²⁸⁹⁴ Wednesday, 24th November, 1999

(Open session)

--- Upon commencing at 10.10 a.m.

JUDGE JORDA: [Interpretation] Please be seated. Registrar, would you have the accused brought in.

[The accused entered court]

JUDGE JORDA: [Interpretation] First, let me be sure that the interpreters can hear me. Good morning to all the interpreters, and I would also like to say good morning to the representatives of the Office of the Prosecutor, and Mr. Nice,

Mr. Tochilovsky. And good morning to Defence counsel, Mr. Greaves, Mr. Londrovic, and to the accused. I believe that we can now begin, because the witness, who couldn't testify a few days ago because he was sick, I think can now be brought in. Is that correct? Mr. Greaves? Mr. Nice?

MR. NICE: I am only on my feet to explain that the gentleman sitting on my right, if this is acceptable to the Court, is Dr. Duits, the psychiatrist who has prepared a report and who I would be calling, I forecast, with your leave immediately after the next witness.

JUDGE JORDA: [Interpretation] I would like to ²⁸⁹⁵ ask Mr. Greaves, who is going to call in Mr. van den Bussche -- is he feeling better? Mr. Greaves, is he feeling better today?

MR. GREAVES: I haven't actually spoken to him, but I anticipate so.

JUDGE JORDA: [Interpretation] Well, I hope he is the one who can talk.

MR. GREAVES: Certainly.

JUDGE JORDA: [Interpretation] Do you have any problem in having Dr. Duits sitting here?

MR. GREAVES: It is a procedure with which I am entirely familiar in my own system, and I have no objection to my learned friend having the assistance of Dr. Duits.

JUDGE JORDA: [Interpretation] The Judges see Dr. Duits' presence as an advantage.

All right. We can now move on.

MR. GREAVES: If we may have the witness.

[The witness entered court]

JUDGE JORDA: [Interpretation] Good morning, doctor. Do you hear me?

THE WITNESS: Yes.

JUDGE JORDA: [Interpretation] You do. We hope that you will be able to speak today. Do you feel better. ²⁸⁹⁶

THE WITNESS: I feel a little bit better.

JUDGE JORDA: [Interpretation] Not really great?

THE WITNESS: Not yet.

JUDGE JORDA: [Interpretation] As we say in France, the shoemakers are the ones who have the worst shoes. Well, you are a doctor, and perhaps you didn't take proper care of yourself. Well, we'll try to continue with our work. First of all I am going to ask you to take an oath. You took an oath. All right. You don't have to do that, then.

Thank you, Judge Rodrigues, for reminding me of that.

You may be seated. Please proceed.

WITNESS: BERNARD VAN DEN BUSSCHE [Resumed] Examined by Mr. Greaves:

Q. Mr. van den Bussche, I will be as quick as I can, in view of your condition.

Can you first of all help us about this. Your full name is Bernard van den Bussche, and you are a forensic psychiatrist; is that correct?

A. That's right.

Q. Were you initially sworn in 1985 as a permanent judicial expert by the Court in Amsterdam?

A. Yes, that's correct. ²⁸⁹⁷

Q. Would you be so kind, please, as to tell their honours what your professional qualifications are?

A. Yes. In 1985 I worked for the Forensic Psychiatric Service, Amsterdam, as a forensic psychiatrist --

JUDGE JORDA: [Interpretation] Speak slowly. Speak slowly. Don't try to fatigue your voice too quickly. Just answer gently, quietly, and also allow the interpreters to do a proper job in interpreting you. Thank you very much.

A. The Forensic Psychiatric Service in the Netherlands, all branches of the Dutch Ministry of Justice. And the Forensic Psychiatric Service, Amsterdam is one of the biggest, most qualified and experienced compared with the others. Therefore, we were asked by the Dutch Ministry of Justice to cooperate with this Tribunal.

Q. How long have you practiced as a forensic psychiatrist, Mr. van den Bussche?

A. Fifteen years.

Q. And whereabouts did you qualify as a forensic psychiatrist? Was that at university or medical school?

A. University. ²⁸⁹⁸

Q. And which university did you attend?

A. The University of Utrecht.

Q. Apart from your qualification as a doctor and a forensic psychiatrist, do you have any other medical qualifications?

A. No, I don't have.

Q. And during the course of your duties as a permanent judicial expert with the court, are you regularly involved in making reports for the courts of the Netherlands?

A. Yes, for the court in Amsterdam and the higher court I made in about 15 years about 400 psychiatric reports.

Q. I'm sorry, you were about to finish. I do apologise.

A. And besides that, I do risk assessment reports on behalf of the Dutch Ministry of Justice in special clinics where serial killers or serial rapists are compulsory treated.

Q. So is what you are saying that serial killers and serial rapists is, in effect, your speciality?

A. Yes, it is.

Q. Have you made that your specialty throughout your period of service with the Dutch Justice Ministry?

A. The Dutch ministry asked me to do those risk ²⁸⁹⁹ assessments -- risk assessment reports because of my experience.

Q. Now, help us about this, please. Did you, during the course of your duties, then go to see the defendant, Goran Jelisic, earlier this month?

A. Yes.

Q. And did you, as a result of that, prepare a report?

A. Yes, I did.

Q. Dated the 8th of November 1999?

A. Yes, that's correct.

Q. And, Your Honours, I think that's the report which has been filed with the Tribunal, and I hope that you have it.

And you can answer any questions from the Prosecution concerning your report.

A. Yes, I can.

Q. Dr. van den Bussche, would you be so kind to wait there, please, and to answer such questions.

JUDGE JORDA: [Interpretation] Mr. Nice represents The Office of the Prosecutor and he will ask some questions. Mr. Nice, please proceed now. Cross-examined by Mr. Nice:

Q. Doctor, in order to save your voice, I will try and ask questions, sometimes compendious questions ²⁹⁰⁰ which may be capable of the yes, no answer, leaving your voice freer for those occasions when you will need to expand. So the questioning, if it works, will be a little unusual, but will be aimed at helping you. First, it's correct, isn't it, that although you had access to the earlier psychiatric and psychological reports on this man, you have not seen a record of his interviews, and you know nothing of the evidence that has been given by witnesses in this case?

A. Yes, that's correct. And that's a pity. It's not an usual situation in the Netherlands. The psychiatric interview is only a small part of the complete psychiatric examination. And usually I have to read for about four 'til ten hours all the trial.

Q. Again, do feel free to add if you want to, but you've given the answer.

The second point is that on this occasion you interviewed the man alone, but for an interpreter?

A. Yes.

Q. And again the compendious question is this: With psychiatric examinations you always have to be careful about the subject being dishonest and attempting to mislead or to manipulate the psychiatrist, and it is therefore preferable, when possible, to have two people present at the ²⁹⁰¹ examination, and not one? Would you accept that?

A. Yes, I agree with you.

Q. This man is a man who is shown to be both dishonest and manipulative; would you accept that?

A. Yes, I would agree.

Q. So that you, therefore, suffered the disadvantage, and there's no criticism in anything I say, but you suffered the disadvantage of not having a second expert at your shoulder or by your side to check on what he may have been trying to achieve; do you accept that?

A. I agree completely with you. In the Dutch court system it is even a fault if you speak with a severe criminal alone. So I always advise my colleagues to talk with two persons, and then you can choose between two of a kind or two of a different kind. I prefer to talk with a psychiatrist and a psychologist because some of them even can cheat two psychiatrists, and a psychologist, you can better rely on a psychologist because he can do more objective tests to find out the manipulation.

Q. Thank you. In the interests, again, of saving your voice and dealing with things in an orderly way, it may be helpful if I ask you to open your report at, I think, page 5, and I will try and deal with the ²⁹⁰² particular questions I have in relation to your report in sequence. Then I'll turn to a few other questions about other reports and a few other general propositions that I'd like you to help us with. Again, many of these questions may be capable of being dealt with briefly. Of course, at the end of it, if there's something you want to add and feel I haven't explored, you will be allowed to do so without any hesitation, I'm sure.

On page 5, he tells you, under case history, that his former attorneys, and he names them, wanted him to commit suicide and were contemptible, that they advised him to keep silent and offered him money, and that his family was threatened.

He didn't, of course, point to any proof of this. Did he provide any detail beyond what's set out here?

A. No.

Q. Thank you. Further down, we see that he identifies the offenders who he said were at liberty and goes on to give an account of forming liaisons in prison with Croats and, indeed, with Muslims. Ingratiation is making himself popular with the very group of people who had been his victims consistent with his being both manipulative and narcissistic? ²⁹⁰³

A. I found him more childish and immature.

Q. Thank you. Three lines up from the bottom of this page, he told you no more than that he had acted under duress, that he shot 15 people, but then he said he saved hundreds. He provided you no detail of the alleged hundreds that he saved.

A. No, and I couldn't check it.

Q. He, of course, then went on to say that he was being made a national scapegoat. Setting himself in the big picture is consistent with the narcissism and/or the childishness.

A. Yes.

Q. Thank you. Over the page, please, to page 6, as you summarise it, just under halfway down, he says: "'I was forced to kill, by my superiors. They gave me the name Adolf. If I hadn't followed the orders of those monsters, I would have been killed.'" You may have other notes, I don't know, but did he give you any more detail of how he was forced to kill than that?

A. He told me that some friends of his were shot in front of Muslims when they denied to follow the orders.

Q. Did you check whether that was a version he had ever given before or whether this was a completely ²⁹⁰⁴ new version of events, being forced to see others being shot for disobedience?

A. I didn't read it in the other reports.

Q. No. I'm going to come to just a couple aspects of the other reports and the way his stories change. But since I want to deal with this report in an orderly way, you would accept, would you not, that if this version is new and different and if one can see in the earlier reports a developing series of different stories, then the different stories obviously undermine his reliability, don't they?

A. There's a possibility, but he has also other attorneys.

Q. He blames the other attorneys at some stage --

A. Yes.

Q. -- for forcing him to give different stories, but I'll come to that. If we put that on one side, and if somebody gives, first, one account, then a stronger account, then a different account, and, in your report, yet another different account, that obviously goes to show he may just simply be being dishonest.

A. There's a possibility, yes.

Q. Thank you. Then, just a little further down the same paragraph, he says: "'On one occasion, I fell ²⁹⁰⁵ to my knees and begged to not have to go on any more. I was informed that I shouldn't think, but simply carry out orders.'"

I don't know if you have any more detail of the falling to his knees, but the question again I want to ask you is this: Did you find any earlier reference to this form of pleading by him?

A. No, I didn't.

Q. Do you have any more detail of what he said happened on this occasion, beyond what you've set out here?

A. No, I don't.

Q. Towards the bottom of page 6, you set out the following, about ten lines up: "When the discussion focused on his upcoming 7 to 8 days of defence, tears appeared in his eyes, and the defendant started to cry ..."

MR. NICE: I'm so sorry. I hope I'm not going too fast for the interpreters and that they've got copies. I'll slow down a little. I'm so sorry.

Q. "'I hate the idea of seeing and hearing all those people --'"

JUDGE JORDA: [Interpretation] Excuse me, Mr. Nice. I'm waiting for the French version. It takes a little longer to say it in French. ²⁹⁰⁶

MR. NICE: I'm sorry, Your Honour.

JUDGE JORDA: [Interpretation] It was fine up to this point. There it is. I see where you are. Please continue.

MR. NICE:

Q. "'I hate the idea of seeing and hearing all those people who both on request, and also spontaneously are coming to bear witness ...'" and then that paragraph continues.

If we go on about another eight or nine lines, you set out this: "Following deeper questioning, it emerged that over the last few months, the defendant has regularly been crying, when alone." Now, my question is this: The first tears relate to his defence witnesses; the second tears, were those also for himself and for his defence witnesses?

A. Well, he was crying all the time at that moment, for about four or five minutes, and I really had to relax him, to get himself in a better condition.

Q. But were the tears for himself?

A. In my opinion, the tears were not for himself, but in my opinion, he was confused between feelings of intimacy to others and feelings of aggression and all kinds of different mixed feelings, ²⁹⁰⁷ and he didn't know until now how to manage them.

Q. Thank you. You, I think, will be able to confirm from the material you've read that there is no reference, I think, anywhere else in the material to his showing spontaneous remorse, tearful or otherwise, for his victims.

A. Yes, that's correct.

Q. So the first occasion of crying is crying which we saw related to his emotion at people coming to give evidence for him; it's not tears about his victims.

A. That's correct.

Q. Thank you. In the English version, I'm getting to the end of this passage which comes on page 7, and in the French version, it must be at the foot of page 11, I think. Yes.

Two things really. He says that he was arrested and tortured -- I beg your pardon. He says that the account that he was arrested and tortured by the Croat army was untrue, that he'd been under pressure from his former attorneys to make those claims.

I'm a little confused as to what page 9, paragraph 2 means in the report of Dr. Duits and Dr. van der Veen, but without doing a paper chase, can ²⁹⁰⁸ you confirm that what he was instructing you to say should be rubbed out completely was the account of torture in Croatia?

A. Yes.

Q. Were you aware that by the time of his first psychiatric examination, he was already being represented by the attorney who he says he trusted, even if one of the other attorneys was still involved in his case at that time?

A. Yes.

Q. So he says he made these allegations in response to his attorneys, but one of his trusted attorneys was also already on his team.

A. Yes, Mr. Londrovic. But -- yes, that's correct.

Q. So if we go on now to page 9 in the English, page 12, halfway down page 12 in the French, he says this:

"Nonetheless, the defendant wished to state that the previous report writers, Dr. Duits and van der Veen had written down things which he had not said. Once the undersigned had asked why he had not corrected the reports, since he had taped the entire previous examination interviews, there was a moment of silence and the ice appeared to have been broken." ²⁹⁰⁹ What was it, according to Jelisic, that

Dr. Duits and Dr. van der Veen had written down either incorrect or untruthfully.

A. I asked him, but he didn't tell me. I asked him, I said, "You taped everything." And then he said to me nothing any more.

Q. So either he was being dishonest with you or he was being untruthful or dishonest with them? It has to follow, doesn't it?

A. Yes.

Q. Can we turn over, please, to page 10 in the English, where in the middle of the page you make the point, and I think you've made it already, that he emphasised his position as a victim in all of this, didn't he?

A. Yes, but, in my opinion, a little bit less than in the previous reports. But just a little.

Q. And, of course, he had obviously had the advantage of reading the previous reports, because he commented on them, and he was thus in a position to act and to change his behaviour to accord with what would be wanted of him?

A. Yes, there is a possibility that he is manipulating, but, on the other hand, I made the report one year later, so a person can change in a year. ²⁹¹⁰ That's also a possibility.

Q. Thank you. This is a person, of course, who is found to have been theatrical in nature in any event, isn't he?

A. Yes, that's correct.

Q. And a theatrical person is both more likely to and more able to mislead people such as yourself?

A. Yes, that's why it was such a pity that we couldn't test him.

Q. On the same page in the English, a few paragraphs down, three quarters of the way down the page you say this:

"In parallel to these considerations, during his examination the defendant started to show more true remorse and feelings of guilt in respect of his victims and their family members."

Do I take it that you are saying that this first demonstration of remorse, of which you are aware, happened in your very examination?

A. Yes. Yes.

Q. Because there is no evidence of it happening earlier, is there?

A. Yes, that is correct.

Q. On reflection, and I will probably remember to ask you this question again at the end, but on ²⁹¹¹ reflection, this has to be possible, doesn't it; that he was simply doing this because he knew he was the subject of criticism for showing no remorse in earlier reports?

A. That's a possibility.

Q. Thank you. At page 11 you make this point, and it's in the first complete paragraph. I'll see if I can find the French. Yes, I think it's at the foot of page 14, if that assists, Your Honour. You deal with his having narcissistic traits based on a primarily negative self-image. You then go on to say:

"He maintained surface object relationships, was fundamentally uncertain and easily influenced. Unconsciously he was searching for a father identification figure. He tends too easily to identify with people in a power position. For them he can offer little resistance and is easily influenced." Now, the characteristic of being easily

influenced by people in power is not something that will be immediately apparent, is it?

A. When you see him, not. But he looks around 30 years old, but in his emotional life I think he is about 17, 18 years old.

Q. Thank you. But the point is that these ²⁹¹² aspects of the potential to be influenced are something that you are either going to discover at a psychiatric examination or you are going to have to discover by some prolonged contact with the man?

A. From the psychiatric interview and his life history.

Q. Thank you. Then we can go to the next -- well, you do say in the same section, I needn't take you to the passage, you say in the same section that he has had suicidal ideas. This is entirely based on his own account, isn't it?

A. It is, yes.

Q. We can go to the next section headed Diagnostic Observations. You set out at the beginning of Diagnostic Observations, page 13 and 17 in the French, that he has admitted having killed 15 people under duress. Various conclusions in your report follow.

If, in fact, he was not acting under duress, may I take it that many, most, or it may be all of your conclusions fall and come to nothing?

A. Which conclusions do you mean?

Q. Well, conclusions about remorse, in particular the conclusions about remorse we are going to come to later on. But do those conclusions fall ²⁹¹³ away? Must we disregard them, if he was not, in fact, acting under duress?

A. Yes. If it's not true, what he is telling me, then he must have behaved during the crimes in a different way than he is telling me.

Q. Yes. I am not criticising you at all, because you had limited material to go on. I just want to understand your report. So that from this moment on you are working on the basis that what he tells you is correct --

A. Yes. The only base I have is what he is telling me.

Q. Yes.

A. And that's the limitation of the report.

Q. Of course. And you accept that on findings of facts, it's the Judges who have to decide whether and to what extent he was acting under any duress?

A. Yes.

Q. At the foot of page 13, which will be either the foot of 17 or over to 18 in the French, you make some observations about wars. I pick it up at the foot of 13 where you say that wartime conditions influence personality; that no two wars are the same; that parties to war, in your opinion, behave as if with antisocial, psychopathic borderliners, hiding behind ²⁹¹⁴ and basing their actions on rational and national motives.

Without being critical, doctor, it's fair to say that this is outside your area of special expertise?

