1 Tuesday, 30 October 2012
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.05 a.m.
5 JUDGE KWON: Good morning, everyone.
6 There are a few matters to deal with before we hear the witness's
8 The Chamber will now first issue an oral ruling in relation to
9 the accused's notice of 15th of May, 2012, that he intends to call
10 Dr. Derek Allsop as an expert in his defence case. Allsop is currently
11 listed as the fifth witness this week.
12 On the 17th of May, 2012, the Prosecution filed a response to the
13 accused's notice, wherein it does not contest the relevance of the
14 subject matter of the report but states that it does not accept its
15 conclusions, requests the opportunity to cross-examine Allsop, and to
16 make submissions as to the admissibility of the report and asks that the
17 Chamber defer its findings with respect to Allsop's expertise and the
18 admissibility of the report until after he appears for testimony.
19 As has been the practice of the Chamber throughout this case, a
20 decision as to the admission of the report which is challenged by the
21 Prosecution will only be made after Allsop's testimony. However, with
22 respect to the challenge to Allsop's expertise, the Chamber considers
23 that it is in the interests of justice to rule on it before his testimony
24 as there would be no reason to call Allsop should the Chamber consider he
25 did not qualify as an expert witness.
1 In this regard, the Chamber notes the Prosecution's submissions
2 in the response that it is yet unclear whether Dr. Allsop has the special
3 knowledge, specific experience, or skills needed to assist the
4 Trial Chamber in assessing "whether it was possible to calculate the
5 distance that the mortar shell travelled before exploding at the Markale
6 Market on the 5th of February, 1994, as claimed by Berko Zecevic."
7 The Chamber has conducted its own assessment of Allsop's CV which
8 shows that he is a mechanical engineer with 24 years of academic and
9 research experience in relation to weapons testing, ammunition, and
10 ballistics. While the Chamber agrees with the Prosecution that Allsop's
11 CV lacks some detail and that it contains no reference to his expertise
12 in the area of 120-millimetre mortar projectiles used in BiH during the
13 conflict, the Chamber nevertheless considers that his qualifications and
14 experience are such that he has sufficient expertise to testify in these
15 proceedings pursuant to Rule 94 bis in relation to the possibility of
16 calculating the distance travelled by the mortar shell before exploding
17 at Markale Market on the 5th of February, 1994.
18 In addition, during its cross-examination, the Prosecution will
19 have the opportunity to inquire with Allsop as to his expertise with
20 regards to 120-millimetre mortars, which will go to the overall weight
21 the Chamber will attribute to the findings in his report. The Chamber
22 hereby decides that Allsop shall testify as an expert pursuant to Rule 94
23 bis of the Rules.
24 For a couple of next matters, the Chamber will go into private
1 [Private session]
11 Pages 29315-29322 redacted. Private session.
23 [Open session]
24 THE REGISTRAR: We're now in open session, Your Honours.
25 JUDGE KWON: One more matter, Mr. Robinson, in open session. The
1 Chamber has noticed that for the first three witnesses scheduled for this
2 week, Joudry, Russell, and Gauthier, you have included in their
3 respective Rule 92 ter notifications a request that a representative of
4 their government be present during their testimony. In light of what I
5 just mentioned in private session and the fact that the Chamber sees no
6 difference between this condition and other conditions under Rule 70
7 which need to be properly addressed to the Chamber, can you tell us where
8 the request for a representative of the Canadian government originated
9 from, which is the legal basis for such a request, and if indeed there is
10 a Canadian governmental representative present today waiting for the
11 permission of the Chamber to enter the courtroom?
12 MR. ROBINSON: Yes, Mr. President. The request for the
13 representative to be present came from the Government of Canada in our
14 discussions with -- for this witness, but they have decided not to ask to
15 be present so there's no one here for that.
16 JUDGE KWON: That resolves everything.
17 Unless there's any other matter to raise, we'll bring in the next
19 [The witness entered court]
20 JUDGE KWON: Could the witness take the solemn declaration.
21 THE WITNESS: I solemnly declare that I will speak the truth, the
22 whole truth, and nothing but the truth.
23 WITNESS: STEVEN JOUDRY
24 JUDGE KWON: Thank you, sir. Please be seated and make yourself
1 Yes, Mr. Karadzic.
2 THE ACCUSED: [Interpretation] Good morning, Your Excellencies.
3 Good morning to everyone.
4 Examination by Mr. Karadzic:
5 Q. [Interpretation] Good morning, Colonel.
6 A. Morning.
7 THE ACCUSED: [Interpretation] Could we please see 1D25487 in
8 e-court system.
9 MR. KARADZIC: [Interpretation]
10 Q. Colonel, have you had a look at a hard copy of your statement?
11 A. Yes, sir, I have.
12 Q. Thank you. And you signed this copy; isn't that correct?
13 A. I did, yes, sir.
14 Q. Thank you. Is this statement an accurate reflection of what you
16 A. Yes, it is.
17 Q. Thank you. And if I put the same questions to you here today,
18 would your answers to those questions be identical to the answers
19 provided in your statement?
20 A. Yes, they would.
21 Q. Thank you.
22 THE ACCUSED: [Interpretation] Your Excellencies, may I tender
23 this statement pursuant to Rule 92 ter?
24 JUDGE KWON: And you're not tendering any associated exhibits?
25 THE ACCUSED: [Interpretation] That's right. That's correct.
1 JUDGE KWON: No objections, Mr. Tieger?
2 Yes, that will be admitted as next Defence exhibit.
3 THE REGISTRAR: As Exhibit D2363, Your Honours.
4 THE ACCUSED: [Interpretation] Thank you. I would now like to
5 read out a very brief summary of your summary in English.
6 [In English] Steven Joudry is a retired colonel of the Canadian
7 Armed Forces. He was a trained artillery officer within the
8 Royal Canadian Artillery. Part of his training was in field techniques
9 for crater analysis. He later taught field crater analysis to other army
10 personnel within the Canadian Armed Forces. He either conducted or was
11 involved in about a hundred crater analyses during his career.
12 In May 1993, Colonel Joudry was deployed to the former Yugoslavia
13 as a senior staff officer in operations and plans at the United Nations
14 Protection Forces headquarters in Zagreb, Croatia. He remained there
15 until March 1994. While at UNPROFOR headquarters in Zagreb,
16 Colonel Joudry became aware of an explosion at the Markale Market-place
17 in Sarajevo on 5th of February, 1994. He was not part of the team which
18 investigated that explosion; however, after the crater analysis report by
19 the UN investigation team, he was asked to review their report.
20 Colonel Joudry had serious reservations about the procedure used
21 for crater analysis in the market-place explosion and how the results
22 were being used. To begin with, field crater analysis is not accurate
23 enough to determine culpability, even under ideal conditions. The fact
24 that much of the information in this case was gathered hours or even days
25 after the explosion, rather than from a hot undisturbed crater, in a
1 public area, in his opinion, rendered many of the results questionable.
2 In other field situations, such an analysis would have been discarded.
3 Colonel Joudry noted that the angle of descent of the
4 120-millimetre mortar that landed on the Markale Market could not be
5 reliably measured because the first UN team had reportedly removed the
6 tail fin and disturbed the crater without measuring the angle of descent.
7 Once they had done that, it was highly likely the fuse tunnel was
8 disturbed and, therefore, it was no longer possible to calculate the
9 angle of descent with any degree of accuracy. Without knowing the angle
10 of descent, it was impossible to accurately calculate the possible
11 charges used and therefore the possible range in distance, minimum and
12 maximum, that the projectile could have travelled.
13 From his detailed review of the material and using his knowledge
14 and experience in gunnery and field operations, Colonel Joudry reached
15 the following conclusions:
16 First, he noted the limitations of field crater analysis and the
17 unreliable nature of the conclusions as a basis to assign culpability,
18 particularly in the theatre of operations, former Yugoslavia, where it
19 was widely believed that all sides in the conflict had used various forms
20 of deception of tactical information for strategic or political purposes.
21 However, using the data as obtained from the analyses conducted
22 by the UN military teams following the explosion, he completed the steps
23 of a normal full field crater analysis. This included the assumption
24 that the weapon was a 120-millimetre mortar and using the estimated data
25 on the angle of impact which he then used to assess the likely charge
1 increments. He concluded that using the flawed data, one conclusion
2 could have been that the projectile was fired from an area which slightly
3 straddled the confrontation line north-east of Sarajevo, but 95 per cent
4 of which was on the Bosnian government side in the known confrontation
5 line at the time.
6 Colonel Joudry also opined that if the aim of the culpable party
7 was to have the explosion occur in the market-place that day and appear
8 like a mortar round fired from a distance, the most accurate way to have
9 achieved that was to launch the projectile by hand from the nearby roof.
10 Given the relatively small size of the market-place as an indirect fire
11 target and that the area had not been subjected to intense targeting
12 hours or even days prior to the explosion, for a single mortar round to
13 have been fired at the market-place to hit it would have been virtually
15 [Interpretation] Thank you. I don't have any further questions
16 at this point in time.
17 JUDGE KWON: Yes. Well, Mr. Joudry, as you have noted, your
18 evidence was admitted in writing in lieu of your oral testimony, and you
19 will be now cross-examined by the Prosecution team.
20 Yes, is it you, Mr. Tieger?
21 MR. TIEGER: Yes, it is, Mr. President. Thank you.
22 And good morning, Mr. President, Your Honours, and everyone in
23 the courtroom.
24 Cross-examination by Mr. Tieger:
25 Q. Good morning, Witness. First I have a couple of preliminary
1 questions. With regard to the crater analyses that you were involved in
2 that he referred to, were those primarily or exclusively training
4 A. Primarily training exercises, yes.
5 Q. Okay. And were -- did those involve shells or projectiles fired
6 into fields or did they involve projectiles fired onto asphalt or the
7 streets of cities?
8 A. Primarily it would have been in fields; however, there were many
9 instances where the projectiles would have landed on hard surfaces, in
10 some cases asphalt, in some cases roads, but none of them would have been
11 in inhabited areas.
12 Q. And is it correct that the pattern left by a shell or a mortar
13 projectile is decidedly different if it lands on a soft surface than if
14 it lands on a hard surface?
15 A. In most cases, yes.
16 Q. Is it also correct that the majority of analyses in which you
17 were involved involved artillery rather than -- or howitzers and guns
18 rather than mortars?
19 A. Certainly on balance the -- most of them would have been
20 artillery, yes.
21 Q. And is it also correct that none of them, to the best of your
22 recollection, involved 120-millimetre mortars?
23 A. That's correct.
24 Q. Now, with respect to the examination that you undertook from
25 Zagreb and the conclusions you reached, is it correct that those were not
1 part of any official UN investigation?
2 A. That's correct. I think it's important to note that what I did
3 was a review of the previous analyses with limited information that I had
4 available, that's correct.
5 Q. And that limited information was, I presume, the materials that
6 had been or certainly some of the materials that had been produced by
8 A. That's correct. Probably the only additional information that I
9 used in my review that they didn't, at least to the best of my knowledge,
10 was I do recall seeing a couple of photographs after the incident and I
11 do recall perusing the operations logs of the UNPROFOR headquarters
12 operations centre around that particular period of time. And I don't
13 recall if the actual review done by UNPROFOR on the analysis actually
14 included that, but other than that it was limited to that information.
15 Q. So do I understand you correctly that you did not see any
16 photographs that were produced by UNPROFOR, but you did see a couple of
17 photographs that you understood had -- were not available to UNPROFOR?
18 Perhaps I misunderstood you.
19 A. I don't recall where the photographs came from. I just recall
20 they were part of the package that I was -- that I had access to. And in
21 the review I don't recall seeing those photographs being referred to in
22 the actual analyses because, of course, the analyses would have been on
23 the ground. I didn't have -- I never actually saw the crater myself.
24 Q. You didn't speak to any of those officials who actually
25 participated in the formal investigation; correct?
1 A. As much as I would have liked to, no, I did not.
2 Q. You didn't prepare or at least you don't recall having prepared a
3 written report of your assessment and conclusions?
4 A. Given that my job was a staff officer, I'm almost certain I would
5 have, but I don't recall that specifically. I do recall, however,
6 providing an oral briefing to a group of officials based on my results.
7 Q. And you don't recall specifically who those officials were?
8 A. No, I don't. I believe, I'm not certain, but I believe it was a
9 regular scheduled operations meeting and I happened to be one of the
10 agenda items on that particular day to brief the military personnel on
11 the results of my review.
12 Q. And just to be clear, although you've alluded to it, you did not
13 examine or even see the crater; correct?
14 A. That's correct.
15 Q. You did not examine or even go to the scene; correct?
16 A. That's correct.
17 Q. You did not examine or even see the tail fin or stabiliser?
18 A. No, I saw pictures of it, yeah.
19 Q. Okay. You didn't examine any physical evidence?
20 A. No, I did not, sir.
21 Q. And as we noted before, you didn't interview any witnesses?
22 A. That's correct.
23 Q. Okay. Now, nevertheless, as noted in the summary of your
24 statement, you reached certain conclusions, and among those conclusions
25 were the -- or was the expression of serious reservations about the
1 procedures and how they were being used and certain views about what was
2 done or not done. I want to look at some of those, Mr. Joudry.
3 Now, in the summary, Mr. Karadzic referred to your concern that
4 much of the information was gathered hours or even days after the
5 explosion rather than from a hot, undisturbed crater, and that that
6 was -- that information was gathered hours or even days after the
7 explosion in a public area.
8 JUDGE KWON: Just a second.
9 Mr. Joudry, do you have your statement with you now?
10 THE WITNESS: I believe it's on the screen here.
11 JUDGE KWON: Would you like to have one in hard copy?
12 THE WITNESS: If there's one available --
13 JUDGE KWON: Yes.
14 THE WITNESS: -- that would be helpful, yes.
15 MR. TIEGER: Thank you, Mr. President, that's always a helpful
17 Q. And, Mr. Joudry, I was just referring to paragraph 16 at page 3.
18 I'll give you a moment to orient yourself with the --
19 A. All right. I have it, yes.
20 Q. And it seems that throughout your statement you continued to
21 emphasize the -- what you saw as a matter of concern, that is, the
22 alleged delay in the arrival of UNPROFOR and the gathering of
23 information. So at paragraph 26 you again refer to the delay in UN teams
24 arriving at the scene as one of the factors that led you to conclude that
25 the explosion was caused by or possibly or likely or -- to have been
1 caused by a hand-thrown projectile.
2 So, Colonel, how long was it in your view before UNPROFOR
3 officials came to the scene?
4 A. Well, as I said, I had access to the written material at the
5 time. It was my understanding that although the first teams had perhaps
6 arrived on the scene within -- within ten minutes the actual -- the first
7 crater analysis time that I saw was about two hours after the actual
8 explosion. And there would have been a lot of information that would
9 have been important, in my view, as a teacher of crater analysis that
10 would have been gained in those first few minutes. And I -- there was no
11 information in those reports that information was gathered during those
12 critical moments.
13 Q. Well, Colonel, the emphasis in your report appears to be the
14 delay in the arrival of UNPROFOR, and I presume that that's, at least in
15 large part, a concern about the destruction of evidence, the
16 deterioration of evidence, the contamination of evidence, and so on; is
17 that right?
18 A. Yes, but keeping in mind that this type of field crater analysis
19 really, in my view, was inappropriate to use it in the context of a
20 forensic science, but clearly some elements of that would have been
21 appropriate. So for the evidence or the information to have been
22 obtained, I believe several of the analyses of the crater were done
23 several hours after the explosion. And that information, while useful,
24 certainly would be questionable if you were trying to assign without
25 doubt culpability, which is what my concern was. The UN was using crater
1 analysis inappropriately in this case given the circumstances around that
2 particular event.
