1 Thursday, 25 January 2007

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.07 a.m.

6 JUDGE ROBINSON: Mr. Docherty.

7 MR. DOCHERTY: Your Honour.

8 JUDGE ROBINSON: Yesterday, I did not allow you to ask the

9 question whether a particular response was proportionate, and the reason

10 for that is that that is ultimately a question for the Chamber to decide,

11 being very relevant to the question of self-defence. But there's a

12 difference between the witness giving his view on that question and the

13 witness providing information to the Chamber which will assist it in

14 arriving at its decision. I'm going to allow you to return to that

15 question and to ask the witness to comment on the scale of the attack, the

16 scale of the response, the type of weapons used by both sides, and

17 ultimately even to offer his view as to the proportionality. That is

18 consistent with what I said earlier about the witness providing

19 information that gives us a factual basis on which to make an assessment.

20 So I'm going to allow you to do that, and then of course I will

21 allow the Defence, if it so wishes, to cross-examine on that issue arising

22 from the questions that you ask.

23 Now, let us continue with the cross-examination and proceed as

24 quickly as possible. Mr. Tapuskovic.

25 MR. TAPUSKOVIC: [Interpretation] Good morning, Your Honours. I

1 will really do my very best to focus. I've been paring back my question

2 list in order to focus on only what is absolutely essential. I'll try to

3 wrap up my cross-examination as soon as possible.

4 WITNESS: CORNELIS HENDRIK NICOLAI [Resumed]

5 [Witness answered through interpreter]

6 Cross-examination by Mr. Tapuskovic: [Continued]

7 Q. [Interpretation] Witness, Sir Nicolai, you do know that we spoke

8 about several issues yesterday. I broached the subject yesterday which I

9 did not finish. In a way, this has to do with what we have just heard

10 from the President of the Chamber. I would like to quote to you a portion

11 of document D00-0319. This is the statement you provided 10 years after

12 your return from Sarajevo. The event took place four days after your

13 arrival. We find this event described in paragraph 7 of the document.

14 MR. TAPUSKOVIC: [Interpretation] If we could please bring that up

15 for the benefit of the witness.

16 Q. Sir, as soon as you have it, I would like to quote the paragraph

17 for your benefit. Do you see that? Paragraph 7.

18 A. Yes.

19 Q. You say: "When I refer to a quiet period in February and March

20 1995, I must point out that everything is relative. I recall that on the

21 27th of February there were over 900 firing incidents in Sarajevo."

22 And then you go on to emphasise: "The figure includes incoming

23 and outgoing shells as well as small-arms fire."

24 I don't want to ask you about who provoked these firing incidents;

25 we talked about that yesterday, and there's evidence to that effect. But

1 does that not mean that it was in fact quite a proportionate affair, 900

2 shells flying in from one of the sides and 900 shells, or thereabouts,

3 flying in from the other side? That's at least how I read the passage.

4 Please enlighten me if my reading is not correct.

5 A. I would like, indeed, to correct this a little bit. The

6 essentials here are not shells but rounds from small-arms fire. I will

7 not exclude that there were rounds of shells as well, but most of the

8 firing was of small-calibre arms fire.

9 Q. I understand your explanation, sir, but we're talking about

10 mortars. Was that in proportion to, as it were -- of course, small-arms

11 fire is important as well and there will be a lot of references to that

12 throughout this trial. But when we speak about shells, there was some

13 sort of reasonable proportion there, too, the same amount of shells on

14 both sides, roughly speaking. It's difficult to count them in and out,

15 isn't it?

16 A. That is correct. It is very difficult to make this distinction,

17 particularly when small arms are fired.

18 Q. Thank you.

19 MR. TAPUSKOVIC: [Interpretation] Your Honours, it is only rarely

20 that I decide to show video clips that sometimes can elicit certain

21 unpleasant emotions. However, I now find myself compelled to show a video

22 clip. Prior to that I'll be asking the witness a question. It's a very

23 short clip. I might be showing this clip again in its full length, but

24 all we need at this point in time is 30 or 40 seconds of that clip,

25 particular piece of footage. I received this document --

1 JUDGE ROBINSON: Let us proceed, Mr. Tapuskovic. Show it.

2 MR. TAPUSKOVIC: [Interpretation] So I got it from the Ministry of

3 the Interior of the Republika Srpska. May that video clip be shown now,

4 please.

5 First I would like to ask the witness to preface the clip. Back

6 in March does he remember something happening that caused a lot of

7 commotion?

8 Q. Two young girls were killed at Grbavica. Do you remember that,

9 sir?

10 A. I vaguely remember the death of two girls. I have to add to this

11 that throughout my entire period there had been numerous cases of civilian

12 casualties, and this, to a certain degree, explains why such a terrible

13 event is not that clear in my memory.

14 Q. At any rate, March was a month of cease-fires, wasn't it?

15 A. That is correct.

16 MR. TAPUSKOVIC: [Interpretation] The OTP will help me with the

17 technology. They agreed to show the clip on my behalf. I think it's

18 about to be shown.

19 JUDGE ROBINSON: Mr. Docherty.

20 MR. DOCHERTY: Your Honour, before we play this clip, I wish to

21 register a couple of objections for the record.

22 First of all, I deem the evidence that we are about to see to be,

23 strictly speaking, irrelevant. It is not a defence to any crimes that the

24 defendant, the accused, may have committed, that others committed crimes

25 as well.

1 In addition to that, Your Honour, I would ask Mr. Tapuskovic to

2 let us know, was this disclosed to the OTP before this morning. I do not

3 rule out that it was, but I have no memory of seeing it,. But it was just

4 shown this morning to me and I did not have an opportunity to check any

5 records or chronologies.

6 JUDGE ROBINSON: Mr. Tapuskovic, on the two points, first, the

7 more important one, relevance; and the second, disclosure. Let me hear

8 from you on those two points. And bear in mind, too, the witness's

9 response to you when you were seeking to lay the foundation for showing

10 this clip. He might not be able to help you much.

11 MR. TAPUSKOVIC: [Interpretation] I understand why you wish to hear

12 me on this. I would not have shown the video clip had the witness not

13 answered the question the way he did. He says he has a foggy recollection

14 of some things. Once I've shown him the video clip, he might be able to

15 tell us better whether he remembers this or not. The relevant thing about

16 it is this happened during a period of cease-fire, and following this

17 incident, tensions mounted again between the clashing sides, the clashing

18 parties. After that, a lot of things actually occurred that are relevant

19 for our purposes regarding the relations between the warring sides.

20 As far as the document's authenticity is concerned, I have a

21 document that I obtained from the Ministry of the Interior of the

22 Republika Srpska. That's where I obtained the document. Of course, it's

23 necessary to see whether that's authentic, should the OTP be challenging

24 the authenticity of the document. And after that, then, it's down to the

25 Chamber, of course, to evaluate.

1 JUDGE ROBINSON: What you must establish is how it impacts on any

2 question of the liability of your client, the accused.

3 MR. TAPUSKOVIC: [Interpretation] Your Honours, I have pointed out

4 on a number of occasions, and now I would have to launch into a lengthy

5 explanation in order to explain the point away, but precious little was

6 known about what went on on the Republika Srpska side and what caused some

7 of their reactions. The Chamber must focus on evidence about that, and I

8 must ask OTP witnesses about these circumstances, too. Unless the Chamber

9 does just that, I think the Chamber will not quite be able to take in the

10 whole picture, the overall context of all these events.

11 It is true that it is not Mr. Milosevic who stands indicted of

12 this particular incident, but this is useful background information which

13 we might use to explain a lot of things that actually went on inside the

14 conflict. We must focus on both sides of the conflict, what went on on

15 the one side and the other, and we must use every witness that can

16 possibly shed light on that.

17 JUDGE ROBINSON: Is there any allegation in the indictment which

18 is proximate to this event? Do any of the incidents in the indictment

19 come close in time to the killing of these two girls?

20 MR. TAPUSKOVIC: [Interpretation] Your Honours, during our Defence

21 case, we shall be introducing a whole lot of evidence. I can't disclose

22 what my defence case will be right now, but once we are conducting our

23 defence case, we shall show the relevance; we shall show what exactly

24 occurred on those days.

25 On the other hand, that precisely is the issue here. There is

1 this attempt to show this to the entire world. The whole video clip

2 speaks about that. There was a great deal of difficulty entailed - I'm

3 not going into that right now - but the world has never seen any of the

4 events shown in this video clip. However, I'm going to be dealing with

5 that during our defence case and offering a whole lot of evidence.

6 JUDGE ROBINSON: Are you saying that one of your arguments for

7 showing this video clip is to show it to the world?

8 MR. TAPUSKOVIC: [Interpretation] No. That is the last thing.

9 Maybe -- absolutely not. Absolutely not. Above all, what I'm trying to

10 do -- I'm telling you, the world has never seen it. It has never leaked

11 through, in manner of speaking. If you wish, we can do this in closed

12 session. I'm not adamant about this, Your Honours. Not at all. You may

13 as well, if you like -- I'm not trying to cause any ill feeling there.

14 You can show it in closed session, if you like.

15 JUDGE ROBINSON: On the second point of disclosure, and then we'll

16 consider it.

17 MR. TAPUSKOVIC: [Interpretation] It's been four days I've been

18 trying to achieve something with this technology to see if the clip can be

19 shown to the Chamber, yet we have so far failed. It wasn't until a minute

20 ago that the OTP offered to give us a hand, and I'm sure they can show the

21 clip without us wasting time. We've spent the last five days with the

22 technicians trying to have them do that for us, but we have failed.

23 JUDGE ROBINSON: All right. The Chamber will consider it.

24 [Trial Chamber confers]

25 JUDGE ROBINSON: The Chamber will allow the clip to be shown as

1 being relevant to the overall context, but ultimately the weight to be

2 attached to it will depend, of course, on the rest of the evidence. So

3 bear that in mind, Mr. Tapuskovic.

4 Let it be shown.

5 [Videotape played]

6 JUDGE HARHOFF: Excuse me, there is no showing on our side.

7 [Videotape played]

8 THE INTERPRETER: Microphone, please.

9 MR. TAPUSKOVIC: [Interpretation]

10 Q. Mr. Nicolai, having seen this video clip, could you perhaps

11 remember this particular incident? What sort of tensions did this trigger

12 in the overall context of events between the warring parties? Was

13 anything going on in those days, or nothing at all, no reaction? First of

14 all, let me ask you, do you remember?

15 A. To my regret, I have to admit that this footage has not triggered

16 any additional memories in my mind. I still vaguely recall that there has

17 been an incident of two girls having been killed. However, this memory is

18 so vague that I cannot say anything more in addition to this.

19 JUDGE ROBINSON: Let's move on to another topic.

20 MR. TAPUSKOVIC: [Interpretation] Of course, Mr. President. I

21 wasn't going to ask any further questions.

22 I would like to move on to the other document since I must.

23 D00-0287. This is the statement that Mr. Nicolai provided back in 1996.

24 In the English -- this is page 6, the last paragraph of page 6. The B/C/S

25 reference is 6 as well.

1 Q. Do you see that now, sir? This is about the 15th of May; right?

2 I would like to read this out for you.

3 "From about the 15th of May the situation escalated with more

4 firing incidents. For several days in a row in Sarajevo, there been

5 shelling all day long from both sides, and this only stopped in the

6 evenings. Most of the time the shelling had been on military positions.

7 They shelled the BH army barracks by the Zetra stadium, the Tito barracks,

8 the PTT building, and the confrontation line around Spicaste Stijena,

9 Debelo Brdo, and Skenderija."

10 Is that correct, sir?

11 A. Yes, that's correct.

12 Q. Thank you.

13 MR. TAPUSKOVIC: [Interpretation] Your Honours, I would now like to

14 move on to what happened on the 28th of August, the so-called Markale 2

15 incident.

16 Q. Witness, you remember the incidents of the 28th of August and the

17 shell that landed, where it landed. Do you remember that?

18 A. It was not one grenade. There were multiple grenades, and they

19 landed near the Markale market.

20 Q. Yes. Yes. I was asking about a shell that caused a number of

21 casualties, fatalities. I'll ask you about all five of those, all five of

22 the shells, of course, but I was just reminding you in a general way.

23 As we go along, or "en passant," as they say in French,

24 Mr. Dragomir Milosevic was wounded in the June and July offensive. He was

25 absent throughout August because he was undergoing surgery in Belgrade and

1 then treatment, and he simply wasn't there until the beginning of the

2 shelling. Is this something you're familiar with?

3 A. No, I was not familiar with that.

4 Q. Thank you. The Prosecutor didn't ask anything about this event.

5 Therefore, I have to dwell on it for a while, and I must admit I'm going

6 to go into details.

7 When I was reading your last statement, paragraph 25 from the

8 document DD00-0319 -- paragraph 25, have you found it, sir? Do you have

9 it in front of you, paragraph 25?

10 A. Yes, I have the text in front of me.

11 Q. I have to read it out to you, the whole paragraph.

12 "I believe that General Smith made the call to Pale and spoke with

13 Mladic, but the call was made from my office because I had a direct line,

14 and I was present to hear our end of the conversation."

15 And then you go on to say:

16 "When Mladic called back the next day, he did not specify what

17 steps he had taken to investigate. He only stated that it had not been

18 his forces who had done the shelling. I believe it was me, through my

19 interpreter, who took that call from Mladic."

20 So on the 29th you had this conversation. That's the day after.

21 Is that correct?

22 A. Yes, that's correct.

23 Q. Do you remember that in this conversation Mladic had pleaded for

24 maximum effort to be made for this incident not to disrupt peace efforts

25 that were being made in various quarters in the recent times, and that he

1 was expecting the Muslims to allow for the possibility for a mixed

2 commission, headed by General Smith, to review the whole incident and

3 discover the truth about it? Do you remember him saying that?