A. Yeah, in a certain way. What I wanted to make clear was on page --

Q. I am going to go on to the next page, so if you want me to read the next bit, I will as well. Shall we go through that and then it will save your voice if I ask the question again.

Over at page 14 you say that all parties were active in splitting manipulation and paranoid projection. You say psychiatric primitive defences are characteristic for borderline personality disorder.

A. Yes.

Q. And you then say this: In a climate of this kind it is adaptive, understandable, and easy or easily empathised with and, given the circumstances, relatively healthy for an individual to develop such personality characteristics with a view to survival. I'll just complete it, then I'll give your voice its free rein.

Some individuals are able to handle the situation and do so within normal social standards. ²⁹¹⁵ Others, often the minority, fail. And if they have an imperfect identity and are sensitive to identification with, for example, an aggressive leader. You then say there are notable psychopaths, who are already psychopaths prior to the war and come into a playground, as it were, to live out their sadistic lust.

Now, if I tell you the questions I want to ask, and then you can give a single answer. First, your analysis of warring parties having leaders manifesting antisocial, psychopathic borderline characteristics, and projecting those onto others, is outside your area of expertise and, unless I've missed something or unless we've missed something, not supported by research or learned material. And the second question is: Are you really suggesting that a majority or a substantial minority of people will identify in this way, and that it would be relatively healthy for people to do so?

A. What I wanted to make clear is this. In Holland we have much expertise with the victims of concentration camps, and there are some two or three special clinics in Holland where, 'til now, still victims are treated. And strange enough, you see that quite often the survivors, the only survivors of those ²⁹¹⁶ concentration camps have a borderline personality because the only way they could survive was by also lying, with a little bit of cheating, and not be honest.

So if you see somebody with a borderline personality, after a war, it can mean two things. It can mean he was already a borderline before the war and already before the war emotionally disturbed, but it can also be a kind of adaptive mechanism to survive the war.

Q. I understand, and am grateful for your explanation. I understand that in relation to those who are true victims. But Jelisic, who now denies even being tortured in Croatia or Serbia, is in no sense a true victim. He is a perpetrator. That's correct, isn't it?

A. Yes. Yes.

Q. Therefore, whatever learning there may be in Holland about the ability to survive of the victims doesn't really bear on this issue at all, does it?

A. Well, there is no -- 'til now, there is no psychiatrist who did research on war offenders, and that that's the point, I have no reference material.

Q. Thank you. And then finally on your report, and then I'll just turn to the other questions I have, ²⁹¹⁷ you make the point right at the end of the report that German perpetrators of war crimes lived for years in South America as diligent family men.

Again, there is no learning on this, this question number one. And question number 2 is, even if you are right, that war crime perpetrators lived as diligent family men in South America, they had a real interest in keeping their behaviour good and their profile low, didn't they?

A. Yes.

Q. Right. Dealing with the only points that I would need to make on the other three reports, and to some degree I've covered them already, you are aware of the fact that in the first report to Dr. Elsmann he gave an account of being tortured in Croatia and expressing in fairly, I think, straightforward terms that he was put under pressure to kill on the basis that he would be killed otherwise.

Do you remember that in the most general terms?

A. Yes.

Q. That can be found, if the Court finds page references helpful, at page 3 of that report. I don't go into it in detail. The point I am going to make is a short one. ²⁹¹⁸ In the report of Dr. Herfst in April at page 3 he gives a detailed account again of his escape and of his being tortured. On this occasion he speaks of a hand grenade around his neck, of being wounded with a knife, and of having red hot cinders on his feet. So that the account is enlarged.

On page 4 of the report he sets out how the army commander called him Adolf and said he had to kill, and gave him a list: That he had no choice, and otherwise, if he didn't obey, he would be killed. He was provided with alcohol and pills.

In the next report of Dr. Duits we see at page 10 -- well, 9 and 10, we see the account of torture continued, with an account at the top of the page of cutting veins on the back of his feet and putting hot coals on them. But at the foot of page 10 we see this: At the police station they threatened him with the words, "This bullet is worth more than your head, if you don't do what you are told. You must obey and ask no questions." He was also threatened that his sister would be raped if he didn't do the job properly.

He then had to take a group of people to the station and murder them.

We know, from your report, that he has ²⁹¹⁹ abandoned all suggestion that he was tortured and has produced to you a new and different version of the pressure that was put on him to make him kill. The development and the changes of these accounts show, do they not, that as a historian he is simply not to be relied upon. You would accept that, wouldn't you?

A. He is a person who manipulates, that's correct.

Q. And as between these different accounts over time, it's impossible to choose between them, or to say any one of them is preferable to the other?

A. Yes. That's correct.

Q. What it is possible to say is that the way he develops his account, in knowledge of what has gone before, shows that he is responding in a manipulative way to what the psychiatrists have found out about him?

A. Yeah, but also it's a very childish way of manipulation.

Q. Yes.

A. Because you can look immediately through it, like you do now.

Q. Now, you haven't heard the evidence and, I repeat, absolutely no criticism in that, but can I just summarise for you a few things that have been given in evidence and may or may not be accepted by the Trial ²⁹²⁰ Chamber.

The evidence shows that he was enthusiastic to kill; that he killed people on his own account, without any reference to authority; that he swore at victims; that he beat victims; that even after he was stopped from killing by a superior officer, he returned, expressing desires to kill. He even admits returning to look at the prisoners after he had been stopped from killing. He also brags of the numbers he had killed, with such expressions as, "I've done seven today so far and I'll do another eight." Or claiming to have killed either 76 or 86 people, claiming up to 150 killings. And speaking of, "Well, that will be 68 balijas," which is a derogatory word for Muslims, "less."

If he did those things without the evidence of anybody standing behind him making him do and say those things, then that completely contradicts the account he gave to you of acting under duress.

A. That's correct, yes.

Q. The next thing is this: A preeminent characteristic of the personality disorder that you and all the experts found is manipulation and control; would you accept that? A desire to control events rather than to be -- ²⁹²¹

A. No, not completely. In fact, we are saying in all the reports the same thing. We give it another name, the personality disorder, but personality disorders are what we call clustered. So this personality disorder, anti-personality disorder, and borderline personality disorder belong to cluster B, and cluster B, all those personality disorders in cluster B, they have no overlap. So if you see a person with traces of two of those personality disorders, then that's why I choose the name of personality disorder, not otherwise specified, which are the traits of both of those personality disorders. The crucial thing in the personality disorder is instability, instability in feelings, instability in self-judgement, instability in judging others, impulsiveness, et cetera, and not so much the will to control.

Q. Very well. But there is within him, and it may be that you and Dr. Duits will not necessarily agree on this, but there is within him manifestation of a desire to control as manifested by manipulation.

A. Well, he has some anti-social traits and he wants to be in power, if you mean that by "control".

Q. It's also true, and this relates to the issue of danger that you address in your report, it's true, ²⁹²² isn't it, that -- the following two propositions are true:

Proposition 1: The desire to control is either "the" or "a" principle characteristic of the true psychopath; proposition 2, which is separate from that proposition but linked to it, proposition 2 is that the learning shows that once someone has killed once, his resistance to killing again is substantially reduced, he finds it easier to kill having done it once.

A. The second is right, that's correct. The first one is not completely correct. You have to add that a psychopath doesn't feel sorry for what he's done.

Q. Indeed, because his sole interest is in control. He starts off controlling people in one way or another; he finds the measure of control unsatisfying; he moves to greater control, typically tying someone up or imprisoning them; his ultimate step has to be to kill them.

A. It's almost, for a psychopath, a sexual lust.

Q. Yes. So that in this case, it is in truth, at best, impossible to say anything about how dangerous this man is, but there are indicators in his ²⁹²³ personality and in his history of killing that he will remain a danger.

A. I answered that question already in my report. I can't answer that question.

Q. Very well. I should have asked you this: You know in his account -- perhaps you don't know, but in his accounts he said he was incapable of looking at his victims when he shot them. If there were clear evidence, and there is from the photographs, that he looks absolutely at his victim as he shoots him, that again would tend to undermine what he says to you about being under duress, wouldn't it?

A. That would be a form of manipulation, yes.

Q. Now, I come back, I think, to my last proposition, and I'm grateful to you for having had the voice to answer my questions so far.

If we set on one side his account of how he came to kill, because it's so varied and he's shown to be dishonest, if we acknowledge that his vulnerability to authority figures wouldn't be manifest on him, not something you wear like a badge, it's got to be discovered, then the problem that may face the Chamber is how he came to kill at all.

You're not suggesting in your report that anyone or a large number of people would behave in this ²⁹²⁴ way, that is, go out and kill people; you're not suggesting that's a majority human trait?

A. No.

Q. Accordingly, it comes to this, doesn't it, that the easiest way of finding out if somebody is prepared to kill would be to ask them.

A. In fact, it's strange, what happened, if he's telling the truth about his life history. Usually, when you are a psychopath and when you start to kill people, you have already aggression regulation problems in your youth, and I could not find any of them. So what you have to do, you have to interview his parents, his schoolmaster, to find out if the things he's telling me about his life history or his youth is the truth.

Q. Yes. But given that you wouldn't know that this man was likely to do what he eventually did, he's the sort of personality, is this not right, who, were he asked to do this sort of thing by authority figures --

A. Yes.

Q. -- recognising that he would be given power and status if he responded to the request, he's the sort of person who might fall to be a volunteer.

A. Yes. In my opinion, he has almost no ²⁹²⁵ identity of his own. So that means that if a bad guy passed by in power, he becomes a bad guy.

Q. There were a couple of other questions; I'll just deal with them very briefly. If a person is in remorse for what he or she has done, is he or she likely to be compelled in the brain to relive what has happened, to rerun that awful history?

A. That's a difficult question to answer, because we are talking about facts that happened six, seven years ago, and in every mind, if I look to myself and I think about facts that happened six or seven years ago, there are always distortions in the memory.

Q. I quite understand that, but if somebody he's killed not by mistake but as a result of a crisis not of his making, and he is genuinely in remorse of that, is he likely to relive that experience?

A. Yes.

Q. So a person who turns the corner and faces the reality of what he's done is likely to relive, to whatever degree possible, the awful events that have happened.

A. Yes.

Q. Now, this man was always cautious, wasn't he, with you and with the psychiatrists who examined him before you, to limit the number of people he killed. ²⁹²⁶

A. Yes.

Q. What was the number?

A. Fifteen.

Q. Were you aware -- I think you weren't aware -- that in his interview he speaks of up to 20, and, indeed, he speaks of 20 on occasions.

A. He was talking to me about 15.

Q. It would be difficult, wouldn't it, if you were genuinely remorseful and being honest with the psychiatrist not to have a reasonably accurate knowledge of the number of people you'd killed.

A. Yes.

Q. His very inaccuracy, changing between 15 and 20, may be another indicator that he simply isn't being honest.

A. There's a possibility, yes.

Q. Thank you very much, indeed.

JUDGE JORDA: [Interpretation] Thank you, Mr. Nice.

Mr. Greaves. Re-examined by Mr. Greaves:

Q. Dr. van den Bussche, can I ask you this, please: You've told Their Honours that, yes, he is capable of manipulation but --

JUDGE JORDA: [Interpretation] Excuse me, ²⁹²⁷ Mr. Greaves. I haven't heard your question.

MR. GREAVES:

Q. You've told Their Honours that the defendant is capable of trying to manipulate during the course of the interview with you, but you also described it as a childish means of manipulation. May we conclude from this that you were able, at all times during your dealings with the defendant, to see through those attempts at manipulation.

A. Yes, because I've quite a lot of experience in that field. I have even interviewed people where I didn't feel safe at all in the same room, and I had the feeling that I would be lucky if I could leave the room. So this interview was, for me, quite relaxed, and in my opinion, the worst psychopaths are the smart ones and clever ones, and he was manipulating in a childish way, immature way.

Q. May we conclude that the conclusions to which you have come in your report and the evidence which you've given today has taken due account of his ability to manipulate.

A. Can you repeat your question?

Q. Yes. In coming to the conclusions that you do in your report and the evidence about him which you have given today, have you, as it were, come to those ²⁹²⁸ conclusions after giving due account to the attempts at manipulation that he has made with you?

A. The way he manipulates is easy to see and not a smart way, in my opinion.

Q. If I can just take it a little further, when you conclude something about it, you conclude it after giving allowance for that manipulation; is that right?

A. Yes.

Q. Yes. At some stage in your report, you refer to him or use the phrase "true remorse." Perhaps I can just refresh your memory as to the page. I'm sorry. I've lost it now.

MR. NICE: It's page 10, if that will help you.

MR. GREAVES: Thank you very much. I'm sorry. I can't find my own note.

Q. On page 10 of the English version of your report, Dr. van den Bussche, you refer to him as having -- or an expression of "true remorse." Again, was that something you were able to conclude about him, having, as it were, factored in the degree of manipulation that he was capable of?

A. No. Those feelings were real at the moment. His emotional life is not really mature but those feelings he was showing at that moment were not ²⁹²⁹ feelings of manipulation, in my eyes.

Q. You've been asked about this by my learned friend, in general terms, about people who have killed before. It is undoubtedly right that this defendant has killed. Did you see in him any particular aspect which gave you cause for concern that this individual would be likely to repeat the experience?

A. I can't conclude that. For that you would have to do comprehensive psychological tests. Because in an interview with me, he is not showing any feelings of lust or he is not saying that he likes to kill. Maybe he is manipulating in that, I don't know, but then you have to find out by comprehensive tests or psychological tests.

Q. So the remark in general about people who have killed before cannot, one way or the other, be imputed to this defendant without further tests.

A. Yes, everybody is different and it's not good to generalise too much.

Q. Looking, please, at page 8 of the English version of your report, Mr. van den Bussche. You were asked a question about the defendant saying the torture that he had experienced in Croatia and Serbia, that he was now withdrawing that. Did he mention anything at all about Serbia when he was talking to you? ²⁹³⁰

A. No.

Q. And so the only reference he made was to torture taking place in Croatia?

A. No. No.

Q. That was incorrect?

A. No. He said to me he had to skip the torture in Croatia.

Q. Mr. van den Bussche, sir, I want to ask you this, please. You had put to you a series of pieces of evidence picked out by my learned friend from the Prosecution's case. Can I ask you this, please. We've heard evidence in this case of the defendant, firstly, being friendly towards the Muslim community prior to the war; of him giving assistance, at personal risk, to Muslims during the war and during the relevant time when he was killing people; and thirdly, of him giving assistance, again at personal risk, after the war to Muslims. Can you say anything about how that profile fits with the picture of someone going off and enthusiastically and joyfully killing Muslims at about the same time?

A. Those two pictures don't match with each other, in my opinion

MR. GREAVES: Thank you. Would you wait there, please, and answer further questions. ²⁹³¹

JUDGE JORDA: [Interpretation] I'd like to consult with my colleagues about what we are going to do next.

[Trial Chamber confers]

JUDGE JORDA: [Interpretation] We are going to take a 20-minute break and ask you to remain available to the Tribunal. And this may give you some time to drink some hot tea in order to answer the Judge's questions. The Court stands adjourned.

--- Recess taken at 11.17 a.m.

--- On resuming at 11.48 a.m.

JUDGE JORDA: [Interpretation] We can now resume the hearing. Please be seated. Have the accused brought in.

[The accused entered court]

JUDGE JORDA: [Interpretation] I think we can resume now. And we will move to the Judges questions for Mr. van den Bussche. Judge Riad.

THE INTERPRETER: Microphone, please.

JUDGE RIAD: Mr. van den Bussche. Good morning, Mr. van den Bussche. We were very interested in listening to you, and I am sorry not to be a psychiatrist. I think this is the greatest mission, to know the human -- to go deep into the human soul, perhaps. ²⁹³² I just gathered two things, mainly, being a layman, from your testimony, from the reports, especially from -- to start with, from your testimony you said that our accused, Jelisic, his emotional life is -- could be 17 or 18 years.

Now, what could this imply? First, would that mean that he hasn't got the full discernment of his actions? Would that mean his discernment is lacking? You don't need -- just tell me "yes" or "no," the way you did, if your voice is not good.

A. Okay. I will try to explain it.

JUDGE RIAD: I mean, he doesn't know the dimension of his actions? Is that what you are implying?

A. Not completely. A personality disorder is an emotional development disorder. It's always an emotional development disorder. And it doesn't mean that a person doesn't have the capacity of his free will. He still can have -- he still can have the capacity of --

JUDGE RIAD: -- and discernment. So he knows the dimension of his actions?

A. Yes.

JUDGE RIAD: Would that also imply that although he knows the dimension, he lacks the control ²⁹³³ of a mature person? He can't control himself?

A. In a certain way, yes. To a certain degree.

JUDGE RIAD: He would feel an unresistible urge to do things?

A. Yes. Yes.

JUDGE RIAD: And as far as his relationship with people, which you mentioned people have got over higher authority. Would that mean that he would be easily led by them?

A. Yes, very easily.

JUDGE RIAD: Very easily. Why, because his emotional life is 17 or 18?

A. Not only his emotional life, but also his identity is like somebody from 17, 18 years old. He is, in fact, still an adolescent and not a mature adult.

JUDGE RIAD: Perhaps the age you mentioned, 17 or 18, they have got a strong personality, they have an opinion of their own, they even are sometimes stubborn?

A. Yes. Yes.

JUDGE RIAD: I mean, I have difficulty understanding that. At that age you are easily led. Is it --

A. Yes, you are right. Yes. ²⁹³⁴

JUDGE RIAD: They are easily led?

A. Yes.

JUDGE RIAD: But you have discernment --

A. More easily influenced by people in authority.

JUDGE RIAD: But you know what you are doing, discernment is full?

A. Yes.

JUDGE RIAD: You don't question that as a psychiatrist?

A. No.

JUDGE RIAD: Full discernment?

A. Yes.

JUDGE RIAD: Now, in your diagnosis too you mentioned the characteristics. One of them is the dysthymic. What is the meaning of dysthymic?

A. It's a mild, mild form of depression.

JUDGE RIAD: I'll talk slowly. I got here -- yes, you would like -- dysthymic?

A. It's a very mild form of depression. Slightly depressed.

JUDGE RIAD: Would that lead to the actions that he is accused of?

