1 Friday, 11 January 2013
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.35 a.m.
5 JUDGE ORIE: Good morning to everyone in and around this
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours.
9 This is the case IT-09-92-T, The Prosecutor versus Ratko Mladic.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 In the absence of any preliminaries, could the witness be
12 escorted into the courtroom.
13 MR. GROOME: Your Honour, if I may make quick use of this time.
14 There were two exhibits, Your Honours, P542 and P627, which were
15 marked for identification pending a B/C/S translation. These two have
16 now been obtained, have been uploaded, so the Prosecution requests first
17 that the Court Officer be given permission to attach the translations,
18 and, second, that they finally be admitted into evidence.
19 Thank you, Your Honour.
20 JUDGE ORIE: Thank you, Mr. Groome.
21 The translations now being provided, the Registry may attach the
22 two documents --
23 [The witness entered court]
24 JUDGE ORIE: -- to the document upload in e-court. And P542 and
25 P627 are admitted into evidence unless there were any objections. I
1 don't think. It was just a matter of translations.
2 And P627 is admitted under seal.
3 Good morning to you, Mr. Van der Weijden.
4 THE WITNESS: Good morning, Your Honour.
5 JUDGE ORIE: May I remind you that you're still bound by the
6 solemn declaration you've given yesterday that you'll tell the truth, the
7 whole truth, and nothing but the truth.
8 Mr. Ivetic will now continue his cross-examination.
9 WITNESS: PATRICK VAN DER WEIJDEN [Resumed]
10 Cross-examination by Mr. Ivetic: [Continued]
11 MR. IVETIC: Thank you, Your Honour.
12 Q. Good morning, sir.
13 A. Good morning.
14 Q. I wish to now turn to the main body of the report that you
15 authored in this proceeding and the Scheduled Incidents to look at some
16 of them in greater detail with you, although we will not have time to
17 look at all.
18 But, first of all, I want to ask you with respect to this type of
19 expertise, that is, the examination of incidents to determine the origin
20 of fire, have you ever authored any articles, reports or publications in
21 this area of expertise that have been subjected to peer review?
22 A. No, I haven't.
23 Q. And I'd like to call up 65 ter number 1D00539, which is the
24 transcript of your testimony in another proceeding, in the Perisic case,
25 and I would like page 34 in e-court of this 65 ter number.
1 And while we wait for that, sir, I would ask that we focus from
2 the beginning of line 7 onwards, and if you can follow along, I will ask
3 you to comment on the testimony from this -- this portion.
4 "Q. I heard today, and I think you can confirmed this
5 previously, as well, that you didn't take into account the medical
6 reports, and you state your reasons why not, why you didn't think they
7 would be useful or would be useful, but would you agree with me when I
8 say this: That a medical report about certain wounds and injuries, if it
9 contains a precise description of entry and exit wound, can fairly
10 clearly determine the angle at which the body -- the bullet entered the
12 "A. Combined with the exact location and the direction the
13 victim was facing at the time, it would, yes.
14 "Q. So a medical report of that kind would mean that you could
15 establish, if you knew the position of the victim, that you would be able
16 to establish the direction from which the bullet came; right?
17 "A. Yes. That would be possible.
18 "Q. And what is very important, the angle at which the bullet
19 entered the body.
20 "A. Yes, I understand."
21 Now, first, I want to ask you with respect to this selection,
22 does this accurately reflect your recollection of the testimony that you
23 gave in the Perisic proceedings relating to this matter of the medical
25 A. Well, I do not remember myself exactly what I've said at that
1 session, but if this is the transcript, this is what I have said, and
2 reading it now again, it's -- I still believe this is the -- still stand
3 behind my -- my words.
4 Q. Okay. Thank you. And then if we could just continue the next
5 section which is -- starts at line 23 in the transcript and goes on to
6 line 3 of the next page:
7 "Q. Did you ask the OTP to provide you with those crime reports?
8 Did you ask them whether they had possession of any crime reports?
9 "A. I don't remember [sic], but I don't -- I haven't received,
10 and I haven't worked with the crime reports, and as you have stated, I'm
11 not a -- I don't have a specific medical background, so it would be of
12 not much use for me personally."
13 Does this accurately represent your -- the answer you would give
14 today on this same question?
15 A. I would like to elaborate a little bit on that.
16 I have medical -- I have had medical training. There are medical
17 crime reports -- medical reports within the evidence that I received
18 before -- that I received so -- and could have used. Only those reports
19 were mainly focussed on the cause of death instead of technical details.
20 But I haven't asked for additional crime reports, that's true.
21 Q. What I'd like to ask you, sir, is in terms of performing your
22 analyses and rendering your conclusions, did you have access to or did
23 you utilize medical reports or crime reports of the nature that was
24 discussed previously, i.e., with the entry and exit wounds delineated or
1 A. Well, I did use some information of the medical reports or crime
2 reports in my report.
3 Q. Do you recall if you relied upon any descriptions of entry and
4 exit wounds for purposes of rendering your opinions as to the
5 Scheduled Incidents in this case?
6 A. I would have to check. Just a minute.
7 I did rely on -- in some cases, for instance, in case F1, in
8 the -- the medical reports she was wounded on -- in a -- in her right
9 leg, and from that -- from that information, I draw the conclusion what
10 calibre could have been involved. In case F4, the direction of fire is
11 based, as well -- in my beliefs on the technical and tactical
12 possibilities but also on the information that the bullet wounded the
13 mother in letter left thigh and wounded the daughter on her right and in
14 her abdomen. And that's the same for F12.
15 So there are several cases where I used medical information.
16 Q. Would you agree with me that in certain cases the medical
17 information can also exclude certain calibres of munitions because they
18 would cause greater injury and that is present in a particular victim?
19 A. Yes, I do agree.
20 JUDGE ORIE: Isn't this clear from the report itself -- isn't it
21 true that the witness has written this down in his report? I think at
22 least twice. There's no need to repeat what is clearly in the statement
23 or in the expert report.
24 MR. IVETIC: Thank you, Your Honour.
25 Q. Sir, with regards to these Scheduled Incidents that are in your
1 report, am I correct that your analysis as to each of these incidents
2 presupposes that the shooter was a trained sniper rather than a marksman
3 or an ordinarily soldier with an assault rifle?
4 A. No, you're not.
5 Q. Okay. I'd like to -- I'd like to ask you with respect to these
6 incidents, did you have information among the information provided to you
7 by the Office of the Prosecutor that the -- that there were other
8 witnesses who indicated that the shooters in Sarajevo were using
9 low-power scopes and medium-quality weapons and were not persons with
10 accuracy to be snipers?
11 A. I don't recall any information like that.
12 Q. Would such information have been relevant to your inquiry and
13 your analysis?
14 A. I don't believe so. I -- I nowhere in my report state that the
15 shooter has been a sniper, so I don't see the relevance.
16 Q. Well, sir, would you not agree with me in the instances where it
17 is a long-range shot or a difficult shot that you are supposing is the
18 source of the fire that it would therefore presuppose that the shooter
19 was a trained shooter using a better-quality scope, for instance?
20 A. A trained shooter with better-quality scope, yes. That's true.
21 Q. I'd like to show -- present you with the -- a portion of the
22 testimony of Mr. John Jordan, a ten-year veteran of the US Marine Corps,
23 who was also a volunteer fireman with the United Nations, who spent some
24 considerable time in Sarajevo during the time-period that is -- that is
25 at issue and experienced first-hand the -- what was called the sniping.
1 And at this trial, at transcript page 1812 through 1813, line 10 onwards
2 he states as follows, and hopefully as I read can you follow what is in
3 today's transcript so you can -- so you can process the entirety of the
4 statements before commenting on them:
5 "Q. Thank you. If I can direct your attention to
6 paragraph 24 of your statement, here is where you state and then I quote:
7 'I would classify most of the shooters as marksmen, not snipers.' Then
8 later on you say most of the shooting was with medium-quality weapons
9 with low-power scopes. Would you agree with me that here we're talking
10 about the snipers that were shooting upon the GOFRS personnel in this
12 "A. I am saying that I considered most of the people who were
13 referred to as snipers as, in actuality, gunmen, not necessarily a
14 trained sniper who could hit somebody a thousand yards away. The
15 expression, quote/unquote, sniper in Sarajevo was used by just about
16 anyone to refer to when anyone was shot and when that was really not the
17 case. Many of the people who were shot walking around were shot by men
18 who fired a burst out of a window from a thousand yards away, and people
19 would say the wounded person was hit by a sniper when they were actually
20 hit by, you know, some guy literally holding a gun over a wall and
21 letting a magazine go. They would say the person was shot by a sniper.
22 If there were really that many good snipers there, there would have been
23 more dead.
24 "Q. Would the fact that these persons that were incorrectly
25 referred to as snipers, would the fact that they were using low-power
1 scopes, medium-quality weapons, and were not persons with accuracy to be
2 snipers, would that mean that they would have lower accuracy than someone
3 who would be trained as a sniper?
4 "A. Yes."
5 First of all, based upon your experience, would you tend to agree
6 with the statements of Mr. Jordan?
7 MS. HOCHHAUSER: I'm just going to object to the -- that was a
8 tremendous amount of testimony that was read back to the witness. If we
9 could break down what it is he's supposed to be agreeing with.
10 JUDGE ORIE: Mr. Ivetic, you are asked and now encouraged to
11 split it up.
12 MR. IVETIC:
13 Q. Would you agree that, again based upon your analyses, persons
14 tended to uses the term "sniper" even for instances where gunmen shot
15 blindly over a wall or shot a salvo through a window?
16 A. I would agree that more or less it's the same -- the same thing
17 that I put in my report.
18 Q. And with respect to the Scheduled Incidents that you analysed, am
19 I correct that you cannot 100 percent exclude the reasonable possibility
20 that the scenario was caused by an untrained marksman shooting a burst
21 through a window or letting go a salvo from an assault rifle over a wall?
22 JUDGE ORIE: Mr. Ivetic, would you include a marksman shooting a
23 burst through a door? Or through a hole in the wall? I mean, let's get
24 concrete again. Let's get concrete. Let's see what we know about what
25 happened and ask questions about that.
1 I have not, apart from what Mr. Jordan gave as a possibility
2 blindly shooting, et cetera, let's focus -- of course, you cannot exclude
3 anything -- you cannot exclude that someone took a rifle, put it
4 backwards over his shoulder and shot somewhere. Of course, you cannot
5 exclude that if you had not seen the person who shot.
6 Let's try to get to the concrete knowledge we have and see what
7 conclusions are reasonably do be made and which ones are -- which cannot
8 be made.
9 Again, I, as a Judge - and I'm not speaking for my colleagues
10 yet - I have not yet excluded someone shooting backwards, not even
11 looking at his target.
12 Please proceed.
13 MR. IVETIC: But, Your Honours, the -- well, the point is trying
14 to get to the methodology of this particular witness and how he
15 determined that a particular shot had to be an intended shot from a
16 particular point, particularly targeting the victim who was struck.
17 JUDGE ORIE: The Chamber, having read the report, is well aware
18 of what the limitations are of what an expert can say about these things.
19 And if you point at certain points where you say, and I think we
20 explained that already, if I only take you back to the water level that
21 little was known, the Chamber is fully aware that the report has to be
22 read with a critical eye.
23 You may proceed, and if you want to point at any matter where you
24 think methodology is flawed, do it directly.
25 Please proceed.
1 MR. IVETIC: Thank you.
2 Q. I'd like to ask you briefly about optical sights and the ability
3 to see targets through them, and to do so, I'd like to walk you through
4 your testimony in the Perisic proceedings so, again, we need 65 ter
5 number 1D539, and this time it will be page 39 in e-court.
6 And, sir, if we can start at line 19 of this transcript, you can
7 follow along, and I will have questions for you about the matters
8 contained therein. And this will bleed over onto the -- onto the next
9 page of the transcript:
10 "Q. Regardless of the model, if we have an optical sight times
11 four, do you -- would you agree with me when I say that a target which is
12 over 600 metres -- at a distance of over 600 metres cannot be seen using
13 those sights in view of the line in the sniper which is wider than a
14 human face, the dividing line in the sights?
15 "A. If the radical of the M-70 scope or M-80 scope are similar
16 to the Soviet models or the Russian models, then, indeed, the needle
17 which is used to target -- to put on the target is wider at larger
18 distances like it would be for iron sights, but it doesn't mean that the
19 bullet cannot get there. It only limits the effect of the means for the
20 shooter to aim his rifle.
21 "Q. At all events, if this line exists, it is an impediment to
22 see the target at a distance greater than 600 metres; right?
23 "A. Yes, it would."
24 Now I want to stop there and ask you to confirm whether you still
25 stand by what was said in the Perisic case, with the caveat that I will
1 be also reading your further explanation from lines 10 through 25 of this
2 page and 9 of the next page of the transcript.
3 A. Well, indeed the reticule - and it should be not "radical" but
4 r-e-t-i-c-l-e - would cover the -- a person at the that range. However,
5 before I train my sight on that target, the chances that the reticle will
6 immediately cover the person without moving the scope is next to zero.
7 So you can't exclude it, but he would have to aim his reticle at
8 something extremely close to that target. So the chances that he hasn't
9 seen a person in his scope are next to zero.
10 Q. Let me ask you to follow up on that, sir.
11 Let's assume that the sniper or a shooter is using such a scope
12 to target a legitimate target, a combatant, would it be possible for the
13 reticle to mask any other items in the surrounding area such that a near
14 miss would then strike a civilian?
15 A. With the reticle of the scopes most likely used in the conflict,
16 the -- it would only be possible if the unintended target would be below
17 the intended target and nowhere else.
18 Q. And if, for instance, you are shooting at someone on an elevation
19 and the unintended target is farther away than the actually target, would
20 they not, in fact, be below the intended target on the scope?
21 A. They might, if they're very close to the intended target.
22 Q. Thank you, sir.
23 Now, if we could return to line 8 on the screen and scroll up so
24 that the entirety of this -- through line 25 on e-court is visible. And
25 if we could follow along:
1 "Q. And if the magnification is in the ratio of 1:3, then at a
2 distance of over 500 metres the same problem will occur?