4 A. I don't remember that.

5 Q. And do you remember that he said something which was

6 characteristic, that he wanted General Smith to be asked to bear in mind

7 that for the same incident in Pale, a 20-millimetre shell was blamed as

8 the cause of the incident; and then he ended that people were -- had

9 people been in one barrel, in one place, it could not have caused such

10 huge damage. Do you remember him saying that?

11 A. No. I don't remember any details from this telephone

12 conversation.

13 MR. TAPUSKOVIC: [Interpretation] Your Honours, I must tell you

14 that I had serious problems regarding the document that's in my hands and

15 in the hands of the OTP but of which we don't have a translation, and

16 that's a transcript of the conversation which was recorded at 18:27

17 between General Ratko Mladic and an unidentified person from the office of

18 the General Smith through Mladic's interpreter. This conversation took

19 place at 1827 hours on the 28th of August, on the very day when the

20 incident took place.

21 I can present this, the whole document, but I am worried why there

22 is no English translation for the OTP of this document. And I intend to

23 tender this document into evidence, D00-0286. It has its OTP number,

24 03402152.

25 In this regard, if possible, and with your leave, I would pose

1 only two questions to General Nicolai.

2 JUDGE HARHOFF: Counsel, before you put those questions, could you

3 just verify that this is another conversation other than the one you

4 referred to just a while ago? I thought you said that the conversation in

5 which you believed that the witness had taken part took place on the 29th

6 of August, and the conversation that you're now going to ask about is a

7 conversation which took place the day before, which is then a different

8 conversation. Is that correct?

9 MR. TAPUSKOVIC: [Interpretation] Precisely. But that's the only,

10 and only one, conversation that took place between the witness and the

11 general. But in his statement, he claims that it took place on the 29th;

12 however, this conversation took place on the 28th of August, at 1827

13 hours, unless the General may confirm that someone else talked from

14 General Smith's office. And if that is the case, can he please tell us

15 who this person was from General Smith's office who could have had this

16 conversation.

17 That's the whole point, Your Honours, because this document is

18 self-explanatory. It's an official document, a transcript of the recorded

19 conversation. It exists, and it was used in another case in which I

20 didn't have time to go into it because that was not my job and I didn't

21 investigate this.

22 JUDGE ROBINSON: Just a minute, please, Mr. Tapuskovic.

23 [Trial Chamber confers]

24 JUDGE ROBINSON: Mr. Tapuskovic, if you have a proposition that

25 you wish to put to this witness that derives from that document, you may

1 put it and we'll hear his response.

2 MR. TAPUSKOVIC: [Interpretation] My concern is that there is no

3 translation of it into English in order to make it more clear. In front

4 of me I only have the Serbian version. And this is such a hugely

5 important document that I don't know how to deal with it.

6 JUDGE ROBINSON: Do you have a copy that could be placed on the

7 ELMO, and then it could be translated.

8 MR. TAPUSKOVIC: [Interpretation] Yes. It's here in front of me.

9 If the interpreters can translate it, then I'm going to propose it. It

10 has its number, and I think that the interpreters can translate it.

11 JUDGE ROBINSON: Yes, Mr. Docherty.

12 MR. DOCHERTY: Your Honour, I'm informed by our case manager that

13 an English translation may exist. If we could take a minute now to check

14 that out, it may save five minutes.

15 JUDGE ROBINSON: Yes. Please check that out.

16 MR. TAPUSKOVIC: [Interpretation] I had requested a translation

17 into English several days ago.

18 MR. DOCHERTY: Your Honour, we do have an English version of

19 this. I think we could e-mail it to the registrar, who could then put it

20 on -- we couldn't put it directly into e-court from our terminal, but we

21 could e-mail it to the registrar who, I think, could then do it.

22 JUDGE ROBINSON: Whatever the technology allows, let us use it.

23 MR. DOCHERTY: It's been sent.

24 MR. TAPUSKOVIC: [Interpretation] I would kindly ask the witness to

25 read it.

1 While the witness is reading this, can a number be assigned to the

2 video clip that we saw, please, for identification purposes?

3 MR. DOCHERTY: I renew my objection to the receipt of that video

4 clip, to the extent that the assignment of a number is the first step

5 towards tendering it into evidence, on grounds of relevance, grounds of

6 foundation, and untimely disclosure.

7 [Trial Chamber confers]

8 JUDGE ROBINSON: We'll mark it for identification.

9 THE REGISTRAR: Your Honours, that will be MFI D26.

10 MR. TAPUSKOVIC: [Interpretation] May I proceed?

11 JUDGE ROBINSON: Yes. What's the question? Yes.

12 MR. TAPUSKOVIC: [Interpretation]

13 Q. Sir, have you read this document? Is that the conversation that

14 you had with Mladic?

15 A. No, this is not the conversation that I had with Mladic, but I

16 can't exclude that this might be a transcription of a conversation between

17 General Smith and General Mladic.

18 Q. Well, that's even better. In any case, it happened on the 28th of

19 August; is that correct? However, it says here that an unidentified

20 person from General Smith's office had this conversation, and I wouldn't

21 have asked you this at all had you not said in your October statement that

22 as far as you can recall it was you who had this conversation. That is

23 why -- otherwise, I wouldn't have asked you this. But if you say that --

24 JUDGE ROBINSON: Mr. Docherty is on his feet.

25 MR. DOCHERTY: Your Honour, counsel just stated that the witness

1 said in his October statement that it was he who had this conversation

2 with General Mladic. I think that is a mischaracterisation of the

3 record. The witness testified that he had a conversation with Ratko

4 Mladic on the 29th of August. This document is dated the 28th of August,

5 at 6.27 in the evening. This witness cannot authenticate this

6 conversation on the record established so far.

7 I do not preclude the possibility that further conversations may

8 lay an adequate evidentiary basis for its admission; however, at this

9 point I object to this witness being questioned concerning the contents of

10 this document unless he can lay a foundation that he has knowledge of the

11 contents of the document and that he is the person who participated in the

12 conscious.

13 JUDGE ROBINSON: I think you're right about the -- I think he's

14 right about the date. The counsel is right about the date, but as to

15 whether the witness can speak to it is another matter, because he may know

16 enough about the conversation. He doesn't rule out the possibility that

17 it could have been with General Smith, but that seems unlikely to me

18 because of the many references in the conversation to General Smith

19 himself. So it would seem more likely to be a conversation with some

20 person other than General Smith.

21 MR. TAPUSKOVIC: [Interpretation] Your Honours, this is precisely

22 because what he said earlier. "It seems to me that I took this call with

23 the help of the interpreter." This document explicitly says that this

24 conversation took place through an interpreter and that General Smith had

25 nothing to do with this conversation. That's what the witness said.

1 So I must insist on this, that this conversation took place on the

2 28th, at 1827 hours. If he maintains that this conversation was made by

3 General Smith, I have no further questions. I'm just questioning the

4 issue that probably he made an error, that it did take place on the 28th,

5 which is more logical, but my logic could be -- could be worthless.

6 JUDGE ROBINSON: Well, I'll ask the witness again.

7 What do you know about this conversation?

8 THE WITNESS: [Interpretation] What I remember, and that's how my

9 witness testimony reads, is a phone conversation on 28 August in which

10 General Smith asked General Mladic to investigate whether his troops had

11 fired at the market in Sarajevo. And I also remember a conversation on 29

12 August in which General Mladic said that he had investigated the incident

13 and that his troops were not to blame for the incident.

14 What I can't exclude is that another phone conversation took place

15 on 28 August, of which the text now appears on the ELMO, in which General

16 Smith asked these questions. But I'm sorry to say that I can't state with

17 certainty that I was present at that conversation.

18 MR. TAPUSKOVIC: [Interpretation] Mr. President, if I may ask just

19 one more question in this regard, and the witness can help us.

20 Q. Apart from you, who could possibly be there, at such a crucial

21 moment and at such an important time, in the office of General Smith?

22 A. That could, for example, have been the military assistant, Colonel

23 Baxter.

24 Q. Thank you. I have no further questions about this. But can you

25 tell us, on the evening of the 28th, was a decision made to use NATO to

1 carry out strikes and for the purposes that it was used? Do you know

2 anything about that?

3 A. Yes, I can tell you something about that. That decision was taken

4 only the day afterwards, on 29 August, when all data from the

5 investigation of the market were available.

6 Q. All right. That stands to reason, but I'm asking you something

7 different. Was it decided on the 28th to carry out air-strikes? In order

8 to set the NATO machinery in motion, it cannot be done in a matter of

9 minutes. Certain conditions have to be fulfilled for NATO to be

10 activated. It could not have acted on the very same evening. Everything

11 was on standby. And orders to carry out the bombing were given on the

12 evening of the 28th. Do you know anything about that?

13 A. I cannot exclude that preparations were taken to deploy air power,

14 but the decision to do so was definitely not taken on the 28th.

15 Q. I'm not going to pursue this matter any longer. Let me first ask

16 you something about radar equipment. I would first like you to look at

17 page 4 of the English version, paragraph 3 of the document DD00-0287. I

18 repeat: Page 4, paragraph 3.

19 You already said, and if you have it in front of you --

20 MR. TAPUSKOVIC: [Interpretation] My apologies, Your Honours. It

21 is impossible to do this more quickly.

22 Q. Do you have it in front of you, sir? I said page 4, paragraph 3

23 of the document, the number of which I gave you. Can you see this? It

24 begins with: "Our mortar radar detection equipment ..."

25 "Our mortar radar detection equipment was not completely accurate

1 in those early days, and we could not always say who was responsible for

2 starting the incidents. Only when the Dutch equipment arrived later in

3 1995 did we have an accurate system."

4 Is this correct?

5 A. Yes, that's correct.

6 Q. And then in paragraph 20 of the other statement, DD00-0311,

7 paragraph 20 -- I'm not going to read the whole paragraph; it will take

8 too much time. Do you have it in front of you, sir?

9 A. Yes, I see that.

10 Q. The last sentence reads:

11 "At the same time a British unit arrived also providing coverage

12 over the city. The primary purpose of these radars was to locate the

13 mortar and artillery positions of units firing into the city."

14 Is this correct?

15 A. Yes, that's correct.

16 Q. Can you tell me if it is true that neither the British nor the

17 Dutch radars registered the shell that caused so many deaths and

18 injuries? Is that true?

19 A. Unfortunately, that's true.

20 Q. Is it also true that these radars failed to register the remaining

21 four shells that you spoke of a minute ago? Is that also correct?

22 A. That is correct.

23 Q. Is it true that neither the sound of the shell was registered? Is

24 that also correct?

25 A. The sound of the shots was not registered.

1 Q. In order to continue my examination, let me first draw your

2 attention again to the English version, page 4, but now we're going to

3 deal with the last paragraph of the document DD00-0285. I have to read

4 the whole passage to you, as soon as you have it in front of you.

5 So page 4, English version, last paragraph, which is a rather long

6 one. Do you have it in front of you? It begins with: "The most

7 significant shelling in Sarajevo ..."

8 A. Yes, I see that text in front of me.

9 Q. Did you state this, sir:

10 "The most significant shelling in Sarajevo occurred on the 28th of

11 August between 11.10 and 11.20 when the marketplace was shelled. There

12 were five shells fired that day, and one struck the roof of a building in

13 the vicinity of the Markale marketplace. A rain of shrapnel came down on

14 the marketplace."

15 I will read on:

16 "The first report was that more than 30 were killed and more than

17 40 injured. It was confirmed later that 33 were killed and more than 80

18 were injured. The chief UNMO and his staff went to the scene with an

19 expert in analysing mortar explosions. A full investigation was ordered.

20 We were very careful because of the implications for the London

21 Conference, where such an act could bring about air-strikes. These

22 air-strikes were significant as they meant not just calling for close-air

23 support, C.A.S., but also for air-strikes on selected targets.

24 "After 24 hours, on Tuesday, the 29th of August, we received the

25 definitive report. The investigation confirmed that it was a

1 120-millimetre shell, and the direction was also confirmed. Our

2 investigation with our men on the ground throughout the city, such as the

3 UNMOs, confirmed that the firing had not been heard within the city itself

4 and, therefore, it was highly probable the fire must have come from

5 outside the confrontation line.

6 "Based on my experience, I consider that someone would have heard

7 the firing of the shells if they had been fired from within the

8 confrontation lines. One can hear the difference between incoming and

9 outgoing fire based on the sound. Even if it had been fired from the

10 hills, it would have been heard. It is quite a loud bang. The Cymbelline

11 had not picked it up either. All this indicates ..."

12 Is that a correct statement, sir, what I've just read out to you?

13 A. Yes, that's correct.

14 Q. Now we have to go to paragraph 24 of DD00-0319, paragraph 24. Do

15 you have that, sir?

16 A. I cannot yet confirm that. Now I do have it in front of me.

17 Q. We've addressed this paragraph before, what Van Baal told you

18 about. We heard that yesterday. I'm interested in the other half of the

19 paragraph where you say no element -- you say:

20 "Elements that were to be taken into account were always follows:

21 If there was no sound to be heard, the shell must have been fired from far

22 away."

23 I think that's what it says. Can you please tell the Chamber, you

24 say if it had been fired from a hill, the sound would have been heard. If

25 that's what you're saying, if there was no shell, the shell would have

1 been fired from far away, from beyond the hills, who knows from how far.

2 Is that what it means?

3 A. In any case, it means that the shells were not fired from the

4 immediate vicinity of the city.

5 Q. Not even from one of hills? Not from one of the hills?

6 A. Well, the hills start at the edge of the city but continue for

7 quite a ways, so it depends. If it had happened within the immediate line

8 of vision from the city, then I expect that the shots would have been

9 heard; but if the distance was greater than that, then perhaps the shots

10 could not be heard.

11 Q. Well, a minute ago you said that the shots had not been heard,

12 full stop. No sound of shots being fired, not within the area of

13 responsibility of the BH army, or at least that's what you claimed a while

14 ago. Well, after all, if you wish to add any further explanations,

15 please, by all means, do so.