A. No. It is related to the circumstances he is in at this moment. ²⁹³⁵

JUDGE RIAD: At the moment of the --

A. In the detention, that he had to go to his trial.

JUDGE RIAD: That he is here, you mean?

A. Yes.

JUDGE RIAD: But not when he was killing?

A. No.

JUDGE RIAD: It does not affect the killing --

A. No, no, at that time he wasn't -- he wasn't dysthymic. I am talking in my report about the situation at this moment.

JUDGE RIAD: At this moment. But in your report when you say -- in your testimony, that he has got a negative self-image, narcissistic antisocial behaviour; this was not now, this was also before?

A. Personality disorder is also -- is already before.

JUDGE RIAD: It's continuous and a desire to control?

A. But dysthymic is at this moment only.

JUDGE RIAD: But others are part of his personality?

A. Yes. Yes.

JUDGE RIAD: Now, this premise could also ²⁹³⁶ make it more or less possible to commit such crimes, if you have got this diagnosis, a person of this character?

A. Yes. Yes.

JUDGE RIAD: Is likely to commit such crimes?

A. Not likely. Some persons with this personality disorder commit these crimes, but maybe not more than with other personality disorders.

JUDGE RIAD: Not more?

A. No. Except when the antisocial component is very high. But if you look to borderline personality disorder, I think the percentage of total population is a little bit less than one per cent.

JUDGE RIAD: The personality disorder?

A. Yes, from borderline personality disorder.

JUDGE RIAD: You are speaking of the Dutch population or the world population?

A. The world population.

JUDGE RIAD: World population?

A. Yes.

JUDGE RIAD: So this one per cent we can expect them to do such things?

A. No, that's -- you can't say that.

JUDGE RIAD: We would be in real danger.

A. Yeah. ²⁹³⁷

JUDGE RIAD: But still, suppose -- I mean, we know that they are more likely, if I understood rightly, that they would be -- they would commit aggression and so on. But they still have the discernment; they know what they are doing completely?

A. Yes.

JUDGE RIAD: That does not interfere with the discernment?

A. They know what they are doing.

JUDGE RIAD: They know what they are doing?

A. Yes.

JUDGE RIAD: Thank you very much, doctor.

JUDGE JORDA: [Interpretation] Thank you, Judge Riad.

Judge Rodrigues.

JUDGE RODRIGUES: [Interpretation] Thank you, Mr. President.

Good morning, doctor. As you were answering Mr. Nice's questions, I noted down my own. I did that taking into account the assertions -- with the realisation that assertions of that type always have to be somewhat moderated. And I am trying to set up some kind of a structure for an analysis. We have our own ways of looking at reality, of course, and I've used my own. ²⁹³⁸ If we take the relationship between authority and obedience, as concerns Mr. Jelisic, how would you say that those two extremes, the two extremes of that relationship, how would they operate; that is, the extremes of authority and obedience?

A. I think he will be obedient to people of a higher authority and of an older age because he is looking or searching for a kind of father identification. So he will be, I think, less obedient to people of his same age, and I think he shows more resistance too.

JUDGE RODRIGUES: [Interpretation] So if we go beyond discretion, which I think is a key question for understanding Mr. Jelisic's personality, if we go beyond issue of identification, one would be able to say that if he had not completed his process of identification, he would not feel equal in a relationship that he might have. Could we conclude that?

A. Yes, you can conclude that.

JUDGE RODRIGUES: [Interpretation] Therefore, he isn't capable of having an adult relationship because he had not yet constructed a relationship of authority.

A. Yes. He had, in fact, no good relations with ²⁹³⁹ his father, and that is, in fact, one of his biggest problems afterwards in his whole life, and he is still looking for a father figure. When such a figure passes by, he is easily influenced.

JUDGE RODRIGUES: [Interpretation] Excuse me, but I've got to wait to hear the interpretation. We are used to some breaks which can get in the way of our discussion.

If I look at a different relationship, the relationship between utility and lies, is there a close relationship between those parameters, or does one thing have nothing to do with the other?

A. I didn't get the question completely. The relation between lies and ...

JUDGE RODRIGUES: [Interpretation] Utility, from the point of view of moral judgement. Perhaps you're familiar with Colbert's work, who raises that question to some extent, the process of moral reasoning, starting from a heteroautonomous relationship to an autonomous relationship. I think that one could make the relationship between lies and utility, because we saw that Mr. Jelisic lied on several occasions.

Could we say that lying has something to do with some idea of utility or usefulness from the point ²⁹⁴⁰ of view of moral judgement?

A. Mr. Jelisic has a lack or a not complete conscience, and he is, in fact, also in the development of his conscience, still a child who wants to avoid punishment; therefore, he doesn't have a real inner conscience, but if he sees that something is wrong and he's going to be punished, he doesn't do it.

JUDGE RODRIGUES: [Interpretation] Another question that I have. I think I'm following the order that I picked up from your answers to Mr. Nice's questions. I'm thinking about another relationship, and that is the one of autonomy and dependence. I believe that the fact that Mr. Jelisic had not really structured or completed his own identity could create a certain degree of dependency, specifically in relation to some authority figures. How do you see this relationship, that is, between autonomy and dependence, as far as Mr. Jelisic goes?

A. Mr. Jelisic suffers from what we call invaluation separation problems, and that means in simple words that he can't be alone and he can't be together with somebody, both. So in a certain way, he's very dependent, and in the other way, he is very afraid of dependence, and that makes him walk in life as somebody walking on a string. ²⁹⁴¹

JUDGE RODRIGUES: [Interpretation] What you have just said to me brings to my mind another relationship. You spoke a great deal about manipulation. We could say that this is part of imagining things or representing things. Does representation and compensation, as a psychological defence mechanism, could that be related in this case, that is, representation, manipulation, and control on one side, and on the other side, compensation or possibly projection of a lack?

A. There are several types of defence mechanisms. You have the more primitive ones and the more higher ones. Every person has defence mechanisms, but in regard to Mr. Jelisic, you see especially the very primitive defence mechanisms, like, for example, denying or what we call splitting. Splitting means that you look at somebody in black/white terms. Somebody is completely good or completely bad and there is nothing in between. So that's something that Mr. Jelisic is doing quite often in the interview and also when he's talking about his life history.

JUDGE RODRIGUES: [Interpretation] Another question. We spoke a little bit about Mr. Jelisic's position, not as a victim but as perpetrator, as a criminal, if I could say it that way. In Mr. Jelisic's ²⁹⁴² personality, is there also a victim side, even when he committed criminal acts?

A. That's a very interesting question, because as a psychiatrist, we look at the borderline personality disorder as a severe kind of disease, in fact, and if you have a disease, then you are certainly a victim. In my opinion, because of his emotional disturbances, he is, in a way, the victim of those disturbances.

JUDGE RODRIGUES: [Interpretation] I'm almost at the end of my questions but I still have a few left.

If we accept the fact that from a certain time of behaviour, one could see at least three steps in reaching it, that is, perception or knowledge, from the point of view of trying to get some information or to understand reality, that is, knowledge, and then the emotion which some people call emotional areas -- you spoke a great deal with emotional things -- and then after the final stage, which is action, if we were to put one next to the other, knowledge, emotions or emotionalism, and then action or behaviour, where would you see more problems? At what stage would you see more problems or more illness, in the concrete case, speaking about Mr. Jelisic's personality? ²⁹⁴³

A. In his emotional -- in his emotions, but his emotions will lead to behaviour. And a characteristic of his behaviour is impulsiveness. He is a little bit -- in Holland we have a saying, against the wall makes strange jumps. And he is a little bit like that. When he is put on the pressure, he can react very impulsively because he can't cope in a mature way with emotions, especially mixed emotions.

JUDGE RODRIGUES: [Interpretation] So if I've understood you correctly, doctor, you didn't see any disturbances that were in relation to taking in information about reality, but more problems of analysing or seeing that reality? You didn't see illusions or delusions?

A. Yes. Yes. He has what we call psychotic symptoms. His capacity of seeing the reality is almost one hundred per cent.

JUDGE RODRIGUES: [Interpretation] My last question has to do with a question that Mr. Greaves asked you. To kill Muslims or to help Muslims, you said that that was somewhat contradictory, but I would like to ask you the following question: If we have an unstable personality; if we have an unstructured emotional personality, one which is not organised; if we have an individual who does not -- has not yet ²⁹⁴⁴ reached maturity, from the point of view of his personal identity; we end up with a person who is completely dependent on circumstances.

And we have also seen that Mr. Jelisic's behaviour was especially manipulative and representative, if I can say that, if I can use theatrical terminology, that he was putting on a spectacle. Could we have a Mr. Jelisic in that type of personality who could kill Muslims, but at the same time could help Muslims under different circumstances, in practical terms, because theoretically it seems to me that there could be some contradictions. But you yourself said that one cannot make generalisations, but for the time being we are speaking about the personality of Mr. Jelisic. Could that happen?

A. That can happen, yeah. That's a possibility. But it is a very difficult question to answer because it goes a little bit in what we call insanity defence, and therefore if you really want to ask this question, well, you need, as a psychiatrist, to have far more information. And you need more information about the circumstances during the crimes and, indeed, to have insight and witness accounts to make that picture complete. ²⁹⁴⁵

JUDGE RODRIGUES: [Interpretation] You are more familiar than I am with schizophrenia or in the emotional area where there is always a degree of emotional ambivalence. I think that in this case, in Mr. Jelisic's personality there is a confusion, an emotional confusion?

A. Yes.

JUDGE RODRIGUES: [Interpretation] Perhaps he would be completely dependent on the circumstances in order to do what I have always called process of compensation. And as you said, in Mr. Jelisic's personality there is still a childish side. You know that frequently the child -- his behaviour is aimed at calling attention to it. So in light of that, could one still say that Mr. Jelisic behaves in a certain way in order to call attention to himself, in a way of -- showing that he obeys or he is obeying his superiors by killing people. But the same behaviour is used to call attention to himself when he helps Muslims in order to compensate for what he had done. That is another way of calling attention to himself. What do you think about that?

A. I think you see it correct. That's right. The way you see it, he is looking for compensation in his behaviour and -- but he doesn't -- but that process ²⁹⁴⁶ is unconscious.

JUDGE RODRIGUES: [Interpretation] I agree with you. I agree with you. Yes, he does that. But not being fully conscious of it, but he does that. And I think that this is a process that can be used in order to understand the results, because we are now dealing with results.

A. And specially he has problems with ambivalent feelings.

JUDGE RODRIGUES: [Interpretation] You have helped me understand a very difficult situation, to get into a human mind, but you have been very helpful to me, and I thank you.

JUDGE JORDA: [Interpretation] I believe that Judge Riad would like to ask you another question. I myself have a question.

JUDGE RIAD: Mr. van den Bussche, this is really a continuation of a question which Judge Rodrigues has asked you. When he asked you if the accused would feel at the same time victimised, feel the victim while committing his acts, and your answer was -- generally you said that he is, after all, the victim of the disturbances of his character. Of course, this is -- of course he is the victim of himself. But then you mentioned the example of the ²⁹⁴⁷ cat, your Dutch proverb, I hope you will give it to us in Dutch. It's called a cat jumps when cornered, jumps when it is cornered. That was perhaps another answer. Does that mean that he, while committing these -- the crimes of which he is accused, he was, in fact, defending himself?

A. I think when you put Mr. Jelisic under big pressure, he --

JUDGE RIAD: When you put --

A. Big pressure, big tension, and he is anxious, then he will react impulsively.

JUDGE RIAD: A big pressure. All right. Do you think that this, in this circumstance --

A. In a stressful condition, when he is in a stressful condition.

JUDGE RIAD: You speak of anybody or of persons of this --

A. No, about Mr. Jelisic.

JUDGE RIAD: About him?

A. Yes.

JUDGE RIAD: If he is under great pressure?

A. Yes.

JUDGE RIAD: Great pressure means that he is attacked?

A. For example, but it can also be verbal ²⁹⁴⁸ aggression, not physical aggression.

JUDGE RIAD: So if one attacks him verbally?

A. Yes.

JUDGE RIAD: Or would it be in his mind? If he feels that he is under great threat, he or his community, would that be a way of defence? Is that your answer to the question? Because the question was quite far reaching, that he is committing things as a way of defence. It's almost self-defence?

A. No. No. No. I am saying that he is a victim of his emotional disturbance and because we, as psychiatrists, see his personality disorder as a severe kind of disease, in fact, development disease. And most of those people have severe problems in normal life. They have problems with relations. They have problems with what we discussed before, the balance and autonomy. They most of the time have many partners or many jobs. They never finish a job, and they feel themselves empty inside.

Some of them start to drink too much alcohol or go into drugs, and all those symptoms has Mr. Jelisic. And in only the last few years it looks like he, for the first time, has a more -- a little bit more mature relation with his wife, although his wife is very young. But I think that's the first normal ²⁹⁴⁹ relation 'til now he has.

JUDGE RIAD: But finally, all this -- to what extent does all this impair his discernment and his capacity to judge what he is doing, to know what he is doing?

A. He knows what he is doing, but it influences his behaviour and his way of thinking about people. And also it leads to -- it influences his acting.

JUDGE RIAD: But he knows the consequences of his acting?

A. He knows the consequences.

JUDGE RIAD: He is aware of it?

A. Yes. Yes.

JUDGE RIAD: Thank you, doctor. Thank you.

JUDGE JORDA: [Interpretation] I spared you -- I am going to spare you a long series of questions. Otherwise, your voice is not going to hold out 'til the end. My colleagues asked you some very good questions that I myself would have liked to have asked. So mine will be relatively short.

Obviously, if the questions are as detailed and as long as they are, it's because the procedure is set up in that way in this Tribunal. And it was the Defence's choice, we could not hear the accused, but that's how things are. And this is a choice of the ²⁹⁵⁰ Defence, which is a choice that the Defence can make, which explains why we have several questions to ask. In a way mediators in order to get into the personality of Mr. Jelisic.

I will be very brief. I have a question in respect of Mr. Nice's relating to duress and remorse. Do you agree with me, or perhaps you don't agree with me, that one can have remorse, whether or not one has acted under duress?

A. Yes, that is possible, yes.

JUDGE JORDA: [Interpretation] Thank you. You said that you could not answer the question as to whether he was still dangerous. And we could assume from that, perhaps, could we, that it would be a rather serious risk to society and him if he were to be released or, to the contrary, are you saying that you don't know; that perhaps everything might be all right? What is your tendency? How do you think that you would -- if you don't want to answer, you don't have to, but it's like the bottle which is half full or half empty. That is my question, whether he would still be dangerous. Is there a degree of danger, if I can say it that way?

A. Yeah, I really can't answer that question because risk assessment is one of the most difficult ²⁹⁵¹ things for a psychiatrist to do. And the last few years we are becoming better and better, but we have still the tendency even to overpredict the risk. That's what we see or what we found out by reports and discussions with other colleagues. We psychiatrists have the tendency to see more risks, in fact, and we at the moment -- some colleagues are developing scales, scales for risk prediction, and they do it for every type of crime. But those scales, they are only correct when what they call the base rate of a crime is very high, and the rate of the recidivism has to be more than 50 per cent. And if you know that from one type of a crime, then you can say in a certain way something about the risks.

But in this case, in Mr. Jelisic's case, the crimes happened during wartime, and we as psychiatrists have no other reference material. There is in the literature, there is almost nothing to find because all the literature of psychiatrists about war goes about victims and especially the post-traumatic stress disorder. And only in the American literature there are some articles of ex-Vietnamese soldiers who are in a certain way offender and also victim. But they were the only two articles I could find.

JUDGE JORDA: [Interpretation] I understand ²⁹⁵² your caution, and in my own country opinion looks without indulgence at many criminals who were released from prison too quickly, and then after that committed further crimes, despite the fact that they had the blessing of psychiatrists and psychologists. Therefore, you are right to be careful.

But this brings me to another question. After two hours of speaking with the witness, how can you say it so firmly, so assuredly that the accused, at the time that you were writing your report, had real authentic remorse, real feelings? Is this part of psychiatric science to be able to judge not only remorse but the intensity of that remorse? I was struck by that.

A. First of all, Mr. Jelisic has a superficial emotional -- has superficial emotions, his emotions are not mature. So what I saw was a slight form of remorse, but not really profound, deep remorse like mature people would have. His feelings were honest, but it was a childish kind of remorse, in fact.

JUDGE JORDA: [Interpretation] I'm not, of course, going to change what you wrote, but you are nuancing the somewhat preemptory statement. In a way, one might say that given the interview was not very long, given the fact that this is a somewhat childish ²⁹⁵³ personality of the accused, it seemed to me that at that time his tears could be sincere and might reveal a degree of remorse.

Of course, this is a legal way of saying it, but could you agree with that?

A. Yes.

JUDGE JORDA: [Interpretation] Of course we're not going to rewrite your report; don't worry. I would like to ask you two further

questions. I am not familiar with the psychiatric definition of perversity. I only know the definition which is used in ordinary conversation and in the legal profession. In the psychiatric sense, when you hear that word, would you say that Mr. Jelisic's personality is perverse? Correct me if I am wrong.

A. I would say his personality is anyway anti-social, in part. Let me say it in this way: Eskimos have 20 words for the word snow; we know only one word for snow. So for a psychiatrist, there are 20 types of bad, and in the outer range is perverse and there are other degrees. If you have to find out how bad Mr. Jelisic is, in what kind of degree is he perverse or is he bad because of more circumstances, then you have to do far more research, and especially psychological research, and I'd have to study the ²⁹⁵⁴ witness accounts carefully.

JUDGE JORDA: [Interpretation] I understand. But having said that, I will note that you can't answer questions having to do with the degree of danger, but you said that he is partly anti-social.

A. He is partly anti-social, yes.

JUDGE JORDA: [Interpretation] My last question, really, my last one, is the following: You have observed many criminals who might be somewhat like Mr. Jelisic, even though they acted under a different conscience. I'm talking about serial killers, and we have examples of that in many countries, including the one I come from.

In those examples which come from the legal annals of the Netherlands, could you say that the type of personality like Goran Jelisic, could you say that that type of personality could also be evaluated by judges or psychiatrists as being partially irresponsible?

