1 Tuesday, 13 January 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.18 p.m.
5 JUDGE ORIE: Yes, we -- Madam Registrar, would you please call
6 the case.
7 THE REGISTRAR: Good afternoon, Your Honours. This is case
8 number IT-06-90-T, The Prosecutor versus Ante Gotovina, et al.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 Could the witness Mr. Clark be --
11 MR. KEHOE: Mr. President, before we start if we could just take
12 care of one matter.
13 JUDGE ORIE: Yes.
14 MR. KEHOE: In the spirit if expediting issues, if I could just
15 reference exactly what we're talking about so I can discuss it with the
16 chamber, and if we could bring P1256 on the screen, page 10 of that
17 document. These are the photographs that the Prosecutor went through
18 yesterday, Mr. President.
19 JUDGE ORIE: Yes. Examples of the various type of findings.
20 MR. KEHOE: I sent an e-mail to the Prosecutor. This is
21 KN01/317, and according to the clarification schedule, KN01/317 is Stoja,
22 S-t-o-j-a, Jaric, J-a-r-i-c. And according to the clarification schedule
23 and again, Judge, this is the additional victims that -- of course that
24 we haven't exhaustively gone through this. Individual was killed in
25 Donja Tiskovac. Donja Tiskovac is in Bosnia-Herzegovina and which is not
1 part of this particular indictment. Likewise, it is dated 5 August 1995,
2 and I know the Prosecutor will agree that the HV was not in
3 Donja Tiskovac and 5 August 1995
4 JUDGE ORIE: Mr. Margetts, first of all, is there agreement on
5 the place where this person had died?
6 MR. MARGETTS: Yes. There's agreement on the place where the
7 person died, and there's agreement in respect of the presence of the HV
8 on the 7th of August and not before the 7th of August.
9 JUDGE ORIE: Which means that this 317 B could not be considered
10 to be a victim in the context of the indictment or ...
11 MR. MARGETTS: We -- the specific question that we've answered
12 this morning is our agreement discussed with the Defence this morning is
13 our position in regard to the presence of the HV and our position in
14 regard to the date of death. And what we've indicated is we can agree
15 the position in regard to the HV, and we cannot agree that the 5th of
16 August reflects the precise date of death.
17 Insofar as the issue of the geographic location and the --
18 whether or not that is covered by the indictment. I need to consult with
19 my colleagues answering that question. I haven't addressed that issue
20 this morning.
21 JUDGE ORIE: Now I understood the series of photographs, and I'm
22 honest in saying this. Yesterday it came into my mind that it is almost
23 part of what could have been a book on forensic examination of bodily
24 remains, rather than being specific on 713 because it was not presented
25 to us because 317 would need some specific attention in evidentiary -- in
1 an evidentiary context, but rather to give examples which could have been
2 taken from any other book and is not directly related to the victims in
3 this case, to the extent that there are any victims.
4 MR. MARGETTS: Yes, Mr. President. We had intended just because
5 of the limited time, of course, the evidence in relation to the specific
6 killings has come in pursuant to the 25 November decision, including
7 autopsy reports, identification forms, photographs. However, in terms of
8 the time we wanted to take in court that was our specific purpose, merely
9 to illustrate the nature of the materials that this particular expert had
10 at his disposal in assembling his findings and conducting the forensic
11 examinations in the mortuary.
12 JUDGE ORIE: Yes.
13 MR. KEHOE: If I may, Judge, with all due respect to my learned
14 friend that may have been a tertiary reason. But the primary reason for
15 this photo array was the shock value for the Chamber by putting all
16 bodies these bodies in here in this fashion for the Chamber leading the
17 Chamber to conclude, oh my heavens, something terrible must have
18 happened, and the gentleman that is seated to my rear must have been
19 responsible in some fashion. If I may, Judge, this is it an execution.
20 Now they have had any number of years to -- to take a look at this and
21 make a determination as to when this occurred and where it occurred. Now
22 they agree it took place in Donja Tiskovac. But as far as the date
23 range, there is no waffling in the document that was filed by the Office
24 of the Prosecutor when this took place. In other instances in the
25 clarification schedule, there are ranges of dates in and around the
1 particular time between various states. There is a specific date here of
2 the 5th of August, and the HV wasn't there. And the rhetorical question
3 for my learned friend is how is the Defence supposed to answer this type
4 of allegation which looks like an execution of this women, unquestionably
5 at this point Serb on Serb. How were we supposed to answer that if we
6 can't take the facts as set forth by the Prosecution. That is it what
7 the Defence have to meet which we are attempting to meet. And we look at
8 those facts. It is unquestionable that the HV was not in Donja Tiskovac.
9 Putting aside the fact that Donja Tiskovac is not even in part of this
10 indictment because it is in Bosnia-Herzegovina.
11 JUDGE ORIE: Yes. Your point is perfectly clear.
12 MR. KEHOE: Yes.
13 JUDGE ORIE: Mr. Kehoe, I was honest when I said yesterday that
14 it came into my mind that book could have been taken totally unrelated
15 because that is how I understood the testimony. At the same time,
16 Mr. Margetts, or course it might have been better then to take a book
17 rather than take an example of a person of which it could have been known
18 that that person died elsewhere, and nevertheless introduce it with the
19 KN01 numbers on it if it was just to demonstrate what kind of findings
20 one can make.
21 MR. MARGETTS: Yes, Mr. President, and I would also say that we
22 all of these photos uploaded into e-court, I believe, now, and at some
23 stage will be reviewed by the parties and viewed by the Court. So I -- I
24 obviously don't accept that the shock value of these photos --
25 JUDGE ORIE: Let's not spend too much time on this.
1 MR. MARGETTS: The second thing is, Your Honour, I would say
2 this, that we also introduced it because these are the remains that were
3 in this cemetery, and it did have more value in our view than merely
4 being a forensic book from a totally disassociated --
5 JUDGE ORIE: If someone was found in this cemetery which died
6 five years before or after at a different place, then of course it's not
7 appropriate to bring it in, Mr. Margetts because it then is exactly
8 creates a suggestion as is heavily criticised and rightly to some extent
9 by Mr. Kehoe. Yes?
10 MR. MARGETTS: Yes, it is heavily criticised by Mr. Kehoe. We
11 heard that this morning.
12 JUDGE ORIE: Let's move on. Any further matter?
13 MR. KEHOE: No, sir.
14 MR. MARGETTS: Yes.
15 JUDGE ORIE: Any further response?
16 MR. MARGETTS: No further response on this issue, Mr. President.
17 However there is another issue that I would like to bring to the
18 attention of the Court before the witness is called. That is, yesterday
19 my learned friend tendered some documents relating to the circumstances
20 of death and in -- specifically D1225 and D1229, and I had indicated to
21 the Court that to my knowledge, having just received those documents, I
22 didn't recognise them as materials that had previously been introduced,
23 and were admitted pursuant to the decision of the Trial Chamber of
24 25 November.
25 Having had the benefit of reviewing these materials overnight, I
1 have now recognised that the documents introduced as D1225 and D1229
2 were, in fact, part of the Prosecution's motion to admit documents and
3 were listed in Appendix D, and accordingly, those documents, whilst
4 probably -- I haven't had the chance to consider whether they're
5 identical. I imagine they are completely identical. The Defence's
6 version will therefore be duplicated if they're assigned numbers when we
7 do present the tables of materials admitted. So at the time that we
8 present the tables of the material admitted, we may ask -- submit that.
9 [Overlapping speakers] ...
10 JUDGE ORIE: [Overlapping speakers] ... if they are the same,
11 there is no need to do that. And if they are not the same, of course,
12 there may be a reason to do it.
13 MR. MARGETTS: Yes.
14 JUDGE ORIE: So if they are the same, you should leave them out.
15 MR. MARGETTS: Yes.
16 JUDGE ORIE: If they are not the same, then you should explain
17 what the difference is and then keep them on your list.
18 MR. MARGETTS: Thank you, Mr. President.
19 JUDGE ORIE: Yes.
20 Is there any further matter we have to address before we ask
21 Mr. Clark to enter the courtroom?
22 MR. MARGETTS: There is one further matter and that has been the
23 subject of discussion between the parties.
24 Yesterday there was a reference in the cross-examination to a
25 particular body, that being the body of a Dmitar Vojnovic, and this
1 individual was identified in the context of an autopsy report which was
2 body KN01/162 and, secondly --
3 JUDGE ORIE: Was it assigned a number yesterday? Would that have
4 been D12 -- no.
5 MR. MARGETTS: D1227 is the circumstances of death or the death
7 JUDGE ORIE: Yes.
8 MR. MARGETTS: Identification form relating to that individual.
9 Now that form reveals that this individual was born in 1951.
10 Now -- and this individual that was born in 1951 is the subject
11 of an autopsy report that's listed in the Appendix A to Dr. Clark'
12 report, and that is the autopsy report for KN01, number 162.
13 JUDGE ORIE: That's D1226. Is that correct?
14 MR. KEHOE: Yes, Your Honour.
15 JUDGE ORIE: Yes.
16 MR. MARGETTS: Yes.
17 MR. KEHOE: D1226.
18 MR. MARGETTS: D1226.
19 JUDGE ORIE: Yes.
20 MR. MARGETTS: In the further particulars and the clarification
21 of the indictment, an individual by the same name, Dmitar Vojnovic is
22 referenced; however, the date of birth is in the year 1965.
23 Now, there is another autopsy report that relates to that
24 individual, that is, the Vojnovic, who was born in 1965. That is not
25 referenced in Dr. Clark's report, and we would like the opportunity to
1 put that autopsy report to Dr. Clark so that this matter, in relation to
2 Mr. Vojnovic that's been raised by the Defence in the cross-examination,
3 can be clarified.
4 MR. KEHOE: If -- if I may, Judge, on a couple of issues.
5 The D1226 on autopsy -- excuse me, KN03/162 is listed in the
6 annex A for Dr. Clark's report on page 20. You can see it as 162 is
7 Dmitar Vojnovic. This is an individual who passed away on the 31st of
8 July. If one goes back to the clarification schedule that --
9 JUDGE ORIE: Let me just -- let me just try to follow you.
10 MR. KEHOE: Okay. Just if we can go to --
11 JUDGE ORIE: One second. Because the date of death usually does
12 not appear in the autopsy report, so therefore you are linking a date
13 to --
14 MR. KEHOE: I'm linking it with -- Mr. President, I'm linking it
15 with D1227, which the first page of D1227 links it to the --
16 JUDGE ORIE: Yes.
17 MR. KEHOE: KN03/162. And then we go down to the next page of
18 that, and it notes -- it -- 31st of July, 1995, Oklaj Knin, and that is
19 the same individual who is listed in -- Dr. Clark's Annex A for KN03, and
20 it's the last name.
21 JUDGE ORIE: Yes, you say on the basis of the number assigned and
22 on the basis of the name, D1226 must deal with the same bodily remains as
23 the bodily remains of the person described in D1227.
24 MR. KEHOE: That's correct, Judge.
25 JUDGE ORIE: Whereas Mr. Margetts now draws our attention to
1 different years of birth.
2 MR. KEHOE: Okay. If we can stay with that allegation.
3 JUDGE ORIE: Yes.
4 MR. KEHOE: First off, the -- if the Prosecution is arguing that
5 the Dmitar Vojnovic that is the subject of this other autopsy is not the
6 Dmitar Vojnovic that is in the annex, they have not included that other
7 autopsy in their list of autopsies to be presented into evidence.
8 Now, I can only work with what I have, and going to the
9 clarification schedule, which, Mr. President, was filed, I take it, in
10 July. Is that correct? It was in July. There is it a Dmitar Vojnovic
11 on page 6 of the additional names. He is number 220. This individual is
12 found in a Knin hospital, but there is no KN number identifying that
13 person. So with all due respect, Mr. President, we can only work with
14 what we have. We found a Dmitar Vojnovic who was found in the Knin
15 hospital, 7 August, and without any other information concerning the
16 actual autopsy and not seeing this other autopsy that Mr. Margetts is
17 talking about because it hasn't been presented into evidence, a fortiori,
18 we had to conclude that this was the Dmitar Vojnovic because Dr. Clark
19 examined him and listed it in the annex in November of 2008, some four
20 months after that clarification schedule.
21 This other Vojnovic autopsy is KN01/399 according to my courtroom
22 deputy, and that is not on the list. So that is the basis of how when we
23 were trying to put these cases together and present this to the Chamber,
24 that we came up with the idea or the conclusion that this was an
25 individual who died on the 31st of July, 1995. Clearly --
1 JUDGE ORIE: Has this been discussed among the parties, the issue
2 just raised, Mr. Margetts?
3 MR. MARGETTS: It's only been raised in the last few hours by
4 e-mail, so we haven't had a full discussion.
5 JUDGE ORIE: What about trying to see to what common conclusions,
6 if any, you could come in the next break, because I do see that there
7 are -- there is a -- on both sides there are reasons to believe that it
8 is or is not the same person. Now let's see where this leads you if you
9 have exchanged your views on the matter in more detail. Because what
10 we're talking about now is one of the examples of where you, Mr. Kehoe,
11 you say the additional information shows that the limited conclusions by
12 Dr. Clark might have been different if that information would have been
14 MR. KEHOE: Yes.
15 JUDGE ORIE: Well, we have a few examples of that. That's
16 important for the case. It's not the whole of the case. It is not the
17 core of the case. Let's see to what extent you can reach common
18 conclusions on these matter, if not, then of course the Chamber will
19 further consider it. But then it might be a good idea to present to the
20 Chamber where exactly the differences of views are. Yes?
21 Any other matter?
22 MR. MARGETTS: No, Mr. President.
23 MR. KEHOE: No, Mr. President.
24 JUDGE ORIE: Then could Dr. Clark be escorted into the courtroom.
25 [The witness entered court]
1 JUDGE ORIE: Good afternoon, Mr. Clark. Please be seated.
2 First of all, our apologies that we let you wait for almost half
3 an hour. We had to deal with a few procedural matters.
4 THE WITNESS: I'm well used to that, I'm afraid.
5 JUDGE ORIE: Yes.
6 THE WITNESS: Not here but elsewhere.
7 JUDGE ORIE: Yes, yes, of course. Elsewhere, yes.
8 Mr. Clark, I would like to remind that you are still bound by the
9 solemn declaration you gave yesterday at the beginning of your testimony,
10 and Mr. Kehoe will now continue his cross-examination.
11 WITNESS: JOHN CLARK [Resumed]
12 Cross-examination by Mr. Kehoe: [Continued}
13 Q. Doctor, if we can bring up a photograph you talked yesterday,
14 P1256 page 10, it's the photo we just had on the screen, KN01/317. I
15 said previously. We had it before you came out. Apologies.
