1 Tuesday, 21 August 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.03 a.m.
5 JUDGE ROBINSON: May I, at the outset, welcome you back for the
6 continuation and the conclusion of this case, but I'm hearing not English.
7 [B/C/S on English channel]
8 JUDGE ROBINSON: I am to say that in the absence of Judge Mindua,
9 we sit pursuant to the provisions of Rule 15 bis.
10 I take this opportunity to give the Trial Chamber's decision on
11 the application by the Defence for the admission of an expert report from
12 Ivan Stamenov.
13 The Defence intends to call Stamenov as the ballistics expert. We
14 have a biography which details his educational background and his
15 professional career. The Prosecution challenges the expertise of Ivan
16 Stamenov in respect of sections 6 and 7 of the report which provide
17 analysis and conclusions relating to sniping incidents. In particular, it
18 submits that Stamenov, not being a police officer, does not possess
19 sufficient expertise to comment on the accuracy of a police homicide
20 investigation. According to the Prosecution, his expertise lies in the
21 field of weapons evaluation, apparently without having had, according to
22 the Prosecution, any training or expertise in sniping per se.
23 To the extent that his expertise in competitive sports shooting
24 and weaponry allow him to comment as an expert on sniping, he may do so,
25 in the submission of the Prosecution, but the Prosecution questions the
1 weight to be attached to such evidence.
2 The Defence, in its first response, submits that it is not
3 necessary to be a police officer to be able to comment on possible origin
4 and direction of fire caused by infantry weapons. It further submits that
5 Stamenov's analysis of the sniping incidents was based on a review of
6 material that was disclosed by the Prosecution and the investigative
7 documentation of the Bosnian Muslim police ballistic experts in light of
8 other technical information required to determine the trajectory of a
10 With regard to the Prosecution argument that Stamenov does not
11 possess sufficient expertise to comment on police homicide investigations,
12 the Defence submits that the only determination made by Stamenov is that
13 the material provided to him did not contain the information necessary to
14 pronounce on the direction of fire or the nature of the projectile that
15 injured the alleged victim.
16 The Chamber has reviewed the report of Stamenov and his
17 biography. The biographical information shows that he has had a long
18 military career during which he occupied several positions relating to the
19 operation of weaponry and target practice. In addition, his experience in
20 competitive shooting indicates that he is, at the very least, familiar
21 with shooting targets from various ranges. As such, he can be considered
22 an expert in ballistics.
23 The Trial Chamber finds that he is qualified to testify as an
24 expert and that the objections raised by the Prosecution relate to matters
25 that should be tested in cross-examination so that the Trial Chamber may
1 assess the weight to be attached to the evidence.
2 That's the Trial Chamber's decision on Ivan Stamenov's report.
3 I turn next to the report of Prsic, and here I would just like to
4 ask questions of the Prosecutor and the Defence.
5 The Prosecutor makes the point, Mr. Tapuskovic, that two-thirds of
6 this report was not written by the witness but was copied from another
7 document, that document being a submission by the Federal Republic of
8 Yugoslavia to the International Court of Justice. I note that the expert,
9 Mr. Prsic, did not acknowledge this source, and I am to ask Mr. Tapuskovic
10 whether this is not a shocking case, that why should the Chamber accept a
11 report from a person as an expert when two-thirds of it is not his work
12 and he has not even acknowledged the source? Is this not substantially
13 plagiarism? Mr. Tapuskovic.
14 MR. TAPUSKOVIC: [Interpretation] Your Honours, first of all, I
15 must say that the material on the basis of which Professor Prsic worked is
16 primarily the documentation that the Defence had requested from the
17 then-existing Federal Republic of Yugoslavia, and pursuant to the decision
18 that was made at the time by the president of the state that existed then,
19 which was the union of Serbia and Montenegro, Mr. Svetozar Marovic, we
20 received a lot of documentation, among which the first document was not
21 the one cited by the Prosecution as the response of that state which was
22 another state in 1995. Nobody's able to understand this anymore. So it's
23 not that one that was used.
24 I made available to the Prosecution that decision of the federal
25 government, the then-federal government, signed by the president,
1 Mr. Svetozar Marovic, and the first document quoted there is
2 called, "Relevant Events in Bosnia-Herzegovina Related to the War." It's
3 a 76-page document, a working document. And of course I drew the
4 attention of the expert to that documentation. It is very voluminous
5 documentation. And he made use of it.
6 At this moment nobody can reinvent those historic facts in a new
7 creative way. These documents provide certain information and I don't
8 really think that that information concerning events preceding the
9 twentieth century have great importance.
10 I do not know how the Trial Chamber is going to assess events from
11 that historical perspective. Mr. Prsic gave that background information.
12 Historical facts cannot be changed and he quoted the sources. He used the
13 documentation I gave him.
14 JUDGE ROBINSON: But without acknowledging that it came from
15 another source. He presented it as his own so that we would have been
16 left to form the conclusion that the analysis was his own and the
17 conclusions were his own, when in fact they are not.
18 MR. TAPUSKOVIC: [Interpretation] Of course you will take that into
19 account, Your Honours, but I believe that in that field of expertise,
20 historical documents and historical facts cannot be interpreted. It is
21 true that parties to the conflict both tell their different histories, but
22 I don't think that segment of the report is really that important. What
23 matters to the Defence is what happened 10 or 15 years before the
24 conflict, the constitutional changes and the rest.
25 Of course, it is up to you to attach a certain weight, if any, to
1 those historical aspects. But as to the events that immediately preceded
2 the conflict, I believe the findings of the expert can be useful to you.
3 Of course, I leave this evaluation to you, and if you believe that this is
4 something that resembles or constitutes plagiarism, it is your decision.
5 That expert can -- what he can do is he can say, I received these
6 documents from the federal government, for instance.
7 JUDGE ROBINSON: Thank you.
8 Mr. Docherty, the Defence, through Mr. Tapuskovic, makes the
9 argument that it doesn't matter that two-thirds of the report is taken
10 from another document because it represents something that is historical,
11 that's a fact. He says you can't reinvent the wheel here. What's your
12 response to that?
13 MR. DOCHERTY: Well, I have two responses, Mr. President.
14 First of all, the Defence does say that it doesn't matter, but
15 they do so in a curious way. They say the events written about in that
16 two-thirds of the report are unimportant, curiously taking the position
17 that two-thirds of the report is excess or redundant or not necessary,
18 which begs the question of why it was presented to the Chamber in the
19 first place if it doesn't matter.
20 But over and above that, accepting the Defence's, I guess, rather
21 philosophical position that the past is what it is and is not capable of
22 fresh interpretation, the fact is that what was put before this Chamber
23 was not a recitation of historical fact, you know, on such and such a date
24 so and so was elected, sort of thing, but an analysis of those facts. And
25 what one expects an expert historian to bring to a Trial Chamber such as
1 this is not a merely chronological recitation of events but an analysis of
2 those events and an explanation of why those events matter to the issues
3 that are before this Trial Chamber for determination. And that was
4 presented by Dr. Prsic as his own analysis when, in fact, it was not his
5 own analysis.
6 And I will confess that we on this side of the courtroom were
7 somewhat surprised when we asked the Defence about the correspondence,
8 down to paragraph numbers, between the report that was submitted and the
9 submission that was made to the International Court of Justice. We were
10 expecting to hear that Dr. Prsic had had some role in drafting the
11 document that went to the International Court of Justice and that
12 therefore, although unacknowledged, this had in fact been, at least in
13 part, his own work. But Dr. Prsic instead denied any knowledge of the
14 submission to the International Court of Justice, which is not a tenable
15 position given the correspondence between the two documents.
16 So I guess I would agree with the Defence that while historical
17 facts are what they are, almost anyone can look those facts up in an
18 archive. What we're looking for from an expert is analysis and
19 interpretation, and in this case we did not get Dr. Prsic's analysis and
20 interpretation. We got the analysis and interpretation of whoever it
21 was - and we don't know who it was - that authored the document that he
23 In making a submission such as this, of course, the Rules of
24 Procedure and Evidence lay down criteria for circumstances under which a
25 Defence expert -- an expert report from either party may be accepted or
1 rejected. And expert reports should not be accepted from witnesses who do
2 not have the necessary expertise. When one looks at Dr. Prsic's
3 curriculum vitae, he has the appropriate degrees and has studied the
4 appropriate subjects. But even people who are experts in a field have
5 areas they know very well and areas that they do not know all that well
6 within their field. And the Prosecution's submission is that if Dr. Prsic
7 found it necessary to turn in the work of another, our assumption is that
8 he did so because he was not able to do his own original analysis, and
9 that if in fact he was unable to do his own original analysis, that is
10 circumstantial evidence, his academic degree notwithstanding, that he is
11 not qualified to opine as an expert on the subjects that are discussed in
12 this report.
13 And it is for that reason that the Prosecution submits that the
14 Defence expert's historical report should not be accepted into evidence on
15 the grounds that the author of that report lacks the necessary expertise
16 to give an opinion to this Chamber on those matters.
17 Thank you, Your Honour.
18 JUDGE ROBINSON: Thank you. We'll give a decision on this matter
20 Let the witness be called in. Your next witness, Mr. Tapuskovic,
21 that's the Witness Demurenko, and his cross-examination, you will
22 remember, is to be continued on the basis of the further documentation
23 provided. The Prosecutor will have another 50 minutes to cross-examine
24 Mr. Demurenko and then we'll have the re-examination.
25 [The witness entered court]
1 WITNESS: ANDREI DEMURENKO [Resumed]
2 [Witness answered through interpreter]
3 JUDGE ROBINSON: Mr. Demurenko, you remain subject to the
4 declaration that you gave earlier in these proceedings.
5 Mr. Waespi.
6 MR. WAESPI: Good morning, Mr. President. Good morning, Your
8 Cross-examination by Mr. Waespi: [Continued]
9 Q. Good morning, Colonel Demurenko.
10 A. Good morning. I'm very happy to be here before this Court again.
11 Q. I have a few subjects for you in the remaining time allocated in
12 cross-examination. I will also refer to a few of the photos you have
13 provided the Trial Chamber with.
14 But let me first start with going back to the statement you gave
15 to the Bosnian Serb TV. Do you remember that?
16 I think there is an issue, Mr. President, with translation.
17 JUDGE ROBINSON: Yes. There is no translation?
18 THE WITNESS: [Interpretation] No, it's all right. I love the
19 languages of Yugoslavia but not to that degree.
20 MR. WAESPI:
21 Q. Now, you --
22 JUDGE ROBINSON: Just a minute, please, Mr. Waespi.
23 [Trial Chamber confers]
24 JUDGE ROBINSON: I was trying to determine, Mr. Waespi, whether
25 the cross-examination, the further cross-examination, is not to be
1 confined to the matters that would arise from the additional documentation
2 or whether you're still at large.
3 MR. WAESPI: I hope so, Mr. President. I think I only used about
4 two-thirds of my time so I have an additional, I think, 50 minutes and I'm
5 quite confident I will conclude within this time.
6 JUDGE ROBINSON: Very well. Yes, continue, please.
7 MR. WAESPI:
8 Q. Do you understand us now, Colonel Demurenko?
9 A. Yes.
10 Q. Now, going back to that TV interview you gave, do you remember
12 A. Yes. Most of it, yes.
13 Q. And at no time did you disagree in your interview with the
14 technical findings of the Bosnians or other investigators, e.g., for
15 instance, in relation to their findings as to likely descent or the
17 A. No, I did not dispute that. Moreover, it formed the basis of my
18 own inquiry. I wanted to show in principle that we took as a basis those
19 primary findings made by the specialists in artillery and ballistic
21 Q. So the only issue is really whether the locations you visited were
22 suitable, you know, to fire a 120-millimetre mortar from or whether it was
23 possible because, as you put it, of the trees or the thickness of forests
24 or the steepness of the terrain. Is that correct?
25 A. Yes. Yes, in principle. Yes.
1 MR. WAESPI: If photo 03498 could be retrieved, and this,
2 Mr. President and Colonel Demurenko, is a still from that video interview.
3 Q. And it shows that you looked at a JNA firing table for an M52,
4 120-millimetre mortar, M52. Is that correct? I'm sure it will be
5 retrieved in a second.
6 I can ask you while that's being done: Do you recall that you
7 based your calculations of the distances on a JNA 120-millimetre mortar,
8 model M52?
9 A. Yes, that's absolutely right. It was based on the initial
10 information presented by the ballistic experts. I had sent those
11 materials before. I'm not showing you anything new. The only document,
12 and that's the reason why I brought this material with me, is that this is
13 the first copy of the initial inquiry with my handwritten notes on it. I
14 sent you that material before but I'm now bringing it with me.
15 Q. Yes. Thank you very much. With that I think we might come to
16 those documents perhaps later. But there is no evidence on the record
17 that an M52 was used by -- allegedly used by the Bosnian Serb army. The
18 evidence is - perhaps you're aware of that - that an M74 was used by the
19 Bosnian -- by the Bosnian Serb army, as evidenced, for instance, for
20 everybody's benefit, in Prosecution Exhibit 252 on page 2.
21 A. I want to draw your attention to one thing. The 120-millimetre
22 mortar produced by the Soviet Union was in the arsenal of the entire
23 former Yugoslavia. After the breakup of Yugoslavia, those 120-millimetre
24 mortars remained in all the parts of the former Yugoslavia, in
25 Bosnia-Herzegovina, in Croatia, in Serbia, everywhere. So it's one and
1 the same system regardless of the particular model, M52 or M54. It's one
2 and the same gun with the same firing tables. It did not change. It was
3 not modified by the Yugoslav People's Army. The Yugoslav People's Army
4 had no capacity for such modification. That is the firing table that
5 applies to 120-millimetre mortars.
6 Q. But I suggest to you, Colonel, that the M74 that was, according to
7 the evidence - and there is no other evidence on the record - used by the
8 Bosnian Serb army has a different firing table with different data leading
9 to different distances, according to the six charges, than an M52.