3 "A. It might, but I would like to explain something. In Western
4 sniper courses and from the countries I know, the sniper always works
5 with his rifle. If he works alone, he also has a pair of binoculars
6 because you -- during my sniper course, you have a rifle with a six-time
7 magnification, you have a pair of binoculars with six-times
8 magnification, which has a clearer view, but you also have a spotting
9 scope of 20-times magnification. So if I were to work alone, I had to
10 first use the spotting scope, first use my binoculars to see moving
11 things, things that would stand out in my field of view; then if I see
12 things that are moving or things that stand out, I turn to my 20-times
13 magnification to identify that object, and if it -- that were to be a
14 target, then I put -- I use the reference that I had from my 20-times
15 magnification, to take my rifle again to -- and use it to aim, whereas a
16 lot of snipers, or especially in fixed positions, there could also be a
17 spotter next to the sniper who directs -- who has bigger magnification
18 that be the rifle scope who directs the shooter onto the target. So
19 that's -- the three times or four times doesn't necessarily mean that it
20 is impossible to hit the target.
21 "Q. But would you agree with me, when the distance is greater
22 than 1.000 metres, a sniper can have -- can be of little assistance in
23 identifying the target?
24 "A. I've written in my report that there were several
25 indicators. But if you don't -- if you're not able to see the colour of
1 the clothing but you can also see from activity of the object the way
2 people move, people that are fighting move differently than people who
3 are not fighting. If I'm carrying a bucket of water to my house, it
4 looks different than when I'm trying to set up a position or carrying
6 "Q. Yes, I read that in the report. With an optic sight, which
7 is times four, through the sight at a distance of 1.000 metres, can you
8 see what the target is doing, any activity, because, as far as I
9 understand it, you can just see a dot or a point. That's what I'm asking
10 you. Can you actually discern anything at that distance?
11 "A. It would be possible. It would - [Microphone
12 not activated] - but it would be possible."
13 Now, first of all, sir, I want to ask you if you recall and if
14 can you complete for us your answer to the last question in Perisic where
15 your microphone was not activated. What was the full answer that you
16 gave to the last question?
17 A. I probably will have said it would be possible. It would be
18 difficult, but it would be possible.
19 Q. Thank you, sir. And now, with that addition, does this portion
20 of the Perisic transcript accurately reflect how you would respond to
21 these questions today?
22 A. Yes, it would.
23 Q. And as part of your answer, you qualified your answer by talking
24 of the Western sniper courses in countries that you know of when talking
25 about the methods that might be used to overcome the visibility problems
1 of the optical scope, and I just want to verify again now that as we
2 discussed yesterday, you do not know what equipment was available and
3 what training or what protocols were available for either the snipers of
4 the Army of Republika Srpska or the snipers of the Armija, BiH, do you?
5 A. In my -- during my stay in -- in UNPROFOR and on the daily news,
6 I've on several occasions seen binoculars in the hands of Serb --
7 Republika Srpska personnel. So there was optics available. Maybe not
8 directly to the sniper -- to the shooters, but there were binoculars
10 Q. Thank you, sir. One more question about optical sights before we
11 go to one of the incidents.
12 Am I correct that using a scope or sight with a four-times
13 magnification at a distance greater than 800 metres, it would be very
14 difficult for the shooter to be able to see what a person is carrying or
15 holding in their hands, through the scope?
16 A. It would be difficult to see for the -- for the shooter to see
17 what the person is -- his actions are.
18 Q. Thank you, sir. Now I'd like to turn to incident F1 that you
19 have already mentioned. So if we can turn to 65 ter number 28541. And I
20 hope -- I hope today I have the right 65 ter number, that I haven't
21 transposed the numbers again.
22 And, sir, incident F1 is at page, I believe, 12 and onwards in
23 the hard copy. Do you still have the hard copy of your report in front
24 of you?
25 A. Yes, I have.
1 Q. Okay. And this will be at page 13 and onwards in English and 16
2 and onwards in B/C/S for those following the e-court version.
3 But I'd like to first ask you about the table of materials that
4 you have at page 15 in the hard copy, page 16 in e-court in English,
5 page 21 in the B/C/S. And, sir, I'd like to ask does this table
6 accurately indicate the entirety of the materials that you reviewed
7 and/or relied upon in regards to making your conclusions and performing
8 your analysis as to this incident, the F1 incident?
9 A. As list -- as is listed above the table, it's the information
10 provided by the ICTY. It doesn't mention the information that I got from
11 my visit to the -- to the incident site.
12 Q. And when you went to visit the site, did you, in fact, review
13 other potential shooter locations that could have resulted possibly in
14 the type of shot that injured the victim; or did you just look at the
15 Spicasta Stijena location to determine if it was technically possible for
16 a bullet to have come from there?
17 A. First of all, it's not Spicasta Stijena. That's on the
18 north-east side of Sarajevo. It is Baba Stijena. But I did say -- take
19 into -- I visited the site, as has been my method, and looked at all
20 possibilities, and then on te basis of my technical -- on the basis of
21 the details, I -- I excluded on technical and tactical possibilities and
22 determined -- tried to -- from that tried to determine where the shot
23 might have come from.
24 Q. And, in particular, for this incident, did you look at any sites
25 that were identified to you as having been held by the BiH forces?
1 A. In this incident, I didn't know where the BiH forces were. Or
2 the VRS forces specifically.
3 Q. If -- if we look at the -- page 12 of the hard copy, page 13 in
4 e-court, page 13, also, in the B/C/S, you identify this as being a
5 instance of where the alleged shooting position was 920 metres from the
6 incident site. Would you agree that this is, therefore, a long-range
7 shot which we discussed yesterday, where you cannot exclude the
8 possibility of a mis-shot or a ricochet?
9 A. In the -- there's never -- it's never an option to exclude the
10 possibility, but I would say in this incident that possibility is close
11 to zero.
12 Q. Why do you say that?
13 A. If you would look at the photo that is on page 14 of the hard
14 copy, and then photo 1, it's the view at the incident site from
15 Baba Stijena. Baba Stijena, it's not a GPS co-ordinate with a 1-metre
16 accuracy. It's the name of a big rock formation, but on that rock
17 formation, the location that I visited, it offered a view in -- into the
18 courtyard. And if you look around that court -- around the point of the
19 arrow, there's no other possible target in view. There -- it's only
20 roofs and a blind wall.
21 Q. Now --
22 A. So, unless the shooter was just wildly shooting downhill, then
23 still the possibility that has been a random shot is extremely limited.
24 Q. And I want to ask you, you mentioned that the Baba Stijena site
25 is not a GPS co-ordinate but is, rather, a big rock formation. How did
1 you determine where, on that expansive formation, a shooter would have
2 been placed, or did you pick the only position where you had a view of
3 the incident site?
4 A. As I stated before, I visited the incident site. From the
5 incident site, I looked at possibilities where a shooter might have the
6 been, and the only option that I deemed possible was on somewhere on that
7 Baba Stijena rock from the incident site. I identified the location and
8 then visiting Baba Stijena went to that location to take the picture that
9 you see in photo 1.
10 Q. Am I correct from other locations at the very same Baba Stijena
11 you cannot have visual line of sight with the incident site?
12 A. You would be --
13 JUDGE ORIE: Mr. Ivetic, in order to assist the Chamber, we
14 should be precise on that.
15 The location you spotted, what was the size, approximately, of
16 where you thought the bullet may have come from? Are you talking about
17 1 metre? Are you talking about a range of 20 metres? 10 metres? I
18 mean, what did the definition of the location from where the bullet may
19 have come from -- what was the size of that?
20 THE WITNESS: If I remember correctly, Your Honour, it would be
21 about a width of 20 metres that the shooter could have been on. I did
22 find remnants of positions within those 20 metres.
23 JUDGE ORIE: Which means that if you would have taken the
24 photograph from, well, let's say 5 metres away, it would still be within
25 that range?
1 THE WITNESS: That is correct, Your Honour.
2 JUDGE ORIE: Please proceed, Mr. Ivetic.
3 MR. IVETIC:
4 Q. Am I correct, sir, that at such a large or long-range distance,
5 the trajectory of the type of rounds that you identify as being
6 potentially used would resemble a parabola?
7 A. That is correct, as is always the case for any -- any shot.
8 Q. Am I correctly reading your conclusions on paragraph 6 that you
9 would exclude the 7.62 mm round, that is an ordinary assault rifle round,
10 because it would be inaccurate and at its extreme range to reach the
11 target site?
12 A. That is correct. I would have to add it would be 7.62 times
13 39 millimetre since there are more rounds of calibre.
14 Q. That is correct. Thank you for -- for correcting me.
15 Let's look at 1D00513 at this time in e-court. And while we wait
16 for that, sir, you did visit the incident site on the house at
17 Zagrica Street; is that correct?
18 A. If the house at that street is the incident site, yes that I
20 Q. Can you look on the screen. Does that appear to be --
21 JUDGE ORIE: Mr. Ivetic, you refer to paragraph 6 -- conclusions
22 on paragraph 6 that would exclude -- page 12.
23 MR. IVETIC: It's on the middle of page 12, Your Honours.
24 JUDGE ORIE: Yes. Let me just have a look.
25 Yes. Now, let me see the question again.
1 Yes. Your exclusion is not a factual one but is one which says
2 this would be an unsuitable weapon to use at that distance because the
3 accuracy would be so limited that you better use another one. Is that --
4 or do you exclude that a certain weapon was used?
5 THE WITNESS: The exclusion is purely on the -- on my assumption,
6 on my -- my beliefs that this weapon would not have the accuracy or the
7 range for this --
8 JUDGE ORIE: So you have --
9 THE WITNESS: -- incident. It's my opinion.
10 JUDGE ORIE: Yes. You have ignored the possibility that even a
11 weapon which was not very suitable to hit a target at that range could,
12 nevertheless, have been used? Although it would not be wise to use it.
13 THE WITNESS: I didn't ignore the possibility, but I exclude
14 because -- there's -- of course, as mentioned before, it's not possible
15 to exclude it, but the chances that a weapon of this kind with -- the
16 ammunition of this kind has been used is -- it's close to zero because of
17 the range. And the weapons from which it's fired. I haven't had the
18 bullet in my hands, so I wouldn't be able to determine what round it was,
19 but it's my -- it's my belief that this round hasn't been used.
20 JUDGE ORIE: Mr. Ivetic, I was asking this question because I
21 always want to clearly make a distinction between what actually happened,
22 what the facts were, and what is likely to have been used as a weapon
23 under those circumstances from such a range.
24 Please proceed.
25 MR. IVETIC:
1 Q. If I can ask you a follow-up question, sir, and if you can follow
2 along with me.
3 Your answer presupposes that someone with an assault rifle was
4 intentionally targeting the -- the incident site rather than some
5 position closer to the shooter; isn't that correct?
6 A. I don't think I presupposed that someone with an assault rifle
7 was --
8 Q. No, no, you misunderstood. Your testimony that you believe an
9 assault rifle was not used because it's at its extreme range and would
10 not have been accurate to target the incident site, that presupposes that
11 the incident site is the intended target of a person who would be the
12 shooter; isn't that correct?
13 JUDGE ORIE: The simple question is, Mr. Van der Weijden,
14 whether, in all your reasoning, whether you assumed that the shot was
15 deliberately targeting the victim.
16 THE WITNESS: Yes -- yes, I did. I --
17 JUDGE ORIE: Simple questions, clear language, Mr. Ivetic, give
18 you the best answers.
19 Please proceed.
20 MR. IVETIC: Thank you for your assistance, Your Honour.
21 Q. Would an assault rifle using an ordinary 7.62 times 39 mm round
22 be an appropriate weapon to target BiH forces located at the cemetery
23 that is visible in your photograph on page 14? Approximately halfway
24 between the incident site and the alleged shooter site.
25 A. Well, I see the cemetery starting there halfway up to about, I
1 guess, three-quarters of the distance, and then an assault rifle still --
2 with this calibre would still not be the appropriate weapon for targeting
3 the BiH forces. It's -- it would still be at a range over 300 metres.
4 And firing several types of AK-47-type rifles myself, even at a range of
5 200 metres, it's already not an easy shot.
6 Q. What if it's the only weapon you have?
7 A. Then again as -- if I had positions on a location like
8 Baba Stijena, I would be foolish not to request machine-guns or heavier
9 weapons to dominate a valley below me. It's military -- from a military
10 view it would be very unwise not to request or provide from higher up the
11 appropriate weapons. But if --
12 Q. Sir --
13 A. -- there was nothing available, then have you to work with what
14 you got.
15 Q. I hope we're still talking about the shooter, because I thought
16 your report excluded the possibility of a machine-gun being used to wound
17 this victim.
18 A. I wasn't talking about this incident. I was talking about the
19 possibility of weapons on Baba Stijena, and I believe you asked me about
20 the cemetery.
21 Q. Do you permit the possibility that the shooter, armed either with
22 an assault rifle or a sniper rifle with a four times magnification, could
23 be targeting BiH forces located in the area of the cemetery and that an
24 errant shot or a missed shot could have struck the victim in incident F1?
25 A. I would have to break up that question. For the assault rifle,
1 it would be the question that I -- it would be an answer that I already
2 elaborated on. I don't believe an assault rifle would have that range
3 for the bullet. Even if he missed the cemetery, the -- the chances that
4 the bullet would travel that far away and still have the -- the effect
5 would be more than unlikely.
6 For the sniper rifle, no. If he was targeting the cemetery, then
7 there's no way that the -- the bullet will go out of the -- the view of
8 the -- at least maybe not the reticle itself, but it will be in the
9 sight, the view of the sight.
10 Q. Could this cemetery have been another possible shooting location
11 that could have line of sight with the incident site?
12 A. No, as you can see by the photo that's on the -- my other screen.
13 There's no view to anywhere above 50 metres than to Baba Stijena.
14 Q. You refer to the photograph that's on the screen. Do I take it,
15 then, that you recognise this location?
16 A. Yes, I do.
17 Q. And could you identify this location for the Chamber.
18 A. This is a photograph taken on the porch where the incident took
19 place, and it gives a view towards -- Baba Stijena isn't exactly visible
20 on this photograph, but I believe the -- the black markings on the
21 photograph give a view of what the victims and the witnesses believe the
22 shot came from.
23 Q. Do you believe that there is a line of sight from Baba Stijena
24 visible in this photograph?
25 A. I believe there is, because it more or less resembles the
1 photograph -- the photo that I took under different circumstances.
