1 Wednesday, 13 April 2005

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 2.20 p.m.

6 JUDGE PARKER: Good afternoon, Mr. Coo. If I could remind you of

7 the affirmation you made at the beginning of your evidence, which still

8 applies.

9 THE WITNESS: Good afternoon, Your Honours. Thank you.

10 JUDGE PARKER: Mr. Harvey.

11 MR. HARVEY: Good afternoon, Your Honours.

12 WITNESS: PHILIP COO [Resumed]

13 Cross-examined by Mr. Harvey: [Continued]

14 Q. Good afternoon, Mr. Coo.

15 A. Good afternoon, Mr. Harvey.

16 MR. HARVEY: Let me try that again.

17 Good afternoon, Your Honours.

18 Q. Good afternoon, Mr. Coo. Do you hear me loud and clear?

19 As we broke yesterday I was attempting to put a page of your

20 testimony in the Milosevic case, which I'm rather hoping you might have

21 before you now but I may be wrong. 10094, we were looking for.

22 A. I think it's on its way.

23 Q. Thank you. Do you have it there or is it still --

24 A. It still seems to be missing from my copy.

25 Q. I am so sorry. We have it in the process of being copied. I

1 think that's -- let me move on until it comes back to us. And if I could

2 turn then -- do you have 10103?

3 A. I do.

4 Q. Good. I had asked you yesterday about your concerns in relation

5 to the arming of the civilian population and as your testimony was there

6 you made this observation, that "there are risks or dangers inherent in

7 arming one ethnic group and disarming another ethnic group when those

8 ethnic groups are mutually hostile."

9 And let me take you also 10104 at line 3. Again, you said, I was

10 pointing out that there was a mutual hostility between the Serbian ethnic

11 groups and the Albanian, or elements of the Albanian ethnic group. And

12 to arm one and disarm the other had risks."

13 Were you there commenting in your analysis that the policy of

14 seeking to disarm Kosovan Albanians and to arm the civilian populations

15 of Serb and other non-Albanian ethnic minorities was a negative move as

16 far as the Serb authorities were concerned?

17 A. I think at most all I could say that [sic] it was a risky move,

18 given the mutual hostility of the two groups. It may have been necessary

19 from their perspective, but it had risks.

20 Q. Well, just take an example that is perhaps closer to my home than

21 yours at least. If you can imagine, for instance, in the early 1970s if

22 the Unionist government in northern Ireland had armed all the Protestants

23 and disarmed all the Catholics, that is not something you would have

24 thought of as being a very smart move.

25 A. I wouldn't. And the situation with local defence in Kosovo is

1 that they were supposed to be part of an official chain of command and

2 trained. And in theory, they should have been disciplined or had some

3 semblance of discipline. Whether they did or not, I can't really say,

4 but that's one difference.

5 Q. I'm sorry. I really am having problems understanding your

6 answer.

7 JUDGE PARKER: Well, if it helps, I didn't have any trouble.

8 MR. HARVEY: It would, certainly, Your Honour.

9 It's maybe that I'm not wearing earphones, so I'm having

10 difficulty hearing the witness. As I read it it makes more sense than it

11 was doing.

12 JUDGE PARKER: I don't think it would be very helpful to explore

13 the examples of other problems, because there are so many distracting

14 elements. It would be better to concentrate on the Balkans.

15 MR. HARVEY: I will come back to rogue elements rather than

16 distracting ones.

17 Q. The state of emergency I want to move to now which at page 36 of

18 yesterday's transcript at line 12 you said that in April -- already by

19 April 1998 "the chief of the General Staff... felt that the situation

20 was sufficiently drastic that it warranted the declaration of a state of

21 emergency." Is that still your testimony?

22 A. Yes, it is.

23 Q. You see -- can we just look at tab 9, which is the document that

24 you were referring to there.

25 THE WITNESS: Your Honours, I don't have the binder.

1 MR. HARVEY:

2 Q. You have that page 03055099?

3 A. Yes, I do.

4 Q. Last paragraph on that page 1A, the situation -- this is the

5 letter of course to Mr. Milosevic that had been written by General

6 Perisic.

7 A. That's correct.

8 Q. And he is drawing to Milosevic's attention a number of negative

9 facts which he numbers 1 through 6 just above that paragraph. Yes?

10 A. Yes.

11 Q. He itemises these, and I'm not going to go through all of them,

12 but there are issues that I'd like to address with you. Firstly, the

13 constant tendency to use the Yugoslav army outside the system's

14 institutions. And when he itemises what he means by that, he says to Mr.

15 Milosevic, 1A, "the situation in Kosovo could have been overcome if a

16 state of emergency had been declared in time on the 20th of April, 1998,

17 when I sent you a proposal in writing."

18 I don't think we have that proposal. Have you seen that?

19 A. I haven't seen the proposal, no.

20 Q. And he continues. "Since you did not accept it, the situation

21 has escalated and MUP representatives and you yourself have asked that

22 the Yugoslav army be deployed. Some small units were directly and

23 indirectly deployed, which is illegal from the point of view of the law,

24 while the repercussions for the state are well-known."

25 Now, what I want to ask you on that is of course the only way

1 that he could use the army legally, other than at the border area to

2 secure the borders of the state, was by the declaration of a state of

3 emergency, wasn't it?

4 A. That's -- that's been a common interpretation of the Serb

5 constitution and law, and whether that's accurate or not I can't say

6 because I'm not an expert on the FRY law. But it certainly appears that

7 the constitution and the law had provisions for use of the army in

8 internal security operations that required the declaration of an

9 extraordinary state.

10 Q. You really couldn't just say "yes" in answer to that question?

11 A. I can't because the constitution isn't clear enough to me.

12 Q. Okay. So if other forces -- sorry, if the army were to be used

13 anywhere else, it was necessary to declare a state of emergency. That's

14 what it comes down to, isn't it?

15 A. That's what it comes down to in some people's interpretation of

16 the constitution, and in particular in this instance General Perisic's.

17 And I presume he has a better understanding of what is legal and what

18 isn't legal than I do.

19 Q. I'm sorry. In your careful researches into the operations of and

20 the command structure of the Yugoslav army, have you encountered contrary

21 interpretations?

22 A. I didn't research this point in depth because that was outside my

23 expertise. It would be delving into interpretations of the Serbian --

24 the FRY constitution and FRY law which I have no expertise in. I've

25 heard from some witnesses that this wasn't illegal.

1 Q. Have you sought legal expertise on this point from the

2 substantial staff available to the OTP?

3 A. I believe the Prosecution in the Milosevic case have. That

4 wasn't part of my mandate as far as my support to that case went.

5 Q. So are you saying you do not know what the answer to the question

6 is?

7 A. Yes, I don't know.

8 Q. Okay. All right. Continue over the page, please, at point B.

9 General Perisic is saying: "In order to implement the conclusions from

10 the session of the VSO command council -- supreme command council of the

11 9th of June, 1998, we requested the government of the Federal Republic of

12 Yugoslavia to ensure the legal conditions."

13 So therefore we have the supreme command council of the army is

14 asking the government to ensure the legal conditions, namely the

15 proclamation of one of the following: A state of emergency or an

16 imminent threat of war and material and financial conditions, which he's

17 also sent an attachment obviously requesting. Correct?

18 A. That's correct.

19 Q. The government of the Federal Republic of Yugoslavia has still

20 not done this, so there's been no movement since April of 1998, and this

21 is now the 23rd of July, 1998. Correct?

22 A. That's correct.

23 Q. Which means that every act of engagement by the VJ in combat

24 operations outside the border area continues to be unlawful and the

25 potential repercussions are unforeseeable. Again with the caveat that

1 you don't know whether it's unlawful or not, this is the general's advice

2 to his president. Right?

3 A. That's correct.

4 Q. Now, outside the border area you would understand to include,

5 among other places, Lapusnik. Correct?

6 A. That's correct.

7 Q. Decani, Rahovec?

8 A. Correct.

9 Q. I'm going to go on down to point 3 on that page where he

10 highlights the fact that, as it appeared to him on the 23rd of July,

11 1998, people who were not members of the army were attempting to command

12 army units. You see that point?

13 A. Yes.

14 Q. He refers to constant aspirations by members of the MUP to have

15 some VJA/VJ units supported to them -- excuse me, subordinated to them,

16 this leads to misunderstandings if the units are not given. And if they

17 are given this respects unauthorised and unprofessional use which has

18 counter-effects, the best examples being Decani and Orahovac, is written

19 there, the Serb names.

20 A. That's correct.

21 Q. In other words, what he's highlighting there was the appalling

22 massacres that had taken place in those locations as being a direct

23 result of unauthorised persons commanding army units. Do you agree?

24 A. I can't agree with that. It's not clear in his --

25 Q. Well, what do you understand him to mean by -- naming those two

1 particular locations?

2 A. I'm not familiar enough with what happened at those locations at

3 that time. He could very well simply be referring to the use of the VJ

4 outside its proper chain of command. I can't extend that interpretation

5 to include allegations by General Perisic that atrocities had been

6 committed by the VJ.

7 Q. Mr. Coo, are you completely unaware of atrocities having been

8 committed at those locations?

9 A. I'm aware of the detail -- I'm not aware of the details. I'm

10 aware of allegations that atrocities were committed at numerous locations

11 in Kosovo by both sides. I didn't make a particular study of these two

12 incidents, particularly 1998.

13 Q. I want to give you an opportunity to reconsider the frankness of

14 that answer, Mr. Coo. You are aware, are you not, that it is at least

15 alleged that an appalling massacre took place in Drenica in March, March

16 the 9th of 1998. The Jashari family. You've heard of that, have you

17 not?

18 A. Yes, I've heard of that.

19 Q. Right. You are area that an appalling massacre is said to have

20 taken place at Rahovec, also that year, are you not?

21 A. I've heard that one did. I haven't seen any details on it.

22 Q. Well, we recognise that you've been frank enough to say that

23 there are limitations to your expertise. But as you look at that line in

24 the third paragraph of the general's letter, what other possible

25 interpretation do you think is to be put on that other than references to

1 massacres by Serbs? Is this so hard for you?

2 THE WITNESS: As I said earlier, Your Honours, the other

3 interpretation is that this is -- General Perisic is pointing out that he

4 had a problem with the illegal use of the VJ, the use of the VJ in

5 internal security operations without a declaration of the state of

6 emergency.

