1 Thursday, 3 December 2015
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.04 p.m.
5 JUDGE ORIE: Good afternoon, or whatever time it may be for you,
6 for anyone in and around this courtroom and the videolink room.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case
9 IT-09-92-T, The Prosecutor versus Ratko Mladic.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 We hear the testimony of the next witness to be called by the
12 Defence through videolink. Let's first establish whether the videolink
13 is functioning well.
14 Could the representative of the Registry at the other side of the
15 videolink first confirm whether he can hear us and whether he can see us.
16 THE REGISTRAR: [Via videolink] Good morning, Your Honours. We
17 can hear you and see you well. I hope you can do the same.
18 JUDGE ORIE: We can hear you and see you as well. Thank you for
19 this information. We see that you are present in the videolink room
20 together with a person which I assume will be the witness. Is there
21 anyone else present?
22 THE REGISTRAR: [Via videolink] There is no one else present in
23 the videolink room. This is only me and Mr. Del Pino.
24 JUDGE ORIE: Yes. And then I take it that you have a fixed
25 camera and a fixed audio-recording system.
1 THE REGISTRAR: [Via videolink] That is correct. And we have a
2 technician right next door in case there is a glitch but, for now, we're
3 all alone in this room.
4 JUDGE ORIE: Yes. Then may I take it that with you is the
5 witness, Mr. Del Pino.
6 THE REGISTRAR: [Via videolink] That is correct, Your Honour.
7 JUDGE ORIE: Mr. Del Pino, before you give evidence, the Rules
8 require that you make a solemn declaration. Could I invite you to stand
9 and to make the solemn declaration of which the text is handed out to you
10 by the representative of the Registry.
11 THE WITNESS: I solemnly declare that I will speak the truth, the
12 whole truth, and nothing but the truth.
13 WITNESS: DAVID DEL PINO
14 Examination by Mr. Ivetic:
15 JUDGE ORIE: Thank you, Mr. Del Pino. Please be seated.
16 Mr. Del Pino, you'll be first examined by the -- by Mr. Ivetic.
17 Mr. Ivetic is a member of the Defence team of Mr. Mladic, and you'll see
18 him soon our your screen.
19 Mr. Ivetic, please proceed.
20 MR. IVETIC: Thank you, Your Honour.
21 Q. Good day, Mr. Del Pino. I'm glad to finally meet you, albeit
22 over the TV screen. Could I ask you to please state your full name for
23 the record.
24 A. My name is David Del Pino Kloques.
25 MR. IVETIC: Your Honours, one preliminary matter. The original
1 Rule 65 ter summary for this witness incorrectly noted that he was part
2 of the oversight committee when in fact he was interviewed by the
3 oversight committee. We did address -- fix that in the second filing,
4 but I'm told that the original filing is still on record and so I did
5 want to point that out so that everyone is on the same page as to that.
6 Q. Sir, could I ask you to please tell us what is your current
7 occupation and employment.
8 A. I'm a educational technologist. I'm the Assistant Director for
9 Business and Economic Systems at the University of Texas Medical Branch
10 in Galveston.
11 JUDGE ORIE: Could I already invite you to slow down because with
12 your speed of speech the interpreters will not be able to translate -- to
13 interpret your words so that we can consider them.
14 THE WITNESS: All right. I will repeat my answer then. I'm an
15 educational technologist. I work for the University of Texas Medical
16 Branch. My title is Assistant Director for Business and Economic
18 MR. IVETIC:
19 Q. And, sir, what educational degrees do you hold?
20 A. I'm an anthropologist. I do have computer certification in a few
21 different areas, and I have a masters degree in educational technologist.
22 Q. Thank you. And prior to today, have you ever had occasion to
23 testify as a witness in any court proceeding?
24 A. No.
25 Q. Okay. And were you ever in Bosnia-Herzegovina for purposes of
1 any of your previous employments?
2 A. No, I never was a witness before.
3 Q. Let me repeat my question. Were you ever present in
4 Bosnia-Herzegovina for purposes of any of your previous employments?
5 A. Yes, I was in Bosnia working for Physicians for Human Rights.
6 Q. And what was your specific position or title at the time that you
7 were in Bosnia?
8 A. I was a forensic expert. I done field-work, assisting the
9 archaeological phases of the work, and I was involved in the laboratory
10 work, too.
11 Q. Okay. And what had been your specific job or occupation prior to
12 going to Bosnia as part of Physicians for Human Rights?
13 A. I was a forensic anthropologist since 1989, working in human
14 rights violations, missing persons cases in my country, in Chile. And
15 I'm the founding member of our forensic team, which was the DAF Chilean
16 forensic team.
17 Q. And apart from the Chilean anthropological forensic team, were
18 you ever a member of any other professional associations dealing with
20 A. Not really. I worked with Dr. Glasno [phoen] and he is my
21 master, my mentor in forensics.
22 Q. Okay. And do you recall what year it was that you were in Bosnia
23 and Herzegovina performing the work that you've just described?
24 A. Yes. 1996.
25 Q. Do you recall how long in 1996 you were in Bosnia-Herzegovina?
1 A. I think it was from June to November, late June to early
2 November, something like that. I'm not exactly clear about the exact
3 dates. But from summer to the beginning of winter or the ending of fall
5 Q. That's fair enough. Do you recall the names of any other
6 anthropologist whom you may have worked with while in Bosnia-Herzegovina?
7 A. Yes. Jose Baraybar, I think is the last name. I perhaps not
8 recall the names but I recall the people. Gallagher, a student, Kliakov
9 [phoen] another young anthropologist at the time, and Moscosko, an
10 archaeologist. There was a wealth of people that I remember in personal
11 ways but not clearly the names. There was an anthropologist from the
12 USA -- archaeologist from the USA. I'm trying to recall his name but I
14 Q. Let me see if I can assist you.
15 A. I know the people. I can recognise the people.
16 Q. Okay. Do you know anyone by the name of C. Elliot Moore also
17 known by the nickname Hass?
18 A. Yes. He was working for -- I think he was related to the army
19 here in the USA, looking for missing soldiers.
20 Q. And what was his profession, if you recall?
21 A. Archaeologist.
22 Q. Okay. And do you recall anyone by the name of Clyde Snow?
23 A. Dr. Clyde Snow is my mentor. He passed away but I do remember
24 very well. He's part of my life.
25 Q. I understand. Now, do you recall which specific sites --
1 JUDGE ORIE: If you're done with the names. You mentioned the
2 name of Gallagher. You said it was a student. Was it a male or a
3 female, and do you remember any first name?
4 THE WITNESS: Dorothy Gallagher. Yes, sir. Dorothy Gallagher
5 was a lady, a female.
6 JUDGE ORIE: Yes. It's Dorothy Gallagher.
7 THE WITNESS: Correct.
8 JUDGE ORIE: Thank you. Please proceed.
9 MR. IVETIC:
10 Q. Sir, do you recall any of the specific sites that you were asked
11 to work on as part of the mission in Bosnia-Herzegovina?
12 A. I do recall all the sites. I don't recall the name of the sites.
13 And names and pictures in my mind are a little mixed up, so I would need
14 some of your help to identify. But I do remember exactly the work in
15 every single site.
16 Q. So is it fair to say that you worked on a number of sites, not
17 just one?
18 A. That would be correct.
19 Q. Okay. That's enough for our purposes. What, if anything, were
20 you told about who or what was at the sites that were being excavated?
21 A. I don't understand the question. What do you mean by "who or
23 Q. Were what were you told to expect at the sites that were being
25 A. We were --
1 JUDGE ORIE: One second, please.
2 Mr. McCloskey.
3 THE WITNESS: It was --
4 JUDGE ORIE: One second, please. One second.
5 Mr. McCloskey.
6 MR. McCLOSKEY: I apologise, but could we get who he is being
7 told anything by so we can get that right up front and perhaps when.
8 MR. IVETIC: That's my second question.
9 JUDGE ORIE: I don't think there was any reason to intervene.
10 Would you please continue your answer. You started by saying --
11 no, not anything yet. Could you tell us what you were told to expect at
12 the sites that were being excavated?
13 THE WITNESS: Yes, I was told to expect mass graves. And I was
14 before working for the International Tribunal for the former Yugoslavia
15 with a similar team, so I was told to expect a similar excavation
16 situation with a mass grave, semi-decomposed bodies, and so forth. So I
17 had the mindset for what I was going to encounter.
18 MR. IVETIC:
19 Q. And now if could I ask you to address the question raised by
20 Mr. McCloskey. Do you recall by whom you were told to expect this?
21 A. We got some documentation in print form by Physicians for Human
22 Rights, and I briefly talked to Haglund, Bill Haglund, and that's how I
23 got information to be prepared for.
24 Q. Now, you said that you had previously worked with a similar team
25 working for the International Tribunal. Were you ever directed by anyone
1 from the Office of the Prosecutor of the Tribunal during either of your
3 A. What do you mean by "directed"?
4 Q. Given directions.
5 A. No. I was a member of the forensic team. The Tribunal -- I
6 wasn't aware of the presence of the Tribunal at the sites, but perhaps
7 they were there. And we had guards. I think they made us feel secure.
8 Q. Okay. Whom did you consider to be in charge of the operation
9 from your perspective?
10 A. Haglund, Bill Haglund.
11 Q. And what exactly was your job; that is to say, how did you
12 understand your role within the operation?
13 A. At the time I was a little older than the rest of the crew, and
14 so I had a -- Haglund would put me in different jobs as needed because I
15 was able to perform most of the duties required in excavation, and so I
16 had done a wealth of different tasks as needed per site. For example,
17 photographer, for example, direct excavation, for example, taking
18 measurements. And then I work at the laboratory in my capacity as an
19 anthropologist, and that's -- I cleaned bones, I reassembled broken
20 bones, and so forth.
21 Q. Okay. Did anyone talk about determining if a set of remains
22 belonged to a combatant or a civilian?
23 A. We were -- I think that question wasn't part of the forensic
24 research we were doing. We were in a discovery mode, in my mind at
25 least; we were going to find out. Having that question before was not
1 proper. For example, digging in Europe, you can find grave-sites from
2 any war you guys involved yourselves like, say, 40 years. So it was a
3 discovery process, a scientific approach.
4 Q. Now, generally speaking, when someone is engaging in scientific
5 approach excavating a potential grave-site, are there normally protocols
6 that are established; and if, so, what we would be?