A. Yes, but it is always -- if you talk about responsibility, it's always the relation between the personality disorder and the crime. In the Dutch law system, we only say that somebody is less responsible when the crime is directly coming out of the disorder. There must be a direct relation between the crime and ²⁹⁵⁵ the disorder, and if you can't find that relation, then even somebody with a severe personality disorder is still responsible.

JUDGE JORDA: [Interpretation] Thank you. You haven't really slaked my colleague's thirsts. Judge Riad has another question and then Judge Rodrigues, but we are looking at the clock because we have some other witnesses who are waiting.

All right. Judge Rodrigues.

JUDGE RODRIGUES: [Interpretation] Doctor, you say that we have one word only for snow, whereas Eskimos have at least 20 words for snow. Perhaps we would have only one word for personality, but you are here because you have at least 50 words for personality.

This is my question, and I don't want to deduce things so I will go directly to the question. Would you say that the experience of

Mr. Jelisic, that is, the murders, what he did in the camps during the war, might he have learned something in the sense of having modified or changed or organised things from his emotional structure? Was he able to grow a little bit in his ideas relating to identity?

A. I think he is able to grow a little bit, and in fact, you can see that already, in my opinion. The ²⁹⁵⁶ fact that he has to be here in this trial is a very good way for growth in a positive way for him. What I saw in the detention unit, also there, from what I heard, he behaves like a model prisoner, in a social way. So he has possibilities for growth, but he has to be in good circumstances, with positive identification figures.

JUDGE RODRIGUES: [Interpretation] So now I could tell you what the point of my question was. Excuse me, Mr. President, but I saw the other half of the bottle. Thank you.

JUDGE JORDA: [Interpretation] Judge Riad, a final question. We want to begin with the next witness.

JUDGE RIAD: [Interpretation] Yes, of course. [In English] I just wanted to reach a synthesis of a very interesting, in my opinion, very crucial answer you gave to the President when you said that this personality disorder can be taken into consideration if the crime committed is related to the disorder.

A. Yes.

JUDGE RIAD: Now, apply this to this case to which you are appointed. Do you think the crimes are related to the disorder?

A. I think so. ²⁹⁵⁷

JUDGE RIAD: Which means that such crimes can be committed again as far as this disorder can determine it.

A. If the circumstances are the same.

JUDGE RIAD: If they are the same.

A. If the circumstances are the same.

JUDGE RIAD: Yes.

A. I mean, if there would be war conditions again.

JUDGE RIAD: Yes.

A. But if there is no war, then it's very risky for me to say this. I can't say yes; I can't say no.

JUDGE RIAD: Thank you very much, Doctor.

JUDGE JORDA: [Interpretation] Let me turn to my colleagues once again to be sure that they don't have any further questions. I would like to thank them.

We are finished now. Your voice is still there. You could have been asked many more questions, you know, but all the more reason because we had never heard the accused express himself.

We're going to work until 1.00, and we'll ask the usher to accompany the witness out of the courtroom. We thank you very much for having come to testify. ²⁹⁵⁸ Mr. Greaves.

MR. GREAVES: Your Honour, I'd like to have the same opportunity as the Prosecution had, but perhaps Your Honour thinks I shouldn't have that, of having my witness sit next to me.

JUDGE JORDA: [Interpretation] Mr. Greaves, without expressing it quite the way you did, I can say that I have never really refused anything you -- you've had your interpreter with you, and I don't think that there's a problem. Ordinarily, I think the Judges conduct themselves politely, unless we are talking about judicial discussions. I would like things to continue to be carried out that way.

Mr. Greaves, I see no problem with that. I am sure that in the silence that Dr. van den Bussche is going to maintain, we can hope that his voice will improve.

We could bring the next witness into the courtroom and have Dr. van den Bussche to sit the way the Prosecution's witness has been sitting. Thank you very much.

MR. NICE: Can I, in the circumstances, call Dr. Duits, please, to give evidence.

JUDGE JORDA: [Interpretation] Yes, of course. ²⁹⁵⁹

[The witness takes the stand]

JUDGE JORDA: [Interpretation] Good afternoon. First you're going to give us your names and your position, your date and place of birth, your current domicile, and then we're going to ask you to take an oath, and after that, you may be seated.

THE WITNESS: My name is Nils Duits. I am a psychiatrist and superspecialist in child and adolescent psychiatry.

What more did you ask? You speak -- I understand French, but I didn't hear you.

JUDGE JORDA: [Interpretation] I just wanted to ask you your age, where you live.

THE WITNESS: Okay. I was born in 1955, and I reside in Amsterdam.

JUDGE JORDA: [Interpretation] Would you take an oath, please.

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

JUDGE JORDA: [Interpretation] Thank you. You may be seated now, Doctor.

I will ask Mr. Nice to continue for about 20 minutes. Mr. Nice, stop at logical point.

MR. NICE: Thank you. I'll do just that. ²⁹⁶⁰

WITNESS: NILS DUITS Examined by Mr. Nice:

Q. Dr. Duits, you've told us that you are a psychiatrist. Without focusing on the paper qualifications, because they are less important than the experience, can you tell us your length of service as a psychiatrist, the degree to which you're a forensic psychiatrist, specialisation, and publications.

A. I am a psychiatrist from 1994. I am a child and adolescent [Realtime transcript read in error "adult"] psychiatrist from 1995. My forensic psychiatric experience is longer than that. Already from 1988, I was working in the forensic psychiatric services. I work in the same service as Mr. van den Bussche as a coordinator of psychiatric reports and supervision of people who do those psychiatric reports. I think I have made some 200 psychiatric reports. I do contract expertise for the Ministry of Justice. I did and do consultations for the Prison and Youth Protection Board.

In Holland, I am a leading forensic chart and adolescent [Realtime transcript read in error "adult"] forensic psychiatrist, and I'm the editor and wrote a book about youth psychiatry and law. ²⁹⁶¹

Q. Thank you. Did you examine --

MR. GREAVES: Your Honour, I'm just slightly troubled. The transcript keeps on coming up "child and adult psychologist" I had understood him to say "adolescent" on each occasion. Please may the appropriate correction be made in respect of that.

JUDGE JORDA: [Interpretation] You're right, Mr. Greaves. I had heard "adolescent" in French. It's adolescent, is it not?

THE WITNESS: Yes.

JUDGE JORDA: [Interpretation] Thank you.

MR. NICE:

Q. Doctor, you examined Goran Jelisic last year in November with a colleague, preparing the report for this Court, and you may take it that the Chamber has read that report and has it available.

I have a number of questions to ask you, not too many, but I am going to try and connect the topics that I was going to ask you in any event with the questions recently in mind because the learned Judges have asked them of the previous witness, and it may help us if we focus on those same areas straightaway. You were --

JUDGE JORDA: [Interpretation] Yes, Mr. Nice, the Judges would be sensitive to your establishing the ²⁹⁶² relationship with the questions that my colleagues asked as well.

MR. NICE: Thank you.

Q. You were asked questions by His Honour Judge Riad about the potential of those with personality disorders to commit precisely this type of crime, and you were asked a similar question, but I think expressed in a different way, by His Honour Judge Rodrigues, and you were asked questions about what would happen in the Dutch legal system to those convicted killers who were found to have personality disorders.

Question 1: What percentage, if you can help us, of convicted killers who are examined psychiatrically are found to have psychiatric personality disorders?

A. I think you have to divide killers or homicide into different categories. First of all, you have the homicide in the family atmosphere, which unfortunately in all countries happens a lot. Those people, a certain part of them do not have personality disorders but have psychotic problems, although often relating to slight or more personality disorders. People who do not kill or commit homicide in family relationships, most of the time, and you asked ²⁹⁶³ me a percentage, I think it's in 90 to 100 per cent have personality disorders.

Q. So inverting that conclusion, family situations apart, without personality disorders, the number of killings would be dramatically reduced or eliminated? Without personality disorders, if you postulate a society free of personality disorders, and if you exclude the family circumstance, why, without personality disorders you eliminate or drastically reduce the number of victims and the number of crimes?

A. Well, that's a theoretical question, but I think it's impossible to answer. But if there are no personality disorders -- it's always related to circumstances also. But virtually speaking, you have less crime.

And let me specify the question you asked beforehand. In family life, or in homicide of family circumstances, has to do with other psychiatric disorders, often psychotic problems. But I must say, like from the basis stated, that personality disorder is in all a different degree possible.

So if I state 90 to 100 per cent of people who do not kill -- or do kill, not in family circumstances, you have all the spectrum.

Q. Dr. van den Bussche, at page 18 in the ²⁹⁶⁴ English version of his report, but we all remember it, postulates how the leaders of the warring parties will themselves have and project psychopathic borderline conditions, antisocial, psychopathic borderliners. Now, we have explored with him whether there is any learning in relation to that, but do you have any view to express about the possibilities of personality disorders being found within the leaders of atrocities committed either in this war or indeed the leaders of atrocities committed in other more famous and graver wars?

A. It's always difficult to say, in the sense that they are not psychiatrically examined. But if you draw that on journalistic reports, and I also examined Internet on this, of course, you can say that big leaders often have personality disorders, in the sense that more in the narcissistic and anti-social range of the personality disorders.

Q. You were then asked about his age of maturity at 17 or 18. I beg your pardon. You weren't asked, Dr. van den Bussche was asked. And he answered in terms of the defendant seeking a father figure. I want you to comment on those propositions, but to save time, will you also deal with whether on the evidence he has shown any signs of maturing or developing from the 17 ²⁹⁶⁵ or 18 year old, or whatever your answer on that is, between the time of the killings and today?

A. The first question about maturity at 17 or 18. I think Mr. van den Bussche related a certain aspect of the origin of the personality disorder Mr. Jelisic has, seeking a father figure. There is more to that, I think. It's also in his objective relations, like we call it in psychiatric terms, in his early objective relations, and in his attachment problems, there are disorders which reflect themselves in how he relates to other people.

Simply said, that like what van der Bussche said also, the reflection finds itself in the splitting phenomenon he explained, like the idealisation, devolution of the people who are before him. And if you go back to his youth, the little we know, because I have to state also, that if you want to make a good psychiatric report, you need the material about his growing up. Not only from his mouth, but also from his close relationships, and a full documentation about, of course, what he has done and how he was beforehand. But what he said about his youth, you can see that the object relation thing I just mentioned is disturbed. The second question, and not only seeking a father figure. That is one aspect of it. The second ²⁹⁶⁶ question, if he has matured, I cannot answer, in the sense that at least not 'til now. Of course I have read Mr. van den Bussche's report, but I didn't examine him. I can only speak concerning my diagnostic examination, which is mostly a present state examination. And maybe you have to specify your question about mature.

Q. First of all, are you accepting that the mental age or the developmental age was or is 17 or 18. If it was 17 or 18, to what degree has he advanced since?

A. Yes. I think that's in a certain way arbitrarily chosen by Mr. van den Bussche in his authority or speaking about his identification problems. Other manifestations of his personality disorder have to do with more childish behaviour, in the sense that how he sees the other person before him.

Q. His Honour Judge Rodrigues asked questions about utilities and lies. You may remember the questions. Do you have any comments that you want to make on that?

A. Well, yes. I would like to comment, to have one comment. What we saw, Mr. van der Veen and I, for our interview with Mr. Jelisic, is that it was ²⁹⁶⁷ difficult to ask him questions about certain topics we were interested in. In that way, as we described, as you can read in the examination interview, he was very much leading the topics we could discuss. About lies. That's, in a certain way,

difficult to -- talking about lies, you have to -- you must control them with other people's statements, and you have to control them. And we did not have, actually, the possibility to control them.

Q. Because you didn't have the material available --

A. Yes.

Q. -- on which to act?

A. Yes.

Q. And, of course, that is partly from the evidence of the interviews, which you have now read, substantially that's going to depend on the factual findings that the Trial Chamber makes?

A. Yes.

Q. On matters that have been given in evidence and that are the subject of dispute?

A. Yes. But I was surprised to read that he wasn't tortured in Croatia. Because that's what he told us.

Q. Staying with that topic, that is the way in ²⁹⁶⁸ which he controlled the interview, and dealing with the heading of manipulation generally. To what degree did you find him or do you find him to be manipulative? And to ask you two questions at once, to save time, His Honour Judge Rodrigues asked questions about the potential for Jelisic, theatrically or for other reasons, to help Muslims at the same time as also killing other Muslims. One other possibility that the Chamber will be invited to consider is that at the time of or shortly after killings, he would be creating alibi witnesses or witnesses who would be favourable to him, knowing what was inevitably going to happen to him if he was arrested.

So dealing with manipulation, will you comment on his potential, given what we know about him, to manipulate people in that way.

A. I find it hard to comment on that, because we did a psychiatric examination. We felt manipulated, in the sense I described beforehand, like we wrote down. If he is able to do that kind of manipulation or steering with other people, it is not excluded of course, because he did it with us also. But that's all I can say about that, I think. Because I don't know the circumstances.

Q. Thank you. The Presiding Judge's question to ²⁹⁶⁹ you about remorse and duress -- I beg your pardon, his question to the last witness drew an answer that of course you could act under duress and still express remorse. And I don't think you disagree with that conclusion.

A. No.

Q. But if the account of duress is itself inaccurate, or dishonest, does one have to enlarge or change the caution with which you approach the man's account of remorse?

A. I think it has to do with honesty and, of course, it has to do with remorse. Remorse has to do with, first of all, to understand other people's feelings and behaviour and thinking, to take another regard in perspective. In our interview -- no, let's go further than that. Remorse has also to do with -- let's say mental pain, to make and the urge to make that disappear, to make that better, or to undergo punishment for it.

In our interview we did not see remorse in those aspects. Especially, we did not see, let's say, the basis for Mr. Jelisic's placing himself in other people's shoes, like to say it simply. But our interview was one year ago.

Q. If I may return to a few questions about ²⁹⁷⁰ remorse a little later, but it may be that that would be a convenient moment.

JUDGE JORDA: [Interpretation] Yes. That's what I think as well. We'll resume at 2.45 today.

--- Luncheon recess taken at 1.02 p.m. ²⁹⁷¹

--- On resuming at 2.53 p.m.

JUDGE JORDA: [Interpretation] We can resume our work now. Have the accused brought into the courtroom, please.

[The accused entered court]

JUDGE JORDA: [Interpretation] I apologise for this delay.

We can now resume, Mr. Nice.

MR. NICE: Thank you.

Q. Doctor, you were dealing with remorse, and you told us a little about the significance of an ability or inability to identify and feel for others. I'm going to ask you to come back and just remind us of the significance of that, but do you recall that in one of the earlier reports of Dr. Herfst, at page 8 in the English version of that, the last page, the doctor said that what is remarkable is that when the subject explained he had to shoot Muslims, he showed little emotion and there was no deep feeling of regret or grief.

Can you just expand a little on the significance, not very much but just a little on the significance of this inability to locate yourself in somebody else's shoes?

A. Well, I think that before I begin, I'd have ²⁹⁷² to say that we talked with Mr. Jelisic about his youth and adolescence, and there are a lot of failures, failures at school, yes, also fraud with cheques, and a lot of failures like that, and all the time he is blaming that on others. As an aspect of his personality disorder, he is externalising the guilt. Another aspect of his relation to others is that those relations are, in fact, empty. The close relationships, the lasting relationships, also with his parents, are devolutive in -- they only have devolutive aspects. Also, the other relationships he describes he uses other people for his needs, very simply spoken. To have remorse or guilt, it means that

you -- well, he has an egocentric stance. To have remorse or guilt, therefore, you need to see other people's feelings, emotions, and thoughts. In the interview we had with him, in the interviews I read about him, I cannot see that, and that's needed number one for feelings of guilt or remorse. If you don't have them, it's very difficult.

Q. Apart from the one passage in the latest report, where it is said that the man cried, although it said that he cried when thinking of witnesses coming to speak for him, there's no other evidence you've seen going to show remorse of any kind. ²⁹⁷³

A. No.

Q. Picking up on something that you touched on there and reverting back to a question from His Honour Judge Riad about him responding by committing these crimes to pressures and tensions of attack -- that's relating to the crimes in the war -- do you find some significance in the commission of these frauds before the war when there was no attack and there was no pressure to commit offences of that or any kind?

A. That's right. I think one must be aware of the fact that it's not -- that there are no simple -- that his personality disorder is not a simple fact in the sense that it's only pressure that counts. Of course, that counts, and stress is a factor for personality disorder aspects to come out. But what you can see is that he makes his own rules, generally speaking, and also that he does that in grandeur, as I might simply say it. In fact, in the psychiatric examination, the grandeur, the narcissistic aspects of his personality disorder were clearly seen.

Q. For his earlier criminal behaviour, he has at different times given a very wide range of reasons, starting with being dealt with badly by his parents, even by his grandparents, his friends leading him astray, his first wife's father coming and dragging his ²⁹⁷⁴ first wife away, drugs and alcohol, reason after reason has been advanced, and they can be catalogued for the Trial Chamber in due course. As against that, the layman might say, "Well, he did these things simply because he wanted to." What are we to make of the fact that he gives all these different accounts for criminal behaviour?

A. That's what I said before. That's an aspect of his reality, externalising guilt, externalising responsibility for his own acts.

Q. Do you, as a psychiatrist -- do psychiatrists accept that people can commit crimes simply because they want to?

A. Well, there you come -- yes, they exist, of course.

Q. Thank you. Moving away now from the learned Judges' questions because I think I've touched the ones that I wanted you to deal with, a few more points, please. Control, as an element of personality disorder and also as an element of the psychopath, first of all, in manipulation, do you find evidence of control?

A. Of course.

Q. Is it right that control is an element in the development of a psychopath, the desire to control?

A. Yes, of course. ²⁹⁷⁵

Q. Thank you. We asked questions of the last witness about the significance of a killer being more vulnerable or likely to kill again. Can you deal with that proposition and also with anything you want to say about either his being a danger if released ever and/or about the difficulties of assessing his danger?

