1 Monday, 21 September 2015
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 1.15 p.m.
5 JUDGE ORIE: Good afternoon to everyone here in The Hague, and
6 good morning to those who are at the location of the videolink.
7 Madam Registrar, would you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case
9 number IT-09-92-T, the Prosecutor versus Ratko Mladic.
10 JUDGE ORIE: Thank you, Madam Registrar.
11 Could I ask whether the representative of the Registry at the
12 videolink location could hear me and can see me?
13 THE REGISTRAR: [Via videolink] Good morning, Your Honours -- or
14 good afternoon. I can hear you, but unfortunately I cannot see you.
15 JUDGE ORIE: Is there any way that we could check the video
17 THE REGISTRAR: [Via videolink] Your Honour, I believe the
18 technicians have been trying to make it work.
19 [Trial Chamber and Registrar confer]
20 JUDGE ORIE: The Chamber has considered whether we could continue
21 where the -- at the videolink location no one can see us and where we can
22 see, however, all the persons at the videolink location. The Chamber
23 decided that we need a full two-way video and audio in order to proceed,
24 and for that reason we briefly adjourn again and we'll wait and see
25 whether the full dual communication is restored soon.
1 We take another break.
2 --- Break taken at 1.18 p.m.
3 --- On resuming at 2.03 p.m.
4 JUDGE ORIE: We resume the court session, and I again wish a good
5 morning to the representative of the Registry at the other side of the
6 videolink, the videolink location. And could I inquire whether you now
7 can see us and hear us?
8 THE REGISTRAR: [Via videolink] Hi, good morning, again,
9 Your Honours. Yes, I can hear you and I can see you.
10 JUDGE ORIE: Thank you. Then we will proceed. I do understand
11 that two representatives of the Canadian government will be present.
12 Could they be escorted into the videolink room to start with.
13 THE REGISTRAR: [Via videolink] Yes, immediately.
14 [Representatives of Canadian government enter courtroom via videolink] ]
15 JUDGE ORIE: Good morning to you, Ms. Wickler and Ms. Soliman.
16 You were with us in The Hague last week. The same instructions apply as
17 I gave them at that moment; that is, you can intervene if there is any
18 state security concern, but apart from that you are supposed to refrain
19 from any intervention in the examination of the witness. I see you're
20 nodding, and since you understood that last week, I take it that you
21 understand it this week as well. Welcome into the videolink location.
22 Then could the witness be escorted into the videolink room.
23 I would urge the parties to see whether it will be possible to
24 conclude the testimony of the witness today, because it's not foreseen
25 that we would continue tomorrow, and the hour we lost today might still
1 enable us to finish today.
2 [The witness entered court via videolink]
3 JUDGE ORIE: Good morning, Mr. Gauthier. Can you see me, can you
4 hear me?
5 THE WITNESS: Yes, I can.
6 JUDGE ORIE: Would you please stand because the Rules require
7 that you make a solemn declaration, the text of which is now handed out
8 to you. May I invite you to make that solemn declaration?
9 THE WITNESS: I solemnly declare that I will speak the truth, the
10 whole truth, and nothing but the truth.
11 WITNESS: MICHEL GAUTHIER
12 [Witness appeared via videolink]
13 JUDGE ORIE: Thank you, Mr. Gauthier. Please be seated.
14 Mr. Gauthier, you'll first be examined by the party that called
15 you, by Mr. Ivetic. Mr. Ivetic is a member of the Mladic Defence team.
16 You'll see him in a second, I take it, when the camera is on him.
17 Mr. Ivetic, you may proceed.
18 Examination by Mr. Ivetic:
19 Q. Good morning, sir.
20 A. Good morning.
21 Q. Could I ask you to please kindly state your full name for
22 purposes of the record.
23 A. Michel Joseph Camilien Gauthier.
24 Q. And, sir, since we both will be seeking English today, I would
25 ask that we observe a brief pause between question and answer. Is that
2 A. Yes.
3 Q. Sir, did you have occasion to give a written statement to the
4 Defence team of Radovan Karadzic?
5 A. Yes.
6 Q. I would like to call up in e-court 1D03950, a copy of which you
7 should have there with the court officer. And, sir, my first question
8 is: Do you recognise this document?
9 A. Yes.
10 Q. And if we can turn together to page 4 of this document, here we
11 see a signature and the date February 6th, 2012. Can you identify for us
12 whose signature is on this page?
13 A. That is my signature.
14 Q. And, sir, subsequent to signing this statement on the date
15 indicated, did you have a chance to review the statement to see if any
16 corrections are needed to the same?
17 A. To be honest, I did not review it for the purpose of considering
18 whether it needed to be corrected. So do you wish me to do that now?
19 Q. If you could, sir --
20 A. I --
21 Q. We need to know --
22 A. I acknowledge that this is the statement that I provided the
23 Karadzic Defence team.
24 Q. Okay. Do you stand by everything as in your statement as being
1 A. Yes, to the best of my recollection at the time I signed the
3 Q. And, sir, today if I were to ask you questions arising out of the
4 same material as contained in your written statement, would your answers
5 to those questions today be in substance the same as recorded in your
7 A. I suppose that would depend on the context of the question --
8 within the question was put, but in principle, yes.
9 Q. And, sir, today you have now taken a solemn declaration. Does
10 that mean we can consider the material in your statement to be truthful
11 in nature?
12 A. Yes.
13 MR. IVETIC: Your Honours, I would tender 1D03950 as a public
15 JUDGE ORIE: Mr. Weber.
16 MR. WEBER: Your Honour, if we could actually just leave it
17 MFI'd, and maybe if on the first break if General Gauthier could take a
18 look at the statement and just let us know if there is any corrections
19 and provided that -- whatever the response is, then decide on admission
20 at that time.
21 MR. IVETIC: I think that's prudent.
22 JUDGE ORIE: Yes. I was about to suggest the same as a matter of
24 Mr. Gauthier, you're invited during the first break to read again
25 your statement. And if there would be any need to make any corrections
1 that you tell us after the break. Meanwhile, in view of the fact that
2 you said that this is the statement you gave and that you gave the
3 answers to the -- in accordance with the truth to the best of your
4 recollection, that we consider that there may be little chance that you
5 would like to correct something. But if you would do so, then please do
6 it after the first break.
7 Meanwhile, we'll mark your statement for identification, which is
8 a step in between -- in between tendering and admission.
9 Madam Registrar, the number would be?
10 THE REGISTRAR: Document 1D03950 receives Exhibit Number D1242.
11 JUDGE ORIE: And is for the time being marked for identification.
12 Please proceed, Mr. Ivetic.
13 MR. IVETIC: Your Honours, at this time I would like to read a
14 short summary of the statement for purposes of the record.
15 JUDGE ORIE: Please do so, Mr. Ivetic.
16 MR. IVETIC: Lieutenant General Gauthier is a retired Canadian
17 army officer deployed two times to the former Yugoslavia as a member of
19 From September 1993 to August 1994, he was the UNPROFOR force
20 engineer stationed at UNPROFOR headquarters in Zagreb. He was a
21 colonel at that time.
22 After an explosion killed and wounded a large number of people at
23 the Markale market on 5 February 1994, he was assigned to a
24 United Nations investigation into the incident in question. He was the
25 team leader of that investigation. They were told to confine their
1 investigation to crater analysis and the related technical aspects of the
3 His investigative team found that the initial French Battalion
4 team used an unconventional method to determine bearing and thus their
5 results were suspect. The French had also chipped away at the hole to
6 excavate the tail fin and thus enlarged the crater hole.
7 Likewise, the General's team determined Captain Verdy made a
8 mathematical error in the second analysis of the crater.
9 By the time the General's team did their investigation, six days
10 had elapsed since the explosion. Based on the condition of the crater,
11 they concluded the direction of fire to be anywhere between 330 and
12 420 mils from the point of detonation. Although they also tried to
13 measure the angle of descent, due to the previous excavation of the
14 crater and hole it was assessed that the results were not sufficiently
15 accurate to be used as a basis for a finding based on accepted crater
16 analysis techniques.
17 The ultimate conclusion reached was that the mortar bomb in
18 question could have been fired by either side in the conflict.
19 Your Honours, that completes the summary.
20 JUDGE ORIE: Thank you, Mr. Ivetic.
21 If you have any further questions for the witness, please
23 MR. IVETIC: I do.
24 Q. Sir, I do have some questions for you to follow-up on what you
25 have in your written statement.
1 If we can first look at page 1 and look at paragraph number 5.
2 Here you state that you were team leader of the investigation. What
3 would have been your precise role as the team leader?
4 A. My role would have been to provide direction to individual team
5 members, to work with them initially to come up with a plan for the
6 investigation, to oversee the conduct of the investigation, and then to
7 work with the team to produce a report which I then delivered to the
8 deputy force commander.
9 Q. And if we move along to paragraph number 7 on this same page, you
10 say that you were told to confine the investigation to crater analysis
11 and related technical aspects of the explosion.
12 What role, if any, did you have in confirming or refuting the
13 number and nature of casualties?
14 A. That wasn't specifically explicitly part of our mandate.
15 Q. And for purposes of the investigation that you were the team
16 leader of, did you take into account any reports authored by the Bosnian
17 police or government investigating the same incident?