2 Q. Okay.
3 MR. IVETIC: Your Honours, I would move to admit this photograph
4 into evidence as the next exhibit number.
5 JUDGE ORIE: Mr. Registrar.
6 THE REGISTRAR: Your Honours, 65 ter 1D513 shall be assigned
7 Exhibit D125. Thank you.
8 JUDGE ORIE: D125 is admitted into evidence.
9 MR. IVETIC: And if we can call up 1D00515 and put that on the
10 left side of the monitor, and 1D00516 and put it up on the right-hand
11 side of the monitor, it might help speed things up.
12 Q. Sir, looking at the left side of the monitor, the first picture,
13 does 1D515 appear to be a different angle from the same location of that
15 A. It is. I believe it's in the vicinity because I see the porch to
16 the right, but it's not from the same location.
17 Q. Okay. And from that vicinity, if you look at the right picture
18 which is a magnification from that vicinity, do you now see the cemetery
19 in the upper right corner as having a visual line of sight with the
20 vicinity of the incident of sight?
21 A. Yes.
22 Q. And do you know -- strike that.
23 Did you -- did you note the cemetery when you were doing your
24 analysis, and did you perform any analysis in relation to positions from
25 that location?
1 A. Again, my method has been to visit the exact incident site, From
2 that incident site look where possible shooting positions were and from
3 the exact shooting position which is above -- it is with my head on the
4 ground since she was three years at the time she was hit in her leg. I
5 wasn't able to see the cemetery because it was blocked out of view from
6 the exact position, so I didn't visit the cemetery to see if I had a
7 reverse view to the incident site.
8 Q. Would you agree with me that in order to scientifically exclude
9 the cemetery site, one would have to go and perform the reverse of that
10 analysis to see if there's a direct line of sight from the cemetery to
11 the incident site?
12 A. No. I did not see -- I wasn't able to see the -- the cemetery
13 from the exact location of the incident site, so there was no need to
14 visit the cemetery.
15 Q. But you were at ground level.
16 A. Yes, that's correct.
17 Q. A shooter would not necessarily have been aiming at the ground
18 level, but the range might have made the bullet go lower than he was
19 aiming; is that correct?
20 A. I don't understand your question.
21 Q. Your methodology would not have determined if a shooter had a
22 line of sight higher than the foot of the victim; is that correct? In
23 excluding the cemetery as a potential source for the fire.
24 A. Well, if -- if the -- the --
25 JUDGE ORIE: Mr. Ivetic, a line of sight is, as I understand it,
1 a line to be drawn from a person looking to another object. Now, to say
2 a line of sight higher up means a different line of sight. So,
3 therefore, a line of sight, I would way, always in that same direction I
4 have a line of sight. Just look in the air and that's a higher up line
5 of sight, a star, whatever, a tower. Please be --
6 MR. IVETIC: Specific.
7 JUDGE ORIE: -- accurate in your questions and in the language
8 you are using.
9 And we are at four minutes past 10.30. Perhaps you would take
10 your break to think about the formulation of your questions.
11 We take a break, and -- but not before these pictures -- the 65
12 ter pictures where do they come from? Is it -- are they taken by whom --
13 MR. IVETIC: They are taken by the Defence experts, Your Honour.
14 JUDGE ORIE: When?
15 MR. IVETIC: I don't have that information.
16 JUDGE ORIE: Yes. Is there anything known about the exact
17 location from where the photograph was taken? And is there any
18 information about, especially, the altitude compared to the floor of
19 where the victim was? Because it looks -- I'm just looking at it. It --
20 it looks as if the position of the lens is at adult level or -- I do not
21 know exactly. But before we draw any conclusions from all of this, I
22 think we need to have precise information.
23 MR. IVETIC: And that's why we will have our Defence witnesses to
24 discuss that. I just wanted to see if he had seen the cemetery, and I
25 will now be asking him after the break about -- particularly about this
1 line-of-sight issue, because I believe there is an important point that
2 has been missed.
3 JUDGE ORIE: Then that may be -- we're looking forward to it.
4 We take a break, and we resume -- but not until after the witness
5 has left the courtroom. And we resume at five minutes to 11.00.
6 [The witness stands down]
7 --- Recess taken at 10.36 a.m.
8 --- On resuming at 11.02 a.m.
9 JUDGE ORIE: Could the witness be escorted into the courtroom.
10 [The witness takes the stand]
11 JUDGE ORIE: Mr. Ivetic, please proceed.
12 MR. IVETIC: Thank you, Your Honour.
13 Q. Sir, I want to make sure that I understand the technique that you
14 utilised to visually examine from the incident site to exclude the
15 cemetery as a potential source of the fire.
16 Am I correct that you, looking from ground level, that is with
17 your head on the ground, visually with your eyes examined and could not
18 see a straight line of sight with the cemetery?
19 A. That is correct.
20 Q. I thought you told me bullets travelled in parabolas.
21 A. They do.
22 Q. Did you account for that?
23 A. But first when I -- in the end I ended up looking at it from
24 ground level, but first, of course, I just took a look in the standard
25 position, and as well we would go down. So even from the standing
1 position I did see -- I could not see the cemetery from the exact
2 incident site.
3 Q. And how is it that you determined the exact incident site, that
4 is to say the precise location where the victim was situated when shot?
5 A. It was pointed out to me by the investigator, and it was -- as
6 well in the -- of the witness statement of the, I believe, the mother,
7 and there was also the exact location of where the bullet had penetrated
8 the -- let me see, the doorsill, the doorsill. Excuse me. Sorry for the
9 English. The wood next to the door. Sorry.
10 Q. The wood frame.
11 A. The wood frame, sorry. So that combination determined the exact
12 location, the level, and also the origin of fire.
13 Q. Okay. Now I'd like to move to another of the incidents that you
14 analysed, incident F3. If we can turn to 65 ter number 28541. This will
15 be page 20 in the hard copy, page 21 in English in e-court, page 27 in
16 B/C/S in e-court. And if we could not broadcast the same, just to be
17 safe. I'm not sure if there's any redacted information on that one since
18 we're using the unredacted original.
19 And I want to ask you, when we come up with that page, does this
20 table accurately indicate the entirety of all the source materials that
21 you had at your disposal and which you reviewed for purposes of
22 determining and making the conclusions that you made in this particular
24 A. It would be the same answer as for F1. So I believe this is the
25 information provided by the ICTY, but it does not include my visit to the
2 Q. When you say just as with your answer for F1, I guess I should
3 ask you this in relation to all of the scheduled incidents. Did you
4 actually read all of the documents that are on the table, or did you --
5 let's -- let's start with, first, the witness statements. Did you read
6 all the witness statements yourself, or did you operate off of summaries
7 that provided by the Prosecution investigators?
8 A. I read, reviewed, or viewed, because there were also some
9 photographs or video footage, but I reviewed everything that's listed in
10 the table.
11 Q. Okay. What about the crime reports to the extent that the crime
12 reports are included on some of the tables? Did you review the crime
13 reports in their entirety for the Scheduled Incidents?
14 A. If I did have the English translation, then I did.
15 Q. Okay. If we can turn to page 17 in the hard copy, page 18 in
16 English in e-court, and page 23 in B/C/S in e-court. We see here that
17 the distance from the alleged shooting site to the incident site is 1.104
18 metres. Would you agree, based upon our discussion, that this is a very
19 long-range shot, as we said yesterday, subject to all of the potentials
20 for a miss if the shooter -- because all of the factors you identified
22 A. I would agree that this is a very long-range shot.
23 Q. And, in fact, I believe somewhere in your analysis you even said
24 that this was at the extreme range for the type of rifle that you
25 concluded had probably been used. Could you explain that for us? Are
1 you saying that this rifle would not have been an appropriate rifle to
2 use to deliberately target the -- the incident range -- the incident
4 If I can help you out, it's the second-last paragraph.
5 A. This would -- that I believe that for all weapons this is extreme
6 range, for all small-arms. But I believe that from the weapons in the
7 report, the rifles that I have mentioned are the most appropriate ones
8 even though it would be at the extreme range.
9 Q. Is it your position, then, that it would be the only logical
10 conclusion that a rifle at its extreme range would be -- would be
11 intentionally targeting a target that is within -- that is at its extreme
12 range. Would that be a logical conclusion for a sniper to --
13 JUDGE ORIE: Mr. Ivetic, could I try to analyse your question
14 before we invite the witness to answer.
15 Would it be the only logical conclusion that a rifle at its
16 extreme range would be intentionally targeting a target ...
17 I -- I -- if I don't understand the question, the answer cannot
18 assist me, but let me just guess what I might want to ask. Is that if a
19 rifle is used to target a target in its extreme range, that we come close
20 to the point where the accuracy would so bad that it doesn't make much
21 sense to use such a weapon? Is that what you intended to --
22 MR. IVETIC: For this question, yes.
23 JUDGE ORIE: For this question.
24 THE WITNESS: I wouldn't completely agree. Quite recently I
25 fired a rifle with the same kind of calibre that ranges up to
1 1.150 metres, which is at extreme range but you can still hit the target.
2 So it's not -- it's not something you would choose, but -- well, like you
3 said -- like I said earlier, if this is the rifle that is the most
4 appropriate one, that's the one you would use.
5 JUDGE ORIE: With -- if I understand you well, for a trained
6 person, a fair chance of hitting the target.
7 THE WITNESS: Yes, Your Honour.
8 JUDGE ORIE: Please proceed.
9 MR. IVETIC:
10 Q. But you chose this potential shooting site over another one that
11 was closer and that would not have been at its extreme range; isn't that
13 A. That is correct.
14 Q. Is it also not true that the site that you identified -- so we
15 can all follow along, let's look at page 18 in the hard copy, page 19 in
16 English in e-court, page 25 in the B/C/S in e-court. I believe -- oops.
17 You identified --
18 JUDGE ORIE: Could -- Mr. Ivetic, I think I -- I know where
19 you're aiming at. Let's see whether I can put those short question to
20 the witness and see whether that covers what you intend to find out.
21 Looking at your report, you -- when considering the -- an origin
22 of fire of 636 metres, you say:
23 "The apartment block" --
24 That is, the block at 636 metres:
25 "... was occupied by ABiH troops at the time, with SRK troops
1 occupying the red-roofed apartment buildings across the street to their
2 east. The ABiH troops would unlikely have their focus towards the canal
3 with enemy troops that close by. In my opinion, the apartment block at
4 636 metres was not where the shooter was located."
5 This seems to a very strong conclusion based exclusively on your
6 opinion on what ABiH forces would focus at and has got little or nothing
7 to do with the technical expertise you gave in your report.
8 Would you agree with that?
9 THE WITNESS: Yes, Your Honour.
10 JUDGE ORIE: Mr. Ivetic, I hope to have assisted you.
11 MR. IVETIC: You have, Your Honour. Thank you.
12 Q. Now, focussing again on this apartment building which was --
13 which would be approximately -- well, about 400-and-some metres from the
14 alleged shooting site, did you consider that the building, apartment
15 building held by ABiH forces could have been the target of the shooter,
16 such that the Serb position was more logically aiming at that shot rather
17 than a long shot at the extreme range of its weapon?
18 A. It was not -- I didn't consider it because it wasn't possible.
19 Q. It --
20 JUDGE ORIE: So I may then take it that you considered it and
21 concluded that it was not possible?
22 THE WITNESS: Yes.
23 JUDGE ORIE: Please proceed.
24 MR. IVETIC:
25 Q. Is it your testimony that it was not possible to -- for the
1 alleged shooting position to target the apartment building?
2 A. It would be perhaps only - let's see - the most southern corner
3 of the apartment building, because otherwise they would be shooting their
4 own troops through the apartment blocks where their own troops were
5 across the street toward -- in order to hit the apartment block where the
6 ABiH troops were. The troops were on both on the west and east side of
7 the street.
8 Q. Okay. Yesterday I believe Judge Orie already asked you about the
9 location of the victim, so I will skip those questions.
10 But I want to ask you: Did the information that you were
11 provided by the Office of the Prosecutor include information that the
12 bridge was fortified with sandbags piled 2 metres high and that there
13 were armed ABiH soldiers near the bridge and also later on the bridge
14 shooting in the direction of the church?
15 A. No, I'm not aware.
16 Q. Would such information, if accurate, be of importance to
17 determining if the shots that struck the victim were intended for her or
18 were, in fact, missed shots aimed at the ABiH soldiers, either on the --
19 on or around the bridge?
20 A. If the ABiH soldiers would have been on the bridge and they would
21 view the church as -- as a dangerous location, I don't think they would
22 expose themselves on the bridge and therefore would not be visible. But
23 if the soldiers would simultaneously with the civilian on the water's
24 edge would be exposed, then the shots that were -- that hit the victim
25 could be aimed at the ABiH soldiers.
1 Q. If we could just briefly call up 1D00524. And that will be an
2 extract from the Galic Trial Judgement. Around at paragraph 350 of the
3 first page, the last line on the page, we see there the recitation of
4 some of the other witnesses of this incident talking about sandbags up to
5 a height of 2 metres being placed along the length of the bridge.
6 And if we go on the next page, it says there:
7 "On both sides to protect civilians closing the bridge, as well
8 as being dug so that people would not risk being wounded or killed while
9 fetching water from the river."
10 At paragraph 352, we see that there were, in fact, ABiH soldiers
11 who were near the bridge and were said to have later gone onto the --
12 "... positioned themselves on the bridge behind the sandbags and shot in
13 the direction of the Orthodox church."
14 Does this information that you did not have, is it of the type of
15 information that would have assisted you and led you to have more
16 detailed or different conclusions about the incident that has been
17 labelled as F3?
18 A. That would depend if I knew exactly what trail the ABiH soldiers
19 would have been following.
20 Q. Okay. Would that --
21 JUDGE ORIE: Mr. Ivetic, in your line of questioning, you are
22 putting fortified positions of soldiers. And then you say shot into the
23 direction of the Orthodox church.
24 But -- but you then, to give a complete picture, should also
25 read: "ABiH soldiers passing by the bridge saw what had happened."