7 A. Yes. Forensic archaeology is extremely conscientious about
8 keeping the relationships in between the elements you are going to
9 take -- lifting from the grave. We're supposed to know that every time
10 you intervene in a grave you are rescuing information and destroying
11 information at the same time. So that's why it's so important, the
12 graphical record of elements you are getting from the grave, how they are
13 related to each other.
14 For example, if you found a body and its clothing, is the body
15 inside the clothing or not? Or if you find a key chain next to a body,
16 how far it was, where it goes, and so forth. Or in a mass grave, the
17 position of the bodies, how they are co-mingled together. So all those
18 relationships are extremely important at the time of bringing about a
19 reconstruction of how these bodies were put together in that
20 archaeological site. So relationships for us is really important.
21 Q. Now, in relation --
22 A. Did I answer what you were asking?
23 Q. I think so. I have a follow-up.
24 In relation to what you have talked about in relation to forensic
25 archaeology and anthropology, when doing excavation of graves, what is
1 the normal procedure for clothing and artefacts found with the human
3 A. You try to keep them together. If they are not -- because of the
4 construction of the grave, usually they -- the grave-site is constructed
5 in a way that in the case of human rights violation, it's constructed in
6 a very quick way. Usually criminals are trying to hide what they've
7 done. And so sometimes the bodies are very well preserved and all
8 together with the clothing and documents and so forth. But sometimes you
9 get a grave-site in which clothing or the cultural elements are separated
10 from the dead bodies, implying a sort of activity before the burial. And
11 that's important, too. To me as an archaeologist, I need to see and I
12 need to evaluate even if the elements are separated. It's evidence to
14 Q. And you say that it's important to you. What kinds of
15 information as an anthropologist or archaeologist can be established from
16 clothing and other artefacts found with human remains?
17 A. Without even looking at the clothing and artefacts, you can --
18 you get information by knowing how they were around the body, how the
19 grave-site was constructed. Now, if you -- if you establish a proper
20 relationship in between the clothing and the bodies that own the clothing
21 or are related to the clothing, then you can dig a little deeper. If
22 there are cultural objects together with the clothing, like photo IDs,
23 keys, and so forth, then you can think about establishing a relationship
24 in those extra elements that will come with your -- as an evidence and
25 the relationship to the original individual you are digging out will give
1 you a good clue of what's the relationship between the rest of the
2 evidence and the body. So, yeah. Do you have any follow-up?
3 Q. Yes, I do. Apart from the excavations that you took part in in
4 Bosnia-Herzegovina which you've just described, do you have an estimate
5 as to how many total excavations you have been involved in throughout
6 your career?
7 A. Oh, my Lord. A lot. In my country, I've done several forensic
8 digs and in different situations, but I -- the number is -- is -- I think
9 it's below 500. Below 500 individuals. But above 250 -- no, no, above
11 Q. Okay.
12 A. That's a rough number. I'm sorry, but I never counted.
13 JUDGE MOLOTO: Sir, you say about 500 individuals. The question
14 was how many excavation sites, if I understand your question.
15 THE WITNESS: Oh, sites.
16 JUDGE MOLOTO: Yes.
17 THE WITNESS: Okay. I'll say about 15 or 20.
18 MR. IVETIC:
19 Q. Okay. That's fair enough. Now, in anthropological field
20 recovery, first of all, is that term that are you familiar with, "field
22 A. Yeah.
23 Q. Okay.
24 A. It's what you do.
25 Q. In field recovery, what is considered to be associated evidence?
1 A. I mean, this is a -- it depends on your research. But from the
2 beginning, the whole grave-site is a -- it gives you evidence. When you
3 just -- even before getting anything from the ground, you are recovering
4 the activities of producing the burial. So the wealth of information is
5 started when you get to the site.
6 Is that a good answer?
7 Q. It's the answer that you've given. That's all I am requiring
8 from you, sir, is the answers as you know them. I'm not here to qualify
9 or judge them.
10 And in relation to the examination of associated evidence in
11 field recovery, is there a procedure for preserving such associated
12 evidence that is commonly followed?
13 A. Yes, yes. You normally produce a -- you're supposed to have
14 paperwork in which you are writing down the evidence. You're going
15 around the body. You're supposed to draw a rough draw of the
16 circumstances of the body and the elements surrounding it. Then you're
17 supposed to picture it. You will see a wealth of photography being taken
18 around any forensic dig.
19 Q. Okay.
20 A. And sometimes people choose to do videos of the whole burial at
21 the time of recovering the evidence so no relationships are going to be
23 Q. Now, in relation to the work that you took part in in
24 Bosnia-Herzegovina which we have been talking about, who was in charge of
25 removing and documenting the bodies, the artefacts, and the associated
2 A. The sites were so big that we split in teams, and small teams in
3 different segments of graves. And one person was taking notes and two
4 other people were cleaning up the body and taking -- getting the
5 photographs to get a graphical -- the graphical evidence. That's
6 what's -- normally we shoot to do. We target to do it that way.
7 Q. Do you know if any guidelines or protocols were established and
8 followed for the excavation of those sites in Bosnia-Herzegovina?
9 A. Yes. We had a form to fill and we tried to -- we set some
10 parametres of the work. For example, we were -- I think that's the
11 answer. We have our little small team: Somebody taking notes, somebody
12 covering the photographer, somebody cleaning the body, two people getting
13 the body out. That's the method.
14 Q. Okay. In your opinion -- what is your opinion of the level of
15 communication in the field between the various other specialties that
16 were working alongside anthropologists?
17 A. In the -- in the grave-sites, the communication was rather okay,
18 but sometimes we did not have a -- Dr. Haglund would be absent sometimes,
19 and that will make the work more difficult because we -- basically there
20 was not a chain of command properly organised.
21 Q. Okay. And in the field of anthropology, what is the process
22 known as trauma analysis?
23 A. You're bringing me now to the laboratory work. Yeah. For trauma
24 analysis, you clean the body the best you can to look at the morphology
25 of the bones, and then you can isolate, for example, all injuries early
1 fractures and with a -- the bone will clearly reveal the life history of
2 the trauma of the person. And there are certain markings on the bone
3 that will clearly indicate sometimes injuries that are not healed or the
4 body wasn't able to react to it, so we established perimortem or recent.
5 JUDGE MOLOTO: I just have a question --
6 THE WITNESS: Those -- I'm sorry.
7 JUDGE MOLOTO: Finish your answer. Please finish your answer,
9 THE REGISTRAR: [Via videolink] Finish the answer.
10 THE WITNESS: Oh, I'm sorry, I thought somebody was saying
11 something there.
12 So perimortem, you can identify the type of trauma, sometimes
13 blunt trauma, sometimes they are projectiles of different velocities and
14 you can sort it out by looking at the types of entrance and exit wounds,
15 if they are marking the bones, and cut marks, that that's very clearly
16 isolated -- easy to isolate. So that's something that will go into an
17 anthropological forensic report.
18 Together with that we can do a lot of other things, for example,
19 laterality, to see if the person used to use more the left or the right
20 side of the body, and we can see statistically with certain/uncertainty
21 the height and sometimes very clearly the sex of the person. On top
22 that, it's easy at a certain age to estimate the biological age of the
23 skeleton and so there's a lot of things you can do, really, depending on
24 your skill level, how can you listen to the skeleton, the life history
25 and how he died.
1 JUDGE MOLOTO: Earlier you said, sir, that Dr. Haglund would be
2 absent sometimes and the chain of command would not be in place. Was
3 Dr. Haglund the leader of the team?
4 THE WITNESS: Yes, he was the leader of the team, but he split
5 his time at several sites.
6 JUDGE MOLOTO: And in his absence did he not have a deputy to
7 deputise for him?
8 THE WITNESS: No. I mean, not to my knowledge, and I was working
9 for him. So a few people trying to take over the second on board but it
10 was not -- to me, at least, it was not very clear.
11 JUDGE MOLOTO: Thank you.
12 MR. IVETIC:
13 Q. And, sir, for the process that you have described for trauma
14 analysis in the lab, can clothing worn by a body have a role assisting in
15 that examination?
16 A. Yes, indeed. This is no different to what I say about
17 archaeology. That's why you recover the relationships between the
18 elements at the grave. The clothing is one of your components of
19 analysis. Yes, it's important.
20 Q. And, sir, in your experience at the sites in Bosnia-Herzegovina
21 where you were involved in doing the work, were all clothing and
22 artefacts found during the excavation preserved and kept with the bodies?
23 A. I would say in most of the case, yes. But I was in one of the
24 grave-sites in which some of the clothing were discarded.
25 Q. You've mentioned a Mr. Baraybar. What was the role of
1 Mr. Baraybar in the work that you were involved in?
2 A. I don't really know. He was joining with us as a team member,
3 working for Haglund, but then I understood that he was working for UN as
4 a forensic team of UN, and he had a different role and responsibilities.
5 Q. Did you have an understanding what his different role and
6 responsibility were as opposed to the work that you were doing?
7 A. Sometimes Jose Pablo Baraybar will join as a team member, as a
8 peer of us, and we worked together okay and -- but I don't know any --
9 any other than that.
10 Q. Okay. Moving on. At an excavation site, what is the importance,
11 if any, of protecting human remains and artefacts from the elements, such
12 as rain?
13 A. Oh, it's of extreme importance because any foreign intrusion,
14 like rain, on the grave-site can remove the liaison in between the
15 elements you are seeing in the grave, and you can lose -- even though can
16 you recover everything, you lose the connections, and the connections is
17 evidence you need to gather in order to produce information.
18 Q. In your experience, were the human remains and artefacts in
19 Bosnia-Herzegovina at the sites that you have knowledge of, were they
20 always adequately protected from the elements such as rain?
21 A. I say most of the time but not all the time.
22 Q. Okay. Now, after you completed your work in Bosnia-Herzegovina,
23 were you interviewed by anybody about the work that was performed in
25 A. Yes, but the San Antonio group of analysis, I mean, I was part of
1 the San Antonio report, as you know. That was in 1997, after the sites.
2 Q. Do you recall if you were told the purpose of why you were being
3 interviewed by this San Antonio Analysis Group?
4 A. Yes. They were trying to -- they were trying to research about
5 the method we had done at the grave-sites and -- that's what I remember.