18 A. I don't believe we received any reports from -- written reports
19 from either side.
20 Q. And had you had access to an -- to an available report from the
21 Bosnian side, would you have used it for purposes of your investigation?
22 A. Based on evidence that I've given previously to investigators, I
23 am aware that I had previously said to ICTY investigators that,
24 hypothetically, if we had received reports from either side, we, I
25 believe, would have been leery of such reports for fear that they would
1 not be impartial and that they would need to be corroborated by
2 independent evidence.
3 Q. Now for purposes of the investigation which your team undertook,
4 did you conduct any surveys of UNMOs on either side?
5 A. I believe we did.
6 Q. And did you ever conduct an investigation to determine if anyone
7 had heard the firing of the -- of a mortar?
8 A. I believe that was part of the questioning process for any UNMO
9 or UNMO supervisors or other UN personnel that we interviewed.
10 Q. And did your team feel that either side of the conflict line
11 could be excluded as the source of the fired round based on whether or
12 not anyone heard it being fired?
13 A. Could you repeat the question, please?
14 Q. Sure. Did your team feel that either side of the conflict line
15 could be excluded as the source of the fired round based on whether or
16 not anyone heard it being fired?
17 A. No.
18 Q. And did your investigative team interview any civilians on the
19 Bosnian side?
20 A. I don't believe so.
21 Q. For purposes of the investigation that you were conducting, how
22 would you have viewed any information from civilians if such was
24 A. With some skepticism. Again, given everything that the civilians
25 had been through, there would be a question about their impartiality with
1 respect to a specific -- any specific incident. And again, we would have
2 to have corroborated this with independent evidence. That was our
3 feeling at the time.
4 JUDGE ORIE: Mr. Ivetic, could I ask one follow-up question here.
5 Witness, did you understand the question of Mr. Ivetic to cover
6 all civilians, whether Serb, Muslims, or foreigners, or were you in your
7 answer specifically focusing on the population -- Muslim population
8 residing in that part of Sarajevo?
9 THE WITNESS: Just to answer very specifically your question, we
10 would have -- the answer that I gave previously applied to civilians,
11 indigenous civilians, if I can use that term, whether they be Serb,
12 Bosnian, whatever it might be. However, it would not apply to
13 UN civilian employees. Of course, we would be prepared to take their
15 So just to be clear on -- because there are some -- there were
16 some civilians we would have had access to who were UN employees.
17 JUDGE ORIE: Please proceed, Mr. Ivetic.
18 MR. IVETIC:
19 Q. Did your investigative team determine the manufacturer or origin
20 of manufacturing of the mortar shell that landed on the market-place at
22 A. I don't recall.
23 Q. If I can try to refresh your recollection, and if we can call up
24 1D6099 in e-court, and there should be a copy with the court
25 reporter [sic] there with you. And this will be a statement from 24 July
1 2001 to it looks like Barry Hogan, Chester Stamp, and Richard Philipps.
2 And if we could turn together to page 4, and if we could focus on the
3 third paragraph from the top, and we see here, and I will read it into
4 the record:
5 "Our team considered whether the place of manufacture of the
6 mortar bomb would have been significant, and we decided that it was not.
7 The way the conflict was being conducted, with arms and ammunition being
8 traded, purchased or captured by one side or another, from one side or
9 another, made the origin of the mortar bomb a moot point. I don't
10 believe that we followed up the manufacturer of the bomb because we
11 didn't think it would prove anything. Similarly, the origin of the
12 primer was not followed up for the same reasons."
13 Sir, does that refresh your recollection as to the conclusions of
14 your team as to investigating the manufacturing or origin of the mortar
16 A. Yes, I recall reading this at -- previously, and I don't dispute
17 saying it. I -- I accept the logic as it's portrayed in -- on paper. I
18 simply could not recall whether or not we had made mention of this in our
19 report. That's what I actually couldn't recall.
20 Q. Okay. Fair enough, then. We'll leave it at that and we'll get
21 on to your report later. Now, if we can return now to the statement we
22 looked at first, which is now D1242 marked for identification. And if we
23 can turn to page 2, and if we could focus on paragraph number 9.
24 In this paragraph, the method utilised by the 1st French
25 Battalion team is described as being unconventional. Did any member of
1 your team recognise this unconventional method as being a valid method?
2 A. No.
3 Q. Did your team take any steps to advise either the French
4 Battalion or their commanders of the complaints as to their methodology?
5 A. I don't recall.
6 Q. And if we turn to the last page of this statement, and first
7 let's look at paragraph number 24, where you say both sides were known to
8 have the type of mortar in question as well as the type of ammunition
9 used. What can you tell us about the mobility of the mortar in question
10 or lack thereof, whichever the case may be? How mobile is it?
11 JUDGE ORIE: Mr. Weber.
12 MR. WEBER: Objection to the form of the question. I believe
13 it's a little compound and actually there is something inferred in the
14 last part of it. Maybe if we could just have the witness explain
15 something more straight-forward based on the actual paragraph itself.
16 Just to be more particular, I read the paragraph as generally
17 speaking about mortars of the sides and the question's calling it -- is
18 referring to the mortar in question. That's --
19 JUDGE ORIE: That is a valid objection.
20 MR. IVETIC: Fair enough.
21 JUDGE ORIE: Mr. Ivetic, would you please make a clear
22 distinction between mortars -- general information as mortars used by the
23 parties and the mortar which would have fired this projectile.
24 MR. IVETIC: Okay.
25 Q. How mobile are 120-millimetre mortars?
1 A. I am not an expert in 120-millimetre mortars. The point of
2 paragraph 24 was to emphasize that ammunition -- mortar ammunition moved
3 freely from one side to the other as ground was captured and so on. So
4 the issue was more to do with the ammunition itself knowing that both
5 sides used 120-millimetre mortars, so that the point of that paragraph
6 was not to address the issue of mobility of the mortar equipment itself.
7 Q. And --
8 THE INTERPRETER: Could the interpreters ask the witness to bring
9 the microphone closer. We can't hear him very well.
10 THE WITNESS: Is this better?
11 THE INTERPRETER: A little, yes.
12 MR. IVETIC:
13 Q. Now --
14 THE INTERPRETER: Thank you.
15 MR. IVETIC: Now I would like to take a look at Exhibit P538 in
17 Q. And that is the longer document that I sent along with the court
18 officer. And before I ask you if you recognise the document, I would
19 draw your attention to page 3 of the same which should have some
20 signatures visible, and that might assist with the question of: Do you
21 recognise this document.
22 A. Yes, I recognise my signature.
23 Q. And do you recognise --
24 A. I --
25 Q. -- what this document is?
1 A. Yes, it is a photocopy -- appears to be a copy of the
2 investigation report that we produced in February of 1994, but I must say
3 that the quality of this copy is not very good, and so we'll see as we go
4 through it, but I just wanted to caution you that as it was printed here
5 or appears here, it's worse than copies I've seen previously.
6 Q. Agreed.
7 JUDGE FLUEGGE: Could the microphone been adjusted again? It's
8 not very well to be heard here on this side. Yes, I think it --
9 something like that. It was covered by the document.
10 THE WITNESS: Is this better? How is this?
11 JUDGE FLUEGGE: It seems to be better. Thank you.
12 MR. IVETIC:
13 Q. I can advise you, sir, that we have the same bad copy on our side
14 as well, so we'll work together through it and I think hopefully we can
15 make use of it despite the apparent lack of clarity of certain parts of
17 If we can go back --
18 A. Understood.
19 Q. If we can go back to page 2, and it will be paragraph 10 of that
20 document, page 2 in the English. It's the same page in B/C/S as we're at
21 now, I think. And in the military analysis section, the phrase "known
22 weapon positions" is used. To whom would this refer, known by whom?
23 A. UN Military Observers.
24 MR. IVETIC: If we can move forward to the annexes of the report,
25 and it will be page 34 in e-court. The assist the court officer at the
1 videolink site, it's the page that has the ERN stamp at the top ending in
2 746. Okay.
3 Q. And so here there should be a paragraph that says:
4 "Conclusions." Is that the page that you have before you, sir?
5 A. Yes.
6 Q. And here we have written:
7 "The known BSA and Bih 120 mm mortar positions in the general
8 area of interest are plotted at Appendix 1. It is clear from discussions
9 with UNMOs and," it looks like MIOs, "that with their limited" --
10 A. That's --
11 Q. "... that with their limited freedom of movement and small number
12 of observers, their knowledge of the details of 120 mm mortar positions
13 and ammunition holdings in the area of interest is far from complete.
14 Mortars are easy to hide and equally easy to move. From Appendix 1 it
15 can be seen that the Serb position at Mrkovici is the nearest known
16 position to the directional bracket. However, there could be any number
17 of well-concealed 120 mm mortar positions which are unknown to UNPROFOR
18 personnel on either side of the CL within the estimated range bracket.
19 It can only be concluded from this assessment that, in theory, the fire
20 could have originated from either side of the CL."
21 JUDGE FLUEGGE: The problem is we don't have the B/C/S version on
22 the screen.
