1 Tuesday, 24 April 2007

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 2.17 p.m.

6 JUDGE ROBINSON: Mr. Sachdeva.

7 MR. SACHDEVA: Good afternoon, Mr. President, Your Honours.

8 WITNESS: RICHARD HIGGS [Resumed]

9 Examination by Mr. Sachdeva: [Continued]

10 Q. Good afternoon, Mr. Higgs.

11 A. Good afternoon.

12 Q. You may recall yesterday we closed by discussing the Markale

13 incident and we had just discussed the direction of fire and the angle of

14 descent and were just about to move on to the possible positions -- the

15 possible firing positions. If you could -- you still have your reports, I

16 see.

17 A. Yes, I do.

18 Q. If you could move to pages -- well, firstly page 13 in the

19 English.

20 JUDGE HARHOFF: In which report?

21 MR. SACHDEVA: This is the Markale report. That's 65 ter 03119.

22 I believe that's Exhibit P588.

23 Q. Now, Mr. Higgs, in your report you have indicated that there were

24 four possibilities the mortar could have been fired from. If you see

25 charge one, 900 metres; charge 2, 1600 metres; charge 3, 2.400 metres; and

1 charge 4, 3.000 metres. Out of those four ranges, which, in your opinion,

2 was the distance from where the mortar was fired?

3 A. From looking at the case, the most likely charge would have been

4 charge 3, in a range of approximately 2400 metres.

5 Q. Now, if I was to ask you to just mark on the map that is on the

6 next page the rough locations at these distances, would you be able to do

7 that, at least for charge 1, charge 2, and charge 3? And I'm going to

8 ask you some further questions.

9 A. Yes, I would.

10 MR. SACHDEVA: If we could move to the next page, please, page 13

11 and there's a map. And if that map could be enlarged.

12 Q. You have the map there on the screen, Mr. Higgs?

13 A. Yes, I do.

14 Q. And that line -- well, is that the direction from which the shell

15 came from, the 170 degrees that you concluded?

16 A. Yes, that is the approximate direction that the round came in

17 from, yes.

18 Q. Okay. Firstly, and if you require a ruler, I think there is one

19 in the court. Could you mark where 2400 metres would be from the incident

20 location that is the marketplace.

21 A. 2400 metres would be somewhere in that general area.

22 Q. And the 1600 metres, please.

23 A. Would be in that area.

24 Q. And the 900 metres.

25 A. In that area there.

1 Q. The red line, you see the red dotted line, to your knowledge what

2 is that?

3 A. The red dotted line and the blue dotted line that run parallel to

4 each are is the position of the confrontation line.

5 Q. And the territory that is below the red dotted line therefore to

6 the bottom of the picture, which party to the conflict controlled that

7 territory ?

8 A. Would be the Serb forces in that area.

9 Q. And above the blue line, would that be the ABiH forces?

10 A. Correct.

11 Q. Now, do you also -- from your review of the material, are you able

12 to roughly locate the position of the UN observer at that time? And if

13 you can, just please put a cross.

14 A. The UN observer was on the high ground in that general area.

15 Q. Now, you said your conclusion was that it came from 2,400 metres

16 away. Why do you say that?

17 A. Having ascertained the direction, then by looking at the map, if

18 the round had been fired from 900 metres, this puts that location very

19 close to an urban area where there would be lots of people who could have

20 heard the firing, and there was no report that anyone heard that firing.

21 Then when you come back to 600 metres it places it right between the

22 confrontation lines, which would be totally tactically sound for the

23 position of a mortar and again very close in direct line of hearing from

24 the UN observer, so you should have heard it. And then when you back to

25 the area of 2400, you are now coming back to the more ideal position where

1 a mortar would want to be, on the higher ground. It is far enough away

2 from the confrontation line for tactical reasons for survivability. Plus,

3 because it is up there in the hills, steep hills, it is shrouded from the

4 UN observer by these hills, and so therefore, of course, that would reduce

5 the chance of any sound being heard when fired.

6 Q. I want to just concentrate on a few factors that you mentioned in

7 your answer. Firstly let's talk about the sound. In your experience, how

8 far can one be from a 120-millimetre mortar, given that the conditions are

9 fair, to hear it being fired?

10 A. In fair conditions you could hear the sound probably up to three

11 to even four kilometres away.

12 Q. And again, the UN observer, roughly on this map, how far was the

13 observer from -- let's say if it was fired from 1600 metres?

14 A. Only about one kilometre away from that line of fire.

15 Q. And when you said that --

16 JUDGE ROBINSON: Would intervening landscapes such as hills make a

17 difference?

18 THE WITNESS: Yes, they do. Obviously hills between the firing

19 and the person hearing would make a big difference. But on looking at the

20 map here, between the hill that the UN observer was on, the range is of

21 900 and 1600. There is not a hill higher in between that particular line

22 of fire. Only when you go beyond 1600 do you come into the taller hills

23 and the mountain ranges.

24 MR. SACHDEVA:

25 Q. Mr. Higgs, you said that if it was at 1600 metres it would be

1 tactically unsound. Just explain why you think it would be tactically

2 unsound to place mortars in that position?

3 A. That position there would put this particular mortar either right

4 on the front line or even in between the two front lines. For such a

5 valuable asset, to place it in such a vulnerable position would not make

6 tactical sense. The 120-millimetre mortar is a large piece of ordnance.

7 Its ammunition is heavy. Ideally it is resupplied by a vehicle or many,

8 many people; and to place it in that location just would not be sensical.

9 Q. So given these factors that you have testified about today and

10 also in your report, is it your firm conclusion that it was -- the most

11 likely firing position would have been at 2.400 metres away?

12 A. Yes, that's correct.

13 Q. And who controlled the area, that area?

14 A. That area is to the -- from this picture to the south of the red

15 line so that would be in the Serb-held territories.

16 Q. Before I move on to the next incident --

17 JUDGE HARHOFF: Excuse me.

18 MR. SACHDEVA: Let me ask you this first --

19 JUDGE HARHOFF: Before we move on to that next incident that you

20 wish to mention, maybe we should ask the witness whether the Markale

21 market is actually visible from that point of fire, because as the witness

22 explained to us yesterday, it would be difficult to hit a particular place

23 if you had not any observers downtown and if you cannot see the

24 marketplace from the hills. So it is of importance to ascertain whether

25 the market could be seen.

1 MR. SACHDEVA: Yes, Your Honour.

2 Q. Mr. Higgs, well, firstly just answer that question: In your view

3 is it possible to -- for the mortar battery operator to see the

4 marketplace in that location of 2.400 metres?

5 A. From that area, you cannot see the market itself because it is

6 hidden by the taller buildings all around it. But you can identify the

7 taller buildings very easily. For instance the cathedral is not far from

8 that location and the other taller buildings. So you could use those as

9 reference points to assist you, but you cannot see the marketplace itself.

10 JUDGE HARHOFF: I understand that. But could you see the downtown

11 area from there or would it be hidden by hills?

12 THE WITNESS: No. You can see the buildings, you can see the

13 downtown area. The area of 2400, that is the tallest hill in that area.

14 So you're looking down on to the city.

15 JUDGE HARHOFF: Thank you.

16 MR. SACHDEVA:

17 Q. And, Mr. Higgs, from your evidence yesterday, leaving aside

18 whether a target can be seen, is it your opinion - well, you've actually

19 stated your opinion, but would there have been targets that would have

20 been pre-recorded at this time of the conflict, that is August, 1995 in

21 your opinion?

22 A. Yes, in my opinion, by this stage they would have had many

23 reference points pre-recorded to make the fire more accurate and to save

24 wasting ammunition.

25 Q. And therefore, hypothetically would it still have been possible to

1 hit the market place in a single round, given the factor of pre-recorded

2 targets, in your opinion?

3 A. It is going to make the chance of doing that a lot greater. If

4 not a direct hit, then one very close could definitely be achieved.

5 Q. Now, given the fact that this was a single round at the

6 marketplace, do you have an opinion as to whether there was a military

7 objective to this -- to this course of action?

8 A. You cannot gain any definite military action from firing just a

9 single round. The military have what is known as harassing fire, which is

10 designed to prevent an enemy from basically moving in an area, which is

11 normally a combination of rounds fired over a longer period of time, so

12 that people don't like moving around in that particular area, because they

13 don't know when the next one's going to arrive. A single round would not

14 really make that happen, so there's not a lot of military objective to be

15 gained from firing a single round.

16 Q. And, thus, with this round that was fired, what is your opinion as

17 to the -- the purpose of firing this round? What would be the, let's say

18 the intention of the person who fired the round, or the army that fired

19 the round?

20 A. Firing a single round into a, as in this case, centre of a

21 built-up area at or close to an area where civilians are known to be

22 present would probably be more on the lines of to terrorise the population

23 and to actually kill civilian casualties rather than any military

24 objective.

25 Q. And I just want to take you back very briefly to follow up on one

1 more point that His Honour Judge Harhoff asked you. With respect to

2 observers, and again generally this doesn't, as you have stated, does not

3 apply to this incident, but would an observer have to be at the target or

4 would -- or would the target have to be in the line of sight of an

5 observer, irrespective of where the observer is?

6 A. As we spoke about yesterday, if the mortar could have direct line

7 of sight itself, it could do direct fire. However, if it using indirect

8 fire, the observer could have been anywhere around the town of Sarajevo,

9 not necessarily on this line of sight at all. They could have been

10 anywhere to the north, south, east or west, because it's possible then for

11 the observer to bring fire in no matter where they are located.

12 Q. Thank you. And my last question on this incident: In your

13 opinion, was this incident the result of a static explosion at the

14 marketplace?

15 A. From looking at the patterns generated on the road, identified it

16 as a mortar round, there was no secondary marks, any secondary explosion,

17 or secondary means of ignition, which there would have been if you had

18 placed some form of explosive on a round and then placed it in that

19 position.

20 Also, if this round was put there statically, it would have to

21 have been held in some sort of frame to hold it at approximately 70

22 degrees, and there was no evidence of any secondary debris reported on the

23 site of whatever that would have been held in, and also there's been no

24 reports of somebody placing something that I have seen in the middle of

25 this road, which would have taken some time then to set up in plain view

1 of everybody prior to detonating. So, for all those reasons, I doubt it

2 very much.

3 Q. When you say secondary marks, are you saying that there would have

4 been an additional device to the actual mortar projectile that would have

5 caused marks on the -- on the crater on the ground?

6 A. Yes. If they had used a 120-millimetre bomb statically, then it

7 needed to be detonated in some way, either by placing a secondary charge

8 on the side, which would have affected the pattern tremendously, or by

9 possibly removing the fuse and placing some charge where the fuse normally

10 would have been, again wasn't the case, because the Bosnian authorities

11 found fuse fragments at the site, so the fuse was there. So for those

12 reasons, it's unlikely.

13 Q. And you said that it would have taken some time to set up in plain

14 view of everyone. How much time are we speaking about here?

15 A. That's difficult to estimate. Because, again it would have had to

16 have some sort of frame to hold the round at the particular angle,

17 pointing then the -- that particular frame into the direction that you

18 wanted the round to have come from, at the angle that you wanted to

19 represent, and then have some form of frame that holds the round that

20 isn't going to give any signs that it was even there after the round

21 exploded is not something probably you're going to set up in a couple of

22 minutes. It probably is going to take a longer period of time than that

23 so set up.

24 Q. Thank you. I'm sorry I keep saying that I'm going leave this

25 incident, but I do have one more question.

1 You said that, in your view, the location of 2.400 metres would

2 have been at a high point where the town, let's say, the centre of town

3 would have been visible. When you say "high point," does that elevation -

4 I know you've answered this before yesterday, but would that elevation

5 affect the range at which the mortar could be -- that the mortar could be

6 fired? Would it increase or decrease the range ?

7 A. It would have increased the possible range of the mortar because

8 an increasing elevation above point of impact would give the mortar a

9 slightly longer range.

10 Q. Thank you. Now, as I did yesterday with the photograph, I would

11 just like you with your pen to -- you see the arrow of 170 degrees. You

12 have the arrow pointing towards the bottom of the picture. I just would

13 like to you mark on that line the arrow from -- in the direction from

14 which the projectile came into the marketplace.

15 A. [Marks]

16 Q. Thank you.

17 MR. SACHDEVA: Mr. President, I tender this still into evidence.

18 JUDGE ROBINSON: Yes, we admit it.

19 THE REGISTRAR: As P594, Your Honours.

20 MR. SACHDEVA:

21 Q. Now, Mr. Higgs, if we can swiftly move on to the second incident,

22 and that is the one at Livanjska Street and the shelling at 1525 hours.

23 And that's contained in your second report.

24 MR. SACHDEVA: And that would be 65 ter 013120. And if we could

25 move to page 8 of the English and also page 8 of the B/C/S.

1 Q. Mr. Higgs, in this incident, this is the earlier incident at

2 Livanjska Street, do you recall whether the crater was on the pavement or

3 on the road?

4 A. On this instance, the round had landed on the pavement.

5 Q. And from the review of the photographs, were you able to come to

6 an understanding as to whether the tail-fin was lodged in the crater or

7 not?

8 A. In this particular case the tail-fin was still in the crater.

9 Q. And would the pavement have been softer or harder ground than the

10 road?

11 A. Generally the pavements, because of their construction, are

12 generally softer construction than a main road, which is probably why we

13 had the tail-fin still in the crater in this case, as opposed to the later

14 one which landed in the road when that was then not the case.

15 Q. And the fact that the tail-fin was lodged in the crater in this

16 incident, what, in your opinion, would that tend to indicate?

17 A. In conjunction with the rest of the investigation that was carried

18 out and the tail-fins being in the crater, it tends to indicate that the

19 mortar was probably fired on a higher charge.

20 Q. And just again explain, when you say "higher charge," how does

21 that affect the range? Was it fired from a farther or shorter distance?

22 A. The angle of descent that was calculated in the investigations, it

23 would have meant ones fired from a longer distance.

24 Q. And in your review of the materials that were provided and also

25 the -- your own analysis of the photographs, were you satisfied as to the

1 calculation of the direction of fire on this incident?

2 A. Yes. I looked at both the investigations, and both methodologies

3 in these cases were sound and they both came up to the same conclusions as

4 to angle of descent and the general direction. I've got no reason to

5 disagree with those two investigations.

6 Q. And did you come to a conclusion as to a possible firing position

7 for this incident?

8 A. Again, the most logical firing position for this one, taking into

9 account the angle of descent, the position of the tail-fins, the mortar

10 was probably fired on a charge put in a position just north of the

11 confrontation line I see on the map, somewhere in that general area,

12 probably about five or 600 metres back from the confrontation line, in

13 that area of I think it is Poljine in that area.

14 Q. Can I ask you with the assistance of the usher just to mark with

15 the red pen your opinion as to the possible location of the firing

16 position.

17 A. Probably somewhere in that general area.

18 MR. SACHDEVA: Mr. President, I tender this still with the

19 markings into evidence.

20 JUDGE ROBINSON: Admitted, yes.

21 THE REGISTRAR: As P595, Your Honours.

22 MR. SACHDEVA:

23 Q. Mr. Higgs, with respect to this incident, what is your opinion as

24 to the -- well, was there, in your opinion, a military objective to this

25 incident?