7 There's -- as far as I'm aware, the VJ's involvement in the

8 Prekaz massacre is unclear and I've never been asked to look at that

9 massacre in detail. From my report for this case I was never asked to

10 look at the details of any operations or to determine whether or not the

11 VJ had been involved in massacres. So I can't say from that paragraph

12 what General Perisic is complaining about specifically. I think it would

13 be an unreasonable leap to make to assume that he's talking about Prekaz

14 and Rahovec.

15 MR. HARVEY:

16 Q. Oh, you remember the name Prekaz now do we?

17 A. I've always remembered that name, Your Honours.

18 Q. Splendid. That's an unreasonable leap. Very well.

19 He refers at B to attempts by civilian members of the staff to

20 command the corps, and he continues over the page by pointing out that

21 operations had been planned with -- in cooperation with civilian members

22 of the staff and reported to Sainovic and Minic. Sainovic was who?

23 A. He was a federal deputy prime minister.

24 Q. For what area?

25 A. I'm not sure what his specific function was in the government,

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1 but he was assigned to Kosovo.

2 Q. He was assigned to Kosovo --

3 A. To the joint command.

4 Q. And who was Minic?

5 A. Minic was another SPS official who was assigned to Kosovo by

6 Milosevic.

7 Q. President of the Assembly, was he not?

8 A. As far as I know, yes.

9 Q. And those two were distributing tasks to everyone except the

10 Pristina Corps. And in practice the commander of the Pristina Corps

11 plans what he is ordered to do, which is at the request of Sainovic,

12 Minic, and the MUP. So again, we have a military chain of command that

13 is being totally subverted by nonmilitary personnel; that appears to be

14 the complaint of General Perisic. Correct?

15 A. That's one aspect of General Perisic's complaint, Your Honours.

16 The chain wasn't completely subverted. As many of the VJ documents show,

17 they were still reporting up their chain of command, Pristina Corps

18 reporting to the 3rd army, the 3rd army reporting to the General Staff,

19 and tasks being sent down through the 3rd army to the Pristina Corps.

20 Q. The army still had some control over the army. I'm not

21 suggesting otherwise. The problem is armies are not supposed to be run,

22 even in part, by civilians, are they? You know that.

23 A. That's not quite true. The supreme commander of the army was

24 President Milosevic. The joint command was established by him to

25 coordinate operations in Kosovo.

1 Q. Is that your best answer? You know what I'm talking about. I'm

2 talking about the operational command of army units. Mr. Coo?

3 A. The way the joint command seems to have worked from the documents

4 we have on the joint command, Your Honours, was that the civilian

5 membership of the joint command were there to ensure that the objectives

6 of President Milosevic were achieved in Kosovo. They did this by meeting

7 with the -- among others, the MUP leadership and the VJ leadership in

8 Kosovo. Those commanders, the MUP and the VJ commanders, were the

9 technical experts on the deployment of the VJ and the MUP in Kosovo.

10 They presented -- they were -- Milosevic's aims were relayed to them

11 through the joint command, sometimes by Milosevic. Those aims were

12 interpreted by the VJ and the MUP and eventually became orders.

13 The orders -- the planning and the ordering was done by the MUP

14 and the VJ chains of command. The direction, strategic direction, was

15 being provided by the civilian members of the joint command, but they did

16 not have the technical training to actually command and direct the

17 implementation of -- or the undertaking of military operations.

18 Q. I'm really struggling to understand you here, Mr. Coo. Are you

19 seeking to be a wholesale apologist for the way the VJ conducted its

20 affairs and saying essentially that General Perisic 's concerns were

21 completely unfounded and that everything was done in a proper military

22 fashion? That's the impression I'm getting. I may be the only one in

23 the room with that impression, but help me.

24 A. That's certainly not the impression I'm trying to give, Your

25 Honours. I'm trying to explain how the armed Serb operations were tasked

1 and operated.

2 Q. Was there a difference between how they were meant to function

3 and how they were functioning, from your studies as an expert on military

4 analysis?

5 A. There was with the imposition of the joint command in Kosovo.

6 That joint command -- there were no provisions that I could find in any

7 legislation for a joint command, but there's equally nothing to stop the

8 president from going through the proper procedures to set up a joint

9 command as was done in 2001. And as an example of this elsewhere, the

10 equivalent existed at least at one point in Northern Ireland. It's

11 ensuring that there's civilian oversight of a complicated -- politically

12 complicated issue.

13 Whether Milosevic went through the proper procedures to do this,

14 it appears that he probably didn't. But if I was to be asked to

15 establish conclusively whether laws were violated or the constitution

16 violated, I couldn't do that.

17 Q. Of course you couldn't establish that conclusively, and I'm not

18 suggesting that you should be able to. I shall resist the temptation to

19 visit Northern Ireland again, but I would ask you to come with me this

20 far, Mr. Coo, in agreeing that General Perisic was raising some extremely

21 important questions from any military point of view. Would you not agree

22 with that?

23 A. Yes, I would agree with that.

24 Q. Fine. Then perhaps we can move on. You expressed your concern

25 in the Milosevic trial about the failure by the VJ to investigate

1 apparent violations or alleged violations of international humanitarian

2 law amongst its own staff. Is that correct?

3 A. That's correct.

4 Q. There appeared, as far as you were aware from your extensive

5 studies of the documentation, to be no indication that anybody on the VJ

6 side had been investigated, particularly from the standpoint of the

7 command responsibility for violations of international humanitarian law.

8 Is that correct?

9 A. That's correct.

10 Q. And you were highly critical of that failure.

11 A. I pointed this out. I wouldn't say I was critical.

12 Q. You wouldn't regard that as a point of criticism?

13 A. It is a criticism, yes.

14 Q. Yes, okay.

15 You were also critical, I suggest, of the facts that those who

16 had been in command-responsibility positions at the time when violations

17 of international humanitarian law appeared to be -- have been committed

18 under their command was subsequently promoted to higher positions. You

19 found that a cause for concern. Correct?

20 A. Correct.

21 Q. Indeed, at one point in your testimony you noted that the VJ's

22 book from 2001 -- what book were you referring to there, do you recall?

23 A. This was a book published by the VJ publishing house in 2001. I

24 don't remember the full title, but it had to do with whether or not the

25 VJ adhered to the -- to international humanitarian law in 1998 and 1999.

1 Q. That was essentially a book brought out by the VJ aimed at

2 demonstrating that it had, by and large at least, adhered to

3 international humanitarian law, about which of course opinions may

4 differ, but that was the purpose of the book.

5 A. It would seem that that's what it was, yes.

6 Q. And that book did indicate - and you pointed this out in your

7 testimony - that mass graves had been found, that crimes had been

8 committed, but that no investigations had taken place into those with

9 command responsibility. Correct?

10 A. That's correct.

11 Q. Have you -- turning for a moment to MUP. Have you seen evidence

12 that those responsible for commanding MUP units were responsible for

13 financial expenditure outside the law? And I use a phrase used by

14 General Perisic in his complaint to Mr. Milosevic: "financial

15 expenditure outside the law by those responsible for commanding MUP

16 units."

17 Have you seen any evidence of that sort?

18 A. I haven't. No, I didn't look into that.

19 Q. Did you look into the operations of MUP in Ferizaj, for instance?

20 A. No, I didn't.

21 Q. No. Has anyone asked you to ignore concerns of that sort?

22 A. I've never been asked to ignore anything.

23 Q. You would agree, would you not, that from much of the material

24 that you have presented in your various tabs to the Tribunal, there was a

25 consistent media propaganda campaign in the Serb media against the KLA

1 calling in terms for the liquidation of each and every member of the KLA.

2 A. There was an anti-KLA propaganda or an anti-KLA message in the

3 media. I don't specifically recall calls for liquidation.

4 Q. Politika, p-o-l-i-t-i-k-a, was a Serb state-run newspaper. Is

5 that correct?

6 A. That's correct.

7 Q. Would you look up tab 42 for us for a moment, please.

8 MR. NICHOLLS: Your Honour, if I could just point out for the

9 record, tab 42 is one of the additional documents that I submitted

10 yesterday. It was not part of the body or supporting material of the

11 report.

12 MR. HARVEY: Thank you very much. P237 I understand is the --

13 thank you very much - reference there.

14 JUDGE PARKER: Do you want the exhibit number?

15 MR. HARVEY: P237 I understand is the exhibit number.

16 JUDGE PARKER: Yes, that's correct.

17 MR. HARVEY: Thank you, Your Honour.

18 Q. And I'm looking at the second page of that exhibit R025-1458.

19 And do you see at 3.11, go to the very bottom of that paragraph, you see

20 the word "Politika." Correct?

21 A. Correct.

22 Q. This would appear to refer to an article in the state-run paper

23 quoting the Serbian Radical Party. "It is necessary to exterminate

24 Albanian terrorists." And if you look just down, a little bit below

25 that, SRS issued a press statement indicating that "it demands that the

1 competent state authorities of the Republic of Serbia as well as the VJ

2 resort to a fierce action so as to exterminate and liquidate Albanian

3 terrorist gangs and prevent the infiltration -- armed Albanian gangs from

4 Albania."

5 It goes on in like terms. Just using that as one example you

6 will recall that throughout the media reports cited in the various ECMM

7 documents that you've referred to, there is a universal use of the word

8 "terrorist" always to -- accompanying the word "Albanian." Would you

9 agree with that as well?

10 A. Yes.

11 Q. So we have an atmosphere, would you agree, in which the constant

12 propaganda to which the armed forces occupying Kosovo were subject,

13 assuming they read newspapers, referred constantly in derogatory terms to

14 Kosovar Albanians. Would you agree with that?

15 A. Based on the very limited media information I've read, yes.

16 Q. And would you also agree from your reading of the extensive

17 documentation that we have from the various generals and other military

18 commanders that are annexed to your report, that there is a constant use

19 of the word "Siptar" to describe Kosovar Albanians? Correct?

20 A. It's a common word, yes.

21 Q. And you are aware that not only is it common, it is recorded by

22 Kosovan Albanians as a highly derogatory term?

23 A. All I've seen is that in the translations we get from our

24 translation service is that they put "derogatory" in brackets beside it.

25 I've also heard people say that it's actually not that derogatory. So I

1 can't really say if it is or not. I don't know how the Kosovar Albanians

2 regard that term. I've never asked one.

3 Q. You are aware at the very least that there is controversy at the

4 use of that term. Correct?