23 MR. IVETIC: Ah-ha.
24 JUDGE FLUEGGE: Now it is there.
25 MR. IVETIC: Now it's there. I apologise.
1 Q. First of all, sir, does this refresh your recollection as to the
2 conclusions of what was in the report of your investigative team?
3 A. Yes.
4 Q. And do you agree with everything that is written here?
5 A. Yes.
6 Q. And now I want to look at just one more part of this same
8 MR. IVETIC: It's labelled Annex 2 and would be page 39 in the
9 English. To assist the Madam Registrar at the videolink room, the last
10 four digits would be 4751. And so this will be four pages prior -- I'm
11 sorry, four pages later in the B/C/S as well. So that will approximately
12 58. Okay. I think we're on the same page.
13 Q. Sir, do you have before you something that says "Annex 2" and
14 then "Meeting Report"?
15 A. Yes.
16 Q. This appears to be a meeting with the Bosnian side discussing an
17 investigation into Markale.
18 So that we can refresh your recollection, if we skip two pages
19 ahead to the page that has 4753 in the upper right-hand column, we see
20 the participants listed, and that will be page -- there we go, in
21 e-court, and we see that you are not listed as a participant. So the
22 question I want to ask is: Do you recall if you ever personally met with
23 the Bosnian Muslim side to discuss either your or their investigations
24 into Markale?
25 A. Yes, I believe we met with liaison officers or representatives
1 from each side, and I believe reports of those meetings are included in
2 the report. This specific meeting that you refer to that you've just
3 shown me was a meeting that was undertaken, I believe, by local UN forces
4 prior to the convening of our investigation.
5 Q. Your memory serves you well, sir. That's exactly, I think,
7 MR. IVETIC: Now if we can go back one page prior -- and that
8 will be -- the four-digit code at the end is 4752 there in the videolink
9 room. And we'll need to go to the prior page in the B/C/S as well.
10 Q. And, sir, you should have something there that starts off with
11 Colonel Pardon and then has a paragraph underlined and bolded, saying:
12 "General Conclusion." Is that the page that you are viewing in Canada?
13 A. Yes.
14 Q. And here it is noted as follows:
15 "It is to be noticed that during the whole meeting Bosnian
16 declarations were aggressive at UNPROFOR general policy, blaming for its
17 incompetence and lack of abilities of its members and accusing at several
18 times that UN or UNPROFOR members often stated on Bosnian responsibility
19 in the market shelling."
20 Sir, did you come across or hear of the Bosnian side acting
21 aggressively towards UNPROFOR or UN staff in relation to the
22 investigations into the Markale shelling?
23 A. I don't recall.
24 Q. And did you yourself know of any sentiments or talk within the UN
25 or UNPROFOR based on a belief that the Bosnian side had responsibility in
1 the market shelling?
2 A. Could you repeat the question, please?
3 Q. Sure. Did you yourself know of any sentiments or talk within the
4 UN or UNPROFOR which was based on a belief that the Bosnian side had its
5 responsibility for the market shelling?
6 A. I don't recall any specific or useful information that would have
7 helped us with the investigation in the context of what you've just said.
8 Q. And what about within your investigative team itself? Was there
9 any discussion of the Bosnian side being to blame for the incident?
10 A. Not to the best of my recollection.
11 Q. Fair enough.
12 General, I thank you for answering my questions.
13 MR. IVETIC: Your Honours, that completes the direct examination.
14 I've skipped some questions, so hopefully we have time to finish within
15 today's frame.
16 JUDGE ORIE: I think we'll be able to finish if -- certainly if
17 Mr. Weber follows the same approach as you did, Mr. Ivetic, because you
18 stayed well within the time limits you indicated before.
19 Mr. Gauthier, you'll now be cross-examined by Mr. Weber.
20 Mr. Weber is counsel for the Prosecution and you'll see him appear soon
21 on your screen, I hope.
22 Mr. Weber, you may --
23 THE WITNESS: I can see him now.
24 JUDGE ORIE: -- proceed.
25 That's even better.
1 Mr. Weber, you may proceed.
2 MR. WEBER: Thank you, Your Honours.
3 Cross-examination by Mr. Weber:
4 Q. Good morning, sir.
5 A. Good morning.
6 Q. Just a couple basic things before we get into some of the parts
7 of your investigation.
8 You previously testified in the Karadzic case in October 2012;
10 A. Yes.
11 Q. And we've seen it once today, but just so we have it clearly on
12 the record, you also provided a statement to an investigator named Barry
13 Hogan in July of 2001; correct?
14 A. Yes.
15 Q. Between September 1993 and August of 1994, you were based in
16 Zagreb, Croatia; right?
17 A. Yes.
18 Q. Your duties as force engineer in Zagreb included planning and
19 providing safe accommodations for UN troops?
20 A. Yes, among many other things.
21 Q. Your responsibilities also included the -- securing the mobility
22 of UN personnel across the mission area, and mine safety and clearance;
23 is that right?
24 A. Yes.
25 Q. Let's go particularly to the Markale investigation. You arrived
1 in Sarajevo on the 11th of February, 1994, after the shelling; correct?
2 A. Yes.
3 Q. Prior to February 1994, you actually had little or no experience
4 in crater analysis; right?
5 A. Correct.
6 Q. You had little or no experience in ballistics at the time of the
7 Markale investigation?
8 A. Correct.
9 Q. However, as a trained engineer, a combat engineer, you did have
10 experience with stationary explosives such as mines or other static
11 explosives used to destroy, let's say, a bridge or a building; is that
13 A. Yes.
14 Q. When you were assigned to the Markale investigation, the
15 familiarity that you had with mortars came from training exercises
16 dealing with the deployment of mortars in support of military operations;
17 is that right?
18 A. Yes, as well as general military training, but correct, yes.
19 Q. We're agreed that mortars are area-suppressing anti-personnel
20 weapons; right?
21 A. Yes.
22 Q. Now, you've mentioned your report and we've looked -- we've seen
23 it already once today, can you just confirm that your team completed its
24 report setting out its findings on the 15th of February, 1994?
25 A. Yes.
1 Q. And if you could please be handed Exhibit P538 again, the full
2 report. General, also for the record, could you just please confirm that
3 this is a copy of the final report that was completed by your team?
4 A. Yes, it is.
5 Q. There were several annexes, and some of them have been mentioned
6 today already, to the team's report. Could you please confirm that these
7 are annexes A through G?
8 A. Do you want me to physically verify each of them? Is that -- are
9 you asking me to verify that each of these is -- is attached to the
11 Q. Well, the -- there are annexes A through G to the report. I know
12 you might be reviewing your statement here, but if you are able to
13 confirm that that is the complete report it would be appreciated.
14 A. Yes, yes.
15 Q. The final report and the annexes comprise the information that
16 the team obtained during the course of your investigation as a whole;
18 A. As opposed to -- as a whole as opposed to --
19 Q. I'll put it another way. It contained your complete findings and
20 observations that your team acquired during the course of the
22 A. I believe so, yes.
23 Q. Now, based upon your investigation and the report, I want to
24 confirm a few of the -- a few things with you. First, could you confirm
25 that your team concluded, based on its investigation, that the mortar
1 shell in question had been launched in a conventional manner from a
2 120-millimetre mortar tube?
3 A. Correct.
4 Q. The mortar exploded at ground level upon impact; right?
5 A. Correct.
6 Q. The mortar did not impact a market stall or tabletop above the
8 A. Correct.
9 Q. Your team found the crater shape to be consistent with the normal
10 impact of a single mortar shell on an asphalt surface?
11 A. Correct.
12 Q. Your team assessed the direction of fire as being between
13 330 mils and 420 mils; correct?
14 A. Correct.
15 Q. The explosion was not caused by a stationary explosive device
16 aboveground; correct?
17 A. Correct.
18 Q. Could you explain to us the reasons that the explosion could not
19 have been caused by a stationary explosive device?
20 A. The evidence which was recovered or observed by a number of
21 subject matter experts, most notably, I would say, our explosive ordnance
22 disposal expert, a Sergeant Dubant I believe his name was, made it very
23 clear to him that this was very clearly a mortar, first of all; a
24 120-millimetre mortar, second of all; and that given the scrape pattern
25 of shrapnel on the asphalt and the fuse tunnel and so on, that it -- it
1 clearly was a mortar that had been fired with a fuse, I may not have the
2 term exactly correct, but a fuse that had been fired by a firing pin.
3 All of that evidence together made it clear that it wasn't a
4 stationary bomb but that it was very definitely a mortar. And not just a
5 mortar, but a 120-millimetre mortar.
6 Q. Your team also conclusively determined that the mortar was not
7 hand-launched from a nearby building; right?
8 A. Correct.
9 Q. Your team did not rely on the findings of Captain Verdy and
10 Major John Russell because they were shown to be inaccurate; correct?
11 A. Correct.
12 Q. You were aware that there were UNMOs on the -- UNMOs on the
13 Bosnian side to the north-east of the impact area in February 1994 and
14 they were able to move about as they wished?
15 A. I believe so.
16 Q. On the Bosnian side, there were no fixed mortar positions along
17 the direction of fire assessed by your team?