1 A. Again in this particular case, it was a single round fired into

2 the centre of a populated area, and for the same reasons as I said before

3 on the Markale incident, very difficult to obtain any military objective

4 for firing a single round.

5 Q. So what, in your opinion, would have been the purpose to fire a

6 round at this location?

7 A. The only one again would have been to cause civilian casualties

8 and to put basically terror into the minds of the people in that area.

9 Q. Now, can I just confirm that this -- this still was tendered.

10 Okay, thank you.

11 Now I want to move to the next incident at this location, that is

12 the two rounds that fell at 1725 on Livanjska Street. Do you recall that

13 incident, Mr. Higgs, do you?

14 A. Yes, I do.

15 Q. Now, in this same report that you have open, you made some

16 conclusions and then you provided an additional report. Just very briefly

17 explain why you provided an additional report with respect to this

18 incident?

19 A. The first evidence I was given was the pictures especially were

20 poor quality. They were photocopies of original photographs and from

21 photocopies I could not really make any judgements at all. It wasn't good

22 enough to come up with any conclusions.

23 Q. Did you then indeed receive a further set of photographs with

24 respect to this incident?

25 A. Yes, I did. I then received the original photographs or copies

1 from the originals and from that, was then able to do a more in-depth

2 investigation of the site and produce the additional report.

3 Q. Were you able to come to calculations or conclusions that were to

4 your satisfaction and were accurate?

5 A. Yes. The better quality photographs were able to confirm certain

6 points regarding this incident, and were able for me to confirm ballistic

7 calculations.

8 MR. SACHDEVA: And if we could now move to your additional report

9 on this incident, and that would be 65 ter 03121. I understand it's a

10 Prosecution Exhibit, 590. If that could be brought up on the screen,

11 please. And if we could move to page -- page 3, please, the photographs

12 on page 3.

13 Q. Let me ask you first, Mr. Higgs, the calculation as to direction

14 of fire, what was your conclusion as to the direction of fire on this

15 incident?

16 A. From seeing the better photographs, as you can see, these now give

17 a very good pattern which show the direction of fire, and from the top

18 photograph on the page here, you can see that the direction of fire, it's

19 facing toward the curb, so the round has come in from that direction over

20 the curb. I then related that to the position of the road from the local

21 maps and this street runs approximately north to south. By then relating

22 the pattern of this in relation to the road, it was then impossible to

23 confirm or deny that the two reports that we had, as to the direction of

24 fire.

25 Q. It was impossible to confirm or deny the two reports. Let me ask

1 you, the UNPROFOR report, do you recall what they came to as a direction

2 of fire calculation?

3 A. The UNPROFOR report came to a direction of approximately seventy

4 degrees.

5 Q. And how about the CSB or the Bosnian police report?

6 A. The CSB report, their direction was stated in an unfamiliar way

7 but it was stated as a bearing from 20 degrees from east. So because

8 these two reports did not precisely agree, that's why I used these

9 pictures to ascertain which was the more likely direction.

10 Q. And in your -- in your experience and your knowledge and your

11 expertise, is it your opinion that the Bosnian investigators made -- let's

12 say a scientific error or was it a question about terminology?

13 A. I don't believe it would have been a scientific error because the

14 pattern of this crater a good one, and when seen in relation to the road,

15 it is very obvious which direction it is facing. So I think it is

16 probably a terminology error rather than a ballistic calculation error.

17 JUDGE HARHOFF: Excuse me, Witness, how do you translate 20

18 degrees from east?

19 THE WITNESS: Normally when you are talking about degrees, they

20 will measure them from north. So 20 degrees from north would be the way I

21 normally read it. Because they have used the term in this report, 20

22 degrees from east, which is different to any of the other Bosnian reports

23 I have seen, and is nowhere near the direction of the crater, I think that

24 it could be some confusion with -- could the person reporting on the day

25 who has measured it from east for some reason or in translation or

1 something. But that's why I wanted to confirm the actual direction,

2 because this crater points a lot closer to 70 degrees than it does to 20

3 and 50 degrees error is one that I do not believe the Bosnian authority

4 would have made. It is a very, very big error.

5 JUDGE HARHOFF: But it could not be read to mean 20 degrees from

6 the east towards the north? That would make 70 degree would it not.

7 THE WITNESS: Yes it would. That could be where the confusion is

8 coming in.

9 JUDGE HARHOFF: Thank you.

10 MR. SACHDEVA:

11 Q. In your review of the materials, do you recall -- and forgive me

12 if this is a difficult question, but do you recall the place or the area

13 where the Bosnian police suggested that the firing came from?

14 A. In their final report they suggested an area, please excuse my

15 pronunciation, but, [indiscernible] area, which, I think, when marked on

16 the map is approximately in the direction of 70 degrees.

17 Q. Thank you. I apologise for that question, but presumably if I

18 said the name Hladivode Spicasta Stijena, would that be --

19 A. Yes. That's the general area, yes.

20 Q. And that general area corresponded to your calculation as to the

21 direction of fire; is that right?

22 A. Yes, it did.

23 Q. Now, with respect to the angle of descent what -- what was your

24 view as to the UNPROFOR calculations of the angle of descent in respect of

25 this incident?

1 A. Again, I was a bit concerned here, because the Bosnian report put

2 the angle of descent nearer 67 degrees and the UNPROFOR report was an

3 estimate between 70 and 75 degrees. My first concern was when I saw the

4 decent photographs is that this pattern on the ground doesn't resemble one

5 of a 75 degrees angle of descent.

6 Q. Let me just stop you there and I want you to explain that. And I

7 explained yesterday. You see the two photographs on the screen?

8 A. I do, yes.

9 Q. If the angle of descent was 70 to 75, you said that they would be

10 a different pattern. Where would one except to see marks on the crater if

11 the angle was between 70 and 75?

12 A. You can see from this pattern you have the initial burst crater

13 and then above it you've got the -- like a fan shape which you call the

14 second crown caused by the shrapnel. But there is very little damage as

15 you are looking at these photographs to the bottom of the impact crater.

16 If you remember from the crater from Markale market, which was

17 approximately a 70 degrees angle, it was a more uniform pattern with

18 shrapnel shape marks all around the impact crater which is what tends to

19 happen the steeper the angle of descent becomes. This doesn't have it, so

20 it suggests that the angle of descent on this one is probably less than 70

21 degrees.

22 Q. You said that the crater pattern led you to the conclusion that

23 the angle of descent would not have been as high as 70 to 75. Was there

24 any other factor, and I'm speaking about the calculations that you spoke

25 about yesterday, led to you your conclusion as to the angle of descent?

1 A. I then looked at the pictures and took the calculations, the

2 measurements from the reports which you see on the pictures here. The 110

3 centimetres is measured from the point of burst to the curb and then

4 looking at the other measurements to see if I could confirm the ballistic

5 calculations. When I started to lock at these pictures, the pictures did

6 not agree again with the UNPROFOR measurements. The calculations as you

7 can see in the bottom picture, on the UNPROFOR measurement they had a

8 total measurement of the bust crater of 40 centimetres from front to rear.

9 So from centre, point of impact to the front of the crater, would be

10 approximately 20 centimetres as marked on that picture.

11 Q. Can I just stop you there. When you say the -- the measurement of

12 the burst crater, 40 centimetres you basically mean -- do you mean the

13 radius of the impact crater?

14 A. That would be the diameter across the hole would be 40

15 centimetres, yeah. So, therefore I make it a radius of 20 centimetres

16 from the point out. When I mark that and then looked at the map, they are

17 a measurement from the centre of the crater to the centre of the second

18 crown the distance L on that picture as 65 centimetres. I looked at this

19 and thought, well, that is not three times the distance out from the

20 centre when you look on that picture. It's only probably double the

21 distance. It is definitely not three times further out. So probably

22 nearer 40, 45 centimetres away from the strike, not 65 and that distance L

23 is a key distance used in the count -- ballistics calculations. So you

24 then recalculated using that nearer to 40, 45 centimetres and it brings

25 you out with an angle of descent somewhere between 60, 65 degrees, opposed

1 to 75 degrees.

2 Q. And with that calculation as to the angle of descent as 60 to 65,

3 what does that indicate about the range at which the mortar was fired?

4 A. It now gives the mortar a lot longer range and now make it is

5 possible for that mortar to have fired from a distance in excess of four

6 kilometres away.

7 Q. And do you recall the angle of descent calculation the Bosnian

8 police came? To.

9 A. Bosnian police in their report just put down a figure of 67

10 degrees but showed no workings of how they came to that figure.

11 Q. But I take it from your answer, your previous answer, your

12 calculations -- with your calculations, in your view, is the UNPROFOR

13 report more accurate or the Bosnian report more accurate?

14 A. I think the Bosnian report is far more accurate, as far as angle

15 of descent is concerned.

16 Q. And with this calculation and the direction of fire, did you come

17 to a conclusion as to the possible firing point?

18 A. Again, I took this into account, with the direction coming from

19 the area as previously stated, and also that again nobody had heard these

20 rounds being fired because this was one of two rounds, if the rounds had

21 been fired along this direction line, within the confrontation lines, it

22 passes a lot of heavily built-up areas, residential areas and so on where

23 somebody would have heard this mortar firing. However, when you get

24 across the confrontation line in that part of Sarajevo, there's a steep

25 escarpment, and once you've gotten over that escarpment, over the back of

1 that, that would have muffled the sound of any mortar firing from there

2 and then you would not have heard it.

3 The other thing I had to take into account was the timing of this

4 firing, which was approximately 1725 hours in November, so it would have

5 been either dark or pitch black at that time in winter, and when a mortar

6 fires it produces a tremendous muzzle flash or ball of flame comes out the

7 end and this can be seen from miles away. So if it had been fired within

8 the confrontation line, somebody would definitely have seen it. It would

9 have been very obvious, and that's why I tended to believe that it must

10 have come from beyond the escarpment in some form of hidden low-lying

11 ground beyond the hill to prevent anyone hearing it or seeing the fire.

12 JUDGE HARHOFF: But, Mr. Higgs, I'm -- maybe we will get back to

13 this question at a later point, but I cannot help putting it to you at

14 this point, and the question is: How do you compensate for the lack of

15 knowledge of the charge used at this particular mortar, at this particular

16 point of impact? How does one calculate the distance from where the

17 mortar was shot when you only have the angle of descent --

18 THE WITNESS: When we only have the angle of --

19 JUDGE HARHOFF: -- and of course the type of mortar used.

20 THE WITNESS: When we only have an angle of descent to the type of

21 mortar, of course the mortar could achieve that angle of descent on all

22 charges. So then we have to look at the lay of the land and just use

23 experience and look at the obvious positions and when you look at all the

24 other charges to fire, it puts the mortar, say in built-up areas very

25 close to residential areas or on -- not until you really get to the areas

1 to the north of Sarajevo where the hills are do you come to really what

2 would a good mortar position. And then try and look at other evidence

3 like has anybody heard the firing or not, and from all that, try and come

4 up with an educated opinion of where the round would come from. But, yes

5 you are right. The mortar can of course achieve this angle of descent on

6 all six charges.

7 JUDGE HARHOFF: Thank you.

8 MR. SACHDEVA:

9 Q. Mr. Higgs, can I just ask you: This educated opinion that you're

10 speaking about, is this something that you have done in your career on

11 numerous occasions when you haven't been able to identify the charge being

12 used?

13 A. Yes, correct.

14 Q. And I was just going to conclude this incident by asking you --

15 and you have probably answered this, but just to be clear, in your view,

16 was the round fired from territory controlled by the Bosnian Serb army or

17 territory controlled by the Bosnian government army?

18 A. Taking the position which I believe the mortar was fired from,

19 this would have been territory held by the Serb army.

20 Q. And what is your opinion as to the possible purpose or the

21 objective of firing this round and of course you recall there was a

22 further round in the garden sometime later, a few minutes later?

23 A. This one -- again a single round into a residential area on to a

24 road would achieve little as far as a military objective is concerned.

25 What is a little bit concerning is the time delay to the second round. A

1 mortar is capable of firing rounds very quickly. An 82-millimetre mortar

2 like this can probably fire 20 rounds a minute on maximum rates of fire,

3 so you can fire rounds only seconds apart.

4 But in this case here there was several minutes passed between the

5 first and the second explosion. One reason why sometimes this happens is

6 that if you fire a first one into an area knowing you're going to cause a

7 casualty, what tends to happen, of course, is the local authorities,

8 whoever they be, will then come around the area and of course treat

9 casualties and so. You then wait a period of time, five, ten minutes, and

10 fire a second one in the area, knowing that you're going to then catch

11 probably more people in the area than was there in the first place. It's

12 a tactic that is used by terrorist organizations with bombs, for instance,

13 by having two in the same area a few minutes apart.

14 Obviously. I cannot prove that is the case here, but there would

15 be no military objective by firing them let's say at about a five,

16 ten-minute delay apart.

17 JUDGE HARHOFF: Let's assume that you're actually targeting a

18 particular point so you shoot your first -- you fire your first round and

19 you see where that land in your binoculars and then you adjust your -- the

20 mortar -- the position, how long time does that normally take to adjust,

21 you know, a little bit to left, a little bit to the right?

22 THE WITNESS: If you're trying to go for a particular point, yes,

23 we call what you mentioned there, we adjust the fire onto the target, so

24 you would fire the first one. The observer would then see the round fall,

25 make his corrections, send that to the mortar, and then they would fire

1 another adjusting round onto hopefully a more accurate target. That,

2 depending on the skill of the observer, and the detachment could take

3 anything from between two minutes to possibly ten minutes, depending on

4 their skill. But of course you then expect the second round to be a lot

5 closer to the target or the point of aim. This particular second round

6 landed in somebody's back garden not far from the first one, so it didn't

7 appear that they were adjusting it on to any other military-type target.

8 JUDGE MINDUA: [Interpretation] Witness, on page 19, line 10 you're

9 saying that the report of the Bosnian authorities was more accurate than

10 that of the UNPROFOR, concerning the angle of descent. And since we know

11 that the angle of descent is important in order to calculate not only the

12 origin, the direction of fire, but also the distance covered, would you

13 say that the conclusion as to the distance and hence the origin of fire

14 was the same in the two reports that is, the Bosnian report and that of

15 the UNPROFOR?

16 THE WITNESS: The Bosnian report put the angle of descent closer

17 to 67 degrees, but the UNPROFOR report had it as an estimate between 70

18 and 75 degrees, and again by looking at these pictures and some of the

19 basic calculations that I carried out, I believe that the Bosnian report,

20 67 degrees is a far more accurate report as far as angle of descent is

21 concerned.

22 JUDGE MINDUA: [Interpretation] Thank you, thank you.

23 MR. SACHDEVA:

24 Q. Mr. Higgs, perhaps if I can just follow up one question from His

25 Honour Judge Mindua and possibly to clarify.

1 The initial -- in other words, before you received the set of

2 photographs do you recall that the UNPROFOR report, based on their

3 calculations as to the angle of descent, concluded -- in fact it's covered

4 on page 10 in your second report -- concluded that the round would have

5 come from some 3.200 -- in other words, a possible range extended to only

6 3.200 metres. Do you recall?