3 Q. Mr. Joudry, I understand your military background and we've
4 already alluded to your experience in gunnery, but I do not understand
5 that you have any experience in forensic analysis or judicial
6 proceedings; that would be correct, right?
7 A. Absolutely.
8 Q. Okay. And I also noted that in a couple of places in your
9 statement you try to assess the -- or you purport to assess the utility
10 or effect of the information that is made available from the observations
11 at the scene or crater analysis on any ultimate determination of
12 responsibility. So my suggestion would be that we leave that to the
13 Judges and we simply focus for the moment on what was done and what
14 factors they -- that -- the conclusions that were reached relied upon.
15 Can we do that?
16 A. Absolutely.
17 Q. All right. So first of all, with respect to the -- any concern
18 about destruction of evidence, deterioration of evidence, it is
19 correct - is it not? - that there was essentially a continuous UN
20 presence on the scene, with two extremely brief exceptions, from about
21 five minutes after the explosion until after the time that French
22 Battalion analysts arrived and removed the stabiliser from the crater;
23 isn't that right?
24 A. I have no specific knowledge of that. As I said, I've just
25 reviewed the material that was presented to me. I cannot confirm or deny
1 anything with respect to who had control over the scene at the time, and
2 I wasn't so much looking at it from an evidence perspective. I was
3 looking at it from tactical and field information. Not so much evidence.
4 As you have indicated, that's not my area of expertise.
5 Q. Well, I would suggest, Mr. Joudry, that you did have specific
6 knowledge of it because that is contained in the UNPROFOR report. So
7 at --
8 A. No, all I'm saying, sir, is I can't confirm whether it's true or
9 not. It's just that that -- you already have that information. I had
10 the same information.
11 Q. Exactly.
12 A. Right.
13 Q. That there was a continuous UN presence on the scene, and it's
14 further true that the FrenchBat crater analysis team arrived and
15 confirmed that the crater appeared to be fully intact and fresh. When
16 they arrived at the scene it did not appear to have been tampered with.
17 That's also contained in the UNPROFOR report; correct?
18 A. That's what I recall reading, yes, sir.
19 Q. And since you were never at the scene, you have, I presume, no
20 basis for disputing the observations of those who were directly at the
21 scene and seeing it firsthand?
22 A. Absolutely not.
23 Q. Now, another aspect of your expressed concern was the removal of
24 the tail fin or stabiliser from its position in the crater where it had
25 been -- it was embedded deep in the ground; correct?
1 A. Right.
2 Q. And as we noted from the summary that was read, you went on to
3 observe - and that's at paragraph 23 of your statement, just to orient
4 you - your concern about the likelihood that the -- what you call the
5 fuse tunnel, and that means the tunnel created by the stabiliser in this
6 case, was disturbed and therefore it would be no longer possible to
7 calculate the angle of descent with any degree of accuracy. That was
8 your concern and that's what you put in your statement; right?
9 A. The fuse tunnel in a crater isn't caused by the stabiliser; it's
10 caused by the fuse that goes into the ground and it creates an opening.
11 And in this case in the mortar crater, the stabiliser would have gone in
12 behind it.
13 Q. Do you know what happened to the fuse in this particular case?
14 A. No, I don't.
15 Q. You don't. So you don't know whether the fuse went in or the
16 fuse was destroyed on impact? You don't have any idea one way or the
17 other. What we do know -- that's correct; right?
18 A. Yes.
19 Q. What we do know is that the stabiliser went in the ground;
21 A. Yes, that's right.
22 Q. Okay. And so when I refer to the tunnel now, I'm going to be
23 referring to that hole, all right, for clarity.
24 A. All right.
25 Q. Now, with respect to that hole or tunnel where the stabiliser was
1 embedded, do you know its size; that is, how deep the stabiliser went in
2 and the extent of the hole created?
3 A. My recollection from reading the reports was that the fuse tunnel
4 itself was in the order of 10 to 15 centimetres in the ground and it's --
5 and the stabiliser was -- was in the fuse tunnel to some degree there.
7 Q. Well, the UNPROFOR report will speak for itself. My recollection
8 is it was about 8 to 10 centimetres below the surface and about 20 to 30
9 centimetres in total deep, but as I say the record will speak for itself
10 on that one.
11 Now, when that happens, I imagine -- and the stabiliser is
12 subsequently removed from its position in the ground. It's presumably
13 fair to say that one of a few possibilities exist. Now, one is that when
14 it's removed the ground will crumble around it and it will eliminate the
15 tunnel that was originally created. Another one -- another possibility
16 is that the cavity or tunnel created by the stabiliser would be expanded
17 by the effort to remove it. And a third possibility, presumably, is that
18 it was removed from the tunnel or hole with minimal disturbance,
19 something like a cork from a bottle. Would you agree with those three
20 possibilities or is there one you would add or omit?
21 A. No, that sounds reasonable.
22 Q. Now, you did not examine the tunnel?
23 A. That's correct.
24 Q. Okay. So you don't -- you didn't have a chance to see for
25 yourself the extent to which any disturbance occurred?
1 A. That's correct.
2 Q. But those on the scene did; is that right? Are you aware,
3 Mr. Joudry, that one of those persons at the scene who saw the tunnel
4 testified before this Court and indeed before a previous Court?
5 A. That doesn't surprise me, no.
6 Q. Okay. And are you aware, in fact, that the tunnel - as he
7 observed it - was intact?
8 A. Well, that's one of the possibilities.
9 Q. Well, it's not a possibility. It's what the person who was at
10 the scene looking at the tunnel said .
11 A. Well --
12 MR. ROBINSON: Excuse me, Mr. President --
13 THE WITNESS: Okay. I understand that.
14 JUDGE KWON: Yes.
15 MR. ROBINSON: Mr. Tieger can't be testifying here. And first of
16 all, I'm wondering if --
17 MR. TIEGER: I'm not testifying Colonel Hamill is testifying at
18 transcript page 9729.
19 MR. ROBINSON: That's the correct way to put the question. Thank
21 JUDGE KWON: Yes.
22 MR. TIEGER:
23 Q. And at that transcript page Colonel Hamill said that it was --
24 that an accurate reading could be taken when he did so because the fuse
25 tunnel was still -- in effect still intact. That's information you
1 didn't have access to; right?
2 A. Yeah, that -- I hadn't heard that.
3 Q. Okay. Except that that's exactly what Colonel Hamill said in his
4 report, because he did take readings of the -- for the -- both the
5 bearing and the angle of descent, and that's contained in his report. So
6 did you forget that?
7 A. No, that was -- I recall -- I don't recall the individual you're
8 speaking of, but I certainly recall that being part of the information
9 that I had at my disposal. But as I said, I was -- not having seen the
10 crater myself, and I was a teacher of crater analysis, not the observer
11 of the particular crater in this case, and that there's a principle
12 involved and that is: You don't disturb the crater. And once you remove
13 a piece of evidence such as you've just described, you've basically --
14 regardless of what was left of the fuse tunnel, you now have a disturbed
15 crater and all your information after that is questionable. That was my
16 point to UNPROFOR at the time. And this information, by the way, would
17 have been gathered by the people conducting the analysis who should have,
18 if they were the first ones on the scene, if they were trained in crater
19 analysis, I find it absolutely incredible that they would have removed
20 the tail fin before gathering the rest of the information.
21 Q. So what you told the UNPROFOR officials was that as a matter of
22 principle it's not a good idea and one shouldn't remove the stabiliser
23 before one takes measurements, that -- that's right?
24 A. Absolutely.
25 Q. Okay. And that although you hadn't seen the tunnel that remained
1 and although you weren't aware of the extent to which, if any, the tunnel
2 was actually physically disturbed, you were simply concerned about this
3 violation of principle and wanted to register it as a possible source of
5 A. That's right.
6 Q. Now, in addition to the analysis undertaken by Colonel Hamill
7 using the stabiliser -- tunnel created by the stabiliser, are you aware
8 of the fact that there was another UNPROFOR official who also did an
9 analysis of the angle of descent based on the fuse tunnel -- excuse me,
10 the stabiliser tunnel?
11 A. Well, from what I recall there were in excess of seven or eight
12 different analyses done on the crater, as I said, from a couple of hours
13 to several days after the incident. So yes, there would have been a
14 number of people taking or gathering information from that crater. But
15 I -- notwithstanding the fact that the expertise, if you want to call it
16 that, that I had in this area is approaching 20 years, 20 years ago,
17 unless I'm mistaken when we speak of the fuse tunnel, the fuse tunnel is
18 not created by the stabiliser in a mortar crater. It was one of the
19 inconsistencies that I saw in the information. In a projectile, if you
20 have a crater that is as deep as this one apparently was, clearly the
21 fuse went into the ground and impacted sometime between when it hit the
22 ground and when it penetrated the surface. So the fuse of the
23 projectile, the pointy end of the projectile, would have created this
24 tunnel, and then the stabiliser would have gone in behind it. That's how
25 it's created.
1 Q. I don't want to replicate unnecessarily a ground we've already
2 covered, Mr. Joudry, but I thought we addressed that earlier, and that is
3 I had asked you what you knew about the fuse itself and whether it had
4 been destroyed or whether it had created a tunnel on its own. And then
5 we agreed, I thought, that the one thing we did know -- or that you did
6 know, rather, was that the stabiliser was in the ground occupying a hole
7 or a tunnel in the ground and that's what was removed and that's what
8 we've been talking about in terms of cavity, hole, or tunnel that was
9 examined by the UNPROFOR and other officials subsequently?
10 A. Yes, I'm just concerned that the Court would understand that the
11 hole is not created by the stabiliser. The hole is created by the fuse
12 itself of the projectile, which explosion is no longer there. So I
13 just -- it may be a moot point, but I just wanted to make sure that I was
14 correcting that piece of information.
15 Q. Well, if the -- well, let's leave that for the moment because, as
16 I said, I don't want to go over the same ground. Irrespective of the
17 distinction you're drawing here, the fact is - we can agree, I
18 think - that it was the stabiliser that was occupying that hole that
19 we're talking about, hole, cavity, or tunnel that we're talking about,
20 and it was the stabiliser that was removed and it was that hole, cavity,
21 or tunnel that was subsequently used by UNPROFOR officials to calculate
22 the angle of descent and the bearing. All correct?
23 A. Right. I guess the point I'm trying to clarify, though, that if
24 there wasn't -- if the projectile had not penetrated the ground and
25 exploded, there wouldn't be a fuse tunnel, and therefore you would have
1 found -- possibly in this case you would have found the stabiliser in and
2 around the crater but you might not have found it in the hole because
3 there wouldn't have been a hole. I guess that's what I'm trying to point
5 Q. Well, we'll talk about that in a moment in any event, but there
6 is by the way a technique known as the fuse tunnel technique for
7 calculating, among other things, the angle of descent of the projectile;
9 A. That's correct, yes.
10 Q. And that's basically using the angle of that hole to make the
11 determination of the angle at which the projectile impacted on the
13 A. Correct.
14 Q. And whether -- and that term "fuse tunnel" or the technique is a
15 term of art and was used in -- by the UNPROFOR officials here, for
16 example, in describing the method they used when they examined this
17 cavity we've been discussing for some moments now?
18 A. Right.
19 Q. Now, do you recall the conclusion reached by Colonel Hamill when
20 he calculated the angle of descent using that tunnel, and do you recall
21 the conclusion reached by any other UNPROFOR official in undertaking the
22 same analysis?
23 A. Not specifically, but as I said I remember reading the analyses
24 conducted by at least seven or eight different individuals. I don't
25 recall Colonel Hamill's data specifically, no.
1 JUDGE KWON: Mr. Tieger.
2 MR. TIEGER: Yes, Mr. President.
3 JUDGE KWON: Yes, please continue. We better give some time for
4 the translators to interpret.
5 MR. TIEGER: Yes, thank you for that, Mr. President.
6 Q. Mr. Joudry, that's a reference to the fact, sometimes forgotten
7 by even the participants who are here every day, that you're being
8 translated and therefore if questions and answers proceed too quickly
9 there's no time for the translation. So I will endeavour to remember
10 that and I alert you to the same concern.
11 A. Thank you for the reminder.
12 Q. So I take it you would not disagree then that the angle of
13 descent determined by Colonel Hamill was a 900 -- between 950 and 1100
14 mils which would be -- which would calculate to 53.5 to 61.9 degrees?
15 A. That sounds about right, yes.
16 Q. And that another UNPROFOR official found an approximate angle of
17 descent after looking at and utilising the cavity or tunnel of
18 approximately 1.000 to 1100 mils, and that would be -- that would
19 translate to 56.2 to 61.9 degrees; do you agree with that?
20 A. If that was the information in the analyses that I would have
21 seen, then obviously yes.
22 Q. Okay. So those two UNPROFOR officials on the scene looking at
23 the intact crater as Colonel Hamill described it and using the fuse
24 tunnel and/or any other techniques they deemed appropriate found
25 consistent assessments of the angle of descent?
1 A. I never had any dispute with the information that was gathered at
2 the scene, the calculations that were made. My concern that I expressed
3 to the UNPROFOR officials was in the manner in which that information had
4 been gained, the nature and scope of the crater analysis, and the
5 conclusions that UNPROFOR officials were making with regards to the
7 Q. Incidentally I alluded earlier to the various possibilities of
8 impact on the tunnel when the stabiliser was removed. Can you think of
9 any good way of testing the impact of removing the stabiliser on that
10 tunnel? For example, would it be useful to determine the effect, if any,
11 on the removal of the stabiliser from the tunnel to re-insert the
12 stabiliser and see whether it fell in because the hole had been enlarged
13 or whether it couldn't go in because the hole had been filled or whether
14 it fit snugly like a silver slipper on Cinderella's foot?
15 A. Well, without seeing the crater and the actual soil conditions, I
16 can't say, but certainly anybody who would have made that decision to
17 re-insert the stabiliser into the tunnel would have made that assessment.
18 And by the way, I should add that there is a method in crater analysis
19 that in the case of where you don't have a stabiliser there to remove but
20 you actually have a defined fuse tunnel, one of the methods is actually
21 to take a piece of wood or a stick and insert it into the fuse tunnel and
22 measure it that way. So the re-insertion of the stabiliser, if it was
23 the decision of somebody on the ground doing the crater analysis, that is
24 a reasonable way to come up with an estimate. But once again, it's an
25 estimate and if you're basing a lot of information on that - which is
1 what they were in this case - I just wanted to make sure that the
2 UNPROFOR officials were aware that the level of accuracy they were deal
3 with here was very wide.
4 Q. Well, in fact the extent to which it's -- I accept your position
5 as you stated that your concern was that UNPROFOR officials be aware of
6 the potential impact of the removal of the stabiliser. But the reality
7 is that its impact on the level of accuracy would vary depending on the
8 nature of that removal, the nature of the soil, any subsequent testing to
9 see the extent to which the stabiliser fit well or didn't, and that's --
10 and those factors would be the determining ones in whether or not the
11 level of accuracy was very wide or reasonably narrow; right?
12 A. The military officials on the ground who conducted that first
13 crater analysis and decided to re-insert the tail fin basically did what
14 I just described, which is, they acted as if it was simply a fuse tunnel
15 there and re-inserted an object in there to take an angle, which is
16 acceptable in crater analysis procedures. You accept the fact that what
17 you're doing is you're getting an estimate of the angle of impact and
18 it's -- it's -- in this case or in most cases it's not -- you know, the
19 degree of accuracy is impossible to determine, really.