10 A. I don't know about that evidence you are referring to. I
11 inspected, in the course of my duty, all the units of the warring parties
12 and I saw with my own eyes that the 120-millimetre mortar was used by the
13 warring parties, the kind that I am using as an example, without any
14 restriction. I saw that same mortar on both sides. I really don't know
15 what evidence you are talking about.
16 Q. So let's assume that, for the sake of the argument, that your
17 calculations or the basis you had in order to find out where to go was
18 right, and let's talk about the bearing, the degree from which the alleged
19 mortar was fired from. You looked at a direction of 176 degrees out of a
20 full circle of 360 degrees; is that correct?
21 A. As you understand, I am not -- I can't remember the figures now,
22 but I have in my hands the document and it contains different figures to
23 the ones that you are quoting. And that was the primary basis for my
25 Q. But let me just go back to what you told us last time and it comes
1 from your TV interview, and that's on --
2 JUDGE ROBINSON: Just a second, please, Mr. Waespi.
3 You just said that you have a document in your hand which shows
4 different figures from the ones quoted by the Prosecutor. What is that
5 document? And tell us, what are the different figures in it?
6 THE WITNESS: [Interpretation] I just heard the number 176
7 degrees. The table that I have before me contains different numbers.
8 There is no such number there, 176 degrees.
9 JUDGE ROBINSON: Tell us what it says.
10 MR. WAESPI: Perhaps it could --
11 JUDGE ROBINSON: I'd like it to be in evidence.
12 MR. WAESPI: Perhaps he can put it on the ELMO, Mr. President.
13 JUDGE ROBINSON: Let's have it on the ELMO.
14 MR. WAESPI: Mr. President, that's a document the witness -- no,
15 this part, I think, Mr. President, is already in evidence, but it only
16 shows the angle of descent which is something I am not discussing at this
17 point in time. I'm interested in the direction of fire, you know, where
18 it came from. If you have a circle of 360 degrees, there is evidence, and
19 I think the Colonel said last time, that he drew a line of 176 degrees and
20 he says that on page 7.700. And on that line of 176 degrees, he visited
21 three or four locations.
22 JUDGE ROBINSON: So, Mr. Waespi, I just want the record, the
23 transcript, to show, to be clear, as to which document the witness is
24 referring. This is from his set of papers that he has submitted. You say
25 this is already in evidence?
1 MR. WAESPI: Yes, Mr. President. If you give me a moment, I can
2 try to find the exact place.
3 MR. TAPUSKOVIC: [Interpretation] Your Honours.
4 JUDGE ROBINSON: Mr. Tapuskovic, yes.
5 MR. TAPUSKOVIC: [Interpretation] Your Honours, while it is on the
6 screen, while this drawing is on the screen, could the witness tell us
7 what it is while it's still on the screen? He has been shown that
9 JUDGE ROBINSON: Yes, he should tell us what it is, and for the
10 record I want it to be clearly identified. If it's already in evidence,
11 what is the exhibit number, and this is perhaps more for the benefit of my
12 staff which will have to be preparing summaries.
13 MR. WAESPI: It's 254, Mr. President, Prosecution Exhibit 254.
14 JUDGE ROBINSON: Prosecution Exhibit 254. Yes.
15 MR. WAESPI: And it has markings by the witness. It's obviously
16 the report by the Bosnian experts.
17 [Trial Chamber confers]
18 JUDGE ROBINSON: This is a document prepared by the BiH.
19 MR. WAESPI: Yes. And it was tendered in February by Prosecution
20 witness, protected witness 137. I'm grateful to Mr. Sachdeva for that
22 JUDGE ROBINSON: Please proceed.
23 MR. WAESPI:
24 Q. Now, this exhibit talks about the angle which the shell was
25 hitting the ground; is that correct?
1 A. This is not an image that I made. The angle of descent is shown
2 in this document. It's a document presented and drafted by an expert from
3 the Ministry of the Interior of Bosnia-Herzegovina. What matters
4 principally is this: I did not dispute the findings of BH experts. I set
5 out to be impartial and I said, Sector Sarajevo agrees with your initial
6 findings regarding a possible mortar attack and the angles shown here.
7 But from there on I spoke about the fact that even if this is true, even
8 if all this is accurate, this angle of descent, then further investigation
9 would show that this shell could not have come from Serbian territory, or
10 rather, territory controlled by Bosnian Serbs. That was all. I did not
11 want to go into the technical details, the costliness of that angle and
12 all the other findings. I said this initial drawing is correct, but now
13 I'm going to expose your attempt to blame it on Bosnian Serbs as an
15 Q. Okay. Let's talk about the bearing now, the direction of fire the
16 alleged shell was fired from. And you mentioned the figure of 200 --
17 2.850, more or less, mils, and that equals about 160 degrees; is that
19 MR. WAESPI: And while you think about your answer, if Exhibit
20 P357 could be retrieved, please, on page 6.
21 Q. What I'm really interested in now, and if you can focus on the
22 direction of fire, where the shell allegedly was fired from. The
23 Prosecution says from the Bosnian Serbs. So please focus on a circle of
24 360 degree, and I understand your evidence from last time that you said
25 you were looking at an angle, a bearing, direction of fire, of 176 degrees
1 which is, in a 360 circle, slightly less than half, slightly less than 180
3 Do you remember having said last time that you went to look at
4 locations that were located at a line of 176 degrees?
5 JUDGE ROBINSON: Mr. Waespi, you have asked several questions.
6 Perhaps they are aspects of the same question, but first you asked the
7 witness to say whether he agreed that 2.850 mils was more or less equal to
8 160 degrees, or was equal to 160 degrees. What's your answer to that?
9 THE WITNESS: [Interpretation] I'm not prepared now to defend
10 certain details or trig points, degrees, and azimuths for a certain
11 reason: Too much time has elapsed to claim with certainty now whether it
12 was 167, 175, or 160. What I'm talking about is the principle.
13 In the material that I sent to this honourable court there is some
14 material that I had given in the TV interview and this is -- what I'm
15 holding now is the first copy written in my own hand as a result of my
16 inquiry. Now, I'm not prepared to talk about numbers and fractions, but I
17 can answer the second question: Yes, I personally visited all those
18 locations that were determined as possible origins of fire, and that is, I
19 believe, part of the material before your court.
20 MR. WAESPI: Mr. President, the witness, I think, brought with him
21 a piece of paper which might have been drawn by him, and I think if that
22 could be put onto the ELMO. This is, I think, DD00-4398. Yes, that's the
23 piece of paper the witness brought with him. If that could be put onto
24 the ELMO.
25 I thought the witness had a different sketch that was part of
1 the -- yes, that's the one I'm interested in, if it could be turned
3 Q. Now, here, Witness, you see that you talk in the second line, the
4 handwritten part, about direction of fire, 2.850 mil, and I suggest to you
5 that this figure comes from the French report and that figure of 2.850
6 mils equals about 160 degrees in a full circle of 360 degrees. Would you
7 agree with that or is that too much figures? We can move on if you don't
8 want to answer these figures, as you pointed out a minute ago.
9 A. No, no, no. I just want to confirm that this drawing that is
10 placed in evidence and the one before me, they're practically the same,
11 although mine is a bit different. That was indeed part of my inquiry and
12 I have my conclusions and point of view that hasn't changed since then. I
13 insist that that was so.
14 JUDGE ROBINSON: Yes. But the more specific question is whether
15 you agree that 2.850 mils equals about 160 degrees in a full circle of
16 360. You had earlier answered that question by saying, if my recollection
17 is correct, that you would not wish to be specific, you wouldn't wish to
18 commit yourself. Do you maintain that position?
19 THE WITNESS: [Interpretation] That's true for a simple reason. It
20 is not at all difficult to locate an inaccuracy if we start playing with
21 one-thousandths, decimal point, and so on. It is impossible for me to
22 remember all of the figures that used to be in my head during the war and
23 later. So if you're trying to catch me in a discrepancy that I mentioned
24 a figure of 160 and then 170, then it won't be difficult at all. I would
25 rather not go into the discussion of the angle of descent and the decimal
1 points. What I would rather focus on is whether the interpretation of the
2 figures was done accurately. And this discussion of decimal points won't
3 lead us to anything.
4 MR. WAESPI:
5 Q. I accept that, Colonel Demurenko, Mr. President. What I'm trying
6 to do is just figure out what the line of direction was that gave you the
7 guidance to go out into the field and look at these specific locations.
8 And the way I understand your evidence of last time is that you drew a
9 line of 170 degrees and you went out and looked at three or four
10 locations. 176, yes, 176 degrees. And that's what you said on Bosnian TV
11 and that's what's recorded in the transcript of last time. I don't want
12 to play with figures. I don't want to kind of try to trick you. Not at
13 all. I just want to figure out, where did you go into the field in the
14 aftermath of 28th of August, 1995? So 176 degrees, do you agree with
16 A. I'm prepared to assure you that I stand by everything I said, both
17 in my interview and in my previous court testimony. I can confirm that.
18 Q. Very well. Let's look now at the map of that area south of
19 Markale, and it's 03399. Colonel, the basis for drawing up this map was
20 your testimony that you went -- you drew a line of 170 degrees and you
21 went out and looked at the locations of possible mortar sites at distances
22 2.000, 2.700, 3.400, and 3.600. And if you look at this map, you can see
23 the left line represents 176 degrees. It's almost half circle, 180
24 degrees. And the line to the left would be 170 degrees, and 160 degrees
25 would be even more to the right. That's what the French were -- so you
1 visited, if I understand you correctly, for instance, location on the left
2 line, 176 degrees, at 3.400 and 3.600 metres. You can see those two
3 locations, distances, left of reference point C. That's what our
4 conclusion is. Is that a fair conclusion by the Prosecution?
5 A. I see a contradiction here. The map that you're showing to me
6 right now has different figures that differ from the ones on the sheet in
7 front of me. If I need to compare them, at least I didn't draw in the
8 blue lines onto the map. Somebody else, another group, did this. I had
9 just one line that was based on the angle of descent as shown by the
10 expert of the army of Bosnia-Herzegovina that I verified. Now, these
11 figures that I've been shown, 160 and 170 and then 176, that is making the
12 analysis so much more complex that we can spend quite a lot of time on it
13 now. I'm not prepared to confirm what I see in front of me. These
14 figures need to be verified. I didn't draw this. Who did this? I don't
16 JUDGE ROBINSON: Mr. Tapuskovic has a point.
17 MR. TAPUSKOVIC: [Interpretation] Your Honours, I think the
18 Prosecution would need to verify when this drawing was made, whether it
19 was made at the time of the incident or later, and by whom.
20 MR. WAESPI: Mr. President, the witness said last time when he
21 came - and I'm quoting reference on page 7.700, at line 11 - "that
22 according to the results of the investigation, the line of fire was 176
23 degrees." So that's the basis for the left line.
24 Then next the witness said on page 7.701, on lines 17 to about 22:
25 "The following three possibilities for firing were at 3.700
1 metres, 3.400 metres and 3.600 metres."
2 We took the last two distances the witness pointed out last time
3 and put it onto the line of direction of fire, 176 millimetres. And the
4 witness then continued and said:
5 "I visited the location today with my own expert group. We were
6 here and here and here. And I have no doubt in my mind that this place
7 was unacceptable, that no shell could have come from here."
8 An investigator of the OTP went to visit the same locations and we
9 brought photos with us, and I would like the photos to show on those spots
10 the witness claims to have visited - perhaps it was the wrong spots - and
11 confront it to the witness. That's the purpose of this exercise,
12 Mr. President. I don't put any words into the mouth of the witness. We
13 just analysed what he said last time.
14 [Trial Chamber confers]
15 JUDGE ROBINSON: So that the two lines, Mr. Waespi, on the map,
16 176 degrees and 170 degrees, are lines drawn by the Prosecution and which
17 you say reflect accurately what the witness said in his testimony.
18 MR. WAESPI: Yes. Only the left line relates to what the witness
19 said, because he said 176 degrees. 170 degrees is based on evidence other
20 witnesses pointed out in court, for instance, Mr. Konings. But I haven't
21 come to that part yet.
22 JUDGE ROBINSON: I see.
23 Mr. Tapuskovic.
24 MR. TAPUSKOVIC: [Interpretation] Your Honours, I want to make a
25 comment. I want to object to the fact that this was done now, after the
1 testimony of Witness Demurenko. The basic rule of the adversarial system
2 was not applied here; namely, that the parties needed to go together to
3 the spot at the same time, in which case we would have been able to know
4 for a fact that this was done the way it was explained by Mr. Waespi. We
5 should have been given an opportunity to follow this analysis. The rights
6 of the parties have been violated here. The equality of arms principle
7 was violated because we should have been present when the Prosecution went
8 to visit the site.
9 JUDGE ROBINSON: Mr. Tapuskovic, you have made several statements
10 in these proceedings about the adversarial system and some of them are
11 just not accurate. The essence of the adversarial system is that it is a
12 party system. One party makes an allegation and the other party has a
13 right to comment on it or to contradict it. There is absolutely nothing
14 wrong with what the Prosecutor did. You have commented on it. You have
15 challenged it. And so that in assessing the weight to be attached to this
16 aspect of the evidence, the Trial Chamber will take into account the point
17 that you have made.
18 Now, let us proceed, Mr. Waespi, and let us try to move quickly
19 and move away from this point.
20 MR. WAESPI: I'll do my best, but it's a very important point,
21 Mr. President. If this map -- we might come back to it, but if it could
22 get an exhibit number, please.
23 JUDGE ROBINSON: Yes.
24 THE REGISTRAR: As P921, Your Honours.
25 MR. TAPUSKOVIC: [Interpretation] Your Honours.
1 JUDGE ROBINSON: Yes, Mr. Tapuskovic.
2 MR. TAPUSKOVIC: [Interpretation] You have already made a ruling
3 and I don't want to question that ruling. I just wanted to be on the
4 record that I, as Defence counsel, objected to this being admitted into
6 JUDGE ROBINSON: Very well, yes.
7 Well, my colleague is asking why, but I expect it is for the
8 reasons you have already stated. Do you want to hear them again?