7 A. Yes, that would have been the case?

8 Q. And does that range correspond to an angle descent of -- sorry,

9 correspond to their calculations for the angle of descent?

10 A. Yes. That is worked off their angle of descent of approximately

11 75 degrees.

12 Q. And therefore just be clear, your conclusion as to the angle of

13 descent once you reviewed the new photographs and made those calculations

14 of 65 to 60 degrees, would that take the range beyond 3.200 metres and

15 therefore beyond the confrontation, in your opinion?

16 A. Yes. It would make a big difference to range and it would have

17 made it possible for the round to come well beyond the confrontation line.

18 Q. Thank you for that.

19 MR. SACHDEVA: If I could now move to the last incident, and that

20 is the incident at Dobrinja on the 18th of June. Do you recall that?

21 A. Yes, I do.

22 Q. And what -- after the review -- after your review of the

23 materials, what was your conclusion as to the possible direction of fire?

24 A. Again, on this report here, I have got no reason to disbelieve the

25 Bosnian report and the bearing that they came up with. Indeed, in this

1 case because of the buildings surrounding the water point where this

2 incident occurred, there was only one direction available where the round

3 could have come from, and that agrees with the explanation in the Bosnian

4 report.

5 Q. In other words -- well, let me ask you: What is your opinion as

6 to the methdology employed by the Bosnians in undertaking this

7 investigation?

8 A. All their methodologies used for this particular case were sound,

9 because this was a difficult case due to the fact that the round landed

10 halfway up a wall and did not impact on the ground. So it was more of a

11 case of eliminating what could not have happened is what they carried out

12 and that's why they then come up with that general bearing of the

13 direction of fire.

14 Q. On page 19 of the report, that is the second report, 65 ter 03120,

15 you -- you say that the Bosnian authorities came to the conclusion that

16 the fire came from Nedzarici, the Nedzarici region. And you conclude that

17 this is indeed the most likely firing position. Why do you say that?

18 A. Well, that is the direction from which the round came from. So

19 direction is not really in doubt. The -- as far as the range is

20 concerned, that particular region and its distance away would have meant

21 that the -- the mortar could have fired on a reasonably low charge, which

22 are the most accurate charges for any mortar to fire, to guarantee a more

23 accurate hit on the target. If you then put the -- find a position

24 further away, the mortar would had to have fired of course on the higher

25 charges, and its accuracy then of course would have been degraded. So

1 that particular region is the most likely firing position.

2 Q. Thank you for that. And now I'm finished. I just -- and I

3 apologise for this. I want to going back to Prosecution Exhibit 594. I

4 seem to recall that I want you to make one more marking just so the

5 evidence is properly recorded and then I'll be finished, Mr. President.

6 Mr. Higgs, you recognise this still?

7 A. Yes, I do.

8 Q. I would just like you, with a pen, the larger circle, I

9 understand, is the 2.400 metres -- I would like you to write 2.400 metres

10 next to that circle and then just put underneath that FP for "firing

11 position," please.

12 A. [Marks]

13 MR. SACHDEVA: Mr. President, I ask that this be entered into

14 evidence.

15 JUDGE ROBINSON: Yes, we admit it.

16 THE REGISTRAR: As P596, Your Honours.

17 MR. SACHDEVA: Thank you, Mr. Higgs. That concludes my

18 examination-in-chief.

19 JUDGE ROBINSON: Mr. Tapuskovic.

20 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours.

21 Cross-examination by Mr. Tapuskovic:

22 Q. [Interpretation] Mr. Higgs, my name is Branislav Tapuskovic. I

23 represented Mr. Dragomir Milosevic. Following this examination-in-chief I

24 too have questions for you myself. So that we may clarify any remaining

25 issues in relation to your report.

1 First of all, a brief question about P588. This is an OTP

2 document, the report, the date is the 3rd of August, 2006. It addresses

3 certain features of your profession and your familiarity with the subject

4 matter. So this is the report that you provided, right?

5 A. Correct.

6 Q. I would like to dwell for a moment on this introduction. We were

7 talking about Markale and I have to go back to this report. In your

8 introduction you state all of your jobs. You were the quartermaster

9 sergeant instructor with the Small Arms School Corps, you were with the

10 mortar division, and you also state that you worked in civilian

11 environments or settings, too, as far as I understand, studying the

12 effects of mortar shells. Is that right, sir?

13 A. That's correct.

14 Q. You never provided any assessments about mortar fire as a result

15 of a war or within a war. Is that correct, sir?

16 A. The only assessments in war would be the ones relating to the

17 Sarajevo area.

18 Q. Well, then, since you didn't have that sort of experience, and as

19 far as I can tell, you never completed any schools where you would have

20 had a chance to study mortar fire in such a way that the Trial Chamber in

21 this trial might find useful. Would that not seem be to the case, or,

22 rather, sir, can you explain more about your training in addition to the

23 military training and your daily military activities, what exactly do you

24 know about ballistics and everything else that work of this nature

25 normally involves?

1 JUDGE ROBINSON: Mr. Tapuskovic, you have asked about four

2 questions. You are to ask one question at a time. What is the question

3 that you wish to ask?

4 MR. TAPUSKOVIC: [Interpretation] Just in order to cut this short,

5 it's about the background and the qualifications with regard to mortar

6 fire. That really is my only question. The background, any schools in

7 relation to that. That's the question.

8 JUDGE ROBINSON: Yes, Mr. Sachdeva.

9 MR. SACHDEVA: Mr. President, I would just note for the record

10 that in the Defence response to our 94 bis submission to have Mr. Higgs as

11 an expert, the Defence did not notify the Prosecution or the Trial Chamber

12 that they intended to cross-examine on Mr. Higgs' qualifications and

13 expertise. I just note that for the record, as required by the rules.

14 JUDGE ROBINSON: 94 bis, are you familiar with that,

15 Mr. Tapuskovic, testimony of expert witnesses?

16 MR. TAPUSKOVIC: [Interpretation] I'm familiar all of the three

17 experts that we have heard so far.

18 JUDGE ROBINSON: You see, one of the purposes of the rule is to

19 avoid time-wasting. Why didn't you notify that you wished to

20 cross-examine the expert in relation to his expertise?

21 Is that your point?

22 MR. SACHDEVA: Precisely, Mr. President. However, the Prosecution

23 has no problem with the witness defending his qualifications. It's just

24 simply to notify the Trial Chamber that the procedure was not

25 appropriately followed, in our submission.

1 JUDGE ROBINSON: But they did notify that they wished to

2 cross-examine.

3 MR. SACHDEVA: Mr. President, the rule does specifically state

4 that if they want to challenge the qualifications and expertise, it should

5 be noted.

6 However, the Prosecution reiterates that we have no problem with

7 Mr. Higgs defending his qualifications.

8 JUDGE ROBINSON: Well, in the circumstances, Mr. Higgs, answer the

9 question.

10 THE WITNESS: During my experience in military, I -- in my

11 position as divisional instructor I was responsible for all mortar

12 training within the British Army. That included all live firing. I was

13 responsible for the total safety of all mortar firing which involved all

14 use with mortar templates, ballistic calculations. I was also responsible

15 for carrying out all scenes of crime investigation in criminal cases

16 involving mortars where there had been casualties or deaths caused with

17 British service people anywhere around the world. I also conducted these

18 investigations for other foreign armies, using my expertise, and trained

19 some of their ballistic experts on how to carry out mortar investigations.

20 JUDGE ROBINSON: Yes. Next question.

21 MR. TAPUSKOVIC: [Interpretation]

22 Q. That's it, that's your training? That is everything you did. You

23 trained others. What I'm asking you is your education, that sort of

24 background. What a sort of education do you have in order to be able to

25 train others?

1 A. Before I was in my instructor role, I was trained within the

2 artillery, which my training lasted a couple of years initially and then

3 worked in artillery. When I then transferred across to mortars, I had to

4 attend four separate training courses, basic mortar courses lasting about

5 12 weeks and then advanced mortar courses lasting up to 20 weeks which I

6 had to attend two. I then had to do my instructor qualification which was

7 a year in length. I then to do mortar investigation and artillery

8 investigation courses, many of these, most of them probably six to eight

9 weeks in length individually. I then had to do my training as a warrant

10 officer in the SESC, which is technical, again, training, lasting

11 approximately nine months. I also then did lots of short courses and

12 training with mortar and ammunition manufacturers from all over the world,

13 and this -- then coupled with working solidly in mortars for just over 11

14 years and doing nothing else, gave me the experience and the knowledge

15 then, where I was sought after to give that experience, as I said, to many

16 foreign countries and commercial concerns and all technical matters

17 relating to mortars.

18 MR. TAPUSKOVIC: [Interpretation]

19 Q. Thank you. That's it, isn't it?

20 A. Yes.

21 Q. Thank you. Now, if we could please move on. I want to move on to

22 page 6 of the B/C/S. I'm talking about the same report. I think this is

23 page 7 in the English, where you discuss the Sarajevo area. You state

24 here that you visited the town before, including the area in the

25 indictment. When you say "before," can you try to be more specific,

1 please. When exactly do you mean? Do you mean just before you produced

2 the reports or at the time of writing?

3 A. I visited Sarajevo before the first case that I was on, so that

4 would be in 2002 as we spoke about yesterday and visited all the local

5 areas.

6 Q. So you served -- or you testified as an expert in the Galic trial

7 as well, didn't you?

8 A. That's correct.

9 Q. You provided an expert report regarding the Markale 1 incident,

10 did you not, sir?

11 A. Yes.

12 Q. In this case, talking about the 28th of August, 1995, your

13 position is the same as that regarding events that occurred on the 5th of

14 February, 1995. Is that right, sir?

15 A. The Markale 1 incident, the firing came from a different

16 direction.

17 JUDGE ROBINSON: Please stop.

18 Mr. Sachdeva is on his feet.

19 MR. SACHDEVA: I just would ask perhaps for more specificity when

20 he asks is his position the same does he mean with respect to -- well,

21 what does he mean in respect to --

22 JUDGE ROBINSON: Yes, yes. Fair enough. Be a little more

23 specific. On the 5th of February in relation to what incident? Or in

24 relation to what?

25 MR. TAPUSKOVIC: [Interpretation] Your Honours, I hope that I will

1 have sufficient time to deal with all of these matter.

2 Q. What I want to know is, because at the time you categorically

3 stated that the shell had arrived from a position held by units of the

4 Serb army.

5 A. That was the conclusion we came to on Markale 1, yes.

6 Q. Now, look at number 2, please, paragraph 2. "The city of Sarajevo

7 is situated in a natural valley surrounded on all sides by high hills and

8 can be overlooked with ease. These features make Sarajevo an ideal area

9 for the use of indirect fire, as observation is easy."

10 My question: Who does this apply to? Does this again apply to

11 the army of Republika Srpska alone, yes or no.

12 A. Any of the forces who could get themselves onto the high features

13 would have that advantage.

14 Q. Do you know who in most cases held those elevations or high points

15 surrounding Sarajevo? Are you familiar with that, sir?

16 A. From the maps that I have seen, the majority of the high vantage

17 points were held by the Serb forces.

18 Q. You spoke about a particular elevation from which this specific

19 shell came. These were the Republika Srpska army positions on Mount

20 Trebevic. Is that what you stated, sir?

21 A. Is this the area -- just to clarify, is this the area from Markale

22 2 in the area of 2400?

23 Q. This is part of Trebevic, part of Trebevic?

24 A. I'm not familiar with some of the named terms of the surrounding

25 hills. But if that is the hills to the south that we identified in my

1 report, then, yes, those high hills to the south were in Serb possession.

2 Q. Well, did you know that one of the key hills in that area, several

3 in fact, Colina Kapa and Debelo Brdo, and some others elevations were in

4 fact, in the hands of the BH army?

5 A. I was aware that they did hold some of the high hills, but when

6 carrying out my investigations, I obviously look at the facts that I have

7 got and then plotted on those lines so that in the maps that I got in this

8 area of 170 degrees and in the range of 2400, it appears to be the

9 Serb-held positions in that area.

10 Q. I'm asking you generally about the next paragraph. You speak

11 about positions from which it was possible to use indirect firing. There

12 was this street which the -- had an open view of the buildings that could

13 be used as reference points to make adjustments easier. Would this apply

14 to any party in possession of these positions conducive to that type of

15 firing, sir?

16 A. Yes, it would.

17 Q. Fine. Let us move on.

18 Another advantage to be considered was the fact that most of the

19 mortars were in position for such a long period of time?

20 A. Whose mortars?

21 Q. Mortars belonging to both of the warring parties?

22 A. Yes, it would be both parties.

23 Q. And then you go on to say: "Their base plates were solid in the

24 ground and all relevant targets were likely to be pre-recorded." Does

25 that apply to both parties, as well, sir?

1 A. Yes, it would.

2 Q. Finally the last paragraph under 11. Therefore it would be safe

3 to assume that if they wanted to hit a target within Sarajevo, then, they

4 could easily do it."

5 Does that, too, apply to both parties?

6 A. Yes, it would.

7 Q. Thank you. I would like to quickly move on to your last report,

8 dated the 11th of March, 2007, which is several days ago. This is about

9 the incident dated the 8th of November, 1994, at 1725 hours on that day.

10 This is PP 00590, an OTP document.

11 This contains some information, as well as the sources you used.

12 You go on to state: I have been asked to look at my original report dated

13 the 21st of December and re-examine the evidence relating to the incident,

14 now that I have the pictures of the scene. With these new pictures, it is

15 possible to confirm or deny the angle of descent or the bearing from which

16 the rounds were fired in an attempt to resolve the discrepancy in the

17 previous reports."

18 Yes or no?

19 A. Correct.

20 Q. If we go to the next page, page 2 in the English, you say: "The

21 original pictures I had to work from were of poor quality."

22 Yes or no?

23 A. Yes, they were.

24 Q. Could we say, based on what I have seen so far from these

25 documents, that only the UNPROFOR commission investigating the incident

1 was in possession of these photographs, whereas the Bosnian side had no

2 photographs available to them at all?

3 JUDGE ROBINSON: Yes, Mr. Sachdeva.

4 MR. SACHDEVA: Mr. President, I don't see how the witness can

5 answer that as to what the Bosnian police had at the time. In fact, the

6 photographs that were provided to the witness came from the Bosnian

7 authorities, the better copy photographs.

8 JUDGE ROBINSON: Witness, are you in a position to say who was in

9 possession of the -- the photographs?

10 THE WITNESS: All I know, Your Honour is that these photographs --

11 the better quality ones, have come from the Bosnian -- these are the

12 Bosnian photographs as far as I'm aware.

13 JUDGE ROBINSON: Yes, Mr. Tapuskovic.

14 MR. TAPUSKOVIC: [Interpretation] Your Honour, Judge Robinson, that

15 is true.

16 Q. But, Witness, you received these photographs just before you

17 started work on this report. Are these not the most recent photographs

18 that were taken just before you embarked on your expert report. You only

19 received this very recently. Is that not the case, sir?

20 A. That's correct.

21 JUDGE ROBINSON: Mr. Sachdeva.

22 MR. SACHDEVA: Mr. President, that question, in my submission

23 allows for confusion. Is counsel asking whether he recently received the

24 photographs or is counsel asking whether the witness knows whether these

25 photographs were recently taken. They are two different questions, in my

1 submission.