18 A. There were no known mortar positions along the assessed direction
19 of fire.
20 Q. Your team did look into this; correct?
21 A. Yes, but one of the issues, if both my memory and my reading of
22 the report serve me correctly, is that there was freshly fallen snow at
23 the time that -- that we did our investigation, which have -- which may
24 have masked any signs of a mortar base plate position that might have
25 been used to fire a mortar.
1 And so for us to scour all of that terrain to try and determine
2 where mortars might have been fired from and to -- then to narrow it down
3 to a specific day that it would have been fired from was next to
5 Q. Okay.
6 A. And so we could not rule out that a mortar might have been fired
7 by the Bosnian side, nor could we find evidence that it had been.
8 Q. Your team learned that in the territory held by the Bosnian Serb
9 army that the assessed angle of fire or directional bracket fell within
10 the area of responsibility of the Kosevo Brigade of the
11 Sarajevo-Romanija Corps; right?
12 A. I believe so, yes.
13 Q. Sir, do you not recall or -- if so, I can call up a past --
14 A. I --
15 Q. -- statement of yours.
16 A. I -- to be absolutely certain, yes, you could take me back to
17 that. I can recall reading that finding sometime in the last 24 hours in
18 my report, but where specifically and what specifically it said, I can't
20 Q. All right.
21 MR. WEBER: Could the Prosecution please have 65 ter 33079,
22 e-court page 11. For the court officer there, I will be referring to
23 transcript page 29417.
24 JUDGE ORIE: Madam Registrar informs me that the document has not
25 yet been released, but --
1 MR. WEBER: Thank you.
2 JUDGE ORIE: Ms. Stewart, it has been released? I see you're
3 nodding "yes."
4 Please proceed.
5 THE REGISTRAR: [Via videolink] Your Honour, could the counsel
6 repeat? The number was 33079?
7 MR. WEBER: Correct.
8 THE REGISTRAR: [Via videolink] Okay, thank you.
9 MR. WEBER:
10 Q. Sir, this is your transcript of your previous testimony in the
11 Karadzic proceedings. I'd like to direct your attention to line 12. The
12 question posed to you:
13 "And your team did learn that in Bosnian Serb army-held territory
14 that the assessed angle of fire or the directional bracket fell within
15 the area of responsibility of the Kosevo Brigade of the
16 Sarajevo-Romanija Corps?"
17 Your answer was:
18 "Yes, that's correct."
19 Do you stand by this testimony?
20 A. Could you just tell me which page I'm supposed to be on?
21 Q. Sir, I'm referring you to transcript page, which is going to be
22 in the upper right-hand corner for you, of 29417.
23 A. Yes. Yes, I agree with -- my answer to your previous question is
25 Q. This area was assessed to be in the area of Mrkovici; correct?
1 A. Yes.
2 Q. Your team did identify mortar positions in the territory of the
3 Bosnian Serb army in the directional bracket of fire; right?
4 A. Yes.
5 MR. WEBER: Your Honour, I see that we're almost at the time for
6 the break. I'm about to head into one last topic, if we could take the
7 break now.
8 JUDGE ORIE: Then we'll take the break now.
9 Mr. Tieger, you're on your feet.
10 MR. TIEGER: Thank you, Mr. President, just a quick housekeeping
12 Today was the day the Court was -- in which I was to respond to
13 the Trial Chamber's invitation concerning the provisional projection for
14 rebuttal. I raise that now because I didn't want to interfere with the
15 timing on the videolink, but I have a preexisting presentation from
16 4.15 to 5.15. So I -- I raise that so the Court can either determine
17 whether it wants to ask me to make the submissions at the end of next
18 session or if -- if you're going to continue beyond 5.15 or if you just
19 want to defer it to tomorrow, but I wanted to let you know that I was
20 prepared to do that but had this scheduling difficulty.
21 JUDGE ORIE: Then we'll think it over. How much time would you
22 need to make those submissions?
23 MR. TIEGER: If there are no questions from the Court, probably
24 about five minutes.
25 JUDGE ORIE: Approximately about five minutes.
1 Then I suggest to do the following, that we give a little bit
2 extra time to the witness to read again his statement and to see whether
3 any corrections are needed, so that we therefore would continue after a
4 20-minute break first for five minutes, just The Hague, and then restore
5 the videolink and continue with the testimony of the witness. Because I
6 think we are ahead of schedule anyhow due to the fact that Mr. Ivetic
7 took considerably less time than announced.
8 Then we'll take a break and we would expect the videolink to be
9 restored in 25 minutes from now, that would be at local The Hague time
10 3.30, but we'll resume, however, at local The Hague time 3.25.
11 [The witness stands down via videolink]
12 --- Recess taken at 3.01 p.m.
13 --- On resuming at 3.29 p.m.
14 JUDGE ORIE: Mr. Tieger, please proceed.
15 MR. TIEGER: Thank you, Mr. President.
16 As the Court will recall, on the 17th of August, the Chamber
17 invited the Prosecution to give a provisional indication of whether, what
18 kind, and how much rebuttal evidence it intends to present. I hope my
19 submissions this afternoon are within the spirit of the Court's inquiry.
20 First, let me note that we understood the use of the term
21 "provisional" to reflect the fact that there are still witnesses
22 remaining, including many experts, and also that the Prosecution has not
23 received, much less reviewed, expected bar table submissions from the
24 Defence. And while those factors clearly give rise to the possibility of
25 additions to our current assessment, they also give rise to the
1 possibility that the evidence adduced during the course of direct or
2 cross-examinations during the remaining process may also give rise to
4 JUDGE ORIE: I think you understood the reason why we said
5 "provisional" very well.
6 MR. TIEGER: So in that connection we are happy to offer a
7 provisional indication, that we do expect to be seeking rebuttal, but
8 also a simultaneous representation that we expect that to be extremely
9 modest in scope. And indeed even within that modest scope, the bulk of
10 the anticipated rebuttal should have no impact on court time because it
11 deals with paper issues outside of court.
12 So let me put some quick numbers and characterisations to that
13 that bear out that assessment.
14 So first, by way of example, we would anticipate the submission
15 of a certain number of documents, at least at this stage, but at this
16 stage we put those on the order of some 20 to 50 or so, if that helps the
17 Court in its anticipations.
18 Secondly, I would focus on an issue or a mechanism closely
19 related to rebuttal that pretty much overlaps but is a mechanism
20 different from a rebuttal motion, and that refers to the portions of
21 statements that were redacted due to overlap with adjudicated facts in
22 instances where adjudicated facts have been challenged. But because we
23 consider that a challenge must be grounded on credible evidence to have
24 any impact on an adjudicated fact, we are considering only a tiny handful
25 of instances, two to three. However, in those circumstances, we consider
1 at this point that the proper procedural mechanism would be a motion for
2 reconsideration rather than rebuttal; that is, it would be based on the
3 fact that in that particular process the redaction order was grounded on
4 an adjudicated fact, and then the challenge to that adjudicated fact
5 represents a change in circumstance justifying reconsideration. More
6 importantly, for purposes of this discussion, the particular two to three
7 we have in mind are from 92 bis statements.
8 And so I'm not quite certain that the procedural mechanism is of
9 such moment to the Court right now, but I wanted to foreshadow that.
10 We are also considering two 92 quater statements.
11 And finally, the only aspect of the provisional rebuttal
12 assessment that seems to implicate court time would be our consideration
13 at the moment of two viva voce witnesses, but based on our assessment,
14 those witnesses would not consume more than three days of court time for
15 both direct and cross-examination. And --
16 JUDGE ORIE: For the two --
17 MR. TIEGER: For the two together.
18 JUDGE ORIE: Yes.
19 MR. TIEGER: And in any event, we are -- as I say, we will still
20 be considering all of those factors, frankly, in the hope of reducing it
21 even further as the case continues until such point as the Court
22 indicates a formal motion should be filed.
23 JUDGE ORIE: Thank you.
24 MR. TIEGER: Thank you, Your Honours.
25 JUDGE ORIE: Thank you, Mr. Tieger.
1 Before we continue with the videolink, I think that the Defence
2 had announced that the time for the witness to be called tomorrow would
3 be double the number, that's ten hours instead of five. The Chamber has
4 not yet decided that it would grant such a request for double time, and
5 the Defence is invited to organise its examination-in-chief in such a way
6 that the most relevant parts would come first and we'll then consider
7 whether or not we'll grant any additional time.
8 There is already a huge number of pages of reports involved and
9 then the day before the examination to double the time is something that
10 needs more attention. And therefore, please focus on what is most
11 important to start with, and then we'll see where we are after
12 five hours.
13 Mr. Weber, I think that the -- the Prosecution indicated that it
14 would need 16 instead of 8 hours, or is it double --
15 MR. WEBER: No, no. Your Honour, our estimate is kept at 8 hours
16 right now.
17 JUDGE ORIE: Okay.
18 MR. WEBER: So not doubling the estimate as of right now.
19 JUDGE ORIE: Yes.
20 MR. WEBER: I don't know -- can't foresee everything that
21 happens, but...