6 Q. Do you happen to recall who interviewed you?
7 A. I don't remember the names, but I know Dr. DiMaio was there,
8 which was one of the forensic authors I followed the most when I was
9 studying forensics.
10 Q. And during your interview did you identify any concerns to those
11 that interviewed you about the manner in which the work was done at
12 grave-sites in Bosnia-Herzegovina?
13 A. Yes, I did. Exactly what I shared with you.
14 Q. Okay. I'd now take a look at Exhibit D329 with you. There
15 should be a hard copy there with Mr. Registrar. And this should be a
16 report of the oversight committee.
17 A. Is this the San Antonio report?
18 Q. Yes, I believe so. That's what I was going to ask you. Sir, is
19 this the report that you mentioned that you call the San Antonio report?
20 A. Correct, indeed.
21 Q. Okay.
22 A. Yes.
23 Q. I'd like to turn to page 2 of the report with you, and at the
24 bottom it says:
25 "Part 3, Interviewing Process. Following a briefing by an ICTY
1 attorney on Saturday, November 15, 1997, interviews of the team members
2 were conducted on an individual basis in the office, beginning on Sunday,
3 November 16, 1997. During the first two days, the interviewees were:
4 Connor, Curran, Gallagher, Hoffmann, Koff, Del Pino, Snow and Saunders."
5 Does what is written here accord with your recollection of how
6 the interview process took place?
7 A. I don't recall the event so much but this is very sound to me. I
8 think it is what happened.
9 Q. Okay. If we could now turn to page 5 of this document and if we
10 could focus on item number 14 here, there appears to be some language
11 next to your name that I'd like to ask you about. It says:
12 "David Del Pino (Chilean Anthropologist): Operations were halted
13 when Dr. Haglund was away. Clothing was discarded at Haglund's command,
14 even though some contained identifications. Forms were not always used.
15 There was no delegation of authority."
16 Do you believe that this language accurately reflects the
17 comments you made when you were interviewed in 1997 by the San Antonio
19 A. That's precise. It is indeed what I said.
20 Q. Okay. And did you tell the truth to the members of the committee
21 that interviewed you?
22 A. Yes, sir.
23 Q. And in relation to clothing being discarded at Mr. Haglund's
24 command, do you recall if any reason was given for this?
25 A. He believed that the clothing was not related with the bodies and
1 to me that was a research question, not something that you can see at the
2 site. You need to lift all the evidence. I think I told Dr. Haglund
3 that at the time of the site. We have a disagreement.
4 Q. Did anyone else voice objection to the discarding of clothing at
5 the site?
6 A. I don't know.
7 Q. Do you recall the quantity of such clothing that was discarded?
8 A. This is 18 years ago, so it was -- it was not a huge amount of
9 clothing, but it was a volume, say, of about 50 litres maybe.
10 Q. And do you recall if any of the clothing discarded was military
11 or civilian in nature?
12 A. The clothing, that will be a research question. You cannot say
13 that on the site. You need to clean the clothing. And it will be
14 imprecise if I answered that one way or another.
15 Q. Fair enough, sir. I thank you for that answer.
16 Do you know who actually discarded the clothing after Dr. Haglund
17 commanded it?
18 A. I don't know.
19 Q. And here you say "even though some contained identification."
20 What happened to the identification?
21 A. That part of the sentence is not precise. I should have -- it
22 should have been written there "some may contain."
23 Q. And if they did --
24 A. It's part of the research.
25 Q. Go ahead. I'm sorry.
1 A. It's part of the research. It's a question. That's why I will
2 never discard stuff from the grave-site.
3 Q. Okay. And you say that you had a disagreement with Dr. Haglund.
4 In your opinion, was the discarding of clothing potentially with
5 identifications in accord with the generally accepted practices
6 applicable to excavations, as you understood it?
7 A. It's not am acceptable practice.
8 Q. Okay. Now, do you know if anyone made a determination if the
9 clothing had any identification before it was discarded?
10 A. No, I don't know about that.
11 Q. Okay. And if we could turn to page 7 in the document, I'd like
12 to focus your attention at the top of the page where we have some text
13 which reads:
14 "Several anthropologists believed and had alleged that the
15 scientific integrity of the exhumations had been jeopardized because
16 Dr. Haglund spent too much time playing up to the news media and driving
17 around the country-side. Several believed he had capriciously and
18 arbitrarily speeded up or slowed down the exhumations to accommodate the
19 news media or to frustrate photographers."
20 Sir, do you recall if you were one of the anthropologists who
21 made such comments to the San Antonio Group?
22 A. Yes, I do recall that.
23 Q. And do you -- go ahead.
24 A. That was a perception of not only me but the rest of -- some
25 other members of the crew. But I need to say that -- that you can reduce
1 the precision level of the information you get from the site but not to
2 zero. I mean, there are some very valuable information getting from
3 these grave-sites, even in these conditions.
4 Q. Understood. Now, if we could turn to page 9 of this document,
5 and --
6 MR. IVETIC: It's the next page, I apologise.
7 Q. At the bottom we see at item number 9, "Discussion and
8 Conclusion," and on the next page, we have a list going from 1 to 14 --
9 THE REGISTRAR: [Via videolink] That will be page 10, if I'm
11 MR. IVETIC: It should be page 10. That's correct.
12 Q. And it says, "There is mutual agreement on management problems on
13 the part of supervisors." And I'd like to ask you about a few of these.
14 If we could focus on number 7, which says --
15 THE REGISTRAR: [Via videolink] That's the next page.
16 MR. IVETIC:
17 Q. Let me read it and see if we're on the same page. Number 7
18 should read: "There was little need for rapidity of some grave-site
19 exhumations" --
20 JUDGE ORIE: We now had a -- yes, could you please restart
21 because a different page was shown to us a minute ago when you started
22 reading, Mr. Ivetic.
23 MR. IVETIC:
24 Q. Number 7:
25 "There was little need for rapidity of some grave-site
1 exhumations and only one exhumation should have been performed at one
3 Do you agree with this statement?
4 A. Not really. This statement is a little unfair and imprecise.
5 Q. Okay.
6 A. If you rephrase it in the following manner, that only one
7 grave-site should be open at any given time, considering the size of the
8 team, I would say that. But he had more than one grave-site running at
9 the same time. But the rapidity of each exhumation in a mass grave is
10 really, really a factor of how the bodies are co-mingled.
11 So, for example, in a mass grave, where the construction of the
12 site involved machinery, you can see that the bodies are all twisted
13 around, so you will have to exhumate more than one body at the same time,
14 making the archaeological phases a little more difficult but not
15 impossible. I mean, if you rephrase this conclusion that way, I will
16 totally agree that.
17 Q. Fair enough. Now, if we could look at number 10 together, which
18 reads: "There was no attempt to schedule or co-ordinate anthropological
19 and pathological investigations."
20 Do you have any comments as to this statement?
21 A. I was not high enough in the chain of command to see whether --
22 how the organisation was going on. It was being implemented.
23 Q. Okay.
24 A. So I cannot confirm. But, yeah, it's difficult for me to
1 Q. Fair enough. And the last part of this list I want to look at is
2 number 11, which reads: "There was too much concern with regard to media
4 Do you agree with this --
5 A. Yes, that was a -- yes, I would agree with that.
6 Q. Okay. And if we can turn to the next page in the document, which
7 is entitled, "Section 7, Committee Recommendations," I think I would like
8 to ask you about number 4 at the top of the page, which reads as follows:
9 "Develop a standard operating procedure for the collection and
10 handling of evidence (pathological, anthropological, and criminal)."
11 Do you agree with this recommendation?
12 A. I'm sorry?
13 Q. Do you agree with this recommendation?
14 A. Yeah, I agree.
15 Q. Was the operating procedure standardized in Bosnia-Herzegovina in
16 relation to the work that others were doing alongside yourself?
17 A. In the sites I was involved with, we were consistent in following
18 the same pattern of collection -- collecting information. I'm not a --
19 we didn't know what the other sites were doing.
20 Q. Fair enough. And one last area for you, sir. In our trial, at
21 transcript page 14496 through 14498, the Prosecution presented a textile
22 expert, Ms. Susan Meyers, who said that "videotaping fabric and then not
23 preserving the fabric makes it impossible to run further tests on the
24 fabric because you need the material itself."
25 Do you agree with the comments of Ms. Meyers?
1 A. Partially. I'm not an expert in fabric, of course, but I do
2 forensic research -- I used to do forensic research. And even though the
3 fabric is required, you are still having a lot of information from a
4 decent image collection. For example, you can estimate the make of the
5 fabric, you can research the colour of the fabric, you can count the
6 thread of the fabric, and so forth, even though you may not have the
7 actual fabric. But that is not my domain of expertise. I'm just -- if
8 I'm producing a document about a mass grave or so and I don't have the
9 fabric, I will go with the pictures. I would be able to describe some
10 meaningful items for the court.
11 Q. And then, sir, my last question in relation to the clothing items
12 that were discarded upon the command of Dr. Haglund, were those
14 A. I don't know.
15 Q. Sir, I thank you for your time.
16 MR. IVETIC: Your Honours, that concludes my direct examination.
17 JUDGE ORIE: Thank you, Mr. Ivetic. We're close to the time
18 where we take a break. Perhaps it would be better not to start with the
19 cross-examination for a couple of minutes.
20 But I would have one follow-up question, Mr. Del Pino. Just for
21 my understanding, when you said that the volume or the quantity, I think
22 the question was about the quantity of the discarded clothing was 50
23 litres, just to make sure that we understand each other well, that would
24 be approximately a box of 40 centimetres by 40 centimetres and then a
25 little bit over 30 centimetres high? Is that well understood?
1 THE WITNESS: Yes, sir. That's a proper understanding of what I
3 JUDGE ORIE: Yes. Now, could you tell us, the clothing of how
4 many persons, if you can establish that or assess that, the number -- the
5 clothing of how many persons would fit into a box of such size?
6 THE WITNESS: I cannot really because you see the mud in Europe,
7 especially in Bosnia, is a type of -- obviously, mud will stick with the
8 clothing unless you wash it so -- enlarge the volume of each piece. So I
9 have no clue.
10 JUDGE ORIE: So you also have no clue as to the clothing of how
11 many persons would have been discarded --
12 THE WITNESS: The volume I remember in my mind, but it's a volume
13 of dirty clothing, with mud and materials. So it would be impossible for
14 me to recall -- to make you an approximation.