2 JUDGE ROBINSON: All right. Witness, when you answered "that's

3 correct," what was that intended to respond to.

4 THE WITNESS: That I have recently received these quality

5 photographs. I was not indicating that these are new pictures. As far as

6 I'm aware these are pictures taken, of course, the day of the incident.

7 It is just that I have only just prior to writing this report received

8 these quality pictures.

9 JUDGE ROBINSON: Thank you.

10 Mr. Tapuskovic.

11 MR. TAPUSKOVIC: [Interpretation] Your Honours, I will try to cut

12 this short. My question was quite specific and that is reflected in the

13 latter part of the report.

14 Q. Can you, please, just confirm this for my benefit, sir. Once

15 again, the photographs that you described as poor quality photographs are

16 photographs that were in the possession of UNPROFOR, are they not?

17 A. The poor quality photographs I was originally given are the

18 photographs that are in my original report, and I believe they are also

19 Bosnian photographs.

20 Q. We'll come to that later. I'm just trying to wrap this up as

21 quickly as I can.

22 Page 4 in the B/C/S; it's page 6 in the English report. You say

23 here:

24 "The difference between the bearings is great -- is a huge one in

25 terms of crater analysis and no real investigator would be so far out in

1 any bearing calculation. I therefore believe there has been a

2 misunderstanding on how the bearing was written down and recorded from the

3 CSB report."

4 Is that correct, sir?

5 A. Correct.

6 Q. What about the continuation of this? A direction 20 degrees from

7 the east. This is a strange way of stating a bearing; is that not

8 correct, sir?

9 A. Yes, that's correct.

10 Q. Next, you go on to state just before the conclusion. This is page

11 6 in the English. In B/C/S this is page 5. In fact, it turns out that

12 both the CSB and UNPROFOR arrived at the same conclusions and neither of

13 the sides were wrong. "All this discrepancy in bearings can be put down to

14 a simple misunderstanding of recorded information."

15 Does that not mean that now all of a sudden you arrived at the

16 conclusion that both reports were in fact accurate and identical?

17 A. In terms of bearing, if it is just a mistranslation or a

18 misunderstanding on this term 20 degrees, then, yes, the Bosnian report

19 and the UNPROFOR report would be the same.

20 Q. Yet, despite this being your conclusion, you neglect the position

21 of UNPROFOR. They were there at the time. They were familiar with the

22 situation and they assessed at the time that the mortar had come in from

23 positions held at the time by the BH army. Did they not conclude that,

24 sir?

25 A. Yes, they came to that conclusion from the very steep angle of

1 descent they got.

2 Q. You find them to be mistaken?

3 A. By looking at the photographs, which is the evidence that I have

4 reviewed and the pictures do not tend to agree with the UNPROFOR

5 conclusions. That is why I have produced this report, because I believe

6 that the angle of descent that the Bosnian authorities have come to seems

7 to be far closer.

8 Q. Despite all the errors that you have just confirmed them having

9 made?

10 A. I'm sorry, I don't understand that question.

11 Q. A short while ago, we discussed this angle of 20 degrees which was

12 described as a strange way of calculating a bearing and it is contained in

13 the CSB report and the Bosnian police report. You said yourself that that

14 was impossible. However, you are saying now that their report actually

15 showed exactly what you have concluded?.

16 A. Yes. In the Bosnian reports, as I mentioned earlier, they also

17 give this area where they suspected the fire came from, and this area is

18 nearer 70 degrees than the 20 in their report, which is why I believe this

19 is some form of misrecording or translation on this 20 degrees issue,

20 because the area on the ground they report is in line with 70 degrees.

21 JUDGE ROBINSON: It's time for the break; in fact, we are past the

22 time. So we have to adjourn now for 20 minutes.

23 --- Recess taken at 3.48 p.m.

24 --- On resuming at 4.09 p.m.

25 JUDGE ROBINSON: Mr. Tapuskovic.

1 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours.

2 Q. Mr. Higgs, let us now move on to some very specific questions,

3 which, in my view, are crucially important with regard to some of your

4 attitudes on these incidents.

5 Let us look at page 16 in the B/C/S version, which is page 15 in

6 the English version. It's document P589. Page 15 in English, and I'm

7 talking about your information report dated the 21st of December, 2006.

8 It refers to the incident of the 18th of June, 1995, the Simon Bolivar

9 School.

10 I would like to direct your attention to page 15 in the English

11 version and page 16 in the B/C/S version, where, if you can see, this

12 paragraph which begins with: "The buildings." Can you see that,

13 Mr. Higgs? "The buildings around the incident location."

14 It's close to the bottom of the page in the English report. Page

15 15, the penultimate paragraph. "The buildings around the incident

16 location ..."

17 A. Oh, yes, I see that, yes.

18 Q. So: "The buildings around the incident location also go to

19 eliminate certain options when it comes to calculating the direction of

20 fire. The buildings prevent the bomb from coming from many directions.

21 This is explained in the drawings completed by," and now you give the name

22 of a witness.

23 Is this your position, sir?

24 A. Yes, from -- the buildings prevent the round coming from all but

25 one direction.

1 Q. Thank you very much.

2 JUDGE ROBINSON: Mr. Sachdeva.

3 MR. SACHDEVA: Mr. President, I just recall that the witness was a

4 protected witness, and therefore this page probably should not be

5 broadcast that is on the screen.

6 JUDGE ROBINSON: We'll attend to that.

7 MR. TAPUSKOVIC: [Interpretation] That is precisely why I didn't

8 mention the name and I don't think it's relevant, anyway.

9 Now, let us look at the next page, page 16 in the English version

10 and page 17 in the B/C/S version. It's entitled the paragraph entitled

11 "The Correctness and Methodology of the Investigations." It reads: "In

12 this case there was not the normal bomb crater to be able to analyse and

13 determine direction and angle of descent. However, the buildings around

14 the incident scene in themselves help to eliminate certain options, as the

15 bomb could not have come from the directions where these structures were."

16 Is that correct.

17 A. That's correct, yes.

18 Q. So it fair to say that the direction from which the shells had

19 come, if there's a building in their path, it makes it impossible to fire

20 from that direction? Is that what stems from what you've written here?

21 A. Where the round struck the wall, the surrounding buildings would

22 not have allowed the bomb to have come in from any other direction than

23 the one found in the investigation, because the buildings overhang that

24 position and so therefore there's only one clear route in that the round

25 had in its path.

1 Q. Thank you. Can you please now look at page 18 in the English

2 version and page 19 in the B/C/S version. Once again, you repeat that the

3 establishing of the bearing is facilitated by the fact that the

4 surrounding buildings eliminate many other options. It is reasonably easy

5 to confirm that the round came in from a westerly direction but to

6 accurately determine the angle and bearing of descent is another matter.

7 Again, we have difficulties presented by a building in the path of a

8 projectile.

9 Is that correct?

10 A. There was no building in the path of the projectile, but because

11 it struck the wall, as it says in the report, we had no normal crater

12 pattern and could not determine the angle of descent.

13 Q. Thank you. Now we must go back to page 4 of this same report, and

14 it's page 4 in both versions, paragraph 7, which speaks about direct

15 fire. These are your findings: "In a sense, this is a misnomer. The

16 projectile is still fired on a high trajectory, but the target is directly

17 visible to the mortar detachment if the sight of the mortar is used like a

18 rifle sight, pointed straight at the target.

19 "Direct fire from a bedded mortar is very accurate after the first

20 round."

21 Is this also true, from your point of view?

22 A. Yes.

23 Q. Then we have again to go back to page 18 in the B/C/S version,

24 which is page 18 in the English version. It's the chapter speaking about

25 the reasons for the attack, deliberate or otherwise. And towards the end

1 of this paragraph you say as follows: "In some cases a mortar can be used

2 in the direct fire mode and in this case the person controlling the mortar

3 aims the mortar at the target himself. To do direct fire, the operator

4 needs to see the targets."

5 Is that also true?

6 A. Correct, yes.

7 Q. I will just for a moment go back to one question and we'll go back

8 to it again later on.

9 With regard to what you said about Markale 2 incident, which

10 happened on the 28th of August, 1995, can you explain what can an operator

11 see from a position where there is something between two four-story or

12 five-story buildings, if you can't see what there is, doesn't the same

13 apply to the incident of the 28th of August, 1995?

14 A. If you cannot see the target or the area of the target, then the

15 mortar will then probably be directed on to the target using an observer

16 or firing on to a previously recorded point.

17 Q. We'll come later to all the pre-recorded data. I'm asking you:

18 How is it possible to see anything over all these buildings into the city

19 itself?

20 A. If you are using a --

21 Q. I'm sorry, the Judges are conferring at the moment.

22 [Trial Chamber confers]

23 JUDGE ROBINSON: Would you explain how the firing takes place

24 using an observer?

25 THE WITNESS: As mentioned earlier on, if you are using an

1 observer, the observer by using a radio will be able to speak to the

2 mortar, so the observer could be anywhere. He doesn't have to be anywhere

3 near the mortar. He could be in the town, on top of a tall building, or

4 he could be on one of the hillsides, he could very close in one of the

5 confrontation lines, he could be anywhere where he could get a reasonable

6 view of the target area. So he is not restricted at all where the

7 observer can go. Then from his position he can then direct the fire

8 anywhere he wants to.

9 JUDGE ROBINSON: Thank you.

10 Mr. Tapuskovic.

11 MR. TAPUSKOVIC: [Interpretation]

12 Q. But in this particular instance this observer should have been at

13 the place where the shell landed, given the position of those buildings.

14 He should have been precisely at the place and the spot where the shell

15 landed; otherwise, he couldn't explain it.

16 JUDGE ROBINSON: Mr. Sachdeva.

17 MR. SACHDEVA: Just so the witness can answer effectively, which

18 incident is counsel speaking about? Is it the Dobrinja incident or the

19 Markale incident?

20 JUDGE ROBINSON: Mr. Tapuskovic.

21 MR. TAPUSKOVIC: [Interpretation] I'm talking about both

22 incidents. I haven't explained that for the benefit of the Chamber.

23 Speaking about Dobrinja, we saw that experts adamantly stated that the

24 buildings were blocking the view of the target. However, talking about

25 Markale, the witness never mentioned these buildings. So I'm asking how

1 it was possible across the whole town and the built-up area and the people

2 who were hit there to see anything in order to engage the target as

3 described here.

4 So this has relevance for both incidents.

5 JUDGE ROBINSON: Both incidents.

6 MR. SACHDEVA: Mr. President, I don't, in my submission, believe

7 that the witness was saying that the buildings with respect to the

8 Dobrinja incident were blocking the view of the target. The witness is

9 saying that the buildings eliminate other alternatives as to direction of

10 fire.

11 JUDGE ROBINSON: Well, let us see whether the witness can answer

12 the question.

13 Can you answer the question, Witness?

14 THE WITNESS: As far as if an observer could have seen the

15 incident at Dobrinja, you would have to go and visit all the likely

16 positions in all the surrounding buildings held by both forces to either

17 confirm or deny that. I have not obviously done that, so I couldn't

18 confirm if an observer could see that position directly or not. But on

19 saying that, you still would need to see it directly anyway to still put

20 accurate fire down on that position.

21 MR. TAPUSKOVIC: [Interpretation]

22 Q. I pointed out to you page 18 in this context, and before I ask you

23 a question about the Markale incident, in order to use a mortar, it is

24 necessary for the target to be in sight. So what could have been seen

25 from the position that, according to you, were at 2.400 metres, what could

1 one have seen across the whole town and behind the buildings in terms of

2 the person operating the sight? Can you answer me that?

3 A. If you cannot directly see, which was the case here, the area you

4 wish to engage, then there are two options you have. You can use a nearby

5 physical reference point, such as a church spire, a prominent building or

6 something; aim your sight at that but then put a adjustment onto your

7 sight to aim off onto the area you wish to engage, or you could use a

8 close by pre-recorded target, if you have one, and then do a small

9 correction from that to put the round in the area where you want it. Both

10 of these methods are very accurate indeed.

11 JUDGE ROBINSON: But if we take the first one, we're working on

12 the hypothesis that you can't see the sight, so if you use the spire of a

13 church and then you say you make an adjustment to the target but-- but you

14 can't see the target. I mean that's the hypothesis. So how do you make

15 the adjustment?

16 THE WITNESS: What you would do if you cannot see it, if you were

17 using a direct fire, the person on the site is firing the mortar himself,

18 he will use the nearest reference point he can find. Then by using maps

19 that he's got he'll work out the distance on the ground between his

20 nearest reference to what he is shooting at, 100 metres or so, whatever it

21 may be. Then he -- by using again the range tables, he will know what

22 correction at that range on his sight will give that distance, and he will

23 add it on to his sight, so that will then move the round from his

24 reference point into the area where he wants it. That is if he is doing

25 it by himself, i.e., by direct fire.

1 If he's doing it by indirect fire, this a drill that the observer

2 would do that on his behalf. His observer, using the nearest reference

3 point, would do the calculations and send those to the mortar. So by

4 using one or the other, you don't have to physically be able to see it to

5 put a round very close to it. It's of course more accurate if you can see

6 it directly. It takes away all the guesswork. But by using these

7 calculations it is still a very accurate way of directing a round into an

8 area that you can't directly see.

9 JUDGE ROBINSON: Thank you.

10 Mr. Tapuskovic.

11 MR. TAPUSKOVIC: [Interpretation].

12 Q. And so, Mr. Higgs, you hit a target of that nature with a single

13 round; is that correct?

14 A. A good mortar detachment, if they have pre-recorded targets,

15 should be able to put their first round either on or very, very close to

16 the target.

17 Q. If the target is visible perhaps although I wouldn't put forward

18 my own opinion. But in this case the target was not visible. However,

19 according to you, it was possible to hit this invisible target with a

20 single round.

21 A. This is far easier to do this in a built up area because of all of

22 reference points have you, especially if you have got a pre-recorded

23 target in that area, because that target has been recorded accurately from

24 previous fire. If you have no reference points and no pre-recorded

25 targets, then of course it will become far more difficult.

1 Q. Let us move on. We shall later address the issue of pre-recorded

2 target and corrections.

3 Let us now focus on something that you mention regarding the

4 purpose of the fire. Now, let us look at page 12 of the same report.

5 That's in the B/C/S version, which is page also 12 in the English report.

6 Here you talk about the potential intentions of the attackers and you

7 provided an analysis saying that:

8 "With only two rounds fired is no real military value other than

9 harassment of the people in the area. There no are reports of any

10 military activity in that residential area at that time. These rounds

11 were probably aimed and fired at this location with the purpose of killing

12 civilians. Another possible intention could be the idea of killing the

13 authorities investigating the previous incident that day, which occurred

14 nearby only two hours before in the same general area.

15 And you provided a whole series of psychological analysis.

16 Please, sir, are you qualified at all to make this kind of psychological

17 psychiatric analysis or should it rather be within the remit of some

18 different kind of expert? You have provided here a whole host of

19 psychiatric and psychological analysis? Are you qualified to do that, sir?