16 You recall this. You had this as a shot-gun injury, probably a
17 handgun with a low velocity to the forehead with an exit wound in the
19 A. Just to be precise, it's a gunshot, not shotgun.
20 Q. Gunshot.
21 A. It's a Gunshot injury, and the fact that it's -- there's so
22 little damage with it suggested to us that this was an a handgun.
23 Q. I understand. If we can turn to the autopsy report, 65 ter 6307.
24 Doctor, this is your autopsy report signed by you for this
25 particular woman where you reflect exactly -- it reflects exactly what we
1 just said, a single injury to the head almost certainly a handgun.
2 Is that correct, sir?
3 A. Yes.
4 MR. KEHOE: Your Honour, at this time, we'd like to offer 65 ter
5 6307 into evidence.
6 JUDGE ORIE: Which is already in evidence but has not been
7 assigned a number yet. If I'm ...
8 MR. MARGETTS: Mr. President, I'll just check Appendix A.
9 JUDGE ORIE: Or whether 317 -- is it in at all.
10 MR. MARGETTS: Yes.
11 JUDGE ORIE: If it is not, then it needs --
12 MR. MARGETTS: It is there. Mr. President, I have to think about
13 this also overnight. And that is that these autopsy reports are admitted
14 into evidence by application or submission of the Prosecution, so I think
15 we thought of that yesterday in court [Overlapping speakers] ...
16 JUDGE ORIE: [Overlapping speakers] ... Yes, but we are not
17 going to change halfway now. We have now assigned D numbers. We are not
18 going to move from D to P. Apart from that wherever the evidence comes
19 from, the Chamber will consider it on its value, not on -- whether it is
20 a D or a P.
21 MR. MARGETTS: Thank you, Mr. President. No objection obviously
22 to the assigning of a number. It is it already in evidence.
23 JUDGE ORIE: Yes.
24 Madam Registrar, could a number be assigned to this document.
25 THE REGISTRAR: Your Honours, that would be exhibit number D1234.
1 JUDGE ORIE: D1234 was already admitted in evidence and is now
2 assigned this number. It is an autopsy report, Knin cemetery grave site
3 case number KN01/317 B.
4 Please proceed.
5 MR. KEHOE: Thank you, Mr. President.
6 Q. Now, Doctor, in a wound such as this, I think you had noted
7 previously that when you are trying to determine range, it is often
8 difficult with no -- with just a skeleton, no flesh or saponified flesh
9 in the wound area to determine the range because there is no burning or
10 soot on the skin?
11 A. Yes, I would say it is impossible.
12 Q. Given the fact that that is impossible, this particular injury is
13 one where you can't say whether or not this woman committed suicide or
15 A. Not at all, no.
16 Q. And you likewise can't say whether this was just the result of
17 criminal activity where one person shoots another?
18 A. Yes. It could be either of these situations.
19 Q. Okay.
20 JUDGE ORIE: Could I ask one question in this respect, Mr. Kehoe.
21 MR. KEHOE: Yes.
22 JUDGE ORIE: Forgive me, Mr. Clark, that my knowledge was
23 obtained quite a bit in the past. If someone commits suicide by putting
24 a handgun just on his head, would that result in a certain intensity of
25 perhaps powder remains or explosive remains even on the skull or just on
1 the flesh or not at all?
2 THE WITNESS: It would be just on the skin.
3 JUDGE ORIE: Just on the skin.
4 THE WITNESS: Just on the skin, and it would not get any further
5 -- certainly not in the situation of these bodies in which they had been
6 covered by earth and in contact with other bodies. So generally the
7 powder [indiscernible] and the burning is only seen on the skin, and
8 would you not see it on the bone.
9 JUDGE ORIE: Thank you for that answer.
10 Please proceed, Mr. Kehoe.
11 MR. KEHOE:
12 Q. Doctor, I just want to turn back to the statistics that you
13 referred to. And basically, even if we refer to the statistics on page 7
14 and 8 of your report -- and I'm sorry, do you have that with you?
15 A. I do, yeah.
16 Q. Now, Doctor, just to clarify these statistics, and referring
17 back, if you recall, briefly to our discussion yesterday about Varivode
18 that took place on 28th of September, 1995, because of the time elapse,
19 even shots to the head, you couldn't tell us whether or not they took
20 place during the Operation Storm time-frame or outside that, could you?
21 A. No.
22 Q. So it -- it is very difficult for you or impossible for you to
23 say statistically what the break down of these wounds or injuries were
24 from gunshots, the break down from -- during Operation Storm as opposed
25 to before and after?
1 A. Well, yes, I haven't really attempted to do that. All I'm
2 attempting is to analyse the bodies in the grave. There is no analysis
3 whether this was Operation Storm or not. It's -- it -- this is the
4 analysis of the bodies that we found.
5 Q. And I appreciate that, Doctor, just a temporal sequence for the
6 purposes of this case is significant. And I just wanted to add one step
7 further to your statistics so I clarified that.
8 A. That's fine, yes. I agree with that.
9 Q. Now, let me just turn to these schedules, and I want to talk in
10 some -- a little bit just about some of your schedules, the KN01, KN02
11 KN03. And I know that the numbers of bodies that you actually examined
12 don't match up number for number, for instance, with the annex that is
13 listed in page 12 and 13 for KN01. I think you looked at 186 bodies in
14 KN01, but we have list here of 115, I believe?
15 A. Yes, that's right.
16 Q. Now of these 115 that are here -- by the way, when the Prosecutor
17 was putting clarification schedule together to be submitted to this Court
18 last July, did you participate in putting that schedule together in any
20 A. No. My first contact with this case was in October --
21 Q. Okay.
22 A. Last year.
23 Q. So you had no dealings with that?
24 A. No.
25 Q. Now in this particular schedule, and I'm talking about Annex A,
1 you have of the 115 bodies in there, 30 are unascertained.
2 A. Yes.
3 Q. In KN02, which is page 16, I think it's five out of six, and
4 KN03, eight out of 14 are unascertained.
5 A. Yes.
6 Q. Now, that is in addition to all of the bodies that you excluded
7 from KN02 and KN03 even before you started to compute your numbers?
8 A. Yes.
9 Q. So you went from 295 to 245 because you took out 30 bodies --
10 excuse me, 50 bodies, my math is bad. Fifty bodies from KN02 and KN03.
11 Is that right?
12 A. Yes. I mean, I compiled my report on the basis of all the
13 findings from Knin grave site, and so the statistical analysis by and
14 large is concerned with all of the bodies. I was asked to consider
15 particularly KN01, and that's why these are listed, but the general
16 comments in the report pertain to all the bodies, and I haven't done a
17 closer analysis of the Annex A.
18 Q. I'm interested, Doctor, in exploring just briefly some of the
19 unascertained assessments, and if we can just look at KN02, the list
20 being on page 13, this list being developed by you, I take it, in
21 conjunction with the Prosecutor in November of 2008, and we noted that
22 five out of six of these were, in fact, unascertained, and the one that
23 the -- has a gunshot injuries to the head is 077 Milan Dragicevic?
24 A. Gunshot injury to the legs.
25 Q. Yes, gunshot injury to the leg.
1 A. Yeah.
2 MR. KEHOE: Just as a reference point, Mr. President, can I just
3 go into private session just very, very briefly.
4 JUDGE ORIE: We turn into private session.
5 [Private session]
20 [Open session]
21 THE REGISTRAR: Your Honours, we're back in open session.
22 JUDGE ORIE: Thank you, Madam Registrar.
23 MR. KEHOE:
24 Q. In the interests of speed, Doctor, I just wanted to take you
25 through several of these autopsies that are on this list that the
1 Prosecutor has, and if we can just start with -- and I will ask you some
2 questions after we go through them. And the first one is Milica Simic,
3 that would be KN02/051, 65 ter 6402.
4 Now, Doctor, this is one where another pathologist examined the
5 -- was a fracture in the lower right limb when they note that this is
6 unlikely that has caused the death, and the death is uncertain. In a
7 case such as this, I mean, you cannot discount natural causes as the
8 manner of death, could you?
9 A. I couldn't, no.
10 MR. KEHOE: Your Honour, at this time we offer 65 ter 6402 into
12 MR. MARGETTS: Mr. President, that's already admitted into
14 JUDGE ORIE: That needs a number to be assigned to it.
15 Madam Registrar.
16 THE REGISTRAR: Your Honours, that would be exhibit number D1235.
17 JUDGE ORIE: Yes, the autopsy report in the case KN02/051 B,
18 which was already admitted into evidence now is assigned number -- let me
19 just ... D1235.
20 Please proceed.
21 MR. KEHOE:
22 Q. Yes. If we can move to the next one which is Mirko Supljak
24 A. Can I just say that that particular case, the previous one, I
25 mean, there was a fracture of the lower leg which must have been caused
1 in some way which perhaps takes it away from natural causes, but I
2 certainly -- I can't exclude natural causes, but it has to be observed
3 there is still a fracture there.
4 Q. Right. And I understand, Doctor -- my question is you just
5 cannot exclude natural causes from this?
6 JUDGE ORIE: No, but if the death is unascertained, Mr. Kehoe,
7 would it not speak for itself that it could be natural causes as well?
8 MR. KEHOE: I think that --
9 JUDGE ORIE: And, I mean, we have all the experience not everyone
10 breaks his leg dies from that. That is common human experience.
11 MR. KEHOE: And I the next question then is if this uncertain and
12 can't exclude natural causes, and I will go through the exhibits on all
13 these, the question remains why it is on the clarification schedule
14 presented by the Prosecutor. And if that is it the case, then I have to
15 address it in some fashion to ensure that it is not held against my
17 JUDGE ORIE: Yes. Could we work on the basis that if there is an
18 unascertained death that we would not exclude for the possibility that it
19 would be natural causes but not necessarily is by natural causes and that
20 the probability of it might be greater or lesser depending on the type of
21 injury found on that body. Is that --
22 THE WITNESS: Indeed, Your Honour. That is how I worded as such
23 in my report, specifically that.
24 JUDGE ORIE: That's how I understood it.
25 MR. KEHOE: That would be find, Judge.
1 JUDGE ORIE: Mr. Kehoe, Mr. Margetts, is what I just said, is
2 that something -- well, whether it makes sense or not, but whether you
3 would object against it.
4 MR. MARGETTS: Absolutely not, Mr. President. That's exactly how
5 I understood Dr. Clark's findings to be expressed.
6 MR. KEHOE: And I guess maybe it is an issue that we can take
7 outside presence of the witness. It presents itself as to why the
8 Prosecutor put these --
9 JUDGE ORIE: That is an argument rather than to seek the -- the
10 experience of this witness on why the Prosecution did something, unless
11 he is involved it in any way, and I do understand that he is not.
12 Please proceed.
13 MR. KEHOE: If I may, Judge, then I will offer into evidence 65
14 ter 6404, which is KN02/92 which is on the schedule, that is for
15 Mirko Supljak. And I will offer -- the next one is Ljubica Kanezir
16 [phoen], 65 ter 6406. 65 ter 6408 for KN.
17 JUDGE ORIE: One second, Mr. Kehoe. You added to the 65 ter
18 number last time the KN number. Do you have any for 6406?
19 MR. KEHOE: 6406 is KN02/095 B. I'm just going down the list on
20 the Annex A for KN02.
21 MR. MARGETTS: Mr. President and my learned friend as well, of
22 course this is the process that the Prosecution is engaging in. If it is
23 just a matter of getting exhibit numbers for the documents already
25 JUDGE ORIE: Everything on the annex is in evidence but is not
1 yet assigned numbers.
2 MR. KEHOE: Everything --
3 JUDGE ORIE: And we have forgotten about the fight about D and P
4 numbers, so they are all in evidence. The autopsy reports.
5 MR. KEHOE: I don't think that that is true.
6 JUDGE ORIE: As long as they are on the annex.
7 MR. MARGETTS: Yes.
8 JUDGE ORIE: If it is not true, please explain to us.
9 I apologise. Being a participant in this chaotic conversation.
10 Mr. Kehoe, could you point to any 65 ter number which does not
11 appear on the annex is it therefore not in evidence which needs not only
12 a number to be assigned to it but also a decision on admission.
13 MR. KEHOE: Well, I can go through this list, but if we just
14 simply go back to the individual that counsel talked about before, the
15 Dmitar Vojnovic, the KN01/399, he is not on the witness list, but now
16 counsel is saying he is in the scheduled killings. That's one off the
17 top of my head. I know going through the course of this, there were
18 numerous discrepancies between what is on the list and what was on the
19 schedule that we were presented in July of 2008. And in the spirit of
20 trying to cover all of my bases, and I just went to the actual list of
21 KN02 and just doing my homework, Judge, went down and looked at these
22 particular autopsies that counsel has on the list that were prepared in
23 November of 2008.
24 MR. MARGETTS: Yes, Mr. President.
25 JUDGE ORIE: Mr. Margetts, it seems to be that an exceptional
1 case. But please tell us which numbers on the annexes you would like to
2 be assigned numbers so that they are identified as autopsy reports in
4 MR. MARGETTS: Yes. Mr. President, all of the annexes to
5 Dr. Clark's report all of the autopsy reports have been admitted into
6 evidence, and we've given the references to the schedule, to the
7 Prosecution's motion, which is the operative list referred to in the
8 Court's order. We've given those references on the exhibit lists that
9 we've distributed. So it can readily be ascertained precisely how these
10 came to be admitted into evidence from the exhibit list that we have
12 And --
13 JUDGE ORIE: Let's -- let's ... we're now discussing for
14 five minutes that documents the Prosecution says are already in evidence
15 but not yet assigned numbers and which apparently Mr. Kehoe wants to be
16 -- wants to have in evidence, whether or not on the basis of an
17 additional admission. Why not spend the next break on whether there's
18 anything missing on that list, and then we would be glad, Mr. Kehoe, to
19 hear what that is, have a look at it, and decide on admission.
20 MR. KEHOE: I will say, Judge, that having gone through this
21 exercise, and I don't want to take any more court time, it is a
22 time-consuming exercise because there is really very little consistency.
23 And I once again I hasten to go back to the Dmitar Vojnovic situation who
24 is in the annex that the Prosecutor now says is different from the guy
25 that is in the schedule, but if you look at the list of autopsies the
1 schedule -- the autopsy for the gentleman that is on the schedule has not
2 been offered into evidence by the Prosecution.
3 JUDGE ORIE: Yes. And do you think that just giving us now the
4 numbers and having numbers assigned to it that we would detect these kind
5 of exceptional circumstances? I'm afraid not. And if you say it is a
6 time-consuming exercise that is the reason why I would not like to do it
7 in court.
8 MR. KEHOE: I understand.
9 JUDGE ORIE: Please proceed.
10 MR. KEHOE: With Your Honours' guidance if we just say with the
11 unascertained autopsies that are here, and I have the one, two, three,
12 four, five -- I can read it those out and offer them into evidence.