A. I totally agree about what van den Bussche said about risk assessments and about the frequency of the deed. To be sure about risk assessments, the actuarial instruments we have for that are lacking for these kinds of needs, so what rests is clinical experience and clinical risk opinions.

We know, as Dr. van den Bussche said also, from clinical experience, and we treat a lot of people also in prison in Holland who have killed, that once you have killed somebody, it's very easy to do -- or it's more easy to do your next killing, also to commit suicide. That's one.

The second is that Mr. Jelisic, as I said before, besides all the aspects of the personality disorder he has, like van den Bussche told us, about identification, about splitting, about idealisation and devaluation is a very egocentric and narcissistic person. Those traits do exist also in this personality disorder. ²⁹⁷⁶ His objective relations are, as I said

before, centred in his need and are relatively empty. In the psychiatric interview, we talked four hours with him, with two people, in a non-confrontational manner. Despite that, upon the slightest confrontation, the subject's anger was close to the surface. It's not possible for me, like van den Bussche said also, to foresee the future in this case regarding danger. It's an impossible -- you can't possibly answer that question, but what you can say is what I said before. So if you killed somebody, it's easier to kill next time. The objective relations are empty and anger is under the surface.

Q. Two supplementary questions to those, each short. The fact that someone cannot feel for another person, does that disinhibit him? Does that make it easier for him to commit a crime that has consequences in injury and death for another person, because he has no notion of how to feel for another person?

A. Yes.

Q. Has there been any material shown to you to suggest that this man has started to feel for other people?

A. No, not in our diagnostic exams. No.

Q. The second point, the anger. Mr. van den ²⁹⁷⁷ Bussche says that there was no anger there. We know that you recorded your finding of anger in your report and that he had read your report. Is it within the capabilities of a man like this to suppress his natural behaviour in the interests of manipulating a psychiatrist?

A. First of all, I have to say that in all forensic psychiatric diagnostic assessments, manipulation is always at hand. Of course, people who are against a psychiatrist, a forensic psychiatrist, want to be better than they are, and do manipulate. Second, and related to his personality

problems, there are, of course, fluctuations in his mood, behaviour and stance to another person before him. That changes. So it might well be possible that in our exam he was more paranoid, more ill at ease than with van den Bussche. But it's possible, because he read our diagnostic examination, that he has drawn his conclusions. I cannot say.

Q. The significance of having more than one psychiatrist or psychologist in one interview, a quick comment on you from that, and then I am going to ask you a quick question about your report, and then I am going to finish. So two people present at an examination? ²⁹⁷⁸

A. It's our normal procedure in big cases to be with two people. The manipulation risk, when you are alone, is too big. If one takes the questions, the other can lean back and look to the interaction and can concentrate more on things like projection, and idealisation, et cetera. Simply said, can look to the interaction if the colleague is let in or not. And that's what I have to say about that.

Q. Thank you. Take your report in the English version, please. Page 5. I don't have the French version immediately at hand. It's the heading "description of himself." Thank you very much. It's page 5 in the top right-hand corner. The French version has the numbers in the top right-hand corner, the English in the bottom, I think.

JUDGE JORDA: [Interpretation] Excuse me. I have been changing offices and I don't always find things. Excuse me. Page 5 is then what page in French?

MR. NICE: It's also 5 in French.

JUDGE JORDA: [Interpretation] Okay. Thank you.

MR. NICE: "Description of himself."

JUDGE JORDA: [Interpretation] Yes, I see it. Thank you very much, Mr. Nice. ²⁹⁷⁹

MR. NICE:

Q. We have here this passage of the subject saying he was good and had never been bad, could prove himself, and repeatedly comments on his high moral standards.

Now, this is obviously an extraordinary thing for a man who is a multiple killer on any reckoning to say. Can you just explain, if there is any explanation for that, the significance of that? What does that extraordinary passage fit in with?

A. It's a mix of reasons, I think. It has to do with, first of all, that he doesn't see his own -- he doesn't see well the reality, simply said. Second, that he wants to convince the

examiners about his own ideal perception of himself. And at the same time, and that's a very common happening in the interaction with borderline personality disorder, you get projection identification thing. That means that -- it's difficult to explain. That you -- what you feel, what you want to feel, you project, you see it in the other, and you feel it like you see it in the other.

So wishes, manipulation and distorted reality are reasons for these things he says about himself.

Q. Thank you. Page 8 in both the English and ²⁹⁸⁰ the French version. Under "Relationships with Others." He made it clear in a couple of occasions, I think, in your interview, that he had been a great success with women and he had tried out women or test driven women, and that he had two or three women at the same time. Is that significant or is that just a

reflection of immaturity?

A. No. It's again -- there are several reasons again for these statements. In fact, it reflects on how he uses other people, how he doesn't count on their needs, thoughts. But also it has to do with grandeur. He boasts as a macho, as somebody who has power, and again distorts reality.

Q. Page 10 in both the English and French at the foot. You are aware, are you, that this version that he gave you of specific threats to kill is something that he's never adopted elsewhere and indeed in his interview, which you've now seen, he makes it clear that he was never threatened. So that this is, on -- if his interviews to the investigators is his present case, then this is a lie, and a significant lie, because it's quite specific. And the significance of that for you?

A. Well, I am impressed by that in the sense that, like I said, his answer on your questions you ²⁹⁸¹ asked beforehand about his distortion of reality and also lying to the examiners. To me also.

Q. So when we turn over the page, in both the English and the French versions, at the end of the first paragraph he says that he killed people with his head turned away. At the end of the second paragraph he says that he made a confession to a Muslim lawyer about everything he had done and seen.

As to the first point, you've now seen the photograph sequence and you realise that that simply isn't true.

As to the second, you accept that that's something that doesn't appear, I think, anywhere else in the account that he's given. Thank you. Would you turn over right now to page 16, and I think the translators have very helpfully kept the -- pretty well the same pagination, and indeed it is on page 16 in the French version. A few lines down from the top and in the main -- the first full paragraph in the English version.

I'm sorry, there was no answer to the previous question. Did you accept the points I was putting to you on the previous question, please, witness?

A. I said "yes" to that. ²⁹⁸²

Q. Thank you. Right. Page 16 of your report. You had access to the report of Mrs. Petrovic, who, of course, had been seeing him for extended periods of time, and she stated that he couldn't control his aggressive impulses. This was the reason for his behaviour in the war; that he is a primitive who could not defer his needs. He couldn't face his own behaviour, and he couldn't, he claimed, read the statements in connection with the matters charged. Now, first of all, does your assessment fit with or is it contrary to the assessment of the woman who had been treating him?

A. Well, the statement that the subject cannot control his aggressive impulses, I already commented upon. I said that his anger was close to the surface upon little confrontation. In our assessment, and I must say that we do not confront very much, to keep the interview going. In such short notice to do a psychiatric examination, needed not a confrontation -- normally you confront people with dishonesty or to see what happens if -- with anger and impulse control. But this wasn't possible in this case, so we couldn't do it, due to the short notice.

So in our exam we did not see that he couldn't control his aggressive impulses. ²⁹⁸³

Q. Does your conclusion --

JUDGE RIAD: Excuse me. I want to understand. He could or he couldn't control?

A. We, in our examination, in the four hour examination, he could control --

JUDGE RIAD: He could control?

A. He could. But his aggression was under the surface. That's what I said.

JUDGE RIAD: Thank you.

MR. NICE:

Q. Her conclusions or her opinions, rather, related not just to the process of being examined by a psychiatrist, but amount to a conclusion about his behaviour generally, because she attaches the reasoning to his behaviour in the war. What I want to know from you is this, please: Do the conclusions you were able to draw from the psychiatric and the controlled psychiatric examination you conducted, do your conclusions necessarily conflict with hers or may they be consistent with hers?

A. They are consistent.

Q. So that there remains the possibility that he is an aggressive person who cannot defer to his needs, and that it was his aggression that led to his behaviour? ²⁹⁸⁴

A. Yes.

Q. Thank you. Thank you very much. You will be asked some further questions, I forecast. Cross-examined by Mr. Greaves:

JUDGE JORDA: [Interpretation] Thank you. Now, the Defence is going to ask some questions. Mr. Greaves, please.

MR. GREAVES:

Q. Dr. Duits, can we just look a little more closely at what precisely your sphere of expertise is. Can you explain to us what the phrase "superspecialist" means exactly?

A. To be a child adolescent psychiatrist, you have to further specialise than a normal psychiatrist. You have a normal -- in Holland it's like this. You become a psychiatrist. You do, in your psychiatrist education, child and adolescent psychiatry. You go on with that. And afterwards you are a child and adolescent psychiatrist.

Q. So it's, as it were, a further specialisation within a specialty, as it were?

A. Yeah, that's right.

Q. Thank you. And help me about this. In dealing with children and adolescents, can you just help us about what the age of criminal responsibility ²⁹⁸⁵ is in the Netherlands?

A. Twelve.

Q. Twelve. And when you use the word "adolescent," is that a, as it were, a specific phrase that is appropriate for the Dutch legal criminal system? Does it have a specific meaning?

A. For the Dutch legal system, no. People can be judged according to juvenile law 'til the age of 21.

Q. And so that's, effectively, the age range for which you are dealing for the purposes of the criminal courts, 12 to 21?

A. No. No. No. I am also doing psychiatric exams on adults.

Q. What proportion of your work is children and adolescents, and what proportion adults?

A. I think it's about 80 to 20.

Q. And when you are dealing with children and adolescents, is this right that you are dealing with the whole range of criminal activity, not just violence and homicide and things like that?

A. All the psychiatric examinations we do have to do with aggressive acts, and not only homicides, no.

Q. I was going to say aggressive acts covers a wide range of activities; does it not?

A. Of course. It means armed robbery, sexual ²⁹⁸⁶ assault and homicide also.

Q. Of those people with whom you've dealt, how many of them have been serial killers, Dr. Duits?

A. Contrary to United States and France, we hardly have serial killers in Holland.

Q. Next I would like to turn, please, to the examination in which you conducted in November of 1998 of the defendant. It's right, isn't it, that there was one specific purpose to your examination of the defendant?

A. I don't understand your question.

Q. You were being directed to one particular issue, were you not, which was whether or not the defendant was fit to plead, fit to stand his trial?

A. Yes, that's right.

Q. And help us about this. One understands in the English system what that means, but can you explain to their honours what you understand by the issue of fitness to plead, to stand trial?

A. To understand the psychiatric status of the person in question, where he comes from and how he is, and if he is emotionally and rationally able to understand and to undergo a trial.

Q. At that time, November 1998, you were not being asked to determine whether or not this defendant ²⁹⁸⁷ represented a risk in the future, were you?

A. No.

Q. You were not specifically, although it may have been part of some of the assessments that you made, you were not specifically being asked to determine the degree of personality disorder present in the defendant?

A. No, but that's -- I was not asked, but we felt it our duty to do so.

Q. It's right, isn't it, that you and indeed, I think, Dr. van der Veen, have not seen or examined the defendant since that time?

A. That's right.

Q. Do you accept that it is possible for an individual to change, develop in the period of a year?

A. A person in general, or Mr. Jelisic?

Q. Let's deal with it in two parts. People of this kind, in general.

A. This kind? What do you mean by "this kind"?

Q. Persons with personality disorders.

A. Very, very -- like van den Bussche also said, there's a range, a spectrum of personality disorders in severity and different types of personality disorders. It doesn't fall out of the air. People have that from childhood on, and, like van den Bussche said also, it's ²⁹⁸⁸ an assessment, a diagnostic assessment which not many people have. The possibility of change is very limited.

Q. But not having seen the defendant since 1998, a year ago, you could not say, could you, whether in fact or not he had changed or developed in any way, could you?

A. In fact, we said it beforehand, if you read our examination. There are fluctuations in mood and behaviour which are related to the disorder itself.

Q. That wasn't the question that I asked, Doctor. You have not seen him since November 1998. You are, therefore, not in any position at all to say whether or not he has changed or developed, are you?

A. That's right.

Q. The only person who is allowed to give evidence before this Court who could give such an assessment is, therefore, your colleague, Dr. van den Bussche; is that right?

A. But he didn't see him a year ago.

Q. But he's the one who's seen him most recently, hasn't he?

A. Yes, but you have to make a comparison with your own eyes, I think, not only with the document maybe. ²⁹⁸⁹

Q. Well, he's got your report. Are you saying that your report is not of value to a fellow psychiatrist in coming to such a conclusion?

A. No, I don't say that.

Q. So he could read your report -- and of course you say that you've got it right about the defendant -- he could read your report and determine whether or not there had been any development or change in the meantime.

A. Even discuss it with me.

Q. He discussed it you with, didn't he? So he's in a position to come to an objective conclusion, is he not, as to whether or not there has been development.

A. That is his professional judgement.

Q. I want just to ask you a little bit about how you came to make your report, and I'm referring to page 4 in the English version. I'm afraid I don't have the French version so I can't help Your Honours as to where it is.

You state there, top of page 4, that your examination took some four hours on the 23rd of November and that you had the aid of an interpreter.

A. Yes.

Q. And that you, following the examination of the defendant, spoke with the interpreter and asked ²⁹⁹⁰ about her impressions. Did she give you those impressions?

A. We asked how -- yes, because we asked a very specific question about -- like we said in the examination, if it's normal to have different women at the same time in Yugoslavia.

Q. Did you establish whether she was from the same area as the defendant or the same community as the defendant?

A. No.

Q. Wouldn't that have been a good idea, to find out a little bit about the cultural background of the person who you were seeking expert evidence on the treatment of women in Yugoslavia? Wouldn't that have been a good idea, Dr. Duits?

A. I don't know for this specific question. I couldn't say. I can't say now either.

Q. Come, there are, would you accept, cultural differences right the way across the world in the way that individual nationalities treat other people, particularly women, in some countries that the attitudes towards women is more developed than in others, isn't it, Doctor?

A. That's right. I know how in the Muslim culture one thinks about having more women. ²⁹⁹¹

Q. But you didn't think it important when questioning the interpreter about that to establish which culture she represented.

A. No, we didn't ask, I believe. I'm not sure anymore.

Q. Did the impressions which she gave to you, did those have any influence on the conclusions to which you came, Dr. Duits?

A. On the question we asked, we mentioned in the report that apparently it's not normal to have different women at the same time.

Q. I'd like to ask you now about the role which Dr. Petrovic plays in the conclusions to which you came. You were able fully to consult with Dr. Petrovic, were you?

A. Yes.

Q. We can see in your report a series of quotations which come from Dr. Petrovic.

A. That's right.

Q. Were any restrictions placed upon you by the Registry as to whether you could not or could quote in your report the professional diagnosis of Dr. Petrovic?

A. There were no restrictions.

Q. Did Dr. Petrovic express to you any reservations about you disclosing in your report in a ²⁹⁹² direct quotation manner her diagnosis and treatment of the defendant?

A. No.

Q. Did Dr. Petrovic ever say to you that because of her professional relationship and professional ethics you could not quote her directly and set out her diagnosis and treatment?

A. She never said. We said beforehand that we -- we interviewed her because of the examination and report.

Q. If the Defence were told that they were not allowed to quote Dr. Petrovic directly as to her diagnosis and treatment, that would be a different regime applicable to the Defence compared with you; would you accept that?

A. I don't understand your question.

Q. Well, you've told us that you were placed under no such restriction. If the Defence were placed under such a restriction, that would be a different regime, wouldn't it, being applied to the Defence?

A. I still don't understand your question.

Q. It's quite simple, Doctor.

A. Yes.

Q. You were given no restrictions of any kind as to what you could quote from the diagnosis of ²⁹⁹³ Dr. Petrovic. If the position is that the Defence team and the doctor instructed on behalf of the Defence were placed under restrictions as to what they could quote, or whether they could quote at all, that would be quite different, wouldn't it, a quite different regime than applied to the Defence? Would you accept that?

A. If that were so, then it's a different regime.

Q. Yes. You rely heavily upon the observations of Dr. Petrovic, don't you?

A. No. I think -- no. What I want to say here is that, like van den Bussche said, the quality of a psychiatric examination is based on a multi-informant, multi-material examination of somebody. So you have to know -- if you are asked the question if somebody is fit to stand trial, how he behaves in detention, that's why we asked also the doctor and somebody from the guards how he is in detention, that's why we talked to Ms. Petrovic also.

Q. Just help us about this, sir, si that we're absolutely clear: In 1998, you were instructed to deal with this matter on behalf of the Registry. Are you now still working for the Registry or are you working for the Office of the Prosecutor?

A. I was asked by the Prosecutor to come here as ²⁹⁹⁴ his witness, to be his witness.

Q. Can I turn now, please, to the conclusion of your 1998 report, your report of a year ago. You concluded, and this is at page 25 of the English edition, Dr. Duits: "The subject is rationally capable of understanding the nature of the charges against him, including genocide, and capable of participating in the present case with full knowledge of what is being discussed."

Would this be right: that you had no reservations at all about his ability to understand the proceedings, to give instructions to his lawyers, and to physically and mentally undergo the process of standing trial?

A. Well, we make a difference between the rational part and the emotional part, as you can read.

Q. I read out the first bit to you. I'd like you to deal with that.

A. The rational part, yes, that's what we answered.

Q. The reason I asked you that is because I wish you to -- do you have the report of your colleague, Dr. Herfst, dated the 16th of April, 1998?

A. Not in the English version.

Q. Not in the English version. It doesn't ²⁹⁹⁵ matter. Have a look, please, at the conclusions to which that doctor came.

That doctor said at paragraph B of the conclusions: "Based on the foregoing, the undersigned is of the opinion that further to disorders affecting his judgement and critical faculties, the subject is only partially, i.e., to a limited extent, capable of understanding the consequences of his statements or realising the nature of the charges made against him and, as our participant in the present case, is only partially aware of what is being discussed." You plainly don't agree with that

conclusion.

A. No. In fact, we artificially divided the rational and emotional aspects, and it's a simple answer to a difficult question, of course. If you look to the psychiatric examination, of course you can see, like I already answered beforehand in other questions, that distortion of reality and about his objective relationships, about his emotional problems, it's an artificial division. So I don't disagree with what Herfst says in April 1998, although we examined him in November 1998.