1 So they were not positioned at the bridge. They were passing by
2 the bridge, and you --
3 MR. IVETIC: I think I said that, Your Honour.
4 JUDGE ORIE: [Overlapping speakers] ...
5 MR. IVETIC: I said, Your Honour, if you read my question, I said
6 that they later positioned themselves on the bridge. I did not at all
7 misrepresent the Judgement. I said that they were near the bridge and
8 that they later positioned themselves on the bridge and shot at the
9 Orthodox church.
10 JUDGE ORIE: Let me have a look -- I'll re-read it.
11 The witness may answer the question.
12 MR. IVETIC: It's at page 32, line 23, Your Honours.
13 THE WITNESS: I believe I already answered the question. If I
14 would have known exactly what the trail -- the track of the -- the troops
15 would have been, then it might have been of use. But I do not know what
16 their position was or exactly where they were walking.
17 MR. IVETIC:
18 Q. Okay. I would now look to move to incident F11 briefly. That
19 can be found beginning at -- if we return to 65 ter number 28541. This
20 is the incident that's -- that starts at page 39 in the hard copy,
21 page 40 in e-court in English, and page 49 in the B/C/S.
22 And while we wait for the e-court to come up, sir, this is the
23 incident that involved a tram line. Is that accurate?
24 A. That is accurate.
25 Q. Okay. And if we can turn to page 43 and 44 in the hard copy, and
1 page 45 and 46 in the English but not broadcast the same, can you
2 confirm, sir, that this table accurately indicates the entirety of the
3 materials that you had at your disposal, these two pages of the table, in
4 regards to this incident?
5 A. Again, I believe this is the totality of the information provided
6 by the ICTY but does not include the information that I got from visiting
8 Q. Did you review the medical reports listed herein?
9 A. Yes, I did.
10 Q. Okay. Do you recall that the entry wound was on the thigh and
11 the exit wound was at the hip, such that the wound canal for the named
12 victim stretched upwards?
13 A. Or downwards, depending on what side you --
14 Q. Or downwards, correct. Do you recall with respect to this
15 incident that the -- during the -- during the Karadzic proceedings you
16 viewed some videotape of this incident of other civilians that were hit
17 near the point of the tram. Is that accurate?
18 A. I believe so, yes.
19 Q. If I could refresh your recollection, and if we could look at
20 1D00536, which is the Karadzic transcript. And if we could turn to
21 page 39 in e-court, I believe that will correlate to transcript page 7059
22 from that trial.
23 And if we could look at line 17 onward, there's the video-clips
24 that were played. And I will recite for you the question and answer that
25 you had with respect to the video that was played from line -- I guess
1 it's line 18:
2 "Q. Mr. Van der Weijden, do you agree that the dust is going
3 vertically up under a large angle, probably 90 degrees or thereabouts?
4 "A. The particles are going up from the impact.
5 "Q. Mr. Van der Weijden, from the Serbian positions that were
6 321 metres away and at the elevation of 11 [sic] metres, the descent
7 angle in this situation could be maximum 5 degrees?
8 "A. I did calculate that yesterday evening, and it would be just
9 about 5 degrees."
10 JUDGE FLUEGGE: Mr. Ivetic, you misspoke. I think you said 11
11 metres but we see in the transcript 13 metres.
12 MR. IVETIC: Thank you.
13 Q. Sir, do you -- with the correction of the error in my recitation,
14 do you agree that this accurately reflects your calculations and findings
15 of the descent angle, the maximum descent angle from the alleged shooter,
16 the alleged Serbian position?
17 A. I believe so. It reflects the line of sight.
18 Q. Okay. And if we could turn to the next page in the transcript
19 and focus on the follow-up question that was proposed at line 12:
20 "Q. Thank you. But you can see where these people who are hit
21 are. They are a metre away from the place where the dust is going up.
22 What's the distance between their entry wound, which is 70 metres above
23 the ground, and the edge of the pavement? It's approximately 90 degrees.
24 I'm talking about angle. So, you see, they are not very far away from
25 the pavement ... they were hit at about 70 or 80 centimetres above the
2 "Can that make a 5-degree angle or a 35- or 45-degree angle?
3 "A. If it was just one bullet, it would not be possible. Or it
4 would be very unlikely."
5 Could you please --
6 JUDGE ORIE: Mr. Ivetic, have you got one second.
7 Mr. Registrar.
8 [Trial Chamber and Registrar confer]
9 JUDGE ORIE: I have a technical problem.
10 MR. IVETIC: No problem.
11 [Trial Chamber and Registrar confer]
12 JUDGE ORIE: Let's, meanwhile, proceed, but I can't have it on my
13 screen the way I want to have it.
14 Awaiting a solution for this, Mr. Ivetic, please proceed.
15 MR. IVETIC: Thank you.
16 Q. Now, sir, this selection that I've just read, first of all, could
17 you verify whether it's accurate and whether you would still answer the
18 same way or hopefully explain the answer. I'm -- that's what I was
19 really hoping you would do.
20 A. Well, I would like to explain the answer.
21 The questions are asked in a way that it is assumed that it's
22 only one bullet. Only in the video there is clearly a burst of fire
23 visible with impact and several bullets hitting the area. At 321 metres,
24 a burst from a machine-gun will, by its design, don't cover -- don't
25 cover a group of 10 centimetres. It will be a metre or more than a
1 metre, depending on the position of the machine-gun on a tripod, on a
2 bipod, the experience level of the -- of the gunner. So there will
3 always be -- the shots will never be exactly in the same location. Which
4 I believe accounts for entry wounds centimetres above the ground and
5 other rounds hitting the ground where the dust is visible.
6 I would also like that -- that dust is kicked up where a bullet
7 impacts the ground, but depending on the wind conditions of the -- of the
8 of that day, sometimes it's not visible, sometimes it will blow straight
9 up, sometimes it will move to the left, to the right. It depends on the
10 wind conditions. It's just dust.
11 Q. Is it your testimony that the --
12 JUDGE ORIE: Mr. Ivetic, I briefly discussed it with my
13 colleagues. It is very difficult for us to follow this evidence without
14 having looked at the video. I hope you understand. It is all
15 interpretation of what people have seen. We haven't seen it.
16 Therefore, could you please find a solution such -- especially
17 because it is about degrees and all kinds of details which I would like
18 to be able to verify.
19 MR. IVETIC: I would hope when the -- when the Defence experts
20 have completed their work that they will be able to come in and explain
21 everything for you. I obviously cannot present what was presented in
22 three days of cross-examination within the time period that we have in
23 this case, nor do I --
24 JUDGE ORIE: No. But the evidence is about -- you've looked at
25 the video. This is what you see. We want to see it as well so that we
1 are able to follow whether we agree with the observations by those who
2 are asking questions and are giving answers.
3 MR. IVETIC: Then I will have to move on because I don't have the
4 video or the means to present the video at this point, so ...
5 JUDGE ORIE: Okay. Let's then move on.
6 MR. IVETIC:
7 Q. With respect to --
8 JUDGE ORIE: One second.
9 MS. HOCHHAUSER: Yes, I apologise. I could -- I just wanted to
10 alert my -- counsel that I believe the video he is talking about is
11 actually the Prosecution 65 ter 22533. I don't know what -- what portion
12 of that video it is, though.
13 MR. IVETIC: [Overlapping speakers] ...
14 MS. HOCHHAUSER: Although Ms. Stewart informs me she -- she
15 thinks she can locate it.
16 JUDGE ORIE: Okay. Well, at least you have the assistance of the
17 OTP if you would -- if you would go the way that enables us to look at
18 the video.
19 MR. IVETIC: Okay.
20 JUDGE ORIE: Please proceed.
21 MR. IVETIC:
22 Q. In determining the -- in determining the potential location of
23 the fire, am I correct that you excluded the buildings that were closer
24 to the tram site and that, in fact, were looking upon the street upon
25 which the tram travelled, which were occupied by ABiH forces?
1 A. I did exclude those buildings as possible locations, that's
3 Q. Based upon what analyses did you exclude those locations?
4 A. On tactical assumptions. The Holiday Inn was a well-known
5 location for the international press, and if ABiH troops would have been
6 firing from that position onto the trams approximately 30 metres away, I
7 don't think it would have been ignored by the press.
8 Q. In your report at page 39 in the hard copy, which would be
9 page 40 in e-court of 29541 -- 28541, I apologise, Your Honour. Again, I
10 have difficulty with that number.
11 In your discussion, you identify that the victim stated that she
12 had heard a burst -- or had heard bursts of fire. That's under the
13 calibre/weapons category. And I want to ask you if -- is it more likely
14 if a shooting victim hears fire that the source of the fire is closer
15 rather than farther away?
16 A. In an urban environment, with echoing of buildings, the source of
17 fire would be -- would have to be over 600 metres to -- to lessen the
18 sound. 300 metres away is clearly hearable.
19 Q. Okay. I'd like to call up 65 ter number 1D00423. This is an
20 information report from the interview of General Sir Michael Rose with
21 the Office of the Prosecutor of this Tribunal. And if we could turn to
22 page 3 of the document, this is a selection I'd like to present to you
23 and ask some questions about. And it begins by saying -- it's at the
24 bottom of the page in English so we can follow along:
25 "I am sure that the Serbs were firing at the trams, but I believe
1 Ganic also organised his secret police to snipe trams. His sniper unit
2 sniped so that the angle of the shot matched the direction of the [sic]
3 Serb line. During long cease-fires, I think that Ganic and the Muslims
4 were responsible for breaking the cease-fire. This kept the tension."
5 Sir, in performing your analysis, did the Prosecution provide
6 information to you or was it otherwise available that the Bosnian
7 Presidency secret police snipers were believed to be sniping at the trams
8 in a way to mimic the angle and -- to mimic the direction of the Serb
10 A. I believe this is part of the evidence, and I've read all the
11 evidence. I believe this is part of the -- I -- I have read this. I
12 have taken into account, because I tried to identify all possible
13 shooting locations, if -- if shooters would try to mimic Serb forces
14 on -- across the river, in -- in their angle of fire they would have to
15 lean out of windows in order to be able to hit from -- to hit the trams
16 travelling when they passed the intersections.
17 So, therefore, leaning out of windows with the enemy -- in clear
18 view of the enemy, in my view, would be -- well, tactically very unwise
19 and very dangerous. So I don't believe, in this case, that it could have
20 been done from another position, although I don't know exactly who was in
21 the building across -- across the street.
22 Q. And just to be clear, you said you believe you've read this part.
23 Is it your testimony that you have read this information sheet previously
24 or that you've -- or were made aware of its contents? Which -- which is
1 A. I remember there are -- this is the list of the -- of the
2 information that I was provided at this time. I -- I do recall
3 information about this. I -- I can't remember exactly where, but I've --
4 it is familiar.
5 Q. Okay. Fair enough. I would like to move along to more one
6 incident before our time is up. F9, which begins at page 34 in your hard
7 copy, page 35 in the English version in e-court, and page 43 in the
8 B/C/S. And if we could not broadcast the same, that way we could be
9 assured that I'm not broadcasting any sensitive information.
10 And ... and, here, you have noted that the -- that uniformed
11 soldiers warned the victim of an active sniper.
12 Am I correct and was it your understanding that these soldiers
13 were Armija BiH soldiers?
14 A. They were uniformed soldiers.
15 Q. Okay. Would you permit that uniformed soldiers would have been
16 an appropriate and legitimate target for the opposing side to shoot at?
17 A. If the uniformed soldiers would have been in the same view of --
18 the same side picture for the shooter, then they -- well, I would agree
19 that a uniformed soldier could present a legitimate target.
20 Q. Did the information you received from the Office of the
21 Prosecutor, in relation to this incident, include any information as to
22 the placement of BiH or -- or Armija BiH personnel in the vicinity of the
23 incident site?
24 A. I can't say 100 per cent that I'm sure exactly where the -- those
25 uniformed soldiers were at that time.
1 Q. Did the information given to you by the Office of the Prosecutor
2 in relation to this event identify how far this location was from the
3 confrontation or front line?
4 A. No. I only -- the -- the trench that is mentioned in the reports
5 is a trench to -- to cross a street safely. It doesn't mention where
6 exactly the front line was.
7 Q. Okay. If we turn to page 36 of your hard copy, and page 37 in
8 English in e-court, and page 45 in the B/C/S in e-court.
9 And -- perhaps I should repeat that. So page 37 in English in
10 e-court and page 45 in the B/C/S.
11 And we have here a photograph that you say was part of the
12 information given to you by the ICTY to enable you to write the report.
13 Can I take it that you did not actually go to the site yourself to take a
14 photograph from the alleged shooting site. Is that accurate?
15 A. That is accurate.
16 JUDGE FLUEGGE: We have the wrong page in B/C/S on the screen.
17 MR. IVETIC: I apologise. It should be the next page in B/C/S.
18 Q. And could you tell me why it was that you did not go to the
19 incident site to verify that the information provided to you by the
20 Office of the Prosecutor was, in fact, accurate?
21 A. Well, I did visit the incident site. I didn't go to the alleged
22 shooting position. There was no possibility to visit the shooting
23 location at that time.
24 Q. Okay.
25 A. Also, the -- there used to be holes in the blind side, and the
1 picture that I was provided by the ICTY was taken from one of those
2 holes, former windows, but since the -- on the blind side those holes had
3 been fixed, there was no need for me to go there, as well as that there
4 was such a wide view of the -- of the area that I didn't deem it
6 Q. The photographs appears to have a magnification of -- of the
7 site. Do you happen to know what magnification or zoom factor was being
8 used for this photograph?
9 A. No, I don't.
10 Q. You state in your report that this was taken in the upper level
11 of the school of the blind. Can you be more precise? What floor?
12 A. The upper level. There's -- for the building, there are two --
13 in English, I believe, first floor is the ground floor. So it would be
14 on the second floor. Or higher. And on -- on the attic.
15 Q. Would you agree with me that there are other positions from which
16 the bullet could have come from that could have produced the same
18 A. They could have come from the windows in the -- on the -- the
19 southeastern side.
20 Q. Are you talking about the windows on the same building or a
21 different building?
22 A. Yes. There are other possibilities where the bullet might have
23 come from, but since the girls were using the buildings to -- to walk, it
24 would have been strange for the shooter to wait if he had been in the --
25 in the -- in one of the buildings that encircles the -- the square where
1 the girls were, to wait until she was at the corner. At the end of the
3 Q. Did the information provided to you also indicate where Dobrinja
4 was located? That -- the road towards Dobrinja.