16 A. I have nothing to add to this.

17 Q. That's all right. But then you go on to say, and this is what I'm

18 interested in most of all, that the radars didn't clock that. And since

19 the radars didn't clock that, you go on to say: "That means that the

20 trajectory was exceptionally low."

21 How is that possible - can you please explain? - that the radars

22 failed to clock the shell; the trajectory had to be exceptionally low?

23 We have a 120-millimetre shell. Can it have a linear trajectory

24 and, as it were, keep flying up the radar all the time? In other words,

25 can it go straight to the target, in a straight line? You are an expert

1 yourself. In your opinion, if the shell kept flying under the radar,

2 could it have kept a straight line all the way to the target? Can you

3 please explain that, sir.

4 A. No, that's not possible. A mortar has an inclined trajectory, so

5 a horizontal path is virtually out of the question.

6 Q. The radars, as a matter of fact, did not clock the shell, which

7 means that it was fired from somewhere inside the city, given what the

8 facts are. Let's forget about the sound now. But the radars did nothing

9 to clock this shell, and we're talking about state-of-the-art,

10 cutting-edge radar technology, such as the British technology and the

11 Dutch technology, aren't we?

12 A. Even if the shells would have been fired from within the city,

13 normally the radar would have clocked them, but the coverage of the radar

14 may not have been 100 per cent. I do not have enough information about

15 that.

16 Q. What I'm putting to you - and I have to be very straightforward -

17 is the explosion, this shell, whatever else, exploded in that very spot.

18 That's what I'm putting to you. Have you an answer to that, sir?

19 A. The only thing I can say about it is that the radar did not clock

20 these shells. Unfortunately, that did not lead to any additional

21 information. What I'm trying to say is that we had to go by the funnel

22 analysis on the ground. The funnel analysis on the ground.

23 Q. Concerning everything that we have discussed, Witness, I have

24 several questions for you now. We heard a while ago that a 120-millimetre

25 shell hit the roof of a building and that a hail of shrapnel came down on

1 the market. Is this something you heard from someone else, or were you

2 actually there? Did you see this happen? Did you see this shell

3 impacting, as it were?

4 A. No. At that time I was at headquarters. This is the report of

5 the analysis that took place. Four shells hit the ground, according to

6 the report, and made a few casualties. One shell hit a building causing

7 the shell to explode in the air, and the hail of shrapnel caused a lot of

8 casualties. But I do not know this from my own observations.

9 JUDGE HARHOFF: A question for clarification. General, the four

10 shells you said hit the ground, did they hit the ground in the Markale

11 market or in the vicinity of the market?

12 THE WITNESS: [Interpretation] They hit in the vicinity.

13 JUDGE HARHOFF: And the fifth shell then hit a roof to a building

14 adjacent, immediately adjacent, to the market; is that correct?

15 THE WITNESS: [Interpretation] At any rate, in the close vicinity

16 of the market.

17 JUDGE HARHOFF: Right. So the casualties caused by that fifth

18 shell were caused by the pieces of the roof and the shrapnel that fell

19 down over the market; is that correct? Is that how it happened, according

20 to your information?

21 THE WITNESS: [Interpretation] Yes. Mainly the shrapnel from the

22 shell. Because it explodes in mid-air, the effect is larger than when a

23 shell hits the ground.

24 JUDGE HARHOFF: Thank you very much.

25 MR. TAPUSKOVIC: [Interpretation] Your Honour, Judge Harhoff, thank

1 you. I was just about to try and clarify this very point. I'm talking

2 about this one single shell. I'm asking the witness, and I'm adamant that

3 I should, about the sound not being heard, about nothing being picked up

4 by the radar.

5 Q. I'm talking about all five shells. None of them were picked up.

6 I'm not merely saying this about the explosion, where it occurred. I'm

7 talking about all the other explosions in that very spot where they

8 occurred. That is what I'm putting to you, precisely because no sound was

9 picked up and there were five shells. Five shells were fired, and indeed

10 they were. It's in the indictment. How on earth is it possible for none

11 of those shells to be picked up by the radar technology?

12 JUDGE ROBINSON: I was going to ask, "What is the question?" But

13 we just had it. How was it possible for none of those shells to be picked

14 up by the radar technology? Are you able to answer that, Brigadier?

15 THE WITNESS: [Interpretation] I can't give you a final answer.

16 It's a mystery to me as well. It is possible that the radar was not aimed

17 in the right direction, but it's only conjecture. I can't give a final

18 answer to this question.

19 MR. TAPUSKOVIC: [Interpretation] I'm sorry, Mr. President, is that

20 all that you wanted to ask the witness? Can I proceed now?

21 JUDGE ROBINSON: I wasn't asking the witness. I was trying to get

22 you to ask a question. In future, just leave the introductory paragraphs

23 out and get to the question as quickly as possible.

24 MR. TAPUSKOVIC: [Interpretation] He answered your question. He

25 says it's a mystery to him. For the purposes of our Defence team, that

1 answer is good enough. I won't be pushing him on this. You asked him.

2 He said it's a mystery. Well, it's certainly a mystery to me as someone

3 speaking on behalf of Mr. Milosevic's defence. I do want to ask the

4 witness something else.

5 Q. Witness, did you see the footage that was seen by the entire world

6 about the explosion, the people who were killed there, and the people who

7 were injured? Did you see that footage, sir?

8 A. I assume I did.

9 Q. What about a shell hitting a roof and the shrapnel coming down?

10 You saw the photographs; right? Can it possibly cause the type of injury

11 that was seen there? I'm not going into that. I think I'm losing a lot

12 of time. Can that sort of thing cause the sort of injury that is seen in

13 the footage? If you're unable to answer, sir, please just say so.

14 A. I think it is very well possible to cause this damage.

15 Q. Thank you. You're an artilleryman, aren't you? You must know,

16 then, that if we have mortar shells of that calibre, it's very difficult

17 to determine the position that these are fired from, since it's impossible

18 to determine the charge that was used in order to fire that sort of a

19 missile. As an artilleryman, do you know this for a fact, sir?

20 A. I do know it's not simple to conduct a funnel analysis. I

21 couldn't even do it myself. But experts can get lots of information from

22 that.

23 Q. But are you at least aware of this fact: Is it at all possible to

24 determine that, given what I've just read out to you?

25 A. Yes, it's absolutely possible. You can determine the direction

1 from where the shelling came, and within a certain margin you can also

2 estimate from what distance the shell must have been fired.

3 Q. Sir, had you provided a different answer, I probably wouldn't have

4 asked the question, anyway. But did you know about this highly classified

5 document drafted by General Janvier and submitted to the Secretary-General

6 Kofi Annan personally on the 28th, as early as the 28th of August?

7 Can you please look at the whole paragraph so that I don't have to

8 show anything to you. This is 65 ter document 481. The English page is

9 3, page 3. I will not be reading that for you. I could show you the

10 important part. If not, perhaps you can just go ahead and read this

11 silently.

12 MR. TAPUSKOVIC: [Interpretation] Can I show the witness the

13 relevant portion, or does the Chamber want the witness to go through the

14 entire document?

15 JUDGE ROBINSON: Show him the relevant portions. If it becomes

16 necessary, he can then look at the entire passage.

17 MR. TAPUSKOVIC: [Interpretation]

18 Q. Do you have that in front of you, sir? All right. I'll read

19 this -- I've read it, as a matter of fact. You've answered. But I'll do

20 it again. It's a highly confidential report dated the 28th.

21 First of all, were you aware of this report, sir, that same day?

22 This one. Did you ever become aware of this, where it reads:

23 "In the case of mortar shells, it is very difficult to

24 determine" - it's about the 120-millimetre mortar shells - "where they are

25 fired from as it is impossible to determine the level of charge used to

1 fire the projectile." The afternoon of the 28th of August.

2 How would you answer that question in the light of your previous

3 answers, sir?

4 A. I'll take the time to read this text.

5 JUDGE ROBINSON: We also need to read it.

6 Have you completed the reading? Yes. Yes.

7 THE WITNESS: [Interpretation] Yes, I did, Your Honour.

8 JUDGE ROBINSON: Yes. Please proceed.

9 MR. TAPUSKOVIC: [Interpretation] Well, then, I want to see what

10 the witness has to say now.

11 Q. Is it impossible, what it says here, or is it different?

12 A. What I read here seems to be a situation report dated 28 August.

13 At any rate, it describes the incident that took place and that

14 investigations are being conducted to find the point of origin, the firing

15 point of origin.

16 JUDGE ROBINSON: Put your question again, Mr. Tapuskovic.

17 MR. TAPUSKOVIC: [Interpretation] I'll have to go back to what I

18 was asking. I didn't expect just to dwell on this for this long. This is

19 quite contrary to what the witness statement a while ago, but here, it's

20 in this document.

21 Q. "For mortar rounds it is very difficult to determine the firing

22 positions as it is impossible to determine the level of charge used to

23 fire the projectiles. The afternoon of the 28th of August."

24 Is it correct, what the report suggests, that it is impossible to

25 determine this, or is it not impossible? Is the case what you just

1 explained to us a while ago, sir?

2 JUDGE ROBINSON: Mr. Docherty.

3 MR. DOCHERTY: Your Honour, I object to Mr. Tapuskovic's

4 misquoting this document and the question he is putting to the witness.

5 The document does not say it is impossible. The document says it is "very

6 difficult."

7 JUDGE ROBINSON: No, but it goes on to say, "... as it is

8 impossible to determine the level of charge used to fire the projectiles."

9 Let me read it in its entirety. It says: "The definition of firing

10 positions for mortar rounds is very difficult, as it is impossible to

11 determine the level of charge used to fire the projectiles."

12 That is what the witness should comment on.

13 THE WITNESS: [Interpretation] I can confirm that it is very

14 difficult to determine the calibre and the firing point. I cannot confirm

15 that it is impossible. During the whole period that I was on mission

16 crater analyses were made several times, sometimes with success and

17 sometimes with less success.

18 JUDGE ROBINSON: Is it then that you don't agree with the

19 statement that it is impossible to determine the level of charge used to

20 fire the projectiles?

21 THE WITNESS: [Interpretation] Correct. In some cases it is very

22 well possible to determine the charge, the level of charge.

23 JUDGE ROBINSON: In fact, it seems to me that there is a sort of

24 contradiction, speaking as a layperson, because a difficulty doesn't

25 create an impossibility, it creates a difficulty. But the conclusion that

1 it is impossible to determine the level of charge is not consistent with

2 the previous proposition that the definition of firing positions is very

3 difficult. It appears, to me, to be a slight contradiction

4 between "difficulty" and "impossibility."

5 JUDGE HARHOFF: Excuse me, Counsel. Can I perhaps try and

6 approach this from a slightly different perspective? Because it would

7 seem to me, and, General, please correct me if I'm wrong, that the

8 determination of the firing point and the level of charge used to fire a

9 mortar is possible when you have a crater, so you can do a crater

10 analysis. But in this case, we understand there is no crater because the

11 shell hit the roof of the building just next to the market, and most of

12 the damage caused was caused by the things that fell down from the roof,

13 including the shrapnel from the grenade itself.

14 So what I'm interested in is more the words included in the report

15 just before the passage that the President has read out, namely that "the

16 mortar shell was assessed to be fired from 170-degrees magnetic." Because

17 that might be more helpful to determine at least which direction the

18 mortar came from. So can you enlighten us how the determination of the

19 170 degrees was made?

20 THE WITNESS: [Interpretation] Your Honour is right. The shell

21 that hit the building could not be investigated, so the analysis was done

22 on the craters of the remaining four shells. When the investigations were

23 concluded on August 29, the expert was certain in stating that the shells

24 had been fired from a south/south-west direction and that they had been

25 fired from a distance between 3.5 and 4.5 kilometres. That is what I

1 remember and what was being told at the briefing based on the results of

2 the investigation.

3 JUDGE HARHOFF: Thank you very much.

4 MR. TAPUSKOVIC: [Interpretation] Your Honour, Judge Harhoff, that

5 is the right subject, and what you have just broached is a subject that

6 will prominent later on. The shell had a crater. It had a crater, but it

7 didn't hit the roof. But I'm not going into that now.

8 Q. Sir, Witness, do you know that the shelling was stopped for a day,

9 that the Russian officer Demurenko was in charge of that whole area? He

10 said it was one chance in a million that the shell had come from Serb

11 positions, and he said the crater could have been what it was only had the

12 shell fallen straight down from the sky. And then his estimate was one in

13 a million in terms of the chances for a shell to have been fired from the

14 Serb positions.

15 Has a crater been found? Do you know that?

16 JUDGE ROBINSON: Mr. Docherty.

17 MR. DOCHERTY: Your Honour, I object to the lengthy testimony that

18 counsel is giving before he puts a question to the witness. Mr. Demurenko

19 is not on the stand; Mr. Nicolai is. Mr. Nicolai should be asked

20 questions without these several sentences of prefatory material concerning

21 counsel's view of the facts.

22 JUDGE ROBINSON: Well, I've already spoken to Mr. Tapuskovic about

23 these lengthy introductions. Get to the point quickly without the

24 introductions. I find that it is in order for him to put to the witness

25 what Mr. Demurenko said and to get his views on this technical matter.

1 We are, however, well past the time for the adjournment, and we

2 are going to adjourn now. When we return, we'll get back to this

3 question.

4 We will adjourn now for 20 minutes.

5 --- Recess taken at 10.35 a.m.

6 --- On resuming at 11.57 a.m.

7 JUDGE ROBINSON: Mr. Tapuskovic, how much longer do you have?

8 THE INTERPRETER: Microphone, please.

9 MR. TAPUSKOVIC: [Interpretation] I'm going to skip a few things

10 concerning Markale, and there's another topic I will deal with. Hopefully

11 I will finish very quickly.

12 JUDGE ROBINSON: Yes. And remember, just get to the point. Ask

13 the question without all the prefatory, the introductory, remarks.

14 MR. TAPUSKOVIC: [Interpretation] Your Honours, I'm not going to

15 mention -- I wouldn't have mentioned Mr. Demurenko had there not been

16 mention of the crater.