13 JUDGE ORIE: I invited you to proceed and to deal with all
14 practical matters because there is no -- there is no dispute about it.
15 Both parties want these autopsy reports into evidence and want to do some
16 verifications. You're invited to do so, and then we'll receive that
17 numbers, and then exhibit numbers will be assigned to them.
18 Please proceed.
19 MR. KEHOE: Yes, Your Honour, we will offer 65 ter 6404, 65 ter
20 6406, 65 ter 6408, and 65 ter 6410. Those are the autopsies for all the
21 unascertained individuals in KN02, which is listed in page 16 of the
23 JUDGE ORIE: I invited you to do it out of court. The only thing
24 is you're doing is just to continue, and that is because you said there
25 may be difficulties, et cetera, et cetera, therefore, I said please sit
1 together. You said it would take quite some time. It now -- we are
2 waiting for that, and not for you to complete your short list.
3 Please proceed. That's what I said before. That's what I say
5 MR. KEHOE:
6 Q. Going back to the unascertained, Doctor, in KN01. And if we go
7 back to the schedule in KN01 on page 12 and page 13, this is it the one
8 where you said you had, I believe 30 were unascertained but were included
9 in your assessment in KN01. And if we can go to -- again, we can go to
10 65 ter 6398, and I want you take a look at KN01/410 B on your list, and
11 that is a Jovo Vujasin. And this is listed by Dr. Aiyer?
12 A. Aiyer.
13 Q. Aiyer. As uncertain. And we will offer this into evidence, and
14 we can take it up with the Prosecutor at a later date.
15 And if we can stay with that number, 443 and then if you just see
16 KN01/443 B and go to 1D64- 0048.
17 I believe we should have an English version of that. That's the
18 English version. It's an individual with the same name who was admitted
19 to the hospital at 3 August 1995
20 MR. KEHOE: If we could offer 1D64-0048 into evidence.
21 MR. MARGETTS: Mr. President, I'd like the opportunity to review
22 the original document or log that that is derived from, and so that could
23 be marked for identification.
24 MR. KEHOE: Then if we could just marked for identification,
25 Mr. President.
1 JUDGE ORIE: Yes, Madam Registrar, a number.
2 THE REGISTRAR: Your Honours, that would be exhibit number D1236,
3 marked for identification.
4 JUDGE ORIE: And let me ask you again. Was this 443, Mr. Kehoe?
5 MR. KEHOE: I'm sorry, Mr. President, I'm not following.
6 JUDGE ORIE: No. I'm just --
7 MR. KEHOE: The autopsy report.
8 JUDGE ORIE: The autopsy report was referring to KN --
9 MR. KEHOE: 01/410.
10 JUDGE ORIE: I'm just verifying. Yes, yes, now I can match the
11 names. It was 410. Let me just check on whether this is clear from
12 the ...
13 MR. KEHOE: And if we turn our attention to 1D64-0050.
14 JUDGE ORIE: Mr. Kehoe, one second.
15 Yes, I was a bit confused. I take it, due to page 23, line 21.
16 If you could just verify where apparently you said KN01/443. That is
17 what may have caused my confusion.
18 MR. KEHOE: That was my mistake, Mr. President.
19 JUDGE ORIE: That should be 410.
20 MR. KEHOE: Ten, yes.
21 JUDGE ORIE: Because I had difficulties in matching the name on
22 the list with the names we see now on our screen. But this, having been
23 corrected, please proceed.
24 MR. KEHOE: Therefore, if we can then move to 1D64-0050. If we
25 can blow that up a little bit. Involves the same individual, who died of
1 cardio myopathy on 12 August, 1995
2 disease, is it not, Doctor?
3 A. Yes.
4 Q. Of course that would not show up in the autopsy?
5 A. Not at all.
6 Q. With this information, Doctor, I know you had concluded that
7 there were hospital patients, significant amount of hospital patients, in
8 KN02 and KN03. It seems clear that they were likewise hospital patients
9 in KN01. Does it not?
10 A. Possibly. I mean, this form doesn't actually say she was a
11 hospital patient. She was discharged from hospital, and she died the
12 same day. Whether that is the same is just the wording, I don't know.
13 I think as a general point that --
14 Q. I if can just ask you before you move on.
15 The prior page that we offered into evidence 1D64-30048 had an
16 admission date of 3 August 1995
17 A. Yes. But if you look at third last line, it says released from
19 Q. Right. And the last line it says died that day.
20 A. Yes. But that doesn't necessarily mean to say that she died in
21 hospital. It probably is that she died in hospital. But just as a
22 general issue, part of the reason for me lumping lots of cases together
23 was these were all people who had a pre-burial photograph, so they were
24 similar to the injury cases, and they all had a metal label on them. So
25 it was natural to think that they were somehow linked in some way.
1 So that was another reason for perhaps assuming that they were
2 all part of -- if you like, Operation Storm or whatever. If you now tell
3 me different, that's fine. But that is it another reason why we did link
4 them together.
5 MR. KEHOE: Your Honour, at this time, we'd like to offer into
6 evidence 1D64-0050.
7 MR. MARGETTS: Again, Mr. President, I would like an opportunity
8 to review the original log so that could be marked for identification.
9 JUDGE ORIE: Therefore it should be MFI'd.
10 Madam Registrar, the number would be.
11 THE REGISTRAR: That would be exhibit number D1237, marked for
12 identification, Your Honours.
13 JUDGE ORIE: And keeps that status, for the time being.
14 Please proceed.
15 MR. KEHOE:
16 Q. And so just summing up what these particular various locations
17 ending with KN01. In KN01 grave site, we had people who died from
18 gunshot wounds, people who were uncertain, people who might have come
19 from the hospital, people before Storm, after Storm all possibly mixed up
21 A. Well, possibly. If you do, we didn't put a great deal of basis
22 on the pre-burial photographs, but these are all people who, I
23 understand, there were photographs taken, and they don't really look like
24 people who have come out of hospital. These are bodies either in a grave
25 or in a field somewhere with already advanced decomposition. So I think
1 that has to be taken into context.
2 Q. It is a fact, sir, when you're looking at the photographs, you
3 put very little stock in the photographs to make any assessment --
4 A. That is because I didn't particularly know where they came from,
5 but it may be that they have been established or more founded than I
7 Q. I understand.
8 JUDGE ORIE: Mr. Kehoe, very practical matter until now you
9 always asked for numbers to be assigned to the autopsy reports already in
10 evidence. Now from what I see, 65 ter 6398, in relation to KN01/410 has
11 not been assigned a number yet. I think we moved on immediately to the
12 next -- that is, 1D64-00 -- oh, that was yesterday's, D1228, I'm informed
13 about now, which ... I'm confused at this moment because Madam Registrar
14 informs me that would have been D1228, assigned yesterday. I have a name
15 Sava Besevic for 1228, and I ask you to look, Mr. Kehoe, to the D4 -- no,
16 to KN01/410, the autopsy report. Have you asked for a number?
17 MR. KEHOE: [Overlapping speakers] ... that is 65 ter 6368. I
18 will, in fact --
19 JUDGE ORIE: 6368.
20 MR. KEHOE: That's -- I will, in fact, offer that in evidence.
21 JUDGE ORIE: Could we --
22 MR. KEHOE: That's for the individual we're just talking about.
23 JUDGE ORIE: Yes. I'm now looking -- page 23, starting on line
24 11, you start saying going back to -- you see that line.
25 MR. KEHOE: Going back to ...
1 JUDGE ORIE: Yes. And then later on in that same paragraph, you
2 wanted to look at KN01/410.
3 MR. KEHOE: 10.
4 JUDGE ORIE: Yes. Do we have a number for that one, the autopsy
6 MR. KEHOE: Actually, Your Honour, I will offer that as well. I
7 will offer that in evidence as well. We don't -- I was somewhat --
8 JUDGE ORIE: I think it is in evidence because it is on the annex
9 and the procedure we have followed until now, it is that if you present
10 it to the witness, it will be assigned a D exhibit number and then I'll
11 establish that it is it already in evidence but it's now accompanied by
12 this number. Have you done that for KN01/410?
13 MR. KEHOE: I -- if it is, in fact, on the list, I am not certain
14 it is a 65 ter number.
15 JUDGE ORIE: But I would like to have some order in this flow of
16 documents. So from now on, if you refer to any autopsy report which is
17 admitted into evidence but not yet assigned a number on the basis of the
18 25 November decision, you should ask for a number to be assigned to it.
19 It then gets a D number, and we then establish that is the number that
20 accompanies this already admitted document.
21 Now my question simply is for the autopsy report KN01/410. Has
22 it an a number yet?
23 MR. KEHOE: Mr. President, it doesn't have a number, but it is
24 admitted into evidence.
25 JUDGE ORIE: Yes, that is what I just said.
1 Madam Registrar, would you assign a number to the autopsy report
2 KN01/410 B.
3 [Trial Chamber and registrar confer]
4 JUDGE ORIE: Madam Registrar, justifiably asks for a 65 ter
5 number. On that same line, you made reference, Mr. Kehoe, to 65 ter
7 MR. KEHOE: 6368.
8 JUDGE ORIE: Yes. 6368. And now I want to see it on my screen
9 to know whether this is the right document, because within ten minutes, I
10 think mistakes in numbers have been made.
11 Yes, this is the one, and -- Madam Registrar, would you please be
12 so kind to assign a number to 6368.
13 THE REGISTRAR: Your Honours, that would be exhibit number D1238.
14 JUDGE ORIE: D1238 already admitted into evidence is autopsy
15 report, case number KN01/410 B, and has now been assigned this number.
16 Please proceed.
17 MR. KEHOE: Yes, Mr. President, I'm not quite certain at this
18 point if you want me to do this at the break because if I go back to
19 those five autopsy reports that I discussed briefly I had not --
20 JUDGE ORIE: Those were the ones where no questions were put to
21 the witness and where they were considered to be more or less bar table
22 documents, and that's the one starting with 6404 from what I remember,
23 and we expect you to discuss them briefly with Mr. Margetts and to
24 present them after the break so that we can assign numbers to them.
25 Please proceed.
1 MR. KEHOE: Yes, Your Honour.
2 Q. Doctor, I would like to talk to you about your statistics
3 concerning the military and non-military individuals. And I believe in
4 your report you note -- and let me give you the exact location. Of the
5 245 individuals, 81 of these individuals were male soldiers, and that is
6 on page 24 of the report.
7 A. That's not -- that's not the exact wording.
8 Q. Just help me out here, then. I'd like to get the exact wording
10 A. I said almost a third of the men in the grave appeared to be
11 soldiers as judged by the clothing they were wearing and possessions that
12 they had. That's different from saying that they were soldiers. I'm
13 just saying they appeared to be soldiers because of the clothing they
15 Q. My apologies on the inaccuracy. They appeared to be soldiers
16 because of that?
17 A. Yes.
18 Q. You weren't making a final conclusion?
19 A. Absolutely not.
20 Q. Okay. Now, prior to this time and when you were looking at these
21 individuals, had you been told that prior to Operation Storm there had
22 been a full mobilization of men in the Knin area and men from 18 to 65?
23 A. Had I been told that?
24 Q. Yes.
25 A. No, no.
1 Q. Had you been told, sir, that during the course of this that in
2 certain companies that the average age of the ARSK companies was
3 approximately 56 years of age?
4 A. I hadn't been told that, no.
5 Q. Had you been told that when you were looking at these bodies that
6 some soldiers wore -- of the ARSK were wearing a camouflage uniform
7 whereas others were just in a plain green uniform?
8 A. No.
9 Q. Were you told that the -- that the RSK police -- members of the
10 police force that in times of war became members of the military?
11 A. No.
12 Q. Now, likewise, and I know that you saw some younger men, if you
13 will, or middle-aged men, if you will, that you were in civilian clothing
14 during in the course of the autopsies that you and your team went
16 A. Yes.
17 Q. Were you told during the -- before or after the examination that
18 ARSK soldiers when they were retreating from the front lines on the 4th
19 and 5th took their uniforms off and put civilian clothing on?
20 A. No.
21 Q. Well, if we look at a statistic or you look at a number of all of
22 the men that you examined with the idea that 56 could have been the
23 average age and including people both in civilian clothes and military or
24 police clothing, the percentage of possible soldiers that you could have
25 examined could have gone up significantly?
1 A. It certainly could have been higher, yes.
2 Q. Now, let me show a document which is D382 received in evidence.
3 Now, I don't know if you've seen this document or not. This is a
4 document -- well, we can just put it up on the screen. Take a look at
6 This is a document that -- dated the 9th of January, 1996, from
7 the Republic of Croatia Ministry of the Interior, fire-fighting and
8 civilian protection department, list of people retrieved during hygiene
9 and sanitary treatment of the terrain in the Zadar-Knin police
11 Now, I will tell that -- without going through the counting and
12 you are welcome -- if we can just page through a bit, and you can just
13 take a look at what it looks like. Go to the next page. We don't need
14 to go through the whole thing, unless you want to.
15 Now, in this document that is dated the 9th of January, 1996
16 Minister of the Interior of the Republic of Croatia
17 were buried in the Knin cemetery. Now, that's significantly less, of
18 course, than the 295 that you took out, not as far from the 245 that you
19 said were real cases. Of the bodies you took out, there was a
20 discrepancy between your 295 and the 232 that the Ministry of Interior
21 said were there.
22 Have you seen this document before? Were you shown this
24 A. No.
25 Q. Likewise in the Knin cemetery if we go through this D382, the
1 listing of soldiers as opposed to your 81, they have listed 102 almost --
2 44 per cent, of the bodies that were buried. Now that, sir, could -- and
3 this is something that you don't know. That could be based on
4 information that you didn't have concerning those particular individuals.
5 Would that be a fair calculation as to why the discrepancy in these
6 numbers would come?
7 JUDGE ORIE: Mr. Margetts.
8 MR. MARGETTS: Mr. President, I don't think this is appropriate
9 for the witness to speculate on the internal thinking or workings of this
10 author of this document over the Croatian Ministry of Interior, so he has
11 no information or -- there's no basis to assume he has information as to
12 how and why the Croatian Minister of the Interior produced this document,
13 and it's not a relevant question for him.
14 JUDGE ORIE: Mr. Kehoe, what, apart from the arithmetic's, which
15 everyone can do who has finished primary school. What is in the
16 expertise or in the knowledge of this witness that would enable him to
17 answer that question?
18 MR. KEHOE: I'm encouraged by your faith in my math, Judge. I
19 wish it were so, but I'm more interested in the fact that --
20 JUDGE ORIE: Then rely on the Chamber's math.
21 MR. KEHOE: Yes. I'm more interested in the fact that the
22 document was not shown to the witness before he came in. But we can move
23 on to another subject at this juncture.
24 JUDGE ORIE: Please proceed.
25 MR. KEHOE:
1 Q. And thankfully, Doctor, this is the last subject. I always get a
2 smile from Judge Orie.