5 A. I do remember that, looking at the map, that I was aware where
6 Dobrinja was, yes.
7 Q. If we can call up 1D527 --
8 JUDGE ORIE: Mr. Ivetic, before doing so and perhaps it could be
10 Could I ask the witness one clarifying question. I think it's
11 not only at this incident that you draw conclusions from when the shooter
13 Now, if I am in a position where I can see the victim, well,
14 let's say, walking for a hundred metres, a nearby position, and if there
15 is a position further away where you can see the person moving only for 5
16 or 7 metres, because that's, I think, the situation we are comparing.
17 THE WITNESS: Yes, I think so.
18 JUDGE ORIE: Now you say, I would not have expected the shooter
19 to wait that long. And this is not the only incident where you draw such
20 a conclusion.
21 Now, if someone, if I see someone walking from a nearby position
22 for 50 metres, you could also say, Take your time. If that person is
23 exactly in the middle, or I take my time to see whether there are no
24 other possible victims, or whatever, I mean, what is it in your
25 professional experience or expertise that you would expect a shooter
1 always to engage the target not halfway but right in the beginning, and
2 you draw quite some conclusions on the basis of that.
3 Could you explain?
4 THE WITNESS: Yes, I could, Your Honour.
5 If I'm in a prone position, that is, a position lying on the
6 ground behind my weapon, which is the position that is the most stable,
7 and for a longer time is the most preferred position by most shooters.
8 The other position would be on a table, on a chair behind a table with a
9 sandbag on the table which is in the sport shooting world knows as
10 benchrest shooting, those are the two most stable positions.
11 The problem with those positions that -- with being in a position
12 like that is you can -- you have only a small arc in which you can use
13 your weapon. So if the target is outside of that arc, you would have to
14 shift your position, aim again, and then eventually it's only a couple of
15 metres that you are -- you are at your utmost -- most comfortable
17 So if I wait for a long time, so at 50 metres and the victim
18 would move 400 metres, I would have to change position probably more than
19 ten times, which is not something that I would do. I would -- if there's
20 a moving target in this case, as she would have been if she was fired at
21 from within that square, I would have to -- I would spot her, I would
22 shift my position before her, that -- that she's walking into my arc of
23 fire, and then wait until she's in, follow her, and then put my sights
24 slightly before her, and then wait until she walked into my sights, and
25 then I would fire.
1 I so hope it explains why I excluded -- it depends -- it's about
2 shooting from a good position.
3 JUDGE ORIE: Yes. Now, it seems that the whole of your answer is
4 based on having the target within the arc already right at the beginning.
5 Now I am in a comfortable position as a shooter. I see someone.
6 I'm nearby. I have a long range. I know that that person is moving in
7 such a direction that in five seconds or ten seconds will enter the arc
8 of where I am positioned now.
9 THE WITNESS: Yes.
10 JUDGE ORIE: Then you could also say instead of moving, which you
11 say is not easy, not very comfortable. Let's just wait until the person
12 is there. I'll then aim, pull the trigger, I don't have to move my
13 weapon at all. So, therefore, that would be a logical explanation for
14 not shooting immediately when the person comes in sight.
15 I'm trying to understand your -- your logic.
16 THE WITNESS: I understand, Your Honour.
17 The -- I agree that I would -- I could wait a few seconds, but
18 the longer a target is visible, I don't know exactly what the target will
19 do. So if the target -- if there's a wall or a door and the target will
20 disappear, then I will have missed my shot, so ...
21 JUDGE ORIE: Now, if a target walks on a -- in a public place
22 from crossing the street, why not wait until she's in the middle of the
23 street, if that is comfortable as in view of the position of my weapon at
24 that moment?
25 THE WITNESS: Well, in this instance, I believe that the girls
1 were talking to -- they were warned by the soldiers so they were probably
2 standing at the corner and standing -- a static target is always better
3 than a walking target.
4 JUDGE ORIE: This is rather speculative.
5 THE WITNESS: It's speculative, that's correct, Your Honour.
6 JUDGE ORIE: Because it is not that the shooter would have known
7 the conversation which took place at a quite a distance.
8 THE WITNESS: No. But he would have seen that the target would
9 have been static for -- for a short time.
10 JUDGE ORIE: You -- yes. But it's -- you would agree with me
11 that your logic is involving a lot of speculative elements.
12 THE WITNESS: It's speculative but based on experience, sir.
13 JUDGE ORIE: Yes. That --
14 Please move on, Mr. Ivetic.
15 MR. IVETIC: Thank you, Your Honour. We are, I think, at the
16 time for the break, but -- is that accurate?
17 JUDGE ORIE: Mr. Ivetic, we are approximately at the time of the
18 break because we started approximately one hour ago.
19 How much time would you still need?
20 MR. IVETIC: Six minutes.
21 JUDGE ORIE: Six minutes. Then I am also looking at Mr. Mladic,
22 whether it would be preferable to, first, continue for six minutes and
23 then take the break. The Chamber is willing to take the break now,
24 whatever is preferred.
25 [Defence counsel confer]
1 [Trial Chamber confers]
2 MR. IVETIC: We're able to continue, according to Mr. Mladic.
3 JUDGE ORIE: Yes. Apart from that, I said we started an hour
4 ago. We started 54 minutes ago. We started after 11.00. We were late.
5 Please proceed.
6 MR. IVETIC: Thank you.
7 If we can call up 1D527 briefly.
8 Q. And, sir, does this intersection look familiar to you? Is it, in
9 fact, the intersection near the vicinity of the place of the incident?
10 A. My visit was in 2009. I don't -- I couldn't say for sure. I'm
12 Q. Okay. In respect to the incident site, did you agree that --
13 would you agree that there were potential directions of fire, in addition
14 from the direction of the house of the blind, that there was a clear
15 trajectory from Dobrinja or the opposite direction from Dobrinja as well?
16 A. I agree there were no potential directions of fire, but I could
17 not say the -- as for Dobrinja, if that was -- I couldn't say that now.
18 Q. Okay. If we look at the pockmarks on the building in this
19 photograph, first of all, in your opinion, could that be evidence of a --
20 that this location was the recipient of a significant exchange of fire
21 between the warring factions?
22 A. I remember seeing a lot of buildings in Sarajevo that looked like
23 this and had a lot of bullet-holes in them.
24 Q. I want you to focus on the buildings that you saw in the area of
25 the incident site for this particular incident. Were there a lot of
1 buildings that were pockmarked in this manner in that area when you
3 A. That -- yeah, that's correct.
4 Q. And -- and now I ask you: In your opinion, could those pockmarks
5 be evidence that this location was a recipient of significant exchange of
6 fire between the warring factions?
7 A. There was, over the time that the conflict took place, over that
8 time, those shots would have been collected, but I don't know if that was
9 done in -- within a week, which would have been very intense, or over the
10 course of months or years.
11 Q. Okay.
12 MR. IVETIC: I guess I should tender this photograph based upon
13 the questions about the building; but I do not, at this time, intend to
14 rely upon the markings of the locations. That will have to wait for
15 another witness.
16 JUDGE ORIE: Yes. First of all, we'd have to know exactly where
17 the picture is taken and what it depicts.
18 Is there any dispute about the pockmarks on the building, that
19 are the traces of fire?
20 MS. HOCHHAUSER: No, Judge. I wouldn't dispute the pockmarks as
21 to the location. Obviously I would have an objection for it coming in --
22 as to the precise locations.
23 JUDGE ORIE: Yes.
24 Mr. Ivetic, do you want to tender it now or not? Or would you
25 wait for a later moment? If you want to tender it, we need more details
1 about --
2 MR. IVETIC: Could I at least get it MFI'd so that we don't lose
3 the discussion that this witness has had with respect to it or ...
4 JUDGE ORIE: That seems to be fair.
5 Mr. Registrar, the MFI number this document would receive, this
7 THE REGISTRAR: D126, Your Honour.
8 JUDGE ORIE: The document is marked for identification as 126.
9 Mr. Ivetic, please proceed.
10 MR. IVETIC:
11 Q. I earlier asked you, sir, if you knew how far the confrontation
12 line was from this location. I believe you said you did not. Did you at
13 least know the direction the confrontation line was from the incident
14 site was for this particular incident?
15 A. No, I only know that the school of the blind was viewed as a
16 sniping nest by the people and that there were ABiH soldiers close to the
17 trench where the girls were.
18 For the rest, I do not know where the confrontation line was.
19 Q. Let's see if I can try one more photograph. 1D528.
20 And while we're waiting for this, in the information that was
21 provided to you when you visited the location, did anyone mention the
22 retirees' home or nursing home that was approximately 40 metres from the
23 incident site?
24 A. I remember seeing this building, but I don't recall any other
25 information about it.
1 Q. Okay. When you say you remember seeing this building, did you
2 remember seeing this building nearby the incident site for this incident?
3 A. If nearby would be within 300 metres, I believe so, yes.
4 Q. And that's fair enough. Is the building and the damage to the
5 building representative of what the surroundings of the incident site
6 looked like or showed evidence of?
7 JUDGE ORIE: Do you mean about as far as bushes are concerned,
8 about gates, about --
9 MR. IVETIC: The damage. The damage to the building, the
11 THE WITNESS: Well, I believe this building looks worse than --
12 probably it's a different type of building than the apartment building
13 that we just saw. This building, I believe, is built of solid bricks and
14 the apartment building is usually of -- from the houses that I have seen
15 in Bosnia, most of the houses have hollow bricks, and one bullet will
16 have a bigger effect on it than on a brick -- a solid brick wall, as well
17 as for the stucco on the walls, it doesn't necessarily represent the real
18 damage. But this building does look worse than other buildings that I
19 have seen.
20 Q. My information is that this is 40 metres, approximately, from the
21 incident site, but it doesn't matter. I'll go with your within 300
22 metres. If the confrontation line and buildings with this type of damage
23 are 300 metres from the incident site, can you, with a reasonable degree
24 of professional scientific certainty, exclude the possibility that the
25 victim in this case was wounded by cross-fire or fire emanating from the
1 warring factions at the confrontation line?
2 A. I wouldn't rely entirely on scientific certainty. I believe
3 there are other factors.
4 If I were a young girl, even if I was -- wanted to keep my shoes
5 clean, which I believe I read in the -- in one of the witness statements,
6 if there was shooting going on, I would not try to cross the street. So
7 that it is not scientifically but it is pure logic, in my view.
8 Q. Well, in your view, if you were a young girl and soldiers had
9 told you not to go a particular way because it was dangerous, would you
10 have gone?
11 A. That is what I've read in the witness statement. But the line
12 between people telling me where not to go and actual exchange of fire
13 with bullets whizzing by, I believe that is something completely
15 Q. Okay. Fair enough, sir. I thank you for your answers.
16 MR. IVETIC: And, Your Honours, I have concluded with this
18 JUDGE ORIE: Then we take a break.
19 Could you give us an indication, Ms. Hochhauser, as to how much
20 time you would need after the break for re-examination?
21 MS. HOCHHAUSER: I'll be able to give a more precise estimate
22 at -- directly upon returning, but I would say approximately half an
24 JUDGE ORIE: Yes. We'll consider that. Please consider what is
25 necessary to be asked in re-examination.
1 Then could the witness be escorted out of the courtroom.
2 [The witness stands down]
3 JUDGE ORIE: We whether take a break, and we will resume at 25
4 minutes past 12.00.
5 --- Recess taken at 12.05 p.m.
6 --- On resuming at 12.28 p.m.
7 JUDGE ORIE: Before we continue, I'd like to move into private
9 [Private session]
21 [Open session]
22 THE REGISTRAR: Your Honours, we're in open session.
23 JUDGE ORIE: Thank you.
24 Could the witness be escorted into the courtroom.
25 [The witness takes the stand]
1 JUDGE ORIE: Mr. Van der Weijden, you will now be re-examined by
2 Ms. Hochhauser.
3 Ms. Hochhauser, you may proceed.
4 MS. HOCHHAUSER: Thank you, Your Honour.
5 Re-examination by Ms. Hochhauser:
6 Q. Mr. Van der Weijden, during your cross-examination, you were
7 asked on several occasions about the -- whether the charts in the back
8 of -- lists that you list in your report following the incidents included
9 this -- the entire sum of everything that you considered for that
11 Did you also, in addition to what is in those charts -- excuse
12 me, sorry. You also referenced in your responses certain videos and
13 photographs. Did you also see videos taken with witness -- with victims
14 and an OTP investigator, such as the one we saw in Court yesterday at 65
15 ter 22457?
16 A. Yes, I did.
17 Q. And -- let's see.
18 Okay. Also, earlier today, and this is in regard to incident F9,
19 at temporary transcript page 41, lines 17 through 19, you were asked
20 about, in particular, whether you would permit that uniformed soldiers
21 would have been an appropriate and legitimate target for the opposing
22 side to shoot at.
23 In response, you stated: "If the uniformed soldiers would have
24 been in the same view of the same picture for the shooter, then they --
25 well, I would agree that a uniformed soldier could present a legitimate
2 And I would like to -- I would like, at this point, Your Honours,
3 to show -- to add to the 65 ter exhibit list a statement of one of those
4 witnesses, 65 ter 28627. And, Your Honours, for your information, this
5 has been -- this is a document that is one of the subjects of the
6 Prosecution's fifth 92 bis motion filed 6 September 2012.
7 JUDGE ORIE: Let me just try to understand you.
8 You said you'd like to add the statement to the 65 ter list. Is
9 that not included in the 92 bis motion? And even for a 92 bis witness, I
10 would expect that the witness statement would already be on the 65 ter
12 MS. HOCHHAUSER: Your Honour, we did not -- had not yet assigned
13 it a 65 ter number, although it is a pending statement that's subject of
14 one of those -- of that motion. Which is still pending.
15 JUDGE ORIE: What you're doing at this moment, so you are
16 assigning a 65 ter number to that. It doesn't -- is yet, not yet, on the
17 65 ter list.
18 MS. HOCHHAUSER: It has been disclosed to the Defence. It is a
19 subject of that pending 92 bis motion but it had not yet been assigned a
20 65 ter number.
21 JUDGE ORIE: Yes. But what are we supposed to do with it now?
22 MS. HOCHHAUSER: I would like to have the witness look at a
23 portion of it.
24 JUDGE ORIE: To look at a portion. Or would you like to ask
25 questions about it? It is a bit unclear to me how you want to proceed.