17 JUDGE ROBINSON: Mr. Tapuskovic, there you go again. Just move

18 on.

19 MR. TAPUSKOVIC: [Interpretation] I agree.

20 Q. Does the witness know that NATO bombings were suspended for a day

21 because the chief of the sector where what we are talking about took place

22 claimed publicly that it was impossible to hit the Serbian positions? A

23 crater had been found, and he spoke about the chance of one in a million.

24 In other words, it meant that the shell could only have arrived in a

25 straight line.

1 THE INTERPRETER: The interpreters didn't hear the last part of

2 the sentence.

3 MR. TAPUSKOVIC: [Interpretation]

4 Q. That it could have landed - I'm using very simple terms - as if it

5 had arrived from the sky?

6 A. I don't remember any of that. As far as I know, the air-strikes

7 continued throughout the week, the entire week, and I don't remember any

8 report from Mr. Demurenko regarding a likelihood of one in a million that

9 the mortars would not have been fired from the Serb area.

10 Q. However, the report sent by General Janvier on the 28th was sent

11 directly to Kofi Annan in light of the significance of the whole affair,

12 and words were carefully chosen concerning qualifications and

13 characteristics of a 120-millimetre shell. So this had been checked. So

14 if such a report was sent directly to the UN in view of the importance of

15 the whole affair, due care was taken of what was put in that report.

16 A. I don't know on what basis General Janvier sent this report to

17 Mr. Kofi Annan. The outcome of the investigation was reported to the

18 staff only on 29 August. So I can't imagine on what General Janvier could

19 have based this.

20 Q. In other words, you didn't know anything about that report?

21 A. That's correct.

22 Q. Can we please take a look at document DD00-0287. Page 5,

23 paragraph 3.

24 Do you have it in front of you?

25 A. I don't believe I do.

1 Q. It begins with "We were surprised ..." with these words, "We were

2 surprised ..."

3 Before I read it out to you, negotiations were underway at the

4 time about peaceful solutions, and they were progressing well in the

5 aftermath of the Srebrenica events; is that correct?

6 A. Yes, that's correct.

7 Q. Now, let me read what it says here:

8 "We were surprised at the timing of this incident after the fall

9 of Srebrenica and Zepa and during the quiet months of August when we were

10 checking with the Bosnian Serbs. We felt that we were making some

11 progress with the negotiations. I am therefore of the opinion that

12 perhaps Mladic did not order the firing of the shells ..."

13 And maybe I can read on, if necessary, but you can also read it

14 for yourself. But I would like to hear from you whether what you wrote

15 here is correct.

16 A. Yes, that's correct.

17 Q. Is it fair to say that this was not necessary at all for the

18 Serbian side, in view of everything that had happened at that time? Is

19 that correct?

20 A. Well, that's difficult for me to answer. Perhaps it's even

21 impossible for me to answer. It was cause to conduct a very thorough

22 investigation and not to exclude any possibility as to the perpetrators.

23 And only once the report had been completed on the 29th and the

24 investigators stated that there was a 99 per cent certainty that the

25 shells had been fired from Serb area, only then did we take additional

1 steps.

2 Q. And my last question about the Markale incident is as follows:

3 The BH army had both political and military reasons for the negotiations

4 to fail and collapse and for the army of Republika Srpska to capitulate

5 and be defeated. Is it fair to say that?

6 A. These are assumptions. All I can have an opinion about is facts.

7 Q. Does that fit with what Van Baal had told you, that if the highest

8 interest of a state, then their own people can be used as an instrument

9 for that, and to victimise it?

10 A. That's an option that we did not exclude.

11 MR. DOCHERTY: The witness has answered the question, but for the

12 record, I note a mischaracterisation of the testimony regarding Major

13 General Van Baal. That is not what he said.

14 MR. TAPUSKOVIC: [Interpretation] Your Honours, this has been

15 confirmed by this witness, that they didn't rule out that possibility.

16 JUDGE ROBINSON: Let's move on.

17 MR. TAPUSKOVIC: [Interpretation]

18 Q. My last topic is that this was followed by NATO bombardment, and I

19 wouldn't dwell too long on that. I should move now again to the document

20 that you have in front of you, but let's move on to page 7, paragraph 3.

21 Do you have it in front of you, sir? The paragraph begins, "On

22 the 23rd of May ..." Can you see it?

23 A. Yes.

24 Q. It reads: "On the 23rd of May, the Bosnian Serbs removed some

25 heavy weapons from a weapon collection point."

1 I believe I have no reason to go on. If the witness would like me

2 to do that, I have no objection. Is it true that this is what happened?

3 A. Yes, that's correct.

4 Q. And is it also true that already at that time NATO had bombed the

5 ammunition depot in Pale, as you mention further on, which was situated in

6 a residential area? Is that true?

7 A. No, that is not true at all.

8 Q. Very well. Do you know that these NATO bombs -- and I heard a lot

9 about them and read about that. I'm not a military expert, but I learned

10 and heard from other people that these NATO bombs do not only create

11 damage at the place of impact, but people get injured and disintegrated in

12 the very wide area due to the blast of the impact. Is that correct? Even

13 if the target was directly engaged, civilians nevertheless got killed in

14 the area.

15 JUDGE ROBINSON: Mr. Tapuskovic, is this relevant to any of the

16 charges?

17 MR. TAPUSKOVIC: [Interpretation] Your Honours, that was precisely

18 the result that was to bring about certain reactions from the other side

19 and for certain steps to be taken that would deteriorate the situation.

20 Q. Again, on the 25th of May, two days later, there was another

21 bombing, and it says: "Mladic accused us of hitting a hospital and a

22 school, to which we responded that an ammunition depot is a rather -- an

23 odd place to have a hospital."

24 Is that correct?

25 JUDGE ROBINSON: I will allow the question, but bear in mind that

1 NATO is not on trial here, and it doesn't help your case merely to cite

2 bombings by NATO unless they relate to allegations in the indictment.

3 Let's have the answer.

4 THE WITNESS: [Interpretation] The only thing I can state about

5 this matter is that only on 25 and 26 May were NATO bombing attacks

6 carried out, and they targeted a munitions complex outside Pale and that

7 the targets were hit. How many victims there were and whether they were

8 military or civilians I cannot tell you because I do not have that

9 information.

10 MR. TAPUSKOVIC: [Interpretation] I will try to explain to Your

11 Honours, in response to your question, how relevant this is. The

12 indictment says that throughout the whole period --

13 JUDGE ROBINSON: I have allowed the question. Move on. We must

14 be concluding your cross-examination now.

15 MR. TAPUSKOVIC: [Interpretation]

16 Q. The bombs that were dropped on the Serbian positions, it wasn't

17 only the Serbian side that, in the period of your tour of duty, used these

18 air bombs. The Serbian positions were also struck by aerial bombs fired

19 by NATO in the last three months, and they caused equal damage as the one

20 caused -- as alleged in the indictment by the air bombs fired by the army

21 of Republika Srpska.

22 A. I really don't understand any part of this question.

23 JUDGE ROBINSON: Move on to another question, Mr. Tapuskovic. And

24 you must be bringing your cross-examination to an end now.

25 MR. TAPUSKOVIC: [Interpretation] Yes. I'm almost finished.

1 Q. Did NATO ever issue written orders, in case of retaliation or for

2 pressing military reasons, to undertake such actions?

3 A. Yes. The UN resolutions indicate, including Resolution 824 of the

4 UN, indicates that air force can be used in defending these areas,

5 including safe ones.

6 Q. And finally two more questions. After all these bombardments by

7 NATO on the 23rd, the 25th of May, and after the intervention, so after

8 all these bombings - I had a paper in front of the microphone so you may

9 not have heard me - was all this that had to be done about the bombing

10 referred to the UN? Because prior to that everything was done

11 single-handedly by NATO. So after that everything was moved to New York.

12 A. First of all, I repeat that air-strikes were carried out only on

13 25 and 26 May, not on 23rd May. The air-strikes were, indeed, carried out

14 by aircraft of NATO but at the request and under the responsibility of the

15 United Nations.

16 Q. After you have completed your mission in Bosnia on the 2nd of

17 September, do you know that in September, October, and November the army

18 of Republika Srpska was compelled to defend itself both from NATO bombs

19 and from the attacks by the BH army, and that actually everything it did,

20 it did only as a defence, in the three months that I mentioned?

21 A. I have some problems with this question.

22 JUDGE ROBINSON: Don't answer the question.

23 Mr. Docherty, your re-examination.

24 MR. DOCHERTY: Your Honour.

25 JUDGE ROBINSON: I've terminated the cross-examination.

1 Mr. Docherty.

2 Re-examination by Mr. Docherty:

3 Q. Major General --

4 MR. TAPUSKOVIC: [Interpretation] That was my last question.

5 MR. DOCHERTY:

6 Q. Major General, during his cross-examination Mr. Tapuskovic asked

7 you about a quotation from your statement of 13 November 1995; "Every man

8 and boy had a weapon."

9 First of all, do you remember being questioned about that by

10 Mr. Tapuskovic, or actually being asked several questions about that by

11 Mr. Tapuskovic?

12 A. Yes, I remember that.

13 Q. For the sake of completeness, I wish to ask you a question or two

14 which Mr. Tapuskovic did not ask you concerning a subsequent written

15 clarification of that phrase.

16 MR. DOCHERTY: And, Mr. Registrar, may we please see pages with

17 ERN numbers 06046776 and the following page, 06046777.

18 THE REGISTRAR: Could I have the number for document, please?

19 JUDGE ROBINSON: There appears to be some difficulty finding the

20 document.

21 MR. DOCHERTY: May I show the document to the registrar?

22 JUDGE ROBINSON: Yes. Anything to get matters moving.

23 MR. DOCHERTY: Yes. And may I ask, could we scroll down so we

24 could see paragraph 30, 3-0, on the screen, please.

25 Q. Major General, do you see paragraph 30 in front of you in English,

1 left-hand side?

2 A. Yes, I see it.

3 Q. Could you read it to yourself, please. It continues on the next

4 page, so just let us know when you're ready for the next page.

5 A. Yes, you can scroll down to the next page.

6 Q. Have you read that, sir?

7 A. Yes, I've seen it. I've read it.

8 Q. Now that you've read it, can you tell the Court what effect you

9 were trying to achieve when you used that phrase originally, "Every man

10 and boy had a weapon"?

11 A. Yes, I can do that. To put an end to sniping, we dealt with the

12 authorities of the parties concerned, assuming that they wielded control

13 over the military people under their command. This did not provide a

14 hundred per cent guarantee that the sniping incidents could be put to a

15 stop, because a lot of civilians had weapons as well and controlling the

16 civilians was far more difficult. Nonetheless, I believe that if all

17 authorities cooperated, the number of sniping incidents would have been

18 reduced considerably.

19 Q. You were also asked -- excuse me. You were also asked - I'm

20 shifting topics here - about allegations of the Bosnians firing on their

21 own people. Again, do you remember that exchange between you and

22 Mr. Tapuskovic?

23 A. Yes.

24 Q. When General Van Baal and you had this conversation, did General

25 Van Baal tell you about one occasion or more than one occasion on which he

1 thought this might have occurred?

2 A. One occasion.

3 Q. Did General Van Baal tell you the basis of his assertion? Did he

4 see this himself, or had he heard this from somebody else?

5 A. He told me about -- also about sniping in the centre of Sarajevo

6 where, during his tour of duty, was responsible for that sniping incident,

7 and it was seriously suspected that the incident had been caused by

8 Bosnian Muslims, the BiH.

9 Q. But to answer the question, was General Van Baal basing this upon

10 material he had received from somebody else?

11 A. The answer was based on the outcome of investigations into the

12 incident that happened during the period that he was Chief of Staff.

13 Q. Switching topics again. There were -- oh, excuse me. One last

14 question. When did General Van Baal leave Bosnia?

15 A. That was mid-1994. He was Chief of Staff of UNPROFOR in the first

16 half of 1994.

17 Q. You were asked a number of questions concerning the shelling of

18 the Markale market on 28 August 1995. Did you personally participate in

19 any of the investigations that were conducted into that shelling?

20 A. No.

21 Q. Did you go to the -- how long after the shelling was it before you

22 went to the marketplace yourself, if indeed you went?

23 A. As far as I can remember, that was two or three days after the

24 shooting incident. Excuse me, the shelling incident.

25 Q. And up until then, where had you been?

1 A. At the headquarters.

2 Q. You were asked some questions by Mr. Tapuskovic concerning rogue

3 elements, and again there was a quotation from one statement. Do you

4 remember being asked that by Mr. Tapuskovic?

5 A. Yes, I remember that.

6 Q. And, again, for the sake of completeness --

7 MR. DOCHERTY: And, Mr. Registrar, could we go to the preceding

8 page, please, ERN 06046776, and display paragraph 26 on screen.

9 Q. General, would you please -- do you have paragraph 26 in front of

10 you?

11 A. Yes, I have that in front of me.

12 Q. Would you please read it to yourself.

13 A. Yes, I've read it.

14 Q. Do you stand by your statement that the Bosnian Serb army was very

15 disciplined? Do you --

16 A. Yes.

17 Q. I apologise to the interpreter. Do you stand by your statement

18 that somebody in that army gave the order to fire those shells?

19 A. Yes.

20 Q. The last topic I want to cover is the issue of provocation and

21 response that we covered yesterday.

22 As a military officer with 39 years of experience, does the

23 phrase "counter-battery fire" have a specific professional meaning to you?

24 A. Yes.

25 Q. Please tell the Chamber what a professional military officer means

1 by "counter-battery fire."

2 A. Counter-battery fire is resulting fire at an unknown target that

3 has been fired at.

4 Q. Let me ask this: What does the phrase "battery" in that -- what's

5 the "battery" that we're referring to that's being countered?

6 A. A battery is a firing unit comprising multiple pieces of artillery

7 and is comparable to a company within the infantry.