20 Q. Well, let me be clear on that. I didn't say that the UNPROFOR
21 officials re-inserted the tail fin. I don't know exactly where -- if you
22 believe that you read that somewhere in the UNPROFOR report or not. I'm
23 talking about other officials.
24 A. Well, the folks who were on the ground who had done some of the
25 crater analysis, my understanding is they had re-inserted the tail fin
1 into the fuse tunnel to in part get this angle of impact, yes.
2 Q. Do you know whether Bosnian forensic officials re-inserted the
3 tail fin?
4 A. I have no idea.
5 Q. Do you know whether or not the tail fin was in possession of the
6 Bosnian government officials after its removal by FreBat IV crater
7 analysis and until it was re-examined by UNPROFOR officials sometime
9 A. I remember reading that in the reports, yes.
10 Q. Well, this Trial Chamber has received evidence, Mr. Joudry, and
11 that can be found for example at P2317 at page 5, regarding the study of
12 the circumstances of the Markale incident by a technical commission from
13 Bosnian authorities, in which they recount the re-insertion of the
14 stabiliser, the reconstruction of the position of the stabiliser, and
15 took a reading from that position. So do you know whether you were aware
16 of that at the time?
17 A. I don't recall that specifically, but I do remember part of the
18 information I had was that some of the analysis of the angle of fall
19 involved a re-insertion of the tail fin into the crater.
20 Q. And this Court has also heard evidence from the technician or the
21 technical official who was involved in that who explained to the Court
22 that the stabiliser fit snugly back into the position and allowed him to
23 be confident that it was back in the position it had been in at the
24 time -- before it had been removed?
25 A. If that was his evidence, that's fine.
1 Q. And are you aware of the fact, Mr. Joudry, that the calculations
2 of the angle of descent resulting from that reconstruction were
3 essentially the same as those undertaken by Colonel Hamill and by the
4 other UNPROFOR analysis that I referred to, that is, in the range of 55-
5 to 65 degrees, basically roughly 60 degrees?
6 A. That sounds reasonable, yes.
7 Q. Mr. Joudry, I want to look next at your assessment that using the
8 firing tables you were able to determine a minimum or a maximum range --
9 and by the way, I'm now referring to paragraph 24(B) of your report. And
10 what I want to discuss with you is the portion of your statement - I
11 referred to it earlier as a "report," it's a statement of course - that
12 was contained in the summary by Mr. Karadzic to the effect that the
13 minimum and maximum range of the projectile was likely fired from an area
14 which slightly straddled the confrontation line but 95 per cent of which
15 was on the Bosnian government side of the confrontation line. So that's
16 what I want to speak to you about now.
17 A. Mm-hmm.
18 Q. Now, in reaching that, the conclusion or the opinion expressed in
19 24(B), to assert that the projectile was likely fired from or more likely
20 to have been fired from Bosnian-controlled territory, you used the angle
21 of descent arrived at by the UNPROFOR officials that we talked about a
22 few moments ago; right?
23 A. From my recollection, I used the ranges within which those angles
24 had been measured, yes.
25 Q. And then you applied them against the firing tables for the
1 appropriate weaponry?
2 A. That's what I would have done, yes.
3 Q. Okay. Now, first of all, you said at 24(B) using the data
4 obtained by the UN military teams you "completed the steps of a normal
5 full field crater analysis."
6 That's what you stated in your amalgamated -- it your witness
7 statement; right?
8 A. That's right.
9 Q. Okay. Now, just to be clear, that would be a normal full field
10 crater analysis with the exception of the fact that you didn't go to the
11 scene, you didn't examine the crater, you didn't examine the tail fin,
12 you didn't examine any physical evidence, and you didn't interview
14 A. Yes, I -- by "full crater analysis" I mean take -- I was
15 concerned, and I explained this to the UNPROFOR officials, that the
16 analysis that they had reviewed or the analysis that they had had missed
17 one step, so I basically completed that final step which would have been
18 done in normal circumstances.
19 Q. And you consider that step to be the application of the angle of
20 descent to the data available in the firing tables for a 120-millimetre
21 mortar to determine the various distances between firing location and
22 impact of the projectile based on the number of charges?
23 A. Yes, that's -- that was the -- at the time that was the
24 contemporary approach to one of the final steps in crater analysis, yes.
25 MR. TIEGER: Mr. President, noting the time, I'll probably get
1 caught in the middle of a question and answer if I proceed.
2 JUDGE KWON: Well, how much longer would you need, Mr. Tieger?
3 MR. TIEGER: Estimating about an hour, Mr. President.
4 JUDGE KWON: We'll have a break for half an hour.
5 --- Recess taken at 10.30 a.m.
6 --- On resuming at 11.03 a.m.
7 JUDGE KWON: Yes, Mr. Tieger, please continue.
8 MR. TIEGER: Thank you, Mr. President.
9 Q. Mr. Joudry, you indicated just before we adjourned that you
10 completed the final step, which I took to mean the review of firing
11 tables to determine the distances reflected by the use of various
13 A. Correct.
14 Q. But in your statement you focus on two charges, that is -- and
15 I'll just get some clarity on this if we can. You say that using the
16 firing table data you estimated there were two likely charges because you
17 assessed that -- or you would have expected the mortar round to be fired
18 at an optimum charge which would lead to maximum damage in the target
19 area. Not one where the impact velocity was high driving the explosion
20 into the ground rather on the surface?
21 A. Right.
22 Q. So you were saying, then, that you found that the charges 1 and 2
23 in contrast to 3, 4, 5, and 6 were the ones you were focusing on, and
24 those first two charges you recall would have put the distance in the
25 area you indicated in paragraph 24(B)?
1 A. Right. I would -- I guess at this stage I would -- it may not be
2 clear from my statement, but it's important I guess to remind the Court,
3 I did not keep notes from that incident. I don't have any reports or
4 anything to refer to. So referring to my memory, I don't specifically
5 recall which charges I concluded. I remember taking the data, entering
6 the firing tables at the angle of impact, as would normally be done to
7 complete that step of a crater analysis. And normally what you would do
8 in that case is apply your gunnery knowledge to the situation, which I
9 did, which is as I say a step for normal field crater analysis; and the
10 results I came up with using that data would have been a possible area on
11 the map that overlapped or straddled the confrontation line, yes.
12 Q. Now, there's -- even assuming for the moment that persons who --
13 responsible for firing the projectile made the assessment that you did,
14 that is, wanted to use the lowest charge for the purpose of the -- for
15 purpose of maximum damage and have the lowest impact velocity, that would
16 in any event depend on the location of the mortar unit or battery. In
17 other words, some -- depending on where a mortar battery is, it's going
18 to have to use a certain charge to reach the target area depending on its
19 distance from that target area; right?
20 A. That's part of the analysis in the selection of the optimum
21 charge, yes.
22 Q. Well, let's be clear. I would think that the primary and
23 fundamental aspect of selection of the optimum charge is that it's going
24 to reach the target?
25 A. At a minimum, yes --
1 Q. Okay. And if the battery is located at a certain distance from
2 that target, it's going to dictate that you need a certain kind of
3 charge, that you won't use charge 1 or 2, you'll have to use 3, 4, 5, or
4 6 . That's obvious, isn't it?
5 A. Absolutely.
6 Q. Okay. And in fact if you find yourself at a distance where you
7 have to use a charge that's going to increase the impact velocity, there
8 are pretty time-tested ways of affecting the -- when that explosion
9 occurs short of moving your mortar thousands of metres closer to the
10 target; right?
11 A. Yes. In calculating the gunnery solution at the firing point,
12 there are a number of factors that would be taken into account.
13 Q. Well -- and among the factors, the availability and existence of
14 various kinds of fuses or various adjustments to fuses; right?
15 A. Absolutely.
16 Q. Okay. And that would be from a delayed fuse, a delayed impact,
17 to a super-quick impact, to a proximity impact, which would actually have
18 the projectile exploding even before it made contact; right?
19 A. Right.
20 Q. Now, with respect to the effect of impact velocity, there are
21 some indications or pretty time-tested indication of impact velocity in
22 this case, isn't there? And wouldn't that be, in fact, the fact the
23 stabiliser went into the ground so deeply? Doesn't that, that is, the
24 fact that the mortar tail fin, the stabiliser, was embedded deep in the
25 crater impact -- or indicate a high-impact velocity?
1 A. If you accept that that's the case, then absolutely.
2 Q. Well, do you accept that that's the case?
3 A. It's one of the possibilities, yes.
4 Q. And that would indicate a higher charge, correct, to create that
5 greater impact velocity?
6 A. Yes, the terminal ballistics in that case would be a very high
8 Q. Okay. Let me move on, Mr. Joudry, to the conclusion or opinion
9 or assessment you make with respect to the possibility of roof-top
10 delivery, as it's stated at the bottom of page 5 of your statement. And
11 you say there that -- basically at paragraph 24(C). If the aim was to
12 have the mortar explode at the market, then the most accurate way to have
13 achieved that was to launch the projectile by hand from a nearby
14 roof-top. And first of all, let me -- and you go on to say that -- at
15 paragraph 26, that among the factors you considered in reaching the view
16 that the projectile might have been or was likely to have been -- by the
17 way, what's your view on that? Do you think it was probably? Maybe?
18 Are you throwing that out as a possibility, or do you have an assessment
19 of its likelihood, that is, that it was hand-launched from a nearby
21 A. Well, to be clear, it may not be -- in hindsight it may not be
22 entirely clear from my statement, sir, but what I have done and
23 represented here in 24(B) at the time I completed that statement that --
24 sorry, the final step of the analysis to demonstrate to the UNPROFOR
25 officials that in a normal field crater analysis you have to follow the
1 data that you've accepted, which they hadn't done and I did from a
2 gunnery perspective. However, I did advise them that given my assessment
3 without even seeing the crater, the information I had in a normal field
4 situation the analysis probably would have been discarded because it
5 wouldn't have provided sufficient information to reach a conclusion in a
6 normal field setting. So it wasn't that I had concluded that it was
7 likely -- either (B) was likely or (C) was more likely, these were simply
8 alternative solutions to the conclusion for the crater analysis.
9 Q. Well, let's look at that alternative solution to the crater
10 analysis that you offer, the roof-top delivery. First of all, just to --
11 you are aware that the officials who were actually on the scene came to
12 the specific conclusion that that was not a possibility, that they said:
13 "It is certain that it," that is the mortar bomb, "was not
14 hand-launched from a building nearby."
15 And that's found at P1441 at e-court page 25. You're aware that
16 the people who were actually at the scene in examining all the evidence
17 came to a conclusion that specifically excluded your option?
18 A. I recall reading that in one of the analysis by one individual,
19 that's correct. But in my opinion at the time there was no clear
20 evidence that would exclude that option in my mind.
21 Q. Now, you say that one of the factors that led you to consider
22 that option was the fact that there were high buildings in the immediate
23 area of the explosion, and that's found at paragraph 25. Perhaps I can
24 call up P14 -- P1709, page 5.
25 MR. TIEGER: If we could enlarge the photograph on the -- okay.
1 Q. Now, Mr. Joudry, the arrow is pointing to the area of the
2 explosion or the crater, so could you just point out the -- whether
3 these -- this photograph depicts any of the high buildings that you were
4 referring to in paragraph 26?
5 A. Yes. Well, at the time I had -- I didn't have access to a
6 photograph of this nature. The one I had was a diagram and it looks like
7 those buildings there were represented, yes.
8 Q. Okay. So that would be, for example, the building to the
9 immediate right of the picture and then the ones immediately behind?
10 A. Exactly.
11 Q. Okay. And those appear to be buildings of five or more storeys;
13 A. Yeah, I -- from the pictures and the measurements, it looked like
14 they were like five storeys or so, yes.
15 Q. Okay. Now, I'll get back to that in a moment, but let me look at
16 some of the other factors upon which you relied in focusing on this
17 alternative explanation.
18 First of all, you stated that one of the factors you considered
19 was that there had been no reports of -- that the area had been subjected
20 to intense targeting, bracketing of indirect fire, hours or even days
21 prior to the explosion; and thus, for a single mortar to hit the
22 market-place would have been virtually impossible. That's at paragraph
23 24(C) of your statement.
24 A. Yes. My -- just to amplify that, if -- if it was assumed that
25 this was an aimed round, projectile, to hit the market that day, then to
1 do so with one mortar round fired in isolation would be virtually
2 impossible to have achieved that. That's what I meant by that.
3 Q. So that's based on the assumption that the mortar was -- that was
4 aimed at that exact spot where it landed?
5 A. Yes, that was in the -- that would be the assumption to enter
6 that conclusion; right.
7 Q. And that assumption would not be valid, therefore, if the mortar
8 was aimed at the general vicinity of the market, for example?
9 A. That's right.
10 Q. Secondly, I take it you were not aware of the fact or -- that the
11 market had indeed been targeted before and that mortar rounds had landed
12 very close to the market, that is, within a few metres?
13 A. I was aware of that from the UNPROFOR operations reports, that's
14 right, but not in the immediate time-frame of the explosion on the 5th of
16 Q. Okay. So ten to twelve times during the last three months?
17 A. That sounds about right, yeah. And in gunnery terms, that would
18 be called harassing fire.
19 Q. Now, you also stated that among the factors you considered was
20 the disturbance of the asphalt area -- asphalt surface in several areas.
21 That's at paragraph 26 of your statement.
22 A. Right.
23 Q. Do you -- I appreciate the fact that you don't have notes and may
24 not have reviewed the UNPROFOR materials, but do you have any
25 recollection of who allegedly identified a disturbance of the asphalt
1 surface in several areas?
2 A. No, that's not what I meant I guess by that statement. There
3 were a number of -- in my opinion, there were a number of inconsistencies
4 with the information that I was reviewing with regards to the crater
5 analyses, and one of them was the -- one of the photographs that I had
6 clearly indicated that the asphalt in the market area was broken and
7 disturbed probably from just normal use over many years. And there was
8 no indication of what the area of the crater looked like prior to the
9 explosion. That was the point I was making there.
10 Q. Mr. Joudry, are you aware that there was repeated assessment by
11 those who were physically present at the scene and examined the scene
12 that the shape of the crater and the shrapnel pattern were very clearly
13 defined and very definitively indicative of a mortar bomb?
14 A. That's not my recollection of the information I reviewed, no,
16 Q. Well, let me look at a few of the -- assess few of the references
17 here. First of all, at P1441, e-court page 23, looking toward the
19 "From the shape of the crater, it is clearly evident that it has
20 been formed by the explosion of a mortar bomb."
21 If we turn to e-court page 18:
22 "The shape of the crater is also consistent with the normal
23 impact of a mortar bomb."
24 E-court page 24:
25 "Definite shape of the crater, spray of the fragments, and place
1 of hitting of splinters to the dead and wounded clearly reveals that the
2 type of burst was ground burst."
3 Next page in e-court:
4 "The crater was a classic mortar crater with a front edge
5 undercut and the back edge grooved by splinters."
6 And page 28 in e-court:
7 "The lateral spray which was clean and sharp, had been produced
8 by direct impact on the ground ..."
9 And then further down:
10 "The crater is clean and very sharply defined."
11 These are all references, Mr. Joudry, to the assessment of those
12 who were actually at the scene about the clarity of the crater in the
13 context of a mortar bomb and of the shrapnel pattern.
14 A. I don't recall reading that information at the time I did my
15 review, sir. All I can say is that if that -- that was not the
16 information that I had at my disposal for the review by UNPROFOR
17 officials, most of whom had seen the crater, been on the scene within
18 minutes, hours, or days after the explosion. Many of them, from my
19 recollection from reading their reports, had considerable difficulty
20 assessing the crater. In fact, I recall -- I don't have any of that
21 information in front of me, sir, but one of the reports I recall -- one
22 of the initial reports indicated it was clearly a low-angle trajectory
23 and that one other report indicated that it may have even -- the
24 projectile may have exploded at a -- on a table a metre off the ground.