15 JUDGE ORIE: Not even in terms of whether it would be five or 30
16 or 80 or ...
17 THE WITNESS: If the clothing were co-mingled and packed together
18 and the mud and the accumulation of material was around the clothing, in
19 this 50 litres, it would clothing for, like, a lot of people. But if mud
20 is intrusive and occupying layers in between the pack of clothing, it
21 would be very few people.
22 JUDGE ORIE: Yes. Don't force yourself to draw any
23 conclusions --
24 THE WITNESS: I really --
25 JUDGE ORIE: -- you think you couldn't draw. Thank you for
1 having answered this question.
2 We'll take a break, and we'd like to continue in 20 minutes from
3 now. For our local time, that would be 20 minutes past 3.00.
4 We take a break.
5 --- Recess taken at 2.57 p.m.
6 --- On resuming at 3.20 p.m.
7 JUDGE ORIE: Could I first establish whether the videolink is
8 still functioning well? Can you hear me at the videolink room and see
10 THE REGISTRAR: [Via videolink] Your Honour, we can still see and
11 hear you well.
12 JUDGE ORIE: Yes. And we can hear and see you also.
13 Mr. Del Pino, you'll now be cross-examined by Mr. McCloskey.
14 Mr. McCloskey is counsel for the Prosecution. And as he will do, you're
15 also invited to make a short break between question and answer and answer
16 and question.
17 Mr. McCloskey, we have high expectations in that respect of your
19 Please proceed.
20 MR. McCLOSKEY: Thank you, Mr. President.
21 Cross-examination by Mr. McCloskey:
22 Q. And hello, Mr. Del Pino.
23 A. Hello.
24 Q. I won't take too much of your time today. Don't hold that
25 against us. This Court has heard weeks of evidence about forensic
1 anthropology and archaeology and the work.
2 I would like to see if I can help refresh your recollection about
3 one particular grave and ask you some questions about it. I believe at
4 the time it was called the Pilica grave. It should have been probably
5 the biggest grave you worked on. And let me show you a couple of
6 pictures, just to help to see if that refreshes your recollection. If we
7 could start with 65 ter 335826 and it will be page 8 of that.
8 MR. IVETIC: Check the number. I think there's too many digits.
9 MR. McCLOSKEY: Sorry, 65 ter 33526, page 8, which is -- it's one
10 exhibit in the 65 ter with several pages to it.
11 THE WITNESS: Yes, I remember this.
12 MR. McCLOSKEY:
13 Q. Okay. Now, we're not looking at you anymore but hopefully we're
14 looking at this big picture. Does that bring back any memories?
15 A. Yes.
16 Q. Okay. Let's go to page 7, same 65 ter number.
17 A. Eleven, you said?
18 Q. Seven.
19 A. Yes.
20 Q. And does this look like the same grave to you?
21 A. Can you go back and forth, please. I don't ...
22 JUDGE ORIE: The witness invites us to go back one page as well
23 on our screens so that we know what he's --
24 THE WITNESS: Yeah, this is a different view of the same grave, I
1 MR. McCLOSKEY:
2 Q. Okay. Well, let's just stay on this number 7 for a minute, and I
3 know it may be hard, but do you recognise anybody in that photograph?
4 A. Yes. The person looking down with the hat is Jose Pablo
5 Baraybar. The person standing with the shirt with lines is, if you --
6 the name doesn't come to me but I recognise him as an American forensic
7 archaeologist working for the military in the recovery of missing
8 soldiers. And the other people is French security guards. And the blond
9 person in the picture I think is an UN deminer, a member of the team, the
10 deminer team, I think so.
11 Q. Okay. And let's go to another picture --
12 MR. McCLOSKEY: 65 ter 33527.
13 Q. And, sir, this is the -- this is another picture of the Pilica
14 grave. Do you recognise it?
15 A. Yes.
16 Q. And can you briefly describe to us what's going on here.
17 A. Yes, we're cleaning up the bodies without removing them so we
18 would see relationships of how they were placed in the grave, and this is
19 a process of cleaning up so you reveal all the information in the grave,
20 how the bodies are placed, what elements are related to each other.
21 These are very detailed work and hard tools are only used in the
22 loosening up of the dirt in between the bodies. But then it's very
23 detailed work on removing the material so you don't remove cultural
24 elements in association. You try to recover exactly that, the
1 Q. Understood. And can you tell if you're in this picture?
2 A. Yes, I am in the picture, at the left of it. And next to me is
3 assisting is one of the French security guards. The rest of the people
4 are -- they are on top, looking down. You can only see her hair
5 basically. It's an anthropologist from Florida. It's an oriental last
6 name. I don't recall her last name.
7 Q. Okay --
8 JUDGE ORIE: Mr. --
9 THE WITNESS: And then at the bottom of the picture is an
10 archaeologist, last name Moscosko and the lady that is -- with her back
11 to the camera is Horena. I don't recall her last name, but she is an
12 archaeologist, a forensic anthropologist, from the USA. I think she's
13 from one of the -- a state in the centre of the US.
14 MR. McCLOSKEY:
15 Q. Okay.
16 A. Do you need any more details?
17 Q. Just if you could be clear about which one you is. You said the
18 left side of the picture.
19 A. The left side of the picture. It's the only face you can see
20 here, with a beard, of course.
21 Q. Okay. I think I see the only person with a beard. Thank you.
22 Now, in Dr. Haglund's report on this particular grave which, in
23 our case, is P1833, he notes that the minimum number of individuals found
24 in that grave was 132. And is that roughly what you reflect about the
25 number of -- minimum number of individuals that was in this grave?
1 A. Yeah, I think that number was -- well, I -- I concur. This is a
2 number -- with estimation, field estimation, of the minimum amount of
3 bodies. In this particular site, the recovery was precise and well done.
4 Q. Okay. And you also worked in the morgue or what I believe you
5 called the laboratory that examined these bodies along with the forensic
6 pathologists; is that right?
7 A. That would be correct.
8 Q. And from both your work in this excavation and in the lab, do you
9 remember finding cloth ligatures around the wrists of any of these
10 victims from this grave?
11 A. I don't remember exactly from this grave but I do remember seeing
12 the cloth on the -- on the section that you will call the eyes of the
13 body as -- what we would call a blindfold. Also, I do remember seeing
14 wrist, wire wrist, improvised handcuff, with a sort of wire that you
15 would use to hang your clothing for drying, I don't know.
16 Q. And just to try to be clear, the wire handcuffs, could that have
17 been at the Cerska grave where people were just shot over the edge of a
18 road and dirt poured on top of them?
19 A. When you say "Cerska," are you talking about the side road that
20 was extended?
21 Q. Just the location and the name that you call the grave, if you
22 can recall.
23 A. Yeah, I think so.
24 Q. Okay. And in Dr. Haglund's report, going back to the Pilica, the
25 grave we have in front of us, he notes that ligatures were recovered from
1 82 individuals, and the wrists of 77 were bound and that ligatures were
2 associated with some additional remains.
3 Now, would those cloth ligature have been -- or were they saved
4 as part of the evidence in your work?
5 A. Yes, yes. This grave is well dug. As you can see, it's a lot of
6 detailed work on it. So the relationship of elements is going to be
7 much -- is going to be precise. Perhaps there is a lot of photographs
8 showing exactly what you're asking for.
9 Q. Yes. And do you --
10 A. Go ahead.
11 Q. Do you also recall in the lab or the morgue the doctors and/or
12 the anthropologists takes samples of the bones for potential DNA testing?
13 A. We cut a segment of the tibia about 1 centimetre by 1 and a half
14 centimetres of most of the bodies.
15 Q. So --
16 A. It was a protocol we tried to follow, to cut at the same site,
17 the same height of the shaft of the bone. But sometimes we have isolated
18 bones and so forth, so I don't believe that the protocol applied to all
19 the cases.
20 Q. All right. And the investigation has revealed in this case that
21 from five graves associated with this Pilica grave, associated by DNA
22 connections between the five graves and this Pilica grave, as well as
23 matching of cloth from ligatures in some of the five graves matching with
24 the Pilica grave, the evidence here is that 1.611 people were identified
25 through DNA in those five secondary graves, I'll call them, and that each
1 of those five graves was associated, either through a DNA match or a
2 cloth match, to your Pilica grave. If good DNA matches or good DNA was
3 taken from the secondary graves and cloth was found in those secondary
4 graves, from your experience, could that be tested up against the DNA
5 found in the primary grave that you did, where you took DNA?
6 JUDGE ORIE: Mr. Ivetic.
7 MR. IVETIC: Your Honours, I don't think that the witness has
8 been qualified on an expert on DNA. He has previously testified as to
9 his inability to be an expert as to textiles. So cloth, I believe, is sa
10 textile, so I think we're asking the witness to go beyond areas that he
11 might be able to comment upon.
12 THE WITNESS: Actually --
13 JUDGE ORIE: One second. One second. One second, Please.
14 Mr. McCloskey.
15 MR. McCLOSKEY: Yes, Mr. President. I don't think a doctor that
16 sends a test out, some microscopic test, needs to be an expert in that
17 test to know if can he use the result of that test in his work, and
18 that's simply the question.
19 JUDGE ORIE: Let me just re-read the question.
20 [Trial Chamber confers]
21 JUDGE ORIE: The objection is denied.
22 The question doesn't require DNA expertise. The question started
23 with, "if DNA was taken, what then could be done," and that is within the
24 knowledge of this witness's experience.
25 Therefore, you may answer the question.
1 Perhaps, Mr. McCloskey, it was a very long introduction. Perhaps
2 if you repeat but then the question only.
3 JUDGE MOLOTO: Just the question.
4 MR. McCLOSKEY: Yes.
5 Q. Mr. Del Pino, if good DNA was obtained from your work at the
6 Pilica grave and good DNA was obtained in the five associated graves that
7 I'm talking about, could that DNA be compared and potentially match and
8 make a connection between the secondary grave and the primary grave?
9 A. I need to -- yes. The answer is yes. And I need to remark that
10 the DNA technology is -- we tried to implement it in Chile in 1989 in
11 cases of missing people. So I'm very familiar with the reasoning behind
12 the DNA, even though I'm not a biochemist. But, yes, it can be related.
13 Q. So does it surprise you that now, some 18 or 19 years after you
14 were taking DNA samples, that 1.751 people from these graves I've
15 described to you have been identified through DNA?