20 A. The analysis that I have given is from my experience on

21 operational use of mortars and teaching that to many, many different

22 counties over the years and the correct ways of using mortars in the

23 military environment. I have not tried to get inside the head of these

24 people but purely relate it to military methodologies used with mortars.

25 Q. But when you speak about the psychology, sir, you are talking

1 about fire and attackers. Who in your mind is the attacker here, or is

2 that something that you decided in advance?

3 A. No. I look at the evidence that I have been presented with and

4 then try and determine from that, the type of round, direction and then

5 from that using my experience where the round has come from. Without any

6 prior knowledge of the sights, and I do not pre-guess what I'm going to

7 discover. As I say, we only get certain information from the scene. I

8 then have to use my experience and military and mortar knowledge to come

9 to as opinion as to where the fire originated and an opinion as to its

10 purpose.

11 Q. I don't think I will be going any further into that. It's all in

12 the report anyway. But there is one thing I would like to ask you, and

13 I'm moving on to that. I'm going to back to what you stated, on what you

14 wrote on page 17.

15 This is the Simon Bolivar school building, that incident, where

16 quite a number of people were hurt. This is 17 in the English report.

17 And you say this:

18 A single round was fired in this incident which leaves only one

19 option open."

20 And then you go on to state: "It was fired upon a group of

21 civilians collecting water in a -- along the confrontation line in this

22 part of the city."

23 And then again you go on to make an assessment. This incident

24 occurred in an area that was under the control of the BH army. Is this

25 something that you established at the time, sir, where these civilians

1 were injured?

2 A. Yes, by using the maps that I had, yes, it's in the BiH area.

3 Q. And now, you take the whole of page 18 to provide us with a

4 psychological background or analysis and I'm asking you, can you provide

5 one last like to us here? What would the case if it were proven that this

6 particular round had come from an area under the control of the BiH army?

7 What sort of psychological background or profile of the situation could

8 you provide in that eventuality, sir?

9 A. Obviously, I have got no evidence or opinion that supports that

10 first of all. But if the evidence put the round to come from such an

11 area, then again it would really have the same conclusion. Firing a

12 single round on to a known position where civilians are present is

13 obviously being down to kill civilians, to either form terror in the minds

14 of those people, or to achieve some other wish of a commander, which I

15 really could only guess at what that could be.

16 Q. You spoke similarly about the 28th of August incident, the Markale

17 2 incident. What I'm asking you now is to please explain to the chamber

18 the following: Are you at all authorised to deal with these issues and to

19 make this kind of assessment? Do you believe that this was part of your

20 remitt when you were given this job and asked to do this job independently

21 in order to reach an accurate and useful assessment, to do it on your own

22 an independently, in other words?

23 A. I was tasked to, with the evidence presented in front of me to

24 find or to confirm the reports I was given, their correctness and then to

25 confirm the bearings of fire, angles of descent and then from that to find

1 likely firing positions. I was also then asked from the type of rounds

2 fired and their numbers what would be the probable likely intentions,

3 i.e., military likely intentions and that is what I have done in my

4 reports.

5 Q. Your assignment was the same when you appeared in the Galic trial

6 as an expert?

7 A. Yes, they were.

8 Q. The psychological profiles that you provided in that trial were

9 identical to these, were they not?

10 A. I didn't provide psychological profiles. I just gave, in my

11 opinion, the possible military intentions.

12 JUDGE ROBINSON: I thank you for that correction. The witness did

13 not provide psychological profiles. I think that is an improper

14 characterisation of his evidence.

15 MR. TAPUSKOVIC: [Interpretation] Your Honour, I meant the

16 assessments that I read. It wasn't my intention to tire the Chamber with

17 these lengthy pages containing all these lengthy explanations. We shall,

18 if time enough for that during our Defence case. But what I meant to ask

19 this witness was whether, he, in fact carried out this kind of assessment

20 in the Galic trial too, or did he just address such problems as bearing,

21 crater, angle of descent. Is this the first time that the witness has

22 embarked on these psychological background type of reports?

23 I see that again the OTP are again springing to their feet.

24 THE INTERPRETER: Microphone, for the President.

25 MR. TAPUSKOVIC: [Interpretation] Mr. Whiting, I don't think this

1 is a laughing matter, to be quite frank.

2 JUDGE ROBINSON: It's not Mr. Whiting, it's Mr. Sachdeva.

3 MR. SACHDEVA: Mr. President, again the characterisation of his

4 analysis, military analysis as psychological analysis is, in my

5 submission, incorrect.

6 JUDGE ROBINSON: Yes, but I'm going allow him to answer it.

7 Did you give similar evidence in Galic?

8 THE WITNESS: In the Galic case, the evidence I gave again was to

9 confirm the reports I was given from the craters; direction of fire,

10 again, angle of descents, likely firing positions and probable military

11 intent. So, yes, the same headings.

12 MR. TAPUSKOVIC: [Interpretation] Thank you.

13 Q. Let us move on specifically to questions about weapons and

14 everything else in relation to these three incidents. Let us begin with

15 this introduction that you made. Above all, all of these things that you

16 say about mortars. This is page two of your report. You make an

17 assessment there and you say, the maximum range would be between 4500 and

18 7500 metres and most mortars can achieve these ranges by selection of

19 augmenting cartridges normally one to six.

20 Can you, please, first of all, tell me this: Primarily I'm refer

21 here to the incident on the 28th of August. Was there any indication for

22 you to -- that led you to ascertain what sort of a cartridge, what charges

23 were used?

24 A. From the reports, the investigation reports, they determine the

25 calibre of the round, but, no, they could not confirm which charge was

1 used.

2 Q. Mr. Higgs, you were never really able to apply any truly accurate

3 method to establish what the range was for any of these 120-millimetre

4 mortars, were you, sir?

5 A. For these incidents, all I had was the angle of descent, and so

6 then we have to plot back from the point of strike and look at all the

7 different possible firing positions.

8 Q. Thank you. I'll try to move through a number of things quickly.

9 All right. Let's move on to page 3. Page 3 in English too. You

10 speak about the fact that the accuracy of a weapon hinges on several

11 factors, you talk about the tail-fin of the mortar round, the size of the

12 charge, the angle, the direction, stability of the base plate, prevailing

13 weather conditions and you go on to state a number of other factors.

14 Finally you speak about pre-recorded targets. Therefore, we can conclude

15 that you list about ten different factors which the accuracy of a weapon

16 hinges on. Is that correct, sir?

17 A. Yes, it is.

18 Q. The last of all these, the 10th, to be more specific is

19 pre-recorded targets. Maybe that's not on a scale of importance but it is

20 the number ten on this list, isn't it?

21 A. Yes, it is but they're not, as you said, in any list of

22 importance.

23 Q. I followed very closely the examination-in-chief yesterday. I

24 believe I remember clearly that several factors were pointed out and you

25 explained about stability of the base plate. What I wish to avoid is

1 shuffling my papers now, just to pinpoint the exact reference. But you

2 say that certain places were defined strictly by using weapons throughout

3 the long years of war, and these positions were never changed. How did

4 you establish that locations or positions at which certain weapons were

5 placed were not changed for years? How could you possibly arrive at a

6 conclusion like that?

7 A. Where a mortar has been put in position and a -- then set up, if

8 there is no need to move that position, it doesn't make military sense to

9 move it. Because they take time to set up, time to re-supply, and once

10 you have recorded all your recorded targets, if you then move the mortars,

11 those records targets become invalid straight away. So, if you've got a

12 position where you can leave them in one position for a length of time,

13 that would be a massive advantage to any commander. So it's from that

14 point of view and these lines were fixed for such a period of time that

15 gives me my -- the opinion that mortars would have been left as much as

16 possible in their existing positions for as long as possible.

17 Q. Mr. Higgs, the confrontation lines remained virtually the same

18 throughout the war. That much is true. But this is not about having a

19 set confrontation line. I'm talking about weapons. How did you establish

20 that certain weapons were always position in the same way, even when not

21 strictly along the confrontation line? What did you base that particular

22 claim on?

23 A. I think, as I just said, the claim is from military experience and

24 using of mortars and indirect fire weapons, that you do not move them

25 unless you have to. I have got no evidence that says a particular mortar

1 was left in a certain position for two, three years. I don't have that.

2 It is from my opinion and military sense and the way in which they are

3 used.

4 Q. As a soldier, Mr. Higgs, you should know one thing, and I have no

5 alternative but to tell you. Under military rules and precisely for

6 military reasons, it is it necessary indeed, to often change positions

7 taken by certainly weapons. If you remain in the same place for too long

8 you are likely to soon become a target yourself. Would that not seem to

9 be a truism? Please answer, don't just nod your head. In certain weapon

10 systems, yes, that is true, but with a mortar commander especially like in

11 a defensive type environment which this was with fixed [indiscernible]

12 lines then any commander will tell you that from a defensive operations

13 your indirect fire assets are sighted and recorded targets with all the

14 different types of fire recorded, because you will need those weapons to

15 be able to respond immediately. If you keep moving your weapons systems

16 around you loose all your recorded targets. You loose all the advantages

17 of that. You have to re-supply your weapons with all the heavy ammunition

18 into new positions on a regular basis. You then have to re-bed in your

19 mortars which means you have you to fire them to do so, which you then

20 could possibly give their position away in a new position anyway. So you

21 are far better off leaving them in a good position which has cover, where

22 you have sighted originally until such time as you have to move them.

23 Q. We're talking about seven years, right? Isn't it a fact that if

24 you use a weapon at a certain position, you should normally leave that

25 position as quickly as possible in order to avoid being eliminated

1 yourself. Isn't that the case, sir?

2 A. In an attack situation then that would normally be the case with

3 some type of systems. However, with mortars that is not the case. You

4 move them as and when required to do so by the commander. Mortars do not

5 move unless commanded to do so. It is even a common drill in mortar

6 platoons even when coming under effective fire, they do not move, because

7 they will sustain heavier casualties while in the open moving than they

8 would staying where they are. However, they do move from time to time,

9 but in this -- again, this environment for all of the reasons I've already

10 stated, if you could leave them in one place as long as possible, you get

11 far more advantages. And with all of numbers of good positions,

12 especially in this area, some of the positions you could quite easily have

13 left mortars there for quite a considerable length of time.

14 JUDGE MINDUA: [Interpretation] Mr. Tapuskovic, just a minute.

15 Witness, the question -- the question asked by the Defence, this

16 is about the military snipers. Their job is to touch the target directly.

17 Now on the military point of view, would you say that --

18 THE INTERPRETER: I'm sorry, I didn't hear that.

19 Would you say that the soldiers are afraid of the snipers?

20 JUDGE MINDUA: [Interpretation] What I'm trying to find out is

21 whether from a tactical point of view, would you say that the people who

22 are in charge of handling the mortars might be afraid of snipers? I'm

23 referring specifically to the distance.

24 THE WITNESS: Yes, they would be. That is why when sighting the

25 mortgage positions, as I mentioned before, you would keep them away from

1 the confrontation lines as far as possible away from possible sniper

2 activity, and if you could hide them again in dead ground or behind a

3 hillside so they're out of direct line of sight, you take away that threat

4 straight away. That is why most mortar positions, you tend to put them

5 probably a kilometre at least away from the enemy to take away the threat

6 of snipers and to put them into dead ground or behind hillsides or far

7 enough away so small arms fire -- they are out of range of all small arms

8 fire.

9 JUDGE MINDUA: [Interpretation] All right. So that explanation

10 might justify, might explain why the mortars are kept in one place for a

11 long time and not moved around.

12 THE WITNESS: If they are in a good position behind a hill or a

13 couple of kilometres, let's say, away from the town where there was no

14 threat to them at all from snipers, then it would not make sense to move

15 them unless you really had to for some tactical reason.

16 JUDGE MINDUA: [Interpretation] Thank you so much.

17 MR. TAPUSKOVIC: [Interpretation]

18 Q. Mr. Higgs, pre-recorded targets feature very prominently in your

19 report.

20 A. Yes.

21 Q. You know very well, and it's something that I'm putting to you,

22 that the only thing that can be pre-recorded as a target is the direction

23 and the distance of a target; that not a fact?

24 A. No. That's incorrect. When you record a target, you record the

25 direction to the target, the elevation to the target, the type of

1 ammunition fired at it, the charge fired at that target. If there was a

2 fuse setting, you would record the fuse setting. You also would record

3 the eight figure or the most accurate grid reference to that target as

4 well and also record the altitude of the target. You record all

5 information to the target, not just a bearing to the target.

6 Q. Mr. Higgs, you are saying that the sighting equipment used on a

7 mortar can absorb countless elements and use them to target, in addition

8 to such elements as distance to the target or indeed the direction. You

9 are saying that the sighting equipment is actually capable of absorbing

10 other types of information, in order to then use it for targeting, for

11 firing. Is that what are you saying?

12 A. No, that is not correct. The sight of a mortar will only give you

13 the elevation and the bearing to the target. The other information you

14 get from your map work that would be carried out when engaging target, so

15 you can get your information from the map of the altitude and the grid

16 reference to the target. If you are lucky enough to have any form of

17 basic computer system in the command post, then that of course can do the

18 information for you. But you do not have to have a computer system. You

19 can do it manually using maps for the rest of your information.

20 Q. Do these pre-recorded targets include systematic errors, those

21 inherent to all systems such as the inaccuracy of weapons? Is this

22 something that is taken into account when recording these targets, the

23 margin of error pertaining to certain weapons, especially in terms of how

24 a weapon is used or how old a certain weapon is?

25 A. Yes. The reason why you pre-record a target is to try, where

1 possible, to shoot out, as they would term it, as many errors as possible,

2 so that when you then come to re-engage that target at a later time, the

3 fire is then more accurate.

4 Q. Mr. Higgs, I hope you're sufficiently familiar with the lie of the

5 land in and around Sarajevo to know that this is a hilly area, a

6 mountainous area?

7 A. Yes.

8 Q. Could we not say that in a mountainous setting, in a hilly setting

9 such as Sarajevo, of all of the factors that you enumerate about some of

10 those, I think the most important factor is the weather conditions. Could

11 we say that or not? And these weather conditions are not something that

12 is not the kind of information that can be pre-integrated into this list

13 of pre-recorded targets and nobody can do it, is that not a fact?

14 A. You are correct that weather does have effect on where the round

15 goes. However, it is possible when recording a target, depending what

16 systems you have, to account for the weather system. Some of the basic

17 computer systems in the command posts at that time were able to take into

18 account the weather, but if you then didn't have those systems, then the

19 weather is always going to be a factor that you cannot determine.

20 Q. Can you confirm that a round, once it is fired, especially when

21 dealing with 120-millimetre rounds, being fired from 2.400 metres, it must

22 reach an altitude of between two and three kilometres, it would be

23 expected to, wouldn't it, in order to reach its target?

24 A. Yeah. Depending on the elevation it's is fired on, but, yes, the

25 mortar would go up a fair distance, one or two kilometres. I can't be

1 exact without looking at the range tables, but yes, they will go up a fair

2 distance into the sky.

3 Q. We will be coming to that as well. But there's something else I'd

4 like to ask you. Whatever happens to a round during its actual flight in

5 terms of humidity, any wind, the changing temperature, is this a factor in

6 defining a pre-recording target, nobody can predict humidity, the changing

7 wind, the changing temperature, and there is always wind in a mountainous

8 area, isn't there?