8 Q. And what is the point of counter-battery fire? What is a military

9 commander hoping to achieve when he orders that counter-battery fire be

10 directed upon a particular position?

11 A. The objective of counter-battery fire is to neutralise the firing

12 unit that one -- by which one was fired at.

13 Q. Now, let's apply those principles in a few questions to the

14 situation in Sarajevo. You described that some of the fire directed onto

15 the city of Sarajevo appeared to you to have been provoked by the

16 Bosnians. Is that an accurate summary of the testimony you gave?

17 A. Yes, it is.

18 Q. What sort of weapons did you observe the Bosnians to be firing in

19 order to be provocative?

20 A. Well, I need to be a bit more precise there. Only once did I

21 personally observe shooting, so most of my information comes from UNMOs

22 and from military people who were part of UNPROFOR. I personally

23 experienced shelling from the BiH barracks at the ice stadium, and I

24 experienced that from near our headquarters. Open -- there was shelling

25 from open-roofed vehicles towards Serb territory.

1 JUDGE ROBINSON: Do you recall on about how many occasions were

2 you informed by your colleagues in UNPROFOR about BiH shelling? You said

3 you only saw it once, but you received information from military people in

4 UNPROFOR.

5 THE WITNESS: [Interpretation] The exact number of shelling

6 incidents of this type I don't remember, but there were definitely more

7 than 10.

8 MR. DOCHERTY:

9 Q. And about how many rounds were fired by the Bosnians in a typical

10 act of provocation?

11 A. Sometimes only one shot; other times, two or three.

12 JUDGE ROBINSON: Mr. Docherty, where he would have had this --

13 would this have been part of the information he received, or are you

14 talking about the single incident that he witnessed?

15 MR. DOCHERTY: I was asking a question about "typical," Your

16 Honour, by which I meant -- I thought that by clarifying the basis of his

17 knowledge, one personal observation, plus 10 or so reports received, I

18 thought that he was qualified to answer a question that asked for a

19 typical act of provocation, and that's why I phrased it the way I did.

20 JUDGE ROBINSON: Yes. Yes. Let's hear the answer.

21 THE WITNESS: [Interpretation] In some cases, only one shot was

22 fired. In any case, the incident near the UNPROFOR headquarters involved

23 only one shot. The case that took place at the BiH barracks involved a

24 few shots.

25 MR. DOCHERTY:

1 Q. With what type of weapons? What type of weapons did the Bosnians

2 fire?

3 A. Shells. In the case of the vehicle, a light calibre. A heavy

4 calibre wouldn't fit in the vehicle without causing damage. In the case

5 of the BH barracks, there were only mortars, but I don't know their

6 calibre.

7 Q. And I want to talk to you now about the scale of response to these

8 acts of provocation.

9 Did what you observed, in the case of something you saw yourself,

10 or what you read about, in the case of reports received, fit into what

11 you, as a military officer, would describe as counter-battery fire, which

12 I believe you've testified is fire intended to take out the source from

13 which one is being fired upon?

14 A. In some cases, the fire was returned in the direction from which

15 firing had come. In other cases, this did not happen and the retaliation

16 consisted of arbitrary firing at the city.

17 Q. In the case -- first of all, let's get some numbers, if we can.

18 You've testified to seeing one incident yourself, and I believe you said

19 approximately 10 that you read about. First of all, do I have my numbers

20 right?

21 A. As far as I recall, yes, they are correct.

22 Q. And so of these total 11 incidents, how many times was the

23 response counter-battery fire; how many times was the response, to use

24 your word, arbitrary?

25 A. [No interpretation].

1 JUDGE ROBINSON: We don't have that answer. Could you repeat it

2 so we can have it interpreted.

3 THE WITNESS: [Interpretation] To my regret, I cannot give an

4 accurate answer.

5 MR. DOCHERTY:

6 Q. Then let me ask: In the times that the response was arbitrary,

7 however many times that was, what sorts of weapons were used in response

8 by the Bosnian Serb army?

9 A. Well, this means mortars and artillery fire.

10 Q. Were these modified air bombs that you testified about yesterday

11 ever used?

12 Before you answer, Mr. Tapuskovic has something.

13 JUDGE ROBINSON: Mr. Tapuskovic, yes.

14 MR. TAPUSKOVIC: [Interpretation] I would like the Prosecutor, my

15 learned colleague, to show us where did he say that it was the Serbs who

16 fired random shots? He spoke about the BH army firing randomly in order

17 for the Serbian forces to respond with a few shells in order to neutralise

18 the firing points. I do not remember, but can my learned colleague show

19 me where is it that the witness said this in any part of his testimony?

20 Maybe I'm wrong.

21 JUDGE ROBINSON: Mr. Docherty.

22 MR. DOCHERTY: I believe he has testified to that. I couldn't

23 cite a transcript page, but I'm happy to clear that up with a couple of

24 questions.

25 JUDGE ROBINSON: Yes. Go ahead.

1 MR. DOCHERTY:

2 Q. Major General, when you speak of response to Bosnian acts of

3 provocation, which warring faction is doing the responding?

4 A. If I understand the question correctly, then whenever, from the

5 city of Sarajevo, Bosnian forces would be shooting at Serb positions, the

6 reaction would come from the Serbian Bosnian army.

7 JUDGE ROBINSON: Yes. I'm interested to learn how you received

8 this information. All the information that you are now giving counsel in

9 relation to these matters, how did you receive it?

10 THE WITNESS: [Interpretation] This information would come in the

11 form of reports, reports both from the UN Military Observers present all

12 through the city; they also would come in from the soldiers positioned,

13 posted, in the battalions in Sarajevo.

14 JUDGE ROBINSON: And did these reports indicate that the BiH army

15 initiated the attack?

16 THE WITNESS: [Interpretation] Whenever that was the case, whenever

17 that had been determined, ascertained, then that would be included in the

18 report, yes.

19 JUDGE ROBINSON: Yes, Mr. Docherty.

20 MR. DOCHERTY:

21 Q. Major General, the question that was pending when Mr. Tapuskovic

22 objected was whether you ever observed or read of modified air bombs being

23 used in response to these Bosnian mortar fires -- mortar firing.

24 A. There had been several cases of improvised projectiles being fired

25 at the city. I can't recall whether these cases occurred in the form of

1 retaliations to provocations.

2 Q. Lastly, Major General, during your 39 years in uniform, did you

3 have training on the concept of proportionality of response in responding

4 to an enemy's attack?

5 A. I have, yes.

6 Q. Do you understand the concept that I mean when I talk about

7 "proportionality of response"?

8 A. I absolutely do.

9 Q. Now, do you have an opinion, based upon your military training and

10 experience, as to whether the response by the Bosnian Serb army to the

11 Bosnian army's acts of provocation --

12 JUDGE ROBINSON: Mr. Tapuskovic.

13 MR. TAPUSKOVIC: [Interpretation] Your Honours, I think this is an

14 issue that is for you to decide. This is an opinion, an opinion that it

15 must be stated, and it is for the Chamber to eventually evaluate this sort

16 of thing at the end of the trial. That's what my objection is about. It

17 is not for this particular witness to say.

18 [Trial Chamber confers]

19 JUDGE ROBINSON: Well, he's not to say whether the specific

20 response was proportionate because that ultimately is for us. But what he

21 can say is, from his experience, what constitutes a proportional response,

22 and that information would be helpful to us.

23 MR. DOCHERTY: I understand, Your Honour.

24 Q. Major General, I'm going to take a hypothetical example, but I

25 believe it fits within the pattern you've been testifying to. If the

1 Bosnian Muslim army fired --

2 JUDGE ROBINSON: Mr. Docherty, he said he had training in the

3 whole question or concept of proportionality. I'd like to find out what

4 that training is. Of course, we're not bound by it. In other words, what

5 are the criteria that are used to determine proportionality? That would

6 be helpful to us.

7 Mr. Tapuskovic.

8 MR. TAPUSKOVIC: [Interpretation] Your Honours, I believe that no

9 witness should be expected to answer questions about hypothetical

10 possibilities.

11 JUDGE ROBINSON: Yes. Well, I have moved from that direction -- I

12 have moved counsel from that direction, so he can put a question based on

13 my last observation as to the criteria with which the Brigadier is

14 familiar for determination of proportionality. Now, he said he had

15 training in this matter.

16 MR. DOCHERTY: And I was first going to ask him to summarise that

17 training.

18 JUDGE ROBINSON: Yes.

19 MR. DOCHERTY:

20 Q. Major General, the training that you have testified you received,

21 which included teaching on the concept of proportionality of response,

22 could you summarise for Their Honours, please, what sorts of trainings you

23 received on that concept at what points in your military career?

24 A. Well, to start with, I have to say that there is no specific

25 training only on the issue of proportionality. However, throughout the

1 training of officers, there is a tension towards the concept of

2 proportionality. I believe that I can clarify this very simply with an

3 example.

4 Soldiers have the right to self-defence. Whenever they come under

5 fire from a certain position, there is proportionality if the fire is

6 returned with the aim to deactivate the firing unit where the firing came

7 from. That is proportionality. It is not proportional if one engages,

8 for instance, in firing upon civilians from the other side in the hope

9 that this may stop the firing.

10 I hope that this example provides sufficient clarity.

11 MR. DOCHERTY: I have no more questions.

12 JUDGE ROBINSON: You can go further, because we're not dealing

13 with theory, we're dealing with practical matters. So I think it's

14 permissible to put questions based on the situation with which we are

15 dealing.

16 MR. DOCHERTY:

17 Q. Major General, I'll ask you to apply the criteria of

18 proportionality you just described. I'll ask you, in those situations

19 where you have described the Bosnian Serb response as arbitrary, were

20 those responses proportionate in the sense that you have just described

21 the word "proportionate"?

22 JUDGE ROBINSON: That's not what I had in mind. What I had in

23 mind was, if one side fires one or two rounds, mortar rounds, and the

24 other side used air bombs, what would the Brigadier say about

25 proportionality in that context? That's the kind of direction that I'd

1 like you to take.

2 MR. DOCHERTY:

3 Q. First of all, Major General, could you ever use a modified air

4 bomb for counter-battery work?

5 A. Obviously myself, I have never deployed such weapons. But do I

6 understand your question correctly as saying, were such bombs used in

7 retaliation for shelling? A few moments ago I stated that I do not recall

8 whether such improvised bombs have been used in retaliation for shelling.

9 I hope this gives a sufficient answer to your question.

10 Q. I regret it does not because I think the question was a little

11 different.

12 You described to us a few minutes ago the idea of counter-battery

13 fire, and you described to the Chamber what that means. Do you recall

14 that?

15 A. Yes, I recall that.

16 Q. And do you also recall giving testimony yesterday concerning

17 modified air bombs and what they are and how they work? Do you recall

18 that?

19 A. Yes, I remember that as well.

20 Q. I'm going to put the two ideas together. Can you use a modified

21 air bomb for counter-battery fire?

22 A. My answer must be no, because such an improvised bomb is far too

23 inaccurate to provide accurate counter-battery fire.

24 Q. And then following up on His Honour Judge Robinson's question, if

25 the Bosnian Muslims fire one, two, or three mortar rounds at Serb

1 positions, would it be proportionate for the Bosnian Serbs to fire air

2 bombs upon the city of Sarajevo generally?

3 A. The answer is no. I cannot ever recall cases of this actually

4 happening.

5 Q. Then let's talk about concrete examples of what did actually

6 happen. Again, I'm limiting my questions to that set of responses that

7 you have classified under the term "arbitrary."

8 When you call it arbitrary, how many rounds, from what type of

9 weapons, were fired in response to the Bosnian Muslims?

10 A. Well, that is a very difficult question. We are dealing with a

11 range of events. I obviously cannot recall each and every case and then

12 tell you how many rounds were fired. In all cases, there were numerous

13 rounds involved, however.

14 MR. DOCHERTY: Your Honour, I have no further questions in my

15 re-examination.

16 JUDGE ROBINSON: Thank you.

17 Now, Mr. Tapuskovic, I said that you would be entitled to ask

18 questions arising out of the last part of the re-examination, that is, the

19 question of proportionality. If you wish to, you may ask questions.

20 MR. TAPUSKOVIC: [Interpretation] Your Honour, I was relaxing a

21 little simply because I don't remember that anyone was ever granted this

22 chance that is now being granted me. I will take a few seconds to find my

23 way around this, but it's about what the witness was saying yesterday, a

24 specific case that he mentioned involving firing from --

25 JUDGE ROBINSON: Mr. Tapuskovic, let me make it clear. The

1 situation is not novel. I allowed counsel to raise this in

2 re-examination. In his examination-in-chief, I had not allowed him to do

3 so. So he's raising it now. It is, as it were, fresh, and so you would

4 not have cross-examined on it, and that is why I'm giving you the right.

5 But if you don't wish to use it, then say so. But I stress that you are

6 not at large, and it should not -- the questioning should not last a very

7 long time. So it is confined to this specific issue of proportionality.

8 Further Cross-examination by Mr. Tapuskovic:

9 Q. [Interpretation] What you talked about yesterday, was that

10 proportional, that three shells at least must be fired in order to

11 paralyse the firing nests, such as the vehicles that were moving about,

12 that were being used to fire from? Would that be a proportionate

13 reaction; namely, that several rounds had to be fired? When someone was

14 firing randomly, it would have been necessary for the other side, in order

15 to be effective, to use a large number of shells in order to put a stop to

16 that operation by their enemy. Could that be called an adequate response?

17 A. In my opinion, the number of grenades that are fired is not the

18 criterion. The criterion is the position the firing is aimed at. As long

19 as the firing is aimed at the position from which the shells were fired,

20 then it is adequate.

21 Q. But you did say yesterday, didn't you, that it would have been

22 necessary to fire several rounds in order to hit a target? You can't just

23 fire one and be sure to hit a target, unless, of course, again there is

24 random firing. Did I get your answer correctly? You said yes; right?