25 And clearly from looking at the photographs that I had, there was -- the
1 crater itself was not as defined as those statements you just read me,
2 but as I said I just looked at the information I had at the time.
3 Q. Well, let me suggest that that may -- that those factors that you
4 just cited appear to reflect a review of the available evidence that
5 focused somewhat selectively. So first with respect to the low-angle
6 trajectory, I take it that that's a reference to Captain Verdy's report,
7 where he mentioned something to the effect of low angle. Were you also
8 aware that Captain Verdy in the same page of the document in the UNPROFOR
9 report - it's all contained at P1441 - in which he mentioned low angle
10 also reported an angle of descent of 1400 mils, that is, 78 degrees?
11 A. I -- that sounds about right, yes.
12 Q. Right, that's not a low angle, is it?
13 A. No, it's not, but what he was talking about was the -- that was
14 part of the inconsistencies I was referring to. You can't have a
15 low-angle trajectory and create a crater that looks like that if you've
16 got the high angle. So that was part of the discrepancy that I was
17 referring to.
18 Q. Mr. Joudry, did you not read that all of the UNPROFOR -- official
19 UNPROFOR team recognised that Captain Verdy made mathematical or
20 arithmetical miscalculations and also referred to a howitzer firing table
21 rather than a mortar firing table and that that explained those
22 discrepancies. Did you not read that?
23 A. I read that he made mathematical errors. I didn't read where
24 anybody had made an attempt to correct his math to come up with a -- to
25 follow the logic in what he was trying to say. But once again, I'm not
1 disputing any of the information that was gathered that day. I simply
2 tried to put it in perspective of a normal crater analysis so that the
3 individuals receiving the information would not draw incorrect or
4 inaccurate conclusions, sir.
5 Q. You also alleged or you also asserted with -- in -- as one of the
6 supporting features in your alternative explanations of what might have
7 happened a reference at paragraph 26 to the "alleged tail fin having
8 changed hands."
9 A. Right.
10 Q. Okay. And I take it that your use of the word "alleged" in that
11 case is supposed to throw doubt on the -- whether or not the tail fin
12 that was examined is, in fact, a tail fin associated with this particular
13 mortar projectile?
14 A. Sir, I've already testified that I didn't see any of the parts of
15 the projectile, any of the evidence that you're referring to. I simply
16 read material and saw photographs, so I can't say that I -- that the
17 tail -- with certainty that the -- any tail fin was actually recovered.
18 I'm just saying that the information I had suggested there was a tail fin
19 recovered from the crater.
20 Q. And the information that was available to you through the
21 UNPROFOR reports indicated quite clearly that the tail fin had a serial
22 number on it which was recorded before it was provided to the Bosnian
23 authorities and that it was later examined when it was recovered from the
24 Bosnian authorities by UNPROFOR officials, including the FreBat team,
25 which confirmed that it was the same tail fin; right?
1 A. I'll defer to the wisdom of the Court in that area. As I said,
2 all I can say is from the information I had there was a tail fin. I
3 didn't see it or didn't touch it. There were -- part of the discrepancy
4 in my mind that I relayed to UNPROFOR officials, I just wanted to caution
5 them on making sure that we were all talking about the same tail fin,
6 that's all.
7 Q. All right. Let me turn to the -- then the execution of this
8 alternative or the alleged -- potential execution of this alternative
9 theory. Now, you've indicated that the -- this is about the mortar
10 having been thrown from one of the adjacent high buildings. Can you --
11 how is that done exactly? I mean, is it -- does the person who
12 hand-launches the projectile control the line of direction in any way?
13 How does the person throw it and how does the projectile land?
14 A. What --
15 THE INTERPRETER: The interpreters kindly ask the witness to sit
16 slightly back from the microphone. Thank you.
17 THE WITNESS: Well, as you can appreciate, I've never actually
18 performed that operation. What I was doing with this particular scenario
19 was -- and the reason I had arrived at it as a possibility in the first
20 case was that there were many -- in my mind there were many
21 inconsistencies in the field crater analysis to that point. And one of
22 the -- one of the possibilities I opined was that, well, what if, and the
23 what if scenario was that it could have been launched in some way from a
24 nearby roof-top. There was no indication in any of the reports I had
25 reviewed that anybody made any effort to look at the roof-tops. There
1 was no indication that anybody reported on the temperature of the --
2 around the crater or the temperature of the tail fin immediately after it
3 had been recovered. In a normal situation like that if it was touched
4 within minutes of the explosion, it would still be very hot. So one of
5 the alternative solutions I offered was that it could have been launched
6 in some way from a nearby roof-top, that could have been a fuse attached
7 to the mortar bomb and it simply lobbed over the building by one or more
8 individuals or with or without the assistance of some type of mechanism
9 and that's how it would have been arrived at its point of detonation.
10 MR. TIEGER:
11 Q. Right. And so my question to you was: Does the person lobbing
12 this projectile control its line of direction?
13 A. Inasmuch as a human being could control the hand launch of
14 anything, whether it be a baseball or whatever, yes.
15 Q. What about the angle of descent?
16 A. Well, I would presume that if they were lobbing the projectile of
17 that, it probably would have been lobbed outwards and upwards and the
18 tail fin -- the stabiliser on it would have then stabilised the
19 projectile as it descended to its point of impact.
20 JUDGE MORRISON: Colonel -- sorry to interrupt, Mr. Tieger.
21 But before I forget to ask the question, can you assist us as to
22 the approximate weight of 120-millimetre shell, that mortar round?
23 THE WITNESS: I don't recall specifically, Your Honour, but it
24 would be in the actual -- the actual weight of the explosion would be in
25 the order -- the weight of the explosive material would be about a
1 hundred pounds.
2 JUDGE MORRISON: So you've got to add the weight of the explosive
3 to the weight of the casing and presumably that will vary according to
4 the type of -- the manufacturer?
5 THE WITNESS: Yes, I would estimate that -- that it would
6 probably be in the order of 120 pounds all up, sir.
7 JUDGE MORRISON: Thank you.
8 MR. TIEGER:
9 Q. Did you estimate the distance between the buildings and the --
10 well, let me go to P1440, pages 5 and 6. And actually, I'm going to
11 return there in a second, but before I do let me go quickly to P5921 page
12 5, line 5. In -- just to -- this is an indication on some firing tables
13 of the shell mass with and without the fuses, ranging between 12 kilos --
14 well, for particularly light between 10 kilos without the fuse to 15 or
15 16 kilos. And I would also note for the Court that at P1973 we see an
16 estimate of the mass of the shell at 12.6 kilos.
17 So with either of those figures in mind, Mr. Joudry, whether it's
18 12 and a half kilos to a hundred pounds?
19 MR. TIEGER: Let me turn back to P1440, again at pages 5 and 6.
20 Q. Now, in the diagram to the right, number 5, we see that tall
21 building that you identified in the photograph earlier, that was that
22 tall five- or six-storey building that was adjacent to the general area
23 of the crater.
24 MR. TIEGER: And if we can -- that's number 5. And if we could
25 turn to the legend at page 2 we can clarify that. That's the 22nd
1 December building, the height of which is about 15 and a half metres.
2 That would be page 2 where you can see the key. Well, let's move forward
4 Q. Mr. Joudry, would you accept that the diagram of that area
5 indicates that the shortest distance, that is, the directly adjacent
6 distance between that building --
7 JUDGE KWON: Just a second. Were you referring to pages 6 -- key
8 is appearing on page 6 in English?
9 MR. TIEGER: That's correct, Mr. President.
10 JUDGE KWON: Not page 2. Footnote 5.
11 MR. TIEGER: I'm sorry, you're correct. What I was looking for
12 at page 2 - and not very artfully - was the indication that the distance
13 between the December 22nd building and the impact site was 11.1 metres.
14 JUDGE KWON: Thank you.
15 MR. TIEGER:
16 Q. And I can show that to you, Mr. Joudry, but I presume you're --
17 you will accept that?
18 A. Yeah, that's reasonable. I haven't -- as I said, I didn't take
19 any -- I don't have any notes to refer to and it's difficult to
20 reconstruct my knowledge from 18 years ago, but that sounds about right,
22 Q. Okay. Well, I guess the question I want to ask you then is a
23 follow-up to His Honour Judge Morrison's question, and in order to ask
24 that I may need to approach the witness with an item, Mr. President. We
25 saw -- you estimated that the weight of the object -- the projectile was
1 about a hundred pounds. We looked at indications in the materials that
2 it was at least 12 and a half pounds. I have here an item I'd like to
3 show you. This is a 12-kilogramme object and I'd like you to just -- I'd
4 like to approach you with this and ask you a question if I may.
5 JUDGE MORRISON: Well, I'm fascinated to see what you could ask
6 the witness to actually do with it, Mr. Tieger, but in principle in the
7 absence of any objection from the Defence, I don't think we object.
8 JUDGE KWON: Yes, Mr. Tieger, please proceed.
9 JUDGE BAIRD: We can assume that [indiscernible] of the Defence,
10 there is no objection?
11 MR. ROBINSON: My microphone doesn't seem to be working.
12 JUDGE BAIRD: Pardon?
13 MR. ROBINSON: Our microphones didn't seem to be working. In any
14 event, there is no objection. Thank you.
15 JUDGE BAIRD: Thank you.
16 MR. TIEGER:
17 Q. Now, Mr. Joudry, you're welcome to hoist that in any way you want
18 or move it around. It has a handle so it's considerably easier to
19 manipulate than most items of 12 kilogrammes, and it's at least lighter
20 than the weight of the projectile. But with that actually physically in
21 front of you, can you tell the Judges if you really consider that it's
22 possible to hand -- to throw this thing 11 metres?
23 A. Well, in short, yes of course. You have to remember that if --
24 in order for the projectile to be hand-launched from the top of the
25 building it wouldn't have to go out 11 metres, it would have to arrive at
1 the point on the ground which is 11 metres from the building. So that
2 was possible in my mind. I would have done the calculations. I can't
3 reconstruct them for you here today, but it's a simple mathematical
4 calculation on the triangle. So that would have been possible, and in my
5 mind and in my opinion - as it was then, as it remains today - it would
6 have been possible for one or several individuals with or without the
7 assistance of some type of mechanism to launch a 120-millimetre mortar
8 from the top of a building.
9 Q. Do you know what the weight of an Olympic shot put is?
10 A. Well, I know the weight -- no, I don't, but I know the weight of
11 a 155-millimetre projectile, many of which I have lifted in the past, and
12 I'm quite familiar with the weight of projectiles, yes.
13 MR. TIEGER: Mr. President, I can bring this up to the Bench.
14 JUDGE KWON: It won't be necessary, Mr. Tieger.
15 MR. TIEGER:
16 Q. And then having hurled or lobbed, as you said, this
17 over-12-kilogramme object 11 metres, so it would have -- would it have
18 landed at an angle of descent that the lobber could calculate or would it
19 be entirely random in your view?
20 A. It would have been relatively random, noting that it would have
21 been lobbed from the top of the building which was approximately, as you
22 have pointed out, 15 or 16 metres off the ground.
23 Q. So it could have landed then at an angle that would have entirely
24 excluded the possibility of any mortar shell, either 90 degrees because
25 of the aerodynamics of a mortar or 2 or 3 degrees; right?
1 A. Well, I'm not sure about the 2 or 3 degrees, but it could have
2 landed at an awkward angle. And one of the things I would remind you of
3 is getting back to the number of discrepancies that I saw at the time
4 reading the reports, it was clear that many of the initial UNPROFOR
5 officials on the ground had difficulty reading the shrapnel pattern
6 and -- which led me to think of: Well, what are the other alternatives?
7 That's why I started to think of this one as a possible option.
8 Q. And then since you assert that the lobber would then have had to
9 physically insert the stabiliser into the ground after the explosion,
10 that person would have to figure out what the approximate angle of
11 descent had randomly been to put the stabiliser back in at an angle that
12 was consistent with the shrapnel splinter pattern; right?
13 A. No, not at all, and that's one of the things I pointed to in my
14 discrepancies or the -- noted in many of the discrepancies around the
15 crater. All the -- in this particular alternative solution, some person
16 would have to insert the tail fin at an angle to make sure that it looked
17 like it was at least above the top of the building.
18 Q. So that would have to be some predetermined angle or an angle
19 decided upon right at that very moment of inserting this item into the
21 A. It wouldn't have been predetermined. I would have imagined in
22 this case they would have -- the person or persons responsible if this
23 alternative was in actual case what happened, is that clearly they would
24 have known roughly where the projectile would have landed within close
25 proximity to the building, and all they would have had to do was make
1 sure that the angle looked like it appeared that the tail fin cleared the
2 top of the nearest building.
3 Q. But that assumes that the shrapnel pattern which was randomly
4 created would be consistent with that and that was entirely impossible to
5 predict according to you, so that the whole project is fraught with the
6 inherent inconsistency between or potential inconsistency between the
7 shrapnel pattern, which can't be controlled according to you, and the
8 insertion of the stabiliser in a manner that indicates it could have
9 cleared the building?
10 A. In my opinion - and as I said, I did not see the crater - the
11 pictures that I saw as well as the statements by the UNPROFOR officials
12 who were there on the ground initially, clearly they had difficulty
13 assessing the crater. And if these were analysts trained to some degree
14 in crater analysis, then if they had difficulty with the initial
15 assessment of the splinter pattern, then that in my mind presented an
16 inconsistency and therefore the projectile could have virtually landed on
17 the ground at almost any angle.
18 Q. And then, according to your theory, in between the very few
19 minutes that it took for the first UNPROFOR official to arrive - five
20 minutes as we saw estimated in the UNPROFOR report before - if not the
21 arrival of other officials before then, that someone would have had to
22 insert the stabiliser into the ground. How is that done under your
24 A. It would have been done in the same way as it would have been
25 done under the original theory, which is somebody inserting the tail fin
1 into the ground, if it could be re-inserted and measured, then it
2 certainly could be inserted on the first occasion in my mind.
3 Q. Well, the re-insertion was into a hole created by a high-impact
4 velocity, but let's take a look at the ground and the depth of that
5 stabiliser. And perhaps we can look at P1711 and we need to go to
7 [Video-clip played]
8 MR. TIEGER:
9 Q. We've just seen a clip that went from about 8.55 to about 9.21
10 showing the stabiliser being cleared away by FreBat IV, and we see here
11 the depth of the crater and the extent to which it's lodged into the
12 soil. So according to your theory, Mr. Joudry, someone ran out after the
13 explosion in the midst of the dead and dying victims and plugged this
14 stabiliser into the ground unseen before UNPROFOR arrived or any Bosnian
15 police officials arrived; is that correct?
16 A. Yes.
17 MR. TIEGER: No further questions to this witness, Mr. President.
18 JUDGE KWON: Thank you.
19 Yes, Mr. Karadzic, do you have any re-examination?
20 THE ACCUSED: [Interpretation] Just very briefly,
21 Your Excellencies.
22 Could we please see P01441, which we have already seen. Could we
23 have it up on the screen, please.
24 Re-examination by Mr. Karadzic:
25 MR. KARADZIC: [Interpretation]
1 Q. While waiting for it to appear, Colonel, my -- Mr. Tieger
2 reminded you of the fact that there were shells, some shells, earlier.
3 But you said there weren't any on that day. Why is it important for
4 there to have been shells on that day? When and under what conditions
5 are firing elements, in fact, or firing criteria established, determined?
