31184
Wednesday, 21 January 2004
[Open session]
[The witness entered court]
[The accused entered court]
--- Upon commencing at 9.06 a.m.
JUDGE MAY: Yes. Now, Mr. Milosevic, you have for the witness this first hearing for you to examine on realistic matters, of course. Yes, it's for you.
WITNESS: TON ZWAAN [Resumed]
THE ACCUSED: [Interpretation] Mr. May, thank you. Cross-examined by Mr. Milosevic:
Q. [Interpretation] Mr. Zwaan, in your report you say that you are a sociologist and anthropologist; is that right?
A. Yes, that's correct.
Q. You have no legal qualifications as a lawyer or anything like that?
A. No, certainly not.
Q. We also have the names of the employees and staff of the Centre for Holocaust and Genocide Studies and that it is a four-member team in Amsterdam; is that right?
A. Yes, that's correct.
Q. And none of those individuals are legal men. Three are historians, and you yourself are a sociologist and anthropologist. That's right, isn't it?
A. Yes, that's right. 31185
Q. Tell me, isn't it a little unusual that a centre for research into Holocaust and genocide or genocide studies don't have any lawyers, because genocide is a legal category, is it not, in the first place?
A. Well, you can consider genocide as a legal category. That's one, but you can also see it as a historical phenomenon or as a sociological phenomenon. It's quite usual, by the way, that centres of genocide and Holocaust studies over the world do not have legal specialists because the juridical aspects practice are not first and foremost in the historical and sociological study of the subject.
Q. Well, I am bearing in mind a fact which Mr. Nice did mention, actually, that for this composition the legal meaning is the only essential one, and that's why I'm asking you that. Now, in the last paragraph on page 6 of your report it says that the centre was officially opened in September 2003 with a public manifestation in the order of the university of Amsterdam. So your centre was in fact opened just four months ago; is that right?
A. Yes, that's correct. The official opening.
Q. And your report was written on instruction from the other side, that is to say two months after the centre was established. Is that right, Mr. Zwaan?
A. Well, I have been working on it for several months, but it was finished after the centre was opened, yes, that's correct.
Q. Tell me, please, did you personally within the frameworks of the centre have any other project that you've worked on except for this particular report? 31186
A. Yes, certainly.
Q. And what centre -- what were the other projects that the centre had, except this report of yours?
A. I have been teaching a master course for advanced students on the comparative study of genocide. That's one example.
Q. I asked you what other projects the centre has. Now your regular activity in the way of teaching is something else.
A. You may consider that something else, but we at the centre see projects as well as in research as in teaching as in public discussions. I could name another project. We are organising a conference on the genocide in Rwanda which will take place in April. So we're starting on that and organising the conference.
Q. And tell me, please, as in your report you underline specifically when the centre was opened. There was a public manifestation in the Aula of the University of Amsterdam. I assume that you stress this as being an important fact, otherwise you wouldn't have stated it in your report. So what is the importance of that particular event, that manifestation that you have highlighted in that way in your report, except to impress, of course, the opening of the centre?
A. I certainly did not name it to impress anyone but just to introduce the centre and tell the reader when it was started and when it was opened.
Q. And tell me, please, how many written works do you have on the topic of genocide studies?
A. I've got about 10 to 12 articles and a rather hefty book of about 31187 450 pages.
Q. This report was compiled at the request of Mr. Nice; is that right? That's what it says in paragraph 1 of the introduction.
A. Yes, it has been written at the request of the OTP. That's correct.
Q. At the very beginning in sentence 1 of the introduction it says, and I quote: "The primary report of this report is to provide tools of analysis by reference to which the reader may understand how genocides and other mass crimes targeting specific groups can occur in human societies." Now, who is the reader you are targeting who is there to enter into analysis of how genocides come about?
A. The answer is very simple. The answer is everybody who reads the paper.
Q. Very well. Now, speaking of the purpose, in paragraph 2 you say in the introduction, and I quote you: "I have been -- the OTP has been -- I understand from the OTP that this will enable the Chamber," and I assume you mean this Trial Chamber sitting across the way from you, "to consider the learning that exists in relation to genocide and to make such decisions about applying it to the facts of this case." Is that the purpose?
A. I think that was the purpose, yes, and it still is.
Q. Do you know -- have heard of the principle known from Roman law, iuria novit curia.
A. No, I did not. Maybe you can explain that to me.
Q. Well, it means, in translation, that it is assumed that the court 31188 is well-versed in the law, and that is one of the central principles and necessary assumption for the functioning of every normal legal system, that the court is well acquainted with matters of law.
A. Yes, I understand that.
Q. Do you not feel then that Mr. Nice in bringing you in as an expert witness has in mind teaching the Judges what genocide actually is? Do you not feel that that in a way - how shall I put this? - is contradictory to that principle?
JUDGE MAY: That's not -- just a moment, please. That's not a matter for the witness to answer that. That is a matter for us to decide, which we will do in due course. We've permitted this witness to give evidence. He can. What the witness can of course deal with is his part, but as far as matters of law are concerned, they are matters for the Judges, and you can address us in due course. But the witness is certainly entitled to answer that generally as far as he understands his role, his own personal role is concerned if he'd like to answer that.
THE WITNESS: Well, very shortly. I think the question should be put to Mr. Nice, firstly. But secondly, I'd like to add that the report I've written is a historical and sociological report which tries to summarise the general insights which have been regarded in these disciplines in the processes of genocide. So I do not pretend, or wish, to go into any legal matters here.
MR. MILOSEVIC: [Interpretation]
Q. So you do not wish to enter into any legal matters here. Very well. 31189
JUDGE MAY: Quite rightly. He's not here as a lawyer.
THE INTERPRETER: Microphone, please.
JUDGE MAY: He is not a lawyer, and in due course you can address us on it when the accused can do so, but the witness is simply giving evidence.
THE ACCUSED: [Interpretation] Very well, Mr. May.
MR. MILOSEVIC: [Interpretation]
Q. Mr. Zwaan, the so-called Prosecution, as it says in the introduction, requested of you to exclude any mention of Bosnia or reference to Bosnia. Now, when you compiled the report did you nonetheless have in mind the positions and concept in relation to the alleged genocide in Bosnia-Herzegovina?
A. I'm not quite sure whether I understand your question correctly, but let me try. I wrote the report based on the four cases I mention in the report, and I've tried to summarise insights into genocidal processes in general. I do not think that the Bosnian case, as we could call it that, was at the foremost of my mind when I wrote the report, no.
Q. Very well, Mr. Zwaan. Now, in your analysis, you considered in general terms this subject, and the annihilation of the Jews, the Armenians; that was the second case you looked at. And Cambodia, and Rwanda. Those four cases. Those were the ones that you considered; is that right?
A. Yes, that's right.
Q. And you emphasised in the introduction to your report that they requested that you exclude all reference to Bosnia. Now, tell me, as you 31190 deal with the phenomenon as such and you have taken as your basis these particular cases or instances, you are a Dutchman yourself. Did it ever occur to you to include the case of Holland, for example? If they said exclude Bosnia, what about Holland? Did they say exclude all reference to Holland?
A. No, they did not say so. But just to inform you, I've written a very extensive article about the uses of political violence in Dutch history.
Q. Very well. Well, if you've written that article, then you know that as at the beginning of the 17th century when Holland set up the West India and East India company, the two Dutch companies, that it was under the auspices of the Dutch government that the two companies had the right to use armed forces -- I'll call it to use the armed forces of Holland; is that right?
A. That is correct, although I'm not quite sure whether we should descent into the colonial history of the Netherlands.
Q. Well, the question is the phenomenon of genocide. That is the subject you are analysing, and you know that Holland systematically exterminated regions from their local inhabitants. Take the case of Africa, for example --
JUDGE MAY: This is -- this is -- we're going well away from our relevant matter. The witness has given his evidence in the very limited, to some extent, in the area, so rather than going into that old history, there's no point going over it again.
THE ACCUSED: [Interpretation] Mr. May, if you bring this down to 31191 the 20th century alone and limit it to that, then I can restrict myself to the 20th century as well. However, as a consequence of the facts I mentioned previously, in the 20th century, for example, as you know full well, Holland was the founder of apartheid in 1948 when the Afrikaans party won in southern Africa. They induced this, and it lasted until about 10 years ago, and you know that very well, let alone the several hundred years --
JUDGE MAY: I'm going to stop you. You've heard the area which the witness has dealt with and it's about that that you can deal with, rather than the broad history going back to the 16th century. We have not the time to do that, and it's not right to consider it. You can ask him about the matters which he's dealt with.
THE ACCUSED: [Interpretation] I'm not going back to the 16th century, Mr. May, if I say that in the 20th century, saw that apartheid was founded and they are the founders of apartheid, let alone the fact that a vast number of slaves who were sent to the Caribbean countries were also the result of the genocide that was committed. So I asked, as we're talking about a Dutch centre, whether they dealt with subjects of that kind, because in Serbia, we have a saying that says "Sweep the dirt in front of your own house first."
JUDGE MAY: Yes. Well, we can ask the witness that.
THE WITNESS: Well, maybe just very shortly. I think Dutch historians have done an enormous lot of research as well about the Dutch involvement with slavery in 16th and 17th century, and later they've also done a lot of research into apartheid. It was not founded by the Dutch 31192 government but by people who came from Dutch background far earlier in history, and there has been no responsibility whatsoever by the Dutch government for apartheid in South Africa.
But I think the darker aspects of Dutch history have been studied thoroughly by Dutch historians and also by other historians. Thank you.
MR. MILOSEVIC: [Interpretation]
Q. Very well. Now, if you have taken phenomena in the 20th century and looked at them, tell me, please, why have you omitted the genocide over the Serbs?
A. I'm not quite sure whether I understand your question. I was asked to write my report in a general sense and omit any reference to happenings on the Balkans, and so I did. So I did not dig into the tragic history of groups of Serbs during the Second World War.
Q. Very well, Mr. Zwaan. But do you know, since you spoke in your report about Nazism that this puppet state was created in the Second World War under the auspices of Hitler and Mussolini and it was called the Independent State of Croatia, and to all practical intents and purposes, it committed the greatest genocide in view of its size. And do you know that according to the facts and figures that the former Yugoslavia had and the president at the time, Josip Broz Tito, and he was a Croat, that 700.000 Serbs, including 30.000 Jews and Romanies, were exterminated in the Jasenovac camp and others for the mere fact that they had a different religion and were of a different ethnicity? And that is part of the questions that you study and deal with within the realm of those topics.
JUDGE MAY: You must ask this witness a question. What is the 31193 question?
THE ACCUSED: [Interpretation] Very well, Mr. May.
MR. MILOSEVIC: [Interpretation]
Q. My question is this: Do you know that on the website of the Weisenthal Centre, for example, today you can find something that says that Jasenovac was the "[In English] Largest camp in Croatia between 1941 and 1945. Under department 3, Croatian security police, 600.000 people were murdered here, Serbs, Jews 30.000, Gypsy, and under the Ustasha regime." [No interpertation] Do you know about that fact?
A. I certainly know about that fact. I do not agree with the figures named in the sources I have seen about this. I think the most reasonable estimate of the total amount of victims, including Jews, Serbs, and others, lies about between 100.000 and 120.000 people. So I would not agree with the amount of 600.000 people.
On the other hand, I would like to add that this is something we discussed also yesterday, that the collective memory of these types of tragic events has played an important role also in present times. Thank you.
Q. Very well. So you do not agree with the figures quoted on the official website centre of the Weisenthal Centre?
JUDGE MAY: He has just answered the question, given his answer.
THE ACCUSED: [Interpretation] Very well, Mr. May.
MR. MILOSEVIC: [Interpretation]
Q. And are you aware of the following definition of the Weisenthal Centre, and you can also find this on his website, he defines 31194 BLANK PAGE 31195 the concept of Ustashas, and I quote: "Created in 1930, Ustashas was a Croatian nationalist terrorist organisation. [In English] Its members' hatred of Jews was only rivaled by their hatred of the Serbs. Brought to power after Hitler created a Croatian puppet state in 1941, Ustasha terrorists killed 500.000 Serbs, expelled 250.000 and forced 250.000 to convert to Catholicism."
JUDGE MAY: Yes. The witness must have the opportunity of responding to this.
Is there anything that you want to add to that?
THE WITNESS: Thank you, Your Honour. I'm aware of the happenings during the Second World War in Yugoslavia, and I think apart from -- from the figures you named to which I do not directly agree, I think we should all or could all agree that what happened at the time in Yugoslavia was a very bitter civil war apart from the policies of the German occupation.
JUDGE ROBINSON: Would you qualify it as a genocide, what happened to the Serbs?
THE WITNESS: Yes. I certainly think there were genocidal attacks to the Serbs during the Second World War.
MR. MILOSEVIC: [Interpretation]
Q. Very well. David Owen testified here, and in his book The Balkan Odyssey, he also mentions, and I quote from his book, saying that, "The Nazis supported the creation of the independent state of Croatia, which included Bosnia and Herzegovina." I assume this is something you know. "Divided into German, Italian spheres of influence with the Croatian Ustasha Pavelic as a puppet ruler. During the following few years, his 31196 followers have committed unheard-of atrocities. Nuremberg referred and confirmed this as being genocide." And on page 106 --
JUDGE MAY: Very well. The witness must have a proper chance to answer these questions. Yes. Just a moment. Let the witness have time. Dr. Zwaan, if you'd like to respond to what's being put about Dr. -- the doctor's speech which was referred to.
THE WITNESS: Well, as I have just said already, it's very clear that there have been genocidal attacks on different groups of population in Yugoslavia during the Second World War and especially on the Serbs, and it's well known that the Ustasha regime was set up by the Germans and also could stay in power as long as the Germans could stay in power and the Serbs or groups of Serbs have been victims of that regime is also a well known fact. I have nothing to add to that.
But I may be, if you permit, I have not been writing about this in the report which we are discussing here, but I'm quite willing to try to answer questions, if possible.
JUDGE MAY: Yes.
MR. MILOSEVIC: [Interpretation]
Q. That is what I'm asking you, Mr. Zwaan. Since Lord Owen in his book is quite explicit, as is Simon Weisenthal. Lord Owen says on page 103, paragraph 3, and I quote: "The Croatian Ustashas in the Second World War committed genocide..." "The Croatian Ustashas in the Second World War committed genocide against the Serbs." I'm repeating for the benefit of the interpreters. I assume you read that book and that as an expert on genocide this statement must have been of interest to you. 31197
A. I do not disagree with what you're saying.
JUDGE ROBINSON: Doctor, what are, in your mind, the features of the killings of the Serbs in the Second World War that allow you to qualify them as genocide?