16 A. I am not surprised. DNA is a modern technology to help to match
17 genetic characteristics. I'm not surprised. This is good information.
18 Glad to hear it.
19 Q. And did you ever hear after your work there that a Serbian
20 soldier named Drazen Erdemovic estimated that 1.200 Muslims were killed
21 near this grave and that another 500 were to be killed in the town of
22 Pilica for a total of about 1.700 people? Did you ever hear about that?
23 A. No. I was trying to be a very cut-and-dry scientist. I didn't
24 want to involve myself with that information. I wanted to discover it.
25 JUDGE ORIE: Mr. McCloskey, there's no need to go through all the
1 evidence and ask this witness whether he's aware of all that. That's not
2 something which is related to his testimony. And, of course, although
3 you may elicit evidence from a witness which supports your case, it's not
4 supposed not to be either repetitive evidence or -- there should be at
5 least some kind of a link. You are moving too far away and that's the
6 opinion of this Chamber.
7 Please proceed.
8 MR. McCLOSKEY: I have no further questions.
9 JUDGE ORIE: Thank you, Mr. McCloskey.
10 Mr. Ivetic, any further questions? But often I would have
11 questions and perhaps it's better for me to put them first --
12 MR. IVETIC: Yes.
13 JUDGE ORIE: Mr. Del Pino, you explained us that Mr. Haglund was
14 absent with some frequency. Did it ever happen that you needed his
15 guidance as the team leader where, due to his unavailability, you had any
16 problems in performing your task?
17 THE WITNESS: Yes. It happened.
18 JUDGE ORIE: Could you --
19 THE WITNESS: I don't --
20 JUDGE ORIE: Could you give us an example of how that happened
21 and how you resolved that.
22 THE WITNESS: Actually, the end result stalled the dig because
23 there was no direction. We stopped digging the grave.
24 JUDGE ORIE: Yes. What was your problem, what you couldn't
25 resolve without his presence?
1 THE WITNESS: I don't exactly recall. Perhaps it might have been
2 the need for equipment, covering the grave, rain protection. I don't
3 exactly recall but I recall being stalled because there was no -- nobody
4 to speak about. We have no -- our boss wasn't there.
5 JUDGE ORIE: Yes. And once he returned, did you then continue
6 where you had stopped or what happened?
7 THE WITNESS: We normally continue with -- we stopped and --
8 yeah, that was what happened.
9 JUDGE ORIE: Yes. Now, the elements you told us about, the
10 absence of Mr. Haglund -- no. Let me strike that.
11 Could you tell us, the discarded clothing, did that have any
12 effect on the results, such as that you considered them to be wrong
14 THE WITNESS: No wrong conclusion. I don't think so. But
15 incomplete conclusions.
16 JUDGE ORIE: Yes. You think it could have been better but what
17 you found is not wrong. Is that ...
18 THE WITNESS: Yes, sir.
19 JUDGE ORIE: Now, the same for the time Mr. Haglund spent in his
20 media attention. Did this have any consequences as far as the outcome of
21 your work is concerned?
22 THE WITNESS: I think so. The consequences I cannot -- this is
23 unpredictable. I really don't know the depth of the consequences, but
24 sometimes you have to speed up the work because media or slow down the
25 work. I don't know. It's not good for archaeology to be following the
1 pace of external elements. An archaeological dig needs to follow its own
2 dynamics, not waiting for -- accelerating the work.
3 JUDGE ORIE: Do you think that in accelerating the work for those
4 reasons that inappropriate risks were taken to reach wrong conclusions?
5 THE WITNESS: In archaeology I don't think wrong conclusions but
6 incomplete conclusions. You lose evidence. When you touch -- when you
7 touch your grave-site, you are at the moment of collection of evidence,
8 collection of elements. If you don't collect the most you can, you
9 collect incomplete evidence, hardly wrong evidence.
10 JUDGE ORIE: No. But even if you have incomplete evidence, that
11 could result in wrong conclusions, isn't it?
12 THE WITNESS: Oh, yes. Yes, indeed.
13 JUDGE ORIE: And are you aware of any -- could you give us an
14 instance of where the lack of completeness led you to conclusions which
15 you consider not to be sound?
16 THE WITNESS: In the case of -- we have a very clear unknown when
17 we discard clothing because Dr. Haglund believed that the clothing
18 were -- he saw, actually, that the clothing were not on the bodies but
19 adjacent to the grave. He discarded a whole group of elements that we
20 could have analysed, and now we don't know whether it has value or not.
21 Now it's a big unknown. To me that's not sound procedure.
22 JUDGE ORIE: Yes. Now, you've told us about the quantity of
23 clothing that was discarded in this way. Could you also tell us -- I
24 think you told us that you attended or participated in exhumations in 15
25 to 20 sites. In how many of these 15 or 20 sites did this discarding of
1 clothing happened?
2 THE WITNESS: Never. Never before to me. I always collect all
3 the information from my site, unless it is impossible. But I never
4 encountered that. I even work in a minefield, 500 metres below the
5 ground, and we spent three months picking every fragment of evidence.
6 JUDGE ORIE: Yes, but you told us about the quantity of clothing
7 that, I think at the instruction of Mr. Haglund, was not considered and
8 discarded. At how many sites did such instructions or such events of
9 discarding the clothing happen?
10 THE WITNESS: When I was working with Haglund, in my team, once.
11 JUDGE ORIE: Once. Thank you.
12 THE WITNESS: Yes.
13 JUDGE ORIE: Mr. Ivetic, any further questions for the witness --
14 Judge Moloto has one or more questions for the witness.
15 JUDGE MOLOTO: I have one question for you, sir. Could we please
16 have D329 on the screen.
17 THE REGISTRAR: [Via videolink] Excuse me, Your Honour. Could you
18 repeat the number, please.
19 JUDGE MOLOTO: D329. I think that's a document that the Defence
20 showed to the witness in-chief.
21 THE REGISTRAR: [Via videolink] Oh yes. Thank you.
22 JUDGE MOLOTO: I think it's page 7.
23 I think Mr. Ivetic read that first paragraph to you. I would
24 like to read to you the next paragraph headed "Findings" and ask your
25 comment on it. It says:
1 "The responses from the witnesses did not indicate any actual
2 wrong-doing on the part of Dr. Haglund, nor anything regarding the
3 exhumations that jeopardized their scientific validity."
4 Do you have any comment to make on that statement?
5 THE WITNESS: I think this is a good conclusion. Perhaps if I
6 was going to conduct this research, I would be more detailed. You would
7 have more evidence on your table. But, yeah, in gross lines, the
8 research represents what happened. Not to the detail I would like to see
9 it, but it is in there. As you see, for example, the picture I was shown
10 recently, the last evidence I was presented with, that site was very
11 well -- precisely done.
12 JUDGE MOLOTO: Let me --
13 THE WITNESS: So ...
14 JUDGE MOLOTO: Let me try to rephrase my question.
15 Do you agree with this comment? Is it fair comment or not, as
16 far as you're concerned?
17 THE WITNESS: Yeah, it's a fair comment.
18 JUDGE MOLOTO: Thank you so much. That's what I wanted to know.
19 JUDGE ORIE: Mr. Ivetic, any further questions for the witness?
20 MR. IVETIC: Yes. If we could first return to 65 ter number
22 JUDGE MOLOTO: 27 or 26.
23 MR. IVETIC: 27. The second picture that was shown.
24 Thank you.
25 Re-examination by Mr. Ivetic:
1 Q. Sir, in cross-examination you mentioned the lady in the back
2 whose hair can only be seen, and you said she was from Florida and you
3 did not remember the name. I'm going to read two names to you and see if
4 they jog your memory: Dr. Deborah Komare or Kliakov.
5 A. No. I think she is Shawala Martin [phoen]. I just remembered.
6 Q. Okay. Fair enough. Then we've gotten the result that we were
7 looking for one way or another.
8 JUDGE ORIE: One second. If you're talking about the lady, is
9 that the only one with the white shirt?
10 THE WITNESS: No, no, no. That's Horena. Horena. I don't
11 remember her last name.
12 JUDGE ORIE: Yes. And then the lady you had on your mind?
13 THE WITNESS: The lady -- I'm sorry?
14 JUDGE ORIE: Yes. Could I guide you. If you look at the picture
15 as if it were a clock, at what hour, approximately, is the person you
16 refer to?
17 THE WITNESS: At about 11.
18 JUDGE ORIE: At about 11.
19 THE WITNESS: At about 11, yes.
20 JUDGE ORIE: Well, that would then be -- I beg your pardon.
21 THE WITNESS: That's Shawala Martin.
22 JUDGE ORIE: Pardon?
23 THE WITNESS: Shawala Martin.
24 JUDGE ORIE: Yes. I'm a bit confused, to be quite honest. If we
25 take them one by one, we have -- and I start with the lady with the white
1 T-shirt, or at least a person with a white T-shirt and a white cap. I
2 now move to the right. I see a greenish person with a hat is almost not
3 visible. That's not the person you referred to, is it?
4 THE WITNESS: I couldn't hear you.
5 JUDGE ORIE: That's not the person you said was the lady by the
6 name of --
7 THE WITNESS: Shawala Martin. Let me go clockwise, starting with
9 JUDGE ORIE: Starting with you, going clockwise. The person very
10 close to you would be?
11 THE WITNESS: [Interpretation] He is a French security guard.
12 He's not an anthropologist or archaeologist. He's a security guard.
13 JUDGE ORIE: Yes. Then a little bit further clockwise --
14 THE WITNESS: Somebody to me, maybe it's Shawala Martin because
15 of the hairstyle. It could very well be Kliakov, too. But Kliakov, I
16 think, was curly hair. And it's not really clear but it looks like
17 straight hair.
18 JUDGE ORIE: Okay. And that's the person highest on this
19 picture. Now we move to the right where we see the whole of the -- a
20 person with --
21 THE WITNESS: That's -- I think it is an American anthropologist,
22 Chris, Christopher, or Chris -- it starts with an M.
23 JUDGE ORIE: If you don't remember --
24 THE WITNESS: Huh?
25 JUDGE ORIE: If you don't remember, then I leave it further in
1 the hands of --
2 THE WITNESS: Meyers. Meyers is last name.
3 JUDGE ORIE: Yes, I think we've seen that name in the San Antonio
4 report as one of the interviewed persons.