6 A. In this case, one of the theories is that it was an aimed round
7 and the explosion was meant to go off in the market that day. Following
8 that logic, in order for that to have happened with indirect fire it
9 would have had to have been targeted and bracketed very precisely,
10 keeping in mind that indirect fire is not a precise weapon, it's an area
11 weapon. And for one particular round to have been aimed, particularly a
12 mortar, aimed and fired and to have hit the market that day would be in
13 my opinion highly unlikely. And one of the things that I looked at was I
14 went back through the UNPROFOR operations reports to determine if there
15 had been that type of bracketing in that area immediately prior to
16 explosion, and I recall going back several days and noting that while
17 there had been come explosions they weren't in the market itself, which
18 led me to the conclusion that it was not a bracketed and recorded target
19 by the firing unit that day.
20 Q. Thank you.
21 THE ACCUSED: [Interpretation] Could we now see 715. We have 705
22 here, but could we see 715 in this document. The ERN number 715.
23 MR. KARADZIC: [Interpretation]
24 Q. On page 32, Mr. Tieger stressed that two UNPROFOR officials in
25 fact visited the site. Could I now ask you to have a look at item 17 in
1 this document. You can read it to yourself. And could you tell us
2 whether these UN officials arrived at a conclusion that is consistent
3 with the conclusion that you arrived at? [In English] Particularly the
4 last question -- the last sentence:
5 "There is insufficient physical evidence to prove that one party
6 or the other fired the mortar bomb. The mortar bomb in question could
7 have been fired by either side."
8 A. Overall, my conclusion was exactly the same as that. I simply
9 went on to caution the UNPROFOR officials that not only was it impossible
10 to prove, in fact they were using crater analysis in an inappropriate
11 manner in this case.
12 Q. [Interpretation] Thank you.
13 THE ACCUSED: [Interpretation] Can we look at 724 in this same
14 document, that would be some nine pages before this one.
15 MR. KARADZIC: [Interpretation]
16 Q. "Conclusions." Bullet point 5. We are talking about a
17 different UNPROFOR team now. Please take a look at (d). I'm going to
18 read so that everybody can hear it.
19 [In English] "It is not possible to determine the exact range
20 from the firing point to the target with mortars. The range lies in the
21 region of 300 metres to 5.551 metres, which is the published data for the
23 [Interpretation] Did this team arrive at conclusions similar to
25 MR. TIEGER: I just want to clarify one potential misstatement.
1 I don't know what the accused means by a different team, but he's citing
2 the same report just a different portion. So if he's trying to suggest
3 that we're dealing with -- if he means different from this witness, I
4 leave it alone. If he means we're now going to an entirely different
5 report rather than a restatement of the same thing he just looked at,
6 then I do object.
7 JUDGE KWON: Yes, Mr. Karadzic.
8 THE ACCUSED: [Interpretation] Your Excellencies, we saw that the
9 document was signed by one team and there were nine different
10 investigations, which you can also see in this document. The first
11 signatories were Gauthier, Karen [phoen] and Jansen [phoen] and I can't
12 read the rest, and further on we can see that an analysis follows in the
13 same document; however, the conclusion was arrived at by a different
14 team. So this document was not created by one single team. This is a
15 compilation of all the elements that United Nations dispatched on the
16 15th of February as their joint conclusion.
17 MR. KARADZIC: [Interpretation]
18 Q. All I would like to hear from you, Witness, is whether conclusion
19 (d) is consistent with what you concluded yourself?
20 A. Not exactly, sir. I remember reading this report, and as I
21 pointed out in my statement, the UNPROFOR officials who had done the
22 crater analysis and the ones who had compiled this report did not
23 complete the last step. So if you have an angle of fall, which they
24 clearly did to some degree of accuracy, or an angle of impact, then the
25 next step is what does that angle of impact relate to in terms of a
1 possible charge and therefore a range, and then you apply that to a map
2 and ask yourself: Does this make sense with the other information that I
3 have. So the UNPROFOR officials did not complete that final step. So
4 the range -- so I did simply with the flawed -- what I considered to be
5 flawed information to demonstrate to the UNPROFOR officials that there is
6 another step in this crater analysis technique that they were using,
7 inappropriately nonetheless. And I don't recall the specific range that
8 I came up with, but I do recall that when I plotted those shorter ranges
9 on a map it came up with an area that straddled the confrontation line
10 and about 5 per cent of that possible area was on the Bosnian Serb side
11 of the confrontation line. So I took that range and narrowed it using
12 the final step of crater analysis to come up with one of those
13 possibilities that I indicated earlier.
14 Q. Thank you.
15 THE ACCUSED: [Interpretation] Can we now look at 731 in the same
17 MR. KARADZIC: [Interpretation]
18 Q. I'm going to read just the first sentence.
19 [In English] "The estimation of the range based upon the study of
20 a crater analysis of a mortar round cannot be accurate in any case. The
21 only information that can be obtained from the crater is the angle of
22 descent, and from this datum with the firing tables of the mortar we will
23 be ..." it's not legible but ...
24 [Interpretation] Do you agree with this part of the conclusion as
1 A. Absolutely, and this refers to my concern with how the -- the
2 limitations of crater analysis and what it was originally designed for in
3 terms of gunnery, and that is basically to -- not to assign culpability
4 but to narrow down possible locations from which enemy weapons may be
5 firing such that you could follow-up and determine location by a more
6 accurate means. There are -- of the critical elements in a crater
7 analysis, if you have the angle of descent you can then use that for the
8 final step. If you don't have an angle of descent, then obviously you
9 can't complete the final step. But even in that case all it gives you is
10 a possible range of locations in an area in which the weapon might have
11 been fired from.
12 Q. Thank you. And now 727, page 1, just one more sentence. (B)4,
13 or rather, bullet point 4(b):
14 [In English] "The crater analysis has been conducted seven days
15 after the occurrence of the incident. This crater formed by the bomb has
16 been tempered time and again by various personnel."
17 [Interpretation] Is this in keeping with your conclusions about
18 the accuracy which is questionable?
19 A. Yes, this is one of the several major concerns that I had
20 expressed to the UNPROFOR officials with regards to the disturbance of
21 the crater which was at the very least led -- should lead some high
22 degree of question in the results that they were looking at.
23 Q. Thank you, Colonel.
24 THE ACCUSED: [Interpretation] I have no further questions,
25 Your Excellencies.
1 JUDGE KWON: Well, Mr. Joudry, that concludes your evidence. On
2 behalf of the Chamber I would like to thank you --
3 THE WITNESS: Thank you, sir.
4 JUDGE KWON: -- for your coming to The Hague. You are free to
5 go. Please have a safe journey back home.
6 THE WITNESS: Thank you, sir.
7 And I wish the Court well in your deliberations.
8 JUDGE KWON: Thank you, Mr. Joudry.
9 [The witness withdrew]
10 JUDGE KWON: Is the next witness ready?
11 MR. ROBINSON: Yes, Mr. President.
12 JUDGE KWON: Yes. Let's bring him in.
13 [The witness entered court]
14 JUDGE KWON: Would the witness take the solemn declaration.
15 THE WITNESS: I solemnly declare that I will speak the truth, the
16 whole truth, and nothing but the truth.
17 WITNESS: JOHN RUSSELL
18 JUDGE KWON: Thank you, sir.
19 THE WITNESS: Thank you.
20 JUDGE KWON: Please make yourself comfortable.
21 THE WITNESS: Thank you.
22 JUDGE KWON: Yes, Mr. Karadzic.
23 THE ACCUSED: Thank you.
24 [Interpretation] I would like to call up 1D04879 in e-court,
1 Examination by Mr. Karadzic:
2 Q. [Interpretation] Good afternoon, Mr. Russell. Thank you for
3 coming here to testify. May I ask you to tell us whether you have
4 reviewed the statement which is now on the screen in front of you?
5 A. Yes, I've reviewed that statement.
6 Q. Thank you. Did you also sign the statement?
7 A. Yes, I did sign that statement.
8 Q. Is this statement accurate? Does it reflect your words
10 A. Yes, it reflects my words accurately.
11 Q. Thank you. If I were to put the same questions to you today in
12 the courtroom, would your answers be identical to the ones provided in
13 the statement?
14 A. Yes.
15 Q. Thank you.
16 THE ACCUSED: [Interpretation] Your Excellencies, I would like to
17 tender the statement pursuant to Rule 92 ter as well as three attached or
18 associated documents.
19 JUDGE KWON: Any objection, Ms. West?
20 MS. WEST: Good afternoon, Mr. President, Your Honours, none.
21 JUDGE KWON: With respect to the last document, which is 1D4517,
22 while the document itself was admitted as -- already, but the reason for
23 the Defence in tendering this document is because of the witness's
24 handwritten notes. Am I correct in so understanding, Mr. Robinson?
25 MR. ROBINSON: Yes, Mr. President.
1 JUDGE KWON: Yes, they will all be admitted.
2 Shall we give the number now.
3 THE REGISTRAR: Yes, Your Honour. The statement 65 ter 1D04879
4 will be Exhibit D2364. 65 ter number 1D4515 will be Exhibit D2365.
5 65 ter number 1D4516 will be Exhibit D2366. And 65 ter number 1D4517
6 will be Exhibit D2367.
7 JUDGE KWON: Thank you.
8 Please continue, Mr. Karadzic.
9 THE ACCUSED: [Interpretation] I'm going to read the short summary
10 of Mr. Russell's statement in English.
11 [In English] Mr. John Russell is a retired officer of the armed
12 forces of Canada. In February 1994 he was working for UNPROFOR in
13 Sarajevo as military assistant to Sergio de Mello.
14 While in Sarajevo, Major Russell was called upon to do crater
15 analysis on several occasions. On 5th of February, 1994, he was tasked
16 to go to the scene of the explosion at the Markale. He arrived at the
17 scene between 16 -- 15 past 16 and 30 past 16. He located the crater and
18 got down on the knee to conduct a quick crater analysis.
19 He noted that the dead and injured had been removed from the
20 scene and that this process disturbed much of the evidence, such as
21 location of fragments. The entire area appeared to have been swept
23 Major Russell was able to determine the approximate direction of
24 the fire by examining the splash pattern of the round on the asphalt and
25 using a compass. He concluded that the round had come from the
1 east/north-east. The UN investigative team report notes that the -- he
2 arrived at the measurement of 450 mils. The UN investigative team report
3 also notes that he measured the angle of descent at 1.200 to 1.300 mils.
4 While on his knee at the crater, Major Russell was struck by how
5 steep on the angle and that the round must have come in on the clear and
6 large building adjacent to the crater. This led him to believe that the
7 round had come from a location closer to the crater than a round fired
8 from further away. However, based upon the fact that the round could
9 have been fired with zero to six charges, he concluded that it was not
10 possible to determine the distance that the round had travelled. Since
11 both parties occupied positions in the direction from which the round had
12 come, he could not be certain which side had fired the round.
13 Major Russell examined the hole made by the projectile but did
14 not measure its depth. He noticed that debris had fallen into the hole
15 and did not believe that the depth of the hole at the time of impact
16 could be accurately determined by the time he arrived on the scene or
17 that the depth of the hole could help determine where the round had come
19 He does not believe that re-inserting the tail fin into the hole
20 would provide an accurate measurement of the angle of descent since the
21 hole had been disturbed in the intervening period.
22 Major Russell also indicated that the fact that a tail fin is
23 found in the ground does not necessarily establish that the round had
24 travelled a long distance than if the tail fin had been found somewhere
25 in the area. There are too many variables to draw that conclusion. In
1 all his experience with crater analysis, the speed of which -- at which
2 the round hits the ground had never been an issue. Major Russell
3 recalled hearing it reported on the CNN on the evening of 5th of
4 February, 1994, that the Bosnian Serbs had shelled the market. He
5 believed that this was the result of propaganda and that from then on it
6 would be widely believed that the Bosnian Serbs had fired the shell
7 regardless of the true facts.
8 Major Russell kept a personal diary during his time in the former
9 Yugoslavia. In an entry dated 5th of February, 1994, he wrote:
10 "At around 12.10, a shell hit in the market-place in the old
11 town, and as I write, (0015, 6 February) the count is 68 dead and 198
12 wounded. It is the biggest single kill of people ever in 22 months. I
13 was at the site to do a quick crater analysis, and although I agree with
14 the direction that the round came from, I disagree with the distance,
15 believing that the BH shot at themselves. Many here don't want to think
16 of this as there are a lot of casualties, but I think otherwise."
17 Some days after the explosion, Major Russell accompanied some UN
18 personnel to the basement of a building in Sarajevo where the Bosniak
19 side kept mortars. One of the UN personnel had the tail fin recovered
20 from the Markale explosion with him. When they arrived, they asked the
21 person in charge if they had any 120-millimetre mortars. He said no.
22 Then one of the UN group opened a box and found 120-millimetre mortars.
23 The mortars in the box were hand manufactured. Major Russell compared
24 the manner of welding of the 120-millimetre mortars to the manner of
25 welding of the tail fin from the market and they looked to be the same
1 calibre, colour, and to have been welded in the same way.
2 At that stage I don't have additional questions for Major
3 Russell, so Madam West is free to start.
4 JUDGE KWON: Mr. Karadzic, coming back to the last document,
5 i.e., the 1D4517, you confirmed that you're tendering that document
6 because of the handwritten notes by Mr. Russell. But all he said in his
7 statement was that he made some notations without telling what it is
8 about. I'm not sure that we can read his comment without his assistance.
9 So in order for you to tender that document you need to put some
11 MR. ROBINSON: Yes, thank you, Mr. President. If we can call up
12 1D4517, Dr. Karadzic can put some questions.
13 JUDGE KWON: Thank you.
14 THE ACCUSED: [Interpretation] Can the bottom part with the
15 handwritten portion be zoomed in.
16 MR. KARADZIC: [Interpretation]
17 Q. Major Russell, is this your handwritten note?
18 A. Yes, this is my handwritten note.
19 Q. Thank you. Could you please read that note aloud for the benefit
20 of everybody in the courtroom.
21 A. The note says:
22 "This may no longer be true," this is related to the statement
23 above it, "but if it came from the team's inspection. If fin was stuck
24 in ground, then no above ground explosion occurred."
25 Q. Thank you.
1 THE ACCUSED: [Interpretation] Your Excellencies, are things
2 clearer now?
3 Can we please --
4 JUDGE KWON: Can you put --
5 THE ACCUSED: [Interpretation] -- have the next page on the
7 JUDGE KWON: -- two question marks at the end of the page?
8 MR. KARADZIC: [Interpretation]
9 Q. The question is for you, Major. The Judge has asked you whether
10 you put the two question marks on this page?
11 A. Yes, I did put those two question marks there.
12 JUDGE KWON: And meaning what?
13 THE WITNESS: Meaning, Your Honour, that it was something that I
14 had wondered about and basically the statement above is related to that.
15 JUDGE KWON: Thank you.
16 Yes, please continue, Mr. Karadzic.
17 THE ACCUSED: [Interpretation] I would like to call up the
18 following page, please.
19 MR. KARADZIC: [Interpretation]
20 Q. Again, could you please read this note of yours aloud.
21 A. This note says:
22 "This would happen anyway."
23 Q. Thank you.
24 THE ACCUSED: [Interpretation] Your Excellencies, have I laid
25 enough foundation for the admission of this document?
1 JUDGE KWON: What would this mean, that this would happen anyway?
2 What's the point of that comment?
3 THE WITNESS: Your Honour, that relates to the point about the
4 maximum shrapnel disposition or dispersion and projectiles of all kinds
5 causing serious damage and death in that area.
6 JUDGE KWON: Thank you.
7 Shall we take a break now? We'll have a break for 45 minutes and
8 resume at quarter past 1.00.