9 MR. WAESPI: Perhaps I can also put on the record that on the 26th
10 of July, we disclosed all the photos, and the fact that the investigator
11 Barry Hogan went to investigate these sites.
12 Mr. President, if the other exhibit the witness referred to, the
13 chart with, you know, the handwritten parts above the line, could also be
14 exhibited for the transparency of the record, please.
15 JUDGE ROBINSON: Yes.
16 THE REGISTRAR: As P922, Your Honours.
17 MR. WAESPI: If photo 03482 could be displayed, please.
18 Q. Now, Colonel, the investigator went to that site at 3.600 metres
19 on the line of 176 degrees. You say you have visited, in the aftermath of
20 Markale, and dare we say that you have no doubt in mind that this place
21 was unacceptable, that no shell could have come from here. And I would
22 like you to have a look at this place and tell us whether you recognise
23 that location.
24 Do you remember having visited that location when you went out to
25 look at possible sites of firing of a 120-millimetre mortar?
1 A. I wish to say that the appearance of the hills and slopes and the
2 grass is something that I recognise, but I wish to tell you that at the
3 time of the war - and this is where the front line was - this was not a
4 site that one could come across. Everything looked completely different.
5 All the houses were damaged. There were no cars and so on. If you go to
6 visit this location 12 years later, you will see that it looks completely,
7 completely different than what it did at the time of the war.
8 Q. But you would agree with me, taking into account the passing of 12
9 years' time, that it's very likely, it's almost certain, that this
10 location more or less looked the same 12 years ago and that you could fire
11 120-millimetre mortar anywhere from this area. Do you accept that?
12 A. No, because, as I already explained on the last occasion I was
13 here, a mortar cannot hang in the air. It is a very heavy piece of
14 equipment, a mortar. It needs to lean heavily on a base and the base
15 leaves a trace in the ground that cannot be concealed. So whenever one
16 fires from a mortar, there are always traces left, traces of firing,
17 traces of gunpowder, of the impression left in the ground, and also the
18 traces of the transport that was used to bring in a mortar. One needs
19 either a horse at a minimum or a vehicle to transport a mortar.
20 So this is something that can be seen on the ground and recorded
21 by a photograph; namely, if one compares the firing tables with all the
22 figures, one can only come to the conclusion that a mortar could not have
23 been placed there. And now to show photographs and to tell us that
24 theoretically a mortar could have been placed there, then yes, this is
25 perhaps a conclusion that one can draw in 2007. But 12 years ago it was
1 absolutely an impossible conclusion to make because it was impossible to
2 conceal the traces of a mortar being placed there, and there was no trace
3 of any mortars being placed there when we visited the site.
4 Q. Now that's a different argument, traces of trucks, traces of
5 embedding a mortar into the ground. What your argument was until right
6 now was that it was impossible to fire because of the thickness of the
7 woods, because of the steepness of the terrain. Both of these arguments
8 don't apply here. Do you agree with me?
9 A. Yes, I agree with you, but the conclusion that it was impossible
10 to fire from there was based either on the fact that there was a forest
11 there and one could not place a mortar there and fire from it, or perhaps
12 it was a rocky slope where one could not place a mortar, or it was a case
13 of a clear meadow where there were absolutely no traces of a mortar being
14 placed there. And I can confirm that.
15 Q. Now, are you saying that 12 years ago, in 1995, there was a rocky
16 slope here and there was a forest here?
17 A. Are you referring to the photograph that is in front of me now?
18 No, I'm not claiming that. All I'm saying refers to the sites shown in
19 the investigation. I am not sure at all that the photograph you're
20 showing to me now was a site that I toured myself back 12 years ago. I'm
21 not sure of that at all.
22 Q. The only information we have, Colonel, is what you told us last
23 time. A bearing of 176 degrees and the several locations, 3.400, 3.600,
24 you claim to have visited. That's the basis of us sending the
25 investigator and to find these pictures.
1 JUDGE ROBINSON: But his answer to that is that he's not sure at
2 all that the photograph on the screen was a site that he toured himself 12
3 years ago.
4 MR. WAESPI: Yes. That would be my next question.
5 Q. How did you actually figure out where you were? Did you have a
6 GPS at that time? How did you determine you actually reached, for
7 instance, 3.400 metres' distance from Markale?
8 A. I explained that the last time I was here. It is very easy to
9 establish that. As I said before, a shell for 120-millimetre mortar has
10 only six standard charges, and if one applies a minimum charge --
11 Q. Yes. I understand how you came to determine that you want to go o
12 see a location at 3.400 metres. But how did you actually figure out that
13 you were now at a distance of 3.400 metres from Markale?
14 A. I don't see where the problem is. You just draw a line from a
15 possible firing location, or, rather - interpreter's correction - from a
16 possible site of explosion and then you draw a line to a possible firing
17 location. We have in the military very precise instruments, such as GPS
18 and some other instruments, which can calculate down to a millimetre the
19 location, instruments such as laser devices, and so on.
20 Q. And at that time you had a GPS?
21 A. We have always had such a device for orientation, ever since the
22 Americans put it in use. It's a universal military system. In addition
23 to GPS, there are many other methods to calculate the chart --
24 JUDGE ROBINSON: No, no, but which one did you use? What method
25 did you actually use? Was it GPS? Was it laser? What was it?
1 THE WITNESS: [Interpretation] It was a complex approach, a
2 multi-facetted approach. We tried to establish accurately down to a metre
3 this location at 3.600 metres' elevation. It was a complex approach so as
4 no -- that nobody could challenge the results of our investigation.
5 MR. WAESPI:
6 Q. So did you visit this location, if you recall after so many years;
7 yes or no?
8 A. As for the sites mentioned in my investigation, I toured all of
9 them, and you can see the photographs. Unfortunately, I wasn't able to
10 find all of the photographs in my own archive.
11 Now, to claim that I visited precisely this spot, I wouldn't be
12 able to do that because I'm 100 per cent sure that there were no
13 buildings -- these buildings were not there. And I can assure you that
14 this was not the location shown in the photographs because the site that I
15 visited had no houses there.
16 Q. This is a fairly large meadow, as we see from a satellite
18 MR. WAESPI: And if, first of all, this image could have an
19 exhibit number, Mr. President.
20 JUDGE HARHOFF: Mr. Waespi, which of the locations is shown on the
21 photo? Is it the 3.400 metres' distance or the --
22 MR. WAESPI: This is 3.600 metres, Judge Harhoff. We also have
23 3.400 metres and I could -- we have photos of all the locations, but I
24 wanted to leave it at this one but show a satellite image which shows all
25 the locations we have visited. But this particular one is, indeed, 3.600
1 metres, a large meadow, a house on it. If we -- if that could be tendered
2 as an exhibit, Mr. President.
3 JUDGE ROBINSON: Yes.
4 THE REGISTRAR: As P923, Your Honours.
5 JUDGE ROBINSON: Do you have one without houses? Because the
6 witness says it's almost certain that the sites that he visited didn't
7 have any houses.
8 MR. WAESPI: Yes. We could try the distance 3.400 metres on the
9 same line, 176 degrees. This is ter number 03484.
10 Q. While that's being done, we might come to your pictures in a
11 moment. But I recall that there was also a picture, a meadow, a house,
12 and even a cow. Was that one of the locations you had visited which were
13 possible firing positions of mortars?
14 A. I can confirm that the photographs that I sent to you depict the
15 sites that I personally toured and where I personally could confirm that
16 no mortars could have been placed there, and the photographs serve as
17 evidence of that conclusion.
18 Q. Just before turning to this photo, what you just talked about is
19 your photo, that meadow, a house, and a cow on it. I see no thickness of
20 forest there --
21 A. This is not my photograph.
22 Q. Yes. Let's leave the discussion about your photograph for a
23 moment. Let's turn to this one, this photograph. As I pointed out, this
24 is on the 176-degree line. This is 3.400 metres and that's one of the
25 locations you claim to have visited. Do you recall having visited this
1 location? And just one part of it, of this fairly large meadow, do you
2 recall having been at this location?
3 JUDGE ROBINSON: Mr. Tapuskovic.
4 THE INTERPRETER: The interpreters have a hard time hearing
5 Mr. Tapuskovic.
6 JUDGE ROBINSON: The interpreters are having a hard time hearing
7 you, Mr. Tapuskovic.
8 THE INTERPRETER: It's a technical issue. Perhaps the technicians
9 could come in or Mr. Tapuskovic could come closer to the microphone.
10 JUDGE ROBINSON: It's been suggested that you come closer to the
12 MR. TAPUSKOVIC: [Interpretation] We're using something else today
13 and I'm quite confused now. It's a bit complicated. It's a clip-on mic
14 and it seems to have slipped.
15 Your Honours, I don't think we will get anywhere by showing such
16 small parts of a large photograph. If the Prosecution has a larger
17 view --
18 JUDGE ROBINSON: The witness is well able to protect himself. Let
19 him answer the question.
20 THE WITNESS: [Interpretation] I'm prepared, yes.
21 JUDGE ROBINSON: What is your answer?
22 THE WITNESS: [Interpretation] You see, the question as it was
23 phrased is not a proper one. To ask me whether I visited such a site is
24 basically an impossible task. I can neither confirm nor deny.
25 JUDGE ROBINSON: That's an improper comment for you to make. It's
1 the Chamber that will determine whether the question is proper or not.
2 Just answer the question.
3 THE WITNESS: [Interpretation] In that case, would you please
4 repeat the question.
5 MR. WAESPI:
6 Q. Yes. My question was: Do you recall having visited this possible
7 launching of a mortar site after 28th July 1995? And for your
8 information, this is on the 176-degree line at 3.400 metres, so about 200
9 metres away from the picture we saw beforehand.
10 A. First of all, I don't understand why 200 metres. The range of a
11 mortar is not 200 metres. As I said, the maximum range is 5.400 metres.
12 The minimum one is 1.000. So the appropriate distance is 600 to 800
13 metres, I mean the steps between various firings are 600 to 800, not 200
15 JUDGE ROBINSON: I'm going to stop you. I'm going to stop you.
16 Quite apart from the technical points you are making, do you have any
17 recollection of visiting this particular site?
18 THE WITNESS: [Interpretation] No. I cannot say for sure that I
19 was there.
20 JUDGE ROBINSON: Thank you. That's what I expected you to say.
21 Mr. Waespi, I'm not sure where this is taking you, whether it's a
22 valuable technique.
23 MR. WAESPI: Let me just ask --
24 JUDGE ROBINSON: To show the witness a particular site, there is
25 nothing special about it. We see grass and we see some shrubs. What is
1 there about it that would make the witness recall it? It seems that you
2 will always get the answer which the witness has given.
3 MR. WAESPI: But, Mr. President, this witness has said that he
4 visited three, perhaps four, very precisely identified locations, and he
5 said it was impossible to fire mortars. He didn't say, I did not find any
6 traces. He said it was impossible because of the rockiness of the
7 terrain, the steepness of the terrain, because of the thickness of the
8 forest. We did send an investigator and it's properly fine to launch a
9 120-millimetre mortar from the very locations the witness said he has
10 visited, and that's the purpose of this exercise, to show the witness
11 these locations.
12 JUDGE ROBINSON: I understand, but the witness is not agreeing
13 that the sites which are depicted on the screen are sites that he visited.
14 MR. WAESPI: Yes. And the proper conclusion, then, from the
15 Prosecution is the witness at that time did not visit these locations he
16 claimed to have visited for various reasons.
17 JUDGE ROBINSON: Don't give us that now. You can give us that in
18 your closing arguments.
19 MR. WAESPI: But you asked me where is it leading us.
20 JUDGE ROBINSON: Yes. I think that -- it's a matter for you to
21 submit on in your closing -- in your closing arguments.
22 JUDGE HARHOFF: Mr. Waespi, perhaps you would also explain to us
23 how your investigator located this particular point.
24 MR. WAESPI: Judge Harhoff, he had a GPS available and we have
25 given to the Defence photos which shows the palm of the investigator with
1 the GPS on it. If that photo could have an exhibit number, please,
2 Mr. President.
3 JUDGE ROBINSON: Yes.
4 THE REGISTRAR: As P924, Your Honours.
5 MR. WAESPI: And another issue I omitted to raise is to tender the
6 still from that video which shows the M52 the witness referred to. If
7 that could be exhibited as well.
8 JUDGE ROBINSON: Yes.
9 THE REGISTRAR: As P925, Your Honours.
10 MR. WAESPI: If the following satellite photo, 03480, could be
11 retrieved, please.
12 Q. Colonel, you will see on the next photo again the same two lines,
13 this time in the white. On the left side it's 176 degrees, the line you
14 claim was your guidance to visit these locations. On the right side is
15 170 degrees, other witnesses have said was the likely direction of fire.
16 Now, you see in black, WP2, 3, 4. These are all the locations our
17 investigator has visited and we have photos from all these locations
18 disclosed to the Defence. Now, do you accept, Witness, just looking at
19 the satellite picture, granted 12 years after the event, it appears that
20 there is a number of possible - I say possible - locations where mortars
21 could be fired into the city of Sarajevo on the 28th August 1995? Do you
22 accept that?
23 A. I would like to answer this question in greater detail. Of course
24 in theory, looking at this photograph and seeing these clearings, at least
25 on the last two points, theoretically a mortar could be placed. But I
1 don't understand why you have mentioned already twice my own arguments. I
2 never said that all possible firing points were on rocky slopes, in the
3 middle of a forest, and such like.