25 A. Yes. You have understood it well. It is proportional whenever

1 a -- when a significant number of shells are fired at the position from

2 when -- from where the incoming fire has come.

3 Q. Thank you very much. Thank you very much, Witness.

4 MR. TAPUSKOVIC: [Interpretation] Thank you very much, Your

5 Honours. Thank you very much, Mr. President.

6 Questioned by the Court:

7 JUDGE HARHOFF: General, just one last question, returning to some

8 of the suggestions that have emerged from this examination, namely, the

9 question of the shelling of the Markale market. I'm raising the question

10 with you because I want to take advantage of the fact that you, as a

11 mortar specialist, can enlighten us a bit on how this is done in

12 practice.

13 My question is this: Would it have been possible to fire mortar

14 shells from the hills within the confrontation lines without this having

15 been detected or spotted by the radar if the radar had worked or if the

16 radar had been put in that direction? I mean, do you understand my

17 question? Is it possible to fire a mortar from anywhere within the

18 confrontation lines without this being seen by the radar?

19 A. It's extremely unlikely if the radars are pointed in the right

20 direction, and they were arranged to cover the city. Then those should

21 have been identified by the mortar detection radar.

22 JUDGE HARHOFF: Can I perhaps just put one clarifying question? I

23 suppose that the radars are looking up in the sky, so to say, but what is

24 the minimum height under which it would be able to -- it would be unable

25 to detect any incoming missile? Do you understand my question? I mean,

1 what is the height below which a radar normally could not see?

2 A. I understand your question. Unfortunately, I am not familiar with

3 the technical specifications of that radar system, so I am unable to

4 answer at that question.

5 JUDGE HARHOFF: Thank you very much.

6 JUDGE ROBINSON: Brigadier, that concludes your evidence. Thank

7 you for giving it, and you may now leave.

8 [The witness withdrew]

9 JUDGE ROBINSON: The next Witness, Ms. Marcus.

10 While the next witness is being called, I take the opportunity to

11 give a decision of the Chamber.

12 On the 11th of January, the Prosecution filed a motion for the

13 admission of written statements pursuant to Rules 92 bis and ter.

14 The Prosecution seeks the admission into evidence of, among

15 others, 22 witness statements pursuant to Rule 92 ter.

16 The Defence, in its response of the 24th of January, defers to the

17 decision of the Trial Chamber with regard to the admission of these

18 statements pursuant to Rule 92 ter.

19 The Chamber notes that it has already rendered a decision with

20 regard to the statements of Witnesses W-35 and W-83. The Chamber admitted

21 these statements. The Chamber now grants, in part, the Prosecution motion

22 and admits the statements of Witnesses 1, 13, 21, 26, 32, 36, 45, 47, 50,

23 69, 82, 84, 95, 96, 103, 113, 118, 119, 122, and 144 into evidence upon

24 fulfilment of the conditions set out in Rule 92 ter.

25 [The witness entered court]

1 JUDGE ROBINSON: Let the witness make the declaration.

2 THE WITNESS: [Interpretation] I solemnly declare that I will speak

3 the truth, the whole truth, and nothing but the truth.

4 WITNESS: BAKIR NAKAS

5 [Witness answered through interpreter]

6 JUDGE ROBINSON: You may sit.

7 You may begin, Ms. Marcus.

8 MS. MARCUS: Thank you very much, Mr. President, Your Honours.

9 Examination by Ms. Marcus:

10 Q. Good morning, Mr. Witness.

11 A. Good morning.

12 Q. Can you please state your full name for the Court.

13 A. Bakir Nakas.

14 Q. What is your date of birth, please?

15 A. The 26th of April, 1949.

16 Q. And where were you born, sir?

17 A. In Sarajevo.

18 Q. Have you lived in Sarajevo all your life?

19 A. Yes, since the day I was born.

20 Q. What is your profession, please?

21 A. I'm a doctor. I specialise in infectious diseases, and I am

22 currently working as the general manager of what is known as the General

23 Hospital.

24 Q. Would you briefly describe for the Court your educational

25 background, Doctor.

1 A. First, elementary and secondary school, of course, and then I went

2 to the medical school. I graduated in 1973. I took my specialist exam in

3 infectious diseases. That was in 1979. I passed. And then I spent the

4 next 10 years working as an infectologist in the hospital in Sarajevo.

5 My rank was captain first class up until 1992 when, as a

6 lieutenant colonel of the JNA, I submitted a request for the termination

7 of service. As of May 1992, I have been serving as the general manager of

8 the Sarajevo State Hospital.

9 Q. And, Doctor, what is your current employment?

10 A. Likewise, I work in the hospital. I am the general manager.

11 Q. Do you have any other role in the medical professional community?

12 A. In addition to being the hospital's general manager, I work

13 together with the cantonal and federal ministries on health reform. I'm a

14 member of the doctors' association of the Sarajevo canton, I am a member

15 of several boards and commissions, and I'm also a member of the health

16 workers' trade union.

17 Q. You mentioned the General Hospital. Can you tell the Court,

18 please, if that hospital had that name in 1994 and 1995?

19 A. The hospital that I currently work for and that I've been working

20 for ever since 1979 has changed its name several times over the years.

21 Between 1945 and 1992, it was called the Sarajevo Military Hospital;

22 between May 1992 and October 2000, its name was the Sarajevo State

23 Hospital; between October 2000 and May 2006, its name was the Sarajevo

24 General Hospital; since May 2006, its full name is Dr. Abdulah Nakas

25 General Hospital. It was named after a surgeon who had spent a long time

1 working for the hospital and who recently passed away.

2 Q. Dr. Nakas, could you describe for the Court what day-to-day life

3 was like in Sarajevo during the period between August 1994 and November

4 1995?

5 A. The day-to-day life of Sarajevo and those who resided in Sarajevo

6 was not really that different from the sort of life that people had back

7 in 1992 and 1993. The city was still under siege; no electricity, no

8 regular water supply, no regular energy supply; under shelling and sniping

9 continually. Life was not normal in any way for the residents of

10 Sarajevo, nor was our work, the work of health workers in the city's

11 health institutions. Likewise, we lacked all energy supplies,

12 electricity, and our supplies were reduced, limited, in terms of medical

13 supplies, food and such like.

14 Q. Before we get to the details of the work in the hospital in this

15 period, can you tell the Court generally, as citizens of Sarajevo, in what

16 ways had you adapted in the latter period, in 1994 and 1995, as compared

17 with the earlier period?

18 A. Well, if you look at the period between 1992 and 1994, that period

19 changed our lives considerably, our way of life, if you like. We managed

20 to get by using only a litre of drinking water every day. We got used to

21 it. We got used to living, getting on without electricity, without

22 drinking water. There was no such thing as lifts or elevators in the city

23 of Sarajevo because there was not enough electricity to run one, to

24 operate one.

25 Every day on your way to work you ran the risk of being killed or

1 injured. Each day's work meant exposing yourself to the risk of being

2 added to the long list of the killed and wounded.

3 The same thing applied to conditions in the hospital as applied to

4 our flats where we lived under conditions that were less than normal or

5 conducive to normal life.

6 MS. MARCUS: May I request the court officer to place map number

7 6, 65 ter number 2872, on the monitor, please. I'm going to ask the

8 witness to mark it, if that assists. Okay.

9 Q. Doctor, do you think you would be able on this map to mark for the

10 Court the location of the State Hospital? Could you possibly mark it with

11 an S for "State."

12 A. It's a little smaller than I'm used to. I was wondering if we

13 could try to zoom in, perhaps.

14 MR. TAPUSKOVIC: [Interpretation] Your Honours, I can't see

15 anything at all on my screen. I don't see what the witness is pointing

16 at.

17 MS. MARCUS: Your Honours, I apologise. I was actually intending

18 to put in the map that we recently put in the other day, and I've just

19 asked my case manager for that 65 ter number. If you could just give us

20 one moment. It's a much clearer map. It's the improved version, let's

21 say.

22 JUDGE ROBINSON: Very well. Yes, let's have the improved version.

23 MS. MARCUS: Thank you. I apologise.

24 I'm at a bit of a loss because this is exactly the 65 ter number I

25 just gave, I though, 2872. No? Okay. I'm told that we don't have that.

1 I'm sorry.

2 Q. Doctor, to the best your ability, if you could approximate the

3 approximate location of the State Hospital, please, on the map.

4 A. [Marks].

5 Q. Thank you. Could you also kindly, if possible, point out the

6 approximate location of the Kosevo Hospital on the map.

7 A. This is the location here.

8 Q. Thank you. And the --

9 JUDGE ROBINSON: You're putting a letter beside it, too?

10 MS. MARCUS: I'm sorry.

11 Q. Could you please put the letter K next to the Kosevo Hospital

12 location.

13 A. [Marks].

14 Q. Thank you.

15 JUDGE ROBINSON: And S for the first one.

16 MS. MARCUS: Thank you, Mr. President.

17 Q. Can you also identify approximately the location of the University

18 Medical Centre, perhaps with a U?

19 A. The Kosevo Hospital is synonymous with the University Medical

20 Centre. That's its official name. But among the population, it's always

21 been referred to by its shorter name, which was the Kosevo Hospital.

22 Q. Thank you. So could you also note the letter U, then, right next

23 to where you -- oh, you did. Okay. Thank you.

24 Now, Doctor, the Dobrinja Hospital, are you able to locate that on

25 this map? If so, could you kindly mark it with the letter D for

1 Dobrinja.

2 A. If we can move the map.

3 Q. Yes.

4 MS. MARCUS: Can the court officer please move the map slightly to

5 the left -- or move the map to the right so we can see farther to the

6 left.

7 JUDGE ROBINSON: Well, if we move the map now, I'm informed we'll

8 lose what has already been marked, so we should save that.

9 MS. MARCUS: Okay, then -- thank you.

10 Q. Perhaps, then, before we move it, is the first aid clinic on the

11 map as we view it now, Doctor? If so, if you could mark that one on this

12 version, and then we'll bring up another version to mark the Dobrinja

13 Hospital. If you could mark it with an F for "first aid," that would be

14 appreciated.

15 A. [Marks].

16 Q. Okay. Thank you.

17 MS. MARCUS: So may I tender this map, then, and then call up

18 another one a bit farther to the left to cover Dobrinja.

19 JUDGE ROBINSON: Yes. We will admit it.

20 MS. MARCUS: Thank you.

21 THE REGISTRAR: Your Honours, this will be Exhibit P104.

22 JUDGE ROBINSON: We will break for 20 minutes.

23 --- Recess taken at 12.20 p.m.

24 --- On resuming at 12.44 p.m.

25 JUDGE ROBINSON: Yes, Ms. Marcus.

1 MS. MARCUS: Thank you, Your Honour. I apologise for the glitch

2 with the maps. We've now clarified everything, and so I would like to

3 request, if possible, that we withdraw the previous one and we begin the

4 marking process, which will not take long, on the clear map which is now,

5 I'm told, 65 ter number 2872.

6 JUDGE ROBINSON: Yes. Let that be done.

7 MS. MARCUS: Thank you. Could the court officer just zoom

8 slightly, just exactly from this position, but just zoom in slightly.

9 Okay. Let's try it like this. Thank you. Okay.

10 First, may I just move to admit the map, the entirety of the map,

11 as an exhibit first. I've been told this has not yet been done.

12 JUDGE ROBINSON: Yes.

13 THE REGISTRAR: Your Honours, that will be Exhibit P104.

14 MS. MARCUS: Thank you.

15 Q. Dr. Nakas, I apologise, we're going to repeat the exercise. Could

16 you kindly point to the location on the map of the State Hospital and mark

17 it with an S, please.

18 A. [Marks].

19 Q. Could you point out the location of the Kosevo Hospital, which you

20 said is the same as the University Medical Centre, and mark it with both a

21 K and a U, please.

22 A. [Marks].

23 Q. Thank you. Could you point out the location of the Dobrinja

24 Hospital and mark it with a D.

25 A. [Marks].

1 Q. And the first aid clinic, please, and mark it with an F.

2 A. [Marks].

3 Q. Thank you very much.

4 MS. MARCUS: May I tender this as an exhibit.

5 JUDGE ROBINSON: Yes.

6 THE REGISTRAR: Your Honours, that will be Exhibit P105.

7 MS. MARCUS:

8 Q. Dr. Nakas, between August 1994 and November 1995, was the State

9 Hospital a military or a civilian facility?

10 A. In this period the State Hospital was a civilian facility, just as

11 it was since the beginning of 1992.

12 Q. Did it ever change back to a military hospital?

13 A. No, it didn't.

14 Q. How did the knowledge and experience as a military hospital impact

15 your work during the war period?

16 A. It certainly had great impact. As a military hospital, we had

17 mandatory training every year where we learned how to work in the field.

18 Most of us were members of reserve units that set up war hospitals. Most

19 of us also were very well familiar with war medicine and certain

20 doctrinary principles applicable in this field of medicine, which greatly

21 helped us to organise the work of the hospital in the period when it was

22 operating without any normal conditions for work.

23 Q. Could you possibly provide an example of a skill or experience

24 that you learned from the military experience that you applied later

25 during the war?

1 A. For example, one of the training courses that we underwent as

2 members of units was survival under impossible conditions or working with

3 reduced resources, whether it be medicines or fuels and things like that.

4 So this training in finding alternative solutions helped us to cope with

5 that.

6 The second thing that helped us was the already-adopted principle

7 of the triage of patients who were being treated under such conditions by

8 abiding to certain principles that provide that first aid and surgical

9 assistance is given to those who needed it most, and they were classified

10 as the so-called lost cases. And that was really helpful in our

11 day-to-day work in the years between 1992 and 1995.

12 Q. Doctor, from the time after the hospital became a civilian

13 facility, did you treat only civilian patients?