22 JUDGE ORIE: Yes, of course we never know. But there is clear
23 guidance now for the Defence to see whether they can stick to their
24 original time limits and at least convince the Chamber, by the relevance
25 of all the evidence elicited, that there is really a reason to need more
1 time than the five hours as indicated earlier.
2 I leave it to that, but we didn't want to leave it until tomorrow
3 so that at least the Defence has an opportunity to further prepare for
4 that next witness.
5 Mr. Weber.
6 MR. WEBER: Your Honour, since we are discussing the next
7 witness, just one related matter --
8 JUDGE ORIE: Yes.
9 MR. WEBER: -- so that we can deal with it at one time.
10 I just wanted to note that for the noticed exhibits for the next
11 witness, not all the 65 ter numbers are uploaded -- well, they may be
12 uploaded but they are not released to us right now. So as a matter of
13 urgency, if the Defence could please make sure that they are all
14 released. We do note that not all the materials are on the Defence
15 65 ter list, and while we -- generally this is not a problem and we do
16 have the reports, we don't know fully all the significance of all the
17 materials at this time, and we -- this could raise some issues as to good
18 cause and relate to the significance --
19 JUDGE ORIE: Yes.
20 MR. WEBER: -- and the relevance of the materials, but we'll
21 address those as it comes up, but I just wanted to raise this issue at
22 this time.
23 JUDGE ORIE: Yes, and whether you need to know because of
24 tendering and a decision on admission, you would also need to know in
25 order to know whether the 65 ter list could be expanded by adding new
2 I take it that this message is well received and that the Defence
3 takes care of it without delay.
4 Then we return to what we were doing today, that is, to hear the
5 evidence of Mr. Gauthier.
6 First of all, could the representatives of the Canadian
7 government, but without any problem, enter the videolink room together
8 with the witness.
9 [The witness takes the stand via videolink]
10 JUDGE ORIE: Welcome back, Mr. Gauthier. Before we continue, did
11 you have an opportunity to re-read your statement?
12 THE WITNESS: Yes.
13 JUDGE ORIE: Is there any need to correct anything?
14 THE WITNESS: No.
15 JUDGE ORIE: Thank you. Then I think that nothing opposes
17 Madam Registrar, the number was?
18 THE REGISTRAR: D1242, Your Honours.
19 JUDGE ORIE: D1242 is admitted into evidence.
20 Please proceed, Mr. Weber.
21 MR. WEBER: Thank you, Your Honours.
22 Q. During the investigation, you learned that Colonel Cvetkovic from
23 the VRS stated that the Kosevo Brigade had mortar positions including a
24 120-millimetre mortar in the Mrkovici area; right?
25 A. Correct.
1 Q. You personally met with Colonel Cvetkovic on the 13th of
2 February, 1994; right?
3 A. Correct.
4 Q. Did you know that Colonel Cvetkovic was a commander of an
5 artillery regiment which had been tasked, prior to the Markale shelling,
6 with providing fire support from Mrkovici as part of offensive
7 activities; were you aware of that?
8 A. No.
9 Q. Neither you nor members of your team went to visit these mortar
10 positions; is that correct?
11 A. Correct.
12 Q. You were aware that UNMOs had been denied freedom of movement to
13 the Bosnian Serb army positions in the assessed direction of fire since
14 October 1993; correct?
15 A. Correct.
16 MR. WEBER: Your Honour, no further questions.
17 JUDGE ORIE: Thank you, Mr. Weber.
18 Before we continue, I think that the number of the statement is
19 1242 rather than what now appears at this moment in the transcript.
20 I should have said what now appeared on the transcript.
21 Mr. Ivetic --
22 MR. IVETIC: I have just a few --
23 JUDGE ORIE: -any questions in re-examination?
24 MR. IVETIC: I have just a few questions for the witness.
25 JUDGE ORIE: Mr. Gauthier, Mr. Ivetic will put a few more
1 questions to you.
2 Please proceed.
3 Re-examination by Mr. Ivetic:
4 Q. Sir, you were asked about Major Russell's assessment being
5 inaccurate. Do you recall what part of the analysis or assessment of
6 Major Russell was said to be inaccurate?
7 A. I would have to go back and look at the evidence that I've
8 provided previously to refresh my memory.
9 Q. And were you aware of Major Russell amending his assessment at a
10 date subsequent to your report to exclude his previous opinion that the
11 shell had struck a table?
12 A. No, I was not aware of that.
13 Q. Do you have any opinion as to -- well, strike that. Since you
14 are not aware of that amended assessment, do you have any opinion as to
15 the accuracy or inaccuracy of that amended assessment that came after
16 your report?
17 MR. WEBER: Objection --
18 THE WITNESS: I can only --
19 JUDGE ORIE: Mr. -- one second, please. Mr. Weber.
20 MR. WEBER: Objection, calls for speculation. It's also not
21 clear that -- what we are talking about or not talking about and what the
22 witness is commenting on. He's not indicated any knowledge of the
23 event -- of the event being referred to.
24 JUDGE ORIE: Mr. Ivetic, the witness is called as a witness of
25 fact and you are bluntly asking for his opinion on -- and that's may be
1 another issue, on someone else amending his assessment of which the
2 witness is not aware. So therefore, I take it that he is also not aware
3 of the reasons why he reviewed his initial assessment.
4 Now --
5 MR. IVETIC: If I may, Your Honour.
6 JUDGE ORIE: -- if you want to deal with the matter, then do it
7 in a very systemic way. Try to avoid opinion. Although the witness, of
8 course, has given on a few matters opinions as well. So I'm not in every
9 respect stopping you from doing that, but to ask someone's opinion about
10 someone else who changed his opinion where this witness is even unaware
11 of how and how and why he changed his opinion, that's not something I
12 think that would assist the Chamber.
13 So if you want to proceed on opinions, do it very cautiously and
14 very precisely.
15 MR. IVETIC: Your Honours, the Prosecution asked this witness his
16 opinion of Major Russell's report, and he gave an answer in
17 cross-examination. They did not identify which of Major Russell's
18 reports is at issue. That is what I am trying to determine in exploring
19 with the witness right now because as we know from Major Russell's
20 testimony, there was a second amendment that was done after the report.
21 JUDGE ORIE: Yes. But this witness may not be aware of any, and
22 so therefore if you want to ask him anything about that, then it should
23 be presented to him in a way which makes it clear that at least he knows
24 what he is confronted with at this moment.
25 MR. IVETIC: I think --
1 JUDGE ORIE: Please proceed.
2 MR. IVETIC: I think I can do that.
3 Q. Sir, when you answered the Prosecution's question as to
4 Major Russell's report, to which report of Major Russell were you making
5 reference to?
6 MR. WEBER: I'm going to object. I don't believe I used the word
8 JUDGE ORIE: Let's see. Mr. Ivetic, could you guide us to
9 exactly which page -- I see Mr. Russell appears on page 23, 34, and 35.
10 Could you -- I think that --
11 MR. WEBER: I referred to findings. I didn't particularize a
12 particular report.
13 JUDGE ORIE: Yes. Let's see, Mr. Ivetic, you have a certain
14 matter on your mind. Could you assist the Chamber by telling us what
15 portion exactly you had in mind when, as you said, the Prosecution asked
16 for ...
17 MR. IVETIC: If I can, page 23 --
18 JUDGE ORIE: Yes.
19 MR. IVETIC: -- line 5 through 7.
20 JUDGE ORIE: Yes, I have that now before me. The question then
22 "Your team did not rely on the findings of Captain Verdy and
23 Major John Russell because they were shown to be inaccurate; correct?"
24 And the answer was:
1 So you're referring to that. As a matter of fact, the witness
2 wasn't asked for any opinion. It was whether they did rely or not.
3 That's not a matter of opinion but that's a matter of fact.
4 But again, I'm not stopping you, but let's be very accurate and
5 precise in this context. Please proceed.
6 MR. IVETIC: I'm trying to, Your Honour. And it says:
7 "... because they were shown to be inaccurate; correct?"
8 That was the question asked. So with all due respect, it is
9 asking opinion.
10 JUDGE ORIE: I think as a matter of fact that that's even part of
11 the statement of the witness, isn't it? That's -- Verdy certainly is as
12 with mathematical errors. So therefore that's already in the statement.
13 That's not asking in itself for opinion. Here Mr. Weber has asked
14 whether they did not rely for the reasons shown. That's a composite
15 question. Better, it would have been to say, first, did you not rely --
16 MR. IVETIC: Agreed.
17 JUDGE ORIE: -- second, was it for that reason that you did not
18 rely, and those both are questions of fact. But again I said I will not
19 stop you at this moment as long as you are accurate on the matter.
20 Please proceed.
21 MR. IVETIC: Thank you.
22 Q. And in your written statement that we have introduced today as
23 D1242, in paragraph number 12 and 13, you talk about a crater analysis
24 performed by Major Russell, and you talk about a copy in 13 of the
25 memorandum which he had entitled "Amplification of crater analysis of
1 5 February 1994, Sarajevo market."
2 In your answer to the Prosecution's question, were you talking
3 about any findings of Major Russell apart from that which is contained in
4 paragraphs 12 and 13 of your statement?