4 Moreover, I gave you some photographs and I don't understand why
5 you are not showing them. They show that I was on absolutely flat
6 surfaces, in clearings covered with pristine grass. A mortar could be
7 placed there. But our expert who scrupulously looked and investigated saw
8 no traces of an actual mortar there. If you show my photographs, there
9 are the rocky slopes which I point at with my finger; there are meadows
10 there. Yes, there were meadows, but they were flat and clear, like the
11 floor in this room. It was obvious nobody had placed a mortar there. And
12 you are making me out as saying or having said that all of the terrain was
13 rocky slopes and forests. I didn't say that.
14 Now, look at this photograph, and if we see this line, 170
15 degrees, you can say that yes, there are clearings there and meadows. But
16 that doesn't prove anything. Maybe 20 years later, there are slopes
17 there. Sorry, 12 years.
18 Q. First of all, there are two sources, Colonel, for our allegation
19 or for my point that the only argument you have advanced were that it was
20 impossible to fire mortars from the location. It's new today to hear that
21 you say it was possible to fire but you didn't see traces. That's an
22 argument I have not heard.
23 But let me just go back to what you said last time, and I have
24 quoted once before today. You said, quote from page 7.701, lines 19 to
1 "I visited the location today with my own expert group. We were
2 here and here and here, and I have no doubt in my mind that this place was
3 unacceptable, that no shell could have come from here. There is no
4 possibility to fire a shell from this position at the place where it
5 actually landed."
6 There is no mentioning of, it's possible but there are no traces.
7 You said "No possibility."
8 A. It's taken out of context, that's what it's called, because at the
9 time I was giving the interview, I already had in my possession the
10 photographs that already showed me pointing my finger on flat surfaces,
11 clear surfaces, not only rocky slopes. But the fact is you can interpret
12 the word "impossible" in different ways. You can interpret it narrowly,
13 like physically impossible, and you can interpret it broadly, meaning that
14 it was impossible to fire from there and then destroy all the traces of
15 placing a mortar. It's your interpretation of the word "no possibility"
16 or "impossible" that's very narrow.
17 JUDGE ROBINSON: Mr. Waespi, we are coming to the break and I
18 believe to the -- should be to the end of your cross-examination, the 50
20 MR. WAESPI: Yes. I'd love to have 10 more minutes, if that's
22 JUDGE ROBINSON: Yes, after the break.
23 MR. WAESPI: Thank you, Mr. President.
24 --- Recess taken at 10.28 a.m.
25 --- On resuming at 10:51 a.m.
1 JUDGE ROBINSON: Yes, Mr. Waespi. Ten minutes.
2 MR. WAESPI: Thank you, Mr. President. If this photo could be
3 saved as an exhibit, please.
4 JUDGE ROBINSON: Yes.
5 THE REGISTRAR: As Exhibit 200 - I'm sorry, Your Honours - as
7 MR. WAESPI: And I would like to conclude with two photos and
8 perhaps a document.
9 Q. Colonel, if the first of these photos - and I only have a hard
10 copy of your photos, Colonel - could be placed onto the ELMO. This is
11 DD00-4406d. Now, can you explain us where this location is, or rather,
12 was, if you recall.
13 A. Yes. On every photograph I point with my own hand the point that
14 would have been a firing point, according to the schematic. So on every
15 photo it's 15 to 30 metres away from me. We determined the point. I go
16 out there and the photographer takes a snapshot of me as I am pointing to
17 the place that could have been potentially a firing point.
18 Q. Okay. We might go to a map in a moment. But just to conclude
19 this photo, that looks like it's Sarajevo in the background; is that
21 A. Yes, yes.
22 Q. And this is territory controlled by the Sarajevo-Romanija Corps,
23 by the Bosnian Serb army; is that correct?
24 A. Yes.
25 Q. And it looks like it's a perfect observation point, one of the
1 many you, I'm sure, have visited when you toured around Sarajevo; is that
3 A. Of course not. I had several dozen, thousands of such points.
4 Let me remind you that we in the Sector Sarajevo covered dozens of square
5 kilometres, dozens of hundreds of square kilometres. I didn't have time
6 to tour all possible observation points.
7 Q. Yes. I'm just referring to this one. That looks like a great
8 observation point over the city of Sarajevo. Do you agree?
9 A. If you mean a nice vantage point that gives a great panorama to
10 tourists, then yes. From the viewpoint of the militaryman, this point is
11 of zero value. It gives the military nothing. It shows some houses,
12 neighbourhoods. It gives you absolutely no idea of the adversary, let me
13 put it that way, who is behind those hills. This one is not even that
14 good, considering that's in a -- that it is in a forest.
15 JUDGE ROBINSON: So it's only good for tourist purposes?
16 MR. WAESPI:
17 Q. But I suggest to you that it's perfect to see the hit of an
18 artillery, of a motor shell, see the smoke, give corrections over the
19 radio to a gunner. That would be a suitable point for that. Not for
20 tourists, for any military person. Do you agree?
21 A. I don't quite understand. If you look at the man who is closest
22 to the camera and the clearing there, then it is a possible location. But
23 let me draw your attention to one thing. The neighbourhood we're talking
24 about, Markale, is not visible from this point. It is behind the hill and
25 down the hill, at the foot of the hill. You couldn't see any smoke. We
1 are now seeing the opposite side of Sarajevo, which is very, very distant
2 from Markale.
3 Q. Yes, I accept that. In fact, I can't really see clearly. But I'm
4 just putting to you that if one -- somebody wanted to fire into Sarajevo,
5 into the visible parts, you could actually see the impact or at least the
6 smoke. Do you agree with that?
7 A. I don't understand. What target? What installation are you
8 talking about?
9 Q. Let me just repeat. In theory, if somebody wanted to fire a shell
10 from this place into the visible part of Sarajevo, the part of Sarajevo
11 you could see on this picture, indeed, in reality, he could do that; he
12 could observe the impact based on the smoke or other, you know, debris and
13 give corrections. That would be possible.
14 A. Of course, if we are to analyse all sorts of military activity,
15 one can fire not only a mortar but a tank without even raising the gun
16 barrel. You could fire directly.
17 Q. Thank you very much, Witness.
18 MR. WAESPI: If this could be an exhibit, Mr. President, Judge
20 JUDGE ROBINSON: Yes.
21 JUDGE HARHOFF: Colonel, which point is this photo taken on? Is
22 that the 3.400 or the 3.600 metres' point on the 176-degree bearing, line?
23 THE WITNESS: [Interpretation] It's certainly on that line. And
24 second, I have to be honest, now I don't remember any longer which
25 photograph pertains to which locations, because I sent a set of
1 photographs and there were four photographs in total. I found three. My
2 finger is pointing at the wooded area. It could be the 3.400. But to be
3 perfectly honest, I don't remember which location it is.
4 JUDGE ROBINSON: Mr. Waespi, you must be coming to the end now.
5 MR. WAESPI: Yes.
6 JUDGE ROBINSON: Give this an exhibit number, please.
7 THE REGISTRAR: Your Honours, this is admitted as P927.
8 JUDGE ROBINSON: For your last question, Mr. Waespi.
9 MR. WAESPI: Yes, thank you, Mr. President.
10 Q. Colonel, all this you did as a Russian colonel rather than as
11 UNPROFOR Chief of Staff; is that correct?
12 A. No, that's not correct. My main position was as an employee of
13 the UN, the military mission, chief of the Sector Sarajevo, in
14 Bosnia-Herzegovina, part of the Russian contingent. And only after that I
15 was practically unofficially the senior member of the Russian Battalion
16 within the UNPROFOR. But I was first and foremost the Chief of Staff of
17 the peacekeeping mission.
18 JUDGE ROBINSON: Sorry, Mr. Waespi. Suppose he had done it as a
19 Russian colonel rather than UNPROFOR Chief of Staff. What is the point
20 that you are making?
21 MR. WAESPI: It's unusual UN personnel, and we have seen the blue
22 helmets, blue caps, on the previous photo are supposed to act within the
23 UNPROFOR mandate, not get instructions or act on behalf of their national
24 contingent. And the witness said himself that I am a citizen of my
25 country, and this is very, very different from an UNPROFOR general,
1 UNPROFOR colonel, acting as an UNPROFOR, UN, neutral general. And my
2 suggestion is that he acted, indeed, as a Russian, as he confirmed,
3 because Russians had preferred treatment by the Bosnian Serb army and I
4 wanted to ask the witness to comment about that.
5 JUDGE ROBINSON: Well, that is being put to you very directly.
6 Let us hear the answer -- your answer to it.
7 THE WITNESS: [Interpretation] Yes, I'll be happy to. We are now
8 really coming to the conclusion that I wanted to concentrate on. This is
9 absolutely incorrect, to suppose that I refuted the results of the
10 official inquiry as a Russian citizen. I acted, first of all, as a UN
11 officer from the position of impartiality to any side, and that was my
12 chief function. I did not engage in any direct confrontations or
13 acquisitions. If I wanted to accuse the Bosniak army, I would have
14 investigated only the first two locations and I would have determined that
15 fire had come from there. But that was not my purpose.
16 I was just trying to show that the accusations and determinations
17 against Serbs were false. That doesn't mean that one side was worse than
18 the other. My belief was that one needs to be fair to everyone. And I
19 wanted to go against the monopoly of truth, the monopoly over truth that
20 the porte-parole had at his press conference.
21 JUDGE ROBINSON: Thank you, Mr. Waespi.
22 Any re-examination?
23 MR. WAESPI: Can I ask an additional question?
24 JUDGE ROBINSON: In relation to this?
25 MR. WAESPI: Yes.
1 JUDGE ROBINSON: One more.
2 MR. WAESPI:
3 Q. But it's a fact that the Russian UNPROFOR members got preferred
4 treatment by the Bosnian Serb army, by the accused, for instance, that
5 they were not taken prisoners in May when all the other UNPROFOR or other
6 UNPROFOR members were taken prisoners. The Russians were not. That's
7 correct, isn't it?
8 A. I'm prepared to answer this. It's very simple. The soldiers of
9 the Russian Battalion stationed in Gorazde were not captured for one
10 simple reason. They were on the territory controlled by the
11 Sarajevo-Romanija Corps, by Serbs. In order to capture or take hostage
12 the Russian soldiers, one would need to break out of the front line, then
13 capture the Russian soldiers and detain them. And that would have meant
14 running the risk of huge losses. Sometimes we ran risks even on Serb
15 territory, my soldiers and I. You always run risks. It doesn't really
16 rather where the bullet is coming from, from which side, or whose shell is
17 going to explode under our APC. We were running risks all the time, but
18 we wanted only fairness and justice.
19 JUDGE ROBINSON: Yes. So the explanation is a tactical one. You
20 can't push this any further, Mr. Waespi.
21 MR. WAESPI: Yes.
22 JUDGE ROBINSON: Thank you very much.
23 Mr. Tapuskovic, how long will you be in your re-examination?
24 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honour. It is
25 very difficult for me to give an answer to that. It depends on how much
1 time the Chamber allots me. The Chamber has insisted so far --
2 JUDGE ROBINSON: Since you are want to refer to the adversarial
3 system, I should tell you that, well, certainly the one that I come from,
4 re-examinations are usually short and to the point. It's not an
5 opportunity for you to rehash matters. And I will give you about 40
6 minutes for re-examination, no more, if you need 40 minutes. Confine
7 yourself to matters that arise from cross-examination.
8 MR. TAPUSKOVIC: [Interpretation] Your Honours, I will truly limit
9 myself to just those issues. However, I would like an additional
10 instruction from you as Defence counsel. This witness was asked to send
11 in certain pieces of evidence that he mentioned and the witness did so.
12 Now I would like to know whether I will be able to explore those pieces of
13 evidence, the ones that the witness brought in or sent in, since they were
14 mentioned here. In addition, I would like to explore with him other
15 pieces of evidence. You said that all of them had to be --
16 JUDGE ROBINSON: As long as it arises out of cross-examination.
17 It must arise out of cross-examination.
18 MR. TAPUSKOVIC: [Interpretation] Yes.
19 JUDGE ROBINSON: That is the criterion that is applicable and
20 which you well know.
21 MR. TAPUSKOVIC: [Interpretation] Well, Your Honours, I will
22 definitely stick to what I have to stick to.
23 [Trial Chamber confers]
24 JUDGE ROBINSON: Yes. Go ahead.
25 MR. TAPUSKOVIC: [Interpretation] Your Honours, could the witness
1 be shown P254, which was shown just a moment ago to the witness. This is
2 a drawing dated the 29th of August, 1995.
3 Cross-examination by Mr. Tapuskovic:
4 Q. [Interpretation] Mr. Demurenko, on the day when you gave the
5 statement to the television, to the Associated Press journalist, if I
6 remember well, you said that you had this drawing in mind and that this is
7 what made you doubt the analysis of the person who performed this
8 investigation and that this is what you said to the journalist of
9 Associated Press. Is that correct?
10 A. Yes. This is precisely the drawing that was the basis for
11 investigation. However, what made be doubt was not the drawing itself,
12 no. I took the drawing as a firm fact. There were other things that made
13 me question this. The first one was that two hours after the explosion,
14 somebody was brave enough or stupid enough to accuse Serbs of that, and
15 the second aspect that made me question this was that the very large
16 number of victims in the street was due to just one shell, which in
17 reality practically doesn't happen.
18 Q. Thank you. However, you saw this drawing, and based on your
19 knowledge and your experience, can you tell us, did the mortar come in
20 from the north or south, based on this drawing and based on the
21 calculations on the drawing?
22 A. Based on the drawing one cannot say so.
23 JUDGE ROBINSON: Mr. Waespi.
24 MR. WAESPI: Yes. I don't think that arises from
25 cross-examination. I didn't go into north or south or terrorist attack or
1 whatever. The witness insisted to use this photo, but I said I'm not
2 interested in the angle of the descent but the direction of fire. That's
3 at issue.