Q. Would you accept that what Dr. Herfst is saying is that his ability to follow the proceedings ²⁹⁹⁶ and stand trial is strictly limited, whereas your opinion was that he was fully able, in the rational sense, to understand what was going on?

A. In the rational sense, that's what we said, yes.

Q. Dr. Herfst doesn't make the distinction which you've described as an artificial one between the rational and the emotional?

A. That's right.

Q. Are you saying that Dr. Herfst has got it wrong?

A. No, I already answered your question. I do not disagree with him.

Q. The defendant, when you saw him, elected to tape-record your examination of him. This is right, isn't it: You weren't very happy about that, were you?

A. No, I disagree with that statement. We observed it.

Q. You didn't like the defendant, did you?

A. I disagree with that.

Q. You were irritated about him and the way in which he was answering your questions; isn't that right?

A. It's much too simple to say something like that. You must know that in psychiatric examination, ²⁹⁹⁷ of course you use your feelings about somebody to confirm your diagnostic hypotheses, and like we said also in the psychiatric examination, he was at the same time charming also sometimes.

Q. Forgive me, Dr. Duits. What you said in your report at page 20 was "The very forceful and egocentric attitude of the subject, his manipulative method of exchange, and his changeable emotional state made the examination difficult and sometimes caused irritation." That's a pretty simple statement that you were irritated by him?

A. Of course, but that's normal and an honest way of how feelings of the examiner can lead to -- irritation has to do with somebody who is, like I said before, is manipulating, and it's very important to recognise that feeling.

Q. And, in particular, you also didn't like the inappropriate, as you perceived them, inappropriate remarks about women, did you?

A. They were, indeed, inappropriate.

Q. See, what I suggest is that you formed quite a considerable dislike for this man and that dislike somewhat overrode your objective view of him, didn't it?

A. No. ²⁹⁹⁸

Q. As far as the material which you had before seeing him and upon which you were able to base your report, none of that material contained either interviews with the Office of the Prosecutor or witness statements upon which the Prosecution were proposing to rely, did it?

A. No.

Q. And, therefore, your report was effectively prepared in ignorance of the detailed allegations against him.

A. Yes, and I totally agree with van den Bussche that you must have all those things to do a better quality examination.

Q. Indeed, one upon which you can come to any really solid and reliable conclusions at the end of the day; would that be right?

A. Yes and no. I mean, the fitness to stand trial is a present state examination, and I think between the context of what we had, this is a qualitative, good psychiatric examination for that purpose.

Q. As far as the issue of the defendant being untruthful is concerned, of course that applies equally to your conclusions as it does to those of Mr. van den Bussche, doesn't it? If he lies to you, your ²⁹⁹⁹ conclusions may be based on uncertain foundations; is that right?

A. Can you -- do you ask me something about my own diagnostic examination or what I said beforehand?

Q. This is the position, isn't it? If the patient you are examining lies to you, there is a danger that that may undermine the basis upon which you make your report, if you have been misled. Would you accept that?

A. Being misled and lied to, of course, yes.

Q. That applies equally to you as it does to Dr. van den Bussche, doesn't it?

A. Yes. I mean, lies which you cannot control don't seem to be lies, of course.

Q. Of course, if you are lied to, or if you are manipulated, any psychiatrist would be alert to that possibility, wouldn't he, or she?

A. Yeah, but it's not only -- manipulation doesn't consist only of lying. It has also to do with leading the interview; don't want to discuss certain issues. Yeah, let's keep it there.

Q. Well, I put it to you in this way: If you are lied to or if you are manipulated. So I wasn't suggesting to you that manipulation consists only of lies. ³⁰⁰⁰

A. Okay.

Q. But the point is this: That, as you've said, the good psychiatrist is alert to that and the good psychiatrist makes allowance for it in coming to his or her conclusions; isn't that right?

A. Yes.

Q. And factor it in, and if you are good at your job, you spot the manipulations, you spot the lies and make due allowance for them, don't you?

A. That's -- I don't think we can spot every lie.

Q. Of course not. I am not suggesting that you should. But what do you say about the proposition I have put to you, that --

A. If we spot lies?

Q. Yes.

A. Yes.

Q. And van den Bussche says, "I was able to see through him." So are you saying that he was incapable of making proper allowance for the lies and manipulation?

A. That's difficult. I think, like Dr. van den Bussche said, we had limitations with our psychiatric reports. We didn't have all the material. We did have to do it on a very short notice. Of course, lies and ³⁰⁰¹ things we don't know, we cannot put properly in our reports. Nor Mr. van den Bussche, nor van der Veen and me.

Q. Yes. Let's turn now, please, if we may, Dr. Duits, to the issue of risk prediction. Would you accept the proposition that Mr. van den Bussche put before us, which is that there is a tendency when making risk assessment to play safe, if you understand what I mean by that. In other words, to put the risk at perhaps a higher level than perhaps is appropriate, just in order to be on the safe side. Is that a fair proposition?

A. Of course.

Q. And that may be common sense, that one doesn't want to underplay the risk in case you make a terrible mistake. It's better to overemphasise than to underemphasise; is that right?

A. Yes. And I want to add something on that, because the risk assessments which take place for serious offenders -- I mean, the quality of psychiatric examination, the quality of a risk assessment are more important for serious crimes. And the risk assessments which take place, especially in Holland, but also elsewhere, have to do with, like Jelisic now, with an artificial situation, in the sense that you cannot ³⁰⁰² foresee how somebody is in a psychiatric hospital and afterwards in freedom, because they are not comparable.

Q. And, of course, it's difficult to recreate the conditions in which, for example, this defendant in time of war committed these offences?

A. Still another difficult aspect, yes.

Q. Would you agree with this proposition, Dr. Duits, that in the absence of a proper extensive assessment, it would be wrong to come to any conclusion ultimately as to the issue of risk?

A. That's what I said also, and that's what Dr. van den Bussche said. I only made it -- I only made statements about the personality of Mr. Jelisic and the aspects of his objective relations, his aggression under the surface, and his killing beforehand.

Q. Would you agree with this proposition, Dr. Duits, that the circumstances of a fairly bloody and fairly savage civil war or conflict of the kind that took place in Bosnia, are very different and have very different restraints from those which operate in a normal, peaceful society?

A. Of course.

Q. Yes. And there may well be a significant ³⁰⁰³ difference between the risk of further offending if a similar war takes place and the risks of further offending if society has become either normal or at least more normal again? Would you agree with that?

A. Of course there is a difference.

Q. I just want to turn now to a related topic. It's the matter that you raised about percentages of those who are at risk with having personality disorders, at risk of committing further offences. And you quoted a figure of 90 to 100 per cent.

A. No. Because you are not stating what I stated. I said it the other way around. It was about people who kill, people who commit homicide, and I stated about those people, not in the family atmosphere, a percentage of 90 to 100.

Q. They are at risk, you say, of doing that again --

A. No, that's not what I said. It was not about risk assessment.

Q. Yes. About those people who are not -- and you use the words "family atmosphere." By that do you mean domestic killings?

A. Yes.

Q. Those who are not amongst that group --

A. Have in, 90 to 100 per cent -- ³⁰⁰⁴

Q. A risk of further offending?

A. Well, if you say -- if you make the leap that a personality disorder who killed can kill again, then, yes. But what I stated was that 90 'til 100 per cent of the people who kill, not in a domestic atmosphere, have personality disorders.

Q. You make observations about what you described as Dr. van den Bussche's arbitrary choice of age development. What, precisely, do you mean by arbitrary?

A. Well, I think as a child and adolescent psychiatrist I am able to speak about child age and cognitive moral and emotional development and what goes with what age. That's exactly my specialty.

Q. Of course. But --

A. But the point is that, like van den Bussche said, that age, he related that to identification problems, identity. And personality disorder is more than identity alone.

Q. But you say that it's arbitrary. Are you saying he's got the age completely wrong?

A. No. I think it's -- you cannot arbitrarily say that he's 17 or 18 years old. I think for some aspects of his functioning or defence mechanism he has, he is younger. For some he is older. ³⁰⁰⁵

Q. You were asked about this, and it's been suggested that the defendant, even back in May 1992, was already at the business of creating alibis, creating defences for himself. Do you seriously think that this defendant is sophisticated and intelligent enough to commit a murder in the morning and then immediately set about creating alibis and defences for himself?

A. I don't know the circumstances, as you must know, but I do know how he behaves in the interviews and in our exam, and what goes with the personality disorder he has. From there on I made some statements. I cannot go into your question because I don't know the circumstances.

Q. Let's assume for a moment that -- well, sorry. Just give me a moment and I'll rephrase that. Does he have the degree of intelligence and sophistication, you having examined him, to plot, from the moment of a killing, how best to make things up and lie about them so that he can avoid responsibility for them? Does he have that level of sophistication?

A. Immediately after a murder? Immediately after a killing?

Q. Yes.

A. If I could say -- I cannot answer that. You ³⁰⁰⁶ must know the circumstances to answer that. What I can say is that he is manipulative in the interview and in the other interviews as well.

Q. As to the issue of remorse, of course again the snapshot that you are able to give us relates to a period 12 months ago. You couldn't dispute that there may have been some development in the past 12 months in that regard, could you?

A. What I can say about that is that Dr. van den Bussche -- in fact, we have the same diagnostic assessment. We've come to the same diagnostic conclusion. We describe the same defence mechanisms of the personality disorder, like psychiatrists and psychologists before. And the statements are made about that, about the necessity for remorse is to have objective relations, is to be able to place yourself in the shoes of somebody else, emotionally, cognitively, rationally, et cetera. And I don't see that with Mr. Jelisic.

Q. You didn't see it in November 1998, but you cannot say, can you, that it did not exist in 1999?

A. I didn't read it in van den Bussche's report either.

Q. It's for the learned judges to decide of what to make of Dr. van den Bussche's evidence today about ³⁰⁰⁷ whether or not there was genuine remorse.

A. Uh-huh.

MR. GREAVES: Yes. I have no further questions.

JUDGE JORDA: [Interpretation] Mr. Nice. Re-examined by Mr. Nice:

Q. You've been asked about van den Bussche's seeing through the defendant. You will recall that van den Bussche also said, in relation to the passage in his interview where he spoke of the defendant crying and apparently showing some remorse for the first time ever. He also said it was possible that that was a change of personality or it was possible that he was being deceived.

In relation to that, what do you think is the value of a two-hour interview by a solitary psychiatrist on his own to assess personality change?

A. I don't think van den Bussche claims that he saw a personality change. He made a statement about remorse, which actually he didn't specify, in the sense of how that relates to how Mr. Jelisic relates to other people and his emptiness of feelings.

Further, he stated that he had real tears, which he didn't specify either, in the sense that -- and what I read in the report of Dr. Van den Bussche is ³⁰⁰⁸ that it was related to the fact that Mr. Jelisic was relieved that the witnesses -- so many witnesses came for him to The Hague. And if tears are related to that, it, for me, it has not much to do with remorse. But it can be about other subjects as well, but in the report it was related to that fact.

Q. Two other questions only, I think, that I have for you, possibly three. They can be dealt with quite shortly, I hope.

Given the conclusions of all psychiatrists and psychologists, that this man has a personality disorder, question number one of a two-part question is do the pattern of lies and dishonesty that we've heard about confirm or fit in with the diagnosis of the personality disorder?

And the second point that I would like you to deal with is this: You have now, I think, seen the interviews of the defendant, although you haven't been told anything about the detail of the evidence. Is there anything in the interviews that touches on dishonesty? Is there anything in the interviews that goes against your initial conclusions or that confirms them?

So dishonesty and the interviews, please.

A. Dishonesty goes with the antisocial aspect of ³⁰⁰⁹ the personality disorder or the psychopathic aspect. In fact, an antisocial disorder is a classification of DSM IV, which is a euphemistic description of how one relates to other people. In this psychodynamic sense of the word which the interviews took place, the objective relationships, you must state that there are psychopathic traits. So dishonesty goes with that. The second question --

Q. Interviews.

A. You mean the interviews of the examiner about the facts?

Q. With the investigators, yes, about the facts.

A. Well, I wrote different explanations about -- which he gives in the interviews, in the psychiatric interviews. And that is at least not the same reality. So that must be dishonesty, I think.

Q. Did you find anything in the interviews that confirmed your views or that ran counter to your views?

A. Well, what I only looked -- I especially looked to what was related to our diagnostic examination, and that was the egocentric extent and his youth past in the former Yugoslavia. And what he does even more than in the diagnostic exam is that he feels no responsibility or guilt or whatsoever. Not about ³⁰¹⁰ his -- I don't want to go into his statements about what he did in the war, but pre-war all his failures and deeds he did over there, or his fraud also, he relates that to other persons or other reasons and doesn't take responsibility for his deeds.

Q. My last question on remorse. Is there any evidence anywhere that this man has seen, in image or in description, the suffering of the people that he's killed, or indeed their loved ones and bereaved?

A. I cannot comment on that. I think, as far as I can see, and I didn't examine the interviews on that point, but what he says in our diagnostic examination, and what I wrote about his examinations or the interviews, was that he cannot place himself in other -- in the shoes of somebody else. That's what I have to say about that.

MR. NICE: That concludes my questions. Thank you.

JUDGE JORDA: [Interpretation] Thank you, Mr. Nice. We're going to try to finish now, with the agreement of my colleagues, so that we can release the witness.

Let me turn to my colleagues immediately.

JUDGE RIAD: [Interpretation] Thank you, Mr. President. ³⁰¹¹ [In English] You just mentioned, in answer to the Defence counsel, that the qualitative psychiatric examination which was made was good, in answer to his question that apparently you did not have a full knowledge of the facts of the case. So still this examination would be qualitatively sufficient, if you do not know the facts of the case?

A. It depends on the questioning we had to answer. The quality of a psychiatric examination has to do, first of all, with the questions you have to answer. Given the context, given the limited context we had, first of all, the fact that we had to do it in several days only, that we couldn't work it out like we do normally, come back again to the one we have to see and confront a person with dishonesty or other statements, or from people we interviewed also, given the limited context, I think we made a good report, especially for answering the questions.

JUDGE RIAD: Good. Now, Dr. van den Bussche, when I asked him, and you were present, about the relationship between the acts and between the personality disorder, he said that, in fact, the acts committed would have been more or less motivated by his personality disorder, were related to his personality disorder. Would you go as far as to say that he could ³⁰¹² not help committing these acts, his personality disorder put him under such a compulsion that these acts were bound to happen?

A. It's a balance between circumstances and personality disorder. I think in a certain way they were bound to happen. I think the aspect which we did not talk about today, until now, maybe not enough, is his aspects of grandeur, his narcissistic aspects. He states in his examination, "Give a person a pistol and a Motorola and he thinks he is God." I think that that is a statement that he really felt grandeur, I think, and that aspect made it -- it's not only pressure and a cat against the wall, but also the grandeur, the narcissistic aspect. Another aspect of narcissistic problems is the rage which goes unread.

So it's bound to happen, in a certain way, yes, in those circumstances.

JUDGE RIAD: Speaking of the rage, I note that you mentioned his rage was close to the surface and his aggression was under the surface. What is the meaning of these terms, "close to the surface," "under the surface"?

A. What we do in a psychiatric examination is -- in our training, we call that transference and countertransference. You use your feelings which the ³⁰¹³ patient gives you as an instrument. We are trained for that. That was my answer also to Mr. Greaves. What you see -- what we saw and what we

discussed as a team is that under slight confrontation or deviating the interview to topics we would like to discuss or to shortcut Mr. Jelisic's monologue, he became irritated. We kept it very polite, but there we felt, both of us, the anger, so we didn't want to confront him further. That's what I meant with "anger under the surface." And the narcissistic rage, that's a whole other item.

JUDGE RIAD: I beg your pardon?

A. Narcissistic rage, that's a whole other item.

JUDGE RIAD: Which is also very quick to come.

A. No, in certain circumstances only, with extreme confrontation and in cat-against-the-wall situations, let's say, like that, if you're frustrated in your grandeur.

JUDGE RIAD: Not necessarily that you have to defend yourself; you are just proving your grandeur.

A. Yes.

JUDGE RIAD: Thank you very much.

JUDGE JORDA: [Interpretation] Thank you, ³⁰¹⁴ Judge Riad.

Judge Rodrigues.

JUDGE RODRIGUES: [Interpretation] Good afternoon, Doctor. I have many questions, but I'll only ask some of them.

You divided killers, murderers between homicides and other categories. I'm speaking in French and writing in English, so I'm mixing up the languages. What I would like to ask you is what is the sense of family that you're using here? Is it a restrictive sense or a broader sense? You know, we speak about a more nuclear family -- mother, father, children -- and an extended family. What sense are you using it in?

A. Close relationships.

JUDGE RODRIGUES: [Interpretation] Can one include, in the notion of the extended family, one can see a certain feeling of belonging? Can one speak of an extended family if one is speaking about an ethnic belonging to --

A. [In French] Any belonging.

JUDGE RODRIGUES: [Interpretation] So it was Jelisic's circumstances. The fact that he was a Serb and that he was part of that ethnic group doesn't play any role in that distinction? ³⁰¹⁵

A. [In French] No, it does not.

JUDGE RODRIGUES: [Interpretation] This is the question. You said that you were very surprised when you learned that Mr. Jelisic had lied about the question of torture by Croats. Why?

A. Excuse me. I wanted to respond in French. Because it's such a worked-out story, not only in our examination but also in the other things I read, and now that's all not true. So I was surprised by that because it's so worked-out, differentiated.

JUDGE RODRIGUES: [Interpretation] But if we take into account somebody, say an attorney, who asked them to tell that story, how would you interpret that?

A. Well, then he learned his lesson well.

JUDGE RODRIGUES: [Interpretation] This is the other aspect. You said, you said frequently in fact, the objective relations were somehow disturbed. I believe that you spoke about manipulation in that respect, that is, disturbances of his objective relations which was also the cause of the manipulation.

This is my question: Is it possible that Mr. Jelisic manipulated people so that subsequently they could come to be defence witnesses for him?

A. It might be -- it might be possible. I ³⁰¹⁶ answer affirmative to that because certain topics we couldn't discuss with him. We couldn't discuss about how he got money for his kiosk, which was his friends, and I think there is a whole area we didn't touch on.