9 --- Luncheon recess taken at 12.28 p.m.
10 --- On resuming at 1.18 p.m.
11 JUDGE KWON: Yes, Ms. West.
12 MS. WEST: Thank you, Mr. President.
13 Cross-examination by Ms. West:
14 Q. Good afternoon, Major Russell.
15 A. Afternoon.
16 Q. Thank you for meeting me yesterday. I think this will provide
17 some clarity today, but one thing I would like to say before we start:
18 Since we both speak the same language we need to be careful that we speak
19 slowly. On the screen in front of you, you're going to see a transcript,
20 and it goes simultaneously, and it may be helpful for you to keep an eye
21 on that transcript to sort of guide you on how slowly we speak.
22 So, sir, you were in Sarajevo from December 1993 to April 1994;
23 is that correct?
24 A. That is correct.
25 Q. And that's a total of about four months; right?
1 A. That's about -- yeah, four and a -- four months, yes.
2 Q. And at paragraph 7 of your statement you said that your first
3 experience with crater analysis was when you were with the UN. Was that
4 first experience the crater at the market-place on February 5th?
5 A. No, it was not.
6 Q. Okay. And you also speak in your statement about other occasions
7 in which you did analysis, that's paragraph 9. And I counted that up and
8 that appears to be about six other occasions. Can you please tell us of
9 those occasions how many of them were before your analysis at the
10 market-place in early February?
11 A. To the best of my recollection, at least five.
12 Q. Okay. So subsequent to February and the time you left, it's your
13 testimony then that you only did one other analysis?
14 A. After the Sarajevo one, the market one, that is correct.
15 Q. All right. And if we now focus on February 5th. When you
16 arrived at the market-place, were you aware that other analysis had
17 already been done?
18 A. No, I was not aware of any other crater analysis before the one I
19 was conducting.
20 Q. Okay. But you now know that there had been an analysis at 12.30
21 by the locals. There had been one at approximately 12.45 by FreBat. And
22 then Captain Verdy had also done an examination about 3.00. And it was
23 about 4.30 when you came in; correct?
24 A. I knew about -- I didn't know about the locals, but I did know
25 about the other two. And yes, approximately 4.30 is about the time I got
2 Q. All right. And you will agree with me that there was only one
3 explosion at the market-place that day?
4 A. That is correct.
5 Q. So any fragmentation from -- shrapnel fragmentation that would
6 have been found on that day would have been the remnants of only one
7 shell; correct?
8 A. Yes, I believe that is correct.
9 Q. And yesterday when we spoke you told me that shrapnel
10 fragmentation could be used to determine the calibre of a shell. That's
11 correct; right?
12 A. That is correct.
13 Q. Now paragraph 15 and 17 of your report, if we can turn the
14 page --
15 JUDGE KWON: Shall we ask the Registry to provide a hard copy to
16 the witness?
17 MS. WEST: Please. Thank you very much, Mr. President.
18 THE INTERPRETER: Interpreter's note: Please make pauses between
19 questions and answers. Thank you very much.
20 THE WITNESS: Thank you.
21 MS. WEST:
22 Q. So you have your report D2364 in front of you; correct?
23 A. Yes, I have.
24 Q. Okay. And focusing your attention on paragraph 15, in this
25 paragraph you are giving a quote of the report you had written at the
1 time, and in it you say:
2 "It's most important that the site should not be disturbed."
3 And then you go on about the things that would be found on a
4 site. And then your last sentence is:
5 "This obviously disturbed much of the evidence, such as location
6 of fragments."
7 So when you came on the scene, you could not find any shrapnel
8 fragments; correct?
9 A. I initially looked for big fragments and I couldn't find any
10 obviously, and I went into the crater analysis.
11 Q. All right. And if we go to paragraph 17 this is something that
12 you continue to talk about, and you say that when you were interviewed by
13 the UN team:
14 "I concluded that the entire area had been swept thoroughly. I
15 looked around for shrapnel and did not find anything."
16 Major Russell, why was the importance -- or what was the
17 importance of examining the shrapnel at the scene when you knew there was
18 only one shell?
19 A. It's important to determine the calibre of the shell.
20 Q. Okay. Now, putting aside that we knew -- putting aside that
21 particular fact, is there any other reason that it would have been
23 A. I don't understand the question.
24 Q. All right. So you say it's important for determining the calibre
25 of the shell. Is there any other reason why collecting the fragmentation
1 would be important to your analysis?
2 A. Well, it would confirm the calibre, and from that you can look at
3 range tables to determine the distance, minimum/maximum range.
4 Q. Okay. But you know on this occasion part of the projectile
5 itself was found in the hole; right?
6 A. Now I do, but at the time I did not.
7 Q. Okay. And the fact that there was no shrapnel there for you to
8 analyse in this particular occasion, since we know what the calibre was,
9 has no bearing at all on your analysis?
10 A. Ask me that question again.
11 Q. Let me ask it another way. It wasn't so well stated.
12 I'm interested in why in your report from recent times, after you
13 know everything that happened at the time, in paragraph 17 you focus on
14 the lack of shrapnel and you've confirmed to us that shrapnel is
15 important to discover -- figure out the calibre of the shell. But in the
16 case today as you know it, we don't have to figure out the calibre of the
17 shell because we know what it is. So will you agree with me that in
18 these specific circumstances the fact that the fragmentation had already
19 been swept away by the time you got there made no difference?
20 A. I don't agree, and the reason for that is the imprint on the
21 ground can also indicate the size of the weapon.
22 Q. Okay. Very good. And that's exactly what we're about to move
23 to. One of the important things regarding shrapnel, would you agree with
24 me, is not the shrapnel itself but it's the imprint the shrapnel makes on
25 the ground?
1 A. That is correct.
2 Q. Okay. And so when you arrived on the scene, you looked at a
3 pattern that you saw on the ground; right?
4 A. That is correct.
5 Q. And at paragraph 18 - we see this on the screen in your
6 report - you say when you examined the crater:
7 "I observed that the imprint left by the crater was smaller than
8 I would have expected, leading me to believe that the round may have
9 struck an object such as a table before hitting the ground."
10 Yesterday when we spoke we talked about this, and the
11 Trial Chamber knows now from looking at your report that you've edited
12 that you later discovered in fact that the tail fin was embedded in the
13 ground; correct?
14 A. That is correct.
15 Q. And so as a result of finding out that information, you changed
16 your opinion; correct?
17 A. I changed my opinion of where the round started to explode. In
18 other words, I changed my opinion that the round was initiated prior to
19 going into the ground by an object above the ground. I changed that on
20 that note, as I was now convinced based on that information that indeed
21 the round did strike the ground and it exploded.
22 MS. WEST: May I have D2367, please.
23 Q. What you're going to see before you in a moment is the report you
24 spoke about earlier with the accused. Do you see that on the screen
25 right now?
1 A. I believe they should bring up the comments. I don't see the
2 whole comments there I think that you're referring to. Or, I see the --
3 I see the document.
4 Q. Okay. So you recognise the document?
5 A. Yes, ma'am.
6 Q. Now, this is a report that you wrote later; is that correct?
7 A. I wrote this report the day after. To my recollection, it was
8 the day after I wrote this.
9 Q. And so that would be February 6th?
10 A. That is correct.
11 Q. And the handwritten notes that we saw earlier today, those
12 handwritten notes, how much later did you write those?
13 JUDGE KWON: Shall we scroll down the document?
14 MS. WEST: Please.
15 THE WITNESS: To the best of my recollection, I do not know. I
16 don't know. I wrote them but I don't know exactly when I wrote them.
17 MS. WEST:
18 Q. But you would agree with me that you wrote them at least
19 subsequent to reading the report of the team of UN experts that came in
20 several days later?
21 A. That is correct.
22 Q. All right. If we can focus on the first paragraph and we see it
23 already, in the middle of that paragraph it says:
24 "Normally a good crater analysis can be done due to the fact that
25 when a mortar round impacts on the ground, a specific signature assists
1 the investigations [sic] in determining the approximate direction from
2 which it came, and the angle of descent."
3 Now, I can see here you're saying that the crater is helpful in
4 determining bearing; correct?
5 A. Correct.
6 Q. But it also appears that you're saying the crater is helpful in
7 determining angle of descent, and my question for you is: Do you mean
8 the splash pattern is helpful in determining the angle of descent or do
9 you mean any hole that's created?
10 A. Well, both play together, the pattern giving you direction and
11 then inside the crater where the hole is, being able there to put in a
12 measuring device or adjusting it with a measuring device to give you an
13 angle of descent.
14 Q. All right. So let's first speak about the bearing. Since this
15 is the only report we have from you, and looking over this it does not
16 specifically talk about methodology, can you just tell the Court now:
17 How is it that you determined bearing?
18 A. Well, you place a number of stakes at both ends of the splash
19 about the left and the right, and then you also put two stakes in the
20 middle of that imprint. And then you shoot the bearing back in the
21 middle so you've got -- you know, you make a 90-degree angle in that
22 particular splash and then you measure the bearing.
23 Q. All right. So you no longer have your actual measurements;
25 A. No, I don't have any document that shows my calculation.
1 Q. And that's fine and we can go to a document later that records
2 that. But did you use a compass at the time?
3 A. Yes, I did.
4 Q. And did you use magnetic north for your measurements?
5 A. No, there was a magnetic declination already input into my
6 compass for that area in the world.
7 Q. Okay.
8 MS. WEST: If we can just go to the second page of this document.
9 Q. And you'll see it in a moment, but on the second page, the last
10 paragraph, it says:
11 "Based on the evidence available at the site, the minimum and
12 maximum range at which the weapon system could have been fired straddles
13 the confrontation line. It is therefore impossible to determine with
14 certainty on which side of the confrontation line the round was fired."
15 So, Major Russell, at this point again we have no indication of
16 the methodology you used. Can you please tell the Court now how is it
17 that you determined angle of descent?
18 A. You -- once you measure the angle of descent, you refer back to
19 range tables, and then those range tables for that particular calibre
20 will give you a minimum and maximum range of that round based on whatever
21 charge was used for it.
22 Q. All right. And we can back up a little bit here. My question
23 for you is: On this specific occasion tell us exactly the steps you took
24 to measure angle of descent.
25 A. Based on our discussions yesterday, basically I don't remember
1 doing it. I don't remember measuring the angle of descent, I don't
2 remember that, but I've done them before. And based on the calculations
3 that were provided in the board of inquiry, this was the first time I
4 said: Oh, look, I did do an angle of descent but I don't remember doing
6 Q. All right. You just said you had done them before. So let's
7 talk about what your habit was in terms of angle of descent. How did you
8 do them before?
9 A. You normally -- you normally go to the deepest part in the
10 crater, where the nose normally goes in, and you put in a stake there.
11 And then, you know, you keep it on the bearing that you've discovered.
12 You put the stake there and then you use a protractor and you measure the
13 angle at which it is.
14 Q. And yesterday when we had this discussion you said that normally
15 you used a 12-inch nail as your stake; is that correct?
16 A. Yes, I used to carry with me a number of 12-inch nails, a string,
17 and a plumb-line.
18 Q. All right.
19 A. And something to drive them into the ground.
20 Q. So then would it be fair to say that on this occasion to get
21 angle of descent it was most likely that you took that nail, inserted it
22 into the hole in the ground, and then used a protractor to get the angle
23 of descent?
24 A. Yes, that is correct.
25 Q. All right. If we can go back to your report D2364, you have it
1 in front of you, and go to page 4, please. Thank you. Now, at the top
2 of this page this is where you have a discussion of the depth of the
3 hole, and in paragraph 24 you said you examined the hole but that you
4 didn't examine the depth. You noted that debris had fallen into it and
5 you did not believe that the depth of the hole at the time of impact
6 could be accurately determined by the time you had arrived or that the
7 depth of the hole could help determine where the round had come from.
8 And then in paragraph 25 you say:
9 "I do not believe that re-inserting the tail fin into a hole
10 would provide an accurate measurement of the angle of descent since the
11 hole had been disturbed in the intervening period."
12 Major Russell, can you tell us again about how you determined the
13 angle of descent, what you did with the nail?
14 A. Okay. I put it into the nose cone -- there is a furrow there
15 that -- where the tip of the round ends up at -- in the ground, and you
16 try and find the deepest part in there and then you place the nail in.
17 And that's how you would do it.
18 Q. Okay. So you took the nail and you put it in the hole and you
19 measured the angle?
20 A. Yes.
21 Q. Okay. In paragraph 25 isn't that exactly what is happening here,
22 re-inserting a tail fin into a hole to provide an angle of descent; isn't
23 that exactly what you did?
24 A. The reason of this comment on 25 was that the embedment of the
25 tail fin in the ground was the true measurement, but it was no longer
1 there. And in some cases when you do crater analysis you do find
2 imprints without tail fins. And that is the best procedure, lacking that
3 embedded fin, to try and measure the angle of descent.
4 Q. So I'm speaking generally about the process, and the process as I
5 understand it that you used was taking something, inserting it in the
6 hole, and measuring the angle. And the process, as I understand it from
7 paragraph 25 and what was done later, was that they took something, they
8 stuck it in the hole, and they did certain calculations to measure the
9 angle. Tell me what in the process is different between what you did and
10 what they later did with the tail fin?
11 A. I would think that the 12-inch nail is a smaller diameter and
12 more pointed than the flat part of the tail fin that break -- you know,
13 that would be there, I think, and then you have a better chance of
14 finding the deepest part of that furrow. So that's -- to the best of my
15 ability was to find that deepest part and find and -- and secure that
16 nail in that location.
17 Q. Okay. But everything you just said has nothing to do with
18 suggesting that the procedure was inaccurate.
19 A. The procedure would be, as you said, inserting the tail fin would
20 be the same --
21 Q. Okay --
22 A. -- as me inserting the nail.
23 Q. Okay. So then can we say that your paragraph 25 is perhaps not
24 entirely accurate? Because here you say:
25 "I do not believe that re-inserting the tail fin into the hole
1 would provide an accurate ... angle of descent ..."
2 And you just told us that you yourself re-inserted -- you
3 inserted a nail and got an angle of descent. So would you agree with me
4 that perhaps that's not entirely clear the way that it's articulated?
5 A. I would agree it's not entirely clear.
6 Q. Okay. In 20 -- you go on to say that 26 -- in 26:
7 "The fact that a tail fin is found in the ground does not
8 necessarily establish that the round had travelled a longer distance than
9 if the tail fin had been found" elsewhere ... "there are too many
10 variables ..."
11 And then in 27 you say:
12 "In all my experience with crater analysis, the speed at which
13 the round hits the ground has never been an issue."
14 I want to talk to you for a moment here about speed, but firstly
15 we know from a few minutes ago that you had seven crater analyses done in
16 Sarajevo. And then later in your statement you also say you did a few in
17 southern Lebanon in 2000 and 2001; correct?
18 A. That is correct.
19 Q. And so that would make about a total of nine analyses; correct?
20 A. Yeah. Maybe ten including the one when I was being trained on
21 that before.
22 Q. Okay. So the day and a half of training that you had in October
24 A. That is correct.
25 Q. Okay. So that's a total of nine. Tell us, when you were in
1 Lebanon, the surface that you examined, was that a hard surface or a soft
3 A. It was both.
4 Q. One of each?
5 A. No, there was about seven rounds in this particular event and
6 some were in the ground, soft ground, and some were on a road.
7 Q. Okay. So on -- of these ten occasions when we speak about all
8 your experience, it's -- it encompasses those ten different times; is
9 that right?
10 A. Yes.
11 MS. WEST: May I have 1D05015, please.
12 Q. And now I'd like to talk about speed, and you say that in all
13 your experience the speed at which the round hits the ground has never
14 been an issue. We may go to page 3, please.