4 [Trial Chamber confers]
5 THE WITNESS: [Interpretation] It is obvious --
6 JUDGE ROBINSON: No, don't answer.
7 Mr. Tapuskovic, let me hear what your -- what would your next
8 question be following from this?
9 MR. TAPUSKOVIC: [Interpretation] My next question concerning this
10 is as follows: This is the Prosecution Exhibit 254. My next and only
11 question is whether the witness saw Exhibit 253, the Prosecution exhibit.
12 I'm not asking for any explanation in relation to 254, but I would like to
13 know whether the witness saw another document also dated the 29th of
14 August, 1995.
15 JUDGE ROBINSON: Mr. Waespi's objection to your question was that
16 it didn't arise from cross-examination because he didn't concern himself
17 with the angle of the descent but with the direction of fire.
18 MR. TAPUSKOVIC: [Interpretation] Your Honours, but he explained
19 here a number of things relating to his doubts about what he had learned
20 on that day from various sources. That was the main motive and
21 practically this is what Mr. Waespi's examination centred on for
22 practically the whole day. This witness spoke about his doubts and what
23 motivated him to do that.
24 JUDGE ROBINSON: I believe that is fair, Mr. Waespi.
25 What is your answer to the question, the question that was put by
1 Mr. Tapuskovic?
2 THE WITNESS: [Interpretation] I did not understand the question.
3 MR. TAPUSKOVIC: [Interpretation] But, Your Honours, could this
4 other drawing also be shown to the witness. This is Exhibit 253, the same
6 JUDGE ROBINSON: Yes, it can be, but let us have the witness'
7 answer to the question that was objected to and which I'm allowing. Can
8 you repeat that question?
9 MR. TAPUSKOVIC: [Interpretation] My question is: In addition to
10 the drawing dated the 29th of August, 1995, did the witness receive from
11 the same source another drawing also of the same date, and I would like
12 this to be shown to the witness so that he can reply with a yes or a no.
13 JUDGE ROBINSON: That wasn't the question. You asked the question
14 originally and Mr. Waespi objected, and I have now ruled that the question
15 may be answered. We now have it.
16 MR. TAPUSKOVIC: [Interpretation] Yes, yes. I asked --
17 JUDGE ROBINSON: I have it here. "Can you tell us, did the mortar
18 come in from the north or south, based on this drawing and based on the
19 calculations on the drawing?"
20 What's your answer to that question?
21 THE WITNESS: [Interpretation] Based on the previous drawing, it is
22 impossible to say from which direction the mortar came because there were
23 buildings there. Looking at the drawings, one can see the buildings, how
24 high they were, and it is clear that the direction, as drawn in, was from
25 the south. But I didn't have this drawing.
1 MR. TAPUSKOVIC: [Interpretation]
2 Q. All right. So these two drawings on the same date are showing two
3 different directions; is that correct? One from the north and one from
4 the south.
5 A. If this is a question, then my reply is yes. This is an
6 additional proof of contradictions and unwillingness of officials and
7 UNPROFOR to investigate the true cause.
8 MR. WAESPI: I don't understand the basis for the Defence's
9 question that these drawings are contradictory. Where does it say it came
10 from the south or from the north? The building is the indication that --
11 and the building stands on the southern side of the road in both images.
12 That suggests that it came from the south. Maybe I don't understand the
13 point the Defence is making.
14 JUDGE ROBINSON: Mr. Tapuskovic, you are now referring to the
15 image that is on the screen.
16 MR. TAPUSKOVIC: [Interpretation] Initially, or rather, yes, I am
17 now referring to this drawing. As to the previous drawing, it shows a
18 completely different direction. Both drawings were made on the same day.
19 This one here is showing the south as the direction and the first one is
20 showing north. At any rate, there are two possible directions. The one
21 that was initially shown to the witness is the one that made him doubt
22 this, and the other drawing was shown later. This other drawing is also
23 already in evidence and we will have an expert commenting on this. Both
24 drawings were made on the same day and they show two completely different
25 directions. I just asked the witness whether he had also seen this second
1 drawing and he said no. And I don't need to insist on this any further.
2 JUDGE HARHOFF: Mr. Tapuskovic, could it be that Prosecution
3 Exhibit 254 is seen from the west towards the east, while Prosecution
4 Exhibit 253 is seen from the other direction, from the east towards the
6 MR. TAPUSKOVIC: [Interpretation] My view is of no importance. At
7 any rate two drawings were made on the 29th of August, one showing one
8 direction and the other showing the other direction. It is my position
9 that the first one shows north as the direction of the mortar and the
10 other one shows south. Both documents were produced on the same day by
11 the same service, and we have been dealing with these drawings for quite a
12 long time and they show two completely different directions. All I did
13 was ask the witness whether he had also seen the other drawing and he said
14 that he had never seen it. And in a way, this second drawing could be
15 more accurate. Now, my opinion perhaps is of no importance on this.
16 JUDGE ROBINSON: Mr. Waespi.
17 MR. WAESPI: I see that the point is made, but that's clearly
18 something I did note -- I understand you ruled, but that's not something I
19 did in my cross-examination. That would have been perfect for
20 examination-in-chief, to go into these details about angle of descent.
21 But I understand that the Defence has finished the point.
22 JUDGE ROBINSON: Move on to another point, Mr. Tapuskovic.
23 MR. TAPUSKOVIC: [Interpretation]
24 Q. Mr. Demurenko, last time you said that you also had a number of
25 documents that you did not bring with you to The Hague because you
1 believed that those documents were under special UN regime, that you had
2 no right to bring them in; is that correct?
3 A. Yes.
4 Q. In the documents that you sent to the Court, is there an important
5 document among them? I would like to show this document to you. It is
6 marked as DD00-4407. It was marked ...
7 [Trial Chamber confers]
8 JUDGE ROBINSON: Mr. Tapuskovic, the Chamber will allow you to
9 refer to the documents produced by the witness and which were not
10 addressed by the Prosecutor, and the Chamber recalls how this whole
11 question arose. It arose in the following circumstances: That the
12 witness claimed that he had documents which could support the points that
13 he was making, and the Chamber said it would defer his cross-examination
14 so as to allow him to produce those documents. Well, obviously, those
15 documents which substantiated his case would not be relied on by the
16 Prosecutor and so the only way to allow that would be to allow you to
17 utilise those documents. The Chamber is, of course, entirely free to
18 determine how the case is to proceed, and even though you are now
19 re-examining, the Chamber will allow you to refer to those documents which
20 substantiate the points he was making with, of course, the Prosecutor
21 being given the right to further cross-examine on that. So that this is a
22 re-examination which is rather unique. It's a re-examination coupled with
23 an examination by you on those points which were not addressed by the
24 Prosecutor but which you feel will substantiate the witness' line of
1 Mr. Waespi.
2 MR. WAESPI: Yes. The next document is, I understand, an UNPROFOR
3 document which is confidential. It is confidential -- at least what
4 appears from the face of it. It came from the witness' hands and it
5 contains some, I think, sensitive information which may be old, 12 years
6 ago, but it has code names at the end of the document. So just out of an
7 abundance of caution, I would go into private session in order to discuss
8 this document.
9 JUDGE ROBINSON: Yes, private session.
10 [Private session]
11 Pages 8981-8984 redacted. Private session.
12 [Open session]
13 THE REGISTRAR: Sorry for the interruption. Your Honours, we're
14 in open session.
15 MR. TAPUSKOVIC: [Interpretation] Could the witness be shown
17 Q. Mr. Demurenko, who made this drawing?
18 A. I did it.
19 Q. Does this drawing correspond to what you have drawn for us here in
20 the courtroom?
21 A. Absolutely.
22 Q. And can you tell us, what does this represent, although I
23 understand it was a long time ago?
24 A. It's very simple. I tried to make a very simplified version of
25 all the complex artillery and other calculations so that it is
1 understandable to laypeople, people who have nothing to do with the war or
2 the artillery. In the top part of the drawing we see a representation of
3 a narrow street and the distance between two buildings and the place of
4 explosion. Then in the broken line, the dotted line, we see the possible
5 trajectories of the mortar shell that could have arrived from that
6 direction. We see the line of separation between two armies, the front
7 line between the Bosnian Muslims and the army of Republika Srpska. And we
8 see the six positions that correspond to six possible mortar charges.
9 They are in keeping in firing tables, and according to these firing
10 tables, they show from where this shell could have come from, depending on
11 what charge was used. This is understandable, I believe, to a child.
12 We see also the possible deviation of the shell on the left, and
13 on the right-hand side we see the slopes of mountains determined according
14 to the map and we see possible firing positions either on the opposite
15 side of the hill or on the side of the hill which is closer to Sarajevo.
16 I made this so it is understandable to reporters, people who have
17 nothing to do with the military. Apart from this drawing, nothing more is
18 necessary. Practically everybody can understand this. We see those fire
19 points that were on the Bosnian side. If we determine that fire could not
20 have come from there, then it must have come from the other two firing
21 points and then the other side would be responsible.
22 Q. Thank you.
23 MR. TAPUSKOVIC: [Interpretation] I'd like to tender this into
24 evidence as well, DD00-4398.
25 JUDGE ROBINSON: Yes.
1 THE REGISTRAR: Your Honours, the records indicate this was just
2 admitted as P922.
3 MR. TAPUSKOVIC: [Interpretation] And now DD00-4403, could we see
4 that document, please.
5 Q. Mr. Demurenko, who made this drawing?
6 A. As far as I can remember, this was made by a French serviceman who
7 was a part of the first investigation team that was charged with the
8 ballistic expertise, as far as I can remember. I see that the writing is
9 in French and I think that this was done by a French expert.
10 Q. What does this depict? If you tell us -- if you know, please tell
11 us, what does this left line mean?
12 A. You mean the trajectory line or the building itself?
13 JUDGE ROBINSON: Yes, Mr. Waespi. Mr. Waespi is on his feet.
14 MR. WAESPI: Yes. Since these are kind of new documents that the
15 witness brings from home, I think it might be useful to first establish
16 the foundation, you know, of the witness' knowledge, familiarity, with
17 this document, why he talks about it. Otherwise, you know, it serves no
19 JUDGE ROBINSON: Well, he did say, in answer to the question, Who
20 made this drawing, that as far as he could remember, it was made by a
21 French serviceman who was part of the first investigation team.
22 MR. WAESPI: Yes, but he's not called as an expert. I mean,
23 what's the basis of him to now make a comment on a French report? Was
24 that a report he has seen, he has waved to the cameras when he talked to
25 Bosnian Serbs? I would just like to see a connection between this
1 document and the gentleman's question.
2 JUDGE ROBINSON: That's a different point. If you want to object
3 on that basis, that's a different issue.
4 [Trial Chamber confers]
5 MR. WAESPI: It is already an exhibit already, by the way. You'll
6 remember one of the confidential witnesses talked about it and even made a
7 drawing. I can mention the name of the witness in private session.
8 JUDGE ROBINSON: But why can't he comment on it, Mr. Waespi? Why
9 can't this witness comment on it? You say he doesn't have the expertise
11 MR. WAESPI: Yes. I thought these were documents which the
12 witness brought with him from Russia, and I would like to see why is it in
13 his file before he kind of mentions how -- to make some comments.
14 JUDGE ROBINSON: But that's for you to raise in
15 cross-examination. I see no valid objection to this witness commenting on
16 this document.
17 Yes. Proceed, Mr. Tapuskovic.
18 MR. TAPUSKOVIC: [Interpretation]
19 Q. First of all, I would like to ask the witness, Mr. Demurenko,
20 whether he had this document in his possession back when he was in
21 Sarajevo. Did he perhaps analyse -- did he perhaps analyse this document
22 back then along the lines that he has explained to us now?
23 A. To tell you the truth, I don't remember this document being part
24 of the material that I analysed. I have a feeling that this document has
25 an alternative source and it basically does not contradict the idea that I
1 had during my investigation. However, I did not have this document at the
2 time. But I wanted to give an additional answer.
3 MR. TAPUSKOVIC: [Interpretation] Your Honours, I understand
4 Mr. Demurenko but I'm not receiving any interpretation. There was no
5 interpretation into B/C/S.
6 JUDGE ROBINSON: Would the court deputy have that looked into, or
7 the technical staff. Are you receiving any now?
8 MR. TAPUSKOVIC: [Interpretation] Yes.
9 JUDGE ROBINSON: Yes. Proceed.
10 THE WITNESS: [Interpretation] I want to draw your attention to the
11 fact, and I'm saying this for the third time, the attempt to show
12 indirectly my alleged bias in favour of the Serbs is improper. The
13 Prosecutor just said that Mr. Demurenko was waving with this drawing in
14 front of the Serbian television cameras, and I need to tell you that I
15 never gave a statement to the Serbian television. I gave a statement to
16 Associated Press, the US agency representative. And now to try and to
17 depict me as somebody who is a supporter of the Serbian side, that is
19 MR. TAPUSKOVIC: [Interpretation]
20 Q. Mr. Demurenko, I would like to ask you to comment on this
21 drawing. What do these two lines represent, the trajectory of the shell?
22 JUDGE ROBINSON: Mr. Waespi.
23 MR. WAESPI: Yes. I object. The witness just said he did not
24 have this document at that time. This is an exhibit that's been on the
25 record for a while. It could have been shown to the witness in the real
1 examination-in-chief. And we had similar exhibits before then exactly
2 depicting this angle of descent. I didn't raise it in cross-examination.
3 We could go on forever with this witness.
4 JUDGE ROBINSON: No, Mr. Tapuskovic will not be allowed to go on
6 [Trial Chamber confers]
7 JUDGE ROBINSON: Mr. Waespi, we had ruled that Mr. Tapuskovic
8 would be allowed to put questions on documents brought by this witness to
9 support his line of argument. I will allow the question irrespective of
10 the fact that this was already an exhibit.
11 Mr. Tapuskovic, we have to move quickly. The 40 minutes are up
12 and I will allow you to proceed until the break.
13 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours. I will
14 conclude by then.