5 I leave it now further in the hands of Mr. Ivetic, whether he
6 needs any further persons to be identified or that he is satisfied with
7 what we have now.
8 THE WITNESS: Sure.
9 MR. IVETIC:
10 Q. In relation to the American archaeologist, there are -- well, let
11 me ask it this way: Do you recall if the individual had a nickname?
12 A. No, I don't recall a nickname. Meyers. Perhaps he had a
13 nickname but I don't know it.
14 Q. Let me give you two names and then we'll see which one you're
15 talking about. The first name that we have in the San Antonio report is
16 Patrick Meyers and then --
17 A. Yes, Patrick Meyers.
18 Q. Is it?
19 A. That's the person I referred to here.
20 Q. Okay. Fair enough, then.
21 And now if we could look at 65 ter number 33526, page 7 of the
22 same. That was the first photograph or one of the first photographs that
23 was shown to you. And in relation to the --
24 THE REGISTRAR: [Via videolink] Could counsel please say the page
1 MR. IVETIC: Page 7. It should be a --
2 JUDGE ORIE: Yes. Could you clearly identify that we are having
3 the right one, perhaps by the number in the picture itself or on top in
5 MR. IVETIC:
6 Q. We are looking at a photograph with a yellow number, looks like
7 138 in the middle of the pit, and at the top we have the numbers in red,
8 F0666399-09. Is that what we are looking at on that end as well?
9 A. Yes.
10 Q. Okay. And I believe you identified the gentleman in the striped
11 shirt as an American forensic archaeologist looking for missing soldiers.
12 You earlier had mentioned that you recognised the name C. Elliot Moore,
13 nicknamed Hass.
14 A. Yes.
15 Q. Is this the same person?
16 A. Yes. That's him.
17 Q. Can you repeat your answer? I'm sorry.
18 A. Yes. It's the same person you say, the last name Moore.
19 Q. Okay. Mr. Del Pino, I thank you again for your time and your
21 MR. IVETIC: Your Honours, I have no further questions for the
23 JUDGE ORIE: Thank you.
24 Any further questions, Mr. McCloskey, which relate to the
25 evidence as given?
1 MR. McCLOSKEY: Yes, just one last question related briefly to a
2 question that Judge Moloto asked.
3 JUDGE ORIE: Yes, please.
4 Further Cross-examination by Mr. McCloskey:
5 Q. You were asked about the findings and I think you noted earlier
6 and we see on the front page --
7 MR. McCLOSKEY: Let's go to D329 --
8 Q. -- the members of the committee for the San Antonio report, and I
9 think you mentioned his name briefly. But is it fair to say that Vincent
10 DiMaio, MD, forensic pathologist, is one of the top people in his field?
11 A. Yes, sir. I think he is one of the top people in his field. I
12 study with his publications. He is really the top researcher and
13 professional in his field.
14 Q. Do you recall a book - I think they called it the Bible in the
15 United States - on gun-shot wounds by Vincent DiMaio?
16 A. Yes. Yes. That's the first thing I -- I talked to him when I
17 met him because I was honoured to talk to him. And -- yeah, this is one
18 of those authors you really want to meet, and I had a chance to meet him
19 this time. Together with Dr. Glasno, I think they were the mother of
20 forensics here in the USA.
21 Q. Yes. And just to be clear, Clyde Snow, an equally well-known
22 person, was not involved in the actual exhumations in Bosnia, was he?
23 A. He was briefly overlooking, I think, a site in Croatia.
24 Q. Yes. The Vukovar case --
25 A. Yes.
1 Q. Okay. Thank you very much for your work those years.
2 MR. McCLOSKEY: Nothing further.
3 JUDGE ORIE: Thank you, Mr. McCloskey.
4 JUDGE FLUEGGE: Mr. McCloskey, are you tendering the photographs
5 you have shown?
6 MR. McCLOSKEY: I had not planned. Many of these workers, their
7 names are throughout the reports, but they were not always happy to have
8 their face and names in the materials. And I haven't spoken to them for
9 years so I'm not sure. And we have many similar photographs.
10 JUDGE ORIE: Are we supposed to work on the basis of our memory,
11 if someone is identified, that we have to think about what we saw once?
12 Because if it's not in evidence, then -- apart from what the relevance
13 of knowing exactly who is where in the pit is, but --
14 MR. McCLOSKEY: Mr. President, if you would like it into
15 evidence, it's not a problem. We'll get it into evidence. It was mostly
16 done to help refresh the witness's recollection on the site. There's so
17 many pictures like this, and I'm conscious of your desires to reduce the
19 MR. IVETIC: Your Honours, I think the pictures we've looked at,
20 we're not talking about a number of pictures; we're talking about two.
21 MR. McCLOSKEY: Well, I have no problem of them coming in. Out
22 of an abundance of caution, they can be under seal.
23 JUDGE ORIE: The names are mentioned in the public transcripts,
24 Mr. McCloskey. So I don't know what it would -- unless you say that by
25 seeing half of their heads 20 years ago, that's all -- perhaps a little
1 bit less, but that would expose them, that would make them unhappy,
2 whereas their name and their qualities are -- even the books they
3 authored are all in public --
4 MR. McCLOSKEY: It's a question of the face, Mr. President.
5 JUDGE ORIE: It's a question of the face.
6 MR. McCLOSKEY: It's a question of the face. I mean, it is 99
7 per cent sure they're not a problem. But it was at the time, and of
8 course they were very close to a war at that time. So it's probably not
9 a problem.
10 JUDGE ORIE: We provisionally put them under seal. You tendered
12 Mr. Ivetic, do you have any concerns?
13 MR. IVETIC: No, I do not.
14 [Trial Chamber confers]
15 MR. IVETIC: If it's just the two that we've looked at, that
16 we've talked about, I don't have a problem.
17 JUDGE ORIE: You don't have a problem. But I take it that we're
18 talking about page 7, so there's more. Would you then, please -- we'll
19 ask Mr. Registrar to reserve of a number for the excerpt of the
20 photographs of the 65 ter number you mentioned, and that number will be
21 reserved. Once you have uploaded these two photographs, they'll be
22 admitted under seal.
23 Mr. Registrar, the number to be reserved would be?
24 THE REGISTRAR: It will be P7754, under seal, Your Honours.
25 JUDGE ORIE: Yes, that's the number reserved. But, no, I think
1 the two photographs will be -- that's the excerpt. There are two series.
2 Yes, I missed that. It's good to have colleague that correct me.
3 MR. McCLOSKEY: I can clear it up. There was 65 ter 33528, at
4 pages 7 and 8 -- sorry 6 - I can't see - 33526, and that's 7 and 8, and
5 then the other one had its own 65 ter, and that was 33527.
6 JUDGE ORIE: Yes. Before we continue, you agreed on protective
7 measures for two, but was it three photographs taken from two 65 ter
9 MR. IVETIC: You have understood me correctly.
10 JUDGE ORIE: Yes. Thank you. Then we need another number.
11 THE REGISTRAR: Just to clear the record, Your Honours. 65 ter
12 number 33526 will be MFI P7754, under seal, and 65 ter number 33527 will
13 be Exhibit P7755, under seal.
14 JUDGE ORIE: Yes. And we're waiting for the upload of the
16 [Trial Chamber confers]
17 JUDGE ORIE: Mr. Registrar, just to proceed. The last one, that
18 65 ter number that is 33527, that's only one photograph?
19 THE REGISTRAR: That's correct, Your Honour.
20 JUDGE ORIE: Then P7755 is admitted under seal. And once the new
21 excerpt of 33526 is uploaded, that will be then admitted as P7754.
22 Mr. Del Pino, this concludes your testimony in this court. We'd
23 like to thank you very much for having come to the videolink location and
24 for having answered all the questions that were put to you by the parties
25 and put to you by the Bench. I wish you a safe return home again.
1 THE WITNESS: Thank you. May I add something to the Court?
2 JUDGE ORIE: Well, yes. Yes, please do so. I don't know what it
3 is, so it will depend on the content, whether I will interrupt you, yes
4 or no.
5 THE WITNESS: Of course. Sort of an appreciation because when we
6 express a concern about our work, the court, your court was better
7 reacting in protecting the research, and started an immediate
8 investigation. So that --
9 JUDGE ORIE: Okay. Yes. As a matter of fact, Mr. Ivetic, in all
10 fairness, if this would lead you to put any further questions to the
11 witness because he said something about, I would say, the substance of
12 what was done. If you leave it to that, that's, of course, fine as well.
13 You leave it to that.
14 Then we thank you again.
15 And the representative of the Registry at the videolink location,
16 we can now conclude the videolink. Thank you for your assistance.
17 THE REGISTRAR: [Via videolink] Thank you, Your Honours.
18 [The witness's testimony via videolink concluded]
19 JUDGE ORIE: Then we are at a point where we usually take a
20 break, and now I have a few procedural matters remaining. I would like
21 to deal with them to clean up the court agenda, but perhaps to do it
22 after the break, to deliver a few decisions, to deal with a few matters,
23 use it as a housekeeping session.
24 We'll take break, and we'll resume at 25 minutes past 4.00.
25 --- Recess taken at 4.05 p.m.
1 --- On resuming at 4.23 p.m.
2 JUDGE ORIE: I have a few matters which -- yes, Mr. McCloskey.
3 MR. McCLOSKEY: Yes, Mr. President. As you requested, we've been
4 able to upload the two photographs from 65 ter --
5 JUDGE ORIE: If you do not mind, I would like to move into
6 private session for that at this moment.
7 MR. McCLOSKEY: Okay.
8 JUDGE ORIE: Could we move into private session.
9 [Private session]
10 [Open session]
11 THE REGISTRAR: We're back in open session, Your Honours.
12 JUDGE ORIE: Thank you, Mr. Registrar.
13 Then it means that the status of P7755, which was already
14 admitted, now is a public exhibit.
15 And could you please recite the new 65 ter number for P7754,
16 Mr. McCloskey.
17 MR. McCLOSKEY: Yes. The new 65 ter number is 33526A.
18 JUDGE ORIE: Yes. Now, this excerpt of two photographs which is
19 now uploaded is now attached to what was MFI P7754 and is now Exhibit
20 P7754, because it is admitted into evidence publicly.
21 MR. McCLOSKEY: Thank you.
22 JUDGE ORIE: Then I'm afraid I have to return into private
23 session again.