14 A. No. Even before, although we were a military hospital, around 65

15 per cent of our capacity was used by citizens of Sarajevo and inhabitants

16 of Bosnia and Herzegovina. From 1992 onwards, our services were also used

17 by civilians and the civilian population of the city of Sarajevo,

18 including the people who were mobilised to the armed forces of

19 Bosnia-Herzegovina which we identified as members of the armed forces.

20 Q. Were there any military facilities of any kind near the hospital

21 through the period of 1994 and 1995?

22 A. No. There was not a single military-related facility in the

23 vicinity of the hospital.

24 Q. Were there any military facilities in the hospital?

25 A. Within the compound of the hospital, in 1992, some of the

1 facilities were mobilised for treatment of members of the 1st Corps of BH

2 army, that is to say, for their rehabilitation after surgeries. But this

3 was a purely medical unit which provided the continuation of the treatment

4 of those who did not need to be hospitalised.

5 Q. Did this rehabilitation centre exist between August 1994 and

6 November 1995?

7 A. Yes, until the end, and later on it continued to function as that

8 in the area.

9 Q. Were there any armed ABiH soldiers in the rehabilitation centre?

10 A. The basic principle applicable to all military facilities that was

11 in force in a certain period was that no armed persons were allowed to be

12 inside the hospital. And also the security officers that were assigned to

13 the hospital by the police were totally unarmed, which means that the

14 hospital was secured by unarmed personnel.

15 Q. Just to clarify, Doctor, that includes the rehabilitation centre

16 as well?

17 A. Yes, that's true.

18 Q. Dr. Nakas, could you kindly describe for the Court the layout of

19 the State Hospital for us.

20 A. The State Hospital is a facility that had been built for this

21 specific purpose, and it's a compact complex composed of four main

22 buildings built and conjoined.

23 The main building, which has 12 storeys, is for in-patients, and

24 there are operating theatres there. Another annex, with four storeys, was

25 also intended for hospitalisation of patients. And there was another two

1 buildings for diagnosis, and an outpatient clinic; each of these buildings

2 had three storeys. And we also had some auxiliary facilities, such as a

3 kitchen, et cetera, which were on the ground floor of the main building.

4 Q. Were all three buildings -- sorry, all four buildings operational

5 and used to provide medical care during the period between August 1994 and

6 November 1995?

7 A. The basement rooms, the ground floor and the first, possibly the

8 second floors of all the buildings were being used as the area for

9 providing medical care and treatment. All the other rooms above the

10 second floor which in that period were subjected to firing and had been

11 seriously damaged earlier, especially the building with 12 storeys, were

12 abandoned temporarily and were not being used either by the patients or by

13 the staff. The aim was to avoid any purposeful or accidental injuries and

14 wounding of the patients and the staff.

15 Q. From which direction, Doctor, had those floors been destroyed?

16 A. That's the southern part facing Trebevic and the hill called Vraca

17 and Grbavica.

18 Q. And do you know who was in control of that area?

19 A. From 1992 until 1995, these areas were under the control of the

20 army of Republika Srpska.

21 Q. Did any of those floors that had been destroyed become operational

22 again in the period between August 1994 and November 1995?

23 A. The frontal part on the southern part were never operational

24 throughout this whole period, 1992-1995. Only on the opposite side of the

25 central building we managed to make some floors above the fourth floor

1 operational when we had a larger influx of patients, because it's

2 completely turned the opposite way and free from any fire.

3 Q. Was the hospital ever hit by shells between August 1994 or

4 November 1995?

5 A. In that period, 1994 and 1995, there were some dozen hits either

6 at the hospital or landing within the compound of the hospital.

7 Q. Was the hospital ever subjected to sniper fire in that period?

8 A. Well, yes, it was, on several occasions. And the consequences

9 were that a pregnant woman was wounded in her room immediately before she

10 gave birth; another nurse was also wounded in this annex building which

11 had four storeys.

12 Q. From which direction was the hospital hit by shells and sniper

13 fire in those cases you just mentioned?

14 A. It came from Trebevic, Vraca, and Grbavica.

15 Q. And who was in control in that area?

16 A. As far as I know, and other people's knowledge, it was the army of

17 Republika Srpska.

18 Q. Doctor, you described moving the patients from the main building,

19 which had been partially destroyed, into lower floors of that building and

20 the other three buildings. Did this help protect the patients and the

21 staff?

22 A. Absolutely, yes, given that throughout this period, between 1992

23 and 1995, the hospital was hit with over 200 missiles and it was subjected

24 to direct shooting. Only one person actually lost his life, in addition

25 to four or five wounded people among the patients and the staff, which I

1 deem, in the context of everything that had been happening, was a

2 success. Our attempt to safeguard the patients and put them in the safest

3 possible area proved to be a successful one.

4 Q. With regard to the areas of the hospital which were operational in

5 this period, were they protected from shelling, completely protected from

6 shelling?

7 A. Conditionally speaking, our thinking was always that they were,

8 but theoretically speaking they weren't. Any part, any person in Sarajevo

9 could have been the target. These areas were protected inasmuch as there

10 were buildings in front of it, and the walls of the basement were a little

11 bit thicker than the other walls. But there was a possibility even for

12 those areas to be hit.

13 Q. Dr. Nakas, precisely what dates did you spend working in the State

14 Hospital between August 1994 and November 1995?

15 A. I was also the director of the hospital in that period, and

16 practically my working time was the whole week round. Sometimes I stayed

17 in hospital overnight. I only went home during the weekend, on other

18 days, whenever it was possible, which means that I spent much more time in

19 the hospital and I dedicated my time more to my work than I did to my

20 family.

21 Q. As director of the hospital, could you describe, please, what were

22 your duties?

23 A. My main duty was to run the hospital, to organise the work of

24 various units, and to make sure that these units are properly supplied

25 with all the necessary material, fuel, medicine, food, and properly

1 equipped or manned with professional staff.

2 I was also responsible directly in my work to the Minister of

3 Health on whose decree I had been appointed to this post, as well as to

4 other institutions that, in a certain way, were taking care about the

5 supplies. That includes the UNHCR, the WHO, and other international

6 institutions.

7 Q. With regard to your work in the State Hospital, what were your

8 obligations with regard to documents and records and administration?

9 A. We continued to keep the records according to the system that had

10 been set up in the earlier hospital. We used the same protocols, and it

11 was our obligation to register all of the patients that came to see us or

12 that came to be treated; and also to produce statistical data that were

13 then supplied to the Ministry of Health and the public institute of

14 health, sometimes to military observers as well, and also to

15 representatives of UNPROFOR, the WHO, and the UNHCR.

16 In other words, our administrative work was organised in such a

17 way that we tried to do our best to the extent that it was possible under

18 the circumstances. We just had basic implements to do that, which means

19 that we used ordinary pencils and typewriters.

20 Q. You mentioned earlier your broader role in the medical arena in

21 Sarajevo. Could you give us a brief description of your role in that

22 regard.

23 A. From day 1 of my appointment to the post of director of the State

24 Hospital of Sarajevo, which was the 25th of May, 1992, I was also

25 appointed advisor to the Ministry of Health who was responsible for

1 organising health care. And later, in 1992, I was appointed coordinator

2 for receipt and distribution of humanitarian aid. This appointment was

3 made by the then Minister of Health, and I kept this position until the

4 end of 1995.

5 In addition to that, I was a member of the team cooperating with

6 the UNHCR, with the WHO, in planning and organising humanitarian aid in

7 the domain of medicines and medical supplies.

8 And on several occasions I was member of the delegation of the

9 Ministry of Health in the negotiations being held in Sarajevo and in

10 Geneva, to which we tried, with representatives of Republika Srpska, to

11 find some sort of way of providing the protection for patients.

12 Q. Doctor, earlier you spoke about problems in Sarajevo with regard

13 to utilities - water, fuel, heat, electricity. Could you tell us how

14 these problems affected the work of the hospital, specifically between

15 August 1994 and November 1995?

16 A. Absolutely negative, because we could not respond in a proper way

17 to the requirements, which means that on most occasions we didn't have

18 enough electricity for all the machines; for instance, an X-ray machine,

19 which was never once switched on between 1992 and 1995. That also applies

20 to lifts.

21 The preparation of food throughout the whole war period was done

22 by using firewood or gas. Also, the laundry services and sterilisation

23 was done by using firewood and gas, if they were available, too.

24 We had a very difficult problem with water supply, which was in

25 terrible shortage in the city, and the utility company called Rad

1 provided us occasionally with lorry tankers filled with water. And we

2 also built in a few small tanks in which we could preserve water for two

3 or three days in order to allow the hospital to run. Only the most vital

4 part of the hospital were provided with electricity and the minimal

5 quantities of water.

6 I would just like to add that throughout this period there was no

7 regular heating in the hospital except the one that we tried to install by

8 using gas as an open source of energy, which was so risky that I really

9 don't understand how part of this hospital didn't blow up, because the gas

10 was often cut off. There were leakages and things like that. So if

11 anyone came with an open fire, it could have been disastrous; but luckily

12 this didn't happen.

13 Q. How did you access to medicines?

14 A. As I said, in that period I was a coordinator for this

15 humanitarian aid, and we had certain mathematical calculations with

16 respect to the number of surgeries and the patients treated on the basis

17 of which we distributed medicines and medical supplies between two major

18 institutions in Sarajevo, i.e., the Medical Clinical Centre and the State

19 Hospital, when it comes to hospitals; and to an outpatients' hospital and

20 emergency wards which received supplies 100 per cent only by the WHO, who,

21 since 1992, undertook the obligation to provide and distribute the

22 international aid in medicine and other supplies that arrived via the

23 airport.

24 Q. Between August 1994 and November 1995, would you say it was safer

25 to be in the hospital or to be at home?

1 A. For all intents and purposes, it was just all the same, whether

2 you were in the hospital or at home. The only less safer place was to be

3 outdoors or to go to work. We tried to solve that by applying the

4 schedule in which people remained in the hospital between three and seven

5 days. This shift helped people to avoid unnecessary risk of going to and

6 from work. So the conditions were basically the same in the hospital or

7 in your own home.

8 Q. Was there a connection between the political situation and the

9 number of casualties you received in the period between August 1994 and

10 November 1995?

11 A. We sometimes discussed among ourselves, and we used to say, Oh,

12 yes, the negotiations are starting again and the number of casualties is

13 going to increase. It did so happen that after failed negotiations the

14 level of shelling increased or the level of sniping increased; or if some

15 territories outside Sarajevo were lost elsewhere in Bosnia-Herzegovina, we

16 could have expected more intense shelling or sniping.

17 Q. How was the hospital notified if a large number of casualties was

18 about to come in?

19 A. We never received any regular notices except for information that

20 was distributed after an event took place. We received them either over

21 the phone or through the media - radio, television, for those lucky ones

22 who were able to watch TV. And those who arrived first to the hospital

23 were the ones who were the messengers and who told us that we should be

24 expecting a large number of injured people coming to the hospital.

25 So there was no early-warning system that could have given us

1 timely information about a larger number of incoming patients.

2 Q. Dr. Nakas, are you familiar with the hospital records from the

3 State Hospital?

4 A. Yes.

5 Q. And are you familiar with the hospital records from other medical

6 facilities in Sarajevo?

7 A. Working as the director of the hospital, and within the scope of

8 my responsibility towards the Ministry of Health, I had an opportunity to

9 familiarise myself with the medical records and I am able to recognise and

10 identify them.

11 Q. You have reviewed two binders of hospital records prior to coming

12 to court today; is this correct?

13 A. Yes, it is.

14 Q. For each of those binders you were provided with a spreadsheet; is

15 that correct?

16 A. Yes.

17 Q. And you were asked by us to review each document contained in each

18 binder very carefully. Did you do so?

19 A. Yes, I did.

20 Q. For each of those hospital records you reviewed, you were asked to

21 fill in a column which is labelled "Brief Description of Injury"; is this

22 correct?

23 A. Yes, it is.

24 Q. And did you fill in that column for each record?

25 A. Yes, whenever it was evident from the documents to put such an

1 assertion.

2 Q. At the completion of your review, you were asked to sign the

3 spreadsheet with an affidavit affirming that the contents of the binders

4 were true and accurate hospital records; is this correct?

5 A. Yes, and I signed this affidavit.

6 MS. MARCUS: Your Honours, I'm going to ask the spreadsheet to be

7 shown, but I'd like to request, if possible, that it not be broadcast.

8 JUDGE ROBINSON: Yes.

9 MS. MARCUS: May I request the court officer, please, to pull up

10 the first spreadsheet, which is 65 ter number 2868, but not to broadcast

11 it, please. Can you please go to the last page.

12 Q. Dr. Nakas, do you see your signature on the bottom of this

13 spreadsheet?

14 A. I do.

15 Q. Can you confirm that with your signature you are saying that the

16 documents contained therein are true and accurate hospital records?

17 A. Indeed.

18 MS. MARCUS: May I tender this spreadsheet into evidence, please.

19 [Trial Chamber confers]

20 JUDGE ROBINSON: It can be tendered into evidence, yes. The

21 question is whether it should be under seal.

22 Mr. Tapuskovic.

23 MR. TAPUSKOVIC: [Interpretation] Your Honours, the Defence would

24 like to know how many documents contain medical examinations, diagnosis,

25 and everything that the doctor has confirmed. How about that in relation

1 to the number of documents which he reviewed but never produced? He just

2 signed them and thereby authenticated them, certified them. Can we please

3 have some sort of a ratio established between the two different types of

4 documents? Because I believe this is something that we ought to know.

5 JUDGE ROBINSON: How many documents relate to examinations that he

6 actually carried out and how many relate to documents that he reviewed,

7 you say, but never produced.

8 Are you able to help us with that? Yes?

9 THE WITNESS: [Interpretation] Nearly 100 per cent of the documents

10 are those that I reviewed. I was not involved directly in treating

11 patients. Therefore, you will hardly find any of my own findings among

12 these documents. These are documents that I identified as belonging to

13 the State Hospital or the clinical centre or some other health institution

14 that was operating in the city of Sarajevo at the time, meaning I did not

15 personally conduct a single medical examination in any of these files, nor

16 did I sign a single finding, a diagnosis.