15 Q. Sir, could you please give us your comment. How does it relate to
16 your earlier assessment? And could you comment on the trajectories, the
17 left line and the right line, and various information about the angles.
18 Can you give us the explanation? What does the first trajectory line
19 show, the one on the left?
20 A. You know what, it's difficult to comment on this, not knowing the
21 author himself and not knowing what he was trying to sell. But if we
22 distance ourselves from this, then I can tell you that the left trajectory
23 is showing an angle as determined by the expert. And this trajectory goes
24 right by the building. So if you -- as you can understand, this angle
25 could not have been any narrower. Otherwise, the mortar would have hit
1 the roof of the building and exploded there. I think that this angle, 67
2 to 88 degrees, is the correct one. At least it resembles a correct one.
3 And as for the other angle showing 87 degrees, it was done in a shaky
4 hand, so to speak, and it seems to be an unconvincing argument of the
5 expert drawing this drawing. What were his reasons for drawing this
6 trajectory, I couldn't tell you. We would need to hear his own
7 explanation. And I can't draw any other conclusions based on this
9 Q. Thank you. But let us try to speed up. Let me show you some
10 additional photographs made by you on this site.
11 MR. TAPUSKOVIC: [Interpretation] DD00-4406, that's the first
12 photograph. Could we see that, please.
13 Q. Mr. Demurenko, what are you pointing at?
14 A. As you can see, even though you can't see my face, it is obvious
15 that this is my arm and my hand. I am pointing to the site which,
16 according to calculations, could have been a firing position, and based on
17 the photograph you can see that it was impossible to place a mortar in
18 such an area. A mortar cannot fire from this location.
19 JUDGE ROBINSON: Well, could you tell us why?
20 THE WITNESS: [Interpretation] Yes, I can. A mortar without the
21 distance device, and that's precisely the kind of mortar that was used,
22 such a shell will explode at any contact, which means that such a shell
23 could have hit a branch and exploded right there on the spot killing the
24 crew manning the mortar. And I don't think that there were any
25 suicide-bent soldiers firing from a mortar there.
1 JUDGE HARHOFF: Colonel, do you recall the distance from Sarajevo
2 between this point and the Markale market? Was that the 3.400 or the
3 3.600 metres' distance or was it at another point?
4 THE WITNESS: [Interpretation] I already answered a similar
5 question. To tell you the truth, I don't remember which photograph
6 pertains to which particular firing position. I simply didn't write that
7 down and I don't want to mislead you now. But I know that this was one of
8 the possible firing positions as we established looking on the map.
9 MR. TAPUSKOVIC: [Interpretation]
10 Q. However, Mr. Demurenko, could it be said that each of these
11 photographs - and I will show you just a couple of more - each of those
12 photographs depicts one such possible firing position?
13 A. That's precisely how it was. Each photograph was made in one
14 particular occasion which had been identified in advance with a margin of
15 error of 5 metres. My team and I travelled to these locations and took
16 these photographs precisely in order to show that it was impossible to
17 fire from there.
18 Q. You mentioned that explicitly earlier. In the vicinity of this
19 location where you took this photograph, were you able to observe the
20 entire area? Were you able to see whether there were any traces showing
21 that a 120-millimetre mortar was placed in that area?
22 A. Certainly, as we were approaching this spot, we observed the
23 entire area around it, and had I seen 10 to 20 metres away from this spot
24 a possible firing position, then yes, this could have been something that
25 could have prompted me to draw some other conclusions in my
1 investigation. However, there were no such traces anywhere.
2 Q. Tell me one more thing about what we see on the drawing. When you
3 were pointing that finger, on the location where you were standing,
4 actually, were there any traces of a mortar there?
5 A. I've just spoken about that. Of course not. It would have been
6 strange to catch me out standing exactly where the mortar had stood and
7 pointing my finger somewhere else. My purpose -- the purpose of my
8 inquiry was not to deceive or to mislead; it was to establish the truth.
9 Knowing, having calculated, that the potential firing point was in the
10 woods, I was pointing there.
11 MR. TAPUSKOVIC: [Interpretation] Your Honours, may I tender this
12 photograph as a Defence exhibit.
13 JUDGE ROBINSON: Yes.
14 THE REGISTRAR: As D357, Your Honours.
15 MR. TAPUSKOVIC: [Interpretation]
16 Q. I'd like to show you two more photographs, not to show them all,
17 and then finish. DD00-44066.
18 JUDGE ROBINSON: Mr. Waespi.
19 MR. WAESPI: I think that's probably a wrong number. They have
20 little letters at the end. It's probably not a 6 but maybe a D or G or
22 MR. TAPUSKOVIC: [Interpretation] Yes, my mistake. DD00-4406b.
23 Your Honours, my assistant is not sure that the previous photograph has
24 been admitted, that it received a number. Oh, yes, it did. I'm sorry.
25 Q. Mr. Demurenko, look at this photograph. What you just said in
1 relation to the previous photograph, does it also apply here?
2 A. Absolutely. This is an even more heavily wooded area. The trees
3 are thicker. All the -- and it's quite clear that in this overgrown spot
4 a firing point was untenable.
5 MR. TAPUSKOVIC: [Interpretation] May I tender this photograph as
7 JUDGE ROBINSON: Yes.
8 THE REGISTRAR: As D358, Your Honours.
9 MR. TAPUSKOVIC: [Interpretation] And could we now see DD00-4406c.
10 THE WITNESS: [Interpretation] I think that's the previous one,
11 just showing all of me, not only my arm.
12 MR. TAPUSKOVIC: [Interpretation] No. I have a photograph showing
13 a meadow under that number. I don't know whether this was marked
14 correctly. DD -- it's sheet number 13 of that document. Sorry, the
15 letter at the end is E, not C.
16 Q. We see the entire meadow here. You probably were able to see even
17 a larger territory. Did you look at the entire meadow? Did you see
18 anything that would have indicated the placement of a mortar at one point?
19 A. That photograph illustrates what I said; namely, that not all
20 firing points, not all potential firing points, were placed in forests and
21 woods, and this is precisely one that proves that point. It was not my
22 fabrication in which I placed all the potential firing points in woods.
23 This one happened to be in meadows. This was a perfectly clear meadow
24 without any traces of vehicles that could have carried the mortar. No
25 traces of a crater left by the base placed. No traces of powder, no
1 traces of packaging. We see cattle grazing, but absolutely no trace of
2 mortar placements, of firing. So the firing didn't come from here. I
3 think this is the remote position, and on that satellite picture we saw a
4 meadow. So this is either the most remote position or the second most
5 remote position from Sarajevo.
6 MR. TAPUSKOVIC: [Interpretation] May I tender this photograph,
7 Your Honours, as a Defence exhibit, and since I have no time to open any
8 new subjects, I will finish my examination here.
9 JUDGE ROBINSON: Yes, we admit it.
10 THE REGISTRAR: As D359, Your Honours.
11 JUDGE ROBINSON: Mr. Waespi, just on the points relate to the --
12 relating to the new documents.
13 MR. WAESPI: Yes, and that's quite a number, but I try to limit
15 If we could go back to the Defence Exhibit D357.
16 Further Cross-examination by Mr. Waespi:
17 Q. Now, it looks like these are fortifications on that picture; is
18 that correct?
19 JUDGE ROBINSON: Are we getting it?
20 MR. WAESPI: Yes, I'm sure we'll get it very soon, D357.
21 Q. While that's being done, Colonel, it looks like these wooded beams
22 portray a military fortification, something like that. Do you remember
24 A. Yes, I remember seeing that, but the purpose of that structure was
25 not quite clear to me. I asked the same question when I came to that area
1 of armed conflict. There were two possible explanations. Local
2 inhabitants sometimes, on steep slopes, make such fortifications against
3 landslides. It's just that the photograph doesn't show the territory
4 behind me. Similar agricultural structures were later modified by the
5 armies to serve as anti-infantry fortifications and obstacles that could
6 impede the movement of machinery and vehicles.
7 Q. So that could be --
8 JUDGE ROBINSON: So you're saying that that could be either a
9 military fortification or more simply a structure for agricultural
11 THE WITNESS: [Interpretation] What I'm trying to say is that in
12 mountains in the Balkans, these were often made to prevent landslides, and
13 they are usually under steep slopes protecting important structures, such
14 as roads that could be destroyed by landslides. Later on, when the war
15 began, when battles began, such structures were taken over by armies and
16 modified to serve as fortifications and as obstacles. So they served a
17 dual purpose.
18 MR. WAESPI:
19 Q. Thank you, Colonel. But you're unable to tell us exactly where on
20 a map that location is; is that correct?
21 A. I think I've said three times already that I would be deceiving
22 you if I gave you exact X and Y coordinates on the map. I didn't even try
24 Q. Now, today you said you had a kind of a GPS with you; is that
1 A. Yes, that's true. But as you know, the GPS system is not the
2 Russian system called GLONASS. We used other countries' systems --
3 JUDGE ROBINSON: Just a minute. Let's hear Mr. Tapuskovic.
4 MR. TAPUSKOVIC: [Interpretation] Your Honours, this is beyond the
5 scope of my examination, at least I think so.
6 MR. WAESPI: Mr. President, that's a new location, a new photo
7 shown, and I'd like to know where it is. It goes to the credibility of
8 the witness. I'd like to know how he figures out, you know, the exact
9 location. That's the purpose of my question.
10 JUDGE ROBINSON: Yes. The question is allowed.
11 MR. WAESPI:
12 Q. However, last time when you testified, Colonel, you said that, and
13 I quote you from page 777, that "unfortunately, at the time we didn't have
14 a GPS device but we were able to use the traditional old-fashioned
15 instruments to determine the location."
16 So what's true now? Did you have a GPS system or did you not?
17 A. The truth is what I said 30 minutes ago. The system of global
18 positioning has multiple functions. One cannot trust only the GPS or the
19 Russian GPS system GLONASS or the instruments we had back in the days of
20 the Soviet army. There are several more systems that enable you to find
21 your position within a range of 5 to 15 metres. I used a number of them
22 to ensure that we were really in the right place as determined by previous
23 calculation and positioning on the map.
24 Q. There are only four or five locations you visited. You're unable
25 to tell us where this location is?
1 A. That's true. In fact, I visited hundreds of locations. It's just
2 that I have photos of four or five of them, you understand? The principle
3 by which he found those sites, we went to the lowest point between the
4 sites and then we found 170 degrees and went up the mountains in that
5 line. It's only a flat line on the map, but it's kilometres in length
6 that we crossed on foot. We visited hundreds of those locations, and in
7 my mind it's like a very, very long and very dense film that I cannot
8 rewind and replay right now in accuracy.
9 JUDGE ROBINSON: Mr. Waespi, we'll take the break now.
10 --- Recess taken at 12.21 p.m.
11 --- On resuming at 12.45 p.m.
12 JUDGE ROBINSON: Yes, Mr. Tapuskovic. I'm sorry, Mr. Waespi.
13 MR. WAESPI: I think it's an honour to be called Mr. Tapuskovic.
14 No problem with that.
15 JUDGE ROBINSON: Well, Mr. Tapuskovic is privileged.
16 MR. WAESPI:
17 Q. Just to repeat what you told us before the break. You said the
18 technique for you to visit these, as you call them, hundreds of places was
19 you would go to the lowest point between the sites and then we found 170
20 degrees and went up on the mountains on that line, in that line. That's
21 the way you proceeded to visit these locations. Is that correct?
22 A. Yes, basically, although travelling meant that we had to go on
23 foot. Some places were so rocky and so steep that we had to travel in
24 APCs to the closest point and then on foot. But in principle we walked
25 hundreds of metres on foot.
1 Q. So you focused on that line, on that 170 degrees. That was the
2 purpose of you, to visit places along that 170-degree line.
3 A. If I were to claim that it was 170 and not 176, then I'm afraid I
4 would mislead the honourable Trial Chamber. All I know is that based on
5 the material that you have, we made theoretical calculations as to the
6 line that had to be verified and that was related to the initial
7 investigation by the Bosnian authorities and UNPROFOR. But to claim that
8 it was precisely 170 and not some other figure is something that I cannot
9 do because I do not wish to mislead anyone.
10 Q. Yes. But you followed one line, either 170 or 176. That was your
11 guiding principle.
12 A. Yes.
13 Q. Now, these -- what you told us a moment ago, that you turned to AP
14 as an international media that might be like that, but the only TV network
15 that carried you was Bosnian Serb TV. Do you accept that?
16 A. Absolutely not true. My statement was broadcast by 110 agencies
17 throughout the world.
18 JUDGE ROBINSON: Mr. Tapuskovic is on his feet. To say what,
19 Mr. Tapuskovic?
20 MR. TAPUSKOVIC: [Interpretation] Your Honours, I do not mind this
21 question being put to the witness, but it is completely outside the scope
22 of my examination earlier.
23 MR. WAESPI: I believe the witness referred himself in an answer
24 to AP, saying that, you know, he was neutral, but I can leave that. No
25 need to go into that.
1 JUDGE ROBINSON: Let's move on.
2 MR. WAESPI: If P922 could be retrieved, please.
3 Q. That's the drawing you referred to a moment ago. On this drawing
4 you can see that the locations you looked at, the distances on that
5 imaginary 176- or 170-degree line, are as follows: Within the Bosnian
6 Serb territory, it's 2.700, 3.200, 3.600, and then it goes on to 4.000 --
7 5.400. Now, 3.200 is wrong. That's a mistake. Isn't that true?
8 A. Right now I cannot make any claims about the accuracy of these
9 figures on this line because one has to look this in the light of the
10 entire material. This is how we have to look at this. And I'm not
11 prepared to discuss the figures right now. I can discuss the principle
12 but the figures themselves will not assist us when it comes to any
13 conclusions, because it's not that they are contradictory but there are
14 some differences in drawings and sketches so it's difficult.