THE WITNESS: In fact, Your Honour, that's a very complex question, because of all the Serbs who were killed during the Second World War there were killings from different sides by different armed forces. But I think the situations in which Croatian troops and also German troops have killed large groups of Serbian, defenseless civilians would qualify as genocidal crime.
JUDGE ROBINSON: But the numbers killed, you said you didn't agree with the numbers killed.
THE WITNESS: No, I don't agree with the number of 600.000 Serbians killed during the Second World War. It's generally, in historical and sociological sources about the Second World War the total amount of victims in the whole of Yugoslavia is usually put at about 1 million, of which about 300.000 were killed in Bosnia, and it's very hard to say how many people were killed, for instance, in the camp of Jasenovac because there were no precise administrations made of the people killed. But as far as I know, the best experts estimate the amount of Serbs killed between 100.000 and 120.000. Killed in genocidal violence, that is to say.
JUDGE ROBINSON: How important are the numbers to you in arriving at your conclusion? You say the numbers were 10.000. Would that make any difference? Or is there something that's more important than the numbers? 31198
THE WITNESS: That's also quite a difficult question. It's usual to talk in statistical terms, but I think it's at least as important to look at specific individuals and peoples, people who were killed, and in that sense I wouldn't give too much importance to the exact numbers, but I would also underline that even if a few thousand people, defenseless people, were deliberately killed by armed forces, I would consider that a very serious thing. That's about what I think about it.
JUDGE ROBINSON: Yes. Yes, I'd agree it's a serious thing, but whether as a sociologist you would characterise it as genocide is another matter.
THE WITNESS: As a form of genocidal attack, certainly. Certainly.
JUDGE ROBINSON: Yes, Mr. Milosevic.
THE ACCUSED: [Interpretation] Thank you, Mr. Robinson.
MR. MILOSEVIC: [Interpretation]
Q. Mr. Zwaan, you are obviously among those people who are minimising the scale of the genocide of the Serbs. Do you know that a key scientific concern --
JUDGE MAY: No. If you're going to make that sort of allegation to a scholar of this sort, you must give the witness a chance to answer. Yes, Doctor.
THE WITNESS: I'm certainly not minimising nor maximising anything. I'd like to point out here in a general sense that the numbers or the figures of people killed in genocidal acts are usually very much contested by different groups later on, which might be perpetrators but 31199 also victims and also outsiders. So in most cases it's very difficult to ascertain with a certain measure of reliability the total amount of people killed in certain situations. That's a very general problem which happens all the time. And there are people profiting from minimising these numbers, and there are people profiting from maximising these numbers. And scholars, I think we should be very skeptical about the parading of all sorts of numbers and we should try as best as we can to come to more reliable estimates, and that's what I'm trying, not more, not less.
MR. MILOSEVIC: [Interpretation]
Q. Since you have explained that it is possible that people profit from large figures or small figures, I have quoted the data from the Simon Weisenthal Centre with reference to the Serbs, not the Jews, although its main concern was the genocide of the Jews. Do you believe that Simon Weisenthal Centre is profiting if they say that 600.000 Serbs were killed in those camps and throughout Croatia, and when describing the Ustashas he says 500.000 killed, 250.000 expelled, and 250.000 converted to Catholicism. What kind of profiting can we talk about when referring to the Weisenthal Centre?
A. Well, that would be something you have to research at the Weisenthal Centre, and you should ask there which people are responsible for what reasons for giving these numbers. I don't know, but I do not agree with these numbers. That's all I want to say.
Q. But they have been studying the issue since the Second World War to the present. As far as I understand it, however, you have been studying this for only a few years. Do you consider yourself to be more 31200 BLANK PAGE 31201 competent than this centre for questions of genocide or not? Or do you believe them to be more competent?
A. I see no sense in answering this question, because these are not matters of competence so much but matters of arguments, and as far as I know, the best experts on the total amount of victims during the Second World War in the Balkans usually use more reduced estimates. I have no judgement whatsoever on the comparative competence of myself and/or the Weisenthal Centre.
Q. Are you aware that there were pronounced efforts even on the part of the former Croatian president, Franjo Tudjman, who was a historian, by the way, and whose aim was to minimise the crimes of the independent state of Croatia, especially in his book, his well-known book The Historical Truth.
A. I am aware of the book by Mr. Tudjman. As far as I know, it has been reviewed in the professional press as not competent at all, because Mr. Tudjman was not only a military historian, or boasted as such, but he was first and foremost a Croatian nationalist politician. Thank you.
Q. Tell me, Mr. Zwaan, since you specialised in genocide, especially with reference to the Jews, you aware of the alliance of the Jerusalem Muftija with Hitler, I'm sure.
A. Yes, I am.
Q. Present-day Bosnia-Herzegovina was a part of Pavelic's independent state of Croatia. You're aware of that, too, I'm sure.
A. Yes, but I want to add that probably not the population was asked whether they wanted to be part of that government, yes or no. They were 31202 occupied.
Q. Are you aware of the fact that Alija Izetbegovic, too, has a past link to genocide?
A. I'm waiting for your arguments.
Q. As an argument, I will read a brief quotation from a book by the Belgian Michel Collon entitled, Poker Menteur - Les grandes puissances la Yugoslavie et les prochaines guerres --
JUDGE MAY: Just before you do -- before you -- let's hear who this man is, if the witness can accept it.
Do you know this gentleman whose given the evidence he wants to quote from?
THE WITNESS: I've heard his name, but I don't know him.
JUDGE MAY: Yes.
MR. MILOSEVIC: [Interpretation]
Q. So a very brief quotation from this book. It is an edition of 1998, page 268 to 270. "Born in 1925, the young Izetbegovic before the war," and the reference is to the Second World War, "...was active among the young Muslims, a traditionalist group fighting against deviations into modernist Islam, a fundamentalist organisation from the very onset. In the spring of 1943, Izetbegovic headed the Muslim youth in Sarajevo, and in that capacity he included Amin El-Husseini, the great Muftija from Jerusalem who fled to Germany and who was a friend of Hitler's. The mufti urged a jihad, a holy war against the Jews. Upon his call, 20.000 Bosnian Muslims were engaged within the Waffen SS. Izetbegovic was one of the organisers of the creation of the well known --" 31203
JUDGE MAY: You must bring this to a pause, to a period which can be answered. As to the doctor as to whether he could comment about any of this.
THE WITNESS: Well, what I do say is maybe is that the mufti of Jerusalem was a rather eccentric personality who was one of the very great exceptions in the Islamic world at the time felt for a close alliance with Nazi Germany and was strongly anti-Semitic, but at that time anti-Semitism was not widespread in the Islamic world, nor among common Islam believers.
MR. MILOSEVIC: [Interpretation]
Q. The point of what I read out was that 20.000 Bosnian Muslims were engaged within the Waffen SS, and Izetbegovic was one of the organisers of the creation of the well-known SS Handzar Division. These Muslim SS members committed such atrocities toward the Serbs that even German officers were shocked. And this division would later be withdrawn from the Bosnian front and be sent to fight against the SSSR, against the Soviet Union. Are you aware of this fact? I'm not just talking about the eccentricities of the mufti but about the formation of this Handzar Division consisting of Bosnian Muslims and the cruelty and brutality that shocked even the German officers that they applied against the Serbs. Are you aware of that?
A. I am certainly aware of several of the facts, although I would phrase them probably differently. But if I may add to that a general command, if you allow me. You have been discussing now genocidal practices and intents of Croatians in history and also of Bosnian Muslims in history, but if I may quote yourself, you were talking just a few 31204 minutes ago about the dirt in front of your own door. Maybe we should discuss that. Thank you.
Q. As far as our own door is concerned, I can say with pride that in Serbia, which I was the president and in which in addition to Serbs as the majority people, there were 27 other ethnicities living there throughout the Yugoslav crisis and not by a fraction has the composition of the population changed nor has anyone been discriminated against. So that as far as Serbia is concerned, it has really nothing to clean in front of its own door. But let me ask you --
JUDGE MAY: No. Before you go on, the witness must have an opportunity to answer.
Is there anything you would like to add, Doctor, to what's been said?
THE WITNESS: I don't think I have anything to add by what has just been said by the accused.
MR. MILOSEVIC: [Interpretation]
Q. Mr. Zwaan, you must know, though this is a minor detail, that in 1946, Izetbegovic was sentenced for nationalism and Islamism, and in 1970, he published in Sarajevo his well-known Islamic declaration presenting the gist of his views. I assume that you did have occasion to familiarise yourself with this book, and I'm again quoting Michel Collon when he draws attention to this, and this is contained in Izetbegovic's declaration when he says that, "The Islamic movement can and should take over power as soon as it is strong enough morally and numerically, not only to topple the existing non-Islamic authority but to be able to build a new Islamic 31205 authority. In those days, the Tito regime tolerated this, endeavouring to establish good relationships with the Arab countries. However, 13 years later, Izetbegovic was sentenced to 13 years in prison because of Muslim nationalism which endeavoured to create an ethnically pure Islamic state in Bosnia."
And as reported by Le Monde in August 1993, Animam [phoen] was sentenced because he wanted to abolish mixed marriages. Briefly this is a lengthy career characterised by fundamentalist racism. Are you aware of these facts stated by Collon and the sources that he refers to?
A. I would like to react to two points in your rather long declaration. In 1946, as you probably well know, and also the years thereafter, tens of thousands of Yugoslavians were sentenced to prison sentences, and many were executed for many different reasons by the Tito regime. These included so-called fascist collaborators, nationalists, fundamentalists, Islamists, and so forth and so on. So in that sense, I do not think that the sentence which was incurred by Mr. Izetbegovic is in any way a very special thing.
The second thing I would like to point out is that to my knowledge, Mr. Izetbegovic, never tried in any practical sense to realise a homogenous Islamic state. I at least know of no evidence of actions of his to realise such a thing. Thank you.
Q. I don't have enough time to go into more detailed explanations of this, but what was in fact happening in Bosnia and Herzegovina and especially bearing in mind his own statement about it to the effect that 31206 BLANK PAGE 31207 the Islamic movement should and can take over a power as soon as it is morally and numerically strong enough not only to be able to topple the existing non-Islamic authority but to build a new Islamic authority which he in fact endeavoured to do during the outbreak of the Yugoslav crisis and the break-up of Yugoslavia that had vast and tragic consequences. I assume that this must be sufficient argument for you, too, in support of this statement. Is that so, Mr. Zwaan, or not?
A. No, I'm sorry, that's not so. I would like to point out two things. Firstly, the Islamic minority in Yugoslavia is indeed a minority. It's an outrageous thought that such a minority would ever dare politically and/or military [sic] to take over a whole country in which they form a minority. That's one point.
The second point I would like to add is that the government of Mr. Izetbegovic and other leaders tried for a long time to keep true to the principles of multi-ethnic and multi-cultural Yugoslavia in contrast to the central authorities of several different republics.
MR. NICE: Your Honour, before the accused asks his next question, I must observe that none of the questions so far have actually dealt with the subject matter of the evidence, namely the method by which genocidal crimes are committed. And of course if the accused doesn't challenge the evidence on that point, it will stand unchallenged and available to us to apply in argument to the facts charged against the accused. The second thing is that there comes a point when if the accused simply asks as if asking historical questions about whether this or that was a genocide when it will be appropriate, whether in re-examination or 31208 when the Chamber may think, or otherwise to ask what this witness's opinion may be of the very event that he has avoided for reasons of leaving the matter to the Judges. But it shouldn't be left -- I need say no more.
JUDGE MAY: It is not uncommon for this to happen in this trial. We are aware of it. The method which we use is to control the amount of time which is available to stop this.
MR. NICE: I shall obviously come back to this in re-examination if the accused carries on attempting to characterise every other event as genocidal without focusing on what is actually at issue here.
JUDGE MAY: To some extent it's a matter for him, but first let me consider for a moment.
[Trial Chamber confers]
JUDGE ROBINSON: Dr. Zwaan, can I ask you this: You were asked some time ago by the accused whether you had in mind the situation in Bosnia and Herzegovina in producing the report, and you said no. Indeed, the -- the Prosecutor made it clear that that was not one of the matters that you were to take into account.
THE WITNESS: That's correct.
JUDGE ROBINSON: Nonetheless, I have to ask you whether that situation has not somehow influenced the character of your report, perhaps even at a subconscious level.
THE WITNESS: It's very hard, Your Honour, to talk about my own subconscious. I cannot deny, however, that when you study a subject as a scholar, you try to do your utmost to -- to -- to relate to all the sorts 31209 of previous knowledge you have about different cases. So I cannot exclude reacting to your question that from time to time, I've also thought about things which happened in Yugoslavia, because I've written about Yugoslavia before, in the early 1990s and also halfway through the 1990s. So I know quite something about the history of the area and the society. So I cannot exclude that that may have been in my mind also, and also other cases of genocide and severe political crisis have been in my mind, certainly.
JUDGE ROBINSON: So that the very thing which the Prosecutor asked you not to have in mind might somehow have -- have slipped.
THE WITNESS: No, I don't think -- I don't think -- if you permit me, I don't think you could put it that way. It's not -- it's not that you can say that this has slipped, because what is in your mind, as we all know, I think, is not something you're perfectly always continuously aware of, nor can you be asked and/or able to exclude certain parts of your knowledge from what -- from what you're writing actually at a certain point in time.
JUDGE ROBINSON: So let me put it more frontally.
THE WITNESS: Yes.
JUDGE ROBINSON: You're obviously aware of what happened in Bosnia.
THE WITNESS: Certainly.
JUDGE ROBINSON: Yes. And you know the features, the characteristics of that situation. And it would obviously diminish the quality of your report if your report were tailored somehow to -- to meet 31210 those characteristics.
THE WITNESS: That would put it far too far, to my mind. I'm not aware of any effort on my part to try to do that, as you just say, no. But I am aware of my knowledge of the Yugoslavian crisis and also several other cases which are just in my mind. So when I'm writing about the subject, it's more or less inevitable that I also think about that from time to time.
JUDGE ROBINSON: Okay. Thank you. Mr. Milosevic.
JUDGE MAY: Now, Mr. Milosevic, before you go on, remember this: Your time is limited. You will not be stopped in your examination. It's a matter for you. But bear in mind there is already produced by the witness a report which is already before the Trial Chamber and before the Court. If you want to challenge that in the next half hour or so, then you must do that. If you don't examine, then of course the same considerations will be taken. It's up to you. Yes.