9 A. That's correct.

10 Q. As an expert, are you familiar with this: This is a piece of

11 information that I have come across in relation to this. Every 100 metres

12 in terms of altitude the temperature changes by 0.6 degrees. Is this

13 something that you're familiar with, sir?

14 A. Yes, I'm familiar with the change in temperature with altitude.

15 Q. Well, under such circumstances, how important is what is plotted

16 in the notebook of a commander of such a battery at the moment when he

17 decides to fire? He absolutely has no way of predicting all these weather

18 conditions.

19 A. The altitude issue wouldn't be that important, because that would

20 be the same altitude while the mortar stayed in that position throughout.

21 But whenever that mortar is firing on whatever target, you can use data

22 from firing on to a different target on the same day as you may fire on to

23 another target to find out how the weather conditions are affecting that

24 particular round. But you are correct: If you have not fired a weapon

25 for some time and the weather has changed, then, yes, that is a -- an

1 error which is difficult to calculate.

2 Q. Can it be said that in any event, when you change targets, you

3 don't always shoot at the same target. Is that correct?

4 A. Correct. You don't always shoot at the same target, no.

5 Q. So whenever you select a new target, you have to feed new

6 information. Is that correct?

7 A. That would be correct, but any errors you have found on your first

8 target, you can use those to help you with the second one to make it more

9 accurate.

10 Q. Please, speaking about the rules governing the use of mortars in

11 all armies, are they more or less the same, with reference to 82- and

12 120-millimetre mortars? Is it true that this is the same in the army of

13 the UK, Russia and other counties and that the same tables of-- firing

14 tables are being used by these armies?

15 A. No. Every type of ammunition have their own range tables.

16 Q. Well, I'm asking precisely about the firing tables for M74 mortar,

17 which is 120 millimetres. Is it more or less the same in all armies?

18 A. The M74 range tables are basically the same. It then depends on

19 which type of ammunition you're firing to make sure you use the data

20 applicable to that type of ammunition.

21 Q. The other day I was provided by the Prosecution with these range

22 tables. You have seen the 1982 tables of the JNA for the light mortar,

23 yes or no?

24 A. For the 82 millimetre?

25 Q. No. My apologies. But, yes, let's first begin with 120, but I

1 also want to here about the 82-millimetre.

2 A. Yes, I've been shown the range tables for the 82 millimetre and

3 the 120 millimetre.

4 Q. Is it true that the deviation at the point of firing for this

5 particular mortar is 16 metres and in terms of distance is between 20 and

6 35 metres? Is that correct?

7 A. What do you mean by the deviation?

8 Q. The deviation of the trajectory of the fire at the moment it is

9 being fired. Now, let me put it straightforwardly to you. Is it true

10 that there are even eight areas of dispersion, according to these tables,

11 and that the deviation in first shells goes as far as 128 metres in

12 direction and up to 312 metres in distance if you take it strictly

13 according to the tables. Is that correct?

14 A. Yes. These deviate -- all mortars have these deviations, or

15 accuracy, and of course on their first round these tend to be bigger of

16 course than subsequent rounds.

17 Q. According to the research conducted with regard to these tables,

18 is it true if you want to hit a target ten by ten, you need at least 139

19 shells in order to eventually hit the target of the size ten by ten?

20 Abiding only by the rules in place.

21 A. In reality that is not the case, because it depends on the charge

22 you are firing. On the minimum charges, the lower charges the accuracy is

23 greater. On the higher charges, again the accuracy is quite big. But

24 yes, you do have this worst-case deviation with all mortars on accuracy on

25 all calibres.

1 Q. So if that is the case, please, how was it possible with all these

2 elements contributing or affecting the accuracy and everything else that

3 is written in the tables, how was it possible for a target to be hit with

4 a single round, with a single mortar shell? And I'm talking about

5 Markale, the Markale incident now. And I'm not going to repeat it again.

6 A. The problem that we have is of course we don't know whether or not

7 they were trying to put that round where it landed outside the front of

8 that building or whether they were actually trying to put it in the market

9 which is a few metres away. We don't know. But all you can do with

10 mortars is try and make them as accurate as possible, like I said before,

11 by recording targets having fixed base plates and so on, to try to keep

12 all these errors to a minimum. That's all can you do. But trying to

13 guarantee to put a round within, as you said, a ten metre by ten metre

14 square, would be nearly impossible.

15 Q. Thank you very much. Let me mention another characteristic of a

16 120-millimetre mortar shell. There's an explanation in the rules about

17 that. Is it true that when this shell explodes, it is disintegrated into

18 between 2.500 and 3.000 pieces of shrapnel. Is that correct?

19 A. The precise number of pieces, I could not confirm, but they are

20 designed to break into smaller pieces than artillery shells, generally.

21 Q. Mr. Higgs, you speak about this issue on page 4 in English and

22 also page 4 in the B/C/S version when you are talking about the

23 effectiveness of mortars. This is what you say: "Very small place -- at

24 very close range shrapnel can pass through one person and into another."

25 What kind of space are we talking about in which this kind of

1 thing can occur?

2 A. To get the larger pieces to pass through one person to another

3 will be happening closer to the point of impact, probably within 20 metres

4 of the point of impact.

5 Q. But towards the end of paragraph 1 on page 4 you say as

6 follows: "Shrapnels varies in size. For some pieces it may be centimetres

7 in length, two millimetres in size, very small. In other words, the

8 largest ones measure just a few centimetres or even measure -- or can even

9 be measured in millimetres."

10 Is that correct?

11 A. Yes, they come in a variety of sizes.

12 Q. Is it true that the rules that we are talking about stipulate and

13 provide a calculation and they can serve as a basis for certain

14 information that the level of fatality is possible within 17 metres from

15 the place of the landing of the shell, 17 metres? Is that correct?

16 A. Levels of fatality are not an accurate science, but of course they

17 can be from the point of impact out to, in cases of the 120, out to 40 or

18 50 or even 60 metres. I'm not clear what you were meaning by your

19 distance of 17 metres.

20 Q. What I meant was the area around the place of impact and that it

21 can be very accurately calculated on the basis of the rules. And can I

22 give you the reference to the rule. I don't know if you paid attention to

23 it. It's page 29. It speaks about mortar shells and by taking into

24 account certain elements, it can be accurately calculated.

25 My question is: Is it true that based on these parameters, we can

1 say that the area of complete safety begins beyond 35 metres and that all

2 the kinetic energy in the shrapnel is lost and therefore unable to cause

3 casualties?

4 A. That would be a difficult statement to confirm, because complete

5 safety, you would definitely not have at 35 metres, because even the

6 smaller mortar calibres, 81, 82-millimtre mortars, they have a danger area

7 for complete safety of 190 metres which we use for training, because

8 anything below that, there is a possible chance you may get hit by one

9 piece of shrapnel. So 35 metres is very close it a point of impact,

10 especially with a 120-millimetre. A complete, safe distance would be a

11 lot further away than 35 metres.

12 Q. I have to go back to what you said about the shrapnel being able

13 to go through one person and injure another. This can only happen when

14 they are close to the point of impact?

15 A. Correct.

16 Q. But if there were people on that spot, as stipulated in the

17 indictment, then the closest group of people made it impossible to a great

18 extent for shrapnel to --

19 THE INTERPRETER: Could the counsel please repeat the last

20 statement?

21 JUDGE ROBINSON: Mr. Tapuskovic, please repeat the last part of

22 your question. We didn't get it.

23 MR. TAPUSKOVIC: [Interpretation]

24 Q. Provided that there was a large crowd of people, as has been

25 described, and in view of the size of the shrapnel varying from several

1 centimetres to several millimetres, wouldn't it be the case that the

2 bodies of the people would be an obstacle for the majority of pieces of

3 shrapnel and stop them from penetrating further? Is that possible, yes or

4 no?

5 A. Yes.

6 Q. Is it true what you already mentioned, that once a shell hits the

7 ground, it affects the area in all directions equally?

8 A. Depending on the angle of descent, but if the round was coming in

9 on a very steep trajectory, then, yes, the blast would be more uniform all

10 around.

11 Q. Can you tell me how powerful the blast of the shell is? Can it

12 knock down a person?

13 A. Again, depending how far away you are from the point of impact,

14 but if you are close to the impact, then, yes, the blast can knock you

15 over.

16 Q. Can it lift you up and threw you away to a certain distance?

17 Because I have seen a photograph where the body of an unfortunate person

18 is on the fence far away from the point of impact. Is it possible for

19 this shell to throw away the person like that?

20 A. If the person was standing reasonably close to the blast, then,

21 yes, it would be possible.

22 Q. Speaking generally about incidents, not one of them in particular,

23 in paragraph 1 of your report, which is on page 5 in both versions and

24 it's entitled "Direction of Fire." You say that the direction of fire and

25 establishing thereof is pretty complex and that it depends and relies on a

1 number of various factors.

2 Is that correct?

3 A. That's correct.

4 Q. And further on, when you listed these factors, you said that in

5 addition to the crater, in collecting further evidence, talking to people

6 can be helpful in order to acquire firsthand information about what they

7 either saw or heard.

8 A. Correct.

9 Q. In any of the three incidents that you had an opportunity to

10 analyse, did you find information that there was an eye-witness to any of

11 these shells?

12 A. From the statements that I have, the statements, the personal

13 accounts of the people on some of the scenes, but really from there, their

14 statements didn't help me in my mortar investigation.

15 Q. Is it fair to say that in all cases you at least interviewed

16 witnesses who claimed to have heard the explosion?

17 A. On some of the reports, yes, they heard the explosion.

18 JUDGE ROBINSON: Mr. Sachdeva.

19 MR. SACHDEVA: Mr. President, the question asked as to whether the

20 witness -- as I understand it, whether the witness interviewed witnesses

21 who claimed to have heard the explosion. I'm not sure whether the -- the

22 witness understood that that was to be the question, that he actually

23 interviewed witnesses.

24 JUDGE ROBINSON: Witness, you were asked whether it is fair to say

25 that in all cases you at least interviewed witnesses who claimed to have

1 heard the explosion.

2 THE WITNESS: I have not interviewed anybody, Your Honour. I have

3 only read their written statements as provided to me.

4 MR. TAPUSKOVIC: [Interpretation]

5 Q. Well, that was my question and that is exactly what I asked you.

6 I know that this witness did not conduct any investigation. You mostly

7 worked on the documents that were given to you.

8 A. Correct.

9 MR. TAPUSKOVIC: [Interpretation] Your Honours, is it the time for

10 a break now?

11 JUDGE ROBINSON: We take the break at 25 minutes to 6.00. So we

12 have another five minutes.

13 MR. TAPUSKOVIC: [Interpretation]

14 Q. After what I read to you, you say that, "The sound of mortar

15 firing makes it -- is distinctive for anybody who has heard it in action."

16 Is that correct?

17 A. Correct.

18 Q. I have a statement here of another expert witness who testified

19 here before you. This is on page --

20 MR. TAPUSKOVIC: [Interpretation] I'm sorry.

21 Q. On the 20th of April, but I don't have the exact reference in the

22 transcript, and I'm sure the Prosecutor will object to my presenting this

23 evidence.

24 MR. TAPUSKOVIC: [Interpretation] Your Honours, this witness spoke

25 about the whizzing sound of a shell passing through the air.

1 Q. Would that be an approximate description of the sound made by a

2 mortar shell?

3 A. Mortar shells do make a noise coming through the air. Not

4 always. But in certain weather conditions they make a sound very similar

5 to how you have described it.

6 Q. It's on page 4891 of the transcript. This witness even said that

7 this sound is always there and that it even induces people to seek shelter

8 and thereby avoid being hit, because they are anticipating a shell to

9 land.

10 A. This is where you must not get confused between mortars and

11 artillery, because an artillery round that is passing overhead has a very

12 distinctive sound nearly always, and yes, you can obviously hear that.

13 Mortar rounds make a similar sound but not always. It does depend

14 on the weather conditions. But that sound is -- if you like, you hear

15 that sound very shortly before the round strikes the ground.

16 Q. At any rate, you can hear it for a number of seconds.

17 A. Sometimes, yes.

18 Q. You said that in this particular instance no one had heard the

19 shell being fired, not even those who were at a kilometre from the firing

20 position, and I'm referring now to the observers. How do you explain

21 that?

22 A. Yeah, there is a -- in the report there is no evidence that

23 anybody heard the mortars firing. So, therefore, my conclusion is that

24 obviously the sound must have been muffled in some way. Something must

25 have prevented the sound getting to those people to be able to hear it.

1 Q. But no one heard this projectile flying.

2 A. I've got no reports of anybody hearing anything, no.

3 Q. Neither did the radars record this flight at all, not only this

4 one, you even mention five shells, and nobody ever heard them being fired

5 or flying through the air. How do you explain that? Is it possible in

6 view of the trajectory of a 120-millimetre mortar shell?

7 A. As far as the people not hearing them is concerned, this could be

8 explained if, of course, the mortars were at some distance away hidden

9 behind a hill. As far as the radar is concerned, I'm not an expert on the

10 mortar-locating radar, so I don't know what could have gone wrong, if

11 anything, where they hadn't been detected.

12 JUDGE HARHOFF: Mr. Higgs - sorry for interrupting you, counsel -

13 but this is of some importance to our understanding.

14 You are saying that the flying of a mortar after it has been fired

15 only sometimes makes a sound, and I would be curious to know if you can

16 sort of tell us, if you can, whether this is almost always or, in the

17 other scale, rarely that it makes a sound, and what would be the weather

18 conditions which would facilitate the sound and --

19 THE WITNESS: They tend to make more noise passing through the air

20 when the air is denser, high humidity, those sort of conditions. So it

21 probably happens more often than not rather than rarely, but not every

22 single time.

23 MR. TAPUSKOVIC: [Interpretation]

24 Q. Just this one thing, a little further down the page you say: "Some

25 people are even able to distinguish different calibres by the sound of a

1 missile or even identify their direction."

2 Not only are they able to identify the sound, they are even able

3 to tell which calibre we're talking about?

4 A. That part of my statement relates to the firing sound, because, of

5 course, different calibres make different sounds when they are fired.

6 JUDGE ROBINSON: Mr. Tapuskovic, we have to take the break now.

7 MR. TAPUSKOVIC: [Interpretation] Thank you.

8 --- Recess taken at 5.37 p.m.

9 --- On resuming at 5.56 p.m.

10 JUDGE ROBINSON: Mr. Tapuskovic, please continue. I think you

11 have another -- about another half an hour.

12 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honour.

13 Q. Sir, Mr. Higgs, we talked about the sound. We're still on that

14 page. There's that last sentence in that paragraph where you address the

15 issue of sound. "A mortar round only makes a slight noise in flight and

16 you need to be in the right area to hear it and not far from the downward

17 flight path."

18 Well, now, given the situation with one of those incidents,

19 specifically the 28th of August incident, but what I'm asking you is a

20 general question. If one doesn't hear the -- a round being fired at the

21 moment it is fired, if you can't hear it during its flight, not even the

22 slight sound, if you can't even hear it near the spot where the round

23 eventually lands, if you can't hear anything at all before the explosion

24 itself, well, how can you explain that? How can you account for that? Or

25 can that be accounted for, really? Even the radars fail to spot anything,

1 to plot anything.

