNESS: This letter dated the 26th of March, 1999, was a culmination of a series of attempts by the Prosecutor and the Prosecutor's office to investigate the crimes that had been allegedly committed in Kosovo since the beginning of 1998.

MR. TAPUSKOVIC: [Interpretation]

Q. Could we also refer to what is stated in the first paragraph of this letter when there is mention of the departure of the Kosovo Verification Mission, which meant that the presence of independent observers has been severely curtailed. ²⁸³⁵⁹ Mr. Slobodan Milosevic is not charged with any crimes in 1998 but mostly for acts in 1999. That is, up until March, the Verification Mission was there. For example, Racak, it was investigated by the Verification Mission. And the Verification Mission was present in Kosovo and was able to monitor events. It was not prevented from investigating any such things. Isn't that right?

A. I believe that to be the case; correct. However, the Prosecutor --

Q. Thank you.

A. However, the Prosecutor's office had been prevented from undertaking on-site investigations in Kosovo since the latter part of 1998, and it was the Prosecutor who is mandated by the Security Council to investigate matters falling within the jurisdiction of this Tribunal, not the Kosovo Verification Mission.

Q. I agree, but the Verification Mission came there with the permission of the state in which it was working, and the Verification Mission did conduct investigations in certain cases, and this was done in accordance with the authority granted by the authorities in Yugoslavia.

A. I certainly do not dispute that.

MR. TAPUSKOVIC: [Interpretation] Thank you.

MR. NICE: Just a couple of questions, please. Re-examined by Mr. Nice:

Q. Could you, Mr. Blewitt, go to tab 9, the report, and go to paragraph 36 on page 26. It's a passage we've looked at before.

MR. NICE: Perhaps the usher would be good enough to just put it ²⁸³⁶⁰ on the table or the overhead projector if we can find it.

Q. And I want you to look at this paragraph given the questions you've been asked about the use of the term "terrorism" and the suggestion that there was in some way a biased approach, taking account not of the Kosovo Albanian crimes, if any, committed.

This passage reads, I remind us, as follows: "The Prosecutor concluded that the information was credible and tended to show that crimes within the jurisdiction of the Tribunal may have been committed in Kosovo. In particular, the Prosecutor concluded that credible information tends to show that an armed conflict may exist in Kosovo, and that fighting was and is going on between two sides: military and police forces connected to the Federal Republic of Yugoslavia and/or the Republic of Serbia on one hand, and armed and organised units and groups, including the KLA, associated with the Kosovar Albanian community on the other." Now, does that passage and that sentence reflect an approach at the time of this letter to both sides of what was thought to be an internal conflict?

A. Yes, it certainly does.

Q. The accused has been pressing you to adopt the term "terrorism," which you've declined to do. "Armed and organised units and groups associated with the KLA and the Kosovar Albanian community," does that reflect the approach that the office was taking to actions by the Kosovo Albanians at that time?

A. Yes, certainly, totally.

Q. Then it goes on to say: "The level and intensity of violence used ²⁸³⁶¹ by the armed groups involved may be illustrated by the resort to the armed forces by the Federal Republic of Yugoslavia, but also by the devastating impact on the civilian population, and is further evidenced by the involvement of the international community. This all tends to show that an armed conflict may be going on in Kosovo, giving rise to violence which may constitute crimes within the jurisdiction of the Tribunal." Now, does that passage refer only to one wrongdoer or does it countenance the possibility of wrongdoing on both sides?

A. I think it clearly indicates that there was an armed conflict involving two parties to that conflict.

Q. You've spoken both briefly here but more particularly through the letters that you've produced, of the restrictions on access imposed on the OTP in 1998, 1999. Did those restrictions impede investigations into just one side of any wrongdoing or into both sides?

A. Clearly they impeded the investigations into all parties to the conflict and both sides identified in the report that you've just referred to.

Q. And finally on this topic, and I think my last question for you, as a matter of fact and history, does the Office of the Prosecutor investigate crimes alleged to have been committed by the other side, by the KLA, by Kosovo Albanians?

A. It does indeed, and in fact there is still an ongoing investigation into crimes allegedly committed by the KLA.

Q. And process in respect of another indictment has already been undertaken? ²⁸³⁶²

A. That is correct.

Q. No other questions -- oh, one other question, yes. The accused asked you a question that didn't go very far about the independence of the Prosecution from the rest of the Tribunal. With that question in mind, can you have tab 7 in mind, which is the letter from the then-president, Gabrielle Kirk McDonald, to the president of the Security Council, and it's clear that that letter incorporates complaints coming from the OTP. Can you just explain how it is necessary and how to comes about that the president of the Tribunal has to record complaints of the OTP in these particular circumstances.