THE ACCUSED: [Interpretation] Well, in this connection and in connection with what Mr. Nice said a moment ago, that it was my duty to question a report like this -- and here we're dealing with efforts by Mr. Zwaan to give us a sociological explanation of the phenomenon of genocide, which took as its basis, Jews, Armenians, Cambodia, and Rwanda and have an academic discussion on the phenomenon of genocide. He asked me -- he said I should challenge that now.
To bring forward an expert witness of this kind - because that is what this witness is - is yet another confirmation of my assertion that he 31211 is along the political and media lines and not in the legal sphere, Mr. May.
JUDGE MAY: It's a matter for you to ask your questions within the proper limits. Now, let us go on.
THE ACCUSED: [Interpretation] Well, I would like to emphasise that precisely what Mr. Robinson has just said, that this is - how shall I put it? - was launched intentionally so that on this occasion mention should be made of some sort of genocide, because they have no legal arguments Then. What they're going to do is delve in publicist aspects, because this is a more publicist approach, rather than a scientific one.
MR. MILOSEVIC: [Interpretation]
Q. Mr. Zwaan, in the introduction -- yes, I shall be dealing with the report, Mr. May. I'm doing so now.
In paragraph 2 you say that "The purpose of this report is not to question the existing legal definition of genocide, nor is it to step outside its frameworks."
I assume, Mr. Zwaan, that a -- when this legal definition is mentioned, you have in mind the one contained in the Convention on the prevention of the crime of genocide and punishing the perpetrators dated back to 1948 that was taken over in the statute of this so-called Tribunal and also taken on by the Rome court, the permanent International Court of Justice. Is that right?
A. Yes, I think that's correct.
Q. So your report in none of its parts analyses the legal definition of genocide then, which we are endeavouring, at least where Mr. Nice is 31212 BLANK PAGE 31213 concerned, to apply to concrete cases. On the contrary: From the report, we can see that its goal is not to analyse genocide from the legal aspects. So you're just quoting Article 2 of the 1948 Geneva Convention, and everything ends there; is that right?
A. No, I don't think that's right. What I did try to do are two things: I put forward in my report that there is a continuous discussion within history and social science about the meaning of the term "genocide," which is very complex and difficult. In that context, I also quoted the most widely known legal meaning of the concept of genocide, and that's why I quoted the Convention. But I did not have the object, as I state very clearly in my report, to get into any legal and/or juridical discussion about the concept, but I wanted to know what are accepted as general insights in the field of genocide studies about genocide. That's all. Thank you.
Q. Well, it is generally accepted what has been written down in the Convention itself, because if you are not dealing with those questions, how then do you think your report can assist any court of law in getting to know the elements of genocide and what it constitutes? Because any court of law, even one like this, which is an illegal one, is duty-bound to apply positive law and not to delve into somebody's theoretical concepts which have nothing to do with law. Is that clear to you, Mr. Zwaan?
A. No, that is not clear to me at all. I've never had any pretension of going into any legal discussion. I have been asked here to produce a general report which was -- which states the general historical and 31214 sociological aspects of genocide, and that's what I've tried to do as best as I can. And I hope to assist, thereby, to get some more clarification about a very difficult subject, but I do not pretend - let me say it again - to go into any legal definition and/or discussion.
Q. Very well. But I assume that you're not contesting that genocide is a crime, it is a criminal act, and therefore a legal category by the same token. I don't suppose you question that.
A. No, I don't question that, but I'm not focusing on it. Maybe I can say it in this way: I've tried to evade discussions about guilt in legal form. What is interesting to me as an historian or a sociologist is how such phenomena as genocide arise in certain societies under certain conditions. And that's what I try to understand. I'm not pointing at the guilt of certain persons and/or categories of people.
Q. Yes, I understand that. You deal with the sociological aspects of the phenomenon, or at least that was your intention, to deal with the sociological aspects of the phenomenon itself. However, is the fact that you do not deal with and analyse literature dealing with the legal aspects of the phenomenon -- and there are a lot - there is a lot of that - isn't that an indicator that you nonetheless wish to step outside the frameworks of the Convention on the prevention and punishment of the crime of genocide or don't you know about all this rich legal literature that exists on the subject?
A. I'm aware of the existence of quite a formidable legal literature on the subject, but I did not include that in any way into my report, nor did I comment on that. 31215
Q. My question was: Is that an indicator that what you wanted to step outside the frameworks --
JUDGE MAY: Let us not waste further time on this point. You've made your point. The witness has dealt with it. Now, just simply going over the same point endlessly is a waste of time. Now, if you've got any relevant questions, relevant, for this witness you can ask. Otherwise, it's a waste of time.
THE ACCUSED: [Interpretation] Very well, Mr. May.
MR. MILOSEVIC: [Interpretation]
Q. Mr. Zwaan, after quoting Article 2 of the Convention, in paragraphs 4 to 13 -- there seems to be some interference in the equipment. It's better now.
Anyway, as I was saying, after quoting Article 2 of the Convention, in paragraphs 4 to 13 of your report, you speak about the dissatisfaction of different authors, usually not legal specialists, with the definition that the Genocide Convention provides, and you quote other proposed definitions for the crime of genocide.
According to the authors that you refer to, the concept of genocide should be much broader than it is in the Convention and in other acts and legal documents which were -- which took over definitions from the Convention. Leo Kupar, for example, you talk about him in paragraphs 4 and 5, and others as well; isn't that right?
A. I would like to say that I quoted these different definitions to give the reader an insight into presently -- presently ongoing discussions within the field of genocide studies. It's also true, as you state, that 31216 some historians and social scientists have reflected on the pros and cons of the definition as given in the Convention, and I just try -- tried in my report to report just a small fraction of that discussion, that's all.
Q. Very well. It is obvious that behind you, just like behind Leo Kupar to whom you refer to in paragraph 5, the legal definition as you say in paragraph 5, and I'm quoting you: "Sometimes is too limited for historians -- is sometimes too limited for historians and social scientists who are trying understand and explain genocides and other mass crimes." Is that right?
A. Yes, that's correct.
Q. Now, do you happen to know from ancient times in law one of the most important principles was laid down, dura lexit lex?
A. No. Maybe you can explain that to me?
Q. A bad law is better than no law at all. So --
JUDGE MAY: What is the point of this, Mr. Milosevic? You want to make yet another -- yet another legal speech to a witness who is not answering in that way and has been told before we're not dealing with the law.
Now, you're taking up a lot of time on a point which may have no answer.
MR. MILOSEVIC: [Interpretation]
Q. Well, the point of this, Mr. Zwaan, is that law and laws must be respected, while -- until they are changed or amended through legal procedure. So do you know that the principle that I mentioned a moment ago is a basis for respect of the principles of legality, legal security 31217 and a series of other principles as well?
JUDGE MAY: If the witness wants to answer that, he can. Otherwise, it's nothing to do with him at all.
THE WITNESS: Maybe I can say two things. I'm not a lawyer, and I'm not discussing legal matters here. And the second point is I think you should realise, Mr. Milosevic, you are a lawyer, but there are different disciplines, like history and social sciences, and they operate on different principles than legal matters. Thank you.
MR. MILOSEVIC: [Interpretation]
Q. All right, Mr. Zwaan. Now, do you know that the provisions of the Convention which you mention, the one you mention, or to be more precise the most important of these provisions that you refer to, including a definition of Article 2, have outgrown the broadness of their application? Are you aware of that fact, that strengthens the position of the definitions contained in the Convention, and you say that the authors you quote are not satisfied with the definition?
A. I'm sorry, I don't understand the question here.
Q. Very well. Let me try and put it a different way. Do you know that the most important material provisions of the Convention have grown to become international customary law and that this was noted by the International Court of Justice with respect to the reservations on the Convention on the prevention and punishment, and it dates back to 1991.
JUDGE MAY: I'm going to have a discussion on this matter.
[Trial Chamber confers]
JUDGE MAY: Of course, Mr. Zwaan, you can answer this evidence if 31218 BLANK PAGE 31219 you want to, this question which is being put, but it really may have absolutely nothing to do with you at all.
THE WITNESS: No, I'm very sorry, I don't think I have any answer to this. I am aware of the developments of international law, more or less, but again, I'm not a lawyer. Not discussing legal matters.
JUDGE MAY: You hear that question, Mr. Milosevic. It's time you asked some questions which the witness can in fact deal with, instead of these other points which are your own interests. There is no point wasting your time with this witness and taking up your own time.
JUDGE ROBINSON: Concentrate more on the phenomena of genocide, Mr. Milosevic.
THE ACCUSED: [Interpretation] Yes, but what I want to do is to clear one point up here.
MR. MILOSEVIC: [Interpretation]
Q. In the ruling of the International Court of Justice and their opinion, the opinions stated by them --
JUDGE MAY: This is not for this witness to deal with. You can produce it somewhere else if you want when you have a lawyer you want to talk to about it, or you can address us on it. There's no point wasting time with this witness.
JUDGE KWON: Let me put it this way. What the accused is trying to put seems to me this: Do you allow a possibility that you, as a socialist -- I'm sorry, I beg your pardon, as a sociologist, that can regard a certain phenomenon which cannot be defined as a genocide under the Convention as genocide? 31220
THE WITNESS: Yes. If -- if I -- I got what you're -- you're asking, I would give -- I would like to give an example. Under the Convention, the killing -- the large-scale killing of people who belong to the same ethnicity as the killers is not defined as genocide, and maybe I could give the example of the large-scale killings in Indonesia in 1965, which was done by Indonesian police and military personnel, and they were killing Indonesians and they were killing them because they thought or suspected them of being communists. Such a case would not be defined as genocide under the present Convention, and it has been argued by some historians and sociologists that in the longer run such cases should also be considered as genocide.
JUDGE KWON: Thank you.
THE ACCUSED: [Interpretation] All right.
JUDGE KWON: Yes, Mr. Milosevic.
MR. MILOSEVIC: [Interpretation]
Q. Well, just to clarify one point, Mr. May. I started -- I broached the topic bearing in mind the fact that this expert witness brought in by Mr. Nice in his own paragraphs, paragraphs 4 to 13, speaks about the dissatisfaction on the part of various authors with respect to the definition contained in the Convention. And then I went on to explain that this dissatisfaction on their part and their line of thinking was completely irrelevant in view of the fact that the principles upon which the Convention is based is binding for all states, even in the absence of any contractual obligation because it has become part of international customary law, and therefore has been raised above the meaning and letter 31221 of the Convention itself. So it has become untouchable. And there dissatisfaction with the definition is quite irrelevant with that in mind. So that's what we're talking about.
A. I'm not sure whether I understand you rightly, but I would like to observe that historians and social scientists are working in other traditions than lawyers and juridical specialists, and they're trying in other ways to understand and explain very complex social developments like, for instance, genocidal processes about which you're talking here. And historians and social scientists are not primarily preoccupied with legal matters but trying to understand, let's say, social and human and political matters. Thank you.
Q. Very well. I understand your academic curiosity and interest, because of course any subject can be discussed and debated, but we have very specific questions to deal with here, and I assume that you know that the rules emanating from the Convention, and you say that in their reports various authors were dissatisfied, have become part and parcel of customary law. And peremptory norms, that is to say part of what is called ius cogens, that is to say norms that cannot be derogated either by international covenants or national provisions and laws. They are on a higher hierarchical level and as such untouchable, and you as an expert for genocide, I assume, must know that. They are inviolable.
A. I'm not sure what the question here is, but maybe I can clarify on one point. Many genocide scholars, historians and social scientists try to work with the generally accepted legal definition, but from time to time they find cases or they hit obstacles in their efforts to explain 31222 things with this definition. But Leo Kupar, for instance, and also Norman Naimark, and and also Eric Weitz, to name three very prominent scholars, have tried diligently to stay true to the definition of genocide as used in the Convention.
Q. Very well. But what about all this that I have mentioned, strengthening the position and raising them to a higher level of the most important provisions of the Convention, including Article 2 of the Convention, which you yourself refer to? Doesn't that indicate that from the legal point of view it becomes absolutely nonsensical to challenge the definition of the -- of genocide in the Convention and it's other important provisions because the stronger the position of these laws, the less there is any meaning to trying to challenge them. Isn't that right?
A. Let me emphasise again that my report does not challenge in any way the existing legal definition. My only aim was to show that in history and social science discussions are going on about this very difficult concept of genocide. That's all I intended, nothing more.
Q. Well, I don't think that is quite correct, Mr. Zwaan, because not only do the authors whom you quote question and challenge the definition governing the subject, but you yourself through in analysis in your report step outside what the Convention itself contains because in your sociological analyses you do not adhere to the legally established notion of genocide and the other provisions. Isn't that so?
A. No, I don't think that is true. Let me emphasise again that my report, as I stated at the beginning of the report, is a historical and sociological report. It's not a legal study. It's not a legal or 31223 juridical report. And I think you should see the differences between different disciplines. There is no automatic hierarchy between disciplines whatsoever. So you should acknowledge that there are different approaches to the same problem apart from the legal approach.
JUDGE ROBINSON: Nonetheless, it would be of interest to me, Mr. Milosevic, if you were able to point to parts of the report which you say depart from the definition in Article 2, because the witness has said that he himself has not done so. He has -- he has pointed to authors who have had difficulties with it.
THE ACCUSED: [Interpretation] Well, that's precisely it, challenging this and endeavours to expand it before an organ that pretends that it is a court. And we can treat the question only in light of firmly established legal norms that have passed the test of time, regardless of what anybody might think of them. Because here we're having a sort of academic debate, if I can put it that way, looking at the ways in which this can be -- the definition can be changed, in a narrow sense or a broader sense, and you can see that throughout the report. It's not a terribly lengthy report.
MR. MILOSEVIC: [Interpretation]
Q. But not to waste any more time, Mr. Zwaan let me ask you this: Part of your report, 14 -- paragraphs 14 to 17 is entitled war, civil war and genocide crimes, and in that section you make a distinction and comparison between genocide on the one hand and war and civil war on the other; isn't that right?
A. Yes, that's correct. I tried to differentiate these phenomena 31224 from each other. At the same time, I've underlined that they very often hang together.
Q. Very well. Now, is there any sense in the realm of sociology as the most general science governing -- about society or any other science for that matter to compare completely different categories, because war of any type and genocide are completely different categories and they are not comparable?
A. I do not think I compared them. What I tried to do is to make clear how our common concepts of war, civil war, and genocide refer to different parts of the same social reality in a certain situation under certain conditions it a certain time.