3 A. You have been doing most of the speaking so far.
4 Q. Doctor, I want to chat with you about some of the things that you
5 said yesterday which came to my attention, and if I can turn to -- if I
6 may, I do believe I have the rough copy, and I will get the exact copy of
7 this. But I believe you said at one point when I asked you a question,
8 asking about gunshot wounds in war, I asked you:
9 "These the type of injuries that you expect to see in war, aren't
11 And you answered:
12 "Yes, partly. More obvious in war you will find many more blast
13 injuries than bullet injuries."
14 A. That's right, yes.
15 Q. So it would be fair to say that when you were going into this
16 endeavour and looking at what you thought were remains coming from
17 Operation Storm, you expected to find many more deaths from blast
18 injuries than you found. Isn't that right?
19 A. Not at all. No that was not in my mind at all. We were looking
20 at the findings and then trying to bring some analysis afterwards.
21 Didn't do it the other way around.
22 Q. Help me out. When you are in war, you generally -- your
23 experience has been that you find more injuries from blast --
24 A. It is not my experience. There are a number of well-documented
25 papers on this, documenting major wars and battles in which it is very
1 clear that the bulk of people, the bulk of deaths are due to blasting and
2 explosion injury rather than to bullets.
3 Q. Of course, as you say in your report on page 9 that was not your
4 experience with the Knin cemetery?
5 A. No, there were very few with blast injuries.
6 Q. Let's talk about that very briefly, and if we may, I think you
7 say on page 24 of your report that there -- six died from blast injuries.
8 That's in the middle of the page.
9 A. Yes.
10 Q. And if we can go back to those individual items, you list the
11 blast injury numbers in page 9 in these -- second full paragraph, second
12 paragraph under blast injuries, page 9.
13 Do you see that, Doctor?
14 A. Yes, I have got it.
15 Q. And the first one you have is -- well, not the first one, but one
16 of them on there that is a possible example with less certainty, if we go
17 to the second line is 274, KN01/274. Do you see that?
18 A. Yes.
19 Q. And if we could bring that up on the screen. That's 65 ter 6237.
20 And I'm interested, Doctor, in going through this of actual blast
21 injuries of people that died in Knin. And this is one of the individuals
22 where you note that it's less certain, but Dr. --
23 A. Mendonca.
24 Q. Mendonca maintains that it is explosive blast trauma?
25 A. This was one of the other cases that I, in reviewing it, felt the
1 evidence for blast injury wasn't perhaps as strong. I didn't think it
2 was as strong as perhaps he did. And that was largely because all other
3 blast cases that I have seen, there has been shrapnel found in the bodies
4 as you would expect. In this case there was none at all. And for that
5 reason, I was less certain that it was, and I therefore, gave a sort of
6 unascertained cause in my final listing.
7 MR. KEHOE: Your Honour, at this time, we'd like to offer 65 ter
8 6237 into evidence.
9 MR. MARGETTS: Mr. President, that is it already --
10 JUDGE ORIE: That's on the list, already admitted.
11 Madam Registrar, that would receive --
12 THE REGISTRAR: That would be Exhibit D1239, Your Honours.
13 JUDGE ORIE: D1239 is assigned to the autopsy report in case
14 number KN01/274 B and was already admitted into evidence.
15 Please proceed.
16 MR. KEHOE:
17 Q. Yes. Doctor, the Prosecutor alleges that this particular body
18 was found in Mokro Polje which is a village well outside of Knin. Are
19 you familiar with that area?
20 A. No.
21 Q. So were you told that this particular body had -- was not -- did
22 not perish in Knin?
23 A. No, I wasn't told that.
24 Q. Let us turn to the first one on your list, KN01/385. It's
25 1D64-0053. This is an individual by the name of Babic, I do believe.
1 I'm sorry ... Bibic, I apologise.
2 Now, this is an injury, sir, that -- it notes that the cause of
3 death --
4 MR. KEHOE: Can we just scroll up on the pathologist on there.
5 THE WITNESS: Dr. Aiyer. Sorry, Dr. Naidoo.
6 MR. KEHOE:
7 Q. Okay. This is a blast injury, is it not, 1D64-0053? This is one
8 of the ones that you included, and you also note that this individual was
9 a soldier. I note that in your page 9 of your report where are you
10 talking about 385. You say, All of them soldiers.
11 A. Yes, if we went on to the next page of the post-mortem report.
12 Q. Now --
13 A. Sorry. If we can just go on to the next page.
14 Q. Sure.
15 MR. KEHOE: If we can go to the next page, Madam Registrar.
16 A. Should say the clothing, camouflage jacket, camouflage trousers,
17 so on the basis of that, yes, we said he was a soldier.
18 Q. If we can go to --
19 MR. KEHOE: If we can offer 1D64-0053 into evidence.
20 MR. MARGETTS: Mr. President, that is it not already admitted
21 into evidence [Overlapping speakers] ...
22 JUDGE ORIE: [Overlapping speakers] ... We see it is not on the
24 Madam Registrar.
25 THE REGISTRAR: Your Honours, that would be exhibit number D1240.
1 JUDGE ORIE: D1240 is admitted into evidence.
2 Please proceed.
3 MR. KEHOE: If I can turn our attention to 1D64-0108. 1D64-0108.
4 This is the identification item for KN01/385, Dusan Bibic. And the next
5 page in that, I think, identifies the date and location of death as
6 Belici in around -- in the Drnis municipality.
7 Your Honour, at this time, we'd like to offer into evidence,
9 MR. MARGETTS: Mr. President, we have no objection.
10 JUDGE ORIE: Madam Registrar, could a number be assigned.
11 THE REGISTRAR: That would be Exhibit D1241, Your Honours.
12 JUDGE ORIE: D1241 is admitted into evidence.
13 Please proceed.
14 MR. KEHOE:
15 Q. Now, likewise in the geography, Doctor, I mean, are you familiar
16 with Belici which is in the Drnis municipality and that is, in fact, some
17 distance from the town of Knin
18 A. Not at all, no.
19 Q. Let's go look at your -- next one, sir. This is 1D64-0082 which
20 is KN01/392.
21 A. If are you going through the list, there is one missed out, but
22 you're maybe not going through them all. 386.
23 Q. I understand, sir, that is, in fact, one that appears to have
24 died in Knin.
25 A. That's fine. Okay.
1 Q. Okay. And I think we can also say that the other soldiers that
2 died in Knin that we don't have additional clarification would be 396 and
3 426. Those other soldiers.
4 I'm interested in some of the others that don't fall into that to
5 try to come to some kind of number as to people who died during the
6 shelling on Knin on the 4th and 5th, based on your examination. That's
7 why I'm turning our attention to one in Belici, another one in
8 Mokro Polje. And this one is in a different manner, although it's a
9 soldier, 1D64-0082. This is an individual that died of cause of death
10 the injuries compatible with gunshot or explosive shrapnel injuries to
11 the head. You included as an individual that died of blast.
12 A. Well, this is somebody who looks as if he has certainly suffered
13 blast injury but may also have been shot. Difficult to say. But there
14 is certainly evidence of blast explosive injury.
15 Q. I understand, sir. If we could just page through and get an
16 identification on this individual.
17 MR. KEHOE: If we can page -- if I might have one moment.
18 THE WITNESS: The basis of him being a soldier here was the
19 clothing, olive-green long trousers. That was the extent of that.
20 MR. KEHOE: If I might have just one moment, Judge.
21 [Defence counsel confer]
22 MR. KEHOE: If we can go to page 23 of this document.
23 Q. Now this -- based on identifying documentation that was included
24 on this body, we have an identification of Rajko Trifunovic. That would
25 have done by the anthropologists, would it not, going through their
2 A. No.
3 Q. Who would do that?
4 A. I have no idea. We made no identifications in the mortuary. We
5 recorded information, and I suspect that all these identifications were
6 done on DNA
7 samples by us. But we made no formal identifications at all in the
9 MR. KEHOE: If we can go to the next page, if we can.
10 Q. It appears he was carrying an ID card with him at the time of his
12 A. We may have found -- we may have seen this in the remains. I
13 can't remember.
14 Q. Okay. Well if, in fact -- and this is a document provided to us
15 by the Office of the Prosecutor, you have no reason to question that
16 these are the same items of evidence taken from this body when the
17 autopsy was, in fact, took place?
18 A. No.
19 Q. Okay.
20 MR. KEHOE: If I can just go into private session, Judge, very
22 JUDGE ORIE: We turn into private session.
23 [Private session]
14 [Open session]
15 THE REGISTRAR: Your Honours, we're back in open session.
16 JUDGE ORIE: Thank you, Madam Registrar.
17 MR. KEHOE: Mr. President, I have ten minutes, 15 minutes more.
18 I don't know if you want to take the break now or if you want me to
20 [Trial Chamber confers]
21 JUDGE ORIE: The advantage of postponing the break is that you
22 really would have to stop in 15 minutes. Nevertheless, we will take a
23 break, but after that, you have to stop in 15 minutes.
24 MR. KEHOE: I will stop in 15 minutes.
25 JUDGE ORIE: We'll have a break, and we will resume at ten
1 minutes past 4.00.
2 --- Recess taken at 3.46 p.m.
3 --- On resuming at 4.15 p.m.
4 JUDGE ORIE: Mr. Kehoe, please proceed.
5 MR. KEHOE: Yes, Mr. President, with regard to D1239, which is
6 KN01/274 that I stated that the body was found in Mokro Polje, I
7 neglected to put in the actual body recovery sheet which says exactly
8 Mokro Polje, and that is for one of the blast injuries that is set forth
9 in Dr. Clark's report. The document is 65 ter 6239.
10 JUDGE ORIE: And is not yet in evidence, is it?
11 MR. KEHOE: Yes.
12 JUDGE ORIE: Madam Registrar.
13 THE REGISTRAR: Your Honours, that would be exhibit number D1242.
14 JUDGE ORIE: D1242, body recovery sheet, is admitted into
16 Please proceed.
17 MR. KEHOE: Just by way of clarity, if I can, Judge, D1242 is the
18 recovery sheet for the autopsy that is in evidence as D1239. And my
19 apologies for not doing that previously.
20 JUDGE ORIE: Yes. It's on the record now.
21 Please proceed.
22 MR. KEHOE:
23 Q. Doctor, in your report on page 9 and 24 you identify six
24 individuals that you said died of blast injuries, five soldiers, and one
1 A. Yes.
2 Q. Now, of those six individuals that were -- I think -- that died
3 of -- blast victims, I think you told us you don't know where those
4 bodies came from?
5 A. No.
6 Q. Okay. Now let us just talk a little bit about the munitions
7 involved. Can you tell us whether or not these individuals died from,
8 you know, tank fire or mortar fire or anti-personnel mines or
10 A. No. There was one of them, I forget which number it was. It's
11 one we've looked at who -- the main injury was to his lower leg, which
12 might suggest a land-mine, but other than that, I can't distinguish what
13 munitions were involved now.
14 Q. So -- that would likewise include of the five soldiers and one
15 civilian that died, you couldn't tell us whether or not they died as a
16 result of shrapnel from a multi-barrel rocket launcher or a Howitzer or a
17 T-130, could you?
18 A. Or a grenade.
19 Q. [Overlapping speakers] ...
20 A. No. I mean, it may be able to be told from the nature of the
21 shrapnel, but I can't tell that at this stage, no.
22 Q. Doctor, thank you very much. I have no further questions. I
23 appreciate your time.
24 A. Thank you.
25 JUDGE ORIE: Thank you, Mr. Kehoe.
1 Mr. Kay --
2 MR. KAY: No questions, Your Honour.
3 JUDGE ORIE: No questions.
4 Then, Mr. Mikulicic.
5 MR. MIKULICIC: Thank you, Your Honour.
6 JUDGE ORIE: Mr. Mikulicic will now cross-examine you, Mr. Clark.
7 Mr. Mikulicic is counsel for Mr. Markac.
8 Please proceed.
9 Cross-examination by Mr. Mikulicic:
10 Q. Good afternoon, Dr. Clark.
11 Given your professional expertise, can you tell what would be the
12 typical characteristics of a cut or a epithelium wound caused by a sharp
13 object, i.e., knife and what would be the indications of such a wound on
14 the epithelium tissue?
15 A. There's a word I'm not picking up.
16 THE INTERPRETER: Skin tissue.
17 THE WITNESS: Skin tissue, sorry.
18 A knife on the skin would -- would cut into it and leave either a
19 stab wound or a, what we call an incised wound, a clean cut injury on the
20 skin. In these bodies, it would be very difficult for us to see that,
21 particularly if there were no skin or tissues, soft tissues, remaining.
22 If the weapon had been -- gone deep enough to go into bone, then we might
23 just see some evidence of that in the bone, but I think by and large, and
24 these cases we would not have picked up cutting injuries.
25 Q. Based on your experience, can you tell us what would be the exact
1 forensic procedure in order to ascertain whether a skin wound was caused
2 by a knife or perhaps another object. Can one arrive at such a
3 conclusion solely based on an external examination without further
5 A. If you are speaking in the general situation of a fresh body, if
6 you like, we can identify perhaps the dimensions of the weapon, the
7 knife, that caused the injury, so we could tell if it was a small weapon
8 or a large weapon, we could tell the shape of it to some extent, but an
9 injury caused by a sharp knife could be -- look very similar to one
10 caused by a razor or to be caused by glass. It is not all that easy --
11 always easy to distinguish the two.
12 Q. In your report, P1251, on page 9, you state in paragraph 4 that
13 on two corpses you found certain skull injuries, suggestive of a knife or
14 a bayonet wound. Those were the only two examples which would indicate
15 that a sharp object, i.e., knife or bayonet were used that we can find in
16 your report. Is that correct?
17 A. Is the only positive evidence of use of a knife or sharp -- sharp
18 weapon. It has to be said that a knife going through the skull would
19 have to be quite a thick one and a heavy weapon. But, you're correct,
20 that is the only two that we found.
21 MR. MIKULICIC: [Interpretation] I would kindly ask
22 Madam Registrar to show us a 65 ter document. The number is 3385.
23 Q. This is an autopsy report, case number KN01/241 B. The person's
24 name was Jovo Grubor. From the autopsy report, one concludes that
25 gunshot wounds existed on the corpse; that is to say, there were a
1 minimum of six, six bullet-holes on the trunk. On the comments it is
2 also included that blunt force was exercised on the jaw. The cause of
3 death, as stipulated, is gunshot wounds to the trunk. In this report,
4 there is no mention of any other wounds, which would indicate that a
5 sharp object or a knife were used. Is that correct?
6 A. That's correct, yes.
7 MR. MIKULICIC: [Interpretation] Could we please assign an exhibit
8 number to this document.