15 Q. But look, Colonel, the importance of that is you rely on specific
16 figures and you go out and check possible or impossible sites of mortars.
17 And if these figures are wrong, if you go to sites that are based on the
18 wrong data, we are looking at wrong places. You look at places that are
19 just not accurate. Today you told us you went to the degree 170. Last
20 time you told us 176. Today we now get a drawing which says 3.200 as one
21 of the distances and last time you told us, and that's on the record, it's
22 a figure of 3.400. If you look at the wrong place, how can you come and
23 say it was impossible for the Bosnian Serbs to fire shells?
24 A. First of all, let me repeat again that you're trying to catch me
25 out when it comes to figures. You said that I claimed on one occasion 170
1 and then on another occasion 176. I'm not trying to do anything to prove
2 anything with the figures, because it's very easy to make a mistake. Now
3 you're saying that 3.200 is not correct, that previously I said 3.400.
4 Let me repeat once again to you.
5 In order for me to be quite accurate, I would need to spend two to
6 three days with the figures, make my calculations using the firing tables,
7 in order to be quite sure about the firing point. I walked this entire
8 possible line of fire myself, on foot. I checked all the possible
9 locations and I came to the conclusion that what the people were saying
10 about the Serbian aggression and Serbian firing was not true. I
11 personally walked on foot the entire trajectory and I established that
12 there was absolutely no location where a mortar could have been placed.
13 That's all.
14 Q. Yes. I suggest to you that you did that on a certain line,
15 disregarding many other calculations that were more reliable, more
16 accurate, than you had. I'm not saying it was bad faith for your side.
17 I'm saying that the basis for your calculations to find these spots was
18 inaccurate, was unreliable, not after the fact already at that time.
19 A. I wish to say that there were no other calculations whatsoever.
20 You cannot show me any other true, accurate calculation because nobody did
21 them, and they didn't do them because it wasn't suitable. As soon as the
22 spokesperson said that it was the Serbs, everybody became quiet, they
23 nodded their heads in consent, saying yes, those were the Serbs, and there
24 was no other alternative. So you cannot show me any other calculation
25 because it simply does not exist.
1 Q. The French engineers, and we have seen the document this morning,
2 came to 160 degrees. That's quite a distance from not only 170 degrees,
3 even 170 -- 176 degrees, even from 170 degrees. That leads you to entire
4 different areas as you can see on that satellite picture. Were you aware
5 at that time that the French cell - and you showed French documents - came
6 to the conclusion that the degree was 160 degrees and not 176 degrees as
7 you thought it was? Were you aware of that?
8 JUDGE ROBINSON: Degree of what? Of --
9 MR. WAESPI: In a circle of 360 degrees, it's 160 degrees. If you
10 look at the clock, it would point about to 4.00 or perhaps 5.00, whereas
11 176 degrees is more to 6.00.
12 THE WITNESS: [Interpretation] I will reply --
13 JUDGE ROBINSON: No, no. Let us have a direct reply. Are you
14 aware that the French came to that conclusion? Are you aware of that?
15 That's the question.
16 THE WITNESS: [Interpretation] I am aware that there were no other
17 conclusions. The word "conclusion" means a final conclusion. An angle is
18 not a conclusion. A trajectory is also not a conclusion. It is just one
19 of the aspects used in investigation. I simply didn't see any such
20 evidence because it doesn't exist.
21 JUDGE ROBINSON: Never mind the word "conclusion" that I used, and
22 I see nothing wrong with it. Are you aware that they made a determination
23 that it was 160 degrees, not 176 degrees?
24 THE WITNESS: [Interpretation] I'm not aware of such an official
25 document. Such official document did not exist, and I'm telling you as
1 the second in charge within the military contingent. The French troops
2 were under my command as well. Had they reached a different conclusion,
3 they would have had to report to me about that; otherwise, they would have
4 been guilty of insubordination. And I'm not aware of any such conclusions
5 reached by them.
6 JUDGE ROBINSON: Very well. That's the answer then, Mr. Waespi.
7 MR. WAESPI: Yes.
8 Q. In fact, on the sketch drawn by you still on the screen, you used
9 the figure six -- 2.850 mils, and that equals, I suggest to you, exactly
10 those 160 degrees that the French arrived at.
11 MR. WAESPI: And, Mr. President, this can be seen in Exhibit P357
12 at page 6. 2.850 mils equals 160 degrees, the conclusion the French
13 arrived at.
14 JUDGE ROBINSON: Are you suggesting to him that in his drawing
15 here depicting a line 2.850 mil, he was in fact representing, seeking to
16 represent, what the French had determined?
17 MR. WAESPI: The only figure of 2.850 I know of is the figure the
18 French used in their engineers report, and we can look at the sketch
20 JUDGE ROBINSON: Let us ask him, then.
21 Where did this figure come from? Why do you have it there, 2.850
23 THE WITNESS: [Interpretation] In order to establish that, one
24 would have to look at the entire material that was produced in
25 investigation. I would have to look at all of them in order to have a
1 full picture. I don't know where this figure came from. Probably not
2 from my head. It was based on something.
3 MR. WAESPI: Maybe we can look at -- and that's going to be my
4 final question. There might be just one sub-question. But if we look at
5 Prosecution Exhibit 357, at page 6, we see a sketch by the French
6 engineers. And as you know, Mr. President, Judge Harhoff, the witness
7 referred to a French sketch before.
8 THE WITNESS: [Interpretation] These are Yugoslav documents.
9 MR. WAESPI: It should be P357, at page 6.
10 Q. While that's being done, a hundred -- just my last sub-question.
11 A 120-millimetre mortar is a mobile weapon, is it not? It can be put into
12 several pieces and carried. Is that correct?
13 A. Yes, it can be disassembled into two or three parts. The aim --
14 JUDGE ROBINSON: Mr. Tapuskovic is on his feet. Mr. Tapuskovic.
15 MR. TAPUSKOVIC: [Interpretation] Your Honours, of course I
16 appreciate this but I know that -- but it has nothing to do with my
17 examination, my redirect.
18 MR. WAESPI: I'm sure that we'll --
19 JUDGE ROBINSON: Mr. Waespi, does this relate to any of the new
21 MR. WAESPI: It does. The photos, the witness said, looking at
22 photos, that it was impossible to bring a mortar there. But again, for
23 the sake of time, we have a mortar expert coming soon, I withdraw that
25 If we could have the next page of that exhibit, please, page 7.
1 Q. Now, look at this image. This, I suggest to you, is a sketch from
2 Markale, and it has at the end the notion of 2.850 millieme equals 160
3 degrees. Was that the source of information for you to use 2.850
4 milliemes as your guiding principle to go on the line of 176 or perhaps
5 170 degree, Colonel?
6 A. Just one second. Can I, in one sentence, give an answer to the
7 previous question? It's quite important.
8 JUDGE ROBINSON: Yes, go ahead.
9 THE WITNESS: [Interpretation] I wish to draw your attention to the
10 fact that 120-millimetre mortar can be disassembled into two parts. One
11 is a base plate and the other one is the trunk. The trunk is over 200
12 kilogrammes and the base plate is over 300 kilogrammes. I doubt that
13 anywhere in the world you can find a soldier who will take it upon himself
14 to carry personally any part of this 120-millimetre mortar. Even though
15 it can be disassembled, one needs either an animal, such as a donkey, a
16 camel or a horse, or a vehicle to transport such an artillery piece. So
17 this was an indirect attempt to claim that this mortar could be carried by
18 hand. Yes, small mortars, 60-millimetre and 80-millimetre mortars, can be
19 carried by a person. And you won't find any person in the world, even
20 Mr. Universe would not be able to carry a 120-millimetre mortar.
21 As for your second question, I have not seen this sketch before.
22 I believe that it was produced subsequently either by -- or by somebody
23 who had these facts and produced a sketch later. This may be a probable
24 drawing. However, I did not see it at the time. I have a feeling that
25 this was not done by a soldier but rather by a senior officer who
1 attempted post factum to recreate the events. This is what I believe.
2 Q. The same French you refer to as a fact of insubordination a moment
4 A. Yes. If he was below the position taken by me, then yes, it was a
5 case of insubordination. There was a French colonel who attempted to
6 produce his own version subsequently. If this was produced by him, then
7 he will be judged by God himself. As far as I know, nothing else was
8 made. This is something that we should have discussed in our staff and
9 there were two or three aspects that needed to be discussed. I would have
10 been happy to discuss them at the time; however, everybody shut their
11 mouth and I was the only one running around trying to establish the truth.
12 Q. Yes. In fact, the only person publicly accused of, and you
13 acknowledge that, of insubordination was you, Colonel.
14 A. Yes.
15 Q. Thank you.
16 MR. WAESPI: No further questions, Mr. President.
17 JUDGE ROBINSON: Mr. Tapuskovic, any questions arising from that?
18 MR. TAPUSKOVIC: [Interpretation] No.
19 JUDGE ROBINSON: None.
20 Judge Harhoff has some questions.
21 Questioned by the Court:
22 JUDGE HARHOFF: Thank you. Colonel, I have two questions for you
23 before we close your testimony. The first question relates to something
24 you said during your first testimony; I think it was on the 5th of July.
25 You said in a couple of sentences that in your view, Sarajevo was under
1 siege, and the reason I'm returning to this fact is that you are a
2 military person and I would like to have your assessment of what you
3 actually meant when you said that the city of Sarajevo was under siege.
4 Can you clarify that to us.
5 A. Yes, I'd be happy to. The city was practically 90 per cent
6 encircled by the Bosnian Serb army troops. On the one hand, one can claim
7 that they were encircled, that they were under siege, because all the
8 roads were blocked and there was very little space for manoeuvre. On the
9 other hand, there was a tunnel under Mount Igman, under the airport, which
10 permitted the people to supply humanitarian aid as well as weapons and
11 allowed them to move troops, allowed the Bosnian Muslims to move troops.
12 So if one looks at the human suffering, then it was a case of a
13 full siege, just like in Leningrad during Second World War. And if one
14 looks at the possibility to have military movements, then one can say that
15 yes, it was possible and one could move 500 to 600 troops overnight
16 through the tunnel. So yes, it was a case of siege but with certain
18 JUDGE HARHOFF: Thank you. My next question is more difficult
19 because, at least for me, I'm a bit puzzled by the conclusions that the
20 Chamber can draw from your exercise in the field after the Markale
21 incident. And this is why I thought I should put the question to you in a
22 different line; namely, to ask you what was really the purpose of your
23 action? And I can see two interpretations and I would like to put them to
24 you in order to indicate to me and to the Chamber whether it was one or
25 the other or perhaps a third interpretation.
1 My first interpretation is that you were unhappy about the facts
2 that some UN spokesman, I think it was a British press officer associated
3 to the UN, who stood out very quickly, a couple of hours perhaps, after
4 the incident and declared publicly on behalf of the United Nations that
5 the shelling had been done by the Serbs. And you felt that he was doing
6 that without any proper basis and so therefore the purpose of your action
7 was simply to say, No, at this point in time it is impossible to establish
8 who fired the shot, and all I want to do is to say that at this point it
9 is impossible to have any opinion about which of the two sides fired the
10 mortar. And that was what you wanted to say and nothing more. That is
11 one interpretation.
12 The other interpretation is that you felt bad about the fact that
13 the Serbs were being blamed for the shot and that therefore your primary
14 purpose was to show that it couldn't have been the Serbs and that's why
15 you went to the field, to establish that, according to the data that were
16 available to you at the time, the Serbs could not have fired the mortar
17 because at each one of the points from which this mortar could have been
18 fired it was impossible to fire a mortar, either because it was too rocky
19 or too hilly or because there was too much wood, or where eventually you
20 found that it would have been possible, then at those places you found no
21 traces of a launching.
22 And it makes a difference to the Chamber which of the two
23 interpretations you really had. Could you clarify this to us.
24 A. Thank you very much for that most important question. I'll be
25 frank and I'll say, I hope you agree with me that there are few people,
1 especially in a rushed situation, in wartime, who could make a decision in
2 a split second and then a week later, with all the things they have
3 learned in the meantime, they didn't regret the decision or change their
4 mind. I am not one of those few people, even if they exist. So it's
5 probably the case of a third motivation that is a combination of the two
6 you mentioned. I'll try to explain.
7 By that time in August 1995, I was really sick and tired, totally
8 fed up with this overwhelming deceit from all sides and the portraying of
9 Serbs as culprits for everything, including those who were supposed to be
10 international representatives, honest people, impartial, unbiased. Even
11 they either kept their silence or even contributed to that general media
12 frenzy. So by August I was really fed up with that. And the statement
13 made by the spokesman was the last straw that broke the camel's back and
14 prompted me to overstep my authority.
15 On one hand, it was not the job of a rather highly placed officer
16 to run around in fields and across hills. I was not a lowly soldier at
17 that time; I was rather highly placed. But I wanted to check for myself,
18 not simply entrust it to a lieutenant or a major. And I also wanted to
19 expose the spokesman and his lie, as well as those who proceeded to
20 comment and further disseminate his version, that it was the work of
21 Serbs. And in the course of my work this essence, this purpose, became
22 clearer and clearer until it became crystal clear. My goal was to show
23 that the spokesman was lying, or at least jumped the gun when he had no
24 grounds to say that, and the spokesman represented the entire organisation
25 of the UN. This was heard throughout the world and I wanted to put a stop
1 to that. That was one purpose.
2 And another objective was that if the spokesman said this was done
3 by Serbs, I wanted to show that there can be no certainty. There was no
4 certainty at that time and an inquiry was called for. Since nobody showed
5 any initiative, not even the superior UN BH command, nor anyone in our
6 sector, the sector of Sarajevo, I took the initiative upon myself. That's
7 it. That's all.