24 [Private session]
11 Pages 42185-42186 redacted. Private session.
6 [Open session]
7 THE REGISTRAR: Your Honours, we're back in open session.
8 JUDGE ORIE: Thank you, Mr. Registrar.
9 I'll move on with a few matters.
10 The first is the remaining issue from the testimony of
11 Dragic Gojkovic. During the testimony of this witness on the 12th of
12 August of this year, D1171 and D1172 were marked for identification
13 pending a revised English translation for the former and a revised B/C/S
14 original and English translation for the latter. Furthermore, D1183,
15 Gojkovic's expert report, was marked for identification pending agreement
16 between the parties on the parts of the expert report to be tendered.
17 On the 14th of September, the Chamber e-mailed the Defence to ask
18 for an update about these exhibits.
19 On the 8th of October, the Chamber gave the Defence a deadline of
20 one week to update the Chamber.
21 On the 14th of October, the Defence informed the Chamber and the
22 Prosecution via an e-mail that it had uploaded into e-court revised B/C/S
23 and English versions of D1171 and D1172, bearing 65 ter numbers 1D05758a
24 and 1D05759a respectively.
25 Any objections?
1 MR. TRALDI: Not that I recall, Your Honour. We are checking our
2 records quickly.
3 JUDGE ORIE: Yes. I will proceed, meanwhile, and, without giving
4 specific reasons, you may revisit the matter if there are any objections.
5 The Chamber hereby instructs the Registry to replace D1171 and
6 D1172 with the revised versions and admits them into evidence. With
7 regard to D1183, the Chamber encourages the parties to come to an
8 agreement as to the excerpt to be tendered and inform the Chamber within
9 two weeks from today.
10 Then the next item would be the delivery of the Chamber's
11 decision on the admission of witness Svetlana Radovanovic's expert
13 On the 9th of February 2015, the Defence filed a notice of
14 disclosure of Svetlana Radovanovic's expert report pursuant to Rule 94
15 bis of the Tribunal's Rules of Procedure and Evidence. The Prosecution
16 responded to the motion on the 11th of March, not challenging the
17 qualifications of the witness or the relevance of the report, but also
18 not accepting the conclusions of the report and requesting
19 cross-examination of the witness.
20 On the 13th of May, the Trial Chamber allowed Radovanovic to be
21 called as a demographics expert in this case and deferred its decision on
22 the admission of her report until she testified. Radovanovic testified
23 before the Chamber between the 24th and 27th of August.
24 On the 24th of August, her curriculum vitae was admitted into
25 evidence, and her expert report was marked for identification as D1211,
1 under seal.
2 On the same day, the Defence indicated that there were some
3 issues with the English translation of the report. And this is to be
4 found at transcript page 38152.
5 On the 1st of October the Defence informed the Chamber and the
6 Prosecution via an e-mail that the correct English translation of the
7 report had been uploaded into e-court under doc ID 1D26-1538.
8 On the 9th of October, the Prosecution advised via an e-mail that
9 it did not object to the new translation. In relation to the confusion
10 with CLSS as raised at transcript pages 40344 to -345, the Defence
11 provided an informal explanation which the Chamber accepts. The Chamber
12 hereby instructs the Registry to replace the old translation of the
13 report with the new translation.
14 Radovanovic reviewed the conclusions of Prosecution experts
15 Ewa Tabeau and Helge Brunborg. The report therefore relates to the
16 charges set out in the indictment and is thus relevant. During
17 cross-examination the Prosecution challenged the witness's methodology
18 and analysis and the scope and accuracy of her sources, the reports
19 conclusions and the arguments used in support of those conclusions.
20 The Chamber considers that these challenges go to the weight that
21 it may ultimately attribute to the witness's evidence, not to its
22 admissibility. The Chamber considers that Radovanovic's evidence may
23 assist in assessing the conclusions drawn by Brunborg and Tabeau. The
24 Chamber finds the proffered evidence to be probative for the purposes of
25 its admission into evidence in this case.
1 Accordingly, the Chamber admits the report of
2 Svetlana Radovanovic, D1211, into evidence, under seal, and this
3 concludes the Chamber's decision.
4 The next oral decision I'll deliver is a decision on the
5 admission of exhibits associated to D982, the witness statement of
6 Nikola Erceg.
7 On 15 September 2014 the Defence filed a Rule 92 ter motion
8 requesting the admission of Erceg's statement and 54 associated exhibits.
9 During Erceg's testimony on the 1st of April, the Defence informed the
10 Chamber that it was, in fact, only tendering only 45 associated exhibits.
11 The Prosecution did not object to the admission of these associated
12 exhibits and the Chamber marked the documents for identification as D983
13 up to and including D1027. D989, D993 and D1027 have since been admitted
14 into evidence.
15 The Chamber recalls that documents can be admitted as associated
16 exhibits if they form an inseparable and indispensable part of the
17 witness's written testimony. In order to satisfy this test, the
18 tendering party must demonstrate that the witness 's evidence would be
19 incomprehensible or of less probative value without the admission of the
20 associated exhibits into evidence.
21 The Chamber has discussed its interpretation of this case law at
22 transcript pages 530 to 531 and 5601 to 5603, and in its written
23 decisions of the 23rd of July, 2012, and the 7th of February, 2013.
24 The Chamber considers that the information contained in 28 of the
25 tendered documents that the Defence would like to bring to the Chamber's
1 attention is sufficiently quoted in the witness's statement. The Chamber
2 further considers with regard to document D983 that the adjudicated facts
3 in the Karadzic case are not always identical to the adjudicated facts in
4 this case, which may lead to confusion rather than a better understanding
5 of the statement. The Chamber also finds that document D1012 makes the
6 statement less comprehensible.
7 The statement is therefore perfectly comprehensible without these
8 28 underlying documents. With regard to the remaining 14 associated
9 exhibits, the Chamber finds that their admission is necessary in order to
10 properly understand the witness's evidence.
11 The Chamber therefore admits the following 14 documents into
12 evidence as associated exhibits to the written statement of Erceg: D984
13 up to D987, D992, D994, D995, D1001, D1007, D1008, D1013, D1017, D1019
14 and D1026. With regard to the remaining associated exhibits tendered by
15 the Defence, the Chamber denies their admission into evidence.
16 This concludes the Chamber's decision.
17 [Trial Chamber confers]
18 JUDGE ORIE: I move to the next item which deals with the
19 remaining issues from the testimony of Mile Poparic.
20 First, Exhibit D1334, during Poparic's testimony on the 5th of
21 November, the Chamber asked the Defence to inform the Chamber by the 12th
22 of November of this year whether or not it relies on the dialogue
23 contained in Exhibit D1334, an eight-minute video of Serbian news
24 footage. This can be found at transcript page 40959. And as of today's
25 date, the Defence has not responded.
1 The Defence is hereby instructed to respond within one day, that
2 is, the response to be -- we will not be in court, is to be received by
3 the Chamber not any later than Monday, 10.00 in the morning, in the way
4 the Defence prefers. Either a short statement Monday morning or by
5 e-mail, which will then later be put on the record.
6 Next one is about D1335. On the 29th of October, 2015, the
7 Chamber asked the Defence to reduce Exhibit D1335, a video of more than
8 two hours, to the portions that were shown in court on the 28th of
9 October. The Defence was asked to update the Chamber within one week,
10 and this can be found at transcript pages 40514 through -515. As of
11 today's date, the Defence has not provided the Chamber with an update.
12 The Defence is hereby instructed to provide the Chamber with an update
13 within the same time-limits as for D1334.
14 Next, D1336. On the 29th of October of this year, D1336, a MUP
15 statement of Huso Palo, was marked for identification pending the
16 verification of its translation. This can be found at transcript pages
17 40539 through -540 and 40788 through -789.
18 On the 4th of November, the Prosecution pointed out that this
19 statement is part of a larger investigative file uploaded into e-court as
20 document bearing Rule 65 ter number 33373, which subsumes, inter alia,
21 D1336 and Exhibits P614, P615, P617, P618, and P619. This can be found
22 at transcript page 40788.
23 The Defence was instructed to inform the Chamber by the 5th of
24 November of any objections against the admission of the complete
25 investigative file and whether or not it still tenders D1336.
1 As of today's date, the Defence has not responded. The Defence
2 is hereby instructed to respond in court on Monday by 10.00.
3 If you could express yourself already on it, whether you have any
4 objections to the admission of 65 ter number 33373, that is, the whole of
5 the investigative file, please tell us, because then we could decide on
7 MR. IVETIC: Unfortunately, Your Honours, that was our colleague
8 Mr. Lukic's witness, so Mr. Stojanovic and I don't have the knowledge to
9 be able to tell anything useful.
10 JUDGE ORIE: We'll hear from you by Monday, 10.00 in the morning.
11 Of course, there's always a possibility to introduce the matter
12 already briefly by e-mail so that it can be put on the record.
13 We move on to D1340. On the 5th of November, D1340 was reserved
14 for an excerpt of a video on shelling and sniping incidents. This can be
15 found on transcript pages 40892 through -893.
16 On the 9th of November, the Chamber received an e-mail from the
17 Defence advising that the surrogate sheet for the video was uploaded into
18 e-court under Rule 65 ter number 1D05911A. The Chamber did not receive a
19 DVD containing the excerpts of the video. Could the Defence please
20 provide the Chamber with this CD by not later than Monday morning, 10.00.
21 I take it that you don't have it with you at this moment,
22 Mr. Ivetic or Mr. Stojanovic.
23 Then still in relation to the evidence of Mile Poparic. Further
24 documents and videos tendered by the Prosecution.
25 On the 5th of November, 2014 [sic], the Prosecution submitted --
1 [Trial Chamber confers]
2 JUDGE ORIE: If I said "2014," I made a mistake because I meant
3 to say on the 5th of November, 2015, the Prosecution submitted via an
4 e-mail a table of investigative source materials related to the report of
5 Mile Poparic and requested the admission into evidence of the documents
6 and videos bearing Rule 65 ter numbers 10020, 10021, 09948, 15704, which
7 is to replace a partial investigative file admitted as Exhibit P7614.