15 Now, sir, you've not seen this before so I'm going to read this
16 to you. This is a report from the Defence that regards this particular
17 issue that we're talking about. And in paragraph 5.3 it talks about this
18 issue of speed and it says:
19 "In this instance the stabilising tail boom continued to travel
20 forward because its rearward velocity caused by the explosion was less
21 than the forward velocity of the mortar bomb. Thus the velocity at which
22 the stabilising tail boom penetrated into the earth consisted of the
23 impact velocity of the mortar bomb less the velocity at which the
24 stabilising tail boom was ejected from the rear of the mortar bomb by the
25 detonation of the explosive."
1 I'm sure it's of no surprise to you to know that this paragraph
2 was written in regard to this particular incident. And would you agree
3 with me that it appeared in this paragraph, the person who wrote it
4 certainly believes that the speed at which the round hits the ground is
5 an issue, it's something that's important to determine?
6 A. The -- in our training, this was never considered. We always
7 worked on the direction and the angle of descent.
8 Q. All right. So in your training in October of 1993 and in the ten
9 times that you did an analysis, speed was something that you just didn't
10 deal with; is that right?
11 A. It was never considered.
12 Q. But you wouldn't discount that speed as something that might be
13 important to an analysis, or perhaps you've just never done it?
14 A. I've never done a crater analysis considering speed.
15 MS. WEST: Apologies, but if we can go back to his report which
16 is D2364, looking at page 3, please.
17 Q. And now I would like for us to talk about the angle of descent,
18 and you do that on page 3, and it begins at paragraph 21, and it's the
19 page before this. But specifically at paragraph 22 you speak about
20 steepness and let's read that. It says:
21 "While on my knee at the crater, I was struck by how steep of an
22 angle that the round must have come in on to clear the large building
23 adjacent to the crater. This led me to believe that the round had come
24 from a location closer to the crater than a round fired ... further
1 Now, we spoke about this a bit yesterday and you gave -- in
2 explaining this to me you gave me an example of a water hose to
3 illustrate your conclusion, that the steeper the angle, the closer the
4 firing point. Can you tell the trial Court what you mean by that. Use
5 the example of the water hose.
6 A. Okay. In the discussion I used the example of the water hose,
7 saying placing a water hose at a 45-degree angle with the maximum flow
8 on, you would see the water fly out and then gravity would pull it down
9 to a certain location. If you pull -- if you push the fire hose down,
10 the area where the water lands is closer. If you pull the hose up higher
11 than 45 degrees, the water again starts to come closer. And when I
12 looked at the steepness of the angle of descent, this is what I was
13 reminded of.
14 MS. WEST: May we have D2366, please.
15 Q. And the Court has heard evidence that at the time -- or heard in
16 the summary that at the time of this incident you kept a diary?
17 A. That is correct.
18 Q. And on the evening of February 5th, I think this is in the early
19 morning hours of February 6th, we see what you wrote. And on the
20 left-hand side of this page - it's a little bit difficult to see but I'm
21 going to read it, and you can tell me if I'm reading it correctly:
22 "At around 12.10," so that day on the 5th, "a shell hit in the
23 market-place in the old town and as I write," this is going to be 12.15
24 in the early morning hours of the 6th, "the count is 68 dead, 198
25 wounded. It is the biggest single hit of people ever in 22 months. I,"
1 not quite sure what it says here, "I was on its site to do a quick crater
2 analysis, and although I agree with its direction that the round came
3 from, I disagree with the distance believing that the BiH shot at
5 Now, you wrote this that very night; correct?
6 A. That is correct.
7 Q. And as we -- as we spoke yesterday you wrote this in your diary
8 as a result of believing that the steep angle meant a closer firing
10 A. That is correct.
11 Q. All right.
12 MS. WEST: Mr. President, I'm going to use Sanction at this point
13 and we're going to be looking at a document that's already been admitted.
14 It's P05921. And we'll be looking at e-court page 16, and this is a
15 firing table. I believe it was admitted during the cross of a witness --
16 a previous witness.
17 Q. Sir, you'll see this momentarily. And this is a firing table. I
18 assume you're familiar with firing tables?
19 A. Yes.
20 Q. Okay. This is a firing table for the projectile that was
21 launched on the market-place. And we know that the shell was an M62P3,
22 and we can highlight that and you'll see it on the top.
23 [Prosecution counsel confer]
24 MS. WEST:
25 Q. But first I just want to show you as we go across and everyone
1 can see, we're seeing six charges. Are you familiar with this type of
3 A. I know this is the one that was used --
4 Q. Okay.
5 A. -- for the investigation.
6 Q. All right. And so the green --
7 A. But I --
8 Q. I'm sorry, go ahead.
9 A. But I was using a different range table.
10 Q. Right. And that's fine. And we're just going to use this as an
12 A. But it's -- works the same way.
13 Q. Thank you very much. So the green boxes that we see on the top
14 now, those represent the charges, 1, 2, 3, 4, 5, and 6. And now on the
15 top you see shells to which it's applicable, and in this case it's
16 applicable to M62P3. So what I'd like to show you regards the angle of
17 descent that you came to. Now, at this point the Court has not seen that
18 angle of descent on a report that you wrote. But yesterday we looked at
19 it, and I think the angle of descent that you came to was 1.200 mils to
20 approximately 1.300 mils.
21 A. That is correct.
22 Q. All right. So just for the purposes of an example, I'm in no way
23 suggesting that that is the accurate angle of descent for this event, but
24 for the purposes of this example what I did is went through each charge
25 and found the angle of descent that was the closest to 1200. And so in
1 the first case under charge 1 it's 1.218, and then I went across to get
2 the distance, and that would be 900 metres. And then under the second
3 charge we have 1.198, and at that charge for the shell we go over to get
4 the distance and that would be 1.700. For the third charge, we have
5 1.203 and for the distance that would fire this shell at 2500 metres.
6 For the fourth charge, 1.202 and that would fire 3.300 metres. The fifth
7 charge -- excuse me, the fifth charge is 1.198 which would end up 4100
8 metres. And the sixth charge, 1.192 would end up at 4800 metres.
9 Now, Major, after seeing this firing table where the angle of
10 descent under each charge is the same and yet as the charges increase the
11 distances increase, would you conclude that this -- the principle that
12 this represents is not the principle you applied when you wrote in your
14 A. No, I don't -- I don't -- ask me that again.
15 Q. Okay. So after seeing this, can you agree with me that in each
16 case I just showed you the angle of descent or the steepness was the
17 same. In each charge it was approximately 1200 mils, yet the firing
18 distance increased as the charges increase. Do you agree with me?
19 A. That is correct.
20 Q. Okay. And so this is not the principle you used when we looked
21 at your diary and when we looked at your report. You concluded that
22 because it was so steep you assumed it had to come from a close distance;
23 isn't that right?
24 A. That's what I felt in my diary.
25 Q. All right --
1 A. -- that I wrote.
2 Q. And that's -- and it's because of that steepness and it's because
3 of that principle, that's why you wrote it in your diary?
4 A. That is correct.
5 Q. Do you agree with me that you applied an erroneous principle and
6 you came to an incorrect conclusion?
7 A. In that particular case of the diary, yes. In the particular
8 case of the range tables, you can see the minimum and maximum range; and
9 therefore, those minimum and maximum ranges cross the confrontation line
10 and that's the official report that I put in on the crater analysis.
11 Q. Okay. But that's not my question. If you had understood this
12 principle to be exactly as it's related on the firing table, and not
13 these exact figures, but the principle that it represents, would you have
14 come to a different conclusion than you came to in your diary?
15 A. Yes.
16 Q. You also in your statement spoke about the media and you
17 said - this is D2364, page 5, it's paragraph 32 - you said:
18 "That evening" -- in paragraph 32 you said you recalled hearing
19 it reported on CNN that evening and you believed that this was a result
20 of propaganda and that from then on it would be widely believed that the
21 Serbs had fired the shell regardless of the true facts.
22 When you heard that report, that was before you wrote in your
23 diary; correct?
24 A. Yes.
25 Q. Later on in the statement towards the bottom at 36 you talk about
1 some days later in which you went -- you accompanied some UN personnel to
2 the basement of a building. Now, "some days later," could this have been
3 February 12th?
4 A. No, it was earlier than that.
5 Q. It was earlier than that?
6 A. I believe it was about five days -- I think five days after.
7 Q. Okay. The reason I ask you that is in here it's footnoted a
8 particular report referring to your visit and that visit is February 9th
9 and that's four days later.
10 A. Yeah.
11 Q. Is it possible that that --
12 A. That is correct.
13 Q. Okay. And so when you went on this visit, if we can go to the
14 next page, 37, you stated:
15 "When we arrived, we asked the person in charge if they had any
16 120-millimetre mortars," this must be shells, "and he said no. One of
17 our group opened a box and we found 120-millimetre mortars. The mortars
18 in the box were hand manufactured. I compared the manner of the welding
19 of the 120-millimetre mortars to the manner of the welding on the tail
20 fin from the market and they looked to be the same calibre, colour, and
21 to have been welded in the same way."
22 Major Russell. How long were you able to look at those mortars?
23 A. Maybe five, ten minutes.
24 Q. And were you able to pick them up and hold them?
25 A. Yes, in fact, I held one in my hand, a complete round.
1 Q. And is it your suggestion that these mortar shells that you found
2 in that basement were from the same lot of the mortar shells used at --
3 on February 5th at the market-place?
4 A. No.
5 Q. It is not your suggestion?
6 A. No.
7 Q. What about them in particular made you believe they were hand
9 A. The one I held had no identification marks. It was roughly made
10 on a lathe, and it had a free-floating firing pin at the front.
11 Q. Okay. How do you know it was roughly made on a lathe?
12 A. Well, when you pick it up you have all the rough edges on it and
13 everything else, unlike a manufactured round.
14 Q. And I think you just said that there was no identification marks
15 on it, so you couldn't see any writing on it?
16 A. To the best of my recollection, no, I didn't see any writing on
17 the round I held.
18 Q. And are you aware that the stabiliser found at the market-place
19 does have some writing on it?
20 A. Yes.
21 Q. Are you also aware that the former Yugoslavia had a long history
22 of weapons production?
23 A. Yes.
24 Q. You made that comparison. Did anyone else in the delegation make
25 that same comparison?
1 A. To the best of my knowledge, no.
2 Q. No one did --
3 A. We just looked at them and they looked similar and that was about
4 as far as we went.
5 Q. So you're saying another person other than you thought they
6 looked similar?
7 A. Yeah, the welding parts.
8 MS. WEST: May we have P1441. And may I have e-court page 49.
9 Q. Now, in your statement when you speak about this visit you
10 reference this particular page that we're about to see.
11 MS. WEST: E-court page 49. Thank you.
12 Q. And this is the report that was generated from your visit, your
13 visit and the other people at the visit as well. And under the
14 assessment at the bottom it says:
15 "The tail fins," here it says "finded" "found on the market-place
16 and those that were shown to us later," referring to these two visits
17 above, "were different from the others we saw today."
18 Major Russell, the person who wrote this assessment does not come
19 to the same conclusion that you did. This person comes to a different
20 conclusion, which is that the mortars that you all saw that day were
21 different than the one that was found at the market-place. Do you have
22 any comment on that?
23 A. Yes, I -- when I first saw the tail fin, I believed it looked the
24 same. But I have no problem in accepting the comment of this report
25 which identifies batch lot numbers and stuff on the primer and the fuse.
1 I didn't look at that.
2 Q. Okay. Thank you, Major. I have no further questions.
3 MS. WEST: Thank you, Mr. President.
4 THE WITNESS: Thank you.
5 JUDGE KWON: Mr. Karadzic, do you have any re-examination?
6 THE ACCUSED: [Interpretation] A few, Your Excellency.
7 Re-examination by Mr. Karadzic:
8 Q. [Interpretation] Major, sir, do we agree that the fuses are not
9 hand made? Can you actually tell us what can be hand made and what is
10 made in a factory and supplied to the end users?
11 A. Not really. All I can say is if you have an original round you
12 can copy it in a factory that has the machines to be able to do that.
13 Q. Thank you. On the body of the shells that you saw in the cellar,
14 were they forged or cast to the best of your recollection?
15 A. They seemed to be forged, to the best of my recollection.
16 Q. Thank you. Major, we heard some things from the Prosecutor
17 today. Do any of them change your conclusion that it could not be
18 established which of the two sides from which side of the confrontation
19 line fired the shell?
20 A. I have no doubt in my own mind that I was unable to determine the
21 exact range and distance from which that round was fired because the
22 minimum/maximum range straddled the confrontation line.
23 Q. Thank you. Do you know that in this same document there are
24 several conclusions arrived at by the United Nations which point to the
25 fact that it could not be determined which of the sides fired a round.
1 We can show you page 25 in this document, for example.
2 MS. WEST: Mr. President, I'm not sure of the question and I
3 don't know how this relates.
4 JUDGE KWON: Let's pull up the document and reformulate your
5 question, Mr. Karadzic.
6 THE ACCUSED: [Interpretation] Your Excellencies, this document
7 has already been shown to the witness. I just wanted us to look at some
8 of the pages that we showed to the previous witness, those that comprise
9 UN conclusions. Can we look at page 25. Scroll down, please.
10 MR. KARADZIC: [Interpretation]
11 Q. Please look at bullet point 7:
12 [In English] "It is not possible to state where the round was
13 fired from ..."
14 [Interpretation] Does this tally with your findings?
15 A. Was that addressed at me, the question? Would you repeat it,
17 Q. In this document we find several conclusions. For example, under
18 bullet point 7 it is stated:
19 [In English] "It is not possible to state where the round was
20 fired from, as it could have been fired at any one of a number of
21 different charges, giving a different range. It is certain that it was
22 not hand-launched from a building ..." and so on.
23 [Interpretation] With regard to the separation line and with
24 regard to your conclusion that you could not determine where the round
25 came from, would you say that bullet point 7 and the conclusion contained
1 herein corresponds to your own conclusion?
2 A. No, I don't. I look at that particular comment, and my comment
3 would agree with the finding of the board, which concluded the same thing
4 as me, which was the minimum/maximum range straddled the confrontation
6 Q. Thank you. Could you please tell us also what prompted you to
7 enter in your diary that perhaps -- that it was possible that one side
8 actually shelled its own people? Was that ever mentioned before? Did
9 that phenomena pervade the area, as it were?
10 A. No, it was just my own personal feeling. That's what I believed
11 occurred in my own personal feeling, but in the report the facts did not
12 prove that an individual side fired. For me it was minimum/maximum range
13 across the confrontation line. Therefore, you could not specifically
14 identify one side or the other.
15 Q. Thank you, Major. Thank you for having come to The Hague to
17 JUDGE KWON: Thank you, Mr. Russell. That concludes your
18 evidence. On behalf of the Chamber, I'd like to thank you for your
19 coming to The Hague to give it. Now you are free to go.
20 THE WITNESS: Thank you, Your Honour.
21 [The witness withdrew]
22 JUDGE KWON: Is the next witness ready, Mr. Robinson?
23 MR. ROBINSON: Yes, Mr. President, the next witness will be
24 General Gauthier and he's available.
25 JUDGE KWON: Thank you.
1 [The witness entered court]
2 JUDGE KWON: Would the witness take the solemn declaration,
4 THE WITNESS: I solemnly declare that I will speak the truth, the
5 whole truth, and nothing but the truth.