Q. Very well. You also say, and I'm quoting you: "That military and civilian victims of war are not considered to be victims of genocide and that the same holds true when we're dealing with a civil war," and that is contained in paragraph 14. I assume I've quoted you correctly.
A. Yes, you did.
Q. Does that mean that when you have two opposing sides, parties, and when those parties are at war it is difficult, well nigh impossible to speak about genocide? This would emerge from what you yourself state.
A. It is difficult, but it is not impossible, because the distinguishing criterion is whether people are fighting each other and both sides are armed and also organised to use force or, as in the case of genocide, people are killed or otherwise attacked, while one side in the conflict is armed and organised and the other side is not armed nor organised to use force. And that's the differentiating criterion. At 31225 least that's what I tried to argue.
JUDGE MAY: We're going to adjourn unless you want to ask something very quickly. We'll consider for the moment how much longer this examination should continue.
[Trial Chamber confers]
JUDGE MAY: Having regard to the time which has been taken, Mr. Milosevic, you have another 20 minutes should you require it of this witness to add to your examination.
We'll adjourn now for 20 minutes.
--- Recess taken at 10.31 a.m.
--- On resuming at 10.56 a.m.
JUDGE MAY: Yes. 20 minutes you have.
MR. MILOSEVIC: [Interpretation]
Q. Mr. Zwaan, I will quote now just the last paragraph -- the last sentence of paragraph 14 in which you say: "Civil war implies a conflict accompanied by violence between two or more armed organised parties in a society which were before part of one and the same sovereign state. The American historian and sociologist Charles Tilly has characterised such a situation as a revolutionary situation or a situation of multiple sovereignty where before one sovereign state with one clear central monopoly on violence over the whole of the territory existed, there are now several armed parties within the same territory embroiled in contest over the state, each claiming its own monopoly on violence, while the previous central monopoly has been fragmented and disintegrated." And then you refer in the footnote to the source. And then the 31226 last sentence is of key significance, as far as I understand your report, and I quote: "A civil war may also lead to considerable numbers of casualties among the fighting forces of the parties involved, and may bring about many civilian deaths, either directly through acts of war, or through atrocities related to military action, but again, the victims are usually not considered, are not considered victims of genocide." Does that mean, Mr. Zwaan, that in a civil war, to the best of your understanding and in the way you address it in your report, as a rule there is no genocide?
A. No. I think that would be quite a wrong conclusion. It's very well possible that in the context of a civil war, at the same time genocidal acts may take place. And I would refer here again to the differentiation I made earlier between killing defenseless people who are not armed nor organised to use force by a party, maybe a party in a civil war which is armed and organised to use force. So that would be the difference. Casualties which result from fighting between two armed and organised parties are usually not considered victims of genocide, and that's what I wanted to say.
Q. That is what I was referring to, in fact, because you say that in the case of genocide as opposed to a civil war, one party, and I quote you: "Are the persecutors and organised to resort to force, whereas the victims and persecuted are disorganised for the use of force." This is in paragraph 15. End of quotation. Can it be inferred from that that in a situation of civil war when all parties are armed and are at conflict with one another, the pre-conditions for genocide do not exist? 31227
A. No. I think a very important difference you should make here is between combatants and non-combatants. In every civil war you will have armed groups fighting each other, but next to them you will have, in general, a common civilian population who is not actively taking part in the violence or the military fighting but is usually a victim of what happens to them by the armed forces. So that will be a very important difference to my mind.
Q. Can one infer from your report that in a civil war, similar to the one waged, for instance, in the territory of Bosnia and Herzegovina, the pre-conditions for genocide did not exist as all parties to the conflict did have military force?
A. Well, again here that depends on how you would circumscribe the parties. If you would mean by that the armed forces of the different sides I could agree, but you should look also to the fate of people, and also females, children, elderly people, who are not armed and nor actively taking part in the military conflict. And if you focus on them, you might discover maybe acts of genocide.
Q. Very well. You say that the victims of genocide only sporadically resist. You say this in paragraph 15. And that resistance is regularly suppressed by the more powerful force. Can one infer from that that genocide -- that there is no genocide if the victims do have the necessary force to resist?
A. Here again, I think you're being too imprecise. You have to look at the specific situation and then see whether the victims of the violence of others were armed and/or organised and/or had the opportunity to 31228 resist. And you will find very often in cases of genocide that they don't have that opportunity and that they are not armed. So it's rather easy for armed groups, for instance paramilitary groups or police or military personnel, to dominate the group of victims or potential victims of genocidal acts because they are armed and organised, and the common people who are the victims are not.
Q. Very well. And does what you say mean that in situations when the parties are exchanging fire on a continuous basis and engaging in combat it is difficult to talk of genocide?
A. It may be difficult, but it still will be possible if you look precisely enough at the situation you're talking about, and then you might enable -- be enabled to see that while fighting is going on between different people, on the other hand, innocent people might be killed by one or the other party.
Q. Very well. You say that genocide is not a war or a civil war but a form of one-sided killing and the victims are unprotected and powerless. This is in paragraph 16. And helpless. Do you consider this to be a constituent element of the crime of genocide?
A. Yes, I think so.
Q. Thank you very much. Mr. Zwaan, in your report, you do not address, at least not adequately, one might even say that you do not address at all the subjective and objective aspect of the concept of genocide, what we referred to as mens rea and actus reus, that is the intent and the actual execution, and these are key elements of the concept of genocide. Why is that so in your report, especially in view of the 31229 fact that the mentioned elements, though they are part of the legal concept of genocide, also have their psychological, sociological, and other definitions that are closer to your studies? So this is in response to your question, Mr. Robinson, where a case when the expert is deviating from the set concept. Because by not speaking about it, you are not speaking about genocide as it is defined in this Convention. Isn't that so, Mr. Zwaan?
A. No, I don't think so. I think you get me quite wrong. Although I do not use the words "subjective" and "objective," I have certainly paid attention to the phenomenon you're referring to. For instance, by pointing out that there is a difference between individual motivations of perpetrators to participate in genocidal acts and a general sense of direction, purpose, and intent which may be imparted by a certain ideology, for instance extreme racist nationalism. So I do think that I made that difference without, however, using the words "subjective" and "objective," which I do not think are very sensible concepts in this context.
Q. But this subjective element, that is the intent to destroy a group, isn't it a key differencia specifica, the basic distinguishing element of genocide as opposed to other forms of violence? Of course not war because these are phenomenon of a completely different nature and character, which are simply incomparable. Would you agree, Mr. Zwaan, or not?
A. I'm not sure whether I get your question, but I would think that the intent to destroy a group, which might mean quite a few things apart 31230 from direct killing, but that the intent to destroy a group is certainly a distinguishing element of genocide. Yes, I would agree to that.
Q. Very well. In paragraph 27, in the part under the heading political leadership and the crime of genocide, you say that a decisive influence over the political decisions of the political authorities of the central level can be formulated in various ways. Some authors, like Chalk and Jonassohn, as well as Horowitz, talk about genocide by a state or other or by a state bureaucratic apparatus. As Helen Fein says, and you quote her, "Virtually everyone acknowledges that genocide is primarily a crime of [a] state. Others, however, prefer to speak in this context of the ruling elite, the political elite, the political establishment, (governmental and non-governmental) or the political leadership." If I understand you well, you have included in your report these references to confirm your thesis on the role of the state and the political elite in the time of genocide; is that right?
A. It's not only my thesis. It's a general opinion in the field I'm part of, that genocide is virtually always a crime of state and then you can phrase that in different ways, and some authors, as I have tried to show, will put the accent on the state as an institution, while other authors will focus on the fact that the state is run by people, by certain political elites, who might use the state for their own political ends. That's the difference.
Q. Very well. Proceeding from these quotations in your report, several questions come to my mind. First, is genocide committed by a group or individuals, members of a group, or is it a state crime as Helen 31231 Fein says that you quote?
A. I don't think that's a very sensible form of differentiation. Individuals, as you well know, are always part of groups, and groups, as you well know, consist of individuals. So there is no sense here in making any strong differentiation between these two things, I think.
Q. A second question that comes to my mind is, to use your own terminology, members of a group that have a lower level of political power, can they commit genocide or is it a crime reserved for the political elite?
A. Here again, I would like to point out that perpetrators of genocide are -- have to be differentiated. You have top-level decision-makers, you have sub-top-level or middle-level functionaries and commanders and you have lower-level personnel, and all these different layers in the hierarchy are in one way or another involved when it comes to genocidal acts. That's what I wanted to explain, tried to argue.
Q. Yes, but they are all, as you say here, are part of a certain hierarchy; is that right?
A. Yes. That hierarchy might be more formal or more informal. That's correct.
Q. My next question has to do with the previous references to what you call state crime. Are you aware of the principle of individual criminal responsibility which is the fundamental principle of criminal law?
A. Of course I'm aware of that.
Q. Are you also aware that the Convention on the prevention and 31232 punishment adopted that principle? I am referring to the Genocide Convention. It adopted that principle. It couldn't do otherwise, could it?
A. That's correct. Although you might think that there are also other ways to think about these phenomena apart from individual responsibility.
Q. The Convention mentions all the possible perpetrators from those at the highest level to the lowest ones, and it clearly states that the commission of genocide is not reserved for the elite, as you say, or people in power, but that it may be perpetrated by ordinary individuals.
A. I never stated that the commitment of genocide was reserved to political elite. I want to deny that very clearly. What I tried to point out is that during genocidal processes you have to deal with political elites who make certain decisions to launch such processes. Apart from that you have to deal with the hierarchy of the people who are involved in the actual implementation and carrying out of such grounds. That's what I wanted to underline.
Q. Very well, Mr. Zwaan. Tell me, please, since you use those four examples, the Turks and Armenians, the Jews, Cambodia, and Rwanda, was each of these cases or generally when talking about the phenomenon of genocide throughout history, was each of those specific or did all cases of genocide resemble one another? Namely, do you not agree that the circumstances under which the Armenians and the Jews were persecuted contained numerous elements which could not be found in other cases?
A. I would agree with you partly in the following sense: I think 31233 that every case of genocide has to be studied in its own specifics. That's one side of my argument.
The other side, however, is that we are not using the word "genocide" for nothing. It means that we believe that there are phenomena which we can group under a certain common concept, genocide, and that we may study them comparatively in the hope, at least as intellectuals, to understand a bit more about the general conditions which lead to such situations and phenomena.
Maybe I could give an example. If you use the concept of state, you think about certain general characteristics. On the other hand, you know very well that the present world contains nearly 200 states who are all different. Nevertheless, we use that general concept. And I think the same thing is at order when you talk about genocide.
JUDGE MAY: You have two minutes left, Mr. Milosevic.
THE ACCUSED: [Interpretation] I'll try to make the best of them.
MR. MILOSEVIC: [Interpretation]
Q. In paragraph 19, there is something that I must admit I don't understand, and I would like to ask you to explain. You say: "Naturally, conditions of war and civil war may contribute strongly to the development of such crises," which means that war produces a crisis. I was of the conviction and still am that a crisis produces war, generates war. What is your opinion, please?
A. Well, I don't think you should lose yourself in wordplay here. A crisis could be defined, in a very general sense, as a fundamental destabilisation of a certain society. War may contribute to that. It 31234 might be a symptom of the crisis. It might also be that the war follows from the crisis, but it's certain for me that the situation of war is also a crisis in itself. Maybe I should leave it at this.
Q. Very well. As I only have another minute yet, I assume two brief questions. Do you consider your report to be a fundamental analysis and identification of circumstances, at least from the sociological point of view, as you say in the introduction, that can lead to genocide? This is what you say in your first sentence.
Do you consider your report to be a thorough study identifying the circumstances which can lead to genocide?
A. I've certainly tried to write my report to the best of my ability, to explain what genocide is about and under which conditions it might or has taken place, certainly.
Q. Very well. And in paragraph 24, you say, and I quote: "It is still not -- it has still not been specified which factors and causal elements are decisive for the emergence of genocide and other mass crimes directed against specific groups."
In connection with this quotation, my question is to what extent you consider your report to be incomplete, because you yourself emphasise what I just quoted.
A. I think you're quoting me quite out of context. If you would have read the report, you would have realised that what I say there has a relationship appearing to what has been preceding, but then in the next paragraphs and continuing in the report I try to outline the conditions as best as I can. So you're misquoting me. 31235
JUDGE MAY: Yes. The amicus.
MR. MILOSEVIC: [Interpretation]
Q. Just a point of explanation. I didn't misquote you. I quoted every single word that is found in the report.
JUDGE MAY: Yes, the amicus. Questioned by Mr. Kay:
Q. Professor Zwaan, I want you to look at, first of all, about the disintegration and fragmentation of a state, and would you agree with this proposition, that when there is a disintegration and fragmentation of a state, what happens is that that causes the disintegration and fragmentation of that state's monopoly of violence, if it's accompanied by the formation of newly independent states who acquire their own monopolies of violence?
A. Yes, I would agree to that.
Q. And what you have there in that particular scenario of disintegration and fragmentation is a -- a complex process in the relationships between the parties.
A. Certainly.
Q. The disintegration and fragmentation may have been purposefully launched in the break-up of that state.
A. Yeah. In most cases you should presuppose that there are parties at work who aim deliberately at the disintegration of the state, yes.
Q. That's how it comes about. That's how the state fragments and disintegrates, because interested parties seek to pursue their own agendas in a different form to that which previously bound them to the main state. 31236
A. That may be the case, although you must remember that there may be causes of disintegration from outside forces, other states trying to invade a territory and so on.
Q. That's a further dynamic you can put into the picture that external influences --
A. Yes.
Q. -- may also cause that disintegration and fragmentation.
A. Certainly.
Q. Would you agree with this: That once such a process is launched, it can quickly acquire its own unintended dynamics, which are then no longer completely controlled by any of the parties involved?
A. I think you're quoting me, so I agree, certainly.
Q. Yes. And which may subsequently carry along all parties towards an uncertain future and outcome?
A. That is usually the case in situations of war and civil war, yes.
Q. Which means that the fragmentation and the disintegration which initially occurred, which had been put into a process that had been launched, that unintended dynamics from the launch of that process may occur that mean that the situation is no longer completely controlled by the original parties involved.
A. I would agree to that, but I would emphasise the word "completely." It's no longer completely controlled, but it might be very well partly controlled.
Q. That's a matter of degree.
A. Yes, certainly. 31237
Q. And once launched in that way, it may subsequently carry along all parties towards an uncertain future and outcome?
A. Yes. That has been called the tragedy of history.
Q. And once launched in that way, it may not be foreseen how these events are going to unfold in the future, what may exactly happen.