2 A. The sound issue can be explained because, as I say, they don't

3 always make an audible sound, depending on the weather conditions, the

4 situation of the people. It could also be affected probably in this case

5 by the buildings or whatever. So sound is a difficult one to quantify.

6 As far as the radar is concerned, I'm not an expert in that field

7 to give an answer of why they were not picked up on the radar.

8 Q. I am compelled to put to you a hypothesis which is based on these

9 documents. There is, let's say, 100 people who hear an explosion. 95 per

10 cent of them hearing the explosion and some of them hearing a different

11 thing altogether. What could this be a case of? Is that an explosion --

12 THE INTERPRETER: Interpreter's note, can counsel please repeat

13 the last part of the question. Thank you.

14 JUDGE ROBINSON: You're being asked to repeat the last part of the

15 question, Mr. Tapuskovic.

16 MR. TAPUSKOVIC: [Interpretation]

17 Q. Let me cut this short. Nothing was heard apart from the

18 explosion. Would that not lead one to conclude that this was something

19 that was planted right there and exploded?

20 A. Basing on the sound issue alone, I think that will be very

21 dangerous to assume that, because, as I said before, you do not always

22 hear the sound for different reasons, so I could not confirm that will be

23 the case.

24 Q. It was a hypothesis on my part. We will be going back to a

25 specific incident in a couple of minutes.

1 But first let me clear up a couple of questions with regard to

2 what happened on the 18th of June, 1995. The English page is 15 and the

3 B/C/S is 15, too. The document number remains the same as the previous

4 one, the one that you still have in front of you, presumably.

5 A. Yes.

6 Q. First of all, do you know that the time determined here, the 18th

7 of June, 1995, was a time when the conflict between the two parties was

8 very severe, intense, are you aware that was a period of intense fighting

9 between the two warring sides?

10 A. I had no information of that, no.

11 Q. Do you know, and I think you do, that the place where this

12 occurred is quite near the confrontation line separating the two warring

13 sides?

14 A. Yes, I do.

15 Q. Do you know that the place where this fountain was, the water

16 fountain, the spout where people, as the indictment claims, were queueing

17 for water was a place that effectively could not actually be seen, was not

18 in a direct line of sight of those who allegedly fired at them, simply

19 because they were inside a building. This building was ruined, but they

20 were still inside.

21 A. Yes, I can make that -- or made that determination from the

22 pictures that I could see that were sent to me that as you said, it was a

23 ruined building that this water point was inside.

24 Q. Whoever it was that was firing, we might say, then, simply didn't

25 see those people queueing up for water, did they?

1 A. That's not really something I could really answer. I don't know

2 the answer to that one.

3 Q. Thank you, sir. Let's go to page 16 of the English; 17 in the

4 B/C/S. The chapter entitled "The Correctness and Methodology of the

5 Investigations." It reads: "In this case there was not a normal mortar

6 bomb crater to be able to analyse and determine direction and angle of

7 descent."

8 Is that right, sir?

9 A. Yes.

10 Q. Two paragraphs down, "Evidence that -- from the evidence supplied

11 to me, there are no pictures showing the fragmentation marks on the floor

12 so I cannot confirm or deny any of those findings."

13 Is that right, sir?

14 A. Correct.

15 Q. Could we therefore conclude this: The pictures you looked at

16 showed no shrapnel marks on the ground, did they?

17 A. No, they didn't.

18 Q. The next sentence reads: "The blast marks are visible on the wall,

19 but these on their own do not give me enough detail to work with to

20 confirm the bearing."

21 Is that right, sir?

22 A. Correct.

23 Q. You've seen that photograph, haven't you? It's a black surface

24 and there's nothing much in it aside from that black surface, is there?

25 A. The photograph of the one where the round struck, it's a blank

1 wall where the round has struck at the top of the wall when you can just

2 see the blast marks.

3 Q. Next paragraph: "With the bomb striking the wall 3.2 metres off

4 the floor, determination of bearing is not going to be as accurate as if

5 you had a normal crater on the floor."

6 Is that correct, sir?

7 A. Correct.

8 Q. All right. Page 19 in the B/C/S and 18 in the English. It

9 reads -- the chapter is the findings of the crater analysis of the wall

10 and its effectiveness, paragraph number 2.

11 "The determination of bearing was made easier due to the

12 surrounding buildings eliminating many other options."

13 To all practical intents, you determined the bearing because there

14 were no buildings in the way of this incoming missile, according to your

15 calculation. Is that not a fact, sir?

16 A. That's correct, yes.

17 Q. However, if we look at this wall that was hit by the round, it

18 shows no shrapnel marks, does it?

19 A. No. It just shows the point of impact blast on the wall.

20 Q. In your capacity as an expert, a ballistic expert, can you explain

21 how it is possible, if this place is hit by a round of this calibre, that

22 there is no shrapnel to speak of on the wall or on the ground nearby? Is

23 there a possible explanation for this?

24 A. The reason why there's no strike on the wall obviously is because

25 the way it hit the wall, the top of the wall, the blast would have gone

1 beyond the surface of the wall. That's why nothing could be seen there.

2 If there was going to be any shrapnel marks, they would probably have been

3 on the ground around where the people were. But that's a number of metres

4 away from the point of burst, so their markings would have been obviously

5 not as prominent as they are when a mortar round strikes the ground.

6 From the pictures I had, I had no -- I could see no evidence of

7 the strike on the ground from the pictures I was given. They could have

8 been there, but from the evidence I was presented, I couldn't confirm if

9 they were or not.

10 Q. But if a round hit this precise place, 3.2 metres above the

11 ground, as has been established, wouldn't it be logical for all of the

12 shrapnel to just do the sort of thing that normally occurs in cases such

13 as these to go up into the air? Isn't that in fact where there is an

14 absence of shrapnel here?

15 A. That would explain the absence of some of the shrapnel, yes. But

16 because of the angle of the round as hit the wall, because it's hit it not

17 coming straight down, it's hit on one side, some of the shrapnel would

18 have come down into where obviously the people were as indeed has happened

19 and caused the casualties in that area. But, yes, a lot of the shrapnel

20 would have gone probably over their heads and missed them altogether.

21 Q. Indeed. But you found no shrapnel marks on the ground in those

22 photographs, did you?

23 A. Not from the evidence I was given, no.

24 Q. Thank you very much. Finally I could perhaps ask you this: At

25 the end of this paragraph in relation to determining the direction of

1 fire, and this is on page 19; the English page is 19. It reads: "As I

2 have explained above, this method cannot be confirmed or denied due to the

3 evidence I have, due to what the investigators established during their

4 on-site investigation."

5 Is that correct, sir?

6 A. That's correct.

7 Q. Just a couple of things about Livanjska. I'm talking about what

8 occurred on the 8th of November, 1994. A crater photograph, 591, P591.

9 Mr. Higgs, if you look at this fan of shrapnel marks in this

10 photograph, how can that be explained? You used these arrows to mark

11 that. How is it possible? How is it possible at all for marks like these

12 not to be there even to a greater extent in the other direction from which

13 the round came? What about the energy generated by this round? Is it not

14 primarily directed against this surface? Yet, in addition to this first

15 circle, there are no shrapnel marks fanning out from the exact spot where

16 the round met the ground or hit the ground.

17 A. As you can see from the picture, you have the initial crater

18 around the point of impact, which, of course is caused by the initial

19 blast of the bomb exploding. You've then got the -- just away from that,

20 the second crown or this fan caused by the shrapnel coming from the main

21 body of the round. Because the round has come in at an angle, the

22 shrapnel from the other side of the bomb, i.e., on the side nearest us

23 looking at that photograph, that shrapnel of course has missed the ground

24 and has travelled obviously at some distance but without touching the

25 ground because of the angle of descent. That is why you get that

1 particular pattern with this fan shape only on the one side.

2 Q. Doesn't that cast some doubt on your own theory when you said that

3 this fan-like shape would have to spread -- would have to encompass the

4 entire micro area hit by this shell in the form of a circle?

5 A. Because the greatest blast is coming from the centre of the body,

6 that is where you see the largest destructive pattern, as you can see here

7 in the second crown. It would be impossible to have that pattern going

8 all the way around, and the nearest you will get to that is if the round

9 was to come down perfectly perpendicular, straight down onto the ground.

10 Then you would have a uniform pattern all the way around, but it would

11 look completely different to this one. This one obviously shows a round

12 has come in at an angle, so you've only got the pattern on one side.

13 Q. Wouldn't it be more logical for the round to have come in from a

14 different direction and the fan-like marks, precisely because of the

15 kinetic energy going in that direction, was left here the way it was? Can

16 we entirely rule the possibility that the round came in from a different

17 direction altogether?

18 A. Yes. With a good pattern like this one is, the direction is

19 coming from -- as on this picture the central stake that the authorities

20 have laid on the grouped, that is where the round has come in. And that

21 is why we use these patterns to determine the direction of mortar fire,

22 because it has been ballistically proven that these are the patterns that

23 you get, and if the round had come in from a different direction, the

24 pattern on the ground would obviously be orientated in that direction.

25 Q. You are therefore categorically stating that this is the only

1 direction that the round could have arrived from, given what the

2 photograph shows you. Is that correct, sir?

3 A. Yes, correct.

4 MR. TAPUSKOVIC: [Interpretation] P595, please. I'd like you to

5 take a look at that one too.

6 Q. Mr. Higgs, here you marked the direction of the round that was

7 fired at 1525 hours. Can you point out the spot for our benefit that the

8 round was fired from, that was fired at 1730 hours? Can you please draw

9 that for us, mark that for us?

10 A. Okay. 1730 hours, the approximate area would have been somewhere

11 in that direction.

12 Q. An arrow, please, to indicate the direction between Livanjska and

13 the spot from which the round was fired.

14 A. It would be approximately that direction, which is about 70

15 degrees, as reported in the report.

16 Q. Well, that seems to be pretty much consistent with UNPROFOR

17 reports claiming that the round arrived from territory held by the BH

18 army, doesn't it? Your arrow, is it supposed to end right here or does it

19 continue beyond the point that you marked?

20 A. The arrow shows just the direction. It doesn't show the place of

21 firing. The place of firing in my report suggests the most likely

22 position is the area around the blue circle.

23 Q. All right. You will remember what we talked about at the very

24 beginning, at the outset today, those photographs that you were given a

25 short while ago. Do you still believe that you can categorically rule out

1 the possibility that the round arrived from territory held by the BH army?

2 A. As I expressed earlier, range is of course difficult to confirm,

3 because at the angle of descent at this location, it would have been

4 possible for all six charges to have the same angle of descent. So I have

5 then used my experience and looking at the confrontation maps to look at

6 most likely firing areas, and at the closer ranges all the positions are

7 in urban areas, residential areas until you get up to the confrontation

8 lines. Again, putting the mortar on or in the confrontation lines would

9 be tactically unsound, and then of course we have the area beyond the

10 confrontation line. Again, because I have no reports of anybody hearing

11 the mortar firing, would suggest it possibly wasn't fired in an urban

12 area, because nobody at all heard it, and again because of the timing and

13 it being dark at this time of year, nobody seeing this muzzle flash would

14 hint it was probably in a more rural area hidden behind a hill somewhere.

15 When you go along that direction, really, the first time you come to that

16 sort of area is the area that I have marked in the blue circle. Prior to

17 that, it is either an urban area, residential areas, or crossing or in the

18 confrontation line areas. And it was from that that I determined that

19 that was the most likely area.

20 JUDGE ROBINSON: The question that you were asked is whether you

21 still believe that you can categorically rule out the possibility that the

22 round arrived from territory held by the BH army.

23 What do you say to that?

24 THE WITNESS: I cannot categorically rule it out, Your Honour.

25 This is obviously an opinion I have from experience. Because the mortar

1 could have been fired from six different locations, one for every charge.

2 But the most logical position, because no sound and no sight of it firing,

3 would put it in the area of my blue circle.

4 JUDGE ROBINSON: Thank you.

5 Mr. Tapuskovic, you have gone past the time allocated to you.

6 MR. TAPUSKOVIC: [Interpretation] Your Honours, I do have a couple

7 of questions about Markale and one last question about this.

8 JUDGE ROBINSON: All right. Well, ask them quickly.

9 MR. TAPUSKOVIC: [Interpretation] Well, just my luck. It appears

10 that I'm unable to do it quickly.

11 Q. But about this problem, on the 18th of June, this was the time of

12 the fiercest fighting, even night-time fighting. There's information

13 indicating that. Does that have anything to do your assessments? It was

14 night-time ... Can you comment on that?

15 A. The 18th of June incident happened during the day, so obviously

16 the muzzle flash wouldn't be an issue there, because you can't see it as

17 well during the day. But, of course, it would have the same implications

18 about sound, but if this -- as you say, this was a time of a lot of

19 fighting, there was probably a lot of noise going on, so to identify a

20 single bang within many others would probably prove difficult.

21 Q. Let me comply with the instructions of the Presiding Judge. But I

22 do have to ask you this about Markale: You referenced here all the

23 documents that you used. And my question is in relation to any of the

24 incidents. Have you ever tried to obtain any reports from the radar teams

25 monitoring these events which simply must have recorded some of these

1 events? Apparently, not Markale but maybe the other two. Have you ever

2 tried to obtain any sort of information whatsoever from those teams, sir?

3 A. My reports here have only been put together using the evidence as

4 recorded here on my reports. I have not been given any other supporting

5 evidence regarding the radars.

6 Q. Can you still categorically support your own claim about Markale

7 despite the report by Harry Konings and his team on the 25th of May, the

8 same team on the 29th, and everything that is contained in the document

9 that was submitted to Kofi Annan on the 29th of September. Despite

10 everything stated in these documents regarding the bearing and the angles

11 and all the assessments showing nothing in terms of the direction of fire

12 because the specific charge is still unfamiliar, the explosive with which

13 the round was filled, do you still stand by your previous claim that the

14 place that the round was fired from was at a distance of 2.400 metres from

15 the place that was eventually hit?

16 I believe Mr. Sachdeva has an objection.

17 MR. SACHDEVA: Mr. President, the counsel has mentioned quite a

18 few documents, one of them being the report by Harry Konings, and his

19 question is that despite everything stated in this documents regarding the

20 bearing and the angles and all the assessments showing nothing in terms of

21 the direction of fire and my recollection is that Harry Konings's report

22 precisely did make a recording of the direction of fire. So it -- in my

23 submission, it misstates the evidence.

24 JUDGE ROBINSON: In that case, then, Mr. Tapuskovic, you'd have to

25 reformulate the question omitting the reference to the Harry Konings

1 report.

2 MR. TAPUSKOVIC: [Interpretation] The only thing I can do is to

3 show him the report.

4 JUDGE ROBINSON: Well, let us deal with it -- witness, let us deal

5 with it quickly. Forget the reference to Harry Konings' report.

6 MR. TAPUSKOVIC: [Interpretation] Thank you, Mr. President. I have

7 no further questions.

8 THE WITNESS: Sorry. You were talking at the same time. Could

9 you repeat?

10 JUDGE ROBINSON: Yes. I said forgetting the reference to the

11 Harry Konings report, what would your answer to the question be, the

12 question put by counsel?