5 A. Correct.

6 Q. And again if I can make a very quick excursion to Northern

7 Ireland for one brief minute, you would agree that it would be wholly

8 inappropriate for a British general stationed in northern Ireland to be

9 writing to his subordinates or his superiors about Paddies or Micks.

10 A. I agree.

11 Q. It's not in other words -- the word "Siptar" is not something you

12 think appropriate, if there is a derogatory interpretation, to be used by

13 someone of the rank of general?

14 A. I'd agree, if it is a derogatory term.

15 Q. Thank you. I would like to move with you to the KLA itself and

16 of course immediately -- please understand that I accept your statement

17 yesterday that you have never been asked to review the command structure

18 of the KLA and that therefore I assume you've never seen any specific

19 evidence that the KLA had any command structure in the conventional

20 military sense, as you understand a command structure to be. Am I right

21 in that assumption?

22 A. I've read some documents that describe the structure of the KLA,

23 including the General Staff, the zone system, the brigades. I haven't

24 made a point of studying it, so I can't really comment as an expert on

25 it.

1 Q. Maybe you can tell us what documents you have read.

2 A. I've read the Human Rights Watch book on Kosovo.

3 Q. Is there a description of the command structure of the KLA in

4 that?

5 A. There is, to my recollection. The -- I've also read - and I

6 don't remember the specific documents - but there have been some internal

7 documents in the OTP produced on the structure of the KLA.

8 Q. Well, if there are any of those that you think might be helpful

9 to us, I am sure you will find a way of getting them to us.

10 Now, did you hear or read the evidence of Colonel Crosland to

11 this Tribunal?

12 A. I'm generally aware of it, yes.

13 Q. No, my question was did you hear or read it?

14 A. I have read some of it, yes. And I heard some of it.

15 Q. It only lasted two days, but you've heard and read some of it.

16 Would you agree that Colonel Crosland, who is obviously a man of

17 considerable military experience and considerable -- well, let's stop

18 there, considerable military experience. Yes?

19 A. I would agree.

20 Q. That he has, by comparison with most at least, considerable

21 on-the-ground experience of Kosovo at the material time, the time

22 material to this case?

23 A. Yes, I would agree.

24 Q. And would you in general terms be inclined therefore to defer to

25 his views and his experience?

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1 A. Generally, yes, I would.

2 Q. Indeed is there any specific way in which you would disagree with

3 what you have heard or what you have read about his testimony to this

4 Tribunal?

5 A. There's nothing specific that I can think of at the moment.

6 Q. Well, is there anything generally?

7 A. There's nothing generally I can --

8 Q. Okay. Nothing generally, nothing specific. Therefore I assume

9 nothing. I think you have already accepted that KLA communiques, some of

10 which you have exhibited, were essentially PR documents. Correct?

11 A. That was probably their main function. What I derived from them

12 was descriptions of some of the operations that took place.

13 Q. Their primary purpose being to boost morale within the KLA. Yes?

14 A. I suspect that was a purpose, yes.

15 Q. And also to trumpet the strength of the KLA to the wider world?

16 A. Yes.

17 Q. And of course there is a considerable risk, is there not, in

18 accepting documents that have that purpose at their face value?

19 A. There is, and I at no point accepted them at face value.

20 Q. Thank you. And I thought we were clear on that.

21 Certainly those communiques do not constitute anything that you

22 would regard as military orders of the type that you would expect to see

23 emanating from the high command of an army?

24 A. No, they're not orders.

25 Q. No. Looking at the issue of military command structure, would

1 you agree that -- with the following as a reasonable definition of

2 military command: "One, the ability to give and follow orders in a

3 command framework where there is some system with an established legal or

4 lawful basis to ensure that these orders will be obeyed."

5 Would you agree with that -- that part of that definition of

6 military command? I'm not saying it's exhaustive, but would you agree

7 that that is partial definition?

8 A. Yes, that's a partial definition.

9 Q. Would you agree further that there should also be some system of

10 lawfully removing someone from command if other commanders recognise that

11 their orders are not being obeyed or are not lawful?

12 A. Not necessarily. You can command a military or a military-type

13 unit without a legal basis. You can remove people from units without

14 being backed up by a law.

15 Q. Well, for a command structure, there presumably has to be some

16 system of removing someone from command. Correct?

17 A. Yes, there should be a system; whether it's legally based or not

18 is a different question.

19 Q. And when we talk about a system, a command structure, whether

20 it's within the law of the country in which its operating or not, it has

21 to have its own internal law in order to be understood and to have

22 effect. Would you agree with that?

23 A. I think internal regulations. I don't think militaries can

24 necessarily set established laws.

25 Q. Fine. Internal regulations I'm quite comfortable with. And that

1 these have to be clearly understood or understandable to those who are

2 required to give and receive those orders?

3 A. They should be, yes.

4 Q. Have you come across anywhere any evidence that any person in the

5 KLA demonstrated this command capacity during the time frame of this

6 indictment?

7 A. I haven't, but I haven't looked at that.

8 Q. Okay. Would you agree that the mere fact that a group calls

9 itself an army doesn't necessarily give it the standing of an army in

10 traditional military terms?

11 A. That's correct.

12 Q. Would you agree that the fact that that army promulgates a rule

13 book doesn't necessarily imply that there is the authority to enforce

14 those rules?

15 A. That's correct.

16 Q. In your own testimony in Milosevic you laid emphasis on the

17 importance of continuity of command, meaning both the reporting upwards

18 chain of command and also you gave as an example the importance of

19 ensuring measures to address the possibility of a commander being killed

20 in action or otherwise placed incapacitated.

21 MR. NICHOLLS: Page reference, please.

22 MR. HARVEY: I was afraid you were going to ask for that, and

23 give me a moment, please. It's one that I did have flagged.

24 Will you allow me to come back to you on that, please? First of

25 all, could I ask the witness.

1 Q. Do you remember, Mr. Coo, giving that as your evidence that there

2 has to be an upwards and downwards chain of command?

3 A. I do remember saying that, yes.

4 Q. Thank you. And also the importance of ensuring that there is a

5 basis for replacing a commander who is either killed or placed hors de

6 combat?

7 A. That's correct.

8 Q. I'm sorry, was there an answer?

9 A. I said that's correct.

10 Q. Would you look for a second at tab 43. What number that? Do we

11 know? P238 I'm told. Do you have that?

12 A. Yes, I do.

13 Q. If you just turn to the second page, R0251452. And if you look

14 under Kosovo at the bottom, Regional Items, Kosovo. Point 5. Pec. TM,

15 that's the mobile team, is it?

16 A. I think it is, yes.

17 Q. Visited -- or it might be an individual. I'm not sure. Anyway,

18 "visited the UCK village of" -- I'm sorry, I can't read it. Anyway it's

19 a small village, "population 4318, and met with the recently elected

20 military UCK leader of the village."

21 Now, how many armies in your experience elect their commanders?

22 A. I'm not aware of any that do it that way.

23 Q. What we're dealing with here essentially, would you agree,

24 appears to be a group of villagers who've said to one of their number,

25 Would you mind taking charge? Would you agree with that?

1 A. I can't. That's one implication, but it's sufficiently vague

2 that it -- it's not clear what procedures they went through precisely to

3 appoint him to that position. They use the term "elected," but how they

4 did it I don't know.

5 Q. The point makes itself. I'm grateful.

6 I'm told the page reference that I had been seeking was 9988.

7 And yes, lines 1 through 14 detail what you -- what you were

8 saying is important in relation to continuity in military operations. If

9 you just want to peruse that quickly and make sure I haven't misstated

10 that in any way.

11 A. Yes, I'd still agree with that.

12 Q. Thank you. You may recall from what you heard or read of Colonel

13 Crosland's evidence that he several times made the point that in the time

14 frame we are considering, the KLA was essentially very much a fledgling

15 movement. Have you seen anything that causes you to disagree with that

16 assessment?

17 A. I can't really comment on that. I don't know enough about the

18 background or the setup of the KLA to comment.

19 Q. That's fair enough. He gave his opinion on what he believed the

20 Serb thought process was at the time, and the reference to this - I'm

21 afraid I don't have copies available - is at Day 19 -- excuse me, yes,

22 Day 19, pages 57 through 58. In the context of control by the Serbs and

23 the attempts to exercise control he said that the Serb thought process

24 was: "We'll blitzkrieg the area and drive the civilian population out of

25 it in and attempt to try and control or militarily control the area by

1 fear rather than by any proper strategic thought."

2 Now, would you first of all agree that that appeared to be the

3 mind-set or the modus operandi of the VJ and MUP forces in such of their

4 campaign in 1998, from the documents you've seen?

5 A. I would agree that one outcome of the operations conducted by the

6 VJ and MUP was the civilian population being driven out and military

7 control made easier to establish as a result. But whether there was any

8 absence -- whether there was any strategic thought or not I can't say. I

9 think that although -- although I should remark that the summer

10 offensive, the establishment of the joint command and the organisation

11 required to conduct the summer offensive in 1998 had to involvement a

12 great deal of strategic thought.

13 Q. Now, as far as the numbers of the KLA in the time frame that

14 we're considering, as far as they're concerned -- could we have a look at

15 tab 10, please. This is the letter by General Pavkovic to the commander

16 of the 3rd army in which he asserts that - and I'm looking at the first

17 page, point 1, the fourth paragraph, the third line - he says: "The

18 terrorist organisation has managed in a relatively short time to mobilise

19 respectable forces, numbering at this time 3.500 and 4.500 men, armed and

20 trained for armed raids and guerrilla operations."

21 Now, that is a letter dated the 13th of May, 1998. If we could

22 go to your report at paragraph 45. You see three lines from the bottom

23 -- do you have that -- sorry, paragraph 45. It's page 14 of your report.

24 A. I've got that.

25 Q. You have that there. "By mid-May about 5.000 VJ personnel had

1 been assigned to the conflict against -- an estimated KLA strength of

2 3.500 to 4.500." And you reference that document.

3 Now, you appear to accept that unquestioningly. Why is that, Mr.

4 Coo, that figure of 3.500 to 4.500?

5 A. I wouldn't say it's accepted unquestioningly. I put in

6 "estimated." The purpose of this -- the focus of this was more on the

7 strength of the VJ, but I believe that the VJ would have come to that

8 figure from its own intelligence and I've got no basis to counter it. I

9 can't really agree with it or disagree with it.

10 Q. But you state it as fact, though.

11 MR. NICHOLLS: Your Honour, I'm going to object to that. The

12 fact stated is that the VJ in the document estimated the force of that

13 level.