17 JUDGE ROBINSON: I understand, yes.

18 MR. TAPUSKOVIC: [Interpretation] In that case, the position of the

19 Defence team is as follows: Every time there's a medical document being

20 shown to the Chamber, there should be someone able to testify to that

21 document in person, whoever produced it - that's a matter of principle - a

22 doctor who conducted a medical examination, who reached certain findings,

23 who provided an opinion and wrote down whatever was deemed necessary. But

24 if the witness merely put a stamp on these or identified the documents as

25 belonging to a certain hospital or health institution in the city of

1 Sarajevo, then I think that should be under seal.

2 [Trial Chamber confers]

3 JUDGE ROBINSON: The point you have raised, Mr. Tapuskovic, is not

4 about the admissibility of the document. We admit it. The question of

5 the weight that we attach to it is another matter.

6 What I wanted to find out from Ms. Marcus: Are you requesting

7 that the document be under seal?

8 MS. MARCUS: Yes. Yes, I'm sorry, I failed to mention that. I

9 would request that the document be admitted under seal.

10 JUDGE ROBINSON: Why?

11 MS. MARCUS: The document contains the names of some individuals

12 who have been granted protective measures, and the nature of

13 descriptions -- these documents relate to our scheduled sniping and

14 shelling incidents, and therefore a connection could be drawn which might

15 reveal the identities of certain individuals.

16 JUDGE ROBINSON: Yes. It's to be put under seal.

17 MS. MARCUS: Thank you.

18 THE REGISTRAR: Your Honours, that will be Exhibit P106 under

19 seal.

20 JUDGE MINDUA: [Interpretation] The Trial Chamber is called upon in

21 relation to the indictment to establish the facts and the responsibility

22 of the perpetrators.

23 You have spoken about the hospital that was hit by various -- by

24 sniping and shelling, and you said that the storeys that were destroyed

25 were facing Grbavic -- the Vraca hill or mountain and Grbavica, which were

1 under the control of the army of Republika Srpska. Do you mean by that

2 that the firing positions came from -- or were those of that army? As

3 head of the hospital, did you ask for investigations to be carried out?

4 Did you carry out such investigations? Did the police do so? Did

5 international organisations do so, in order to know exactly what was the

6 origin of the shots and the shelling? Because as far as I can see, you

7 haven't mentioned that so far.

8 THE WITNESS: [Interpretation] In 1992, when UNPROFOR was a lot

9 more active, UNPROFOR representatives would come every time we called in

10 order to, in their own way, try to find out where the hospital had been

11 hit from. But we never received any reports because they would normally

12 keep those. We never received any official confirmation or any results

13 showing who had hit the hospital or where exactly the hospital had been

14 hit from.

15 What I am telling you is based on my own personal experience. I

16 spent four years at the hospital. My office faces the hill of Vraca, just

17 across the way. My secretary was hit by a sniper back in 1992, and in

18 1993 I survived barely, by the skin of my teeth, being hit by a bullet.

19 JUDGE MINDUA: [Interpretation] Thank you.

20 MS. MARCUS: May I request the court officer to pull up the second

21 spreadsheet. That's 65 ter number 2869, please. Sorry, I'm not receiving

22 it. Okay. Thank you. Can I request again that we turn to the last page.

23 Q. Dr. Nakas, do you see your signature on the bottom of this

24 spreadsheet?

25 A. Yes.

1 Q. And can you confirm that, with your signature, you are saying the

2 documents contained therein are true and accurate hospital records?

3 A. Indeed, I can.

4 Q. Doctor, I'm going to pull out two hospital records as examples to

5 show the Court the kinds of documents you reviewed.

6 MS. MARCUS: May I request the court officer to pull up 65 ter

7 number 1484, which I believe is also admitted as Defence Exhibit D19. And

8 I'd like us to turn to the last page of that, please, when you do so.

9 May I also request, I'm sorry, that the second spreadsheet also be

10 tendered as an exhibit.

11 THE REGISTRAR: Your Honours, that will be Exhibit P107 under

12 seal.

13 MS. MARCUS: Under seal, yes, thank you.

14 Okay. This should be ERN RR251213. And I have the English

15 version. Perhaps we could put the English version on the ELMO and then

16 English speakers could call up the ELMO.

17 JUDGE ROBINSON: Mr. Tapuskovic.

18 MR. TAPUSKOVIC: [Interpretation] I don't see the document that the

19 Defence ...

20 MS. MARCUS: Yes. In fact, that's not the document I was

21 referring to. That's ...

22 I apologise. Those were the numbers I had on the documents. It

23 should be a certificate, a forensic pathology certificate.

24 MR. TAPUSKOVIC: [Interpretation] Who is this for?

25 MS. MARCUS: It's for Nermin Divovic.

1 JUDGE ROBINSON: It may be that we lose as much time with the

2 technology as we did before.

3 MS. MARCUS: Yes, I apologise. I have a copy in B/C/S and a copy

4 in English. Can we put both of them on the ELMO? No? Perhaps we can

5 hand out the English version and put the B/C/S version on the ELMO. Would

6 that be acceptable, Your Honours?

7 JUDGE ROBINSON: Yes.

8 MS. MARCUS: I have copies of the English version here.

9 JUDGE ROBINSON: Mr. Tapuskovic.

10 MR. TAPUSKOVIC: [Interpretation] Your Honours, is this is exhibit

11 that has been tendered by the Defence? You said D19. I don't remember

12 that particular exhibit. I'm not sure if I understand you correctly.

13 JUDGE ROBINSON: I'll just ask Ms. Marcus to clarify.

14 MS. MARCUS: I was told that this is one of a set of hospital

15 records relating to Dzenana Sokolovic and Nermin Divovic which, I was

16 told, were admitted as D19. I also have it as 65 ter number 1484. This

17 is one page of a document with a number of pages.

18 MR. TAPUSKOVIC: [Interpretation] I must offer my position in

19 relation to this, because my co-counsel was in charge of the

20 cross-examination and she had to leave for Paris. I would like to ask

21 permission from the Chamber to address this at a later stage. I have a

22 rough idea of what this was about, but I hope that Monday will not be too

23 late for a position on our part, Your Honours.

24 JUDGE ROBINSON: What position? What is to be addressed? Are you

25 objecting to it or --

1 MR. TAPUSKOVIC: [Interpretation] No, no. I'm wondering if it was

2 the Defence that has tendered this document. I didn't see it on our list.

3 JUDGE ROBINSON: Mr. Registrar, can you help us?

4 You're saying it's not your document.

5 THE REGISTRAR: For Exhibit D19, I have on record a police report

6 dated 18 November 1994, consisting of 17 pages.

7 MR. TAPUSKOVIC: [Interpretation] And this is the 16th of March.

8 That's the date, what I have. Therefore, I can't --

9 JUDGE ROBINSON: It may be that you are mistaken then, Ms. Marcus.

10 MS. MARCUS: Your Honours, my understanding is that some of the

11 criminal investigation reports also contain the hospital records and

12 medical records. For the purposes of this exercise with the doctor, of

13 course, we have extracted just the hospital records portion because they

14 come from the hospital. The 17 pages -- I'm sorry, I don't have the

15 entirety of the exhibit in front of me. It's quite possible that a

16 17-page criminal investigation report did contain this hospital record,

17 but I could verify that for you, if you like, and get back to you.

18 JUDGE ROBINSON: Yes. How much longer will you be? Because I'm

19 trying to see if this is a matter that could be dealt with later.

20 MS. MARCUS: Yes. I certainly will use up the rest of this

21 session and continue --

22 JUDGE ROBINSON: Well, move on and we can come back to it. We can

23 have it clarified. Perhaps you can meet with counsel and sort it out with

24 the help of the court deputy.

25 MS. MARCUS: Sure. This is -- sorry, just to clarify,

1 Mr. President. This document is one of the medical records that was

2 reviewed by Dr. Nakas. It is contained in the spreadsheet. May I proceed

3 to question the doctor in relation to this document as an example of the

4 hospital records that he authenticated?

5 JUDGE ROBINSON: Yes.

6 MS. MARCUS: Okay. Thank you.

7 Can I confirm that the English speakers have an English copy?

8 Q. Dr. Nakas, could you please tell us what this document is.

9 A. This is an extract, an excerpt from a protocol, a post-mortem of

10 Divovic Nermin. The date is the 18th of November, 1994. It was signed by

11 the Chief of the Forensic Medicine Institute, Assistant Dr. Ilijas Dobrac.

12 Q. Can you tell the Court the diagnosis of the injury?

13 A. The diagnosis stated here is about a wound, an entry and exit

14 wound, inflicted by a firearm to the head.

15 Q. Does the document indicate the location of the entry and exit

16 wounds?

17 A. Yes. The diagnosis is followed by this specification: The entry

18 of the bullet was on the right cheek, and the exit point was on the

19 left-hand side of the nape of the patient's or the deceased's neck.

20 Q. Thank you.

21 MS. MARCUS: I'd now request the court officer to pull up another

22 page in that same 65 ter number. The ERN I have is RR251208. I have a

23 hard copy for the ELMO, in case of need for everybody, of the English.

24 Can I request that the English version be placed on the ELMO. Can I note

25 that the English is on the second page. The English version of this page

1 is the second page of the English -- yes, thank you.

2 Q. Doctor, can you tell us what this document is?

3 A. This is a case history from the University Medical Centre Sarajevo

4 produced by the abdominal surgery ward of that hospital. The file is in

5 relation to patient Dzenana Sokolovic.

6 Q. Can you tell from this document what the date of admission was?

7 A. This patient was admitted on the 18th of November, 1994, to the

8 University Medical Centre.

9 Q. Can you tell us a bit about the injuries sustained by this

10 patient, please.

11 A. The diagnosis stated here indicates that this was a gunshot wound

12 to the front abdominal wall, and it was inflicted by a firearm.

13 Q. Thank you.

14 MS. MARCUS: Now, turning to the next page in B/C/S -- in both

15 B/C/S and English. The next page, please. Okay.

16 Q. Doctor, can you tell us what this page refers to?

17 A. This page is the other page from the case history. We see

18 anamnesis. There was an interview that was conducted with the patient,

19 and the finding relating to the patient's health upon admission.

20 Q. Could you please read to us the finding under anamnesis?

21 A. "Patient admitted to the clinic after sustaining an injury by a

22 sniper," and then there's a word that's illegible, "in the area." A

23 sniper shot a bullet I think in the museum area at about 1300 hours.

24 It's a little difficult to read this portion because the copy's

25 very poor.

1 MS. MARCUS: Can I request the court officer to scroll down a bit

2 further down on the page. Thank you.

3 Q. A bit further down, Doctor, there is something relating to the

4 entry and exit wounds. Can you see that line, and could you read that out

5 for the Court, please.

6 A. This line is just below this sentence that says: "Abdomen, down

7 below the chest, soft to the touch, painful in the lower area. Liver and

8 spleen not examined by touch. And then paramedially to the left, an entry

9 wound 0.5 centimetres, bleeding; and to the paramedian right, an exit

10 wound 3 times 2 centimetres" - I think that's what it says - "bleeding."

11 "Paramedian" means from the central axis of the body to the let

12 or to the right.

13 MS. MARCUS: May I please request the court officer to turn to the

14 next page in B/C/S, but it still begins on the same page in English and

15 then continues. In other words, the next B/C/S page is divided on the

16 English version, half and half. I see that version in B/C/S is very

17 poor. I have a hard copy in case this one is illegible for the doctor.

18 Q. Doctor, what is this document that we're looking at now, please?

19 A. This is the result of a surgery. The progress of surgery is

20 described here. The patient is Dzenana Sokolovic. It says:

21 "Surgery was performed on the 18th of November, 1994, because a

22 wound was found. A laparotomy was performed. The front abdominal wall

23 was opened down the middle in order to examine the abdominal cavity.

24 Drainage was conducted of the abdominal wall."

25 The doctors' names and the assistants' names are stated --

1 Q. Sorry --

2 A. -- and the progress of surgery.

3 Q. I'm sorry to interrupt you, Doctor. I just want us to turn to the

4 next page in the English because that's where the doctor is about to read

5 from.

6 JUDGE ROBINSON: And we're going to have to stop. We're past the

7 time to stop.

8 MS. MARCUS: May I conclude simply with this document?

9 JUDGE ROBINSON: Yes.

10 MS. MARCUS: Sorry, I believe the English is on the ELMO. Is that

11 not right? Can you turn to the next page in the English, please? You

12 did? I'm sorry. I see, I'm sorry. I apologise.

13 Q. Doctor, can you please continue to read this part about the

14 general medical results.

15 A. This is about the progress of the surgery.

16 "Abdominal layers were opened by midline laparotomy," which gives

17 you access to the abdominal wall, and then "all the layers, the

18 subcutaneous layers, were lifted in order to inspect the liver, the fourth

19 segment. And there was a contusion there resulting from a blast, from an

20 impact, whereas no pathological changes to any other organs were

21 established. After that the wound was stitched up, dressed and trained."

22 It continues to describe the progress of the illness, the cursis

23 morbi. The condition of the wound is described and the general condition

24 the patient upon discharge is also described.

25 Q. Doctor, on which side of the body is the liver?

1 A. The right side.

2 Q. And what does a blast injury mean?

3 A. Blast syndrome is a syndrome that occurs as a result of an impact,

4 a minor explosion or a penetration of a person's body. It is normally the

5 result of pressure that is applied against any surrounding tissue.

6 JUDGE ROBINSON: We are going to stop now. When we go beyond

7 1.45, we not only encroach on the time of the other trial but also on the

8 very short time that Judge Mindua has for a break, because Judge Mindua is

9 sitting at 2.15. So I will not continue.

10 We will resume on Monday, at 9.00 a.m.

11 --- Whereupon the hearing adjourned at 1.50 p.m.,

12 to be reconvened on Monday, the 29th day of

13 January, 2007, at 9.00 a.m.

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