5 A. I would have to refresh my memory by also looking at the
6 statement that I made to the ICTY investigators in 2001, where I do
7 recall being asked again about Major Russell's evidence.
8 MR. IVETIC: And if we can turn to 1D6099 in e-court, and that is
9 the statement given to the investigators of the Tribunal. And if we
10 could turn to page 3, and if we could focus on the fifth paragraph from
11 the bottom. It's right in the middle.
12 Q. And it says: "Referring to document numbered 0026-4142 ..."
13 Are we at the same page, sir?
14 A. Yes.
15 Q. And here it says:
16 "Referring to document numbered 0026-4142 through 0026-4144, we
17 had that document during our investigation and we did interview
18 Major Russell. Some of his findings were inconsistent with ours, and we
19 disproved such findings as his claim that the round had impacted a
20 vendor's table. I think that the reason we did not specifically refute
21 Major Russell's report was that he had not done an official
23 Does that refresh your recollection as to Major Russell's
25 A. Yes.
1 Q. And do you stand by what is written in this statement given to
2 the investigators of the Tribunal as to what -- as to those findings and
3 as to what you found to be inaccurate?
4 A. Yes.
5 Q. And now in -- if we return now to the original question. Apart
6 from this memorandum, whose ERN numbers we have just read and which had a
7 finding that the round had impacted on a vendor's table, were your
8 comments to the Prosecution in cross-examination about the inaccuracy of
9 Major Russell's findings related to anything else, any other reports or
10 findings of Major Russell, or is this the document that we are talking
12 A. You're -- you just asked me two questions.
13 Q. Let's start with the first one. In your comments to the
14 Prosecution in cross-examination about the inaccuracy of Major Russell's
15 findings, to what did they relate, now having been refreshed with what we
16 looked at?
17 A. They relate to the fact that Major Russell had concluded that the
18 round had impacted a vendor's table, but they also relate to the fact
19 that he had -- he had established an angle of descent between 1200 and
20 1300 mils, which was much more precise than our findings.
21 Q. And with respect to the measuring of the angle of descent, who
22 measured first sequentially? Was it your team or Major Russell?
23 A. Major Russell.
24 Q. And do you know if anything else was done in respect to the
25 crater hole in between Major Russell's measuring and the measuring
1 performed by your team?
2 A. I can't say for certain if anything had been done before or
3 after -- actually, I can't remember the sequence. I do remember vaguely
4 that Major Russell was not the first person on the scene.
5 Q. And if we can now return just briefly to your other statement,
6 that is D1 --
7 JUDGE ORIE: Have you done with the subject matter?
8 MR. IVETIC: No.
9 JUDGE ORIE: Or is it -- are you still on the same? Then I'll
10 wait for a second.
11 Please proceed.
12 MR. IVETIC: If we could return to D1242, and page 3 of the same.
13 Q. And in paragraph 20, you state that:
14 "Some members of our team made estimates of the angle of descent
15 based upon the crater at the time of our investigation ..."
16 And you give two such estimates by Major Khan and Commandant
17 Hamill. And then it would appear that Captain Grande and Sergeant Chef
18 Dubant did not believe it possible to make an estimate because of the
19 fact that the crater had been excavated and slightly enlarged and also
20 since the crater had been re-dug in order to extract the tail fin.
21 So when you said that the measurements of Major Russell were more
22 precise than your own findings, are these the findings that you are
23 talking about? The ones that are contained in paragraph 20?
24 A. If I can just clarify, when I say "precise," I mean that he -- he
25 is very specific. I don't mean precise in terms of being more accurate.
1 I mean more specific, so bracketed to 1200 to 1300 mils. Whereas in our
2 investigation and our conclusions, we, I believe, had found that to
3 pin-point would depend on -- on a knowledge of which charge was used. I
4 could be wrong on that, but that -- but I did mean "specific" rather than
6 Q. Okay. Then that addresses what I was asking you, and I thank you
7 for that clarification.
8 MR. IVETIC: Your Honours, that is all I have on that topic and
9 also for redirect, so if Your Honours had another question you're free to
10 do so.
11 JUDGE ORIE: Yes, I think you dealt with most of it, but let me
12 re-read the answers.
13 Questioned by the Court:
14 JUDGE ORIE: I'm still puzzled a bit, Mr. Gauthier, by your
15 answer about precision. I see in your report that Russell stated the
16 angle of descent between 1200 and 1300; Khan came up with 1000 to 1100;
17 and Hamill with 950 to 100. So the range for all three of them is more
18 or less a hundred or a hundred-plus mils as -- as the range in which they
19 are not certain.
20 Now, you say you would have to know the charge used. I do
21 understand that the charge used may have an effect on the angle of
22 descent, but would you agree with me that you could assess or even
23 establish the angle of descent without knowing at all what charge was
25 A. Yes, I think in thinking my way through the answer I may have
1 conflated two different issues; one being the angle of descent, and the
2 other being the estimation of the distance from the target.
3 JUDGE ORIE: Yes, I now do --
4 A. And so -- right. So I was actually thinking about there were
5 various possibilities in terms of the distance from the target, and
6 that's what was in my mind was that there would be a number of them;
7 whereas the angle of descent is the angle of descent and there would only
8 be one of those estimated by a particular individual.
9 So you are correct, Your Honour. That was my error.
10 JUDGE ORIE: Yes, thank you for that answer.
11 I have one other question for you. In paragraph 9 of your
12 statement, you say that FreBat 4 team used an unconventional method, and
13 then you describe two methods, the one you considered conventional and
14 the other one as unconventional. My first question would be: The
15 unconventional method, is there any reason to believe that what is
16 unconventional is worse or less reliable?
17 A. Yes, I believe so. And again, this is from memory to a certain
18 extent, but I believe we used the term "unconventional" to mean
19 inconsistent with accepted practices. And it is not -- there is an
20 accepted way of doing a crater analysis, and to determine the bearing, as
21 noted in the statement, you would try and fix two points along the
22 line --
23 JUDGE ORIE: Okay. Let me, if you wouldn't mind, to stop you
24 there. Could you be very precise, because I tried to understand what you
25 meant by "two points along a line." I do not know yet how you determine
1 the points, I do not know what line you are referring to, so could you be
2 very detailed and precise in describing both the methods, the
3 conventional one to start with and later then the other one?
4 You say "fixing two points along a line," what line?
5 A. The line would be the bearing from north, the bearing or line --
6 effectively a horizontal line drawn between the target, in this case
7 the -- the centre of the crater and from there back to the estimated
8 point of launching of the firing of the mortar. So that --
9 JUDGE ORIE: So you draw --
10 A. -- is the line you're referring to, and --
11 JUDGE ORIE: You're drawing -- if I may stop you to make sure
12 that I fully understand. You say you draw a line between the centre of
13 the crater --
14 A. Yes.
15 JUDGE ORIE: -- to where you think the shell was fired from. So
16 that is at that point in --
17 A. Correct.
18 JUDGE ORIE: -- time you assume that the shell is fired from a
19 certain -- and then you draw between in that direction --
20 A. Yeah.
21 JUDGE ORIE: -- from the centre of the crater.
22 Okay, that's the line, yes. And how do you choose then your two
24 A. Yes, Your Honour. Just to be clear, you are not assuming a
25 point. You are estimating the line, and that line would be from the
1 centre of the crater back to the firing point, but you are not assuming
2 the location of this firing point. You are using this to estimate that
4 JUDGE ORIE: Yes, because you don't know yet. Because the whole
5 exercise is finally --
6 A. Correct.
7 JUDGE ORIE: -- aiming at to establish --
8 A. Yes.
9 JUDGE ORIE: -- where it was. So it can be an assumption on --
10 perhaps on the basis of what you see on the ground as the pattern. Is
11 that the pattern of shrapnel?
12 A. Yes, yes, exactly right. And so -- yes.
13 JUDGE ORIE: Okay. Now we have drawn that line between the
14 centre of the crater in the direction where you suspect the origin of
15 fire is on the basis of what you find as a pattern of shrapnel impact on
16 the surface.
17 A. Yes. By looking at the pattern that will give you -- by
18 actually -- it's almost like a compass, where you trace the pattern to
19 get to a point, and you trace from one side and you trace from the other
20 side to give you a point on the ground. And so that point on the ground,
21 the line between that point on the ground and the centre of the crater
22 would give you two points along the line from which you could estimate
23 the line from which -- the point from which the mortar was fired.
24 JUDGE ORIE: Yes, it's still not entirely clear to me how you fix
25 that second point. How is that exactly done?
1 A. If my memory serves me correctly, it was done with two rods, I
2 believe. So you use a rigid rod from the point of the crater, and
3 another along the -- what is estimated to be the general line -- there is
4 a pattern formed by the scrape from the -- the shrapnel, and that -- that
5 allows you to go in an arch which essentially it's -- it forms an arc,
6 and then you do the same thing on the other side which forms another arc,
7 and the point where the two arcs meet becomes the common point between
8 the two. And again, this is all -- Your Honour, you'll have to forgive
9 me, but this is from memory and I'm not a technical expert, and so it is
10 my recollection of how this was actually done when I observed different
11 teams doing the crater analysis.