14 MR. HARVEY:

15 Q. Well, I'm sorry, as I read that, you say as fact --

16 JUDGE PARKER: I don't think there's any point in debating the

17 argument about what is thought or not thought from there. What is stated

18 can be put to the witness and his comments received on it, and I think

19 there will be no difficulty at all in that being done, Mr. Harvey.

20 MR. HARVEY: I think I can just about manage that, Your Honour.

21 Q. This is a figure that you have not cross-checked with any other

22 analysis. Am I right?

23 A. I've seen other figures and, for example, I'm aware of Colonel

24 Crosland's much lower figure. All I can say is that the KLA would have

25 had to have had a sizeable force to be able to gain control and retain

1 control of 30 per cent of the Kosovo territory.

2 Q. Well, you're jumping ahead of me, but I'll catch up with you,

3 don't worry. You would agree as a matter of military history and

4 experience that a small guerrilla force in -- particularly in mountainous

5 or difficult territory can hold down a very, very substantial army and

6 prevent that army from exercising its own control or make it at least

7 extremely difficult. You would agree with that?

8 A. That's true. The force ratios for insurgent forces are

9 different.

10 Q. And I don't know if you recall Colonel Crosland's testimony that

11 having gone with KLA members from Rahovec to Malisevo, his estimate of

12 their numbers was so low that he considered he could take them out with

13 50 good men. Do you remember that?

14 A. I remember that, and I now recall that that's one area where I

15 questioned his testimony.

16 Q. He was there; you weren't. On what basis do you question his

17 testimony?

18 A. Well, I would like to know is the -- what he's considering the

19 KLA to comprise when he quotes that figure, whether that -- whether he's

20 including the village-defence aspect of the KLA or whether he's just

21 considering simply the full-time cadre.

22 Q. All right. Then are you aware of General Wesley Clark's

23 testimony in the Milosevic case? Did you review that?

24 A. I'm aware of it; I didn't review it.

25 MR. HARVEY: Maybe that can be made available to all the parties.

1 It's 30389 -- or do I have those? I think I probably have those.

2 [Trial Chamber confers]

3 [Defence counsel confer]

4 MR. HARVEY: Mr. Usher -- I think the -- the interpreters need

5 copies. Thank you. I'm sorry. I thought we had enough.

6 While we're waiting, just if you have a look at pages 3, 4, 5,

7 and 6, those will be the ones most relevant to what we're going to

8 discuss.

9 The interpreters now have copies.

10 Q. Look first of all at General Wesley Clark's testimony 30389,

11 lines 1 through 16. This concerned his meeting in October 1998 with

12 General Djordjevic. If you bear that date in mind, would you, October

13 1998.

14 "Q. In the course of your discussion with Djordjevic and in the

15 marking of the map, was it possible to count the number of alleged KLA

16 people concerning Djordjevic?

17 "A. Yes, we added up these numbers and they totalled 410 KLA,

18 according to Djordjevic's analysis."

19 Let me just ask you this: Who was General Djordjevic in October

20 of 1998?

21 A. General Djordjevic was the head of the public security sector of

22 the MUP.

23 Q. "Q. Did you raise that with him; and if so tell us what he said.

24 "A. Well, I certainly did. I said that you've forced -- words

25 to the effect you've forced 350.000, 400.000 people out of their homes;

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1 you're trying to destroy the province to get at 400 people. He said, 'we

2 were within two weeks of killing them all. Why did you stop us?' And I

3 said, 'because you're targeting a civilian population and it's creating a

4 humanitarian catastrophe for your own people.'"

5 Now, that figure, the 410, was that something you were aware of?

6 A. Only through General Wesley Clark's testimony.

7 Q. Did you double-check that with MUP sources?

8 A. No, it was never a requirement to. I was looking at 1999

9 primarily.

10 Q. Okay. Over the page we have Lord Paddy Ashdown's visit in late

11 September of 1998. And here he is being cross-examined by Mr. Milosevic.

12 And he's giving his views, and I'm putting this to you so that you can

13 give us yours when you've heard this. At line 1, page 2440.

14 "Mr. Milosevic, it may help if I were able to explain that my

15 view at the time was that there were, in effect, three KLAs. There was a

16 KLA which was a village defence force, little more. I suspect that Mr.

17 Rugova did have effectively control - and this is an opinion, no more -

18 over what you might call the Home Guard elements of the KLA. I suspect

19 that this was predominantly the case in rural areas."

20 Let me pause there. Does the expression "Home Guard elements"

21 carry any recognition to you or is that an English term?

22 A. I know what it means.

23 Q. And what does it mean to you?

24 A. It's essentially a local defence concept, units that are

25 responsible primarily for defending their immediate area.

1 Q. Okay. Thank you. Let's continue.

2 "There was a second KLA, which was probably the KLA which I saw

3 more clearly in the Bajram Curri area, probably much better organised

4 politically, over whom, in my view, if Mr. Rugova had control, it was a

5 diminishing control; if you like, the radicalised KLA.

6 "Then there was a third KLA, which was known as FARK - and I have

7 no doubt you're aware of them - who were of a different political

8 persuasion, and the control lines from them, it seemed to me, ran back to

9 Mr. Sali Berisha."

10 So -- let me just finish it off then.

11 "Now, if you -- those are opinions, judgements. I can't prove

12 any of them, but that was what I said. And in my view, Mr. Rugova had a

13 good control over the LDK elements in the countryside and therefore of

14 the Home Guard elements of the KLA. We used 'KLA' as a - I'm sure you

15 did too - as a sort of umbrella term within which, I think, several

16 organisations lived."

17 Now again, reminding you he's talking substantially there of a

18 visit in late September 1998. Were you, first of all, aware of Lord

19 Ashdown's theory that there were more than one KLAs in operation?

20 A. Yes, I am, from his testimony.

21 Q. And again, have you seen any reason to disagree with that

22 assessment?

23 A. Again, I haven't looked at this, so I haven't seen any documents

24 that would allow me to disagree. I would only say that Lord Ashdown was

25 in Kosovo for a very brief tour. I presume he got most of his

1 information from Colonel Crosland on the KLA structure. How many of it

2 he remembered, I don't know, but clearly he remembered some. His

3 description of it broken down into these elements don't --

4 Q. But again --

5 A. -- mean that there weren't some command and control links between

6 the different elements; he hasn't ruled that out.

7 Q. Neither has he ruled it in?

8 A. Correct.

9 Q. Essentially again, I think you're recognising that the expert in

10 this field is Colonel Crosland rather than yourself?

11 A. Colonel Crosland does know more about the KLA structure than I

12 do.

13 If I could just comment, Your Honours, on General Clark's

14 testimony briefly. There's one caution I would like to throw in. This

15 discussion took place with General Djordjevic in 1998 which was after the

16 summer offensive when it seems that the VJ - and this is corroborated by

17 a KLA communique which is in my report - the VJ and the MUP were

18 successful in largely crushing the KLA. So I have to wonder whether the

19 410 KLA marked on the map in October of 1998 was the current size of the

20 KLA and not the size during the summer offensive. I can't say that for

21 certain, but that's just a concern.

22 Q. So is it your evidence that the Serb offensive must have resulted

23 in wiping out 3.000 to 4.000 KLA members between May of 1998 and October

24 of 1998. Is that your evidence?

25 A. I don't know. The VJ/MUP offensive seems to have been deemed a

1 success, and the KLA communique in August 1998 where they describe their

2 tactical retreat I think it, was tends to support that. I don't know how

3 many were killed.

4 Q. May I just remind you, in case we all lose sight of it, that your

5 report to this Tribunal at page 1 of that report says under the heading

6 "Scope of the Report," "this report examines the nature of the armed

7 conflict in Kosovo during the first eight months of 1998."

8 Isn't it the fact from what you're saying that that's the last

9 thing it does?

10 A. On the contrary. It certainly isn't an examination or a

11 blow-by-blow account of the conflict between the KLA and the MUP forces

12 because I didn't -- the Serb forces because I didn't have that

13 information at hand. But it is one description using a variety of

14 sources of what took place in Kosovo.

15 Q. Are you aware of Lord Ashdown's description of the KLA's

16 positions as "very rudimentary, pathetically prepared military positions,

17 all the signs of people who have got or have had no military training"?

18 A. I'm familiar with that comment, yes.

19 Q. Would you disagree with it?

20 A. I can't say because I haven't looked at that information.

21 Q. See, you've described your expert report to this Tribunal as -

22 and I'm looking at the screen now - "one description using a variety of

23 sources of what took place in Kosovo."

24 Would you agree that your description is based on a very

25 selective variety of sources?

1 A. It's based on certain sources and I wasn't able to consider

2 witness testimony such as General Ashdown -- Lord Ashdown's testimony.

3 Q. I'm sorry. You're full-time employed here. Correct?

4 A. That's correct.

5 Q. You have been the head of MAT since when?

6 A. Since August 2004.

7 Q. Since August?

8 A. 2004.

9 Q. Thank you. You have 18 people working under you. Yes?

10 A. That's correct.

11 Q. You filed your report or analysis on the 2nd of August, 2004, in

12 this case. Yes?

13 A. That's correct.

14 Q. Since that date have you kept under review any questions that may

15 have arisen in this or any other case that might affect the validity or

16 content of any aspect of this report?

17 A. I haven't been able to follow this case closely.

18 Q. That wasn't my question. Have you kept under review any

19 questions that may have arisen in this or any other case that might

20 affect the validity or content of any aspect of this report?

21 A. No, I haven't. That hasn't been a specific function.

22 Q. Before coming here yesterday to testify, did you spend any time

23 at all in preparation of your testimony with counsel for OTP?

24 A. Yes, I did.

25 Q. How much time did you spend?

1 A. Approximately three hours.

2 Q. That was just with counsel?

3 A. That's correct.

4 Q. Aside from spending approximately three hours with counsel, did

5 you take time on your own to review the report yourself?

6 A. Yes, I did.

7 Q. In doing so, did it occur to you to check to see whether any

8 items or matters of concern that might affect your report may have arisen

9 since you wrote that report?

10 A. I listened to most of Colonel Crosland's testimony because I

11 thought that would be most relevant to the report, since I understood

12 that he would have the best insight into the conflict at that time. In

13 addition, I continued my function as an analyst on Kosovo and I was

14 working primarily on the Serb cases, but in that process I look at a lot

15 of documents and any new documents that come in. And if any had affected

16 the Limaj report, I would have amended the report.