A. No. Nobody can look into the future. People can make conjectures but they can't know for sure.
Q. Fragmentation of the monopolies of violence are not controlled according to the old social controls.
A. I'm not quite sure what you mean.
Q. Social, political controls. They're not controlled by the state in the same way that it previously exerted its control.
A. All right. Although I would like to emphasise that you have to think in different phases. There might be a phase of disintegration followed by a phase in which new monopolies become visible and operate.
Q. Yes. And that's where it creates its own -- it may create its own unintended dynamics.
A. Certainly, yes.
Q. And comes out of the control or completely out of the control of the parties originally involved.
A. Parties will do their best to steer their own cause and control the processes as best they can, but maybe they are not succeeding in doing so, or only partly succeeding.
Q. That process that we have been considering and looking at, as you say, comes from words that you have written previously is a description 31238 that you would be prepared to stand by as to what would happen in the disintegration and fragmentation of a state?
A. What's your question precisely? I'm sorry.
Q. What we've been discussing you would stand by --
A. Yes.
Q. -- in your description of events that may occur in the disintegration --
A. Yes.
Q. -- and fragmentation of a state?
A. Yes. I would stand by that, yes.
Q. I want to deal with other -- one other matter, and that's at paragraph 16 of the report. It was touched on by Mr. Milosevic during his questioning of you, and it may be there's a passage of that that should be looked at as well in its full context. It might be helpful. I'm looking at the second sentence in paragraph 16. "Genocide is not war, nor civil war, it is a form of one-sided, not two- or more-sided, killing; the victims are essentially defenseless and helpless against the power of the perpetrators ..." We know the rest of the text there. It's not two- or more-sided killing. Perhaps you can explain what you meant?
A. I wanted to emphasise that in genocidal situations, whether they are about actual killing or other forms of trying to destruct people or the lives of people, that you have to deal with one party which is dominant, the perpetrators, the persecutors who are armed and organised and the other party is not. That's the difference I wanted to make.
Q. "Two- or more-sided killing" meaning? 31239
A. Well, you can have a conflict with two parties. You can also have a conflict with six parties. I mean, civil wars may be very complicated if you look at the actual warfare.
MR. KAY: Thank you. I have no further questions.
JUDGE MAY: Thank you. The Prosecution. Re-examined by Mr. Nice:
Q. Several matters, but first you've been asked by the accused for most of the questions about your report on the basis that you're concerned only with genocide. The title of the report is "Genocide and Other Mass Crimes Targeting Specific Groups".
A. That's correct, yes.
Q. And is your report and your conclusions concerned with characteristics of and conclusions that can be drawn when characteristics are found that relate to events that may be described as genocides but are more generally crimes that target specific groups?
A. Yes, I think so. I certainly think so.
Q. We'll come to some of those characteristics a little later. His Honour Judge Robinson asked you if you'd in any way tailored your report by omitting expressly reference to or consideration of Bosnia and what happened there. We'll come to the reason for your exclusion of Bosnia in a second, but is there any question of your tailoring your report to lead to conclusions about Bosnia?
A. I have not, to the best of my awareness, tailored anything in advance in any direction. I've just tried to write as best as I can, to the best of my knowledge, what I consider to be the main problems if you 31240 look at the phenomenon of genocide.
Q. Tailoring, were it ever to happen consciously or subconsciously, would be writing a report that lent towards characteristics found in one setting that aren't found in another. Without going into it in any detail, just answer this please, if you can: Is there, in fact, anything in consideration of the Bosnian situation that is eccentric to and different from and would lead to different expressions of conclusion from the other events that you have considered?
A. I think that should depend on further study of the specific case. I tried to bring forward several tools of analysis by reference to which you might try to understand the certain specific situation. For instance, in Bosnia, but that would mean that that would have to be done, and I didn't do that in this report.
Q. Very well. And you didn't do it for the reason that we've given or you've given at the beginning of the report on instructions from the OTP, namely that of course the final question in these matters is always for the Judges; correct?
A. Yes, certainly.
Q. Was it also the case, of course, to consider that the Judges have evidence that is simply not available to you in its quantity and sometimes at all because it's evidence in private session?
A. That's completely correct, yes.
Q. And that's -- those are included in the reasons why your report's been prepared in the way it has?
A. Yes, certainly. 31241
Q. The accused spent time arguing or asking you about other genocides committed in the Balkans by groups and individuals but never by the Serbs.
A. That's correct, yes.
Q. You refer to, in your report, when looking at the way these crimes may be motivated, at the collective memory, its use and abuse.
A. Yes.
Q. Is there anything further that should be drawn to our attention about the comparison that the accused is now making between genocides and similar crimes he attributes to the others while saying that the Serbs have nothing to be blamed for?
A. I think that conclusion would be quite wrong. If I may only point to one example. The partisan army of Marshal Tito in 1945, 1946 supposedly, and there were many Serbs involved there, supposedly killed rather large groups of Croatian Ustasha fighters and also Chetnik Serbian fighters. So we didn't go into it but I think -- and I want to emphasise that all groups in the Balkans have a very tragic history, namely that they have been victims and also often perpetrators of large-scale violent crimes in their history, and they remember that. That's part of the collective memory of people. And has been pointed out by other scholars you very often seen in cases of genocidal acts that you have to deal with repeat offenders, or that it happens again and again. And if you look at the Balkan wars and the First World War and the Second World War and the recent conflict in Yugoslavia, you see that memories of the past are continuously active in the new rounds of conflict. Thank you.
Q. As a matter of fact, did the late President Tudjman ever allege 31242 reciprocity of genocide?
A. I -- would you repeat the question?
Q. Yes. Did the late President Tudjman ever allege reciprocity of genocide as between Serbs and Croats?
A. To my knowledge -- I'm not quite sure here what you mean by reciprocity.
Q. Was it only ever alleged by the Serbs that they were victims or was it also alleged by the other side that they were victims?
A. The tragic thing is that most nationalist leaders in the Balkans tend to see themselves as victims and the others as perpetrators, and there is a very great lack of disposition to acknowledge any guilt in the historical process and that also has to do with the great lack of freedom under communism in the Yugoslavia. So the recent past of the Second World War was never discussed extensively scientifically and intellectually in a sufficient sense. So these old memories, which are partly truth and partly myth, have never been dismantled, so to speak, by serious research and serious open discussion.
Q. You made a reference in answer to an observation or a question by the accused to the dirt in front of the door. In the questions he subsequently raised with you, has he ever dealt with that topic?
A. Not to my mind.
Q. His Honour Judge Robinson queried with you the significance of numbers killed when the accused was proposing numbers in the Second World War killed larger than you would accept. Is maximising numbers a feature of reliance on collective memory when motivating crimes of this kind? 31243
A. That is very often the case, although I would also like to underline that there is real tragedy in the past of the Serbian people in this case that they have been victims of genocidal attacks. So there is some historical ground for Serbian people to see themselves as victims of the aggression of others, but this is also the case for Croatians and for Albanians and for many other groups.
Q. Mr. Kay asked you some questions about the disintegration of state and then went to the conclusion that further events may be unforeseen. I think two or three points. If a state or a republic or a federal republic disintegrates in a way that its component parts become separated and recognised, do those component parts and the governments of them then owe a duty properly to control the new monopoly of violence?
A. They certainly have that duty, yes, to my mind, yes.
Q. Once the duty exists and the state is recognised, is interference with that monopoly of violence from inside or outside one of the characteristics of this type of crime that you might look for?
A. You should certainly look at such events if they are there as pre-conditions for genocidal crimes, yes, certainly.
Q. And we'll come back to one or two of the ways in which your report deals with that later. But staying with Mr. Kay's question, it seems to be suggesting or allowing for the responsibility that in the unforeseen events of a disintegrating state, mass killings -- or this may be what it is directed at, mass killings of innocent people or mass expulsions of innocent people, unarmed, perhaps, is a natural phenomenon. You said in your report that this type of crime and event is not a natural phenomenon. 31244 Are you accepting that simply in the unforeseen events of a disintegrating state the mass killing of innocent people suddenly becomes a natural phenomenon?
A. No, certainly not. And I must also point to the example maybe of the break-up of Czechoslovakia which happened in a peaceful way by dealings between political elites from both sides. And I could also point in the case of Yugoslavia to the secession of Slovenia, which did not lead to large-scale killing. About 60 to 70 people were killed in the process.
Q. So that in your analysis if -- following a disintegrated state one finds, for example, mass killings or mass expulsions, does one look still for the same characteristics to see if we're dealing with this type of crime, genocide or similar?
A. I think so. You should study every case in its own context and then decide whether the one phenomenon or the other is occurring and try to explain why it does occur. At least that's as an historian or sociologist I would try.
Q. And Mr. Kay also asked you about one-sided killing. I think you told me yesterday, is it possible for these crimes to be occurring within a multi-sided conflict just harder sometimes to isolate the material showing their existence?
A. I'm -- I don't think so. It might be more -- it will be more complicated if you study a more-sided conflict, because you have to dispose of quite large amounts of more or less reliable facts. But it is not in principle more difficult than when you have to deal with two sides to a conflict. 31245
Q. A couple of particular questions. One general topic and then I'm done. There was a debate, a discussion about the necessity or apparently the necessity for victims of genocides to be armed. Is it in fact possible for these crimes, genocidal crimes, to be committed against armed people, indeed against combatants?
A. No, I don't think so. I mean, when people get killed in genocidal acts, they are mostly in all cases unarmed. And if they are armed, and I could give you an example, they will be disarmed before they will be killed. And I could give the example of Armenian officers and soldiers in the Ottoman army at the beginning of 1915, who were called to the ranks in relationship to the First World War, but when the Ottoman leadership, or the Turkish leadership, I should say, at the time decided to launch a genocidal campaign against the Armenians, all these officers and soldiers were dismissed from the ranks, they were disarmed, and they were organised in so-called labour battalions which were mostly worked to death frequently.
Q. I was going to ask you about another example. Would the uprising of the Jews in the Warsaw ghetto, thus they not being armed necessarily save that circumstance from characterised as genocide by sociologists or historians, whatever might be the position in law.
A. No, I certainly don't think so. I think you should realise that that revolt in the Warsaw ghetto was a revolt of very young people who had postponed their actions until nearly all the Jews already from Warsaw had been transported Treblinka, so only a small number of Jews was remaining behind, and at that time it was more or less desperate effort, also 31246 impossible to win, to put up resist answer against an overpowerful destructive enemy, the German army.
Q. Then finally, the accused in his questions about war and civil war -- or first of all, just this, as between war, civil war, and genocide, is it ever the case in your experience that leaders mask or seek to mask the reality of genocidal-type crimes by assertion that it is war only?
A. That is very often the case, yes. And it's still the case, for instance -- for instance, the present Turkish government, which is still arguing that the Armenians were not killed by genocide but by war actions. Just one example, but I could give you many more.
Q. The accused asserted that the pre-conditions for this type of crime did not exist in the territory with which we are immediately concerned. Your answer to that?
A. Is that a last -- that is not the case. They did exist, certainly.
Q. Now, the accused hasn't dealt with the detailed characteristics that you've identified, but do they include, for example, things like the impunity that may be accorded to paramilitaries?
A. Yes. That would be a very important consideration here, to my mind.
Q. A progressive event?
A. Yes, certainly.
Q. Something that only comes to be stopped by outside intervention?
A. Yes, usually. 31247
Q. Sustained for its duration by propaganda?
A. Yes. That's very often usually the case.
MR. NICE: I have no further questions of this witness. Questioned by the Court:
JUDGE ROBINSON: Can I just ask you, Dr. Zwaan. You were asked by Mr. Nice in reference to the -- a question by the accused that the accused said that the pre-conditions for this type of crime did not exist in the territory with which we are immediately concerned, that being Bosnia, and you answered, yes, they did exist, but then I recall that you said that you did not concentrate on the circumstances in Bosnia and Herzegovina. Your report doesn't deal with Bosnia and Herzegovina, but here you're giving an answer that relates specifically to Bosnia and Herzegovina.
A. If I understand you well, I see no contradiction here. I have been asked as well by Mr. Milosevic as by Mr. Nice more than one question about the situation in Bosnia, and I've tried to answer them as best as I can, but that does not mean that I've written my report with Bosnia in mind. On the contrary.
Is that sufficient answer to your question, sir?
JUDGE ROBINSON: Thank you.
MR. NICE: And as indeed the Court will remember as I explained this a couple of days ago, the writings of the witness in relation to the former Yugoslavia, insofar as they've been summarised in an English language version, were provided as a matter of courtesy to the accused and to the amicus so that they could know what his overall position was in case there was anything that he said that they wanted to contradict him 31248 with.
Your Honour, I haven't formally moved the report into evidence as an exhibit.
JUDGE MAY: No. That should be done.
THE REGISTRAR: 639, Your Honours.
JUDGE MAY: Dr. Zwaan, that concludes your evidence. Thank you for coming to the Tribunal to give evidence. We thank you for that.
THE WITNESS: Thank you, sir.
[The witness withdrew]
THE REGISTRAR: Your Honours, the curriculum vitae for Dr. Zwaan will be 640.
JUDGE MAY: Yes, Mr. Nice.
MR. NICE: Inevitably, as we reach the closing of this stage of case, there will be administrative difficulties, and I think it's better that I outline some of them now before I call the next witness, to both inform the Chamber and the parties because it affects the order of witnesses and in certain cases to seek relief.
I can deal with it mostly in open session and using pseudonyms where appropriate. The witness for today is ready, and I think tomorrow the probabilities are that we are going to be taking the witness Manning whose material is ready and has been served.
JUDGE MAY: Let me interrupt so we can make sure we have the record. How long do you anticipate the Prosecution will be with the next witness?
MR. NICE: I imagine one session. I hope not longer. The 31249 equivalent of one session.
JUDGE MAY: Yes. But then he will obviously be some time in the examination-in-chief.
MR. NICE: In cross-examination.
JUDGE MAY: In cross-examination.
MR. NICE: I'll try to take him as shortly as I can because he's been partly 89(F)'d and because of the desirability of being brief. But yes, he will be some time in cross-examination I forecast.
JUDGE MAY: Yes. Next.
MR. NICE: Then Manning to follow tomorrow. Manning, of course being an in-house witness so he can be called on, and as it were, sent back or dealt with part whichever is most convenient to the Chamber.