9 MR. MARGETTS: Yes, Mr. President. It's already in evidence.
10 JUDGE ORIE: But no number assigned to it yet.
11 Madam Registrar.
12 THE REGISTRAR: Your Honours, that would be exhibit number
13 Exhibit D1243 is an exhibit number assigned to a document already in
14 evidence, which is an autopsy report, case number KN01/241 B.
15 Please proceed.
16 MR. MIKULICIC: Thank you, Your Honour.
17 [Interpretation] I would kindly ask the registrar to show us
18 document 65 ter number 2346.
19 Q. We see that this is an exhumation report. The body concerned is
20 referred to in the autopsy report we just saw which was KN01/241 B.
21 Dr. Clark, in this report, we don't see any information on any
22 sharp objects being identified, save for certain metal particles that
23 were found in the body that are presumed to have belonged to a bullet.
24 Is that correct?
25 A. Yes.
1 MR. MIKULICIC: [Interpretation] Could we please assign a number
2 to this exhibit.
3 MR. MARGETTS: No objection, Mr. President.
4 JUDGE ORIE: Madam Registrar.
5 THE REGISTRAR: Your Honours, that would be exhibit number D1244.
6 JUDGE ORIE: Admitted into evidence.
7 MR. MIKULICIC: [Interpretation] I would kindly ask the Registrar
8 for the 65 ter document, number 2143.
9 Let us go to page 2, please, of the document.
10 Q. This document contains information on the identification
11 procedure of the corpse. It is concluded therefore that the person
12 concerned is Jovo Grubor from the village of Plavno
13 At page 3 of document we can see that the corpse was identified
14 by Dusana Grubor also from the village of Plavno
15 I would kindly ask for page 4 to be shown next. That is a
17 Dr. Clark, have you had occasion to see the photograph of the
18 corpse that we can see on the screen?
19 A. Yes .
20 Q. When observing the photograph, in order to make your conclusions,
21 did you also use what you could visually observe in the photograph?
22 A. I didn't make much use of these photographs in doing my
23 post-mortem report. I've since looked at these photographs and find some
24 interesting findings in them. I don't think there is anything here which
25 takes away from the findings in the autopsy, other than possibly
1 irrelevant observation that this body appears to have been re-clothed
2 after death, on the basis that there are no blood-stains at all on his
3 shirt and with injuries to his jaw, collar-bone and hand, you would
4 expect at least some blood-staining. But the -- what we can see in the
5 photograph here matches with the findings at autopsy.
6 Q. Dr. Clark, the wound we can see on the right-hand side of the
7 shirt right under the chin, does it indicate to you, as an expert that it
8 might be a wound that was caused by a knife or another sharp object?
9 A. It's difficult to see the detail here. I think it's more likely
10 a gunshot injury, which is initially struck the chin and has then struck
11 the collar-bone. I think that was the interpretation of the pathologist
12 that this was a wound going through the chin, down into the collar-bone
13 into the chest, and you can just see a wound under the V of -- of his
14 shirt, and it is possible that his hand was in the way and was injured at
15 the same time. But there is nothing particularly to suggest that that is
16 a sharp -- sharp weapon.
17 Q. Dr. Clark, you have carried out a number of autopsies. Did you
18 come across any injuries in at least one single case which would indicate
19 that a person was killed after being wounded by several bullets in the
20 trunk, in the upper part of the body, and that, in addition, that person
21 sustained neck injuries indicative of the use of a knife, that the throat
22 was slit.
23 Did you come across such an example while undertaking the
24 exercise of autopsies in the area of Knin?
25 A. No, none at all. Having said that, we probably would not have
1 seen in the remains any evidence of a cut-throat injury.
2 MR. MIKULICIC: [Interpretation] Could we please assign a number
3 for this exhibit.
4 MR. MARGETTS: Mr. President, no objection.
5 JUDGE ORIE: Madam Registrar.
6 THE REGISTRAR: Your Honours, that will be Exhibit D1245.
7 JUDGE ORIE: D1245 is admitted into evidence.
8 MR. MIKULICIC:
9 Q. [Interpretation] I thank you for your answers, Dr. Clark. I have
10 no further questions.
11 A. Thank you.
12 JUDGE ORIE: Mr. Margetts.
13 MR. KEHOE: Yes, Mr. President, may I just interrupt one moment
14 before my learned friend comes in, and I apologise again.
15 Before the break we were talking about the autopsy for KN01/392
16 which was 1D64-0082. It is one that Dr. Clark did, in fact, comment on,
17 and I neglected to put that in evidence prior to the break.
18 JUDGE ORIE: Yes. Could you please repeat the number. You
19 pronounced it that quickly that I'm not quite sure that --
20 MR. KEHOE: 1D64-0082 which is the autopsy report for KN01/392.
21 JUDGE ORIE: Yes. That is what I heard you said 392, but you did
22 it that quickly that I hardly can think of even think of blaming madam
23 transcriber for not catching up.
24 MR. MARGETTS: It is not in evidence, and we have no objection.
25 JUDGE ORIE: No objection. Not in evidence.
1 Madam Registrar.
2 THE REGISTRAR: That will be Exhibit D1246.
3 JUDGE ORIE: D1246 is admitted into evidence.
4 Yes. Before, however, I give an opportunity to you,
5 Mr. Margetts, to -- to re-examine the witness, I have one question for
7 Yesterday we asked you to do some homework; that is, to see
8 whether there were any inaccuracies in the supplementary statement. Have
9 you been able to review that, and are there any inaccuracies?
10 THE WITNESS: No inaccuracies, no.
11 JUDGE ORIE: No inaccuracies. Thank you very much.
12 Mr. Margetts.
13 MR. MARGETTS: Mr. President, I only have one matter that I'd
14 like to raise with Dr. Clark that arises from the issue regarding
15 Dmitar Vojnovic which is killing number 248, the number ascribed by the
16 Croatian authorities, and we dealt with this -- Mr. Kehoe dealt with this
17 killing and referenced the autopsy report KN01/216, I believe.
18 In any event, it turns out that the reference to killing number
19 248, which the Court has received documentary evidence relating to that
20 killing, in any event, that -- the autopsy of that victim is autopsy
21 report KN01/399. We haven't presented that report to Dr. Clark. He
22 hasn't referred to it in his expert report, and that's what I'd like to
23 do. I'd like to give him the opportunity to review that autopsy report
24 and make some comments on it.
25 MR. KEHOE: Your Honour, first of all, it is KN01/162 for this
1 individual. Which is D12 -- excuse me. KN01/162 which is D1226, and
2 1227, I believe, is the identifying document.
3 Frankly, Judge, I have to confirm if, in fact, that the documents
4 that the Prosecutor is now attempting to introduce into evidence are, in
5 fact, accurate documents. And I have no -- no question of bona fide of
6 Mr. Margetts in any fashion. It is the record-keeping in this endeavour
7 concerning autopsies has been difficult to say the least and before any
8 type of -- frankly I don't have that document here because it wasn't on
9 the list, but in any event, I need to be able to go back and take a look
10 through those. And I may very well be able to agree with Mr. Margetts
11 concerning the applicability of that, that there is some difficulty with
12 the clarification schedule. I'm just not sure --
13 JUDGE ORIE: Yes. Let's -- let's invite Mr. Margetts to proceed,
14 and let's see where it brings us and where mention -- reference was made
15 to KN01/216. Now, Mr. Kehoe, you say that is KN01/162.
16 MR. KEHOE: KN03 -- excuse me, 162 is what I introduced into
17 evidence under D1226 with the identifying information 1227.
18 JUDGE ORIE: I would suggest the following:
19 Every document to be discussed from now on on this matter, I'd
20 like to see it on the screen so that we know what we're talking about.
21 That's -- so whatever document is mentioned from now on, let's look at it
22 on the screen, see whether we're talking about the same document.
23 Let's invite Mr. Margetts to proceed, and let's see where we get
25 Please proceed, Mr. Margetts.
1 MR. MARGETTS: Thank you, Mr. President.
2 Mr. President, if I could please have 65 ter 6787 presented on
3 the screen.
4 Re-examination by Mr. Margetts:
5 Q. Dr. Clark, can you see the autopsy report that is presented on
6 the screen? It's --
7 A. Yes.
8 Q. A body exhumed from the location KN01 and assigned the number
9 399. Could you review that and could you confirm that that is an autopsy
10 report that was prepared by a member of your team?
11 A. Yes, it was.
12 Q. And in regard to the conclusions, do you differ with those
13 conclusions or do you concur with those conclusions?
14 A. No, I agree entirely with the conclusions.
15 Q. Thank you, Dr. Clark.
16 MR. MARGETTS: Mr. President, we've had discussions with the
17 Defence in relation to this set of documents, so I'd move this document
18 into evidence and seek an exhibit number. I'd understand if my learned
19 friend wanted it to be marked for identification at this time.
20 MR. KEHOE: Yes, Your Honour, I have no problem at this point
21 just marking it marked for identification. I would just like to go back
22 and cross-reference it. Because, again, I am not certain that we are
23 talking about the same Dmitar Vujanovic, and I'd like to go back and see
24 what I can find out looking through the rest of this document because I
25 simply don't have it here.
1 JUDGE ORIE: Yes, I do understand, but is that an objection
2 against admission because you want to look at it in -- and compare it
3 with other evidence. What we have here is an autopsy report without a
4 name, just with a number, of which the witness has said that he agrees
5 with the conclusions. So whether this is A, B, or C, is not yet a matter
6 which appears to me to be a matter of admission.
7 MR. KEHOE: I'm not sure it is the person that the Prosecution
8 says it is.
9 JUDGE ORIE: The Prosecution doesn't give any evidence.
10 MR. KEHOE: Then it's irrelevant.
11 JUDGE ORIE: Sometimes the relevance comes in the next step.
12 MR. KEHOE: I'm simply asking, Judge, to take a look at it MFI'd
13 it at this point, so I can take a look at it before we move forward.
14 JUDGE ORIE: That might be very practical to MFI it and to see
15 that you want to verify other evidence to see what the relation to this
16 evidence is.
17 MR. KEHOE: Right.
18 JUDGE ORIE: It will be MFI
19 Madam Registrar.
20 THE REGISTRAR: Your Honours, that will be Exhibit P1257, marked
21 for identification.
22 JUDGE ORIE: Thank you, Madam Registrar.
23 Mr. Margetts.
24 MR. MARGETTS: Mr. President, I have no further questions.
25 Q. Dr. Clark, thank you very much.
1 MR. MARGETTS: Mr. President, thank you very much.
2 JUDGE ORIE: Yes.
3 Has the re-examination triggered any need for further questions
4 to the witness?
5 MR. KEHOE: No, Mr. President.
6 JUDGE ORIE: The Bench has no questions for you, Mr. Clark. So,
7 therefore, this concludes your testimony in this Court. We will have to
8 make a few decisions on admission of evidence, but that's not of major
9 concern to you, I take it.
10 THE WITNESS: No.
11 JUDGE ORIE: I would like to thank you very much for coming to
12 The Hague
13 and by the Bench, and I wish you a safe trip home again.
14 THE WITNESS: Thank you very much. Thank you.
15 JUDGE ORIE: Madam Usher, could you please escort Mr. Clark out
16 of the courtroom.
17 [The witness stands down]
18 JUDGE ORIE: Mr. Margetts.
19 MR. MARGETTS: Mr. President, the Prosecution is ready to call
20 its next witness, that's Colonel Konings, and Mr. Russo will take over
21 for the Prosecution.
22 MR. KEHOE: If I can just have one housekeeping matter with
23 regard to Dr. Clark. The -- pursuant to Your Honours instructions, the
24 three documents or three autopsies that we were going to go through that
25 were supportive of the uncertain conclusions by Dr. Clark from KN -- KN02
1 were part of the Prosecutor's list, and consequently obviously since they
2 were not shown to the witness, we will just take the numbers --
3 JUDGE ORIE: They will be numbered on the list which we will
4 receive from Mr. Margetts not later than this Friday.
5 MR. KEHOE: Correct. Yes.
6 JUDGE ORIE: Yes. Thank you.
7 MR. MISETIC: Mr. President. I also wanted to just raise the
8 issue with the chamber that you had invited the parties to have argument
9 on that one issue.
10 JUDGE ORIE: For five minutes.
11 MR. MISETIC: I don't know if you want to do it now or at some
12 point later.
13 JUDGE ORIE: As a matter of fact, the Prosecution asked to
14 schedule it at the end of today's session. I do understand two times
15 five minutes means 15 minutes altogether; that is my arithmetics, and
16 that would be on from quarter to 7.00.
17 Mr. Margetts.
18 MR. MARGETTS: Yes, Thank you, Mr. President. If I may -- yeah,
19 Ms. Gustafson is here to make the argument when it's called to be made.
20 JUDGE ORIE: I do not mind to have it done immediately, but I was
21 -- I received the message that it was preferably to be done at the end of
22 the session today. But if Ms. Gustafson wants to leave earlier today,
23 then it might be an appropriate moment at this moment to do it. I
24 thought the Prosecution would not be ready, but you are. Is the Defence
25 ready --
1 Then, Ms. Gustafson, I think it would be the appropriate order to
2 invite Ms. Gustafson first, and then to give you an opportunity to a
3 five-minute response.
4 MS. GUSTAFSON: Thank you, Your Honour.
5 As we indicated in our request, we wish to reply to the -- to two
6 Rule 70 issues.
7 MR. MISETIC: Just, Your Honour, we may want to go into private
8 session for this.
9 MS. GUSTAFSON: That's right.
10 JUDGE ORIE: We turn into private session.
11 MS. GUSTAFSON: Thank you, Your Honour.
12 [Private session]
11 Pages 14290-14299 redacted. Private session.
8 [Open session]
9 THE REGISTRAR: Your Honours, we're back in open session.
10 JUDGE ORIE: Thank you, Madam Registrar.
11 The last thing that was done in private session was that we
12 discussed whether to start right away with the next witness, since the
13 Prosecution has no preference for having the break first, we'll just
15 Madam Usher, could you please escort the next witness into the
17 [Trial Chamber confers]
18 JUDGE ORIE: Defence is invited to -- if their positions in
19 relation to the report by Dr. Clark underwent any changes then to inform
20 the Chamber about that. If not, the Chamber will consider the objections
21 as they were, and, of course, one of the parts of it has been decided,
22 that the time of filing was not an obstacle to admission as such; but if
23 there are any other matters to be brought to the attention of the
24 Chamber, of course, we would look forward to hear of it as soon as
25 possible. Also, if objections would not exist any longer, then -- or if
1 it was just a matter of reserving the position to re-call Dr. Clark if
2 need be.
3 Mr. Russo, it is well understood that no protective measures are
4 sought for the next witness.