12 So they were able to draw these two arcs along the shrapnel
13 pattern, and those two arcs intersect at a certain point. And it was
14 that intersecting point that was used as the second point in the line --
15 JUDGE ORIE: Yes.
16 A. -- to give you the bearing.
17 JUDGE ORIE: Now, this all depends on where you put these rigid
18 rods where you start making that arch, because that would define where
19 the two would meet. How do you --
20 A. Certainly, yes.
21 JUDGE ORIE: How do you determine where to start with this
22 exercise with the two rods to find where they meet when moving them?
23 Could you tell us how you define that initial point for those two rods?
24 A. I'm assuming the fuse tunnel. In the crater there is a hole at
25 the bottom that I suppose is deep enough that it's -- it's reasonably
1 clear where that -- where that hole is --
2 JUDGE ORIE: Yes.
3 A. -- and a rod is actually stuck into the hole. Again, if my -- if
4 my memory serves me correctly.
5 JUDGE ORIE: But then later -- first of all, you are talking
6 about one rod and earlier you said where the two rods meet. And the
7 starting point for your line was already the centre of the crater, so I'm
8 a bit puzzled by how it really works.
9 A. Well -- but that's -- that's what I'm referring to, the hole in
10 the ground is the centre of the crater. And I just -- to be honest, I
11 cannot clearly remember what tools were used to actually trace out the
12 arc. I do remember that an arc was traced from both sides. The
13 instruments that were used to trace out the arc I just don't remember.
14 I'm afraid I don't remember, Your Honour.
15 JUDGE ORIE: Now, since you refer to it was done from both sides,
16 I asked you how you would determine the starting point from doing that
17 exercise from both sides, and in your answer you took me back to the
18 centre of the crater. That confused me slightly because it's not from
19 both sides anymore but it comes from the centre of the crater.
20 A. I'm wondering, Your Honour, if it would be easier if we used one
21 of the diagrams in Sergeant Dubant's statement which is attached to the
22 investigation report.
23 JUDGE ORIE: I would be quite willing to do so, but I must admit
24 that I don't have them by hand. Perhaps the parties could assist.
25 MR. IVETIC: That should be P538. And I believe the -- Dubant's
1 part is the second English file that is -- that comprises that exhibit.
2 JUDGE ORIE: Could we have --
3 MR. WEBER: But, Your Honours, I would just suggest that maybe
4 just visually it may be better to have the witness possibly look at the
5 ERN ending in 737 or 738.
6 JUDGE ORIE: Yes, now that's fine if you want to do that in
7 re-examination, but the witness suggested to look at something he thought
8 would assist him. And let's --
9 MR. IVETIC: That is also Dubant's part [overlapping speakers] --
10 MR. WEBER: And I believe that is part of Dubant's part.
11 JUDGE ORIE: So you say let him do something else which is, by
12 the way, the same.
13 Yes, okay. That's just a matter of understanding.
14 Could we have the report -- what was it? 538 on our screens,
15 P538. Is this 538 what we have on our screens at this moment? And then
16 we go to page --
17 MR. IVETIC: 25, I think.
18 JUDGE ORIE: -- 25.
19 MR. WEBER: Yes, I was suggesting either e-court page 25 or 26.
20 JUDGE ORIE: 25 or 26.
21 THE WITNESS: Or in fact 27, Your Honour.
22 JUDGE ORIE: Well, if that assists you better, then -- 27 is
23 tables, if I see that well.
24 THE WITNESS: I'm sorry, we're not speaking of the same -- it's
25 this one here. I'm not sure which reference number you're using --
1 JUDGE ORIE: Is it the one --
2 THE REGISTRAR: [Via videolink] Your Honour, the witness --
3 JUDGE ORIE: Yes. I apologise.
4 THE REGISTRAR: [Via videolink] The witness is looking at page
5 that ends with the four digits 4738 of the ERN number.
6 JUDGE ORIE: Yes. And I think what we should look at 4737,
7 unless the witness would disagree.
8 A. 47 --4738 [Overlapping speakers] --
9 JUDGE ORIE: 4738, yes, now --
10 A. -- actually is very good.
11 JUDGE ORIE: I see. We have now --
12 A. It's not consistent with what I said previously, but it does
13 provide the two points.
14 THE INTERPRETER: Could the speakers please kindly not overlap.
15 JUDGE ORIE: I asked you to repeat what you just said, Witness.
16 You made a comment but there were overlapping speakers. Could you repeat
17 what you just said.
18 A. Yes, I apologise, Your Honour. The diagram that I am looking at
19 very clearly shows that the two points with the intersections of the
20 arcs, it's not consistent with what I had described but that simply
21 suggests that my memory is not that good. But it does show in a sense
22 the centre of the crater with the shrapnel pattern, and it shows how
23 Sergeant Dubant, in this case, came to his determination of a bearing of
24 355 mils. And I'm afraid I -- and it may be explained also in his
25 written report. I cannot look at this diagram and tell you precisely
1 what instruments were used in what way to derive the two points, but you
2 can see from the diagram that there are effectively arcs that intersect
3 and give you, in fact, two points in addition to the centre of the crater
4 to give you that bearing of 355 millimetres.
5 JUDGE ORIE: Yes. So connecting the two points is the connection
6 between the two points that goes through the centre of the crater.
7 A. Correct.
8 JUDGE ORIE: Yes. Now, are you able to accurately describe the
9 unconventional method? If you can, please do it. If you say, well, I
10 have difficulties in doing it, then I'll not insist.
11 A. Your Honour, it is more straight-forward, at least in my mind. I
12 believe what the individual in question did was he looked at the shrapnel
13 pattern, and he stood at or near the centre of the crater, and he judged
14 roughly where the centre line would be in the shrapnel pattern with a
15 compass in his hand, and then he looked down at his compass and from that
16 estimated the bearing for the direction of fire.
17 So rather than identifying two points on the ground, it was
18 simply a visual estimate of where the centre of the shrapnel pattern
19 would be and shooting a bearing in that direction.
20 JUDGE ORIE: Yes. Now all depends here, if there is any
21 difference, on how you choose the two points, the left and the right
22 margin, to take as a starting point for your arch, isn't it?
23 A. It's difficult -- I'm not sure I understand what you mean,
24 Your Honour.
25 JUDGE ORIE: Well, it looks as if the arch used and the -- where
1 the two arches meet, both above and under the centre of the crater, it
2 all depends on where you start to draw your arch, isn't it?
3 A. Your Honour, I'm beyond my technical -- the level of technical
4 expertise that you're -- that you are --
5 JUDGE ORIE: Well, I'm --
6 A. To be useful, to be honest. Because I'm -- I could not speak for
7 Sergeant Dubant in this case in terms of how he located the centre of
8 each arc. You can see the points on the graphic, but how he pin-pointed
9 those on either side, top and bottom on the centre of the crater, and
10 from those projected the arc on both sides, I don't know how he did that.
11 And therefore I can't say how roughly that -- those points were
13 JUDGE ORIE: Thank you for those answers.
14 Any further questions, Mr. Weber?
15 MR. IVETIC: No -- no -- I would just thank again our Canadian
16 colleagues for assisting us this morning and everyone for getting up at
17 an early hour to accommodate us.
18 JUDGE ORIE: Yes, I think that on behalf of the Chamber we share
19 this expression of gratitude for getting up early in the morning, and
20 that's both for the witness, also for the representatives of the Canadian
21 government, but finally of course for the representative of the Registry
22 who shared this fate today.
23 Mr. Gauthier, I usually thank people not only for answering all
24 the questions that were put to them by the parties and by the Bench but
25 also for coming a long way to The Hague. Now, fortunately there is no
1 need to that. I don't know how long you travelled, but however long it
2 has been, I wish you a safe return home.
3 And we can conclude the videolink.
4 THE WITNESS: Thank you, Your Honour.
5 JUDGE ORIE: And, of course, I also intended to thank the
6 representatives of the Canadian government not only for getting up early
7 but for assisting us.
8 MS. SOLIMAN: [Via videolink] You're welcome, Your Honour.
9 JUDGE ORIE: Then this concludes the videolink.
10 [The witness withdrew via videolink]
11 JUDGE ORIE: I think we agreed that the there should be no
12 further testimony heard today -- yes, the witness is excused. I see he
13 is standing.
14 [Trial Chamber confers]
15 JUDGE ORIE: I would like to briefly deal with what was on my
16 agenda, and I saw Mr. Tieger has left already, because I -- on the
17 17th of August of this year, some deadlines were set -- deadlines set for
18 the 18th of September, and that was for the Defence to file any remaining
19 evidentiary motions, including 92 bis and quater motions, that are not
20 directly connected to the testimony of upcoming witnesses.
21 We also invited the Prosecution to provisionally indicate whether
22 it intends to present rebuttal evidence, and to the extent it does, what
23 kind and how much. That information was given by Mr. Tieger earlier
24 today. And he could do that because, since we are not sitting last
25 Friday, the Chamber has informed the parties via an e-mail that any oral
1 submissions in this respect could be made on the 21st of September.