A. In the event of lack of cooperation on the part of a state, or a state not fulfilling its legal obligations towards the Tribunal as required as a consequence of the Security Council resolution, the only mechanism that the Tribunal can take in that regard is to report the matter to the Security Council, and under the Tribunal's Rules of Procedure and Evidence, it is only the president of this Tribunal that is empowered and authorised to make such a report to the Security Council.

Q. So to that extent it's necessary for the OTP to report to the president for the president to report onwards to the Security Council?

A. That's correct.

MR. NICE: No other questions of the witness, but, Your Honour, may I, before he leaves the witness box in case there should be anything the Chamber would want to ask of him arising from this, may I remind the Chamber, but in reality perhaps remind the accused through the Chamber, of the following given his question about Rule 68 provision and NATO bombing. ²⁸³⁶³ Two points: One, provision of a considerable amount of material judged to be potentially Rule 68 has been provided to him and has indeed been referred to by him, as I recall, in the Kosovo section of this case. And the second point that he might not have in mind and remember is that at all times we have been at pains to reveal how we're dealing with the provision of exculpatory material to the accused. We have invited him and his associates to take part in the discussions about those arrangements so he can be satisfied he is receiving exactly what he should receive, and he has at all times declined to take part in those arrangements.

I have no other questions of Mr. Blewitt.

JUDGE MAY: Mr. Blewitt, that concludes your evidence. Thank you for coming to give it. You are free to go.

THE WITNESS: Thank you, Your Honour.

[The witness withdrew]

JUDGE MAY: Mr. Nice, there were various administrative matters to deal with, and I have in mind in particular the finalisation of the witness list and also the exhibit list.

MR. NICE: The witness list in final version was provided to you on the 21st of October of this year, Trafalgar Day, as it happens to be. There was one name omitted from the list by oversight, and you'll receive notification of that in due course, but the list is otherwise complete. To call the witnesses on that list would require the granting of leave to add a certain number of witnesses. The application to add those witnesses, an omnibus document, was a document I hoped to serve on you ²⁸³⁶⁴ yesterday. In the event, there were one or two queries about protective measures that were not complete yesterday, I think can be completed today, so the document will be with you today. For reasons explained in the document, it cannot deal with absolutely all those witnesses whom we apply to add to the list but very nearly all of them.

JUDGE MAY: Well, the matter of concern is that here we are, nearly two years into the Prosecution case, and the list is not finalised. Now, for whatever reasons, and I accept they may be beyond the control of the Prosecutor, there comes a time when the accused is entitled to know who the witnesses are against him, and also the Trial Chamber, and the idea that there are yet further applications coming is a matter of concern.

MR. NICE: Your Honour, the application that will be with you today simply is the necessary application to reflect the names on the list served on the 21st of October. The names in the list on the 21st of October are, for the most part, names or identities made known to the Chamber and to the accused and the amici over the last several months where we've noted that it was our intention to call particular people, whether named or not, and that applications would be forthcoming in a compendious way rather than piecemeal.

I can give in the most general terms the reasons for the lateness of -- for the timing of applications for many of these witnesses. There are categories of witnesses -- sorry. There is a category of witnesses who have been subject to Rule 70 restrictions that it has taken a very great deal of time to deal with outside our control. There are witnesses ²⁸³⁶⁵ who have only very recently come to light, and if they are in a position to offer very valuable evidence, then it's obviously our duty to seek to add them. And I think that's probably the two most important categories. But, Your Honour, for the most part, all parties have been on notice for most of these witnesses for some time that an application would be forthcoming, and it is our submission that there is no prejudice suffered by the list being formulated on the 21st of October and the application coming, as it will, this afternoon. But obviously the Chamber will have to consider the application which deals with witnesses on an item-by-item basis.

JUDGE MAY: So can I take it that this compendious application will be the last that we will receive on this topic?

MR. NICE: For reasons that -- there are a couple of witnesses who just simply can't be named for reasons outside our control, and it's explained that they will have to come later, but that is the position subject to that.

JUDGE MAY: Yes. It's a question of how much later.

MR. NICE: Days. I hope not more.

JUDGE MAY: If it's matter of days, obviously then that's something we can consider, but more would be a difficulty, because we are coming to the end of your case.