5 MR. RUSSO: That's correct, Mr. President.
6 [The witness entered court]
7 JUDGE ORIE: Good afternoon.
8 THE WITNESS: Good afternoon.
9 JUDGE ORIE: Mr. Konings, at least I assume that are you
10 Mr. Konings, before you give evidence in this Court, the Rules of
11 Procedure and Evidence require you to make a solemn declaration that you
12 will speak, the truth, and nothing but the truth.
13 May I invite you to make that solemn declaration.
14 THE WITNESS: I solemnly declare that I will speak the truth, the
15 whole truth, and nothing but the truth.
16 JUDGE ORIE: Thank you. Please be seated, Mr. Konings.
17 Mr. Konings, I am aware that are you not a native
18 English-speaking person. May I take it that you have nevertheless
19 decided to give evidence in the English language.
20 THE WITNESS: Yes, issue, I did.
21 JUDGE ORIE: If you have any problems at any time either to
22 understand the English language as used by others or in expressing
23 yourself in the English language, please let me know, and since we might
24 speak another common language, there might be a way to resolve these kind
25 of matters.
1 You will first be examined by Mr. Russo. Mr. Russo is counsel
2 for the Prosecution.
3 Mr. Russo, please proceed.
4 MR. RUSSO: Thank you, Mr. President.
5 WITNESS: HARRY KONINGS
6 Examination by Mr. Russo:
7 Q. Please state your full name for the record.
8 A. My full name is Harry Konings.
9 Q. And can you also please provide your rank and position within
10 it's Royal Netherlands Army?
11 A. My rank -- first of all my rank is lieutenant-colonel, and my
12 concern position in the Royal Netherlands army is part of the land forces
13 doctrine and training centre, and I'm working there as staff officer,
14 doctrine land operations.
15 Q. Thank you. I would briefly like to review your qualifications
16 and experience for the Chamber.
17 Can you please tell the Chamber about your education and military
19 A. I am -- yes, Mr. Russo.
20 After my training, my first initial training at the Royal
21 Military Academy
22 as well at the Military Academy
23 second lieutenant, I fulfilled various jobs inside operation units of the
24 Royal Netherlands
25 which is a kind of platoon commander and battery commander, commanding a
1 battery of field artillery Howitzers.
2 After a period on the staff college as a captain, I went to the
3 army staff here in The Hague
4 and after that, I was posted to the mechanized brigade in German as fire
5 support coordination officer.
6 Returning from that job, I went to another artillery battalion,
7 being S3 which is head of the Section 3 which is head of operation for an
8 artillery battalion, followed by a job as an operations officer in the
9 army artillery headquarters.
10 Having fulfilled that job, I went to the directorate of materiel
11 here in The Hague
12 ammunition office responsible for testing and procuring artillery and
13 mortar ammunition for the Dutch army and Royal Dutch Marines.
14 After that post I was commissioned as commanding officer of the
15 fires support training school which was a responsibility to train all the
16 artillery and mortar personnel of the Royal Netherlands Army and the
17 Royal Netherlands Marines as well.
18 My following job was head of the doctrine section of the fire
19 support training centre, which means developing doctrine tactics,
20 techniques, and procedures for fire support for the whole Royal
22 developing doctrine land operations.
23 Q. Thank you very much for that explanation, Colonel Konings.
24 MR. RUSSO: Madam Registrar, if we could please have 65 ter 6518.
25 Q. Colonel Konings, do you recognise the document on the screen as
1 your curriculum vitae?
2 A. Yes, I do recognise that document.
3 Q. Thank you.
4 MR. RUSSO: Your Honour, I would move for the admission of 65 ter
6 JUDGE ORIE: Since there are no objections, Madam Registrar, the
7 number will be ...
8 THE REGISTRAR: Exhibit P1258, Your Honours.
9 JUDGE ORIE: Exhibit P1258 is admitted into evidence.
10 Please proceed.
11 MR. RUSSO: Thank you, Mr. President.
12 Q. Colonel Konings, can you please briefly describe any mission
13 experience you may have had for the Chamber.
14 A. Yes, sir, I can.
15 In 1995, I have been posted as a United Nations Military Observer
16 in the -- in the city of Sarajevo
17 old part of the city, being responsible for monitoring the whole
18 situation in and around the city of Sarajevo
19 incidents that were occurring during that period.
20 In 1997, I was posted as chief operations for the European Union
21 monitor mission stationed in Zagreb
22 for the complete operations of the European mission inside Croatia.
23 And in 1998, I was posted as military liaison and security
24 officer for the OSCE, mission or presence in Albania stationed in Tirana.
25 Q. Thank you. Regarding your work as an UNMO team leader in
2 an artillery attack on the city?
3 A. In the period that I was stationed in Sarajevo from the beginning
4 of May 1995 until the end of October 1995, I was present during numerous
5 -- especially mortar attacks on the city of Sarajevo.
6 Q. And as part of your responsibilities as an UNMO team leader, were
7 you able to observe the effects of those attacks on the civilian
8 population and the civilian the infrastructure of the town?
9 A. Part of my job -- it was the biggest part of my job to witness
10 and analyse and report those effects, so I was witness of a lot of those
11 effects, yes.
12 Q. Thank you. And can you tell the Chamber whether you were ever
13 called upon to conduct any crater analyses in Sarajevo.
14 A. Unfortunately, that was practically our daily business in
16 Q. And can you tell the Chamber whether you have ever offered
17 testimony in any Court regarding the conclusions of your crater analyses.
18 A. I have done so, in March 2007, I have been called up as -- to
19 testify in the General Dragomir Milosevic case which was an investigation
20 on the mortar attack that happened on the 28 of August, 1995, in
22 that day the team leader, and I did the analysis afterwards, the
24 Q. Thank you. And regarding your work as chief of operations for
25 EUMM missions in Croatia
1 whether, during that time, you ever had occasion to visit the town of
3 A. In that period I have been various times in Knin. I told before
4 that my own station place was Zagreb
5 to travel and visit my teams all over Croatia. They were stretched out
6 from Vukovar up to Knin. We had a regional team there, so I visit them
7 quite frequently. So I have been in Knin various times, yes.
8 Q. Thank you. And finally, do you have any experience in the North
9 Atlantic Treaty Organisation?
10 A. I can say that I have some experience in working in and with the
11 North Atlantic Treaty Organisation, that's correct.
12 Q. Thank you. And if you wouldn't mind briefly describing what that
13 experience is for the Chamber.
14 A. I'll try to cut it short because it may take some time before we
15 can leave then tonight.
16 I started my work in 1992 as an artillery expert in the artillery
17 ammunition world. I was a member of various technical groups that
18 developed interchangeability of NATO ammunition concentrating on
19 artillery mortar ammunition including fuses and propelling charges. I
20 will also heading some of these teams.
21 Later on when I was working on the fire support training centre,
22 I was member of artillery working group which is a NATO standardization
23 agency working group that works on interoperability and a change of
24 doctrine inside NATO countries. I was developing that together with
25 other people tactical and technical artillery procedures. And lately I'm
1 the Dutch representative in the NATO land operations working group where
2 I'm heading various writing teams developing, among others, documents on
3 joint targeting, counterinsurgency, stability activities, peace support,
4 non-Article 5 [indiscernible], response operations, and so on.
5 Q. Thank you very much for that explanation. Please pardon for the
6 pauses I'm making. We are also trying to keep trak of the translations.
7 Now, Colonel Konings, do you recall providing an expert report to
8 this Tribunal entitles "Fire Support During Operation Storm August 1995
9 sometime in January of 2008"?
10 A. I do recall to have provided that report.
11 Q. Thank you. And do you also recall --
12 MR. RUSSO: Actually, if we could have, Madam Registrar, 65 ter
14 Q. Colonel Konings, do you recognise this as the expert report which
15 you provided?
16 A. I recognise report being the report that I have been writing in
17 January 2008, yes.
18 Q. Thank you. And do you also recall providing an addendum to this
19 expert report in October of 2008?
20 A. Yes, that's what I recall.
21 MR. RUSSO: Madam Registrar, if we could please have 65 ter 6154.
22 Q. Colonel Konings, looking at the screen, do you recognise this as
23 your addendum?
24 A. I recognise this as being my addendum.
25 Q. Thank you. And do you also recall receiving materials from the
1 Office of the Prosecutor relating to your creation of this addendum?
2 A. I have received various material from the OTP, yes.
3 MR. RUSSO: Madam Registrar, if we could now please have 65 ter
5 Q. And, Colonel Konings, if you could simply pay attention to the
6 screen here. I will ask Madam Registrar to simply move through the first
7 several pages.
8 MR. RUSSO: If we could keep going for just a few more pages.
9 Q. Now, Mr. Konings, do you recognise these documents as the
10 documents which you received from the Office of the Prosecutor for the
11 creation of your addendum report?
12 A. I recognise these documents to be those specific documents, yes.
13 Q. And did you have a chance to review both your expert report and
14 the addendum prior to coming to court today?
15 A. I have been given that opportunity.
16 Q. And in the course of reviewing those documents, did you note some
17 corrections and clarifications that you had wished to make to them?
18 A. I have stated to be -- to want to make some clarifications and
19 corrections, and I was given that opportunity.
20 Q. And were those corrections reduced to a writing entitled "A
22 A. It has been done so.
23 MR. RUSSO: Madam Registrar, if we could please have 65 ter 6179.
24 Q. Colonel Konings, do you recognise this as the document in which
25 you made the corrections and clarifications to your expert report and
2 A. I recognise this document being the corrigendum.
3 Q. Thank you. And with the corrections and clarifications contained
4 in this document, are you satisfied that the statements in both your
5 expert report and addendum are true and accurate to the best of your
7 A. I'm satisfied with the purpose that you explained.
8 Q. Thank you.
9 MR. RUSSO: Your Honour, at this time I would move for the
10 admission of the expert report, the addendum, the terms of reference, and
11 the corrigendum.
12 JUDGE ORIE: We have the further decision on admissions in our
13 previous decision, and I suggest that we -- I mean if they would not be
14 admitted, then, of course, the testimony would look quite differently.
15 But one of the issues was the qualifications of this expert.
16 Could I hear from the parties whether they are in a position to
17 express themselves on the various aspects of admission at this moment, or
18 would you rather defer that to a later moment.
19 MR. KEHOE: If can I defer that, I'd appreciate it, Judge.
20 JUDGE ORIE: And may I take it that that is it true for the other
21 Defence teams as well?
22 Yes. Mr. Kay. You're nodding yes. Mr. Mikulicic, same for you.
23 And then we proceed on the basis as if they were to be admitted
24 so that questions can be put to the witness, to the expert, and if he
25 qualifies as an expert, and that we have finally decide the matters after
2 MR. RUSSO: In that case, Your Honour, I assume they will not be
4 JUDGE ORIE: I think it would be wise to have them MFI'd already
5 because MFI
6 just as an exhibit status, which means that they would be admitted into
8 Madam Registrar, could you please assign MFI numbers to the
9 report, to the addendum to the report, and the corrigendum.
10 [Trial Chamber and registrar confer]
11 MR. RUSSO: I'm happy to read out the 65 ter numbers, if that's
13 JUDGE ORIE: Mr. Russo, four documents, could you please give the
14 65 ter numbers, one by one, so that Madam Registrar is certain about what
15 numbers is assigned to what document.
16 MR. RUSSO: Certainly, Mr. President. The first would the expert
17 report, and that is 65 ter 6153.
18 JUDGE ORIE: Madam Registrar.
19 THE REGISTRAR: That would be P1259, marked for identification,
20 Your Honours.
21 JUDGE ORIE: Thank you. Next one, Mr. Russo.
22 MR. RUSSO: Next one is the addendum, 65 ter 6154.
23 THE REGISTRAR: Exhibit P1260, marked for identification.
24 JUDGE ORIE: Thank you, Madam Registrar.
25 Next one, Mr. Russo.
1 MR. RUSSO: Next one is the terms of reference, 65 ter 6155.
2 THE REGISTRAR: That will be Exhibit P1261, marked for
4 JUDGE ORIE: Thank you, Madam Registrar.
5 Mr. Russo, the corrigendum.
6 MR. RUSSO: 65 ter 6179.
7 THE REGISTRAR: That will be Exhibit P1262, marked for
9 JUDGE ORIE: Yes. All keep that status for the time being.
10 Mr. Russo, I'm looking at the clock. I don't know -- how much
11 time --
12 MR. RUSSO: I think now is a good time, Your Honour.
13 JUDGE ORIE: Now is a good time to have a break.
14 We will have a break, and we will resume at five minutes to 6.00.
15 --- Recess taken at 5.32 p.m.
16 --- On resuming at 5.59 p.m.
17 JUDGE ORIE: Before we continue, Mr. Russo, there was a request
18 by Mr. Misetic to have another minute added to the already 16 minutes on
19 Rule 70, specifically in relation to a decision that was referred to by
20 Ms. Gustafson. The Chamber is willing to grant that one additional
21 minute, but of course then an additional minute for Ms. Gustafson as
22 well. We can do that at the end of today's session if she's still there,
23 Otherwise I think we would have to wait until she is back.
24 MR. RUSSO: I would prefer to do it at the end, Your Honour.
25 JUDGE ORIE: Yes, that's what I suggest, but if someone gets in
1 touch with her and see whether he is available five minutes to 7.00, then
2 that would be appreciated. If not, then we'll postpone it until
4 Apart from this, please proceed, Mr. Russo.
5 MR. RUSSO: Thank you, Mr. President.
6 Q. Colonel Konings, I'd like to begin in focussing on the nature of
7 artillery weapons.
8 If you could please refer to your expert report, and if we could
9 please have P1259, MFI
10 MR. RUSSO: Actually, if I could first have the assistance of the
11 court usher, Mr. President, I would like to give a hard copy of the
12 reports and materials to the witness.
13 JUDGE ORIE: Yes, that is usually done.
14 MR. RUSSO:
15 Q. And for your reference, Colonel Konings, your expert report is at
16 the second tab.
17 Now, if we could move to section 10 (B) of the expert report,
18 which appears on page 11 in the English version and page 26 in the B/C/S
20 Now, you will see, Colonel Konings, in section 10 (b) you state:
21 "One has always to remember that artillery and mortars are by
22 their nature aerial weapon systems."
23 Can you please explain to the Trial Chamber what you mean by an
24 aerial-weapon system.
25 A. Yes. What I try to explain there is that the word "area" stands
1 against the word "point," and an area is -- is a larger area, for
2 example, 100 by 50 metres or 200 by 200 metres, opposite a single point
3 which can be a single vehicle. And up until, let's say, the mid-1990s
4 artillery was developed and was used as an area coverage system because
5 of the fact that the ballistic -- the ballistic features of an artillery
6 or mortar is such that no round will fall on the same spot as a -- as you
7 have aimed at that. That is done by various factors like propellant
8 temperature, outside temperature, the characteristics of the specific
9 gun, we call it gun-to-gun variations. So there are main variations
10 externally that have an influence on the ballistic trajectory of a
11 projectile, which makes them -- makes them fall apart to each other.