1 MS. HOCHHAUSER: I could simply proceed by quoting from it
2 without showing it.
3 JUDGE ORIE: Yes. Perhaps that would be -- if the Defence is
4 then aware it has been -- it's disclosed material, and it arises now in
5 cross-examination; therefore, please do as you suggested.
6 MS. HOCHHAUSER: Okay. Thank you, Your Honour.
7 Q. So, Mr. Van der Weijden, referring back to that same portion of
8 testimony about F9, and I'll refer to information that -- from a
9 statement that you list in your chart in regard to F9, the statement of a
10 witness dated 8 November 1995 in which -- and this is from one of the
11 victims. In which she says:
12 "Not from my place at about 1900 hours or 1930 hours, we arrived
13 at a spot where we saw soldiers on the opposite of the street. They were
14 at a balcony on the third floor and shouted at us."
15 And this is the shouted warning that was referred to, that was
16 discussed in the cross-examination, the shouted warning to the two girls
17 about snipers in the area.
18 So, Captain, my question for you, is: These soldiers on the
19 third floor of the building on the opposite side of the street, and given
20 the distance that's noted, the short distance that is noted in your
21 report from the location in the school of the blind that you identified
22 as the origin of fire, and the -- and the incident location where the
23 girls were shot, if the shooter was aiming at soldiers in such a
24 location, would you expect the soldiers to be in the same view of the
25 shooter as the witness and her friend?
1 A. How -- reading these lines, I believe that the soldiers, if they
2 would have been on the third floor of the building on the opposite side
3 of the street, they've been on a balcony facing the square where the
4 girls were also present. They wouldn't have been visible to the point of
5 origin, which I think is the school of the blind. So they wouldn't even
6 have been visible.
7 Q. Now, I'd like to refer you now to yesterday's transcript,
8 page 6544, at line 22, where you had the following question and answer:
9 "Q. Would you agree with me that you cannot know if there are
10 any other targets in the area on that day that may have been the intended
11 target, which resulted in a missed shot that could have struck this
12 victim in the manner we discussed before?"
13 And you answered:
14 "No, I do not agree."
15 Can you explain or elaborate upon this answer.
16 A. Could you point out in -- what incident is involved in this one?
17 Q. I -- I don't believe that it was -- let me just turn to it. I
18 don't believe that it was a specific incident. It was a general
20 Do we see the -- let's see ...
21 A. I believe I -- I think I remember that we were discussing
22 Spicaste Stijena at that time, Sharpstone. And, as I recall, there -- it
23 was about the BiH lines down in the valley, if they could have been the
24 intended target instead of the target, the further -- further in the
25 valley. I think --
1 Could we check that? Is it possible?
2 Q. Yes. Actually, if we could -- if we can go ... to the question
4 JUDGE ORIE: It's about the second of the Unscheduled Incidents,
5 it seems, Spicaste Stijena. We find that on line 14: "If we can turn to
6 the second of the Unscheduled Incidents."
7 That was what the question was about. It was about a shot at a
8 range of 850 to 950 metres. You said: "It is a difficult long-range
10 And then the question just quoted by Ms. Hochhauser was put to
12 Ms. Hochhauser, any further questions on this matter?
13 MS. HOCHHAUSER:
14 Q. Did -- did -- did being pointed to that enable you to clarify
15 your answer or expand upon the answer when you said, No, I do not agree
16 with Mr. Ivetic's proposition.
17 A. Yes. What -- because we -- I believe we were discussing the --
18 the ABiH lines compared to the VRS positions at that time. The
19 difference between the ABiH lines and the incident site is that far apart
20 that there is no -- there can be no stray shot or the -- the -- as people
21 commonly refer to it, or a missed target. The -- it was the -- the only
22 civilian target within that area. The military targets were further
23 down, closer to Sharpstone, and shots fired at that direction or at those
24 positions, then guns would have -- be elevated to an extreme level. It's
25 close to zero.
1 JUDGE ORIE: You just exclude any military target which is not on
2 a fixed position close to the confrontation line; is that correct?
3 THE WITNESS: I concluded that that target was that far from the
4 confrontation line, that there was no military target close to that --
5 not -- front line target close to the incident's location.
6 JUDGE ORIE: Yes. But that doesn't resolve the problem. Could
7 there be two soldiers walking nearby, which is not a fixed position, at
8 the confrontation line? Not to say that there's any evidence for that at
9 this moment, but ...
10 THE WITNESS: That might have happened.
11 JUDGE ORIE: So --
12 THE WITNESS: I accept that.
13 JUDGE ORIE: You just do not know. You say -- as a matter of
14 fact, you say it was the only civilian target you are aware of, where you
15 have considered primarily fixed positions close to the confrontation
17 Is that how I have to understand your --
18 THE WITNESS: That is correct, Your Honour. It is the only
19 civilian target compared to the positions at the confrontation line.
20 JUDGE ORIE: Please proceed, Ms. Hochhauser.
21 MS. HOCHHAUSER:
22 Q. I'd like to turn to today's temporary transcript, page 13,
23 lines 21 through 25, and in the context of the methods that might be used
24 to overcome the visibility problems of an optical scope on a sniper rifle
25 you were asked about whether you knew what equipment was available to
1 either the snipers of the VRS or the Army of BiH.
2 In connection with this line of questioning, can we please draw
3 up on the monitor 65 ter 28490.
4 And this is a Sarajevo-Romanija Corps command order number
5 20/15-1244, signed by Stanislav Galic, dated 29 October 1993.
6 MR. IVETIC: Your Honour, just for the record, this is also one
7 of the documents that was not identified as having been reviewed by the
8 witness in his expert report and which was the subject of the objection
9 to the, quote/unquote, 31 documents that was in the Defence response to
10 the 94 bis submission for this witness.
11 JUDGE ORIE: Yes. But it now apparently has become relevant on
12 the basis of your cross-examination, which creates a different situation.
13 MR. IVETIC: Right. I'm just bringing it to the record that this
14 is one of the documents.
15 JUDGE ORIE: Yes.
16 Ms. Hochhauser.
17 MS. HOCHHAUSER: I'm not seeing the document on the screen.
18 Oh ... sorry. Thank you.
19 JUDGE ORIE: Now let me just see ... yes.
20 Please proceed.
21 MS. HOCHHAUSER: Okay.
22 Q. And I would draw your attention, Captain, to the
23 paragraph labelled 1 on page 1 of this document, where it states that:
24 "Each brigade set up a platoon-strength snipers group, 30 plus 1
25 soldiers. These should be supplied with sniper rifles, optical and IC
1 infrared passive sights silencers."
2 Is there any equipment mentioned in the extract that I've just
3 read out that could be used to overcome visibility problems of an optical
4 scope on a sniper rifle?
5 A. Well, I believe the infrared and passive sights would certainly
6 be able to overcome low visibility concerning -- low-light visibility
8 Q. And as a follow-up to this document, I'd also like to draw up,
9 please, 65 ter 28491.
10 And if we could scroll down to the final paragraph on the first
11 page, where it reads:
12 "Thus far" --
13 It's the last sentence in the English. I'm sorry, I can't
14 identify it in the B/C/S.
15 "Thus far, the snipers from the subordinated units have been
16 active mostly in pairs, in the areas of Trebevic, Hresa and Podgrab ..."
17 And, again, I apologise for any mispronunciations.
18 And, again, in the context of overcoming visibility problems of
19 an optical scope on a sniper rifle, does the working in pairs have an
20 impact on that?
21 A. It most certainly would. As I have written in the report is that
22 working in pairs enhances the effectivity of the -- of the sniper, since
23 the spotter can support him with his optical sights. Or his -- his
24 optics and, in general, binoculars or his spotting scope.
25 JUDGE ORIE: Ms. Hochhauser, just to say that you can't identify
1 it in the B/C/S is not -- is it on this page? Let's have a look where
2 it's supposed to be. I think it is at bottom part.
3 MS. HOCHHAUSER: Yeah, I just wasn't able to identify that
4 particular sentence on the -- in the B/C/S.
5 JUDGE ORIE: Well, I see the word "zrak," which immediately
6 precedes the portion you read in the last paragraph on the first page.
7 And Trebevic appears on the fifth line of the -- in that bullet point
8 part on the first page.
9 Yes, please proceed.
10 MS. HOCHHAUSER: Okay.
11 Q. And Captain, in fact, at yesterday's transcript, page -- it
12 was -- I have here noted 650, but I -- that may have been the -- the
13 temporary transcript which I noted down.
14 But you were -- you were asked specifically a question about a
15 portion of your report in which you identify that snipers work in pair --
16 are often found working in pairs. And the question read:
17 "Among those items" --
18 Well, the full question read at page 4 in the English and page 6
19 of the B/C/S:
20 "You outline tasks and deployments of the sniper and training of
21 a sniper. And among those items you include several times the necessity
22 of a sniper team to consist of two persons."
23 So, again, I want to make sure that is in relation to your
24 experience and knowledge as to NATO armies. And I see it's at transcript
25 6.520. And that you are not suggesting any expertise or knowledge of
1 such factors in relation to the Army of Republika Srpska or the Army of
3 And so I would also like to ask you in regard to what is on --
4 what the document -- the document that is still on the monitor, 28491,
5 where it says that the units have been mostly -- active mostly in pairs,
6 what that suggests to you.
7 A. Well, that would suggest that snipers are, in fact, using the
8 same time of tactics as NATO armies, since working in pairs makes them
9 more effective.
10 Q. And, Your Honour, at this time, I'd like to tender, please, 28490
11 and 28491.
12 A. Excuse me, it should be -- because I'm reading which suggests
13 that snipers are, in fact, using the same type of tactics. Instead of
15 JUDGE ORIE: Mr. Ivetic.
16 MR. IVETIC: Well, to the extent that the witness has testified
17 about it now, I don't see the -- if I can object. But, again, it's
18 mixing and matching apples and oranges. Because the questions I asked
19 were related to whether he had reviewed anything prior to issuing his
20 report and had any knowledge thereof, and now we're pulling out one
21 document that he hasn't seen until the courtroom, and it's being
22 presented for something. So I have an objection to the manner in which
23 it is being presented, but I do believe that the documents should be
24 entered because the witness has testified about them.
25 JUDGE ORIE: Ms. Hochhauser, there seems to be no objection,
1 so -- unless you want to -- to admission.
2 MS. HOCHHAUSER: Well, no. Except that there is no objection to
3 admission. But I would just say that actually the questions yesterday
4 were to -- went directly to the weight of this witness's testimony based
5 on his area of knowledge. And so the similarities --
6 JUDGE ORIE: Ms. Hochhauser, yes. There's no objection.
7 At the same time, I take it that you want to say that apples and
8 pears are similar fruits of the same size; whereas, you are pointing at
9 the difference between apples and pears.
10 Mr. Registrar.
11 THE REGISTRAR: Your Honours, 65 ter 28490 becomes Exhibit P675;
12 while 65 ter 28491 becomes Exhibit P676. Thank you.
13 JUDGE ORIE: P675 and P676 are admitted into evidence.
14 MS. HOCHHAUSER: If we could please show --
15 JUDGE FLUEGGE: Before you do that, I think the witness made a
16 correction of the transcription where the correction is not recorded
17 correctly. I think. Page 36, line 6. If I understood you correctly,
18 you said the same of -- type of tactics; is that right?
19 THE WITNESS: That is correct, Your Honour. And tactics is
21 JUDGE FLUEGGE: Thank you. It was page 63. I misspoke. Sorry.
22 JUDGE ORIE: And now, finally, did you correct in this way, the
23 language you used before, or did you correct the transcript?
24 THE WITNESS: I corrected the correction on the transcript of the
25 language that I used before.
1 JUDGE ORIE: Yes.
2 Please proceed.
3 MS. HOCHHAUSER: If we could please have 65 ter 25229 on the
4 monitor. Which is the programme for a sniper course in the VRS issued by
5 the Republika Srpska Main Staff.
6 Q. And, sir, I believe you've had the opportunity to see this
7 document before. But if we could -- if I could ask if we could just
8 slowly turn to page 1 and then 2 so that the witness can recollect what
9 it is he is looking at.
10 And do you recall having seen this document?
11 A. Yes -- yes, I do.
12 Q. And can you tell us whether the training course for snipers in
13 the VRS run by the Republika Srpska is typical or atypical of the sniping
14 curricula that you are familiar with from your experience?
15 A. The subjects of the course would -- are certainly familiar -- of
16 similar with other courses.
17 MS. HOCHHAUSER: I'd like to tender this document, 65 ter 25229,
19 MR. IVETIC: Well, on this one, there has been no basis for it to
20 be admitted in whole. I mean, I don't even know how many pages this one
21 is, Your Honour. But this witness, just by saying -- looking at one page
22 and saying it appears to be consistent with what NATO courses teach
23 doesn't meet, I think, the standards for admission of a document if it's
24 being presented for the truth of the matters asserted therein.
25 MS. HOCHHAUSER: Your Honours, I would say that the witness has
1 actually testified that he has seen the whole of the document. I just
2 didn't take the time in court to flip through each page. And, again --
3 and I -- I don't want to the co-opt Your Honour's words, but I think
4 we're having the same argument about the apples and the pears. I think
5 the Defence has, in its cross-examination, made the point that he has
6 knowledge -- or tried to make the point that this witness's knowledge is
7 not based or not applicable to the Army of the Republika Srpska, and so I
8 think that it's proper re-direct and proper comment from the witness to
9 talk about -- to -- to put in evidence that it is similar and that it
10 does jive with what he has testified to.
11 JUDGE ORIE: There are two issues.
12 The first one, whether what is written here has happened. That
13 is a matter, part of the evaluation of the evidence giving weight to the
15 The objection is denied.
16 Mr. Ivetic, you have consistently challenged that training,
17 education, many aspects of sniping in the former Yugoslavia, may have
18 been -- in the Republika Srpska may have been different from what the
19 witness told us was usual in other armies.
20 This is a document which allows him to compare what was at least
22 Now, Ms. Hochhauser, before we decide on the matter, the document
23 is dated 1995. Do you have any further details? And, apart from that,
24 it is an attachment number 7, I think, to another document.