8 I think I have to -- one second, please.
9 [Trial Chamber confers]
10 JUDGE ORIE: At a later stage, I'll deal with this matter.
11 Please strike from where I said, "On the 5th of November, 2015, the
12 Prosecution submitted via e-mail" because I'll revisit that matter soon.
13 Then I move on to further documents and videos related to
14 Poparic's testimony.
15 On the 5th of November, the Defence circulated a list of 58
16 documents and videos. The Defence submitted that the number of the
17 documents should be admitted for the purpose of verifying the accuracy of
18 the witness's citations in his report and this can be found on transcript
19 pages 40954 through 40955.
20 The claim recalls its oral decision of the 29th of October, 2012,
21 in which it set out that the Chamber expects the calling party not to
22 tender material underlying proposed expert reports just because a
23 proposed expert referred to or used that document in compiling his or her
24 report. The Chamber therefore invites the Defence to reconsider its
25 position in relation to these documents. The Chamber also will await any
1 formal tendering in relation to documents or videos from the circulated
3 I now move to the remaining issues from the testimony of
4 Zorica Subotic. I start with D1270.
5 During Subotic's testimony on the 30th of September of this year,
6 the Defence tendered 1D05545, a MUP report relating to Scheduled Incident
7 G11. However, the document has not been translated and forms part of a
8 larger investigative file which was marked for identification as D1270,
9 pending a response from the Defence on whether or not it objects to its
10 admission instead of 1D05545. This can be found on transcript pages
11 39514 through 39515 and 39937 through 39938.
12 Can the Defence advise the Chamber within a short time, the 8th
13 of December, if it objects to the admission of D1270 and if it withdraws
14 the tendering of 1D05545.
15 I move on to D1273.
16 On the 30th of September, 2015, D1273, an SRK command letter was
17 marked for identification pending the provision of a better quality copy
18 of the B/C/S original.
19 Could the parties please advise the Chamber if they have located
20 a better copy. Most likely not immediately.
21 MR. TRALDI: Not immediately.
22 JUDGE ORIE: Could we hear not any later than by close of
23 business Monday, the 8th of December [sic].
24 [Trial Chamber and Registrar confer]
25 JUDGE ORIE: Oh, Monday is the 7th. I apologise. That's,
1 indeed, true. It's not within the competence of this Chamber to change
2 the calendar.
3 MR. IVETIC: And, Your Honours, for the previous D1270, you'd
4 said 8 December. Did you mean Monday or 8 December, then?
5 JUDGE ORIE: I think I meant the -- let me give you the benefit
6 of the doubt. You have until the 8th of December. If it was a mistake,
7 you have one day extra.
8 MR. IVETIC: Thank you, Your Honours.
9 JUDGE ORIE: I think I now move onto D1265 and D1266.
10 On the 30th of September these exhibits, two videos, were marked
11 for identification pending a discussion by the parties to what extent
12 they agree on what is depicted in the videos and to what extent
13 transcripts of the videos should be tendered. This can be found at
14 transcript pages 39475 through -476. The parties are invited to inform
15 the Chamber of their progress, if any, on this matter.
16 Parties do not have the right to remain silent, but may I take it
17 that you have not made such progress that it's worthwhile to report to
18 the Chamber.
19 [Prosecution counsel confer]
20 JUDGE ORIE: This is the kind interpretation of your silence.
21 MR. IVETIC: Perhaps I can give time to my colleagues on the
22 other side who probably know better than I do, since I think this was
23 again Mr. Lukic who would have engaged in such discussions.
24 MR. TRALDI: And what I'm reminded of is that those discussions
25 are ongoing between Mr. Weber and Mr. Lukic, and we expect that they'll
1 be able to report back more concretely. But they're in the process and
2 are assembling the materials.
3 JUDGE ORIE: Okay. That may take a bit more time, so let's be
4 very generous, that we'd like to hear from the parties not later than the
5 9th of December.
6 Next one, D1278.
7 On 7th of October, D1278, a document containing firing tables,
8 was marked for identification pending a discussion by the parties as to
9 which portions of the document should be tendered and which portions
10 should be translated.
11 May I take it that the parties are unable at this moment to
12 inform the Chamber of their progress, if any, on this matter. And this
13 is not what my text tells me to put to you, but the question was a
14 different one, whether you could update the Chamber.
15 MR. TRALDI: The Subotic-related documents all fall within the
16 ambit of Mr. Weber and Mr. Lukic's discussions, and so I'd suggest the
17 parties update the Chamber next week on those generally.
18 JUDGE ORIE: Also not any later than the 9th of December.
19 The same would be true for P7567, which is an excerpt from firing
20 tables for M74 120-millimetre light mortar. The same discussion was
21 expected to take place between the parties. The Chamber would like to be
22 updated not later than the 9th of December.
23 I now move on to documents listed as associated exhibits to the
24 65 ter statement of Dragan Kijac.
25 On the 29th of June of this year, the Defence filed a motion
1 seeking admission of Dragan Kijac's written statement as well as a large
2 number of associated exhibits. Amongst them was a document bearing Rule
3 65 ter 1D5433, for which the Defence additionally requested that it be
4 added to the Rule 65 ter exhibit list. The request for its addition to
5 the Defence exhibit list is hereby granted.
6 Kijac testified on 19th of October as well as on the 11th and the
7 12th of November. On 19th October, the Chamber admitted the witness's
8 statement and a large number of associated exhibits into evidence. The
9 Defence did not tender document 65 ter 1D5433 during Kijac's testimony.
10 The Prosecution submitted this document was not admissible as an
11 associated exhibit and expressed concerns regarding its provenance. The
12 Defence did not address or provide reasons for admission of the document
13 during Dragan Kijac's testimony or thereafter.
14 The Chamber recalls that documents can be admitted as associated
15 exhibits if they form an inseparable and indispensable part of the
16 witness's written testimony. It has reviewed the document bearing 65 ter
17 1D5433 and finds that it does not form an inseparable and indispensable
18 part of Kijac's statement as it does not sufficiently relate to the
19 content of the witness's statement. The Chamber further considers
20 paragraph 12 of the witness's statement to be fully comprehensible and
21 probative without reference to the proposed associated exhibits.
22 Consequently, the Chamber denies its admission into evidence, and
23 this concludes the Chamber's decision in relation to that exhibit.
24 I think a number had not yet been assigned so, therefore, that's
25 everything we'll have to decide.
1 Then I've got three small items left. The first one is a
2 remaining issue from the testimony of Ostoja Marjanovic and it deals with
3 P7636, which is an article from the Balkan Transitional Justice, which,
4 on the 10th of November, 2015, was marked for identification pending the
5 provision of a B/C/S translation. This can be found at transcript pages
6 41055 through 41056.
7 On the 11th of November, the Prosecution advised the Chamber and
8 the Defence via an e-mail that the translation had been uploaded into
9 e-court under doc ID 0687-4581-BCST. That same day, the Defence
10 responded, confirming that it had no objection to the translation. The
11 Chamber hereby instructs the Registry to attach the B/C/S translation to
12 P7636 and admits it into evidence.
13 The next item also is a remaining issue from the testimony of
14 Ostoja Marjanovic.
15 On the 9th of November, 2015, P7632, an article from Balkan
16 Transitional Justice, was marked for identification pending the provision
17 of a B/C/S translation. This can be found at transcript page 41034.
18 On the 10th of November, the Prosecution advised the Chamber and
19 the Defence via an e-mail that the translation had been uploaded into
20 e-court under doc ID 0687-4583-BCST.
21 The Chamber hereby instructs the Registry to attach the B/C/S
22 translation to P7632 and admits it into evidence.
23 The Defence has seven days to revisit the matter, if it wishes to
24 do so.
25 The last item on my agenda is a remaining issue from the
1 testimony of Witness GRM-097. It is about P7584.
2 On the 21st of October, 2015, P7584, an excerpt of an UNPROFOR
3 code cable, was marked for identification pending the provision of a
4 B/C/S translation and the upload of the entire document. This can be
5 found at transcript page 40158.
6 On the 13th of November, the Prosecution advised the Chamber and
7 the Defence via an e-mail that the entire document had been uploaded into
8 e-court under Rule 65 ter number 33311a and that a B/C/S translation had
9 been attached.
10 The Chamber hereby replaces P7584 with the new version and admits
11 it into evidence, assuming that the Defence does not object. However, if
12 you would wish to object, you have an opportunity to do so until the 9th
13 of December.
14 Mr. Tieger.
15 MR. TIEGER: Thank you, Mr. President.
16 Just a quick and small adjustment to what I'll call our concise
17 response to the Court's inquiry about progress on discussions regarding
18 the mortar and firing tables, the Prosecution has, indeed, identified the
19 excerpts for which it will seek admission and provided it to the Defence.
20 Mr. Lukic, in fact, may have already done the same on his part but has
21 been away for this period of time. So I simply wanted to -- I think the
22 same timetable should apply, but I didn't want the Court to get the
23 misimpression that no progress had been made in the interim.
24 JUDGE ORIE: Yes. Nevertheless, we'll not shorten the time
25 available to further report finally to the Chamber.
1 Any other matter to be raised by the parties? If --
2 Yes, Mr. Traldi.
3 MR. TRALDI: Just on the two exhibits marked for
4 identification -- or mentioned that had previously been marked for
5 identification from Witness Gojkovic, D1171 and 1172. We have no
6 objection to the translations.
7 JUDGE ORIE: That means -- let me see ...
8 MR. TRALDI: My recollection is the Chamber had admitted them and
9 given us an opportunity to come back, and I was simply putting on the
10 record that we don't be doing so.
11 JUDGE ORIE: D1171 and D1172 are admitted. That is -- I think
12 it's with regard to 1183 that the Chamber encouraged the parties then to
13 come to an agreement as to the excerpts to be tendered and inform the
15 But D1171 and 72, we now understand that there's no objection and
16 therefore that the decision that it was admitted remains valid.
17 Mr. Ivetic.
18 MR. IVETIC: One matter. And we should move into private
20 JUDGE ORIE: We move into private session.
21 [Private session]
11 Page 42202 redacted. Private session.
17 [Open session]
18 THE REGISTRAR: We're back in open session, Your Honours.
19 JUDGE ORIE: Thank you, Mr. Registrar.
20 We adjourn for the day and we'll resume Monday, the 7th of
21 December, 9.30 in the morning, in this same courtroom, I.
22 --- Whereupon the hearing adjourned at 5.19 p.m.,
23 to be reconvened on Monday, the 7th day of
24 December, 2015, at 9.30 a.m.