8 JUDGE HARHOFF: Thank you. But it seems as if you're saying that
9 it could, indeed, have been the Serbs who fired the shot and that your
10 objection was really that at that time it was impossible to say so. But
11 it could have been the Serbs or it could have been the Bosnians -- the
12 Bosniak, the ABH, ABiH. Both options were possible and the only thing
13 that you were saying was that at that time no one could be sure. Is that
14 how we should interpret it -- interpret your testimony.
15 A. Interpreted narrowly, yes. But in the broader sense, you remember
16 earlier on we mentioned a subject but we didn't develop it. I am 100 per
17 cent sure that it was an internal terrorist act. A mine was set up very
18 cleverly, very slyly, in a way to imitate a mortar mine. And anybody
19 could have placed that mine under the Markale market. It could have been
20 any local inhabitant, including an ethnic Serb. It was done locally, I
21 was sure of that. I cannot, of course, claim that it was not by an ethnic
22 Serb. But I am sure that it was done locally, from the spot itself, not
23 in the way that was later presented by the UN and all the media. Later
24 on, nobody had the political will or the desire to conduct a real
25 investigation and find the real perpetrator.
1 JUDGE HARHOFF: Well, this is news, because my question is, then,
2 wouldn't it have been more proper to try and establish that this was not
3 at all a mortar? You seem to act as if it had been a mortar shell. You
4 were showing in television the handbook of the trajectory and you went out
5 into the field and so everything you did seemed to be based on the
6 assumption that it was, indeed, a mortar shell. Now you're saying that
7 your personal belief was that it wasn't a mortar shell at all but some
8 bomb that had been placed there and just made to have impacts similar to a
9 mortar shell. This is a very bold possibility, but my question is, then,
10 why on earth didn't you try to establish that more directly?
11 A. I want to emphasise, and I think I spoke about that back in July
12 but nobody allowed me to develop that subject because it seemed to be a
13 distraction from the main topic.
14 Before talking about a terrorist act, I had first to prove that it
15 was not a mortar explosion. But after receiving approval, I had first to
16 prove that it was not a Serbian mortar attack and then to prove that it
17 was not a Bosnian -- Bosniak mortar attack either, and then I could have
18 proceeded. But nobody allowed me to go, to move on to the Bosniak segment
19 of it because it was inconceivable that their own troops would attack
20 their own people.
21 So only after having dealt with that could I have gone on to the
22 second part, the terrorist act. And by the way, it was the subject of a
23 lot of writing, a lot of analysis. Many people throughout the world, even
24 after theoretical investigations, said that it was precisely the way it
1 JUDGE HARHOFF: Okay.
2 JUDGE ROBINSON: Had it been the case that allegations were being
3 made that the attack was launched by the Bosnian Muslims, and in
4 circumstances where you felt that to be untrue, as you did in this case,
5 would you have carried out an investigation and carried out -- carried it
6 out with the same determination?
7 A. Certainly. There's no doubt about that. I was prepared to
8 continue my pursuit of the truth as soon as I gave that interview and it
9 all became known to my superiors. But as I told you at the last session,
10 I took two decisions simultaneously -- or, rather, two decisions were made
11 simultaneously. The Bosnian army decided to kill me, that's first, and my
12 own superior command decided to send me back to Russia at the same time
13 for insubordination allegedly, within 24 hours. Luckily I am still alive
14 and the command was persuaded not to send me back because that would have
15 looked like proof of my being right, and they decided to wait,
16 apparently. A month later the Russian Federation decided to open an
17 office in Mons, in the NATO headquarters, and that's where they sent me.
18 JUDGE ROBINSON: Mr. Demurenko, that concludes your evidence. We
19 thank you for coming to the Tribunal to give it. You may now leave.
20 THE WITNESS: [Interpretation] Allow me to say thank you for your
21 confidence and giving me this opportunity to share my views with you.
22 Thank you. All the best.
23 [The witness withdrew]
24 JUDGE ROBINSON: Now, the next witness? Let me see if I can
25 assist. Who is the next witness?
1 MR. TAPUSKOVIC: [Interpretation] Our next witness is the expert,
2 Ivan Stamenov.
3 JUDGE ROBINSON: Ivan Stamenov. I understand that it may take a
4 little while for him to get here, since he's seated upstairs.
5 In the meantime, I note that the Defence has filed a motion for
6 adjudicated facts. You're in receipt of this, Mr. Docherty.
7 MR. DOCHERTY: Mr. President, that was filed just recently.
8 JUDGE ROBINSON: Yesterday.
9 MR. DOCHERTY: The Prosecution was going to meet after court and
10 talk about a response. I think we'll certainly have a response within the
11 next 48 hours. We will not be taking anything like the two weeks
13 JUDGE ROBINSON: Right. That's the point. It's very late in the
14 proceedings, Mr. Tapuskovic, so we need to deal with it as quickly as
16 I might just -- Mr. Docherty, in relation to the matter that we
17 were discussing about the witness, the expert witness, we are not saying,
18 are we, that an expert can't support a conclusion that he has made by
19 relying on a source which may be very long, indeed.
20 Please keep the witness outside for a minute.
21 MR. DOCHERTY: No, Mr. President.
22 JUDGE ROBINSON: So an expert could say, My conclusion is X and it
23 is supported by this, and he would cite 30 pages from another source to
24 support that single conclusion.
25 MR. DOCHERTY: We're not only not saying that, Your Honour, but it
1 would be our submission that experts should proceed in that way; that
2 someone who has a doctoral degree in history, for example, and gives an
3 opinion on Balkan history should be thoroughly conversant with the
4 literature and able to rely upon it and synthesize it and put it into an
5 appropriate report. There's nothing wrong with relying on someone else's
6 work or saying I agree with the interpretation of Professor so and so.
7 What is wrong -- and also to reiterate the point I was making
8 earlier. What is evidence of a lack of expertise is simply wholesale
9 lifting word for word from the work of another without attribution. I
10 think that that raises a question, as we put in our written submission
11 that one has hit one of these little spots that every expert has got where
12 their expertise simply does not -- does not extend. And I'll also take
13 the liberty of noting that that was in our written submission. I think
14 that's the central point of our written submission. And although the
15 Defence responded to our written submission and made some points, they
16 chose not to contest that particular assertion by the Prosecution.
17 JUDGE ROBINSON: What is it that is wrong? Is it the lack of
18 attribution? Because suppose he had, in fact, attributed it to the ICJ
20 MR. DOCHERTY: Well, I think --
21 JUDGE ROBINSON: Would you still have an objection?
22 MR. DOCHERTY: I would still have an objection but it would not
23 be -- it would be somewhat less forceful. If I may elaborate. Perhaps an
24 example is a good way of proceeding.
25 In making the written submission, we have tried to stay away from,
1 although it is not entirely successful, questions of right and wrong and
2 honesty and dishonesty. The central thrust of our written submission and
3 of my oral submission this morning is that what we have here is
4 circumstantial evidence of a lack of expertise, notwithstanding academic
5 credentials. It lends support to that claim of lack of expertise that
6 Dr. Prsic did not attribute his source, and by way of example, in our area
7 of expertise, we are all lawyers, we are all criminal lawyers, and yet I'm
8 sure there are types of criminal cases that all of us perhaps have not
9 handled in our careers, have not been trained on, do not know the
10 particular laws concerning these cases.
11 Before coming here I was a specialist in fraud cases. I did not
12 do a lot of other types of cases. I have a lack of expertise in those
13 other cases, notwithstanding an academic degree in law and some years of
14 experience. And I think that when Dr. Prsic finds it necessary to borrow
15 another's work, we are seeing evidence of something analogous; that
16 although he has an academic degree in history, in this particular area, he
17 has a lack of expertise and therefore finds it necessary to borrow. And I
18 think it makes that conclusion stronger when we see the lack of
19 attribution because there we see an attempt to, bluntly, to fake it, to
20 carry on as though the expertise did exist, as though this was in fact his
21 work. And that, I think, is evidence of consciousness on the part of the
22 expert of a lack of expertise.
23 Listening to that, I'm not sure it's entirely clear. But that is
24 how I'm trying to factor the lack of attribution into the central point,
25 which is circumstantial evidence of lack of expertise.
1 JUDGE ROBINSON: Yes.
2 Do you want to say anything on that, Mr. Tapuskovic? I'm just
3 asking you. This is the adversarial system that you refer to all the
4 time. Do you have any comment to make?
5 MR. TAPUSKOVIC: [Interpretation] Very briefly, Your Honours. I
6 requested from and instructed the witness to provide as little information
7 as possible regarding history, to offer the sources, but knowing that in a
8 case like this, the historical background is secondary and almost
9 marginal, especially in our particular situation, I insisted on brevity.
10 This entire report has 30 or 50 pages, with references to sources, and we
11 believed that the only thing worth focusing on was the period after the
12 1940s. If I gave him a free hand, we would have received a report of a
13 thousand pages, like the Donja report, and we know that Professor Donja
14 began in a time when the Slavs first came to the Balkans.
15 JUDGE ROBINSON: All right. Thank you, Mr. Tapuskovic.
16 Let the witness be brought in.
17 Mr. Waespi.
18 MR. WAESPI: Just to make the point. The report of Donja is
19 nowhere near a thousand pages, even less than -- I think it's about 35
20 pages and it has two or three sentences about the past. I really take
21 offence in characterising Mr. Donja's report the way the Defence did.
22 MR. TAPUSKOVIC: [Interpretation] Your Honours --
23 JUDGE ROBINSON: Well, we don't want to carry this on any
24 further. Mr. Tapuskovic, very briefly.
25 MR. TAPUSKOVIC: [Interpretation] I meant no offence to anyone. I
1 just asked my historian to be as brief as possible regarding historical
2 elements, because I believe they are marginal in this case. And that's
3 what I'm emphasising again.
4 JUDGE ROBINSON: Let the witness be brought in.
5 [The witness entered court]
6 JUDGE ROBINSON: Let the witness make the declaration.
7 THE WITNESS: [Interpretation] I solemnly declare that I will speak
8 the truth, the whole truth, and nothing but the truth.
9 WITNESS: IVAN STAMENOV
10 [Witness answered through interpreter]
11 JUDGE ROBINSON: You may sit.
12 And you may begin, Mr. Tapuskovic.
13 THE WITNESS: [Interpretation] Thank you.
14 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours.
15 Examination by Mr. Tapuskovic:
16 Q. [Interpretation] Witness, could you please give us your full
18 A. Ivan Stamenov.
19 Q. Thank you. Your date of birth, please.
20 A. 7 March 1955.
21 Q. Thank you. That's enough. What is your current occupation?
22 A. I'm a professional officer, colonel by rank. I work at the
23 Military Academy of the Army of Serbia.
24 Q. To make it quite clear, you are an active-duty officer at this
25 moment, a colonel of the army of the state that is recently renamed
2 A. Yes. I'm an active-duty colonel.
3 Q. Just please try not to begin your answer before the cursor on the
4 screen in front of you has stopped.
5 Now, as you said, you were a colonel in the army in Serbia. What
6 exactly is your job?
7 A. I am chief of department of the weapons and military equipment for
8 the ground forces.
9 Q. What kind of weaponry are you dealing with and lecturing on at the
10 military academy in Belgrade?
11 A. The department of weaponry and military equipment of the ground
12 forces has a syllabus that includes infantry weapons, armoured and
13 mechanised units, artillery, the equipment of engineering units, and
14 nuclear, biological and chemical weapons.
15 Q. In view of your field of expertise as you described it, including
16 infantry weapons, how long have you been a lecturer and a professor at the
17 military academy, and also as a professional officer?
18 A. Infantry weapons are my narrow specialisation and I've been
19 dealing with that since 1979.
20 Q. Those infantry weapons, which include sniper rifles, are all part
21 of your expertise.
22 A. Yes, precisely. All the weapons that I mentioned so far, I have
23 studied all this time and teaching my students about, and that includes
24 sidearms, personal weapons, pistols, rifles, sniper rifles, weapons for
25 close range, anti-armour combat, including -- and also mortars.
1 Q. I suppose that the theoretical knowledge you impart to your
2 students is something different from practical knowledge. Do you also
3 give any practical courses, apart from theoretical lectures?
4 A. Yes. The curriculum envisages that students get some practical
5 training, including target practice. That is regularly scheduled. And I,
6 as a teacher, a lecturer, attend that target practice and I show a
7 particular piece of weaponry that is being used on that day to the
8 trainees and I demonstrate how it is used.
9 Q. Mr. Stamenov, you're quite familiar with the electronic equipment,
10 so I'd like to draw your attention to the fact that you are speeding and
11 you need to follow the cursor on the screen. Please do not begin your
12 reply until you see that the cursor has stopped.
13 I'd like to ask you something else. You spoke of a hobby that you
14 have when telling us about your career and you said that you were also an
15 athlete, a marksman athlete. It's a hobby that complements your
16 profession. Is that correct?
17 A. Yes, that's one of my hobbies. In addition to that I'm an
18 innovator and a sportsman, marksman.
19 Q. Thank you. Now, before the break, can you tell me another thing,
20 at the request of the Defence, you produced a report on a number of sniper
21 incidents from the indictment against the accused Dragomir Milosevic from
22 the 10th of August, 1994, until the end of May 1995; is that correct?
23 A. Yes.
24 MR. TAPUSKOVIC: [Interpretation] Since that document is in
25 e-court, Your Honours, could we see DD00-4689 and could that be admitted
1 into evidence. I don't think we have any time to proceed with further
2 questions, I mean once you rule on the admission of this document.
3 JUDGE ROBINSON: Is it ...
4 [Trial Chamber confers]
5 JUDGE ROBINSON: We'll mark it for identification at this stage.
6 THE REGISTRAR: Your Honours, this will be marked for
7 identification as D360.
8 JUDGE ROBINSON: And we'll take the break. We'll resume tomorrow,
9 9.00 a.m.
10 --- Whereupon the hearing adjourned at 1.44 p.m.,
11 to be reconvened on Wednesday, the 22nd day of
12 August, 2007, at 9.00 a.m.