JUDGE RODRIGUES: [Interpretation] Only those areas that he wanted to touch on; is that right?

A. Yes.

JUDGE RODRIGUES: [Interpretation] Doctor, I'm going to ask you a question, and then I'm going to tell you a story.

Imagine that Mr. Jelisic were to come into a cafe, find a woman there, a woman who works in the cafe, and then after 20 minutes of conversation, Mr. Jelisic asks that woman to allow him to take her son, who I think at the time was four or five years old, to go spend a week's vacation with Mr. Jelisic, and the woman, that woman, that mother, allows him to do that. That was the first time that Mr. Jelisic saw the woman, the first time that the woman saw Mr. Jelisic.

What comment do you have, from the point of view of manipulation, whose objective it was to have for himself defence witnesses?

A. I think it's impressive -- sorry. Slower?

[Trial Chamber confers] ³⁰¹⁷

JUDGE RODRIGUES: [Interpretation] Would you answer, please.

A. I think it's impressive that a woman who talks 20 minutes to a man gives her child away for a week's holiday with a total stranger. For me, it's unimaginable. Two options arise --

JUDGE RODRIGUES: [Interpretation] Excuse me for interrupting you. Imagine that that's true.

A. Imagine? If the fact is there, then it's also impressive that Mr. Jelisic, in an amount of 20 minutes, can be so trustful for that lady to give her child to him for a week. That's very impressive.

JUDGE RODRIGUES: [Interpretation] But from the perspective of what you knew about Mr. Jelisic's personality and that aspect of manipulation, would that be possible?

A. He comes very close in his relationships, yes, because he doesn't know the borders, he doesn't know the limits in the relationships.

JUDGE RODRIGUES: [Interpretation] Another question. You said that Mr. Jelisic uses other people to satisfy his own needs. In some way, can killing satisfy someone with Mr. Jelisic's needs?

A. I think I have to wait a bit here. We come to the issue of perversity, and maybe narcissistic rage ³⁰¹⁸ also. It is possible, yes, that the anger, the rage he feels towards others, because they did him harm in his opinion, can reflect itself in doing harm to others. And if he has lust with it, we couldn't examine that because we didn't go for that issue, but it might be possible because Mr. Jelisic externalises and is angry at all those people who did wrong to him.

JUDGE RODRIGUES: [Interpretation] You spoke frequently about the egocentric nature, the narcissistic nature of Mr. Jelisic. Did you find any idea whether there were any references or ideas about paranoia, specifically in respect of the Serbs? Because he always said that he had to defend himself from the Serbs, that the Serbs were his worst enemies. Along with his egocentrism and narcissism, were there also some references made to paranoia in respect of the Serbs?

A. What he said to us was -- I have to wait. What he said to us was that, in fact, he was a hero for the normal people and that he wasn't afraid of the people who were after him. I don't think that's true, the last issue. I think he said that out of his grandeur. If you're a great man, you're not afraid, but I cannot -- because we couldn't go into that issue because he didn't want to discuss it, I cannot comment ³⁰¹⁹ further on that.

JUDGE RODRIGUES: [Interpretation] I have another question I would like to ask you. You examined Mr. Jelisic in the presence of another person, so you had a degree of control over the manipulation. Did you also have some control over his body language, his non-verbal communication? That's my first question. If you say that you did, whether that body language was consistent with his verbal language.

A. Yes, we did. That's part of our intervention, to do that. We normally discussed with each other the case, and we put our examination together, both of us. Body language was related to the issues he presented. That's why we can state that anger was under the surface. I mean, anger is not only -- transference and countertransference issues are related to body language.

JUDGE RODRIGUES: [Interpretation] I have another question. In order for you to conclude something about manipulation, do you look more at the emotions and feelings or do you look more at the knowledge itself or objective knowledge?

A. I cannot say which one takes the lead. And it's matter of fact what we do, what we discuss now all the time is take issues out of traits of the ³⁰²⁰ personality disorder. But they interrelate to each other.

If you talk about paranoid traits, it has to do with an objective relationship, it has to do with grandeur also, and that's how you come to a diagnosis.

JUDGE RODRIGUES: [Interpretation] Let me ask the question a different way. Can there be manipulation even when one is telling the truth or part of the truth? And my last question is the following. I laughed a little bit with your colleague when he said that he -- that there is only one word to say snow, and I said that Eskimos had at least 20 words. This merely means that certain people have specialisations in certain areas, with a lot of words to see and to express reality.

A very simple question. You can answer it if you like. As a specialist, as a psychiatrist, particularly a forensic psychiatrist, can you see more in two hours than an ordinary person in two years, or are we exaggerating somewhat?

A. Two hours and two years, there is a big difference. But I think, yes. In a certain way, yes. I am always impressed about -- and that's why I called it a super specialisation to Mr. Greaves. And it's in fact a super, super specialisation, because I am a ³⁰²¹ forensic child and adolescent psychiatrist. And the expertise you have is related to making contacts, to avoid confrontation first, the facets of the interview, to go around difficult issues, et cetera, to see in body language, as he said before and in certain pronunciation of words or whatsoever what's up in people's minds. And I think, yes, expertise is a big -- enormous advantage. I am always impressed by people not seeing things.

JUDGE RODRIGUES: [Interpretation] My really last question. You said that you didn't carry out any tests and that you needed to conduct other interviews, for instance, with his parents or with people who knew him in order to form certain opinions, because I think you always answered with a degree of precaution. You said, "I can go this far, but in order to go further I would need more instruments, more diagnostic instruments."

What you said for sure, then, can be said with the amount of time that you had and with the instruments that you had available to you at that time; was that enough?

A. Yes, it was.

JUDGE RODRIGUES: [Interpretation] Thank you very much. ³⁰²²

JUDGE JORDA: [Interpretation] I am going to ask you to be a little more patient, because through my colleagues questions they have spared me from having to ask you more questions.

I am going to ask the interpreters for a little more patience. They have been here almost for an hour and three quarters. A very simple question. I am referring to your report which was

prepared a year ago. You were asked to study three questions. Was there was a mental illness? And you said, no, that he had profound personality disorders, that he was a borderline personality. Then, would his mental state allow him to understand the nature of the accusations brought against him. You said yes, that he could reason, and that to some extent emotionally he would be able to understand those accusations brought against him. And the third question: Was he fit to appear? I consider the third question is really now outside of the scope of this trial. The second question is borderline, and the first we have already taken note of.

So this is my question: Did you feel any kind of discomfort when you were called to testify here and to speak about a subject that you examined a year ago now? ³⁰²³

A. In a certain way, yes. But at the same time I tried to, like you stated before, in the context that we did our exams, to stay between the lines of what I can say. And so in a certain way discomfort, but I tried to manage the discomfort.

JUDGE JORDA: [Interpretation] Well, you are satisfied with what you've done. That's fine. You have your own emotions and that's very reassuring. But I am rather surprised, doctor. Can a psychiatrist, a specialist, can he just make an abstraction of the development over the course of a year of a subject, about whom we are not going to say anything in terms of responsibility; who pleaded guilty; who for now two months -- well, even longer who has been in detention; who is very troubled, you saw that through the last psychiatric examinations; can a psychiatrist like yourself make an abstraction of any evolution over the course of -- and you who saw him a year ago, can you say now that he is this or that? He is going to develop this way or that way? Because in the end the Judges have not heard him at all, and you didn't speak to him except for a year ago, and it was only the other doctor that spoke to him more recently. But that's the only question I am going to ask because the other questions that needed to be asked were very well put by ³⁰²⁴ the Defence and the Prosecution.

A. Between the limitations I already stated, yes. Like I said before, Dr. van den Bussche and I are working in the same office. Dr. van den Bussche discussed the matter with me not only to hear my opinions, which he already had on paper, or our opinions which he already had on paper, but to discuss his diagnostic assessment in a interview situation with us.

And at the other end it must be said that, of course, Mr. Jelisic is unique. Of course there is fluctuation. But I made general statements about borderline personality disorder and possibilities of change. And in that context I made comments.

JUDGE JORDA: [Interpretation] I had said, in fact, that that was my last question. You can go back to your work. The Tribunal expresses its gratitude to the interpreters. Very well. We are going to resume the hearing in 30 minutes.

--- Recess taken at 4.35 p.m.

--- On resuming at 5.08 p.m.

JUDGE JORDA: [Interpretation] We will now resume the hearing. Please be seated. Have the accused brought in.

[The accused entered court] ³⁰²⁵

JUDGE JORDA: [Interpretation] Have the interpreters rested? Fine.

Insofar as possible, we are going to try -- if we can't, we can't -- but we're going to try to finish this evening so that tomorrow -- let me say this to Mr. Nice, perhaps he hasn't had his headset on but I know he speaks French very well -- I just wanted to say that insofar as possible, we're going to try to finish, insofar as possible, let the interpreters be reassured that it's that way so then tomorrow could be devoted to the final arguments.

Mr. Nice.

MR. NICE: Maybe Mr. Greaves has something to say.

MR. GREAVES: I just want to deal with one matter whilst I think about it and while it's in relation to the evidence which has just been heard by the Tribunal.

Your Honour will recall that I asked Dr. Duits about restrictions placed on him in relation to Dr. Petrovic. I wish formally to place it on the record that such a restriction was placed on the Defence, and we are not only prohibited from calling Dr. Petrovic but prohibited from making any reference at all directly to any diagnosis or treatment or ³⁰²⁶ statement that she had made about the defendant.

JUDGE JORDA: [Interpretation] I'm glad that you said that.

MR. NICE: Your Honour, then with the Chamber's --

JUDGE JORDA: [Interpretation] Mr. Nice, would you like to respond?

MR. NICE: I have nothing to say on that point. That's a matter entirely, I think, between the Defence and the Registry. The Chamber will recall that in relation to Dr. Duits, I sought the Chamber's leave to approach him and to ask him questions, he having been originally relied on by the Chamber, and I don't think there's any complaint to the fact that I have called him or relied on the passages of his evidence. I think it's a different issue entirely.

JUDGE JORDA: [Interpretation] Mr. Greaves, it was appropriate for you to raise that question. I think that we'll take this into account as part of the substantive questions.

We'll move to the next witness, Mr. Nice.

MR. NICE: Indeed, the last witness is one for whom statements in B/C/S and I think French have now been prepared and served, and it's entirely appropriate, given his much longer acquaintance with ³⁰²⁷ this case than mine, that Mr. Tochilovsky should take the last witness, and so he's going to.

[The witness entered court]

MR. TOCHILOVSKY: Your Honours, the witness asked for the same kind of protection as other witnesses, the pseudonym and facial image distortion.

JUDGE JORDA: [Interpretation] Very well. Witness S, do you hear me? This is the

Presiding Judge speaking to you.

THE WITNESS: Yes.

JUDGE JORDA: [Interpretation] Very well. First, check to see that these are your names on the document that the usher is showing you.

Show it to him. Show it to him. Don't hide it that way.

Then you're going to take an oath. Please proceed.

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

JUDGE JORDA: [Interpretation] You may now be seated, Witness S. You have responded to the summons of the Prosecution to testify in the sentencing hearing in order to determine the penalty applicable to Goran Jelisic, the accused, who is to your left in this ³⁰²⁸ courtroom, who pleaded guilty to crimes against humanity, and only within that scope.

Let me remind Mr. Tochilovsky that the witness has agreed, insofar as he is going to be a character witness in respect of Goran Jelisic, as you yourself said in your submissions.

Having said this, I can tell you, Witness S, that you are being covered by very strict protective measures and that you can speak without any fear and in full serenity.

Mr. Tochilovsky, please proceed.

WITNESS: WITNESS S

[Witness answered through interpreter] Examined by Mr. Tochilovsky:

Q. Witness S, you had an opportunity to read a summary of your statement, and is the summary correct?

A. Yes.

Q. You spent some time in Luka camp in 1992; is that correct?

A. Yes.

Q. Do you remember the date when you were taken to the Luka camp?

A. Yes.

Q. What was the date?

A. The 15th of May, 1992. ³⁰²⁹

Q. Who took you to Luka?

A. I was taken to Luka by Goran Jelisic.

Q. Can you describe Goran Jelisic's behaviour, his demeanour on that evening, that day when he took you to Luka and when you were in Luka? Can you describe his behaviour?

A. Well, it was as if he had been drugged, to put it simply.

Q. Did he look like a person who was acting under order, who was reluctantly following any orders when you were in the camp?

A. As far as I know, he did not receive any orders; he issued orders himself.

Q. Just to have some examples of that, upon your arrival to the camp, did soldiers try to approach you immediately upon your arrival?

A. Yes.

Q. What was Goran Jelisic's reaction to that?

A. He said, "Go away. Don't touch him. Do you want me to kill you like the others in the hangar?"

Q. When you were interviewed by the investigator, you prepared a sketch of the Luka camp, of the place where you were kept; is that correct?

A. Yes.

MR. TOCHILOVSKY: May I ask the usher to put ³⁰³⁰ this sketch before the witness.

A. This is a description of the office where we were.

Q. And is it the place where you were kept when you were in Luka?

A. Please, could you put your question more specifically. I did not understand it very well.

Q. You said it was the office?

A. Yes.

Q. Is it the place where you were kept when you were at Luka?

A. Yes, temporarily.

Q. And were there any guards, soldiers, other camp personnel in that room as well?

A. Well, there were a few unknown persons, and there were about four or five persons in the room who were doing their own jobs.

Q. Did you hear any orders given by Jelisic to those others present in the room?

A. Yes.

Q. And what kind of orders?

A. Well, to bring in a man from the hangar.

Q. And did soldiers follow his orders?

A. Yes.

Q. With regard to his behaviour, how did he ³⁰³¹ treat those detainees who were brought on his order to the room?

A. His behaviour. Well, when he would bring them there into the office, this is the only way I can describe this, he would start interrogating them and then hitting them.

Q. And then?

A. And then take them out and probably kill them.

Q. When he took the second detainee out and then returned without him, did he tell you anything about how he treats those Muslim Croat detainees?

A. Yes. He said, "I do not rape. I do not mistreat. I only kill."

Q. He say how many people he killed?

A. Yes. He said, "This is my 83rd or 93rd from this morning."

Q. Did Goran Jelisic tell you what had happened to your friend Mevko?

A. Yes.

Q. In short, what did he tell you?

A. First, he asked me whether I knew him and what he was to me. And I answered that I was a very good friend of his, since he did not have many friends and his family did not care about him very much. He ³⁰³² said that he had killed the strongest man until then. He had fired two bursts of gunfire into him and in the morning he would go there, shoot him in the temple so that he'd finally be dead.

Q. Now, did Goran feel sorry about what happened to Mevko, that he killed Mevko? Did he express any remorse of that?

A. As far as I know, no, he did not show any remorse.

Q. When you were leaving the camp with Jelisic, did Jelisic give any other orders to soldiers upon his departure?

A. Yes.

Q. What kind of orders?

A. When we were leaving the Luka camp, he ordered that this man, who said that a Serb was guaranteeing for him, should be killed before we would come back.

Q. Did you have the impression that all these orders he gave when you were in Luka were followed, that others followed his orders?

A. No. He carried out the orders himself.

Q. And when he ordered to bring those people to take care of them, did those soldiers bring people, follow his orders? ³⁰³³

A. Could you please put this a bit more specifically? I don't know what you are referring to exactly.

JUDGE JORDA: [Interpretation] Witness S, I know it's not very easy, but when you answer, if you would please turn toward the Judges. Thank you.

THE WITNESS: Fine, fine. Yes. Yes.

JUDGE JORDA: [Interpretation] I know it isn't easy, but try to do that. Of course when the questions are asked, you listen to the person asking the questions. Thank you.

MR. TOCHILOVSKY:

Q. You mentioned that Goran issued orders to those present in the room, to the soldiers to bring detainees to him. Did those soldiers follow his order, obey his orders?

A. Yes.

Q. Your Honours, I have a few questions on other detainees, actually some of them were witnesses, protected witnesses. So maybe we can go to private session to mention those names.

JUDGE JORDA: [Interpretation] All right. Private session.

(Private session)

(1 lines redacted) ³⁰³⁴

(3 pages redacted) ³⁰³⁷

(11 lines redacted)

(Open session) Cross-examined by Mr. Greaves:

Q. Witness S, I'd like to ask you just a little bit, please, about how you come to be here in The Hague. When were you first approached with a view to giving evidence at The Hague? Can you tell us that, please?

A. About a month ago.

Q. I don't want to know where you are living, but the place in which you are living at the present time, have you been living there for some time; if so, for how long?

A. I've been living there for a year and a half, in that particular place; for the time being I'm ³⁰³⁸ there.

Q. Would there have been any difficulty of any kind in finding you, say, in March or April of this year in the area in which you live?

A. Could you ask me that in more precise terms? I didn't follow you.

Q. Is this right: You weren't making a secret of where you were living; you were living openly in the community in which you live, were you?

A. Yes.

Q. And that was the case in March and April of this year; is that right?

A. Yes.

Q. If somebody had wanted to come looking for you in that community, they would have had no difficulty in finding you; is that right?

A. Yes.

Q. Thank you. Can we now move, please, to the circumstances in which you were asked to make a statement to the Office of the Prosecutor.

A. Yes.

Q. Is this the case, that one or more investigators came to see you and conducted an interview with you?

A. Yes. ³⁰³⁹

Q. Before recording your statement, did any of those people tell you what it was they wanted to know?

A. If you would, please, be a little more specific.

Q. Of course. The people who came to see you and to take a statement from you, did they, before they took a statement from you, tell you about what incident it was that they wanted to speak with you?

A. Yes.

Q. Did they describe to you the information which they had about that incident?

A. No. I just gave them the information, because they asked for it, in connection with Goran Jelisic.

Q. Was it a question of them saying, "We want to know about an incident with Goran Jelisic on the 15th of May, 1992," or did they give you more information as to what it was they were seeking?

A. They just asked for that piece of information relating to the 15th of May, 1992, what happened there, and that was the kind of statement that I gave them.