12 For that reason when you combine the fire -- a fire mission of
13 several guns or several Howitzers, you get a natural spread out of the
14 points where the actual projectiles are falling and exploding which we
15 call an area coverage opposite a point coverage.
16 Q. Thank you. A bit further in that same section you state:
17 "The common used munitions do not have precision capabilities and
18 are therefore not very suited to engage point targets."
19 You have already touched a bit on what you consider to be a point
20 target. Can you then explain why artillery is not well, suited to
21 attacking, for example, a vehicle or a small house?
22 A. Well, as I explained, the round-to-round variation, even if you
23 fire from the same gun or the same Howitzer is in such a way that it is
24 very hard to hit with one gun a small target, because of those variations
25 that differ from round to round, rounds will not fall on the same spot.
1 There is an story that soldiers that are attacked by artillery use an
2 artillery crater to hide themselves because in that same crater, no
3 following round will fall. That is, of course, a theoretical approach
4 but, in fact, it is true. There are very few artillery guns, Howitzers
5 or mortars that are so precise that you can you use them in combatting a
6 point target. And when you want to use an artillery gun to combat a
7 point target, you need a substantial number of rounds to be able to hit
8 it in such a way that it will be either destroyed or neutralized.
9 Q. Thank you. And let's move on to section 6 (b) (iii) which
10 appears on page 6 of the English version and page 13 of the B/C/S.
11 Now in section 6 (b) (iii) Colonel Konings, you state:
12 "Artillery is not the weapon system to destroy strong buildings,
13 armoured command vehicles and the like."
14 And I'd like you to explain to the Chamber why artillery is not
15 the weapon system to destroy strong buildings?
16 A. Well, that has to do with the nature of the technical build-up of
17 an artillery or mortar projectile which is -- you need explosive power to
18 destroy things, and an artillery projectile has just not enough explosive
19 strengths to destroy a strong concrete or brick building. It may damage
20 it, it may take pieces of it, but for destruction, and the word
21 destruction means take it out completely, take it out of it's original
22 function, that's, in most cases when you have a strong building, just not
23 possible. As I have seen many times in Sarajevo where you have some
24 superficial damage on the outside, and, of course, you will destroy
25 windows, and, of course, you will have damage, but the destruction is
1 some other thing, especially when you have a multi-storey strong
2 building, it is it not possible to destroy that building completely with
3 artillery or mortar projectiles unless you are willing to spend several
4 hundreds of projectiles.
5 Q. Thank you. And can you then tell the Chamber what kinds of
6 targets artillery is good for attacking and why?
7 A. Artillery in itself is with -- let's put it the old-fashioned
8 ammunition which is the high-explosive round and what was in use up until
9 now, is very good in combatting unarmoured, unprotected targets like
10 infantry personnel in the open, or personnel in the open - it doesn't
11 need to be infantry - unarmoured vehicle columns, logistic supply areas,
12 lightly armoured vehicles, lightly armoured command post. That kind of
13 targets are ideal, especially when they are somewhat larger, they are
14 ideal to -- to use artillery or mortars against them.
15 Q. Thank you. Let's now please move to section 11 of your expert
16 report, where you discuss the destructive power of artillery projectiles,
17 and this appears at page 12 of the English version and page 28 of the
19 Now, I'm looking specifically at section 11 (c) where you
20 describe the most common type of projectile which you have just mentioned
21 as the high-explosive. And first I'd like you to tell the Chamber
22 whether or not high-explosive projectiles were in use in 1995?
23 A. Well, high-explosive projectiles were very common projectiles and
24 in use in 1995.
25 Q. And in subsection C-2 you indicate that a fragmentation
1 projectile can produce several thousand fragments and that they can range
2 up to hundreds of metres.
3 First, I'd like to you clarify for the Chamber whether
4 fragmentation, as you call it, is the same thing as shrapnel, and if not,
5 what's the difference.
6 A. Basically there is -- no, not basically. There is no difference.
7 Fragmentation is the process of the breaking apart of the steel case of a
8 projectile, and that delivers those thousands of shrapnels or fragments
9 that fly around and do their work.
10 Q. And can you also clarify whether this range of hundreds of metres
11 for the fragmentation is based on the projectile striking the ground or
12 exploding in the air.
13 A. Basically that -- that is a -- is a common position, but once you
14 choose for exploding the projectile in the air, the fragments -- there
15 are more fragments available because when the projectile detonates on the
16 soil or against a building, part of the projectile disappears in the
17 soil. It is not effective anymore. But once you use an explosion above
18 the ground, practically all the fragments will fly through the air, will
19 fly further and will do more damage than when you use a point-detonating
20 or a detonation on the ground. But both explosions, both types of
21 explosions, will produce those thousands of fragments.
22 Q. Thank you. And can you clarify the distinction between the range
23 of hundreds of metres that you mention here and the "absolute lethal
24 distance of 50 metres"?
25 A. I have used that as an example for a 155-millimetre Howitzer
1 projectile that is in the infantry of our own army. And the absolute
2 lethal distance means that when you are within a 50 metre radius of the
3 point of explosion, the concentration of the density of shrapnels in the
4 air is so high that it will kill everyday inside that radius. That is
5 what I mean by absolute lethal.
6 Q. Thank you. And subsection (c) (iii), you include some additional
7 cyphers. And I would ask you to please explain those to the
8 Trial Chamber.
9 A. Well, again that is taken to give you an example how far those
10 projectiles can come, and they are -- they, of course, do not stop when
11 they cross the border of the 1600 square metre that I figure here, but it
12 gives you an idea that you can cover with one projectile an area of 1600
13 square metre by fragments, and those fragments at the edge of those area
14 may not be absolutely lethal but will cause damage and will cause
15 injuries, of course.
16 Q. Thank you. At subsection (c) (vi) (2) -- I'm sorry, (c) (vi),
17 you describe some factors that could enlarge the effect of artillery
18 projectiles. And in subsection 1, you describe one such factor as the
19 explosion being inside of a house.
20 First, I'd like you to describe for the Chamber how you get a
21 projectile to explode inside of a house, as opposed to on the outside of
22 it, and then I'd like you to explain to the Chamber what would be visible
23 from the outside if the projectile exploded inside?
24 A. Well, depending on the strength of the wall or a house or a
25 building or a vehicle, a projectile can penetrate. If the wall is too
1 strong, the projectile will either explode on the outside or will just
2 bounce off against the wall, and even you have the chance that it will
3 not explode. But once the projectile -- the wall is soft enough to -- to
4 allow penetration or in case you use a concrete-piercing fuse, that means
5 that the fuse is strong enough to make the projectile going into the
6 building, then have you an explosion inside a room, inside a concealed
7 area, and then the pressure function, the blast function of the
8 projectile is making its work besides, of course, the fragmentation, but
9 the pressure cannot escape to a free area, the pressure builds up very
10 quickly. Because that's what happens with an explosion. You have a very
11 high peak pressure. And when that pressure cannot escape, for example,
12 into the open air, it will kill a lot of people. It will just throw
13 people against walls. It will depress lungs, et cetera, et cetera. It
14 will give a very nasty incidents. And I witnessed that myself in
16 outside of the house you only see a hole, a large hole with no further
17 visible damage at the outside of the house, but inside the complete house
18 can be collapsed. The first floor came down and came down on the ground
19 floor and killed all the people inside either by the rubble that came
20 down or by the pressure that came down, or fragments, but the effect that
21 you wanted to achieve, is achieved.
22 Q. Thank you. Now, at subsection --
23 JUDGE ORIE: Mr. ... yes, yes. Mr. Konings, it is only until now
24 that the French translation has caught up.
25 Could you try to make a break now and then or to talk a bit more
2 THE WITNESS: I will try, Your Honour.
3 MR. RUSSO: Thank you, Mr. President.
4 Q. Turning to subsection (c) (vi) (2), Colonel Konings, you indicate
5 that the use of an variable time fuse to detonate a projectile between 6
6 and 20 metres above the ground gives the maximum effect against uncovered
7 personnel and unarmoured vehicles. And I would like to you please
8 explain to the Chamber what exactly a variable time fuse is.
9 A. A variable time fuse is a -- well, is in it itself a fuse that
10 contains a small radar system which starts working once you fire the
11 projectile and makes -- and takes care of the fact that the projectile
12 explodes at the desired height above ground. So it is a simple
13 construction, a small radar system inside the nose of the projectile that
14 receives the return beam from the radar on six metres high and then
15 triggers the projectile to explode which brings the projectile to explode
16 at 6 metres high. And for the same function, one can use a normal time
17 fuse that is nothing more, nothing less than a clock system, a kind of
18 watch that is inside the fuse, which counts the seconds after the shot is
19 fired and, for example, 35 seconds after the projectile has left the
20 barrel, the projectile explodes. And if you have done your calculations
21 right, it is about 10 metres or 6 metres or 20 metres above the ground.
22 Q. Thank you. And can a normal time fuse, as you call it, be used
23 with any kind of artillery shell?
24 A. A normal time fuse has only one limitation -- or all fuses have
25 their limitation that they basically only can use with a certain calibre.
1 So if you have a 122-millilmetre Howitzer, they have their own types of
2 fuses, and a 155-millimetre has only its own type of fuses. But every
3 known type of Howitzer or gun in every army inventory, they do have
4 point-detonating fuses and probably also variable time fuses.
5 Q. And can you tell the Chamber whether the normal time fuses which
6 you have described were available and in use in 1995?
7 A. Time fuses, normal time fuses were available and wide spread in
8 use in, I think, nearly every army in the world in 1995.
9 Q. Thank you. And can you tell the Chamber whether the explosion of
10 a time fuse set projectile is commonly referred to, or what is commonly
11 referred to as an air-burst?
12 A. Well, you could -- you could use that term for a -- a projectile
13 that is used in combination with a time fuse or a variable time fuse.
14 That causes an air-burst, an explosion of the projectile on a certain
15 height in the air. So air-burst is a correct word for that.
16 Q. Thank you. Let's please move now to section 11 (d) of your
17 expert report, and this appears in the English version on page 13. In
18 the B/C/S, on page 29.
19 And in that section, Colonel Konings, you describe a special
20 category of high-explosive projectiles which you referred to as DPICM for
21 dual purpose improved conventional munition. And I would like to you
22 please describe for the Chamber what that is.
23 A. A DPICM munition is a -- what we call in military terms a carrier
24 projectile which is a thin projectile-shaped case, and in there you find
25 a number of submunitions sometimes also referred to as cluster munitions.
1 And depending on the length of the projectile and the calibre, you will
2 find a certain number of submunitions in there. The 155 projectile that
3 the Netherlands
4 88 submunitions.
5 Q. And can you tell the Chamber whether or not these kinds of
6 cluster munitions were in use in 1995?
7 MR. KEHOE: Just some clarification. In use by the HV or used
8 throughout the world?
9 JUDGE ORIE: In the previous answer, the witness himself, because
10 the same came to my mind, gave the answer where he said that almost all
11 the armies --
12 MR. KEHOE: [Overlapping speakers] ...
13 JUDGE ORIE: Yes, yes, but if we first ask the witness to respond
14 to the question, and he is now certainly aware that by use by whom is, of
15 course, relevant to know.
16 THE WITNESS: Yes, of course, Your Honour.
17 I cannot tell you -- I do have the knowledge if DPICM ammunition
18 was in use with the HV army, with the Croatian army, I do not have that
19 knowledge. I do know that the Bosnian Serb army used that type of
20 ammunition because I witnessed that myself inside Sarajevo. But I do not
21 have the knowledge about the Croatian army.
22 MR. RUSSO:
23 Q. Since we're on that topic, Colonel Konings, do you know whether
24 or not the United States or Germany
25 MR. KEHOE: I object to the relevance of whether or not the
1 United States or Germany
2 JUDGE ORIE: Mr. Russo, relevance?
3 MR. RUSSO: Your Honour, the relevance can be linked up later,
4 but the issue of where the HV were being supplied from could also
5 indicate where or what might be at their disposal.
6 MR. KEHOE: Excuse me. Outside the presence of the witness, I'd
7 like a good faith proffer from Mr. Russo as to why he is asking that
9 JUDGE ORIE: Mr. Russo, is there any way that you reserve that
10 question for a later stage or is it -- because then we could deal with it
11 at ten minutes to 7.00, but in the absence of the witness, it seems not
12 to be a subject to be discussed in his presence.
13 MR. RUSSO: I'm happy to do that, Your Honour.
14 MR. KEHOE: [Overlapping speakers] ...
15 JUDGE ORIE: Yes. So we delay our discussion on the matter, and
16 then we'll hear from you at a later stage.
17 Please proceed.
18 MR. RUSSO: Thank you, Mr. President.
19 Q. Now, Colonel Konings, you mentioned that the Netherlands Army
20 used or had cluster munitions for a 155-millimetre. Was that a Howitzer
22 A. That was a Howitzer weapon, yes.
23 Q. And can you tell the Chamber whether these cluster munitions can
24 be used with any kind of artillery weapon, whether it be a Howitzer, a
25 gun, a rocket system, or a mortar?
1 JUDGE ORIE: Mr. Kehoe.
2 MR. KEHOE: Yes, Your Honour, the relevance of this -- there is
3 no relevance to it. The witness doesn't even know if the HV had cluster
4 munitions available to it. It is completely irrelevant.
5 JUDGE ORIE: Yes. Mr. Konings, could I -- I'm not going to ask
6 you whether you speak English because you do, but therefore,
7 unfortunately, I have to ask you perhaps to leave this courtroom for a
8 second because the parties are having a dispute on a matter which is
9 preferably discussed in your absence.
10 THE WITNESS: I understand, Your Honour.
11 JUDGE ORIE: If you could remain stand by.
12 [The witness withdrew]
13 JUDGE ORIE: Mr. Kehoe, one of the last sentences spoken by you
14 was that the witness doesn't even know if the HV had cluster munition
15 ammunition available to it.
16 From what I feel, and let me just -- I get the impression that
17 Mr. Russo seeks to establish that it was -- whether they had it or not,
18 certainly that it would have been within their reach perhaps. Now, that
19 is not per se irrelevant even if you do not know perhaps by other
20 evidence which you could establish that they, even if this witness
21 doesn't know, that they got hold of it, I do not know. I have got no
22 idea, but that seems to be the issue. And that, of course -- the Chamber
23 will finally evaluate the evidence in its totality.
24 Now, if there's anything specific, Mr. Russo, that -- because you
25 could, or course, go through all the armies of the world and then
1 establish their diplomatic relations with that countries, and therefore,
2 it would not that might not reach the level of relevance which would be
3 appropriate to use.
4 Is there anything specific?
5 MR. RUSSO: Yes, Your Honour, the -- first, Mr. President, you're
6 correct in regard to the aim of my questioning being to establish the
7 general availability of these kinds of munitions in that time-period.