2 The Defence, however, apparently did not stick to this dead-line
3 by filing today, which is not an oral submission, but by filing today the
4 Defence motion pursuant to admit the evidence of Nedo Sevo pursuant to
5 Rule 92 bis. I'm a bit puzzled by the title anyhow, by "pursuant to
6 admit," but apart from that, Mr. Ivetic?
7 MR. IVETIC: Yes, Your Honour. We had some technical
8 difficulties. There is also one other one that due to its size could not
9 go through the e-mail system and thus we have do it on disk. And so
10 there will be one other filing that is beyond the time-period that
11 Your Honours had set that we would ask leave of the Court to file this
12 one as well --
13 JUDGE ORIE: And for this one, what was the reason for this one
14 to be filed late?
15 MR. IVETIC: I think it was just the timing, that it was already
16 after the close of business that it was --
17 JUDGE ORIE: Yes, you say it was late because it was late?
18 MR. IVETIC: Yes, yes.
19 JUDGE ORIE: Yes, more or less. And the other one was
20 late because --
21 MR. IVETIC: Due to the file size.
22 JUDGE ORIE: Yes. And what was the file size that it's so
23 extreme that it would --
24 MR. IVETIC: 10 megabytes. And apparently that is large
25 enough -- it's approximately a hundred and -- I want to say, if I
1 remember correctly, 126 or so pages.
2 JUDGE ORIE: And that was 92 bis?
3 MR. IVETIC: Yes, it's a long statement, and then there's a
4 translation, and that is how we come up with this rather large file size
5 that the web mail server is unable to deal with. And then with that, I
6 think we complete or should complete the 92 bis submissions except for
7 there is the possibility of, I believe, one international Rule 70 witness
8 that may not appear and then we might then file a Rule 92 bis for them.
9 And that should be --
10 JUDGE ORIE: Yes. At least to the extent the Chamber of course
11 allows you to file anything. I would -- we'll consider that, whether we
12 will accept those, yes or no.
13 I leave it to that for the time being.
14 Now in terms of the remainder of the Defence case, the Chamber
15 was informed through an informal communication that the Defence has
16 approximately 30 witnesses left to be called including two proposed
17 experts in relation to Tomasica whose reports have yet to be filed, and
18 we would like to know whether that is accurate information.
19 MR. IVETIC: That is accurate, Your Honours. The experts in
20 question have only been recognised as experts within the last few weeks.
21 When I say "recognised as experts," I should have said "appointed as
22 experts by the Registry." I apologise for my inaccuracy in language.
23 JUDGE ORIE: Yes, I think we had some discussions about experts
24 being appointed or not being appointed. And when were they now finally
25 appointed by the Registry?
1 MR. IVETIC: My recollection is that the signed undertakings that
2 commenced their appointment, at least one of them was sent by me last
3 week, Monday. I don't know about the second one.
4 JUDGE ORIE: We've seen the submissions by the Registrar on the
5 3rd of September, which is far a while ago, and do I understand that the
6 instruction was given to the one expert you know of -- at what date was
7 that? You said last week ...
8 MR. IVETIC: I'm confused by what you mean by "instruction" and
9 why --
10 JUDGE ORIE: Well, to ask an expert to write a report. It's as
11 simple as that. I mean, the whole issue of -- of being appointed and
12 funded, et cetera, was -- well, at least we received quite some
13 information from the Registry on that matter. I'd like to know when was
14 the expert asked to write a report.
15 MR. IVETIC: It would have been shortly after they were appointed
16 by the Registry because that would be the first time that they are
17 permitted to get the material.
18 JUDGE ORIE: And do you have a date?
19 MR. IVETIC: I don't as I stand here, Your Honours, no.
20 JUDGE ORIE: Okay. Then we would like to hear from you later
21 what date that was.
22 Next question is: When do you think that you could present your
23 last witness in court? Also without doubling times for
25 MR. IVETIC: I would have to check to be sure, but it was -- I
1 believe our estimates went into sometime in November, early to
2 mid-November I think was the estimates.
3 JUDGE ORIE: Could you please seek confirmation of that
4 information so that we can put it on the record.
5 And would that also deal with the -- would that include the
6 expert witnesses who have not yet produced a report?
7 MR. IVETIC: No.
8 JUDGE ORIE: So your last witness is not really the last one but
9 the last one apart from the --
10 MR. IVETIC: Apart from the two --
11 JUDGE ORIE: -- expert witness --
12 MR. IVETIC: Apart from the two expert witnesses --
13 JUDGE ORIE: Two expert witnesses.
14 MR. IVETIC: The other expert witnesses would be completed by
15 that month.
16 JUDGE ORIE: And could you give us any indication as when you
17 expect those experts to present their reports so that they could be
18 disclosed to the -- and could be presented to the Chamber under Rule -
19 what is it? - 94 bis, I think.
20 MR. IVETIC: We have asked them to do so as soon as possible. I
21 know one has sought some additional materials from the BH authorities,
22 and as I stand here right now, I don't know the process -- I don't know
23 the status of that request or any estimate as to when the reports would
24 be completed. Obviously, we do recognise that under Rule 94 bis we would
25 not be able to call them during the time-period that the 94 bis response
1 period by the -- notification period by the Prosecution is adhered to.
2 So we will obviously not schedule them to come testify before that
3 time-period elapses from the filing of the 94 bis reports.
4 JUDGE ORIE: Okay. But as soon as possible, of course, is a
5 rather flexible moment to deliver something.
6 You have no indication received yet and you have not suggested a
7 dead-line for the experts?
8 MR. IVETIC: Your Honours, I'm trying to be as precise as
9 possible without misleading or approximating or guessing or fabricating
10 an answer, since I don't really know.
11 JUDGE ORIE: Could we -- both in relation to the witnesses left
12 to be called and the date of appointment or instruction of the expert
13 witnesses and about any dead-lines given to those experts, could we
14 receive detailed information not later than the day after tomorrow?
15 That's by Wednesday, that we would know exactly this is the moment when
16 the Registry accepted to appoint, this is when we instructed the expert,
17 et cetera, because we will have a look at it also in -- against the
18 background of the 3rd of September submissions made by the Registry.
19 MR. IVETIC: I will do that.
20 JUDGE ORIE: Thank you. Then we'll receive that information
22 [Trial Chamber confers]
23 JUDGE ORIE: What we could do now is to take a break of
24 20 minutes, and the only thing that would then be left are three
25 relatively short items on my court agenda. We also could decide that we
1 would continue for another seven or eight minutes and then adjourn for
2 the day.
3 MR. IVETIC: Your Honours, we're agreed to continue and finish in
4 this session and then adjourn.
5 JUDGE ORIE: Yes. Then I start with my first item which is a
6 remaining issue from the testimony of Grujo Boric.
7 During the testimony of this witness on the 23rd of April of this
8 year, P7331 was reserved for excerpts from a transcript of a 2004
9 Prosecution interview with Boric.
10 On the 4th of May, the Defence objected to its admission.
11 On the 28th of August, the Office of the Prosecutor advised the
12 Chamber and the Defence by e-mail that it had selected the excerpts,
13 uploaded them under document bearing Rule 65 ter number 32422A and asked
14 for the selection to be admitted. The Chamber hereby sets a dead-line of
15 one week from today for the Defence to make any additional submissions on
16 the record.
17 My second and third item deal with remaining issues from the
18 testimony of Radoje Vojvodic. The first one is about the replacement of
20 During the testimony of this said witness on the 8th of September
21 of this year, the Defence objected to the use of the word "hostage" in
22 the English translation of P2560, which is an order by the VRS Main Staff
23 signed by Mladic. This can be found at transcript page 38839.
24 On the 9th of September, the Prosecution advised via an e-mail
25 that it had uploaded a revised English translation into e-court under
1 doc ID 0362-9386-A-ET.
2 On the 17th of December, the Defence informed the Prosecution and
3 the Chamber that it has no objection, and the Chamber therefore instructs
4 the Registry to replace P2560 with the new version, at least as far as
5 the English translation is concerned. And if I remember well, in the
6 revised translation the word "hostage" does not further appear, but
7 that's just from the top of my head.
8 And then the last one is admission of D1225 and D1226.
9 On the 8th of September of this year, D1225, a medical report,
10 was marked for identification pending an English translation. The
11 Chamber also understood that the Defence intended to tender document
12 bearing 65 ter 1D06072, another medical report, also without an English
14 The Prosecution then informed the Chamber that the document
15 bearing 65 ter number 33087 contained both medical reports with English
16 translations. The Chamber marked for identification the document
17 containing both reports as D1226, and this can be found at transcript
18 pages 38798 to 38805.
19 Can the Defence now confirm that both medical reports are in fact
21 MR. STOJANOVIC: [Interpretation] That's correct, Your Honour. We
22 can confirm.
23 JUDGE ORIE: Yes. Then in order to avoid duplicating the
24 evidentiary record, the Chamber hereby vacates D1225 and admits D1226
25 into evidence.
1 And I have an empty court agenda again.
2 We adjourn for the day and will resume tomorrow, Tuesday, the
3 22nd of September, 9.30 in the morning, in this same courtroom, I.
4 --- Whereupon the hearing adjourned at 4.36 p.m.,
5 to be reconvened on Tuesday, the 22nd day
6 of September, 2015, at 9.30 a.m.