13 THE WITNESS: The same as the other incident, I can confirm the

14 bearing with some degree of accuracy, but the range is difficult again

15 because of the charge system that mortars have. So I have to look at the

16 possible options and out of all the possible options, the most likely one

17 is the area of -- range of 2400 because again the one at 900 was close in

18 within again an urban area, surrounded by houses and also marked on one of

19 the other confrontation maps in a minefield, which probably wouldn't be

20 the best place of putting a mortar.

21 The second range puts it right on the confrontation line, which

22 again probably wouldn't be the best place to put it. Which then leaves

23 the maximum ranges, of which 2400 would be the ideal one because of its

24 topological sighting, roads near to it, other positions being near to it,

25 and so on. That is why I concluded that that is the most likely position,

1 in my opinion.

2 MR. TAPUSKOVIC: [Interpretation] Your Honours, can this position

3 drawn on the map be saved as a Defence exhibit and given a number?

4 JUDGE ROBINSON: Yes.

5 THE REGISTRAR: As D176, Your Honours.

6 MR. TAPUSKOVIC: Thank you.

7 JUDGE ROBINSON: Mr. Sachdeva.

8 MR. SACHDEVA: Thank you, Mr. President. Just a few questions.

9 Can we just keep the map D176?

10 Re-examination by Mr. Sachdeva:

11 Q. Mr. Higgs, can you, I presume with a red pen --

12 MR. SACHDEVA: Is it possible to go back to the Defence exhibit?

13 Mr. Higgs, while that's coming up, let me ask you one question.

14 In the beginning of the cross-examination learned counsel was asking

15 whether you had conducted mortar investigations during wartime, and my

16 question to you is this: With respect to crater examinations, would it

17 matter whether it was done during wartime or peacetime?

18 A. No. The methodology carried out is exactly the same. The only

19 advantage in peacetime is of course you can carry out a more thorough

20 examination.

21 MR. SACHDEVA: If we're still waiting, I can move to another

22 question.

23 Q. On page 51, counsel for the Defence asked you with respect to the

24 Markale incident, "Mr. Higgs, were you never really able to apply any

25 truly accurate method to establish what the range was for any of these

1 120-millimetre mortars, were you, sir?"

2 And your answer was: "For these incidents all I had the angle of

3 descent and the -- I think it's bearing," and you then plotted back the

4 different firing positions.

5 And my question to you is: During the course of your career

6 conducting crater examinations and ascertaining the likely firing

7 positions, did you do these investigations without knowing the specific

8 charge? In other words, can you still come to a conclusion as to the

9 possible firing position without knowing the charge?

10 A. Yes, that's what we try to do because we always know there is a

11 combination of charges that can give you the same elevation. We then have

12 to in most cases then start looking at likely firing positions going back

13 down the bearing, looking where the most likely place you would put a

14 mortar would be, and that's really how we come to our decision on the

15 range.

16 Q. And following on from that question, with respect to -- you've

17 already told the Court that you are not an expert in radar or Cymbelline

18 and therefore, when you conducted your investigations in your career, did

19 you consider radar or Cymbelline reports to come to your conclusions?

20 A. No, I have never really used them before. Most of the

21 investigations that I have been part of have never had those in the area,

22 so I just worked from the evidence that I was given.

23 Q. And the other question is on page 62 for the Defence's benefit,

24 counsel asked you whether -- well, your answer to a question as to whether

25 one can target a ten metre by ten metre target square and your answer was

1 that it would be nearly impossible to guarantee that target to be

2 engaged. And my question to you is, given your evidence about the

3 pre-recording of targets, the use of observers, in your opinion, could the

4 marketplace have been hit on the first round?

5 A. Yes, it could have been. There's obviously lots of factors to

6 take into account, all the accuracy issues as already been mentioned. But

7 you still could have been able to get one in that particular size because

8 of course the market is lot bigger than ten metres by ten metres, but it

9 would depend, as I say, on lots of different factors which of course we

10 don't know about. But yes, it could.

11 Q. And lastly now we have the picture, or the map on the screen. Can

12 you with a red pen, I think, can you just put the letters FP in the blue

13 circle indicating the firing position, the likely firing position.

14 A. [Marks]

15 Q. And because of a question from counsel, can you extend the arrow

16 to the middle of the circle, lest there be any confusion.

17 A. [Marks]

18 Q. Thank you.

19 MR. SACHDEVA: Mr. President, may I tender that into evidence, or

20 may have that admitted into evidence.

21 JUDGE ROBINSON: Yes.

22 THE REGISTRAR: As P597, Your Honours.

23 MR. SACHDEVA: And that's is my re-examination.

24 JUDGE ROBINSON: Well, Mr. Higgs, that concludes your -- sorry,

25 Judge Harhoff has some questions.

1 Questioned by the Court:

2 JUDGE HARHOFF: Thank you so far, Mr. Higgs.

3 I have a question relating to the device that triggers the

4 explosion of a mortar round. My impression is that there is a fuse at the

5 nose of the round so that when the round hits the ground, then it goes

6 off.

7 A. That's correct, Your Honour.

8 JUDGE HARHOFF: Now, how much does it take to trigger that? Say

9 you stand up and you just drop the round from a metre and a half, would it

10 then go off?

11 A. No, it would not.

12 JUDGE HARHOFF: If you -- and -- because I'm asking this because

13 the Defence case has been that the bomb or the mortar was planted. And so

14 one might, at least theoretically, pay some attention to the idea that

15 perhaps it was thrown out of the window from the third floor of the --

16 some of the buildings.

17 A. There is a device --

18 JUDGE HARHOFF: Would that have -- yeah, please tell me.

19 A. There is a device in the fuse for safety reasons in case you drop

20 the ammunition out the back of the lorry on the floor prevents it from

21 exploding. Two devices: Most fuses have some form of safety pin which is

22 removed prior to the round going down the barrel, but also, inside the

23 fuse there are no inertia settings inside the fuse which do not arm until

24 the round is fired. From the inertia of the round firing, going out the

25 barrel at, depending what charge, 150 to 200 and 300 metres per second,

1 that initial action, the thrust from the force of these two inertia

2 bearings backwards on the fuse. If you don't have that, it will not arm.

3 If you take one out and drop it on the floor, it will not explode. So

4 that's why making a round explode that has been suspended somehow on the

5 ground, it would take some setting up to have some form of initiation

6 device, because the fuse in itself would not be good enough.

7 JUDGE HARHOFF: Thanks. So even if you were to throw it out of

8 the window from the third floor, the round would not explode?

9 A. It would not have had enough inertia to set the safety devices in

10 the fuse.

11 JUDGE HARHOFF: And just for my understanding, the charges that

12 you apply to a mortar, is that a separate component from the mortar

13 itself, from the grenade itself?

14 A. When the --

15 JUDGE HARHOFF: -- or is it a part of --

16 A. Yes. They are completely separate. They do detach. Normally

17 when most mortar rounds are delivered, when they come in their box, they

18 will come fully charged with all four, six, or eight charges, depending on

19 what type of mortar they are, already on the tail system. You would then

20 take off the ones that you don't need. If you're firing on four charge,

21 you leave them all on. If you're only firing on charge two, let's say,

22 then you'll take them all off apart from the bottom two.

23 JUDGE HARHOFF: So what you put down the tube in a mortar barrel

24 is the mortar itself with a number of charges attached to it underneath.

25 A. Correct.

1 JUDGE HARHOFF: Is that how it works?

2 A. Correct. That's why people call -- sometimes call them cheeses,

3 because they're shaped like a horseshoe with a lot of munitions, and they

4 just slide over the tail section, so they would be already connected to

5 the tail section as you place it down the barrel.

6 JUDGE HARHOFF: All right. Thank you very much.

7 JUDGE ROBINSON: Mr. Higgs, that does in fact now conclude your

8 evidence. We thank you for giving it and you may now leave.

9 THE WITNESS: Thank you, Your Honour.

10 [The witness withdrew]

11 MR. SACHDEVA: Mr. President, Mr. Docherty is taking the next

12 witness. Might I be excused?

13 JUDGE ROBINSON: Certainly.

14 Yes, Mr. Docherty, next witness?

15 MR. DOCHERTY: Your Honour, the Prosecution's next witness is

16 Mr. Milomir Soja.

17 [The witness entered court]

18 JUDGE ROBINSON: Let the witness make the declaration.

19 THE WITNESS: [Interpretation] I solemnly declare that I will speak

20 the truth, the whole truth, and nothing but the truth.

21 WITNESS: MILOMIR SOJA

22 [Witness answered through interpreter]

23 JUDGE ROBINSON: You may sit.

24 And you may begin, Mr. Docherty.

25 MR. DOCHERTY: Yes, Your Honour.

1 Examination by Mr. Docherty:

2 Q. Good afternoon, Mr. Soja. Could you please introduce yourself to

3 the Judges by telling them your name and also what you do for a living

4 just now.

5 A. My name is Milomir Soja. I'm an electrical engineer, and

6 currently I work at the Faculty of Electronics in eastern Sarajevo.

7 Q. Mr. Soja, I'm going to be ask you some questions concerning some

8 work you did on the ignition systems of modified aerial bombs in 1995, and

9 I want to begin by talking about the qualifications that you brought to

10 that work. Could you please tell Their Honours what your education is,

11 including the years that you graduated, and the subjects that you

12 specialised in.

13 A. I completed my primary and secondary schools in Ilidza. In 1982,

14 I graduated from the Faculty of Electrical Engineering in Sarajevo. After

15 that, up until the war, I had been working with Energoinvest factory in

16 the department of electronics.

17 Q. When you say that you worked for Energoinvest, can you tell Their

18 Honours what kind of company Energoinvest is and what it was that you did

19 there.

20 A. Energoinvest is a big company. I worked in a small department

21 employing around 90 people, and the company I worked for was in the field

22 of energy and electronics.

23 Q. Is that where you were working when the armed conflict broke out

24 in 1992?

25 A. Yes.

1 Q. Did you serve in the armed forces during the armed conflict?

2 A. Yes.

3 Q. And, lastly, is it correct that you were released from the armed

4 forces on the last day of 1994, that is to say, 31st December?

5 A. That's correct.

6 Q. After being released from the armed forces, what did you do in

7 terms of work or occupation?

8 A. I had work obligation in a company set up during the war. It was

9 called Energoinvest Automatika.

10 Q. And two questions from that. First of all, what is meant by the

11 term "work obligation"?

12 A. Well, it's a part of practically civilian engagement for war

13 effort, so it's similar to military obligatory service, only we were

14 obliged to work in different areas.

15 Q. And then the second question is: Energoinvest Automatika, was

16 that something different from Energoinvest, where you had been working

17 before you were in the armed forces?

18 A. Yes.

19 Q. What kind of a company was Energoinvest Automatika? What did they

20 make?

21 A. Energoinvest Automatika was made up of several former Energoinvest

22 companies operating in Stup, in Ilidza.

23 Q. And when you say "several former Energoinvest companies," what

24 sort of product did these companies make and -- that became

25 Energoinvest Automatika, what business were they in?

1 A. Generally speaking, it was not a standard manufacture, so to

2 speak. One of the main tasks of this company, since this location of

3 Energoinvest was practically on the front line, was to preserve as much

4 equipment of the former units of the factory that existed at that

5 location. So we managed to produce something but mainly by using the

6 existing equipment to manufacture finished products out the semi-finished

7 products.

8 Q. Now moving ahead, did you ever have occasion to go to the Pretis

9 factory in Vogosca in the north of Sarajevo?

10 A. Yes.

11 Q. Can you tell Their Honours the circumstances under which you first

12 went to the Pretis factory and why you went there.

13 A. Sometime in spring, I should say, 1995, it was hinted to me that I

14 should go to Pretis and seek advice from some people there regarding the

15 modification, as we were told at the time, of electrical components used

16 for the so-called aerial bomb launcher.

17 Q. And did you in fact go to the Pretis factory?

18 A. Yes, I did.

19 Q. How long after you got what you call hints was it that you went to

20 the Pretis factory?

21 I'm sorry, did -- let me ask the question again. You say that it

22 was hinted to you that you should go to Pretis. And then my question is:

23 How long after the hints was it that you actually did go to Pretis?

24 A. I can't remember exactly. About ten days, I think.

25 Q. And when you went to the Pretis factory the first time, did you go

1 alone or did you go with anyone else?

2 A. A colleague of mine, Desimir Popovic, from Automatika was with me,

3 and we were also accompanied by Mr. Mitrovic [realtime transcript read in

4 error "Mijatovic"] from -- from the brigade --

5 THE INTERPRETER: The interpreter didn't hear the name of the

6 brigade.

7 MR. DOCHERTY:

8 Q. Could you repeat the name of the brigade, please? It didn't come

9 through, I'm sorry.

10 A. I'm sorry, it says here Mitrovic, whereas I said Mijatovic, and it

11 was the Ilidza Brigade.

12 Q. When you went to the Pretis factory, did you meet anyone there?

13 A. Yes, I did.

14 Q. Who did you meet?

15 A. We met Mr. Krsmanovic. I think he was a major.

16 Q. And did Mr. Krsmanovic tell you anything about what he did at the

17 Pretis factory?

18 A. He didn't tell us what he was doing at Pretis, but we were taken

19 to him as a person who would be a liaison person with regard to the job

20 that we were supposed to do.

21 Q. And what was the job that you were supposed to do?

22 A. This job involved modification for a -- launching air bombs from

23 the launcher.

24 Q. Who was it that explained this to you? Was it Major Krsmanovic,

25 Mr. Mijatovic, someone else?

1 A. Mr. Mijatovic was not present at this meeting. We talked with

2 Mr. Krsmanovic.

3 Q. What was it -- why did the -- why did the launcher have to be

4 modified? What was the driving force behind making a modification?

5 A. Mr. Krsmanovic was against modification. He thought nothing

6 should be modified and that bringing in electrical and electronic

7 components will render the whole equipment unreliable. However, the

8 Ilidza Brigade and our company requested us that we nonetheless perform

9 this modification.

10 Q. And my question is: If you're being requested to perform a

11 modification, presumably it is because there is some problem or other.

12 Did anyone tell you there was a problem with the way the air bombs were

13 being launched up until then; and if the answer to that is yes, can you

14 tell Their Honours who said it and what they said?

15 JUDGE ROBINSON: Ms. Isailovic.

16 MS. ISAILOVIC: [Interpretation] Thank you, Your Honour.

17 It seems like Mr. Docherty is putting answers in the witness's

18 mouth. I think that the witness did not really talk about the problem

19 that he is -- problems that Mr. Docherty is mentioning.

20 JUDGE ROBINSON: No, I can't agree with you. His question is if

21 you're going requested to make a modification, then what was the problem

22 that gave rise to this request? That's -- why the modification? Why was

23 the modification necessary? That's the -- or what occasioned the

24 modification. I don't see anything that is improper in that.

25 But I think we will have to wait for that answer tomorrow,

1 Mr. Docherty, because we're now at 7.00.

2 We adjourn until 2.15 tomorrow.

3 --- Whereupon the hearing adjourned at 7.01 p.m.,

4 to be reconvened on Wednesday, the 25th day of

5 April, 2007, at 2.15 p.m.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25