JUDGE MAY: Just pausing there and this witness is going to be some time or is bound to be. I notice that you refer to four hours. I'm not sure on what basis --
MR. NICE: That was much earlier and I think that was a time interval that slipped through earlier from the regimes of evidence in chief. I hope to be much less than that. I hope he will be much less than that. And I'm going to take only the matters that I think are truly valuable.
JUDGE MAY: Yes. We have got a fairly lengthy document here in his case.
MR. NICE: I will do my best.
JUDGE MAY: Yes. Very well.
MR. NICE: Next week at the moment on Monday, B-235 is listed, 31250 living no names or other material detail, a lengthy statement from this witness has been provided in English but only the day before yesterday, and the B/C/S version will be provided only today. From that lengthy statement, only a small part is required. At the moment, the summary is 11 pages. It may reduce, but of course I recognise straight away for him to be taken on Monday, even only the few pages, would require leave to abbreviate time. We would ask you to consider that, and we'll get the abbreviated summary to you as soon as may be for you to consider that. If he is not to be taken on Monday, it may be that we can advance B-1804, who would otherwise come next or who would come next. His material has been served. An 89(F) statement will, I hope, be served today. I think now I should ask for private session, please.
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THE REGISTRAR: We're in open session.
MR. NICE: There's no other witness I think on your list, present list, for next week.
If I can then -- and one of our problems is who to bring forward, if we can, to fill the gap. If the Court would look to -- I think it's probably on your list, the 5th of February, there's General Vegh. I think I've explained before that Hungarian General Vegh, whose report has been served, suffers from -- before I come to the circumstances of the witness, I should tell you that the Serb translation of his report is still not complete, one of the difficulties being the general overloading of CLSS and also their professional standard requirement such as footnotes are all provided to them in the original text. So they actually call for a lot of documents in order to check the accuracy of footnotes which is their standard and we don't gainsay it. But that's, I gather, the problem 31252 leading to the delay in the final provision of his served translation. We are seeking to get round that problem, but we can't be sure when the last part of his report will be available in B/C/S. Although I think it's been provided as it -- probably Friday as Ms. Dicklich tells me. You may not remember that General Vegh suffered catastrophic injuries in a road incident, and then after we'd retained him he suffered loss of hearing from which he has made a remarkable recovery by equipment that impresses everyone who sees it, but by reason of which he cannot fly. It's because of the inserts into his -- it doesn't matter why. Therefore, and experiments have been done and arrangements made for him to be dealt with by a videolink, but we haven't yet made the application because we weren't sure whether we would have time for him and we didn't know the date when he might finally be called. I think there's an outstanding administrative issue at the Hungarian end, but it is possible that those hurdles could be got round if the Court were favourably to view an application for videolink and that he could be accelerated into next week, maybe the 28th.
JUDGE MAY: Can I say this formally? There are a very, very large number of exhibits with which have been produced. I don't think you even know, if I can say bluntly, that you know how many you've put in, although you should. But the fact is that we need to keep this to an absolute minimum that we can deal with at the end. Otherwise it's putting too much on all those involved.
MR. NICE: And I'm acutely aware of that myself.
JUDGE MAY: So if any can be reduced in any witnesses who come, 31253 they should be brought to an absolutely bare necessity.
MR. NICE: I couldn't agree more.
JUDGE MAY: The total figure should be seen.
MR. NICE: I think the total figure has been calculated. Whether there is a running total going but it was calculated in accordance with your instructions.
So, Your Honour, there -- so the possibilities for next week and to which I will return obviously much more briefly but I'm setting out the whole difficulty now could be General Vegh. If it's not General Vegh, then we simply may not be able to fill those three days. We're doing our best, but there is that problem. And therefore, just to review it again, we would seek your indulgence as to the abbreviation of time in relation to B-235. We will seek your further guidance if it's appropriate for the following witness, and we may seek to accelerate General Vegh. Can I then go into private session for the next passage, please.
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JUDGE MAY: Just a moment. You'll have your chance in a moment.
THE REGISTRAR: Your Honours, we're in open session.
JUDGE MAY: Yes. Let him finish. Let the Prosecution finish, and then you'll get your chance.
MR. NICE: I have finished save to remind myself that the witness Theunens, the military analyst expert might also be accelerated into next week if there's a gap, subject to the fact that only three-quarters of his materials have been translated into B/C/S at the last count.
JUDGE MAY: It really would be of assistance to have something in writing about this because of the number and the --
MR. NICE: Yes. 31256
Q. -- Variation you want to make.
MR. NICE: I gather that the rest of Mr. Theunens's report is available today.
JUDGE MAY: Yes. It's important that everybody knows and it's important in particular that the accused knows what he is going to face at the time.
MR. NICE: Absolutely. So therefore to summarise it's the witness listed followed by Manning as time allows, then we hope B-235, then B-1804, and then possibly (redacted), possibly (redacted) for next week.
JUDGE MAY: Yes, Mr. Milosevic. What do you want to say?
THE ACCUSED: [Interpretation] I have noted down the things that Mr. Nice has just referred to, the changes with regard to the list of witnesses. (redacted)
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THE ACCUSED: [Interpretation] The -- what Mr. Nice mentioned in closed session, I will also refer to that in closed session -- private session.
Mr. Nice said just now that after this witness who is coming next that we will have Mr. Manning. I have received the material one might say on time, but the witness coming after that, Witness 235, I still haven't received any documents. It may be an error, but I wish to draw your attention to this.
Furthermore, Mr. Nice said that he will be followed by B-1804, and according to my notes, he said that for 1804 the material would be served today. I have to protest once again that I must have some elementary information about somebody who is planning to appear already on Monday. You have repeatedly said that I should get those documents at least ten days in advance, and in this case not even that minimum term has been observed.
Also, I heard you, Mr. May, explaining a moment ago which I believe is quite correct that in connection with this General Vegh, a large quantity of material has been disclosed. I don't have those documents. I don't have a schedule of witnesses in front of me, but I don't remember General Vegh being on that list.
And now with reference to the documents that Mr. Nice spoke about 10 or 15 days ago, Mr. Nice said here that he had finally received from the Yugoslav authorities minutes from meetings of the Supreme Council of 31258 Defence, and he symbolically showed with his hand a pile of them, indicating that there was a big pile.
JUDGE MAY: We have not as yet had the answer. We will mention it now since you raise it. Let me say about the other matters we have in mind the whole time that you should have the opportunity to deal with these matters in proper course. We have it in mind, and the Prosecution will produce their latest plan. But on that particular matter, perhaps you can tell us what the state of play is.
MR. NICE: As to the Supreme Defence Council document --
JUDGE KWON: Your microphone.
MR. NICE: As to the Supreme Defence Council documents, yes, the -- it's becoming clear that -- well, first of all, the accused has had a summary of them in English because they came with a filing. They are now only still available in B/C/S so far as the stenographic notes are concerned, although we have B/C/S and English versions of the minutes. I'm having the documents put together in a format which will enable each meeting to be dealt with separately so that the Chamber ultimately and everybody else will be able to go to a single tab and see the documentation for the particular meeting, although at the moment the English language version of the stenographic notes will not be available. My calculation yesterday, looking at the material, is that the material in English and in B/C/S, when finally composed, will be five files, so that one language or another will be about two and a half files of material.
JUDGE MAY: When is it likely to be ready? 31259
MR. NICE: I can't give you a date for the completion of it, but it's being worked on immediately and I'll come back to that possibly at the end of today.
JUDGE MAY: Yes. Is there anything else you want to add, Mr. Milosevic?
THE ACCUSED: [Interpretation] Precisely in connection with what Mr. Nice just said. He explained some ten or 15 days ago that he has the minutes from the Supreme Defence Council. He's adding now they're in Serbian. Of course they're in Serbian, because they were made in Serbian. He said about 15 days ago that they were at the disposal of myself and the amici and Your Honours, and my associate tried to get hold of those minutes or, rather, copies of them, and he was told that he couldn't get them yet. Now we are told that they will consist of some five big binders.
I really don't understand why I couldn't have been served a copy in the Serbian language ten or 15 days ago, or at least a day when they will consist of five binders. I don't need the English translation to review those minutes of the Supreme Defence Council, which will be tendered as customary in great haste and in enormous quantities. So please answer my question: How do you imagine that for a witness who is due to testify in ten days' time - and in the meantime there will be other witnesses - how can I read five big files of minutes from meetings of the Supreme Defence Council in order to be -- find certain relevant things, as you always say, to cross-examine the witnesses? And especially I think it is absolutely unfair for me not to have received those documents although 31260 Mr. Nice has had them for 15 days, and they exist in the Serbian language, and they could simply have been copied and handed to my associate who is present here, or at least could you give instructions for those documents to be handed to my associates today?
MR. NICE: Your Honour, the -- the accused reminds us that I said these documents were available. Of course at the time they weren't in the form that would have been most convenient. Ms. Dicklich, who I think has a good day-to-day working relationship with the accused, to whom she communicates in provision of documents and with his associates has no recollection of any request being made.
However, she tells me that there is a project in hand to get them on a CD-ROM, computer disk, available for the accused today.
JUDGE MAY: No, we cannot go on this argument. You've heard what they are prepared to do, to do the best they can to assist on the matter, and you should have the opportunity to --
THE ACCUSED: [Interpretation] But please, I cannot see a single reason explaining why I could not receive the copies of these minutes in the form that Mr. Nice has available to him. What does it mean they will be transferred to CD-ROM and they will give me that? They have those minutes. Please give them instructions to copy them and hand them over to me. This is no extravagant request. It's a normal request.
JUDGE MAY: Yes. The matter's being seen to. Now, we will adjourn now. It's time for a break, though rather early.
THE ACCUSED: [Interpretation] Please. You said -- 31261
JUDGE MAY: Yes. One at a time. We've got two minutes flat. Yes, what's your final point?
THE ACCUSED: [Interpretation] Finally, I wanted to make an objection in connection with the mention of a witness who he mentioned in private session, because I don't have any statement of that witness. And Mr. Nice is telling us that he will be appearing in ten days' time. I don't have the statement. I don't have anything about that witness.
JUDGE MAY: We have been through this, and you've heard what the position is about ensuring that there is the ability. Now, yes.
MR. KAY: One matter. There is a filing by the Prosecution before the Trial Chamber dated 20th of January for leave to call another witness, C-63, who hasn't been mentioned this morning within this context, which perhaps the Trial Chamber ought to bear that in mind concerning this application, further new materials, new witness at this stage of the case, given the burden of the rest of the witnesses on the accused.
JUDGE MAY: We'll consider that. Let us adjourn now. Twenty minutes.
--- Recess taken at 12.13 p.m.
--- On resuming at 12.39 p.m.
[The witness entered court]
JUDGE MAY: Yes, if the witness would take the usual documentation, please, which the usher will give you.
THE WITNESS: [Interpretation] I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth. 31262
JUDGE MAY: Thank you very much. If you'd take a seat, please.
WITNESS: HRVOJE SARINIC
[Witness answered through interpreter]
MR. NICE: Your Honours, there is a file of exhibits associated with this witness, most of the exhibits being produced by statement served under 89(F) of our Rules. May the binder be given a general exhibit number for us perhaps to review the status of any exhibits produced, whether for identification or otherwise at the end of the exercise.
THE REGISTRAR: 641, Your Honours. Examined by Mr. Nice:
Q. And your full name, please, sir.
A. Hrvoje Sarinic.
Q. Mr. Sarinic, have you provided two statements to the Office of the Prosecutor, respectively tabs 2 and 4, and are you satisfied that those two statements are correct subject to one or two corrections that we're going to deal with in live evidence today?
A. Yes. I confirm that I did make those two statements and that I abide by them.
Q. Tab 1 of our Exhibit 641 is a curriculum vitae of yours that I think you've seen approved and signed, revealing so far as material that has been a matter of public record, that in 1990 you were appointed first chef de cabinet to President Franjo Tudjman severing as his advisor between 1990 and 1998, holding various posts, and you've set out in the curriculum vitae that you were a chief of his office, Prime Minister, chief of the office of national security, and then in 1994 recalled to 31263 head his office becoming chief political advisor and a member of Croatia's national Security Council acting, between 1993 and 1994, as chief negotiator with the UN representatives and UNPROFOR. Operating as the President Tudjman's confidential envoy to this accused; correct?
A. Correct.
Q. In those circumstances, I trust the Chamber has the proofing summary that maps our way through the exercise of examination-in-chief, but what I will do in accordance with the Court's order is start with the first statement, which is tab 2 and deal with the parts of it that I must deal with in live evidence.
Setting a context, your first statement, Mr. Sarinic, deals with a meeting on the 26 of the January, 1991, with which I needn't trouble you, but then moves to deal with the meeting in Karadjordjevo in March of 1991, a meeting organised through the chef de cabinet Milinovic of the accused's office organised in secrecy and happening on the 26th of March.
A. Yes, that is correct.
Q. The meeting at Karadjordjevo, did you spend some 10 to 15 minutes with the late President Tudjman and this accused. In the course of that, did Tudjman say something to the accused about the log revolution? If so, what?
A. Yes. I was there for about ten minutes or so, as you said. I was with them. And during that period of time, President Tudjman told the accused that he was behind the log revolution and that, of course, did not benefit Croatian-Serb relationships which were actually the central issue in Yugoslavia. Having heard President Tudjman's statement, the accused 31264 disagreed, but he said significantly, "I believe that we can resolve all those problems."
I personally had the impression and thought about it, and in view of what happened subsequently, it all seemed to indicate that this sentence of the accused related to Bosnia and Herzegovina.
Q. The same -- at the same time, did the -- did Tudjman say something about the arming of Croatian Serbs, and if so, just in a sentence what was the accused's reaction to that?
A. President Tudjman said that Krajina was the Trojan horse of Serb politics in Croatia and that they could not prevail without the authorities headed by the accused supplying them and standing behind them. The accused denied that and said that he had nothing to do with it, that perhaps the JNA may be involved but that he had nothing to do with the JNA. And he absolutely rejected President Tudjman's statement.
Q. I think the two men spent about four hours alone together, between 3.30 and 4.30, and ended on the basis that they would meet again.
MR. NICE: And, Your Honours, paragraphs 6 and 7 are subject of correction; they are misplaced. They relate to the next meeting, and I'll come back to them at the appropriate time.
Q. Paragraph 8, on the return was Tudjman optimistic because of the talks?
A. Yes. Tudjman was highly optimistic, and he said that he believed that the problem would be resolved peacefully and that with the accused, he would be able to find a common way of dealing with the problem. He was highly optimistic. And I must say that I told the president that I didn't 31265 quite share his optimism because the accused always had his fingers crossed in his pocket.