6 WITNESS: MICHEL GAUTHIER
7 JUDGE KWON: Thank you, General. Please make yourself
9 THE WITNESS: Thank you.
10 JUDGE KWON: Yes, Mr. Karadzic.
11 THE ACCUSED: [Interpretation] Thank you.
12 Examination by Mr. Karadzic:
13 Q. [Interpretation] Good afternoon, General, sir.
14 A. Good afternoon.
15 THE ACCUSED: [Interpretation] I would like to call up 1D05522 in
17 MR. KARADZIC: [Interpretation]
18 Q. General, have you reviewed a hard copy of this statement, please?
19 A. Have I reviewed it? Yes, I have.
20 Q. Thank you. Did you sign the copy?
21 A. Yes, I did.
22 Q. Does it accurately reflect your words? Is this statement
24 A. Yes, it is.
25 Q. Thank you. If I were to put the same questions to you today, the
1 same ones that were put to you before you provided your statement, would
2 your answers be the same today?
3 A. I believe so.
4 Q. Thank you.
5 THE ACCUSED: [Interpretation] Your Excellencies, I would like to
6 tender the statement into evidence pursuant to Rule 92 ter.
7 JUDGE KWON: Yes, that will be admitted.
8 THE REGISTRAR: As Exhibit D2368, Your Honours.
9 THE ACCUSED: [Interpretation] I'm going to read a short summary
10 of General Gauthier's statement in English.
11 [In English] General Michel Gauthier joined the Canadian Armed
12 Forces in 1973. He graduated from the Royal Military College in
13 Kingston, Ontario, with a bachelor's degree in civil engineering. From
14 September 1993 to August 1994, he was the UNPROFOR force engineer
15 stationed at the UNPROFOR headquarters in Zagreb.
16 After his service in Bosnia, he rose in the ranks of the Canadian
17 Armed Forces. At the time of his retirement from the Canadian Armed
18 Forces in 2008 with the rank of lieutenant-general, he was the commander
19 of all Canadian forces stationed abroad. After an explosion killed and
20 wounded a large number of people in Markale -- at the Markale Market on
21 the 5th of February, 1994, General Gauthier was assigned to a
22 United Nations investigation into the incident. He was team leader. The
23 team began their investigation on 11th of February, 1994.
24 The team learned that the first crater analysis by the
25 United Nations had been carried out by a team from French Battalion IV at
1 approximately 14 hours on the day of the explosion. The FreBat --
2 French Battalion IV team had found a 120-millimetre mortar tail fin in
3 the crater when they arrived on the scene. One of the French Battalion
4 IV team members, Captain Segade, told him that in extracting the tail fin
5 the analysis -- analysts had to chip away at the asphalt lip around the
6 mouth of the crater and enlarge the actual hole formed by the penetration
7 of the tail fin.
8 In excavating the tail fin from the crater, the
9 French Battalion IV team thereby disturbed the integrity of the crater
10 for any analyses which followed. The French IV Battalion team did not
11 measure the depth or angle of penetration of the tail fin nor did they
12 calculate the angle of descent. The investigating team learned that
13 Canadian Major John Russell, the military assistant to the deputy special
14 representative of the Secretary-General, had conducted a crater analysis
15 at approximately half past 16 hours on that -- on the day of explosion.
16 It was reported that he had calculated the bearing of 450 mils and the
17 angle of descent as between 2000 [sic] and 1300 mils. They interviewed
18 Major Russell during their investigation and also obtained a copy of his
20 When they arrived at the seen of the explosion on 11th of
21 February, 1994, six days after the explosion, members of the
22 investigating team examined the crater. They found that an accurate
23 measurement of the direction of fire remained possible because the
24 scrapes of the -- on the pavement remained untouched and the general
25 location of a fuse tunnel could not have changed.
1 Three members of the UN team independently calculated the
2 direction of fire on 11th of February, 1994. Based upon the
3 conditions -- condition of the crater, the investigative team was able to
4 conclude that the direction of fire was between 330 and 420 mils from the
5 point of detonation.
6 Based upon the condition of the crater at the time of analysis by
7 the team, they concluded that it was not possible to estimate the angle
8 of descent with any acceptable degree of accuracy. They concluded that
9 to ensure accuracy, the angle must be measured when the tail fin and fuse
10 were -- fuse are in the ground. It was not done on February the 5th when
11 the FrenchBat IV team excavated and removed the fin tail -- tail fin.
12 Some members of the team made estimates of the angle of descent
13 based upon the crater at the time of our investigation -- of their own
14 investigation on the 11th of February, 1994. By the time the team
15 conducted its crater analyses, six days had elapsed since the explosion.
16 In the team's view, it was reasonable to suspect that the crater was
17 thoroughly excavated by the local authorities during that period and the
18 angles measured on 11th of February, 1994, were not beyond suspicion.
19 The team's analysts believed that to assure accuracy, the angle must be
20 measured when the tail fin and fuse are in the ground, and this was not
21 done on 5th of February, 1994. It was assessed that the results measured
22 on 11th of February, 1994, were not sufficiently accurate to be used as a
23 basis for a finding based upon accepted crater analysis techniques.
24 The investigating team concluded that the explosion on 5th of
25 February, 1994, at the Markale Market in Sarajevo had been caused by a
1 120 mortar fired from a direction of 330 to 420 mils, and from a distance
2 of between 300 and 5.551 metres. Since the distance of origin of fire
3 overlapped each side of the confrontation line, they concluded that there
4 was insufficient physical evidence to prove that one party or another
5 fired the mortar bomb. The mortar bomb could have been fired by either
7 MR. KARADZIC: [Interpretation]
8 Q. General, I would like to put two other brief questions to you.
9 Did your team ever dismiss the calculations made by Major Russell, the
10 calculations that related to the angle of descent?
11 A. I do not recall.
12 Q. Thank you. Have I understood you correctly, you don't remember
13 these calculations having been dismissed or rejected; is that correct?
14 A. I cannot recall at this time our explicitly rejecting those
15 calculations. I do not remember.
16 Q. Thank you.
17 [In English] I pose it in English. Were you aware of any
18 established method of crater analysis which allowed for calculation of
19 the descent -- distance of mortar was fired from the depth of penetration
20 of the tail fin?
21 A. No.
22 Q. Thank you.
23 THE ACCUSED: Excellencies, I don't have questions at that
25 JUDGE KWON: Thank you.
1 As you have noted, General, your evidence in chief was admitted
2 most in writing in lieu of your oral testimony. Now you'll be further
3 cross-examined by the Prosecution.
4 THE WITNESS: Thank you, Your Honour.
5 JUDGE KWON: Yes, Ms. Edgerton.
6 MS. EDGERTON: Thank you. Good afternoon.
7 Cross-examination by Ms. Edgerton:
8 Q. And good afternoon, General.
9 A. Good afternoon.
10 Q. And thank you for meeting with me yesterday as well.
11 A. You're welcome.
12 Q. Just one very small clarification, did you retire from the
13 Canadian Armed Forces in 2008 [sic], as it appeared -- as was read out by
14 Dr. Karadzic or 2009 as it appears in your statement?
15 A. 2009.
16 Q. Thank you. Now yesterday you told me that your first visit to
17 Sarajevo was in March of 1992; correct?
18 A. Correct, yes.
19 Q. And that predated your post as force engineer?
20 A. Yes.
21 Q. And then as force engineer, you returned to Sarajevo many times
23 A. Yes.
24 Q. And just to talk for a second about your responsibilities as
25 force engineer. That included, I understand from you, planning and
1 providing safe accommodation for UN troops and staff?
2 A. Yes.
3 Q. How about mobility of UN across the mission area, did it include
4 that as well?
5 A. It most certainly did.
6 Q. And your responsibilities also included mine safety and
7 clearance; correct?
8 A. Correct, yes.
9 Q. You also told me yesterday that up until February 1994 you
10 actually had little to no experience in crater analysis?
11 A. Yes, that's correct.
12 Q. Similarly, little to no experience in ballistics or blast
14 A. Yes, that's correct with respect to ballistics. With respect to
15 blast effects, as a trained engineer and trained combat engineer, I have
16 been trained in the use of explosives and calculation -- calculating the
17 use of explosives to have a certain effect, for instance, to -- to block
18 a road or to destroy a bridge and so on. So it's not quite correct to
19 say I have no expertise in blast effects, but this is in the use of
20 explosives for specific purposes and calculating the quantity and type of
21 explosive to be used to achieve a certain effect.
22 Q. Thank you for the clarification. And up to that time, what you
23 knew about mortars came largely from training exercises and in their use;
25 A. That's correct. It was -- the training I'd had would have had
1 more to do with the employment of mortars in support of military
3 Q. And as a commander you've since had a great deal of experience in
4 their use?
5 A. To some degree, yes.
6 Q. Would the degree of experience you've had allow you to confirm
7 that mortars are generally used as area suppressing anti-personnel
9 A. Yes, that's fair.
10 Q. Would you also agree that mortars are mobile weapons, able to be
11 generally moved and assembled for use with relative ease?
12 A. Yes, that is the advantage of a mortar, mortar weapons system, as
13 compared with artillery, is its flexibility, the ability to use it, and
14 pack up and move and fire again relatively quickly.
15 Q. Are mortars easy to camouflage?
16 A. Yes, they are.
17 Q. And am I correct in my recollection of our conversation yesterday
18 that depending on the terrain you said that mortars fired from temporary
19 positions leave very little trace behind of their use; is that correct?
20 A. That's correct.
21 Q. Now, your team prepared, as we heard, a report on your
22 investigation into the shelling of 5 February 1994, setting out your
23 findings; and that was completed around the 15th of that month?
24 A. Yes, it was.
25 MS. EDGERTON: Could we just have a look at P1441 again, please,
1 and go over to page 9 of that document.
2 Q. Now, is this, General - and we can scroll slowly through and go
3 over then to page 10 and 11 - but while we read, perhaps I can ask the
4 question: Is this, General, a copy of the final report done by your team
5 at the time?
6 A. It appears to be.
7 Q. Could we go to the following page, 10, please.
8 MS. EDGERTON: If we have a technical error, I can certainly
9 provide the general with an unmarked copy of P1441 and refer to the pages
10 on the record.
11 JUDGE KWON: If you have a copy -- I'm sorry, I overlapped. I
12 was told that we or are now expecting some technical difficulties with
13 the e-court.
14 MS. EDGERTON: Would my friend be able to assist me with a hard
15 copy of P1441?
16 Q. And when you receive this, unfortunately the pages aren't
17 numbered, General, but I'd invite you to count over to pages 9, 10, and
18 11 just to confirm that you recognise the report.
19 A. Yes, I do.
20 Q. Now -- thank you. Now, this report had several annexes, A to G,
21 didn't it?
22 A. Yes, it did.
23 Q. And could you just continue flipping over to page 12 of the
24 document in front of you and tell me if you see the annexes listed on
25 page 12?
1 A. Yes, I do.
2 Q. And what did those annexes comprise? Can you explain that to us,
4 A. Do you want me to read the --
5 Q. Did those annexes --
6 A. -- or explain them?
7 Q. Did those annexes comprise your investigation as a whole?
8 A. Yes, they did.
9 Q. And the final report that you've just seen was drafted based on
10 the investigation as a whole and an analysis of the information contained
11 in those annexes?
12 A. Correct.
13 Q. And I'd just like to put a couple of propositions to you based on
14 your report. Could you confirm based on their investigation that your
15 team concluded that the mortar bomb in question here had been launched in
16 a conventional manner from 120-millimetre mortar tube?
17 A. Yes, that's correct.
18 Q. And that it exploded at ground level and didn't impact a market
19 stall or a tabletop --
20 A. That's correct --
21 Q. -- on the way down?
22 A. Yes.
23 Q. And that your team found the crater shape to be consistent with
24 the normal impact of a mortar bomb on an asphalt surface?
25 A. Yes.
1 Q. And that your team assessed the direction of fire as being
2 between 330 and 420 mils?
3 A. Yes.
4 Q. And just a couple more things I'd like you to confirm from your
5 report. Are you -- do you agree that there were UNMOs on the Bosnian
6 side to the north-east of the impact area and that they were generally
7 free to move about as they wished?
8 A. Yes.
9 Q. Can you also confirm that on the Bosnian side there were no known
10 fixed mortar positions along the direction of fire assessed by your team?
11 A. Yes, that's correct.
12 Q. And your team did learn that in Bosnian Serb army-held territory
13 that the assessed angle of fire or the directional bracket fell within
14 the area of responsibility of the Kosevo Brigade of the Sarajevo-Romanija
16 A. Yes, that's correct.
17 Q. And your team also had information that there were Bosnian Serb
18 army mortar positions in the assessed direction of fire?
19 A. I don't recall positions, but I would have to go back and look at
20 my -- look at the annexes to confirm --
21 Q. If we --
22 A. I recall one position within the bracket that we had identified.
23 Q. Thank you. And I did misspeak. It was "a position" and not
24 "positions." And are you also able to confirm that since October 1993
25 UNMOs had been denied freedom of movement to Bosnian Serb army positions
1 in that assessed direction of fire?
2 A. I believe that to be correct.
3 Q. And yesterday during our conversation you also said that neither
4 you nor your team were given access to Bosnian Serb army-held territory
5 in that assessed direction of fire, were you?
6 A. I don't recall saying that.
7 Q. Do you recall -- can you confirm that your team had no access to
8 Bosnian Serb-held territory in the direction of fire?
9 A. I don't recall us not having access. I -- what I recall - and
10 it's more -- it's my thinking now in relation to this - that we saw no
11 need at the time to actually go into Bosnian Serb territory to try and
12 find where the mortar might have been fired from.
13 Q. And why did you see no need, General?
14 A. Because our expectation of being able to actually find something
15 within the relatively large area that we had identified as being a
16 possible firing point for the mortar, we judged to be very long, that we
17 would actually be able to find something. It would be like trying to
18 find a needle in a haystack, especially given that there was freshly
19 fallen snow, that mortars, as I said earlier, don't necessarily leave
20 tell-tale signs. And so unless it was a fixed position, it would be very
21 difficult to actually find evidence of the mortar having been fired.
22 Therefore, from our perspective going out to try and find evidence over
23 this area we saw as being a little bit of a wild-goose chase and we did
24 not engage in that.
25 Q. Thank you.
1 MS. EDGERTON: Nothing further.
2 JUDGE KWON: Very well.
3 Do you have re-examination, Mr. Karadzic.
4 THE ACCUSED: Just indulgence.
5 [Defence counsel confer]
6 Re-examination by Mr. Karadzic:
7 Q. [Interpretation] General, I just have one question. Given what
8 we have heard from the Prosecution, did anything emerge that might have
9 changed the basic conclusions that you draw, especially with regard to
10 responsibility, with regard to deciding which side actually fired the
12 A. I'm not sure I understand the question. Did anything emerge --
13 do you mean since the investigation or during the investigation? If your
14 question is whether or not I can recollect from the time of the
15 investigation anything today that would cause me to come to a different
16 conclusion, the answer would be no.
17 Q. Thank you. Thank you very much. Thank you for having come here
18 to testify.
19 A. You're welcome.
20 JUDGE KWON: Well, that concludes your evidence,
21 General Gauthier. On behalf of the Chamber I'd like to thank you for
22 your coming to The Hague to give it. Now you're free to go.
23 THE WITNESS: Thank you, Your Honour.
24 [The witness withdrew]
25 JUDGE KWON: Could the Chamber move into private session briefly.
1 [Private session]
12 [Open session]
13 JUDGE KWON: Very well. The hearing is now adjourned. Tomorrow
14 we'll resume at 9.00.
15 --- Whereupon the hearing adjourned at 2.44 p.m.,
16 to be reconvened on Wednesday, the 31st day of
17 October, 2012, at 9.00 a.m.