25 It was attached to what?
1 MS. HOCHHAUSER: I -- Your Honour --
2 JUDGE ORIE: Annex number 7, it says.
3 MS. HOCHHAUSER: I would have to take a -- take a few moments to
4 answer that question, so if -- if we could, if I could have the
5 opportunity to provide you with that information at a later date and
6 revisit the ... the issue, I would.
7 [Trial Chamber confers]
8 JUDGE ORIE: The document will be MFI'd.
9 Mr. Registrar, the number to be assigned would be ...
10 THE REGISTRAR: P677, Your Honours.
11 JUDGE ORIE: P677 is marked for identification.
12 You may proceed.
13 MS. HOCHHAUSER: If I could please have 65 ter 28602 on the
15 Q. And, sir, while it's coming up, you've had the opportunity to
16 visit the Metalka building, have you?
17 A. Yes -- yes, I have.
18 Q. Okay. And that is the location that, in your opinion, was the
19 origin of fire of several of the Scheduled Incidents? I believe 11,
20 12 -- at least 11, 12, and 14.
21 A. That is correct.
22 Q. Now, can you recognise what's on the screen now? Do you
23 recognise that view?
24 A. Just a moment, please.
25 Yes, I recognise the structures in the -- in the view, in the
2 Q. And can you tell us the likelihood -- we've heard on
3 cross-examination about the possibility that victims of the incidents
4 that you address in your report were hit by errant shots. And can you
5 explain the likelihood of a range of deviation -- excuse me. Can you
6 explain the range of deviation of a -- of a shooter from such a position
7 as this?
8 A. Well, if the shooter would use a 7.62 times 39 millimetre rifle
9 or 7.62 times 51, 54, or the 7.9 at a range of a little over 300 metres,
10 the point of aim, it -- it depends on the adjustments on the scope. But
11 I believe that the deviation would be not more than 1 metre. But then he
12 would have make -- made a -- big mistakes.
13 Q. Okay. And this -- I'm sorry, you did say you recognised the
14 location. Can you tell us what the location is? What you recognise --
15 A. I recognise the yellow building, which is the Holiday Inn, the
16 hotel. And I recognise the street that runs between the Holiday Inn and
17 the Metalka building.
18 MS. HOCHHAUSER: So I would like to tender this exhibit, please.
19 MR. IVETIC: No objection.
20 JUDGE ORIE: Mr. Registrar.
21 THE REGISTRAR: Your Honour, 65 ter 28602 shall be assigned
22 Exhibit P678. Thank you.
23 JUDGE ORIE: P678 is admitted into evidence.
24 Could I ask one follow-up question in this context,
25 Ms. Hochhauser.
1 MS. HOCHHAUSER: Yes.
2 JUDGE ORIE: At -- for various incidents, you have pointed at
3 witnesses saying it -- shots came from the Grbavica building, and you
4 said that was impossible apart from how that building is identified, but
5 because that seems not to be very specific.
6 But then you always jump to the Metalka building. You say, There
7 is a building in that area. And then you start explaining that -- you
8 could have fired from there and hit the target.
9 Have you also considered other buildings in the same area?
10 Because you do not explain why you choose for the Metalka building rather
11 than any other building which could serve as a substitute for the
12 rejected Grbavica building?
13 THE WITNESS: Yes, Your Honour.
14 The Metalka building is at the end of the street. The street
15 itself forms a natural tunnel, and so from the location where the -- the
16 tram I believe just -- was hit just in front -- just before the
17 Holiday Inn hotel, just before the S-curve in the tracks where the tram
18 would have to slow down if travelling from west to east, there's only one
19 building that has a direct view on that intersection that is -- in a
20 tactical way and a technical way, the -- an option.
21 So I took into account other buildings, but the only other
22 buildings that would offer a technical possibility are the museum close
23 to the street and the faculty. The buildings in the streets, they
24 would -- it -- is where I have testified that shooters would have to lean
25 out the windows and expose themselves to enemy positions in order to be
1 able to fire at the location. So that is where -- how I ended up at the
2 Metalka building. It's simply for me, it's the only option there is.
3 JUDGE ORIE: Yes. You have excluded other options.
4 THE WITNESS: Yes, Your Honour.
5 JUDGE ORIE: So your report would have been complete if you would
6 have said, Having considered all the possible buildings, I ended up that
7 the Metalka building was the one who had a free view or a free line of
9 THE WITNESS: Yes, Your Honour.
10 JUDGE ORIE: Please proceed, Ms. Hochhauser.
11 MS. HOCHHAUSER:
12 Q. If I could ask you a follow-up clarification of the language that
13 you used in your response to Judge Orie just now.
14 You used the word "tunnel." "The street itself forms a natural
15 tunnel." And I think you used that same word in describing the bridge
16 incident when you were describing the water.
17 Can you tell us what you mean by "a tunnel"?
18 A. It's -- it comes more or less from a tunnel view. It's -- there
19 are buildings on left and the right side and -- that forms -- yeah. It's
20 a natural tunnel towards somewhere or from somewhere. So you are boxed
21 in on the left and the right side.
22 Q. Captain, we've heard evidence in this proceeding for -- to the
23 effect that there were trained snipers operating in the Grbavica area.
24 How likely do you think it that a trained sniper would accidentally hit a
25 tram in front of the Holiday Inn while firing from a position within the
1 Metalka building?
2 A. Well, not likely. For a trained sniper.
3 Q. And counsel was asking about the possibility of the victim of F1
4 being hit by an errant shot. Did you view the witness statements of the
5 parents of the child, Mr. And Mrs. Pita, in relation to that incident?
6 A. It is a long time, but if the witness statements are listed in
7 the evidence list that I provided, then I have read them.
8 Q. And to your recollection, was there any indication of an ongoing
9 fire-fight in that vicinity at the time the victim was struck?
10 A. I recall that there was mentioning of a few shots earlier in the
11 morning and that there was fog in the morning, but I don't -- I think I
12 read ...
13 Q. Well, I'm sorry. If I can ask you the question a different way.
14 Would -- would information about whether other shots were heard
15 or not heard be a factor that you would consider in whether -- in
16 considering whether this -- whether the child was an intended target of
17 the -- of the shooter?
18 A. They might be a factor, yes.
19 Q. Can you explain that.
20 A. Well, if the shots were heard or there were impacts in the
21 vicinity of the incident site, then those shots might have been intended
22 for the target as well.
23 Q. Okay. And what would you expect to hear if there was an ongoing
24 return of fire between the two parties up on the ridge of -- of Baba Rock
25 and in the cemetery of Baba Rock?
1 A. Could you explain?
2 Q. Yeah. There was questioning about whether the bullet that struck
3 Anisa Pita could have been the result of a volley of fire on -- between
4 the -- the BiH and VRS positions up on Baba Rock. What would you expect
5 to hear if there was -- if there was ongoing -- if return of fire between
6 the two parties at the time that the victim was shot?
7 A. Well, you would hear different -- every -- the shots that would
8 have been fired from the cemetery would sound different from the ones
9 from Baba Stijena because of the -- the difference in distance. So you
10 would be able to clearly distinguish between a fire-fight that wasn't in
11 the -- in the direct area.
12 Q. And are there other factors that you would consider when
13 examining whether somebody who was the victim was -- whether -- excuse
14 me. When considering whether the victim that was struck was actually the
15 intended target of a shooter?
16 A. Well, there are -- there was the issue of identification that I
17 will take into account. I believe for this instance that there is --
18 that the courtyard where the girl was is, it's not the easiest location
19 to look at because it's -- it's -- it's a darker hole than the
20 surroundings. So identification is something that I always take into
21 account. But I also look if there are tactical positions or if they had
22 been there nearby. So if they are mentioned in witness statements that
23 there were soldiers close by, then that might be a factor that I would
24 include in my research.
25 JUDGE ORIE: Could I try to analyse your last answer and see what
1 it really means.
2 The question was whether the victim that was struck was actually
3 the intended target of the shooter.
4 Now, part of your answer was the issue of identification.
5 Now, if the person struck would be a small child, would that be
6 an intended shot at that target?
7 THE WITNESS: I'm sorry, Your Honour, I think I misinterpreted
8 the question the little bit.
9 Identification is not something entirely relevant to the
10 question. What I do consider is the actions of the target at the time of
11 the incident -- I'm sorry.
12 JUDGE ORIE: Still then, how could this tell you that the shooter
13 was intending to target that person or that place? It depends, isn't it,
14 if the shooter, let's just assume for argument's sake, that the shooter
15 is not willing to act in accordance with the -- with the rules
16 applicable, then if you shoot a small child, he may have intended to do
17 so. If the shooter wanted to obey all the rules, then hitting a small
18 child might be an indication that he was not intending to target that
20 So, therefore, how could you possibly say anything about the
21 intentions of the shooter just by looking at what happens? If you say,
22 It is a difficult shot, now, if you intended to shoot at that position,
23 then it was intended and it took quite an effort to do that. If it was
24 not intended, it was a shot fired just at random and happened to enter
25 that place.
1 So I do not either understand what Ms. Hochhauser is trying to
2 elicit as evidence. Neither do I understand the logic of your answers.
3 Please proceed.
4 MS. HOCHHAUSER: And I apologise if my question was confusing.
5 Q. What I'm asking, lieutenant, is we -- sorry, Captain, is we spoke
6 today and yesterday at greater length about this idea of errant shots or
7 what the intended target was. And can you -- and also the deviation of a
8 bullet as it -- as it leaves, and we also addressed the idea of ricochet.
9 Can you tell us what the -- what the range of deviation is that
10 we're talking about? For example, using any of the scheduled -- or any
11 of the Scheduled Incidents as an example, what kind of range of deviation
12 from the intended target would you expect?
13 JUDGE ORIE: Ms. Hochhauser --
14 MS. HOCHHAUSER: Yes. Is that, again, a bad question?
15 JUDGE ORIE: I'm afraid it is.
16 Because what are -- are you talking about deviation caused by
17 wind, by other such factors as listed by the witness, if the shooter was
18 a skilled shooter; or are you talking about the quality of the shooter?
19 An untrained person, would he usually stay within 2 metres from the
20 target, would he not. These are two different questions, and, therefore,
21 deviation is an unclear concept in this context.
22 MS. HOCHHAUSER: Okay. Thank you, Judge. I'll --
23 JUDGE ORIE: And, of course, to some extent, the witness has
24 given an answer in respect of a certain distance. He said, If you would
25 miss by 1 metre, if a trained sniper would miss by 1 metre, he would have
1 made quite a mistake.
2 So that means that a trained sniper, apparently at the distance
3 we were talking about, at that time, should well remain within 1 metre
4 from his intended target.
5 So, to some extent, the witness has answered that, but you always
6 need outside influence or the skills of the shooter, and that is what you
7 ignored in your question.
8 Nevertheless, if the witness could comment on your question, or
9 could comment on my observations, he is invited to do so.
10 THE WITNESS: I would like to comment that the distance we're
11 talking about, that was on a different distance. So it was a shorter --
12 a shorter range. So 920 metres would, of course, have more -- there are
13 more variables to be taken into account for such a shot.
14 MS. HOCHHAUSER: Your Honours, thank you for your patience. That
15 concludes the -- the re-direct examination.
16 There is -- I see Mr. Ivetic is on his feet. There is also the
17 issue of still the offering of the report.
18 JUDGE ORIE: Yes. Mr. Ivetic.
19 MR. IVETIC: Two or three questions that arise out of the
20 re-direct, with your leave.
21 JUDGE ORIE: Yes, please.
22 Further cross-examination by Mr. Ivetic:
23 Q. Sir, counsel asked you about the problems with optical sights,
24 and by my recollection, and please correct me if I'm wrong, the optical
25 sight problems that we discussed were with four times magnification, you
1 could not see what a person is holding in their hands at distance greater
2 than 800 metres, and the problem that the reticle on the optical sight
3 can be an impediment to see things at 600 metres.
4 Am I accurate in the topics that you and I discussed earlier this
5 morning as to problems with optical sights?
6 A. Not completely. I think I said it would be difficult to see what
7 a person is holding and not excluding it.
8 Q. My focus was on the 600 metres and the 800 metres. Is that the
9 what we were discussing?
10 A. I believe so, yes.
11 Q. Ms. Hochhauser showed you some documents with some information as
12 to some passive infrared sights. Am I correct, sir, that such sites are
13 known as second generation sights and are good for up to 300 to 400
15 A. That is correct. Mostly.
16 MR. IVETIC: No more questions for this witness, Your Honour.
17 [Trial Chamber confers]
18 JUDGE ORIE: Since the Chamber has no questions for you either,
19 Mr. Van der Weijden, this concludes your evidence. I would like to thank
20 you for coming to this court and for having answered all the questions
21 that were put to you by the parties and by the Bench, and I wish you a
22 safe return home again.
23 THE WITNESS: Thank you, Your Honour.
24 JUDGE ORIE: You may follow the usher.
25 [The witness withdrew]
1 JUDGE ORIE: The tendering of the report itself is the remaining
3 Anything you'd like to add, Mr. Ivetic, to what was already in
4 the written submissions?
5 MR. IVETIC: Yes, Your Honour.
6 We would strongly oppose the tender of the report into evidence
7 as an expert report. Given what we have heard, the Defence would renew
8 its objections as follows.
9 An expert is expected to give his or her expert opinion in full
10 transparency --
11 THE INTERPRETER: Would the counsel please slow down for sake of
12 interpreters. Thank you.
13 MR. IVETIC: I apologise.
14 An expert is expected to give his or her expert opinion in full
15 transparency of established or assumed facts that he or she relies upon
16 and of the methods used when applying his or her knowledge, experience,
17 or skills to form his or her expert opinion. This is the ruling of the
18 Martic Trial Chamber on 13 January 2006, at paragraph 37, and the ruling
19 of the Gotovina Trial Chamber from 27 August 2009 at paragraph 10.
20 Given the responses by this witness that he can't remember what
21 materials he had, that he either misplaced or gave back to the
22 Prosecution the materials that were his source, that the underlying
23 military handbooks can neither be identified with particularity, nor
24 given to the Defence without clearance from the government, all these
25 things go against full transparency of this report, a report, I might
1 add, that is virtually devoid of footnotes, and we learn now is also
2 based on unknown material the witness gathered from the Internet from
3 unknown web sites that he was unable to identify for us.