Q. On the 30th of March, Goran Milinovic proposed a further meeting at Karadjordjevo but eventually the agreement was made that it should be in Tikves. Your statement deals with an intervening meeting on the 28th of March of 1991 when all six presidents met at a scheduled meeting in Split. But you only set out there what you were told by Tudjman about the meeting.
On the 5th of April at another leadership meeting, according to your statement, paragraph 11, Tudjman said that a question of dividing Bosnia and Herzegovina had arisen and that the proportion of forces would be crucial there because Slovenes are leaving, and he said the Serbs want a Greater Serbia; correct? Just yes or no if that's right.
A. Yes, that is correct.
MR. NICE: Your Honour, just give me one minute.
Q. So far as you were concerned and perhaps just add this -- I beg your pardon. The discussion on the 5th of April, was it referring back to the earlier meeting?
A. You mean the previous meeting in Karadjordjevo?
Q. Yes.
A. Yes. It was mentioned, but very briefly, because that meeting was normally to have been secret, but a certain number of men in the leadership of Croatia knew about it, and President Tudjman felt it would be a good idea to mention it.
Q. The 15th of April of 1991 was the day of the Tikves meeting? 31266
A. Yes, that's right.
Q. Again, did they meet in private?
A. First of all, you yourself said that the Serb side insisted on the other meeting to be held in Karadjordjevo as well, but President Tudjman refused because Karadjordjevo, for the Croatian public, had a bad connotation, because in 1971, the spring -- the Croatian spring was broken up there. So he wanted the second meeting to be held in Croatia, that is in Tikves. We agreed again on that meeting, that is the chef de cabinet of the accused and myself.
Q. Excuse my taking you swiftly through this material. We go back to paragraph 6 and 7 of your statement which you alerted us to that it misplaced by us there. It is in fact after this meeting that on the plane on the way back to Zagreb, the late President Tudjman showed you a piece of paper, and tell us about that and what he said about that.
A. First of all, after Tikves, President Tudjman was far less optimistic than he was after Karadjordjevo. That is the first point. So as we left shortly after the meeting, in the plane he said to me, "Here is what Slobo," as he called him, "gave me." And I looked at this piece of paper. It was written in black ballpoint pen, and roughly it said the following, that the Muslims were a major evil. Actually, that one should be cautious about this so-called green, zelena transverzala, going from Turkey, Bulgaria, Western Macedonia, Kosovo and Sandzak, and that this was a major threat for Bosnia and also for peace in the area, that the Muslims had already hung a green flag on Mount Romanija, a mountain close to Sarajevo, and that they wanted an unitary Bosnia and 31267 Herzegovina in which they would rule, while the Croats and the Serbs would be minorities.
I immediately returned this piece of paper to the president, and later on when we discussed it, he said, "Well, there's something in it."
Q. Did he tell you where he got the piece of paper from?
A. He told me, yes, that he had received it from the accused.
Q. Thank you very much. Paragraph 13 of your statement before we move on to matters that we don't have to give evidence about live. You express a view about whether or not the two of them reached any form of agreement. Can you explain how you formed your view about that and what your view was as to whether they reached an agreement?
A. There was no formal agreement. Had there been a formal agreement, then all those horrors that came afterwards would not have taken place. So I was just reflecting on this, on both presidents having their own ideas about Bosnia and the division of Bosnia. That is the truth. But I do not believe that a formal agreement was reached. As far as Bosnia is concerned, I can convey to you several positions held by both presidents with respect to Bosnia. President Tudjman, as an historian, was saying that Bosnia was a historical absurdity resulting from Turkish conquests in the fifteenth century. He said that it would be a good idea to thicken that thin slip of land in the south, and he also conveyed some other reflections of his regarding Bosnia.
As for the accused, he told me during one of our meetings that he can tell me quite frankly that with Republika Srpska, he had resolved 90 31268 per cent of the Serbian national question, just as President Tudjman had resolved the Croatian national question with Herceg-Bosna. I think I have formulated quite precisely what the accused said. And then on another occasion - this was, I think, in 1995 - I asked him, "President, why don't you recognise Bosnia?" And his reply was, "Which Bosnia? Whose Bosnia? What kind of Bosnia?" So he was absolutely denying the possibility of the existence of Bosnia. I have to add something here, and that is that, as opposed to what the accused stated, the Croatian authorities were the first to recognise Bosnia-Herzegovina. They were the first to send their ambassador. They supported the referendum on independence. They signed the Split declaration, et cetera, et cetera.
Q. Thank you.
A. Though I do have to say, if I may, if Their Honours allow me to finish, that even though in his reflections, but not only in his reflections but also in his statements, President Tudjman did give thought to the division of Bosnia as I have already said.
Q. Your statement goes on to deal with a meeting on the 27th of August of 1991 at Brioni. It doesn't involve the accused and it being taken in writing.
Paragraph 19 you deal with a meeting on the 8th of January, 1992, the Presidency of the Republic of Croatia, and again not involving the accused. We can deal with that in writing.
And we come, therefore, to the meeting arranged on the 9th and 10th of November of 1993. 31269
MR. NICE: Your Honour, I should have said that -- yes, tab 3. If you want to find the page references for what happened on the 8th of January meeting, the page references to guide you through the exhibit, if you want to find it, can be found in the proofing -- in the summary that's been served today.
Q. We move then to a meeting on the 9th and 10th of November, 1993, a meeting held on the instructions of President Tudjman to see if the accused had changed his position on anything and to see what his attitude then was on reintegration of parts of Croatian occupied by the RSK. And between that period and the end of 1995, I think you actually met the accused on 13 occasions, is it, as the confidential envoy?
A. Yes, that is correct.
Q. On the 12th of November of 1993, the first meeting, perhaps we'll deal with this really quite briefly. What did the accused tell you about forces of Izetbegovic?
A. Well, he said that the Muslims were amassing their forces in Central Bosnia, that they were rallying their forces to move towards the sea, towards Neum. And although he always spoke a little derogatorily of their military abilities and capabilities, that was more or less what was said. I don't know if that answers your question.
Q. I think that's enough for the purposes of identifying the meeting, which is not critical to the evidence you're giving. But perhaps you could just deal with this: In the course of this meeting, did you ask him about Knin and about Baranja, and did he give you a reply saying what was the effect so far as he was concerned about the establishment of 31270 Republika Srpska in Bosnia?
A. Those are two questions. One has to do with the so-called RSK, and there the accused said that Knin, at all events, was a Croatian town and that he had no territorial pretensions on Knin. I told him at that point, I said, "Mr. Milosevic, very well. That's as far as Knin goes. But what about Baranja?" And I had in mind generally Eastern Slavonia when I said that, not just Baranja itself. And his reply -- or, rather, I said a little jokingly, "I would like to know what you have in mind with a view to Eastern Slavonia." And he said, "Well, if you were able to see what was in my head, you would have a pleasant surprise." So this remained a little mysterious, but that in general was the position taken at that time by the accused.
Q. Did he say anything about resolution of his problems by any of the bodies we've referred to? Or not his problems, Serbia's problems.
A. Well, I think that that's what I said a moment ago, and that is that he told me, and that was towards the end of that particular meeting, that with Republika Srpska, he had solved 90 per cent of the Serb national question just as Tudjman had solved it with Herceg-Bosna, he had solved the Croatian national question. That's what he told me.
Q. Thank you.
A. And then at the end of that same meeting, we discussed, and the tone was a little more leisurely, I asked him something about Arkan and his units, and laughingly the accused answered and said, "Well, I have to have someone as well who is going to do part of the job for me." So quite certainly without the support of an army like that which numbered 5.000 31271 men, they couldn't have been supplied or armed or paid without having the accused stand behind it, because at the time the accused was all-powerful in Serbia.
Q. He said this, as you say, laughingly, but did you take it seriously? And if you want to qualify the way you took it, do so.
A. Well, I experienced it, and all of us who were there who knew about it experienced it as an expression used by the accused meaning that a skilful politician and a capable politician has to have people like that too. That's one side of the question. And on the other hand, we knew about everything that Arkan and his army had done, the evils they had committed. And we knew beforehand, before I actually asked the accused that question. And perhaps I asked the question for that reason. So we did know that the accused stood behind Arkan. And as the proverb says, there's always a little bit of truth in every joke. So although it was said laughingly, on a light note, I experienced it as being a reality.
Q. Thank you. I move to paragraph 28. In your early meetings with the accused, did the issue of Islamic fundamentalism arise? You've spoken of it already in relation to the piece of paper that the late President Tudjman had, but tell us about it, if it arose in these early meetings.
A. I would say that that was the leitmotif of the accused generally. And he said to me on one occasion that there were about 2.500 Mujahedin who had come in from other Islamic countries to help their brethren in Bosnia-Herzegovina. And he also told me that the Muslims are a great evil because of their demographic explosion and that it would all cost us a great deal unless we're cautious. So that this fundamentalism, and if we 31272 refer to the green tranverzala, the line I mentioned a moment ago, then this can be seen in very vivid form.
Q. On the 18th of January of 1994, to be particular, were you in Geneva with President Tudjman when at a meeting with the accused the accused touched on the demographic point in particular terms and also dealt with the media war or the media position?
A. Yes, I did attend that meeting, and roughly speaking, if I can paraphrase what was said and recall the words that were said, I think the accused said that the Muslims are a great evil because of the great birth rate, the demographic explosion. And they have also won the media war.
Q. The last two lines or three lines of paragraph 30 have already been covered by the witness. Paragraph 31 is in in writing. Paragraph 32. Did you speak to the accused after a first round of elections at which Babic had secured a narrow win?
A. Yes, I did speak to him about that, and I joked with him a little because he stood behind Martic. And at that time, he said that Martic was the most capable man, et cetera, and I teased him a bit, because in the first round, Babic had won -- or, rather, let me say that a little before the elections took place, I said to the accused, "Well, I'm not sure that Martic will win, because Babic is backed by the Orthodox church." And his answer to me was, "Well, the Orthodox church isn't standing behind me and yet I am what I am." So that's the first point.
And after the first round when Babic won, I teased him a little, as I say, and I said, "Well, your prognosis, your forecast don't seem to have been quite correct." And he said, "Yes, but I can see that there 31273 were some irregularities." "I hear there were some irregularities in the elections," rather, and after that the whole thing was declared null and void, and Martic was elected as president of that so-called RSK.
Q. What did this show you, if anything, about the accused's power in that region?
A. Well, it did show me something. It showed me what I already knew, because as you yourself said, I was involved in all the negotiations, and I knew the people involved, and I knew that without the accused, nothing could be done. And so this was yet further confirmation of that. If you needed to have any proof, it was confirmation of what we all knew already.
Q. And you set out that later on the accused's attitude toward Martic was somewhat different, and he described him in unappealing terms, I think.
A. Yes, that's absolutely right. Those assessments and his approach to people generally -- well, the accused would change his approach to people. And as Martic was in favour of certain steps or didn't follow the lines of the policies pursued by the accused, so then the accused said, "He's an idiot. He ought to be arrested. He's doing silly things." So that was the time when he gave instructions for the bombing of Zagreb, which compromised, absolutely compromised overall Serb policies, because the international community viewed this in its entirety, as a comprehensive phenomenon.
Q. In writing, you deal with a meeting you and Prime Minister Mile Akmadzic had with Karadzic and Krajisnik on the 3rd of December, 1993. Several days later on the 9th you met with the accused, David Owen, 31274 and Thorvald Stoltenberg. On this occasion you negotiated about granting Bosnian Muslims and Bosnian Serbs access to the sea. In summary, can you tell us about that?
A. Yes. That was a desire or, rather, condition for a peaceful solution, to give them an outlet or access to the sea, both to Republika Srpska and to the Muslims. And then -- I don't want to go into the details, the geographic details at this point, but it was to the very south, in the southernmost region of the Croatian coast, from Molunat to the Ostro promontory. And both sides or, rather, Republika Srpska wanted to have access to the sea there, and the Muslims insisted on having an outlet at Neum. However, in negotiations with the Serb leadership, what was stated was that we should offer both parties a part, a section and I must say that was only on the level of theoretical negotiations, because, of course, without parliament you couldn't give a single square kilometre of the coastline to anyone. But anyway, President Tudjman insisted on this and said that we're going to be in favour of that. "I'm going to put that view to parliament. If it were to be a global solution to all the misunderstandings and outlying issues with Serbia, the RS, RSK, and so on and between -- in order to arrive at a global solution."
Q. The point is was Milosevic -- or one of the points is was Milosevic negotiating with you on behalf of the Republika Srpska?
A. Yes, that's absolutely right. He was very active in that respect, and he did negotiate. And I even think that he had authorisation, if I can use that term, to negotiate on behalf of Republika Srpska, because, for example, he said to me, "Well, why are you splitting hairs? You have 31275 thousands of kilometres of coastline and now you're splitting hairs over some 20 kilometres." That's the kind of thing he said on behalf of Republika Srpska and for their advantage.
Q. You make the point in paragraph 36 of your statement that all other Serbian leaders addressed Milosevic formally, the power of the accused, formally apart from Miomir Minic who was a person friend of yours, and on question of personal relationships, you move forward to 1995, and the RSK Prime Minister Borislav Mikelic visiting the accused in Belgrade, and you were astonished by something you saw.
A. Yes. There was this -- well, I don't know whether Mr. Minic's first name is Miomir. But never mind, that's not important at this point. What happened is that one day I happened to be in the offers of the accused, and the telephone rang, and I understood that they were discussing topics about what should or should not be done by television and said over television, and I saw him use the familiar form of the second person singular. With everybody else, and you can see this from the taped telephone conversations and other things, but from what I was able to see myself --
Q. Can I move you on to Mikelic, please, because we've had quite a lot of evidence about the accused's address. Borislav -- Borislav Mikelic in 1995.
A. Yes. Yes. I'll tell you the following. So we discussed these problems about opening the motorway and the problems that were outstanding, and I said, "This quite simply can't be solved in this way." To which the accused said to his secretary, "Call Boro Mikelic up for me." 31276 And I was rather surprised, because in ten or 15 minutes' time, he arrived from somewhere in Belgrade. And when he saw me in the office, he said, "What are you doing here?" And the accused said to him, "Sit down. Sit here and listen and don't ask questions." But this was said in such a tone of voice that I saw their relationship and felt the kind of relationship they had, which was the relationship of a master towards -- not to use the word "servant," but a master towards people who had to listen to him and who were in his service.
Q. Another incident, 12th of February, 1994, at a FRY delegation to Croatia. Was Zeljko Simic, the Yugoslav deputy Minister of Foreign Affairs, negotiating with Croats, with yourself or the Croats?