8 And also if the Court will recall during the testimony of Witness Dawes
9 who testified to having observed cluster munitions in Knin, the Chamber
10 specifically requested the parties to provide the Chamber with
11 information about what kinds of weapon systems could deliver cluster
12 munitions. Clarify that thens who testified to having observe the
13 cluster munitions. That was the purpose of asking Mr. Konings the
14 question of what kinds of weapon systems could deliver those munitions.
15 JUDGE ORIE: Mr. Kehoe.
16 MR. KEHOE: The reality is that there is no evidence in
17 possession of the Office of the Prosecutor of, one, that the HV had
18 cluster bombs in the area of the former Yugoslavia. The normal system
19 that carried cluster bombs was an Orkan rocket such as fired by the ARSK
20 on Zagreb
21 the Prosecutor that this has been -- the United States or Germany
22 other country supplied Orkan rockets or cluster bomb system to the HV.
23 It is certainly not in this witness's report, and it's certainly not in
24 any of the evidence that the OTP has turned over.
25 Now, if there some basis upon which the Office of the Prosecutor
1 in good faith can argue that the HV fired cluster bombs in an Orkan
2 rocket type system or in some type of 155 system, they have not produced
3 it. And I asked production of that as a basis -- good faith basis for
4 these questions. It is wild speculation to ask about any weapon system
5 that is potentially on the market in 1995. Certainly if the HV had the
6 opportunity to do that, they wouldn't have been firing the 155s that they
7 from the JNA that they were using, that were in many cases, years and
8 years old. This is wild speculation.
9 JUDGE ORIE: Mr. Russo, on wild?
10 MR. KEHOE: I stand by wild speculation.
11 JUDGE ORIE: I'm asking a question to Mr. Russo in which I
12 expressed that I had carefully listened to your observations, Mr. Kehoe.
13 MR. RUSSO: Your Honour, I don't believe it is any kind of
14 speculation wild or otherwise. I have already pointed the Chamber to the
15 evidence which has come in to the trial already through Witness Dawes
16 that --
17 JUDGE ORIE: Could you give us an -- I take it that you checked
18 that. Could you give us a reference.
19 MR. RUSSO: I'm sorry, Your Honour, I haven't actually checked
20 for the transcript or exhibit, but I can certainly provide that to the
21 Chamber a bit later.
22 In any indication case, I'm sure the Court will find once we
23 provided that Witness Dawes did in both his 92 bis submission and again
24 in court indicate that he saw actually saw cluster bomblets in Knin.
25 That, of course, is direct evidence that cluster munitions were fired
1 into the town. Now, we don't require direct evidence that the HV, in
2 fact, fired those in order to make it relevant as to who could have fired
3 them and what kinds of weapons systems could have delivered those
5 MR. KEHOE: If I may, Judge, and if I can follow up on the
6 testimony of Mr. Dawes. Number one, he is the only witness who testified
7 to that. All of the other military officials that we saw come into this
8 courtroom, no one said anything about cluster bombs.
9 Number two, upon pressed in cross-examination, Dawes couldn't
10 even remember where the cluster bombs were. He said point A during
11 course of his 92 ter statement that was submitted. During the course of
12 his testimony and the map presented through Mr. Russo, he said point B.
13 That's because the Prosecutor had submitted into evidence the Zasteva
14 film on point a that was taken by the ARSK that showed that there were no
15 cluster bombs in the location that Mr. Dawes said they were. So
16 interesting enough and remarkably enough the location changes to a place
17 where there were no photographs. At the end of the day, and we can pull
18 it up from the transcript, if I can paraphrase Mr. Dawes, he doesn't
19 remember where it was. And put that on top of the fact that as Mr. Russo
20 just said he doesn't know if the HV fired it, or as we know who had it,
21 the ARSK fired it. And Mr. Dawes's testimony began, I believe, on 14
22 October 2008, page 10501. I am directed to lines 12 to 15. I'm not
23 certain if that is the cross as well as the direct -- that is the cross
24 I'm told. Thank you.
25 Cross is the 14th, and the Chief is, I think, 13th of October.
1 MR. RUSSO: Your Honour, the transcript reference for direct can
2 be found on 10482 and 1043. I would just like to respond briefly. First
3 of all, I certainly don't appreciate the implication that somehow
4 Mr. Dawes's testimony was changed as a result of evidence brought in by
5 the Prosecution, but in any case, I don't think it is appropriate for
6 Mr. Kehoe to be testifying about what kinds of weapons systems could
7 deliver cluster munitions. He says it only the Orkan rocket.
8 Mr. Konings is about to testify that, in fact, any artillery system can
9 deliver cluster munitions. I think that's exactly the type of area where
10 the court is assisted by expert evidence as opposed to merely the
11 position taken by the parties.
12 MR. KEHOE: I didn't say -- I did not say that other systems
13 couldn't deliver cluster bombs. I did not say that. What I said
14 precisely, and maybe I wasn't clear enough, is that the system that was
15 prevalent in the former Yugoslavia
16 the Orkan rocket system. That was the system commonly used to deliver
17 cluster bombs. Could other systems conceivably have been used, did the
18 JNA conceivably use other systems? That is possible. The bottom line is
19 there not one iota of evidence that has been delivered by the Prosecutor
20 that, one, the HV had cluster bombs that they fired, two, that the United
21 States provided anything like that, or, three, that Germany did.
22 So if it doesn't have any bearing on what evidence we have
23 presented to us, then we are just taking a journey through weapon systems
24 throughout -- not even the western world, throughout the world itself.
25 It is simply irrelevant to the considerations before the Chamber.
1 JUDGE ORIE: Mr. Russo, very practically, of course, I'm trying
2 at this moment to -- to read what Witness Dawes and others said about
3 cluster bombs.
4 MR. RUSSO: Your Honour, can I certainly agree with Mr. Kehoe
5 that Mr. Dawes is, in fact, the only witness who provided evidence as to
6 presence of cluster munitions in Knin. I'm certainly not denying that
7 fact. He did indicate that he was unclear as to where exactly he saw
8 them, though he was quite clear that he did, in fact, see them. I don't
9 want do digress into a discussion of circumstantial evidence, but the
10 existence of the cluster munitions in Knin is certainly circumstantial
11 evidence that they were fired into Knin by someone. Now that someone
12 could be, as the Prosecution believes, the HV or, as the Defence would
13 like to suggest, the ARSK.
14 Now, one way or the other, it is relevant.
15 MR. KEHOE: Judge.
16 JUDGE ORIE: Mr. Kehoe.
17 MR. KEHOE: If I may, isn't the point of this exercise to
18 determine who is at the other end of this gun? If, in fact, whoever is
19 firing that weapon, isn't that the entire artillery case being presented
20 by the Prosecutor? And there are any number of weapon systems we have
21 that have been fired by the HV, T-130s, Howitzers, there were some MRLs
22 fired. There is -- without question, there is not one scratch of
23 evidence to reflect that during the course of this case any evidence is
24 presented that they fired any cluster munitions in all of the
25 documentation presented. None.
1 MR. RUSSO: Expect for the testimony of Mr. Dawes that cluster
2 munitions were in Knin.
3 JUDGE ORIE: Yes, well, I -- you emphasise that cluster
4 ammunition has been seen; and you emphasise that there is no evidence
5 that the HV used that, so perhaps a matter to resolve.
6 One second, please.
7 [Trial Chamber confers]
8 JUDGE ORIE: Mr. Russo, the Chamber will allow you, within a very
9 strict latitude, some questions to establish a factual foundation. It's
10 not at this moment, but if there's anything this witness could know of
11 which would lay a factual foundation for more than we have in evidence
12 now, that the HV would have had available not just the possibility but
13 whether this witness knows anything about access to -- then you are --
14 and we'll check after three minutes whether you made any progress.
15 MR. RUSSO: I'm not sure, Mr. President. The last question I
16 actually had was the last one I asked which was whether artillery weapons
17 -- what kinds could deliver the cluster munitions. And if the witness
18 answered that any kind could which I expect the answer to be, then we are
19 simply going to be arguing to the Court based on the fact that the HV was
20 in possession of certain weapons, any of those could have fired the
21 cluster weapons.
22 MR. KEHOE: Judge, you know we are in an area of speculation. If
23 we're talking about could --
24 JUDGE ORIE: Let's be very -- is there any dispute about that
25 wide variety, wide range of weapons could fire cluster ammunition? If
1 there is no dispute about that, then there is it no need --
2 MR. RUSSO: Your Honour, I offered that as a proposed stipulation
3 to Mr. Kehoe. He indicated that did he not agree that any type of
4 artillery system could deliver cluster munitions, he said it was only the
5 Orkan rocket system. That's why I'm asking --
6 JUDGE ORIE: Certainly in one of his questions referred already
7 to more than the Orkan system. I think he mentioned two systems, but on
8 the other hand, we can spend another ten minutes on the matter. Let's
9 hear from the witness what his answer to this question is. If every type
10 of weaponry could fire it, then we might not know much more, but it
11 certainly goes quicker, and it's not -- in itself, it is not prejudicial
12 to the Defence, I would say. Let's --
13 The witness is coming in already.
14 So you mentioned the one question you wanted to put the witness.
15 Any other question would be subject to what I just said, Mr. Russo.
16 MR. RUSSO: I understand, Your Honour.
17 MR. KEHOE: As the witness is coming in, Your Honour, I would ask
18 the Prosecution to note in the report where he is tying this back to the
19 HV because I don't find it.
20 JUDGE ORIE: Mr. Russo, is there any --
21 MR. RUSSO: I didn't say we were doing that, and I'm not doing
23 MR. KEHOE: Then there is a lack of disclosure on that issue, in
24 any event.
25 [The witness takes the stand]
1 JUDGE ORIE: Let's see what the question is.
2 Mr. Konings, we'll continue.
3 Mr. Russo, your next question to Mr. Konings.
4 MR. RUSSO: Yes, thank you, Mr. President.
5 Q. Colonel Konings, before you left, I had asked the question -- and
6 I will simply repeat it here.
7 Can you please tell the Chamber what kinds of artillery weapons
8 systems are capable of delivering cluster munitions.
9 A. Capable of delivering cluster ammunitions are the regular types
10 of Howitzers like calibres of 155, 203 millimetres and the comparing
11 calibres like 152 and 122. Besides that, some mortar types are able to
12 deliver cluster ammunition, although that has not been very developed in
13 the past period, and rocket systems are also capable of delivering
14 cluster ammunition.
15 Q. Thank you. I would like to move now to a discussion of some of
16 the general principles that you set forth in your expert report regarding
17 planning of artillery operations, and in particular --
18 MR. MIKULICIC: Sorry to interrupt. Obviously we have problem
19 with the transcript, Your Honour.
20 JUDGE ORIE: Let me just ...
21 MR. KAY: It's LiveNote that's frozen.
22 JUDGE ORIE: LiveNote is -- yes, I was still with the transcript
23 of Mr. Dawes, as a matter of fact, so that I didn't notice that.
24 On my -- on one of my screens, I have a perfect transcript and
25 now check on the other. There is a -- it depends on what system I'm
1 looking at, because the --
2 MR. RUSSO: The court system here, Your Honour, appears to be
3 working fine. It is only LiveNote that appears to be a problem.
4 JUDGE ORIE: Yes, although the court system is also LiveNote, so
5 I am a bit confused about that.
6 MR. RUSSO: I believe it is the Internet connection that is
7 causing the problem.
8 JUDGE ORIE: Yes. Is there -- my last words appear as, "One
9 second, please," which might already be two minutes, please.
10 Is there any way that we can get on our screens that can be
11 manipulated, because the same is true for all of us.
12 [Technical difficulty]
13 [Trial Chamber and registrar confer]
14 JUDGE ORIE: Yes, the problem is the same everywhere. I suggest
15 that -- we can't use the LiveNote system, which we can manipulate, where
16 we can make our annotations, although scrolling back and access to
17 previous transcripts of other days is also not working.
18 What we have on our screens we can ... I suggest that we keep our
19 eyes on the left screen for the time being, which allows us to look at a
20 little bit over one page. If that causes us problems, I would invite the
21 parties to inform me, because if it gets unworkable, of course, we would
22 have to stop.
23 Meanwhile, I do understand that action will be taken to -- to see
24 whether we can get the other system functioning as well.
25 Mr. Russo, please proceed.
1 MR. RUSSO: Yes, Mr. President. This would actually be a
2 suitable time to break in my examination, if the Court wanted to allow
3 some time for Mr. Misetic's argument and Ms. Gustafson's response.
4 JUDGE ORIE: Yes, this is new arithmetics, two times one minute,
5 it's 12 minutes. That's -- and Ms. Gustafson has not arrived yet but she
6 will arrive.
7 MR. RUSSO: She will arrive momentarily, Your Honour.
8 JUDGE ORIE: Let's be wise and perhaps not try to force matters.
9 Mr. Konings, we'd like to see you back tomorrow, and I'd like to
10 instruct you, that you should not speak with anyone about the testimony,
11 either the testimony already given or the testimony still to be given in
12 the day or days to come. We'd like to see you back tomorrow, quarter
13 past 2.00.
14 Madam Registrar, if I'm not mistaken, in this same courtroom,
15 number I. Yes, it is.
16 THE WITNESS: Thank you.
17 [The witness withdrew]
18 MR. RUSSO: And if I could just address very quickly,
19 Mr. President, Mr. Kehoe raised a disclosure issue with regard to my
20 question about the cluster munitions, and I will simply point out that
21 this was in fact included in Lieutenant-Colonel Konings' proofing note,
22 in fact, in the very first paragraph of the proofing note. I'm happy to
23 provide another copy of it, if necessary.
24 JUDGE ORIE: Yes, I think everyone has to log on to the system
25 again to make it work.
1 Yes, proofing notes, of course, the Chamber is unaware of any
2 proofing notes. If this causes still some problems, Mr. Kehoe, then, of
3 course, the Chamber would like to be informed about it. If you are
4 satisfied with the answer ...
5 MR. KEHOE: At this point, Judge, we just let it go. He just
6 said he doesn't know, but I thought we were -- the purpose of this was
7 not to elicit evidence in the negative but to develop information about
8 what actually happened. To the extent that it was a development of
9 evidence in the negative, yes, it's reflected there. But I was
10 speculating or thought we were going into something else.
11 JUDGE ORIE: Yes. You just let it go for the time being.
12 Ms. Gustafson, we have invited you because Mr. Misetic would like
13 to make a further one-minute submission on the Milutinovic case you
14 referred to.
15 Mr. Misetic.
13 [Private session]
11 Page 14336 redacted. Private session.
24 --- Whereupon the hearing adjourned at 6.55 p.m.
25 to be reconvened on Wednesday, the 14th day of
1 January, 2009, at 2.15 p.m.