17 Q. Do I assume from that last answer that there were no documents

18 that came to your attention working on any of the Serb cases which

19 affected your report in this case?

20 A. That's correct.

21 Q. Well, I've asked you so far about your efforts to check matters

22 that have arisen since your report on 2nd of August last year. In

23 writing your report did you take into consideration what your own

24 testimony had been in September of 2002 --

25 A. I did --

1 Q. -- in the Milosevic case?

2 A. Yes, I did, Your Honours.

3 Q. Did you take into consideration what Colonel Crosland's testimony

4 had been in the Milosevic case?

5 A. Yes, I did.

6 Q. Are you sure?

7 A. I read his Milosevic testimony, yes.

8 Q. Did you find it uninteresting, irrelevant, unreliable?

9 A. No, I didn't.

10 Q. Is there any reason why you haven't made any reference to his

11 expertise in this field in your report?

12 A. Because I intentionally did not include witness testimony or

13 witness statements in my report. As was done in my Milosevic report; in

14 that case the Trial Chamber rejected all references to witness testimony.

15 And as military analysts we prefer not to rely on witness testimony. Our

16 reports are written primarily on documentary evidence. I was also asked

17 by the trial team for this case not to include witness testimony in my

18 report.

19 Q. Were you asked by the trial team in this case not to speak to any

20 experts in this field?

21 A. No, I wasn't.

22 Q. Would that not be a normal thing for you to do as a military

23 analyst preparing an expert report?

24 A. I'm not aware of any experts with whom I could have spoken with

25 about this. So the limitations in my report, the scope of my report, is

1 quite clear I think. I relied on roughly four categories of documents to

2 describe some aspects of the armed conflict in 1998. I couldn't reach

3 any conclusive opinions on how the -- how the armed conflict unfolded in

4 detail, for instance on how many men the KLA lost, how many men the Serb

5 forces lost, or where specifically the front lines were, and what sort of

6 bunkers the KLA set up. I didn't get into that sort of detail because I

7 had one month to write my report.

8 Q. Well, you've drawn on voluminous resources produced by the VJ,

9 and some of those resources actually do quote figures for numbers of

10 people believed to have been killed in the KLA, numbers of people killed

11 in the VJ and the Serb MUP forces.

12 A. That's true. But again, if I was to get into a report that was

13 describing how combat operations unfolded, what occurred during the

14 operations, who initiated them, what weapons were used, where they took

15 place and how long they lasted, that would require probably at least a

16 year. Much of the documentation on that presumably hasn't been

17 translated for a start. My Milosevic report took two years to write.

18 Q. See I don't want to spend anymore time on this point; I'm sure

19 everybody will be relieved to hear that. But just to crystallise it, the

20 whole point here is that you have in your report not given any indication

21 that there are other radically different and on the face of it reliable

22 opinions as to the size of the KLA at the time that we're all talking

23 about. And that is a very important issue when we're looking at whether

24 or not there is a command structure and what the nature of that

25 structure, if any, would be. Do you not agree?

1 A. The report scope was not to go into the structure of the KLA or

2 the means and mechanisms of commanding the KLA. I identified some

3 references in the documentation I reviewed that suggested that the KLA

4 did have some semblance of a central structure and the ability to

5 coordinate operations, but I didn't go into detail on its command

6 structure. No, I didn't.

7 Q. Because you had no information on which to do so, did you?

8 A. The information was available. I didn't have the time nor the

9 direction to look into that. I believe that information would be handled

10 by other witnesses.

11 MR. HARVEY: Your Honours, I think that's a -- if not a

12 convenient answer, a convenient moment.

13 JUDGE PARKER: The use of the word "moment" encourages me. How

14 many more moments do you think there might be?

15 MR. HARVEY: I have some questioning of some moment to come. I

16 would -- we will certainly finish within the next session. I will

17 certainly finish within the next session. I would think probably

18 three-quarters of an hour to one hour. I hope you won't hold me to that,

19 but I will hope to hold myself to it.

20 JUDGE PARKER: Thank you, Mr. Harvey.

21 We will resume at 5 minutes past 4.00.

22 --- Recess taken at 3.44 p.m.

23 --- On resuming at 4.08 p.m.

24 JUDGE PARKER: Yes, Mr. Harvey.

25 MR. HARVEY:

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1 Q. [Microphone not activated]

2 Yesterday, you may --

3 JUDGE PARKER: Mr. Harvey, red light.

4 MR. HARVEY: I'm sorry. I've entered the red light district

5 again. Sorry.

6 Q. Yesterday you may recall I asked you at page 76, line 1 of

7 yesterday's transcript about Frenki's boys at the bottom of page 75 and

8 the JSO. You gave this answer:

9 "A. Sorry, it relates to Frenki Simatovic. Whether it's Frenki

10 Simatovic of the JSO as I have put to you isn't clear. He has a role

11 within the ministry, a department within the ministry. I'm not sure

12 whether he was a member of the JSO or not. I'm don't think he was."

13 Now, if you could take, please, the documents that were handed to

14 you a little earlier that started with page 10084. You've got that group

15 of documents, Coo 10084 it says on the first page. And in fact I want

16 the last page of that set of documents which is document K022-7617. Do

17 you have that?

18 A. I've got that, yes.

19 Q. That I believe -- I think you can confirm was part of an appendix

20 to the report that you provided for the Milosevic trial. Am I right in

21 thinking that?

22 A. That's correct.

23 Q. And do we see there the same Simatovic, Frenki, and under

24 remarks: "Responsible for special units of the" -- I'm sorry, I'm

25 looking at the wrong line. Under "Remarks," "Authority over the JSO."

1 Correct?

2 A. That's correct.

3 Q. And is that your understanding -- does that at least refresh your

4 memory now that Frenki Simatovic was indeed somebody who had

5 responsibility for the JSO?

6 A. The evidence suggests he did.

7 MR. NICHOLLS: Just to be clear, Your Honour, yesterday the

8 question was whether or not this person was a member of the JSO.

9 MR. HARVEY: Well, the precise question was this --

10 JUDGE PARKER: Just carry on, Mr. Harvey, don't be distracted by

11 profound statements.

12 MR. HARVEY: I'll try very hard not to rise to that bait.

13 Q. Mr. Coo, I said to you yesterday I would come back to the

14 anti-terrorist units, and I want to do so quite briefly by reference to

15 some testimony you yourself gave at page 10082 in Milosevic -- which I

16 hope you have to hand. Is that there? That should be what you were

17 given yesterday, not in today's bundle. I'm sorry.

18 A. It doesn't seem to be in yesterday's. I've got 10084 and

19 preceding that is 10038.

20 Q. I see I've done it again. I apologise, but let me read this to

21 you and see if it does help your refresh your recollection. It begins at

22 the bottom of 10081. You had been asked about whether you came across

23 irregularities at brigade level in army conduct and you gave this answer:

24 "A. Irregularities concerning what actually happened on the

25 ground were not within the general scope of the report. Where I came

1 across information related to some of our indictment issues, that was put

2 into the report and no conclusions were drawn from that by me or whether

3 or not a crime" -- I'm sorry, "on whether or not a crime was committed."

4 And this is the passage I want to focus on: "The closest I came

5 to commenting or concluding of anything that might be a irregularity was

6 the contents of a MUP report from 1998 where they -- it was an operations

7 order where they specified that the attack should be made" -- sorry,

8 "should make use of Chinese ammunition, which to me seemed strange,

9 specifying the ammunition by origin in an operations order."

10 Do you as you sit here today recall that testimony and recall the

11 information that you had come across relating to an order that Chinese

12 ammunition should be used?

13 A. I do recall that. The report was actually 1999.

14 Q. And having looked again, you have found a document which I think

15 is 0302-8516 in translation, and again if I can read briefly from that,

16 that was kindly provided to me by Mr. Nicholls after I raised this

17 question. "On 29th January, 1999, the platoon leader and the squad

18 leaders of PJP, special police units, together with the sector leader

19 from the Celopek PO shall make a reconnaissance of the area and the

20 ambush locations. The platoon leader of PJP shall provide grenade

21 launchers and ammunition manufactured in China, while immediately prior

22 to the execution of the task he shall inspect the forces and acquaint

23 them with the plan and specific tasks."

24 Say all of that to say. Chinese ammunition was generally

25 associated at that time with the KLA. Is that not correct?

1 A. That's correct.

2 Q. And there was your reasonable conclusion that instructing a unit

3 of the special forces of the MUP to use Chinese ammunition was an order

4 to set up an ambush and a killing that could be used as black propaganda

5 for blaming on the KLA?

6 A. I don't recall precisely how I phrased it. And I think I phrased

7 it as a possibility rather than a conclusion.

8 Q. No, I'm not should going that you actually phrased it one way or

9 the other, but I'm ask you as you sit here today: That is the reasonable

10 inference, isn't it?

11 A. It's one inference.

12 Q. Okay. When we -- can I just ask you, as part of your job - and I

13 did ask you yesterday how you do your job and what is basis is on which

14 you do your research - you have told us, and I paraphrase, that part of

15 your job is to look for evidence that can be used to bring indictments or

16 support indictments that have already been brought. That's right, isn't

17 it?

18 A. That's correct.

19 Q. So if you are going through evidence that you think may be

20 helpful -- if you come across evidence that may be helpful in a

21 particular case, you will take it to whoever the Prosecution team is

22 handling that case and say, by the way, have you guys seen this, for

23 example?

24 A. We do do that, yes.

25 Q. Did you ever come across evidence that a police team working with

1 the SAJ who had been responsible for the massacre of the Jashari family

2 were also involved in supplying Chinese weaponry and UKA -- sorry, UCK or

3 KLA uniforms to, shall we say, nonconventional forces for use in

4 assassinations?

5 A. No, I don't recall any information like that.

6 Q. Did you never become aware of the witness given the protective

7 identity pseudonym of K5 in the Milosevic case?

8 A. I'd have to see his testimony to be reminded.

9 Q. Well, I have copies of his witness statement which I'm happy to

10 make available to you and the rest of the parties, and I don't wish to

11 dwell lengthily on it. But perhaps if everyone could be shown that

12 briefly, you can at least identify from the content whether it's

13 something that you've come across before. Of course I do not know the

14 identity of K5 and I don't know whether anybody else in court may be able

15 to help you on that.