4 The jurisprudence is very clear that the sources for an expert
5 report must be clearly indicated and accessible in order to allow the
6 other party or the Trial Chamber to test or challenge the bases on which
7 the expert witness has reached his or her conclusions.
8 The jurisprudence says that in the absence of clear references to
9 accessible sources, the Trial Chamber will treat the matter as the
10 witness's personal opinion rather than an expert opinion. This is from
11 the Milosevic Trial Court, a decision on the expert report of Robert
12 Donja, 15 February 2007, at paragraph 8. And, in the same case, they had
13 a Defence expert witness that had the same result, 21 August 2007, at
14 paragraph 7; and is also from the Stanisic and Simatovic, the decision on
15 the Prosecution's submission of the expert reports of Nina Tromp and
16 Christian Neilsen pursuant to Rule 94 bis of 18 March 2008, at
17 paragraph 9.
18 There is -- here, there is little opportunity for the Defence
19 experts to advise the Defence on the matters that are the bases for this
20 witness's testimony when he cannot provide clear references to accessible
22 Accordingly, this report does not meet the test to be admitted as
23 an expert report, and the testimony of this witness must be disqualified
24 as expert in nature as a result thereof.
25 Thank you.
1 [Trial Chamber confers]
2 JUDGE ORIE: Ms. Hochhauser, anything you would like to briefly
3 say about it?
4 MS. HOCHHAUSER: Yes, just briefly, Your Honour.
5 The witness's report does, in fact, contain the source of the
6 information that he relied upon. I think that when Mr. Ivetic refers to
7 the testimony about certain sources that he had returned or that he
8 couldn't completely identify, that -- that testimony is limited solely to
9 the Unscheduled Incidents and not to the Scheduled Incidents, so I wanted
10 to point that out to the Court.
11 In addition, I would rely already on what's already been said in
12 the written filings about his experience and his expertise in this area,
13 but I would specifically like to address the argument, also, about the --
14 about these military handbooks and the use of the Internet for certain
16 The witness testified that during the course of his -- of his
17 schooling, there were military handbooks that, of course, formed the
18 basis of some of his schooling as he received a military education that
19 went on -- from which he went on to have a long career and -- in sniping
20 and as a sniper instructor. The on-the-job training for which -- and
21 experience for which is obviously a huge part of his qualifications,
22 which has led to him being deemed an expert and accepted as an expert in
23 four prior trials before this Tribunal.
24 The military handbooks that he -- that Mr. Ivetic refers to, to
25 me, I would submit, to the Chamber is the equivalent of asking a doctor
1 who comes in to testify about DNA to submit his biology text that he --
2 that he was trained on in college for the basis of his original -- the
3 basis of his original training from which he then went on and gained an
5 So that's -- those are the only additional arguments that I would
6 like to address in response to what Mr. Ivetic just raised orally in
8 JUDGE ORIE: Thank you. The Chamber will decide on the admission
9 of the expert report of Mr. Van der Weijden in due course.
10 We take the break. And is the Prosecution ready to call its next
11 witness after the break?
12 MR. GROOME: Yes, Your Honour. Also prepared to address the
13 Chamber on that initial matter with respect to that e-mail. I can do
14 that now or after the break.
15 JUDGE ORIE: About that e-mail. I think it would be better --
16 would you need much time for that?
17 MR. GROOME: About two minutes, Your Honour.
18 JUDGE ORIE: About two minutes. Then, after the break, we'll ask
19 that the witness be on stand by after the two minutes when we deal with
20 the matter in private session.
21 MR. GROOME: Yes, Your Honour.
22 JUDGE ORIE: We take a break, and we resume at ten minutes
23 to 2.00.
24 --- Recess taken at 1.29 p.m.
25 --- On resuming at 1.55 p.m.
1 [Trial Chamber confers]
2 JUDGE ORIE: Mr. Groome, we turn into private session so that you
3 can you make your submissions.
4 MR. GROOME: Thank you, Your Honour.
5 [Private session]
5 [Open session]
6 THE REGISTRAR: Your Honours, we're back in open session.
7 JUDGE ORIE: Thank you, Mr. Registrar.
8 When the next witness is escorted into the courtroom, I have one
9 matter to raise -- no, two matters, as a matter of fact. Therefore, the
10 witness might need a bit more patience.
11 The first is the Defence has requested seven extra days to
12 respond to the 92 ter motion for Witness RM120. That request is granted.
13 Then there was an issue about scheduling for the 25th of January,
14 a Friday, a videolink. Unfortunately, on that Friday the Judges are not
15 available for extended sessions in the afternoon. First of all, it is
16 always risky to schedule a video-conference witness on a Friday, because
17 if something goes wrong, then he has to wait for the whole of the
18 weekend. So, therefore, it is preferred to schedule witnesses not on
19 Fridays if they are giving their testimony through videolink.
20 There are a few possible solutions. The one is to postpone the
21 evidence and to hear the testimony on another day. Another option would
22 be that the parties would consider to what extent they can commit
23 themselves to not going beyond the time available on that Friday, and if
24 you'd be half an hour or one hour short, the Chamber would consider an
25 extended session but not in the afternoon but by starting at an earlier
1 point of time in the morning.
2 To the extent the parties could resolve this matter, they're
3 invited to do so and inform the Chamber [Overlapping speakers] ...
4 MR. GROOME: [Overlapping speakers] ... perhaps I will discuss it
5 with the Defence and raise it with the Chamber again next week.
6 JUDGE ORIE: Yes. And, of course, we need to act urgently,
7 because if the videolink cannot take place on the 25th, then the
8 preparations should be changed as well.
9 MR. GROOME: Yes, Your Honour.
10 JUDGE ORIE: Then -- yes. Could the witness be escorted into the
12 [The witness entered court]
13 JUDGE ORIE: Good afternoon.
14 No protective measures.
15 MS. D'ASCOLI: No, Your Honours.
16 JUDGE ORIE: No. Before you give evidence in this court,
17 Mr. Mandilovic, the Rules require that you make a solemn declaration.
18 Could you please stand and make that solemn declaration.
19 THE WITNESS: [Interpretation] I solemnly declare that I will
20 speak the truth, the whole truth, and nothing but the truth.
21 WITNESS: MILAN MANDILOVIC
22 [Witness answered through interpreter]
23 JUDGE ORIE: Thank you, please be seated.
24 Mr. Mandilovic, we have limited time today. It's unfortunate,
25 but we started later than expected. You'll now first be examined by
1 Ms. D'Ascoli. Ms. D'Ascoli is counsel for the Prosecution.
2 Please proceed.
3 MS. D'ASCOLI: Thank you, Your Honour.
4 Examination by Ms. D'Ascoli:
5 Q. Sir, can you please state your full name for the record.
6 A. Excuse me, the interpreter is not here.
7 JUDGE ORIE: Is the witness --
8 THE WITNESS: The interpreter is not here.
9 JUDGE ORIE: Likely it is still on channel 4, which was for the
10 previous witness.
11 Can you now hear me in a language you understand? Still not.
12 Is the volume okay? Is the channel okay? Channel ...
13 Could you ...
14 Can you now hear me in a language you understand? I see you're
15 nodding yes.
16 THE WITNESS: [Interpretation] I can.
17 JUDGE ORIE: Ms. D'Ascoli, please proceed.
18 MS. D'ASCOLI: Yes, Your Honours.
19 Q. Sir, can you please state your full name for the record.
20 A. Milan Mandilovic.
21 Q. Can you tell the Chamber what your current profession is.
22 A. Medical doctor, a specialist in the General Hospital in Sarajevo.
23 Q. Dr. Mandilovic, do you remember providing a statement to the ICTY
24 on the 24th of February, 2010, in Sarajevo, a statement that amalgamated
25 evidence from your previous testimony before this Tribunal and previous
1 statements you also gave with some additional observations, as well as
2 comments made to certain medical documents? Do you remember that?
3 A. Yes, I do.
4 MS. D'ASCOLI: Can I ask the Court Officer to please display
5 65 ter 28611, which is the witness statement.
6 Q. Dr. Mandilovic, once I see the document is on the screen before
7 you, can I ask that you view the first page in the English version, and,
8 in particular, the signature at the bottom of the page and indicate
9 whether you recognise that signature.
10 A. Yes, that is my signature.
11 Q. Dr. Mandilovic, have you had an opportunity to read and review
12 this statement and the exhibits that are referred to in the statement in
13 preparation for your appearance today?
14 A. I have.
15 Q. Sir, you also had some corrections and clarifications to your
16 statement; correct?
17 A. Correct.
18 MS. D'ASCOLI: Can I ask the Court Officer to please display
19 65 ter 28622 on our screens, please. This is a chart of corrections and
20 clarifications that was prepared with the witness, Your Honours, and we
21 circulated by e-mail to all the Defence and Chamber.
22 Q. Sir, now that the document is on the screen, do you recognise
23 this document as the table of correction and clarification that was made
24 with you in preparation for this -- for your testimony today?
25 MS. D'ASCOLI: And can we go to page 2 also, please, of the
2 THE WITNESS: [Interpretation] Yes. That is my signature, and I
3 authorised it.
4 MS. D'ASCOLI:
5 Q. And did you have an opportunity to review this document?
6 A. I did.
7 Q. And does it accurately set out the corrections and clarifications
8 that you wanted to make to your statement?
9 A. Yes.
10 Q. Dr. Mandilovic, with these corrections and clarifications, are
11 you satisfied your statement is an accurate record of your evidence and
12 what you experienced in so far as you can remember?
13 A. Yes, I do believe that it is.
14 Q. And if you were asked today the same questions that you were
15 asked when the statement was taken, would you give the same answers and
16 provide the same information, in substance?
17 A. Generally speaking, yes, for sure.
18 Q. And now that you have taken the solemn declaration, do you affirm
19 that you provided the information in your statement in accordance with
20 the truth and that your statement is a truthful and accurate reflection
21 of your evidence?
22 A. Yes, I do.
23 MS. D'ASCOLI: Your Honours, the Prosecution tenders the
24 65 ter 28611, which is the witness statement, together with the
25 65 ter 28622, which is the table of correction and clarifications
1 pursuant to Rule 92 ter as public exhibits.
2 JUDGE ORIE: Yes. Whom in the Defence team I have to address?
3 Mr. Stojanovic, no objections.
4 Mr. Registrar, 65 ter 28611 witness statement receives number?
5 THE REGISTRAR: Exhibit P679 Your Honours.
6 JUDGE ORIE: P679 is admitted.
7 65 ter 28622.
8 THE REGISTRAR: Exhibit P680, Your Honours.
9 JUDGE ORIE: P680 is admitted into evidence.
10 Please proceed.
11 MS. D'ASCOLI: Your Honour, we have also prepared a table of
12 concordance for the 65 ter numbers and the incident numbers that are
13 referred to in the witness statement because these are those of the
14 Karadzic case, and this way the parties would have an easy way to refer
15 to the correct one in our case, in the Mladic case. We have asked leave
16 to this table to the 65 ter exhibit list, and I would now tender it as a
17 public exhibit.
18 JUDGE ORIE: It will assist the Chamber and the parties.
19 Mr. Registrar.
20 MS. D'ASCOLI: I would give the 65 ter number.
21 JUDGE ORIE: Yes.
22 MS. D'ASCOLI: Which is 28608.
23 THE REGISTRAR: Exhibit P681, Your Honours.
24 JUDGE ORIE: Mr. Stojanovic, did I understand it well that
25 there's no objection to this table to be admitted?
1 P681 is admitted into evidence.
2 Please proceed.
3 MS. D'ASCOLI: Your Honours, I also note there are 39 exhibits
4 associated to Mr. Mandilovic's statement. Upon review, the Prosecution
5 will not tendered them all, but will seek to tender 25 of these
6 documents. These are mostly hospital medical records that the witness
7 has authenticated through his statement. These are -- he has reviewed
8 them and authenticate them as discussed in paragraphs 117, 118, and 119
9 of the statement.
10 Now, I will deal with this associated exhibits during the course
11 of my examination, also taking into account the objections that the
12 Defence has raised in their response to our 92 ter motion.
13 JUDGE ORIE: Please do as you suggest.
14 MS. D'ASCOLI: And now with the Chamber's permission, I will
15 summarise Dr. Mandilovic's evidence for the record and the public.
16 Dr. Mandilovic is a surgeon and a former JNA medical officer.
17 From 1982, he worked at the military Hospital in Sarajevo, which was
18 renamed the state Hospital in May 1992 in conjunction with the JNA
19 withdrawal from the hospital, which then became a civilian facility.
20 Mr. Mandilovic left the JNA and remained working at the Sarajevo state
21 hospital throughout the war, from 1992 to 1995.
22 He describes the conditions of work at the hospital during the
23 war, water and food shortages, medicine and oxygen shortages, power cuts,
24 which all heavily impacted on the normal functioning of the hospital. He
25 also describes how the hospital building was directly hit on several
1 occasions, the southern side of the hospital receiving most of the
3 Dr. Mandilovic performed surgery on wounded patients on a daily
4 basis from May 1992 until the end of the war. He was on duty at the
5 state hospital on 28 August 1995 and treated casualties from scheduled
6 shelling incident G18, also known as the Markale II incident.
7 Dr. Mandilovic authenticates selected hospital records relating
8 to scheduled sniping incidents F5, F9, F11 F13, and relating to scheduled
9 shelling incidents G4, G6, G7, G8, G13, and G18.
10 And that concludes the summary of the witness's evidence, Your
12 JUDGE ORIE: Thank you, Ms. D'Ascoli. I'm looking at the clock.
13 I don't think it makes much sense to start further questioning the
14 witness for the last two minutes.
15 MS. D'ASCOLI: It does not, Your Honour.
16 JUDGE ORIE: Mr. Mandilovic, you have not answered yet many
17 questions, but I nevertheless have to instruct you that you should not
18 speak about your evidence, whether that is evidence given today or
19 evidence still to be given next Monday, and we'd like to see you back
20 Monday morning at 9.30 but in a different courtroom.
21 Could the witness be escorted out of the courtroom.
22 [The witness stands down]
23 JUDGE ORIE: We adjourn for the day, and we'll resume on Monday,
24 the 14th of January, at 9.30 in the morning, in Courtroom III.
25 --- Whereupon the hearing adjourned at 2.14 p.m.,
1 to be reconvened on Monday, the 14th day of
2 January, 2013, at 9.30 a.m.