MR. NICE: I quite understand that. May I make the point that sense the first publication of this effectively final list, which obviously has been final but changing, we have been as transparent as we possibly can about our approach to ²⁸³⁶⁶ witnesses. As the Court will know, we have regularly been dropping witnesses in large numbers in order to meet the timetable requirements and to reflect the expressed views of the Trial Chamber about the amount of evidence of crime base, as it's called, that may be required, and so on, and I would respectfully suggest that the transparency of this document, which is a document I hope that becomes familiar to the Trial Chamber and to its officers and enables them to see at a glance how things are developing, how witnesses are being withdrawn to save time, how witness difficulties are being resolved, I would hope that this document may in fact serve as a model for other cases because it provides a transparency that is appropriate to this type of process. This is not the sort of trial where, in my judgement, it is necessary for the Prosecution to keep things close to their chest. It's the sort of case where the maximum possible disclosure is desirable and in everybody's interests, and that's what we've done.

The list, of course, also has that the ready reckoner advantage where we record the time we expect witnesses to take and we, after the event, are able to adjust to reflect the amount of time that witnesses have taken and in that way to see the degree to which we are going to be able to fit witnesses into the remaining time or not, that imposing on us, of course, the necessity of making further adjustments. So it's quite a useful document.

JUDGE MAY: Turning to exhibits, we have in mind issuing an order for a finalisation of the exhibit list so that not only the accused but also the Trial Chamber may be satisfied that we have a final list. We ²⁸³⁶⁷ propose to do that in 21 days -- or give you, rather, 21 days to produce your definitive list. Is there any reason why you should not be able to do that?

MR. NICE: I'm not alive to any at the moment, and I have to say I think that seems a sensible course to take. If I find any reason why -- to resist that, I'll perhaps come back to you, but I very much hope not to. I've been concerned not only that the prospective exhibit list should be clarified but we should take steps now with your legal officer and Registry to ensure there is absolute certainty about the state of exhibits tendered to date.

I can remember on other cases where that's proved to be quite a major exercise to conduct at the end of the Prosecution's case, or at the end of the case overall. I'm alive to the fact that there are a number of exhibits that have been tendered without being produced. In the case of some of those exhibits, resolution of the status of the exhibit may be capable -- may be susceptible to argument; in other cases it may simply be that the exhibit won't be produced or won't be produced unless we produce further evidence. For example, the intercepts are a case in point. So I'm very concerned that we may be able to get together, the various parties, and ensure that that part of the documentation is as clear as it can be before the close of the case.

JUDGE MAY: Yes. The individual exhibits should be clarified as to their position. We will have, of course, to ensure that any which have simply been marked for identification are either admitted or excluded if no more. That exercise will have to be gone through, and preferably by ^{28368 BLANK PAGE 28369} the end of the Prosecution case we should be in a position to have that clear for all.

And as I've said before, the numbers, they should be numbered so we know exactly how many exhibits we're dealing with. That's not a question of re-numbering, we've already got the exhibit numbers, but simply to --

MR. NICE: To enumerate --

JUDGE MAY: To enumerate the ones which we have, yes.

MR. NICE: Yes, certainly.

JUDGE MAY: Mr. Milosevic, since we're dealing with administrative matters, are there any administrative matters that you want to raise at this stage?

THE ACCUSED: [Interpretation] No, Mr. May.

JUDGE MAY: The Prosecution asked us to grant them an extra day, I think, for today. I have in mind that you had an hour and a half owing to you before the adjournment, the vacation, so it may be that we could add an hour and a half today and give you an extra day, but we'll consider that.

MR. NICE: I have to say that personally I would be only too anxious not to be pressing to the last minute of the last day. For the time being, I'm obliged to take that position.

JUDGE MAY: Very well. Just let's consider it.

[Trial Chamber confers]

JUDGE MAY: Yes. There will be an extra day.

MR. NICE: Your Honour, there's -- sorry. Your Honour was about ²⁸³⁷⁰ to speak. I have got one matter I must raise, if I may.

JUDGE MAY: Yes.

MR. NICE: It relates to the witness being called next Monday and Tuesday. Out of an abundance of caution can I just mention this in private session just very briefly?

[Private session]

[redacted]

[redacted]

[redacted]

[redacted]

[redacted]

[redacted]

[redacted]

[redacted]

[redacted]

[redacted]

[redacted]

[redacted]

[redacted]

[redacted]

[redacted]

[redacted]

[redacted]

[redacted]

[redacted] ²⁸³⁷¹

[redacted]

[Open session]

THE REGISTRAR: We're in open session.

JUDGE MAY: We will adjourn now until Monday morning.

--- Whereupon the hearing adjourned at 11.32 a.m., to be reconvened on Monday, the 3rd day of November, 2003, at 9.00 a.m.