16 Just very briefly, the date of the statement is the 27th of

17 October, 2000, and in summary it concerns how this particular ethnic

18 Albanian police informant was recruited and he gives very remarkable

19 detail about how he was allegedly recruited by the chief of the Ferizaj

20 police station to participate in bombings, grenade attacks, and killings

21 that could later be blamed on the KLA and so that those killed by this

22 unit could be defamed as spies. That's a very brief summary.

23 A. I have a vague recollection of that.

24 Q. You have a very vague recollection of that.

25 A. Yes.

1 Q. Now, did -- does your vague recollection assist you as to whether

2 before coming into court to testify yesterday you were aware that there

3 was a witness who was held forward to this Tribunal, to another Trial

4 Chamber of this Tribunal, as being a witness of truth for the Prosecution

5 who maintained that the Serb police special forces were deliberately

6 carrying out acts of this nature in order to discredit the KLA as early

7 as March of 1998?

8 A. No, that wasn't information that I recalled when I was writing my

9 report.

10 Q. Well, when you were writing your report I asked you before you

11 came in to testify yesterday. You have indicated just now that you have

12 a vague recollection of this witness's testimony, at least of a statement

13 that we have assigned 27th of October, the year 2000. What I'm asking

14 you is: Did you have that vague recollection before you came into court

15 yesterday?

16 A. No, I didn't.

17 Q. You obviously have seen this statement at some time in the past.

18 Correct?

19 A. A long time ago, yes.

20 Q. Do you know how long ago?

21 A. I don't remember, no.

22 Q. Before you wrote your report?

23 A. Probably, yes.

24 Q. Are you aware that this is a witness regarded by the Prosecution

25 as a witness of truth?

1 A. I presume he is, yes.

2 Q. And the acts undertaken by special forces of MUP and the attempts

3 to discredit the KLA were not acts that you thought of as important to at

4 least refer to in any way as you were compiling your report in order to

5 attempt to assist this Tribunal. Is that correct?

6 A. That's correct. As I explained earlier, Your Honours, the scope

7 of my report was limited by the time available, and it wasn't within my

8 ability in that time available to go into great depth in looking into how

9 the operations were actually conducted. I reported from the limited

10 sources that I consulted on what the responses to the crisis in Kosovo

11 were by the Serb forces and what was seen by members of the ECMM.

12 Q. I hear your answer. As an employee of the OTP, advising on the

13 strength of evidence available for the bringing of indictments, can you

14 offer any insight into why no single person has been indicted for the

15 widespread and systemic attacks on the Kosovan Albanian population that

16 occurred throughout 1998?

17 A. I have no idea. I wasn't involved in --

18 MR. HARVEY: No further questions. Thank you.

19 The only thing -- I've been reminded very helpfully by Mr. Khan.

20 I'm very bad at housekeeping. And I have not asked to exhibit the

21 documents that I have tendered to this witness in the course of yesterday

22 and today. I do apologise for that. Subject to that, I have no further

23 questions.

24 JUDGE PARKER: Mr. Harvey, these were put in various passages to

25 the witness. Is there anything more other than the passages that you put

1 to him that is relevant to this trial and which we should accept?

2 MR. HARVEY: May I just take a moment to think about that.

3 JUDGE PARKER: Perhaps you can reflect on it as others are

4 proceeding.

5 MR. HARVEY: Right. That's what I was thinking.

6 JUDGE PARKER: My first reaction is the use that was made of it

7 by you displaces any need to tender the document.

8 MR. HARVEY: I see wise nodding going on around you. I'll

9 consult. Thank you.

10 MR. MANSFIELD: I want to make it clear, I have no further

11 questions.

12 JUDGE PARKER: Thank you.

13 Mr. Powles.

14 MR. POWLES: No further questions on behalf of Mr. Musliu.

15 JUDGE PARKER: Yes, Mr. Nicholls.

16 MR. NICHOLLS: I have no re-direct. I'll just point out that the

17 document put to Mr. Coo yesterday by Mr. Harvey, 03078003, was not sought

18 to make an exhibit. That is already included as annex B to the report,

19 so that is in already.

20 And in terms of the transcripts and excerpts, I do not believe

21 that those should be admitted. I think the relevant parts were read out

22 and we shouldn't be putting in transcripts of testimony in other cases.

23 JUDGE PARKER: Mr. Harvey.

24 MR. HARVEY: Your Honour, having consulted and thought carefully

25 about it, I think the only document, since it hasn't been looked at in

1 detail but since it is one which this witness does recall having

2 considered should simply be marked for identification, and that is the

3 last one, the K5 statement. I'm not suggesting that it should go into

4 evidence, but in order that we understand what we've been talking about,

5 I would ask that that one be marked for identification.

6 JUDGE PARKER: It will be marked for identification.

7 MR. HARVEY: Thank you, Your Honour.

8 THE REGISTRAR: That will be DB4, MFI.

9 JUDGE PARKER: Mr. Coo, you'll be pleased to know that with a

10 flurry at the end, that has concluded the questions that will be asked of

11 you. May we thank you for your assistance and you are now free to return

12 to your other activities.

13 THE WITNESS: Thank you, Your Honours.

14 [The witness withdrew]

15 JUDGE PARKER: Mr. Whiting.

16 MR. WHITING: Your Honour, we have three statements to put into

17 evidence; they are agreed. The first two will be handled by Mr. Black

18 and then I'll handle the last one. So I'll defer at this time to Mr.

19 Black.

20 JUDGE PARKER: Thank you.

21 Mr. Black.

22 MR. BLACK: Good afternoon, Your Honours. I think a small --

23 much-smaller-than-in-the-past packet is being distributed to you. The

24 drill I would propose is the same as the one we have done before. These

25 are two -- well, they are 92 bis materials for two witnesses. We have

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1 reached agreement with the Defence on both of them. And if it pleases

2 Your Honour, I would move orally to add each of these witnesses to our

3 witness list and to admit their evidence in written form pursuant to Rule

4 92 bis. I can do that one by one or however Your Honour prefers.

5 JUDGE PARKER: There are no special measures in respect of

6 either?

7 MR. BLACK: There are no protective measures, no.

8 JUDGE PARKER: Since it is by agreement, both the statement --

9 well, first the statement of Francis Ledwidge will be admitted into

10 evidence and his name will be added to the Prosecution witness list.

11 MR. BLACK: Thank you, Your Honour. That will be --

12 JUDGE PARKER: Just hold a moment.

13 THE REGISTRAR: That will be Prosecution Exhibit P242.

14 JUDGE PARKER: And the statement of Zoran Lesic will be admitted

15 evidence and that name will be added to the witness list.

16 THE REGISTRAR: That will be Prosecution Exhibit P243.

17 JUDGE PARKER: Yes.

18 MR. BLACK: Thank you, Your Honour. That's all from me.

19 JUDGE PARKER: Thank you.

20 Yes, Mr. Whiting.

21 MR. WHITING: Your Honour, I come with a much more sizeable

22 bundle; it's this large notebook. It's the notebook of Witness L103.

23 JUDGE PARKER: Thank you.

24 MR. WHITING: And also by agreement we would ask that this

25 witness's statement and the 17 tabs which are corresponding exhibits be

1 admitted into evidence pursuant to 92 bis.

2 There are a few wrinkles, though no serious ones, with respect to

3 this bundle. Since we prepared the bundle we have actually managed to do

4 the 92 bis procedure and we received the 92 bis statement just minutes

5 before we started court today. And so what I would like to do is

6 distribute that, the actual 92 bis statement, which is identical to the

7 statement which is contained in the bundle and which has been previously

8 disclosed. It's just 92 bis'd. And I have both the unredacted and the

9 redacted version, and I will come to that issue later. But if this could

10 be distributed.

11 Now, just to be clear with respect to this statement and the

12 attached exhibits, we provided a spreadsheet which is the first page of

13 the binder, and this spreadsheet explains the correspondence between the

14 tabs -- the exhibits at each tab and the paragraphs in the statement.

15 JUDGE PARKER: Yes.

16 MR. WHITING: The -- the only difficulty is that these paragraph

17 numbers correspond to the statement that was not 92 bis'd. The 92 bis

18 procedure changed the numbering of the paragraphs. So what I would

19 propose --

20 JUDGE PARKER: Does that mean that you're going to let us have a

21 substitute sometime in the future?

22 MR. WHITING: Well, yes, that is what I would propose that we

23 will allowed to substitute a new chart just for the assistance of the

24 Court and the parties that will show the correspondence between the

25 paragraph numbers of the statement and the tabs.

1 JUDGE PARKER: Thank you.

2 MR. WHITING: We would also ask that the -- for protective

3 measures for the name and identifying information of the witness; this

4 has been agreed by Defence counsel. The witness is a still-serving

5 member of the Serbian State Security and therefore has concerns about

6 security and safety. And therefore we would ask simply that the name and

7 identifying information of the witness be redacted.

8 In addition, in paragraph 25 of the 92 bis version of the

9 statement there's a reference to a name of a witness, and therefore we

10 would ask that that be redacted from the public version. And also

11 corresponding tab 5, the exhibit at tab 5, will also have to be under

12 seal.

13 So what I would propose is that the unredacted version of the

14 statement and all of the exhibits go into evidence under seal and that we

15 then prepare a separate version with the name of the witness redacted,

16 the witness himself, plus the references to the other witness redacted

17 and tab 5 taken out, and that would become the public version of the

18 exhibit.

19 JUDGE PARKER: Well, this is getting a bit complicated. This

20 witness is on your list, isn't he?

21 MR. WHITING: He is on our list, though not by name, just by

22 description.

23 JUDGE PARKER: By description. By consent --

24 MR. WHITING: I'm sorry, Your Honour. I'm sorry to interrupt.

25 There is one matter that I neglected to raise and it was important to the

1 Defence and I want to say it before the Court because it goes to the

2 consent.

3 JUDGE PARKER: Yes.

4 MR. WHITING: In paragraph 15 of the original statement and it's

5 now paragraph 21 of the 92 bis statement there is a statement which is

6 arguably ambiguous because the witness says in that paragraph -- he says:

7 "I have been shown a series of documents and I can confirm that all of

8 the documents shown to me are copies of the same documents seized by the

9 MUP in Lapusnik on 25 July 1998 which I referred to and listed in my --

10 in the report."