A. This is how it was: I attended the meetings. I think he was the Foreign Minister, not the deputy Foreign Minister, but I'm not quite sure. So we can have that checked out. But he did come, and he was a guest of the service, of Mate Granic, the Foreign Minister. But I also took part in the negotiations.
After that, we left the building of the Ministry of Foreign Affairs to the presidential Dvori palace where Simic took me aside into a corner and said, "Listen here. I think it's in your best interests for me to be the Foreign Minister, because if you talk to anyone else and negotiate with anyone else, then you'll see that Milosevic has surrounded himself with Chetniks and you won't be able to get anywhere with them." And then he asked me personally to talk to the accused, because he said that, "The accused respects you, and it would be a good idea for you to tell him to keep me in that position, to keep me on." 31277
Q. Move on to the 13th of January, 1995, a meeting in Belgrade. I think if we can just summarise paragraph 39. Did he say something to you very briefly about what Martic and Babic had been doing at the beginning of the conflict?
A. Yes. I think that on two or three occasions he actually told me, "Take care, because Babic and Martic have already committed atrocities and they have nothing further to lose." So the accused was not quite specific as to what he meant when he said "atrocities," but quite certainly there was something in it, something there, and that was that the accused did like to replace people and then would accuse them of atrocities. They did commit some atrocities, but he wasn't specific as to tell me what those were.
Q. And on the question of replacing people, did he at this meeting say what the future held for Vladislav Jovanovic, the Foreign Minister?
A. Yes. Well, I noticed at that meeting that we weren't getting anywhere with Jovanovic because he had a negative attitude in all the negotiations. And then he stopped me, the accused stopped me, and said, "I'm going to tell you something now, but I don't want you to repeat this to anyone. I don't want you to repeat it to the public." And then he said, "I will replace Jovanovic."
Q. Did he say anything more about how or why he was going to do that?
A. Well, yes, he did. Or, rather, I think the reason, I told him, that is to say, that we couldn't negotiate with him was just one of the reasons. I don't know about the other reasons.
Q. Did he also address you in what you describe as a long monologue, 31278 at the end of which did he say significant about Bosnia, saying something about the solution to the problem and Sarajevo?
A. Yes. He spoke to me about Bosnia, and that was the leitmotif of the accused's relationship with Bosnia.
Now, as far as Sarajevo was concerned, he said, "Sarajevo is not a Serbian town," and in that sense -- or, rather, this was in the context of speaking about the subject of Serbs, Muslims, what was being offered them, whether what was being offered was qualitatively okay or quantitatively okay. And he said, "We're going to let them have Sarajevo. And apart from that, the Serbs don't have more than a 50 per cent right to Bosnia-Herzegovina."
Q. Did he link the yielding of Sarajevo to an exchange for any other territory?
A. Yes, that's absolutely right. There was mention of the eastern enclaves, for example. However, he was not -- or, rather, the accused wasn't along the lines of Karadzic's thinking, Karadzic to begin with, because he said to me, "Well, these enclaves to the east, we can let them have then, because anyway, they'll come to belong to Republika Srpska in due course and then Serbs -- to the Serbs generally." So he didn't want to have this as a condition and so have to compensate for giving them that. So he said, "Let them have it."
Q. Finally as to Abdic in Western Bosnia. Did he say anything about him or his relationship with him?
A. Yes. As far as Abdic is concerned, he would say to us, "Well, it's best for the SAO Krajina or, rather the area as it was called at the 31279 time, the regions there, for you to take them into Croatia so that they should be in a confederal relationship with Croatia." And to that I said, "Well, listen here. You must know that that is unacceptable, because in that case, you cross the RSK to be within a confederation with Croatia." And on the other hand, he said that he had good relations with Abdic, that Abdic came to see him from time to time, that Abdic was himself in a very difficult situation. And I remember very vividly him saying, "I have just given him an order -- given an order for him to be supplied with 12.000 blankets. So help him too. You can help him too."
Q. Later the same day were you joined by Borislav Mikelic and did the topic turn to Karadzic?
A. Yes. I can't tell you what period of time this was exactly now, but I do remember that the accused kept playing between Karadzic and Mladic, balancing the two, and that Borislav Mikelic told me, "Mladic is 200 per cent Milosevic's man, because I drove him to see him two days ago." I think that was in January, sometime in January 1995. As far as Karadzic is concerned, he said, "Karadzic is a lost man, but he doesn't know it yet. And I'll try and topple him, but I'll do so via people in Banja Luka, who are reasonable people." And he also said, "I have a meeting with 20 some people from Banja Luka in two days' time, and then this would give us a majority in parliament, and we would able to topple Karadzic."
Q. Paragraph 44 -- before perhaps I'll come back to paragraph 43, but paragraph 44, did the accused say anything about Karadzic's political viability at that time and give you any advice as to what you should do so 31280 far as having contact with him?
A. Yes. As regards his assessment of his future, it was absolutely negative. He said that he was a lost politician, as I have already said, but that he wasn't aware of it, and that as far as he was concerned, at the time, he was on an anti-Karadzic position. I don't know what else I could say about that except that the accused realised that in such a situation in Republika Srpska, he had to play the military card, and the absolute authority in the military was Mladic.
Q. Now, briefly, paragraph 43. I think you asked the accused about Croats who disappeared, and he offered to help with their location. In the event, did anything happen?
A. There were two things. On a number of occasions, I spoke about the position of Croats in Serbia and said, "Well, do something, please." And the accused was surprised and he said the lady Minister in the area is a Hungarian, and she has a feeling for these things, et cetera. And then he said that the leader of the Croats in Serbia was Bela Tonkovic, and he said, "Tell him to come to see me tomorrow and I'll see to it." And then I said, "President, there are quite a number of people missing, and their families need to know where they are. So please do something for that information to be obtained." And he promised he would. However, I never saw any results of that promise. He never kept his promise.
Q. In paragraph 45 you give an example of the accused's intervention in respect of trucks of seeds en route to the RSK that were stopped by the Croats, the accused coming on the telephone and asking what of you?
A. A couple of hours prior to that I was in Belgrade, and I was 31281 returning at the Pleso airport in Zagreb, and the people from UNPROFOR told me, "Call up this number to reach Mr. Milosevic," a number in Belgrade. I even remember the number. It was 184-162 in Belgrade. And I called -- dialed the number. I got the secretary and then the accused also at the other end. And the accused said to me, "Listen, Hrvoje, there's three trucks at the border. Please let them through. These are trucks carrying seeds, et cetera." I said, "Fine, I'll check this, and if that is so, we'll let them pass," which is what we did. But I have to say that I was especially surprised that the president of the republic should intervene for three trucks. However, this illustrates to what extent the accused was involved in the RSK and, naturally, therefore, also in the RS.
Q. Moving to May 1995. In writing you set out how President Tudjman played recordings of two conversations intercepted between the accused and Perisic. But then on the morning of the 3rd, two days later, did the accused's office call you and did he sound upset and speak to you informally? And then tell us what he said.
A. Yes. This was shortly after the Operation Flash. We were at lunch, and I was told by the protocol that President Milosevic was on the line, and I picked the receiver and I hear him telling me furiously, "Why are you doing this? Why did we spend so many hours in discussion?" And then I responded, "Well, President, you see what the situation is like with these Serbs in Krajina over which you have considerable influence. We can't achieve anything." And Croatia was in a position when it had to deal with the problem militarily. But I said, "Get Martic and Celeketic replaced." Celeketic in those days was the number one in the RSK army. 31282 "Replace them and then you will see that the situation will improve immediately." His response was, "How can you say that to me? I can't replace them because I didn't appoint them." And then he slammed the receiver down.
Q. Moving on to August and September 1995. I can go straight, I think, to paragraph 49 for our purposes. Or indeed 50. Did you have a meeting with the accused in Belgrade on the 20th of September, 1995, where you speak about the organisation of the Bosnian state?
A. Yes.
Q. What was the accused's position?
A. Well, at that meeting, there was a discussion on the implementation of the decisions of the Contact Group and the liberation of 70 or 72 per cent of Bosnia-Herzegovina that was required by the Contact Group. Of course -- I'm sorry, could you give me the date, please? Could you repeat the date once again?
Q. May I interrupt you because I think it's another meeting that you've got in mind much this is a meeting that happened before Dayton and where there was discussion about some everything the problem without the international community, if that triggers your memory.
A. Oh, yes. Yes, it does. I'm sorry, I got confused over the dates. Actually, at that meeting the accused said to me, "Look, we've had enough of this, Hrvoje. Let's each of us take our part of Bosnia without the international community. The US," that is the America, "is cradling this bastard without themselves knowing what they're doing, nor are they 31283 familiar with our problems." At the conference, he says conference, he didn't mention Dayton but it was a reference to that, "Be along our lines. We are against an unitary Bosnia. Let it be a Bosnia of two entities and three nations in which all decisions will be taken by consensus." I think that that is the correct interpretation of the content of our conversation.
Q. Was there a reference to what he described as the roof of Bosnia and Herzegovina, and if so, what did he mean by what he said?
A. What he meant was the roof should be as thin as possible, which meant that the institutions which would be a kind of roof authority or umbrella authority should be as weak as possible, as thin as possible, which would mean that the entities should have far greater authority and should not depend on the decisions of the central authorities.
Q. Finally for meetings from this statement, Kosovo on the 10th of March of 1998. Did you meet the accused for the last time, and did he say to you whether he was or was not going to establish a provincial parliament and what his attitude was?
A. First of all, this was my last meeting with the accused when he was president of Yugoslavia, and I went there as the president of the auditors of our company INA. And through the ambassador, Zeljko Knezevic, who knew I was coming to Belgrade, he expressed the wish to meet with me. And among other things, we discussed Kosovo. And this was an unavoidable topic in those days. And he said that he would resolve the problem of Kosovo. Or, rather, I said, "Tell me what your views of Kosovo are, because people from the international community are coming to Croatia and 31284 asking us for our opinion." His response was, "We will organise a bicameral chamber in which there will be no outvoting, no possibility of outvoting one by the other." And I said, "Well, President, that's fine, but that is far less than the -- than what Kosovo had according to the 1974 constitution." He said, "Yes, but that was a mistake which we will not repeat at any cost."
Q. From your meetings with the accused, you offer a characterisation that includes the phrase "two irons in the fire." Could you explain?
A. This was in connection with Bosnia on the one hand and the RSK on the other. On a number of occasions, I said that differences in the approach to the problem between Tudjman and Milosevic were that the former first wanted to resolve the problem of Croatia, whereas the accused wanted first to resolve the problem of Bosnia and then other matters. However, as the accused had 30 per cent of Croatian territory under occupation and about 70 per cent of Bosnia under occupation, then he was the boss as one might say in all those territories, and that is why as a figure of speech or a metaphor, if you like, I said that he held two prongs in the fire, that is, Croatia on the one hand and Bosnia-Herzegovina in the other, which of course facilitated his approach in all negotiations.
Q. Finally paragraph 54. From your meetings -- finally for this statement, from your meetings with the accused, what was his view of the influence and effective influence of outsiders in the world who were interfering with what was going on?
A. I think that he belittled other people. He even said that the international community didn't understand anything about our history or 31285 our problems, and so on, and they're interfering without knowing what they're talking about. And there was an example,, the well known Z-4 plan drafted by Peter Galbraith and Ahrens, and he said, "Those are those idiots Galbraith and Ahrens prepared them without knowing themselves what they were doing." So this attitude was a highly critical one towards those people.
MR. NICE: Your Honour, the next topics are the three additional meetings which I can deal with very briefly which are referred to in the summary. If I can return to those. I say nothing about any underlying materials for the time being.
Q. Just tell us please if there was three other meetings that you can help us with. On the 13th of March, 1995, at a meeting in the presidential palace of the late Tudjman, did you - paragraph 4 of the summary - remind the accused that he said that the Serbs had now the right to more than 50 per cent of Bosnia and thus meant that Serbia was becoming larger? Sorry. Beg your pardon. It wasn't a conversation with him. You were reporting this conversation to Mr. Tudjman. I'm grateful to Ms. Pack for correcting me.
Do you remember that?
A. I do remember to the extent that after meetings with the accused, I immediately went to the presidential palace while what I had discussed was still fresh in my memory and what I could note down on the plane returning, but I didn't quite understand the specifics of your question.
Q. Yes. What as you noted down on the plane was the accused's reaction to your proposition that even at 50 per cent of Bosnia, Serbia 31286 was going to become larger. Did he say something about what Juppe said to him?
A. Juppe? Oh, I see, Juppe. I'm sorry. I have to say that I noted this down in those discussions with the accused. I couldn't write down anything. I would just jot down a word or two on a piece of paper, and then on the flight back I would draft my notes while they -- it was still fresh in my memory.
Juppe, as far as I can remember, was extremely upset and revolted by the positions of the Serbs in the RS regarding the opening of the Sarajevo airport. That is what I recollect very well. And he was highly critical and very rough in relation to Karadzic who refused to open the Sarajevo airport.
As for the rest, I'm not quite sure about it, so I'm unable to say.
Q. Very well.
MR. NICE: Your Honour, I don't know what time we're sitting to.
JUDGE MAY: The time is coming up. How much longer do you anticipate for this witness.
MR. NICE: Not very long at all. Can I explain the position? There's a small part of his evidence, the part we're at now, which will have to be done in private session pursuant to an order of the Court, and then that's -- and then production of all the exhibits is done by the 89(F) statements, although there's a question that we're going to ask the Chamber in respect of the production not just for identification but the full production of a very limited number of intercepts. The reason for 31287 that can be seen in the schedule of the witness who speaks not only of identifying two witnesses but also of having seen such intercepts contemporaneously. So that's the open issue.
JUDGE MAY: We should also consider how long the accused should have in relation to this. Just one moment.
[Trial Chamber confers]
JUDGE MAY: Tomorrow, once the Prosecution have finished, you can take up two hours and a quarter, Mr. Milosevic, to examine as this matter. We will consider the matter, if necessary, any further. Mr. Sarinic, thank you for coming. Could I add this in your case, not, of course, to speak to anybody about your evidence until it's over, and of course no one should try to talk to you about it. If there were anything, let us know. But if you would be back, please, at 9.00 tomorrow morning to conclude your evidence tomorrow. Thank you very much. We will adjourn now until 9.00 tomorrow morning.
--- Whereupon the hearing adjourned at 1.51 p.m., to be reconvened on Thursday, the 22nd day of
January, 2004, at 9.00 a.m.