Q. All right. I'd like just to put a bit of detail onto the account that you've given us this afternoon, Witness S. This is right, isn't it: that you say that you were working at a particular place ³⁰⁴⁰ during the course of the afternoon when Jelisic and another man came to see you; is that right?

A. Yes.

Q. The other man's name was Dzole. Is that the correct pronunciation?

A. I don't know whether it's correct, but I know that they mentioned that particular name during the conversation.

Q. Subsequently, you were taken from the place where you were working to the outside and put into a car; is that right?

A. Yes.

Q. In the car, when you drove off from that place, were four people; is that right? Yourself, Goran Jelisic, Dzole, and another person.

A. Yes.

Q. Four in all, including yourself.

A. Yes.

Q. The other person was a girl, a woman.

A. I wouldn't say woman; I'd say girl. I thought she was probably about 14 or 15 years old.

Q. When you got to the house of the (redacted), had anybody else got into the car between the place where you were working and that location?

A. No. ³⁰⁴¹

Q. When you were at the house, was the car parked close to the house and close to its entrance?

A. Yes. A car was parked close to the house, at the end of the road, by the asphalt.

Q. Perhaps if we can just get it right, was the car within sight of the entrance of the house in those circumstances?

A. From the entrance to the house?

Q. Yes.

A. Yes, you could see, but you would have to come out of the house because there were some steps.

Q. Of course. How far from the entrance to the house and the steps was the car parked? Are we talking about five yards, ten yards, twenty yards? What?

A. About 10 to 13 metres.

Q. From your position where you were in the car, were you able to see the entrance of the house clearly?

A. Not very clearly. I couldn't see properly.

Q. At the entrance to the house, did anybody get out of the car?

A. Goran Jelisic got out and went up to the front door of the house, and then he called the (redacted) and he went out after that.

Q. Again, no other man had joined you at this time, had they? ³⁰⁴²

A. Could you be more specific? I don't follow what you mean.

Q. Yes. Whilst you were there at the house, no other person joined you. No other man, no other woman joined you, did they?

A. I sat in the car, and next to the driver sat Monika. Goran Jelisic went out of the car and went over there, and later on, Dzole went out and took over (redacted). That was all.

Q. (redacted)

(2 lines redacted)

A. Five people? Just a moment, please. Before that, we went towards the school, and when Goran Jelisic said, "Who's Dzodza?" I didn't understand him very well. When we got to the school, there were two people standing there. He also asked them who Dzodza was, and one of them said that he was (redacted) (redacted), and then he told them to drive him to the house. So perhaps you're thinking about those two individuals. Perhaps they were still there, but I did not notice them. That's the point.

Q. One of the people who were with you went eventually to the car belonging to (redacted); is that right? ³⁰⁴³

A. Yes.

Q. Did any of the others who were with you, apart from Goran and Dzole, get out of the car at all?

A. Only myself and Monika remained in the car after that.

Q. Did Dzole go in towards the house after Goran and (redacted)?

A. I wouldn't say so because I didn't see it. So I can't really say; I didn't see it.

Q. In order to get back to Brcko, two cars were taken there, is that right, one of which was the car belonging to (redacted)?

A. Yes.

Q. And just describe to us the seating arrangements in the two different cars. Who went in which car, Witness S?

A. As far as I know, Dzole was in (redacted) car, that is to say (redacted), and in the other car there was Goran Jelisic, Monika and myself. And later on we were joined by another soldier whom I didn't know.

Q. You were joined in your car or, sorry, not your car, but the car in which you were seating by another soldier whose name was never given to you; is that it? ³⁰⁴⁴

A. Yes.

Q. And the only person who was in the car with (redacted) was this man whose name was Dzole? No question of there being anybody called Simo with him?

A. Well, let me tell you. I was quite lost at the time, to tell you frankly, so possibly there was, but not really. There are two versions. I can't say that it's the truth or whether it's the truth, because I was very frightened at the time.

Q. You travelled to Brcko. The other car only contained (redacted) and one other person; isn't that right?

A. Well, I don't know if that's right, because they went off before us.

Q. But Monika remained with you in your car?

A. Yes.

Q. (redacted)

(2 lines redacted)

A. Well, I suppose that was how it was.

Q. When you got to Luka, you were taken to the office and (redacted) was already there. That's right according to your statement; isn't it?

A. Yes.

Q. So if (redacted) said that you were already ³⁰⁴⁵ there at the time, not the other way around, that wouldn't be right, would it?

A. It's very probable.

Q. How many people in all were in the office when you arrived there?

A. Well, I can't remember those details. I know that (redacted) was there and probably another man next to him. All I know is that I tried to sit down there and at that time they took my handcuffs off. He took the handcuffs off my right hand so that I was able to sit down. But how many people were there, I can't really say because I don't really -- didn't really notice.

Q. I think there was some difficulty in getting the handcuffs off, but you managed to get them off after a short while; isn't that right?

A. Yes.

Q. And was that simply a problem of somebody not being able to get the key in properly and to get the handcuff off?

A. I don't know, but they couldn't find the right key to the handcuffs. So that they tried to pry them open with a pin.

Q. And eventually they managed to get them off all right, did they, without any further fuss? ³⁰⁴⁶

A. Yes. From one hand. And after some time they got them off the other.

Q. Then, according to you, and I'll come back to this in a little while, Witness S, instructions were given to go and fetch one person, who was brought back, a detainee who was brought into the office; is that right?

A. Yes.

Q. And between your arrival in the office and instructions being given to fetch that detainee, was any interrogation conducted of (redacted)?

A. As far as I know, no. I had my head bowed down all the time and I was extremely frightened.

Q. And your account is this: That three detainees were brought into the office and taken out again, one after another. It wasn't a question of three detainees being brought in at once, was it, according to you?

A. I don't remember that particular detail. All I know is that they would take one by one in. Whether they were all three in there together, I really can't say. I don't remember.

Q. So if Witness R said after a short while he brought in three young men between 20 and 25, that wouldn't be right either, would it? ³⁰⁴⁷

A. Could you repeat that question, please?

Q. Yes. I'll read to you a short piece of evidence. It's said:

Q What did he do with that man? What did he ask of that man?

A He said bring those people in. Q What happened to the list with the names on it?"

And he then described the particular individual taking a folder.

And then this: "After a short while he brought in three young men between 20 and 25 years of age." A clear implication of that being that three people were brought in at once.

That can't be right, if you are telling the truth, Witness S, can it?

A. That's right.

JUDGE RIAD: I'm sorry, what is right? You said, "That is right." I didn't understand this answer. That's right that you are not telling the truth?

A. No. As far as I remember. As far as I remember, and as far as I know, they were brought in one by one, one by one prisoner was brought in. I ³⁰⁴⁸ don't remember that they brought in three at the same time. Perhaps I am wrong, but that's what I think.

JUDGE RIAD: Thank you very much.

MR. GREAVES:

Q. Witness S, when you made your statement to the Office of the Prosecutor, it was read over to you in the Bosnian language, wasn't it, at the end of making it? Do you remember that? And we are talking about just four or five days ago.

A. Yes.

Q. And you told them and signed that it was -- the statement was true to the best of your knowledge and recollection; didn't you?

A. Could you please repeat this. What statement are you referring to? In relation to what?

Q. How many other statements have you made in relation to this incident, Witness S? A written statement reduced into writing and read over to you, how many other statements have you made?

A. Written statements? I don't understand this.

Q. I wonder whether he might see the original of the work which has been provided to the Defence, please. Just so we know exactly what we are talking about. ³⁰⁴⁹ Would you be so kind, Witness S, as to look at that document, please. Don't read it yet. You see at the bottom of the first page of that document a signature. Is that your signature?

A. Yes.

Q. Is it your signature?

A. Yes.

Q. Look at the bottom of each of the following pages. Do those bear your initials?

A. Yes.

Q. And don't look at the last page, but look at the last but one page, please, Witness S. Do you see there -- I think you've got the English version, I hope. A short piece of text at the top and then a box with some words in it, and again your signature on there. Do you see that?

A. Yes.

Q. Do you remember signing those pages and initialling those pages on the 17th of November 1999 -- sorry, seven days ago. I do apologise. I mislead you as to time.

A. Yes.

Q. Is that the statement which you made and which was reduced into writing, the statement you made to the Office of the Prosecutor, Witness S? ³⁰⁵⁰

A. Yes.

Q. And do you accept that it was read over to you in the Bosnian language, at the end of which you signed it?

A. Yes.

Q. Do you need to have a Bosnian version put in front of you, because I am quite happy that you should have it so you can follow what I am saying. Would that help you?

A. All right.

Q. Then please may he have the Bosnian version. Again, if -- I would just like you to look at the page we were just looking at, which I think will be the last but one. And it's the end of that page where it says, I think in your language, "witness acknowledgment." Do you see that?

A. Yes.

Q. And that witness acknowledgment reads as follows, doesn't it, "This statement has been read over to me in the Bosnian language and is true to the best of my knowledge and recollection." Do you see that?

A. Yes.

Q. Would you accept from me that in the statement that you made, as indeed you told us this afternoon, that the detainees were brought in one by ³⁰⁵¹ one, and not three at a time? Do you accept that?

A. I accept, to the best of my recollection, but I do not preclude the possibility of this not being correct because I was very upset at the time. I was not exactly composed. I had seen and heard quite a few things.

Q. You see, the point is this, that the two accounts which you've been given about this incident are in material respects completely different. And the differences which I pointed out to you mean that they cannot both be true. That's right, isn't it, Witness S?

JUDGE JORDA: [Interpretation] Don't give the witness an answer. The problem with differences under such dreadful circumstances has already been pointed out before to the Court. You are not dealing with scientific experts, what you are discussing. This is May 1992 in a hangar, which is simply hellish. So you can simply point out things, but don't try to give the witness an answer. If you agree, perhaps you might try to move a little bit more quickly.

MR. GREAVES:

Q. The account of the alleged Russian roulette that you give. Is this right? You said to the Office of the Prosecutor that the gun was pointed at the head ³⁰⁵² or temple of (redacted)?

A. Well, that's what I assume. The head, for instance, because he was sitting next to me, and the pistol was right next to me, like this.

Q. So you were right close to it at that point; is that right?

A. Yes.

Q. So no question of it being pointed at the chest of (redacted) and the trigger pulled.

A. Well, it is very possible, but I imagine somewhere in the head. That's what I assumed, judging by the level at which the pistol was held.

Q. When you were removed from Luka and taken back to where you had come from, how many checkpoints in all did you pass through?

A. I don't know exactly. I'll give you an approximate number. Perhaps five checkpoints where we did not stop; we stopped only at the first and second one on our way back.

Q. So on the way home, only two checkpoints did you stop at.

A. No. I said perhaps about five, but we were only stopped at the first and second.

Q. That was the question that I asked you. As far as you could see, the incidents ³⁰⁵³ involving these three detainees which you claim to have witnessed, you cannot say, can you, if, prior to your arrival, any orders were given in relation to those detainees?

A. I could not have seen that or heard that because I was not there, nor do I know of it.

Q. So that it's quite clear, and I'll put it quite shortly to you, Witness S, there were no killings that afternoon; there was, I suggest, no game of Russian roulette and no ill-treatment of any person in your presence.

JUDGE JORDA: [Interpretation] That is your opinion, Mr. Greaves, and you can argue that tomorrow. Ask questions, please.

MR. GREAVES: I'm suggesting to him that if he's saying there were such incidents, that it's not true. He's entitled to have an opportunity to deal with that proposition, and I put it to him so that he may deal with the proposition that it's not true. That is a proper issue which goes to the question of credit.

JUDGE JORDA: [Interpretation] Challenging the question itself, the credibility of your question. You have a right to ask questions, but I'm simply contesting the way you ask questions. Not by saying "I ³⁰⁵⁴ suggest that" but by saying that you were making assertions.

Move to your next question, please.

MR. GREAVES: I've made it plain what our position is. I have no further questions.

JUDGE JORDA: [Interpretation] Thank you. Mr. Tochilovsky.

Re-examined by Mr. Tochilovsky:

Q. Just one question in regard to those answers you gave to the Defence about those three detainees who were brought to the room. Do you know what happened to those detainees after they were beaten, as you described, by Goran and interrogated?

A. This is the way I'm going to put it: The first one was taken outside. I heard two blunt shots. I could not see that. I did not see that because I could not see that. You could not really see this with your own eyes through that hall.

The second one, he took out, and I heard three blunt shots, and after the second one, his trousers had blood stains on them.

The third one was returned to the hangar and the fourth one was taken out to wait.

Q. That one is the one who Goran, upon his departure, ordered to kill as well. ³⁰⁵⁵

A. No. That one was already at the hangar. The fourth one who was waiting there was a distant relative of mine. Until the present day, I don't know what's happened to him. At that point, while I was there, he was still alive.

Q. When Goran took those people out and you heard those shots, did he look like a person who was acting under any order, or was feeling any remorse for or sorry for what he was doing?

A. First of all, as far as I could tell, he was totally in charge over there. As for remorse, I did not see anything like that in his face. All of this was in cold blood.

Q. Thank you.

MR. TOCHILOVSKY: I have no further questions.

JUDGE JORDA: [Interpretation] Thank you, Mr. Tochilovsky.

Judge Riad? Judge Rodrigues? I have a very short question to ask you. When Goran took the pistol in that dreadful Russian roulette game, was the gun loaded? Were there a certain amount of bullets? Was there one bullet or were there several bullets? If you remember. Perhaps you don't remember. ³⁰⁵⁶

A. It was loaded because I know that he was taking bullets out, and how many he returned, that, I don't know. Basically, I didn't even want to see it because the very words, "Russian roulette," made me realise that my life was threatened.

JUDGE JORDA: [Interpretation] I understand. I'm not really interested in knowing how many there were. I just simply wanted to know whether the gun was really loaded with some bullets, either one or several.

A. Several.

JUDGE JORDA: [Interpretation] Therefore, I wouldn't be wrong when I say that Goran Jelisic took a real risk when he put the gun to his temple.

A. Yes.

JUDGE JORDA: [Interpretation] Very well. Thank you very much. That's all. It was a bit difficult for you, but thank you for having come. I hope --

THE WITNESS: Yes.

JUDGE JORDA: [Interpretation] -- you're going to go home at peace and try and forget all of that, if it's possible. You will be taken care of, and once again, my colleagues and I would like to thank you. I know it's difficult. You have the right to ³⁰⁵⁷ have a good beer when you get out of here, if you like beer, a Dutch beer.

THE WITNESS: Thank you. May I just add one more thing.

JUDGE JORDA: [Interpretation] Yes, please.

THE WITNESS: I came here and I was welcomed very nicely, but there is just one regret I have: I'm so sorry that this trial cannot last longer because there are so many things to be said. That's all I had to say.

JUDGE JORDA: [Interpretation] This is the first time that the International Tribunal hears somebody saying that the trials should be even longer than they are. Thank you very much.

We are going to adjourn until tomorrow morning at 10.00, I believe it is; is that correct?

THE REGISTRAR: [Interpretation] I hope so.

JUDGE JORDA: [Interpretation] What do you mean you hope so?

THE REGISTRAR: [Interpretation] Well, because there is a further initial appearance.

JUDGE JORDA: [Interpretation] Oh, yes, yes. Judge Rodrigues spoke to me about that.

Mr. Greaves, did you want to take the floor?

MR. GREAVES: At whatever moment is ³⁰⁵⁸ convenient to Your Honour.

JUDGE JORDA: [Interpretation] I simply wanted to ask a question.

Mr. Nice or Mr. Tochilovsky, about how long will your final arguments take? About how long? I'm trying to organise the Trial Chamber's work.

MR. NICE: I should hope I could be done in two hours. I've reduced the arguments to paper, which will be ready tomorrow, and so I will be able to pass over various paragraphs, and I have a schedule of evidence that, again, I can pass over quickly. I hope two hours, not more.

JUDGE JORDA: [Interpretation] Thank you. And you, Mr. Greaves, about how long?

MR. GREAVES: I have no idea at the moment because I shall be working all night completing it, and I don't know at the moment.

JUDGE JORDA: [Interpretation] I hope that we'll be able to finish by the end of tomorrow. That's what I would hope for. Since you do need to go to sleep, I'd ask that you not work all night.

MR. GREAVES: Your Honour, there are two matters that I want to raise, please.

Your Honour directed that a report should be obtained from the commandant of the detention unit. I ³⁰⁵⁹ have not yet had sight of such a report and I would inquire whether such a report has been received.

JUDGE JORDA: [Interpretation] Mr. Registrar, did you get that report?

THE REGISTRAR: [Interpretation] Well, I don't have it. I could see after the hearing where things stand, but I think that ordinarily the report should be ready. I was thinking that it would be ready by now.

JUDGE JORDA: [Interpretation] We should have it.

MR. GREAVES: I didn't know of the deadline and I had become anxious about it.

JUDGE JORDA: [Interpretation] Well, you're right. You're absolutely right, Mr. Greaves. In any case, we have to be finished by tomorrow evening at the latest. We would ask the registrar to be sure that Mr. Greaves has the report, and the Judges also. The Judges can think about it afterwards, but Mr. Greaves has to present his final arguments tomorrow. Second point, Mr. Greaves.

MR. GREAVES: I have presented a number of documents to my learned friend, and he has been cogitating carefully about them, but we're getting to the stage where he really does need to make up his mind as to whether he's going to allow me to present them to ³⁰⁶⁰ Your Honours without any further argument. I think they're relatively non-controversial as documents go.

MR. NICE: I'm happy to allow them to go in, providing that there is another document that my learned friend, which I haven't yet shown him, I think, is prepared to go in. It's to do with medical records and service records and matters of that sort. If I can just show him this document tonight, I dare say we can agree that the whole package can go in tomorrow morning, and we'll have this document copied in enough numbers for the Chamber.

MR. GREAVES: I thank my learned friend for his remarks.

JUDGE JORDA: [Interpretation] Very well. I want to thank the interpreters.

We will adjourn and we should begin at 10.00 tomorrow. Court stands adjourned.

--- Whereupon the hearing adjourned at 6.13 p.m., to be reconvened on Thursday, the 25th day of November, 1999, at

10 a.m.