11 The Prosecution's understanding of that - and it will be clear in

12 context - is that the only knowledge that the witness has is what was

13 told to him when the documents were provided to him, and they were

14 represented to him as having been seized by the MUP on that date in

15 Lapusnik. And that is explained in other paragraphs of the statement.

16 And it is our -- our understanding is that that is the extent of his

17 information when he says: "I can confirm that these -- these are the

18 documents seized by the MUP," he is referring to what was represented to

19 him. That is our understanding of that statement; that is how we intend

20 to rely on it. And it is on that basis that Defence counsel were

21 agreeable to this statement going into evidence.

22 MR. KHAN: Your Honour, I'm very grateful to my learned friend

23 for clarifying. For the record, we agreed to the statement with two

24 caveats. In relation to paragraph 14 - again, it follows logically from

25 what was accepted and the Prosecution's understanding of paragraph

1 15 - paragraph 14, the basis upon which it is accepted is where the

2 witness states that "because the documents seized were in Albanian," and

3 our understanding - and we're willing to accept it on the basis that it

4 should read in fact, that Your Honours should read it, that "the

5 documents handed over to me by the MUP were in Albanian."

6 And similarly paragraph 15 should be read as, in our submission

7 and with the agreement I understand of my learned friend for the

8 Prosecution should read as: "Documents shown to me are copies provided

9 to me by MUP."

10 Of course he cannot state that they were the documents seized

11 actually in Lapusnik. He doesn't give any evidence at all as to

12 provenance. And upon that basis we are happy for the evidence to be put

13 in in the manner that my learned friend seeks to do.

14 JUDGE PARKER: Thank you, Mr. Khan. We can't of course by

15 consent amend a statement, but I have endorsed the side the copy here

16 with the notation that in each case the word "seized" in paragraphs 20

17 and 21, as they now are, should be read as "handed to me by MUP."

18 MR. KHAN: Yes.

19 JUDGE PARKER: I think that will meet the agreed understanding.

20 MR. GUY-SMITH: Most definitely. That works perfectly.

21 MR. WHITING: Yes. Of course, just to be clear, these documents,

22 when they were handed to the witness were represented as having being

23 seized, and that is part of his statement. But otherwise that is

24 agreeable, Your Honour.

25 JUDGE THELIN: Mr. Whiting, this is probably me misreading, but

1 when I look at the statement it seems we have two paras 21. Maybe that

2 could be clarified. Or am I just off the chart here? And also I think

3 there are others paras that have double numbering.

4 MR. WHITING: Your Honour, that was pointed out to me a just few

5 moments ago, that the paragraph numbering has restarted. And I'm not

6 sure how we are going to handle that. Perhaps what we will have to do

7 with consent is renumber the paragraphs.

8 JUDGE THELIN: That seems to be safe otherwise we have built-in

9 ambiguity here.

10 MR. WHITING: It creates confusion. I agree.

11 [Trial Chamber confers]

12 JUDGE PARKER: Well, that appears to occur in what I understand

13 is no longer the statement to be relied upon. We've been given the Rule

14 92 bis-compliant statement now.

15 MR. WHITING: No, in fact, it is the one. It is the 92 bis

16 statement that that occurs in. And I apologise for that misnumbering --

17 JUDGE PARKER: Well, I don't have a misnumbered copy then.

18 JUDGE THELIN: You drew the lucky one then, obviously. That's

19 even worse, we have several versions now; that's even worse than the

20 first observation.

21 MR. WHITING: That's very strange.

22 JUDGE THELIN: Maybe you could align it.

23 MR. WHITING: That is something that I think we can have

24 corrected by tomorrow. I can state this, that the substance of the

25 statements are the same.

1 JUDGE PARKER: It concerns me that the Chamber has two separate

2 versions of the same document.

3 MR. WHITING: Well, that concerns me as well.

4 [Trial Chamber and registrar confer]

5 [Trial Chamber confers]

6 JUDGE PARKER: I would say, Mr. Whiting, that it would be unwise

7 to receive a document even though it doesn't have any duplication of

8 paragraph numbering until you can check what it is that has happened that

9 has given us two distinct forms of what is apparently the same document,

10 because we cannot be confident that either one is the one we should have.

11 MR. WHITING: Yes, and I don't know how the Court wishes to

12 proceed. This is --

13 JUDGE PARKER: I would suggest -- I'm sorry to give you

14 administrative work, which we normally seek to avoid but as I understand

15 it there will be no further need for us to sit after today in the

16 Prosecution case.

17 MR. WHITING: That is correct, Your Honour.

18 JUDGE PARKER. Could I suggest that you have leave to files a

19 written motion with the right exhibits after the close of the Prosecution

20 case and with the right papers in it.

21 MR. WHITING: That's fine. We can certainly do that, Your

22 Honour.

23 JUDGE PARKER: And on the basis that the attitude of the Defence

24 will remain unchanged, it will then be accepted and given a number.

25 MR. WHITING: Thank you, Your Honour. And I apologise for the

1 confusion. This all happened very quickly at the last minute.

2 JUDGE PARKER: Well, yes. Very well.

3 And we might even reserve there number P244 for it. Who knows?

4 MR. WHITING: Thank you, Your Honour.

5 JUDGE PARKER: Now, is there anything further, Mr. Whiting?

6 MR. WHITING: No. The only thing further, Your Honour, before

7 the Prosecution says the magic words, is Mr. Black yesterday noted that

8 we were still waiting for the ICMP report for Fehmi Xhema, aka Tafa. And

9 we would ask, and I believe this has been agreed to by the Defence, that

10 we be permitted after the close of the Prosecution case that we put that

11 document in once it becomes available. The substance of the document has

12 been already described to the Court and to the parties.

13 JUDGE PARKER: Leave will be granted to the Prosecution to file

14 motions for the admission of the two documents that have just been

15 identified. One of them is incorrectly described as a document; it's

16 many documents. That's one that is foreshadowed to be P244. And the

17 other is the report which Mr. Black mentioned -- I'm not sure when it was

18 but recently.

19 MR. WHITING: Thank you, Your Honour. With that then, the

20 Prosecution rests.

21 JUDGE PARKER: Thank you, Mr. Whiting.

22 Are there any motions at this stage by the Defence?

23 MR. MANSFIELD: On behalf of Fatmir Limaj, there are no motions

24 at this stage.

25 MR. GUY-SMITH: On behalf of Haradin Bala, at this point in time

1 there are no motions.

2 MR. POWLES: Your Honour, similarly, on behalf of Isak Musliu,

3 there are no motions at this time.

4 JUDGE PARKER: Thank you very much.

5 The anticipation of the Chamber is that it would not be

6 immediately convenient to proceed with Defence evidence. Further, it

7 will be necessary, given the Rules, for the Defence to give notice of

8 various things to the Prosecution before commencing the case for the

9 Defence, if I can put it in the singular, although it is three distinct

10 defences. That therefore will require that there be some time before we

11 resume evidence.

12 Could I have an indication, perhaps, Mr. Mansfield, what time you

13 think would be appropriate?

14 MR. MANSFIELD: Yes. May I indicate we have had extensive

15 discussions between all counsel, including those representing the

16 Prosecution, to try and arrive at a reasonable assessment of what is

17 required to allow both the Prosecution to analyse what we will give

18 notice of. May I put forward a suggested time and that is that there be

19 an interval of three weeks from next Monday, totaling all together three

20 and a half weeks if one includes what is left of this week, which would

21 take us, if Your Honours were to permit that interval of time, would take

22 us into May plainly and would result in the Defence being in a position,

23 subject to any other difficulties, on Monday, May the 9th.

24 And so far -- I just pause for a moment so that you may --

25 JUDGE PARKER: Yes --

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1 MR. MANSFIELD: -- see where that date falls. There are a number

2 of reasons. I can elaborate in detail if needed, but I can give an

3 indication --

4 JUDGE PARKER: Perhaps to break it up a little, Mr. Mansfield,

5 can you tell me when it is or by what period you, at least, for your

6 client would be in a position to provide a list of witnesses and a list

7 of exhibits.

8 MR. MANSFIELD: Yes. The -- what I was going to indicate to Your

9 Honour was that there is a projected visit to Kosovo for reasons I can't

10 go into, but that visit will take place as soon as possible and certainly

11 by the end of next week it will have been completed. And what I've

12 indicated to the Prosecution on a much earlier date than today was that

13 it would be helpful for us to be allowed that period of time to finalise

14 the list, for example, of witnesses. But it would mean that by the

15 Monday of the following week we would be in a position to proffer a list

16 of witnesses.

17 JUDGE PARKER: Is that Monday, the 2nd of May, or the 25th of

18 April?

19 MR. MANSFIELD: Well, it would be -- I was contemplating the week

20 of the 25th of May [sic]. The reason why I'm contemplating an earlier

21 date is the Prosecution themselves have indicated they need certainly

22 two, but preferably three weeks to have a look at what we have.

23 JUDGE PARKER: And the 25th gives you time enough including the

24 visit that you're contemplating to prepare lists and to file and serve.

25 Is that what you're saying?

1 MR. MANSFIELD: Yes, because the other thing -- if I can shoot

2 forward a moment -- the reason why we're trying to work towards certain

3 dates and a relatively, if I may put it this way, tight schedule is we're

4 conscious of the summer break and we're attempting to marshal defence

5 evidence starting at that date in May that will enable a certain amount

6 of time for each of the Defence cases.

7 So, for example, with relation to Fatmir Limaj's case, we're

8 estimating it to be not less than two weeks, but probably three weeks in

9 length, total. And that the cases that follow -- well, I leave to others

10 to speak for themselves possibly, but we've tried to estimate those as

11 well, encompassing certainly a further three weeks on top of that for the

12 other cases. Because some of the witnesses that I will be calling will

13 obviously impinge on other cases so that it won't be necessary for them

14 to be called twice, plainly. And plainly there will be other witnesses

15 that will not require being called live as well so that --

16 JUDGE PARKER: The Defence may make use of 92 bis.

17 MR. MANSFIELD: Yes, that's right.

18 JUDGE PARKER: Yes.

19 MR. MANSFIELD: So I hope that's the best estimate I can give.

20 Plainly, I also undertook with the Prosecution that if we're in a

21 position to provide -- which we almost certainly will be -- some are

22 obvious witnesses before the expiry of that period of time in Kosovo,

23 then we'll do so. So we will do it as soon as we can do it within that

24 time. But there is a need, I'm afraid, for a visit to Kosovo in order to

25 finalise matters with some potential witnesses.

1 JUDGE PARKER: Thank you very much for that.

2 Could I ask, the estimate you gave for your client's case --

3 MR. MANSFIELD: Yes.

4 JUDGE PARKER: -- that included reasonable provision for

5 cross-examination?

6 MR. MANSFIELD: Yes.

7 JUDGE PARKER: Examination by other --

8 MR. MANSFIELD: Yes, it was allowing for that. So, by example,

9 so Your Honour may get the measure of it, we certainly anticipate that

10 the defendant that I represent, Fatmir Limaj, would be in the witness

11 box, both answering questions from me and the Prosecution and possibly

12 others for at least a week.

13 JUDGE PARKER: Very well.

14 MR. MANSFIELD: But it could be more.

15 JUDGE PARKER: Yes.

16 MR. MANSFIELD: I see -- I'm not sure whether Mr. Whiting's

17 raising his eyebrows because it's too long or too short. I'm not sure.

18 JUDGE PARKER: Very difficult for you to estimate

19 cross-examination --

20 MR. MANSFIELD: Yes.

21 JUDGE PARKER: -- for that particular --

22 MR. MANSFIELD: But as you will see, we have made an attempt to

23 allow at least a session for Mr. Whiting.

24 JUDGE PARKER: Well, you're generosity continues, Mr. Mansfield.

25 Thank you very much for that.

1 Do you have anything, Mr. Guy-Smith, to add?

2 MR. GUY-SMITH: If it's of any assistance to the Trial Chamber,

3 we contemplate that the case for Mr. Bala will take somewhere between a

4 week to two at the absolute maximum. Probably closer to a week.

5 JUDGE PARKER: Yes.

6 MR. GUY-SMITH: And we do not expect any cross-examination from

7 the Office of the Prosecutor.

8 JUDGE PARKER: You're optimism continues. I'm afraid that

9 Chamber has to be more pessimistic.

10 Mr. Powles.

11 MR. POWLES: On behalf of Mr. Musliu it is anticipated that the

12 Defence case could last between two to three weeks, and I would endorse

13 what Mr. Mansfield has said about the start date of the Defence portion

14 of the case, namely on the 9th of May.

15 JUDGE PARKER: Thank you.

16 Mr. Whiting.

17 MR. WHITING: Your Honour, certainly we have no quarrel with the

18 proposed start date. We would only ask that the Defence comply with the

19 requirements of Rule 65 ter (G) no later than the 25th of April. I

20 couldn't remember what month we were in. Giving us --

21 JUDGE PARKER: -- at the moment.

22 MR. WHITING: Yes, we're still in April. Giving us two weeks

23 then after that date before the start of the Defence case. And it

24 sounded to me like there would be no difficulty with counsel complying

25 with that.

1 MR. POWLES: Perhaps I should say in relation to that, given that

2 Mr. Musliu's case will start last, after both Mr. Limaj and Mr. Bala's

3 cases have been heard by the Trial Chamber, there's perhaps not the same

4 degree of urgency for the Defence to file the 65 ter (G) summaries with

5 the Prosecution on the 25th of April. However --

6 JUDGE PARKER: It's called creeping compliance with Rule 65 ter.

7 MR. POWLES: Yes. Your Honour, I can say it's hoped that the

8 representatives of Mr. Musliu's team will be in Kosovo next week and it's

9 hoped that it would take no more than one week after that to finalise the

10 list -- to be able to provide the Prosecution with it and of course the

11 Trial Chamber with it on the 30th of April with it at the latest.

12 JUDGE PARKER: Looking at what is proposed by counsel and

13 conscious that there is at least one day just following the date you

14 propose, which is a holiday observed by the Tribunal, a festival date,

15 the 16th of May; and conscious from the experience that we have had here

16 of the difficulties which appear greater for Defence than for Prosecution

17 in organising a flow of witnesses, may the Chamber put out the radical

18 proposition that the Defence cases might commence a week later than you

19 propose? Is that going to be something that will assist? That would be

20 Tuesday, the 17th, because the 16th is a holiday. On the basis then that

21 there should be adequate time to comply with Rule 65 ter in all its

22 elements by all parties for the Defence, and the Prosecution can

23 unmistakably make their inquiries so that we won't have the false starts

24 that seem to bedevil so many things here of a nominal start and people

25 calling for adjournments because they haven't got quite everything

1 organised.

2 MR. POWLES: Your Honour, I can say on behalf of Mr. Musliu that

3 that would work for the Musliu Defence team.

4 JUDGE PARKER: You're in descending order or ascending order, Mr.

5 Guy-Smith.

6 MR. GUY-SMITH: I think it's a lovely idea, and I fully endorse

7 your radical suggestion.

8 MR. MANSFIELD: Yes, I'm certainly fully in support of that. If

9 I may then, on that basis -- so I'm just checking the dates. It would

10 assist us if we could then -- this is the creeping aspect of this of

11 course --

12 JUDGE PARKER: Oh dear.

13 MR. MANSFIELD: We have given a commitment for the 25th. If we

14 could creep into that week, that will help us, because we are supposed to

15 be here that week consulting with Mr. Limaj so --

16 JUDGE PARKER: What about the Wednesday, the 27th --

17 MR. MANSFIELD: Yes, that would help us.

18 JUDGE PARKER: Which ran from today. Close of business, 27th.

19 MR. MANSFIELD: Yes. Thank you very much.

20 MR. WHITING: Yes, the date is certainly fine for the

21 Prosecution. We have been alerted via e-mail by the Witnesses Unit that

22 getting a witness here on the date after a UN holiday could prove

23 difficult. I don't know who the first witness will be, but --

24 JUDGE PARKER: I understand it will be the accused.

25 MR. WHITING: I didn't understand that it would the accused who

1 would be the first witness. I assumed he'd be the last witness. That's

2 fine. Well, I guess he'll be here.

3 JUDGE PARKER: That's an American habit we don't have.

4 Counsel will appreciate that the absence of a need for the

5 Chamber to spend time on other motions at this point has had a

6 significant influence on our ability to make a little more time available

7 than would otherwise would have been possible. So we thank you for that.

8 Very well. The time fixed for compliance by all Defences with

9 Rule 65 ter is when -- the close of business, Wednesday, the 27th of

10 April. And we will resume on Tuesday, the 17th of May. I'm afraid I

11 can't tell you whether that will be morning or afternoon because the

12 planning of court sittings hasn't reached that point, but it will be one

13 or the other.

14 In this case -- well, sorry, really aside from this case but

15 relevant to all counsel here is the application which the Chamber has

16 received to make available certain information to those engaged in the

17 Milosevic trial. I raise it to inquire whether there is any submission

18 which Defence counsel wish to make in respect of that motion.

19 MR. MANSFIELD: No, thank you.

20 MR. GUY-SMITH: None.

21 MR. POWLES: No. Thank you, Your Honour.

22 JUDGE PARKER: Mr. Whiting, the Prosecution will be able to give

23 the Chamber its position in the course of the next -- overnight?

24 MR. WHITING: Your Honour, we filed a --

25 JUDGE PARKER: You did, but there is a --

1 MR. WHITING: Yes --

2 JUDGE PARKER: -- question of whether you had considered

3 disclosure of --

4 MR. WHITING: Yes --

5 JUDGE PARKER: -- the identities of certain witnesses.

6 MR. WHITING: That's correct, Your Honour, and on that matter we

7 can provide something to the Court by tomorrow.

8 JUDGE PARKER: It would be of importance to the other trial to

9 get that order out tomorrow.

10 There is outstanding a decision by this Chamber in this trial

11 about the admission or the purposes of admission of two statements. A

12 decision is imminent. So that will be known to you, I would expect, and

13 known before it is necessary to comply with Rule 65 ter, should there be

14 any cross-relevance between the two.

15 I don't know whether the Defence contemplates any expert

16 witnesses. I just am conscious that under Rule 94 bis there's a 30-day

17 time which the Prosecution may require after having notice of it. So if

18 counsel could keep that in mind if there's any expert evidence looming

19 you'll need to give early notice of that to avoid a delay of the process.

20 Does any counsel see need for a Rule 73 ter pre-Defence

21 conference? Can I say that counsel -- the Chamber has the view that

22 given the general experience of counsel and the management of the case to

23 date, that there would not appear to be any need for anything other than

24 the most formal conference, which could even occur on the morning of the

25 17th of May immediately before the commencement of the case. But if

1 there is thought by counsel to be need for it, well the Chamber will of

2 course be available.

3 MR. MANSFIELD: Thank you for the offer. I think there is no

4 need.

5 MR. WHITING: I don't see a need, Your Honour. Thank you.

6 JUDGE PARKER: Orders. At the moment the Chamber see need to be

7 making any orders about the length of the Defence case or the number of

8 witnesses or who they are to be called for the reason I mentioned a few

9 moments ago. In other words, we're confident that we can leave such

10 matters in the hands of counsel. And if our confidence becomes

11 shattered, we will not fail to act.

12 There seems to be no other matter that needs to be mentioned.

13 Mr. Mansfield.

14 MR. MANSFIELD: There's one. I wonder if I might just mention

15 one matter, and that is to ask if you have any idea when it might be

16 possible to receive your ruling in relation to prior statements that has

17 been -- because it may be of relevance obviously to the Defence case, and

18 I think if there's a possibility it may arise at the start of the Defence

19 case and it would be of interest to us to know. If there isn't any

20 indication, then I obviously don't take it further.

21 JUDGE PARKER: As I indicated, it can be expected very shortly,

22 Mr. Mansfield. The production processes are likely to make it early next

23 week rather than tomorrow or Friday.

24 MR. MANSFIELD: Well, I'm very grateful for that indication.

25 Thank you.

1 JUDGE PARKER: Thank you.

2 MR. GUY-SMITH: There was one evidentiary matter that we never

3 finished having a conversation about; it concerned a document that Mr.

4 Black had sought to introduce. I am at this point satisfied with the

5 state of the record and I am withdrawing any further concerns but wanted

6 to make sure that the house was tidy.

7 JUDGE PARKER: I'm very grateful for that piece of housekeeping

8 because it slipped under my guard. I had not had my mind to it, but my

9 brother Thelin, nodded knowingly so he would not have let me forget it.

10 MR. GUY-SMITH: I have noted that between the three of you the

11 amount of detail that goes unnoticed is not much, if at all.

12 JUDGE PARKER: You flatter the two that sit with me.

13 We now adjourn and resume sitting on Tuesday, the 17th of next

14 month.

15 --- Whereupon the hearing adjourned at 5.08 p.m.,

16 Be reconvened on Tuesday, the 17th day of

17 May, 2005

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