Tribunal Criminal Tribunal for the Former Yugoslavia

Page 424

 1                           Friday, 3 October 2008

 2                           [Rule 84 bis Statement by the Accused]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.01 a.m.

 6             JUDGE MOLOTO:  Good morning to everybody in and around the

 7     courtroom.

 8             Madam Registrar, would you please call the case.

 9             THE REGISTRAR:  Good morning, Your Honours.  Good morning,

10     everyone in and around the courtroom.  This is case number IT-04-81-T,

11     the Prosecutor versus Momcilo Perisic.

12             JUDGE MOLOTO:  Thank you very much.

13             May we have today's appearances, starting with the Prosecution.

14             MR. SAXON:  Good morning, Your Honours.  Dan Saxon for the

15     Prosecution, together with my colleagues, Barney Thomas, Ms. April

16     Carter, and our case manager, Carmela Javier.

17             JUDGE MOLOTO:  Thank you very much.

18             For the Defence, Mr. Lukic?

19             MR. LUKIC: [Interpretation] Good morning, Your Honours.  Novak

20     Lukic and Gregor Guy-Smith for the Defence.

21             JUDGE MOLOTO:  Thank you very much, Mr. Lukic.

22             We are at the stage where we'd like to hear the statement by

23     Mr. Perisic.

24             Mr. Perisic, will you please make your statement pursuant to Rule

25     84 bis.

Page 425

 1             THE ACCUSED: [Interpretation] I'm not receiving any

 2     interpretation.

 3             THE INTERPRETER:  Interpreter's note:  The microphone is not on

 4     for the accused.

 5             JUDGE MOLOTO:  The microphone may not be on, but the accused

 6     should be able to hear without his microphone on.  If the interpretation

 7     is not getting through, it comes through his ears.

 8             THE ACCUSED: [Interpretation] I can only hear the voice in

 9     English.  I'm not receiving interpretation.

10             JUDGE MOLOTO:  Thank you, Mr. Perisic.  Just hold on.  Let's see

11     what we can do.

12             THE ACCUSED: [Interpretation] Now it's fine.

13             JUDGE MOLOTO:  Thank you very much, Mr. Perisic.  You may proceed

14     with your statement.

15             THE ACCUSED: [Interpretation] Your Honours, I believe that the

16     indictment against me is unique in the history of international law of

17     war.

18             I'm not receiving any interpretation, anything.

19             JUDGE MOLOTO:  Mr. Perisic, you are speaking, so you will not

20     receive any interpretation.  You will be interpreted to us who do not

21     understand your language.  Only when we speak will you receive

22     interpretation.

23             THE ACCUSED: [Interpretation] Yes, yes.  Okay.  Fine.  Yes, yes,

24     I understand.  Thank you very much.

25             JUDGE MOLOTO:  Thank you very much.

Page 426

 1             THE ACCUSED: [Interpretation] Let me repeat.

 2             Your Honours, I believe that the indictment against me is unique

 3     in the history of international law of war.  Never before have a

 4     commander and the Chief Of Staff of General Staff of one army been

 5     criminally responsible for the crimes committed by members of the armed

 6     forces of another state or entity.

 7             I was born in Serbia during the Second World War.  My wife is

 8     from Trnovo, that is the municipality of Sarajevo, which is now in the

 9     state of Bosnia-Herzegovina.  I have two sons.  One was born in Karlovac

10     which is now in the state of Croatia; the other was born in Podgorica

11     which is now in the state of Montenegro.  The four of us --

12             JUDGE MOLOTO:  May I just interrupt.  Will you please slow down.

13             THE INTERPRETER:  Microphone, please, Your Honour.

14             JUDGE MOLOTO:  Please slow down, Mr. Perisic.

15             THE ACCUSED: [Interpretation] Yes, I will.

16             So, the four of us at the time when we were born, we were born in

17     a single state, yet now we come from four different states.

18             After I graduated from the military academy, I became an officer

19     in a multi-ethnic army and a multi-ethnic state, and they remained thus

20     until the end of my career.  I, myself, have contributed to this, and

21     this is something I'm really proud of.

22             In my 32-year-long career, I served 27 years, 80 per cent of that

23     time, in posts in Croatia, Montenegro, and Bosnia and Herzegovina; in

24     other words, not in the republic in which I was born.

25             I was appointed the Chief of the General Staff of the Yugoslav

Page 427

 1     Army at the time when the situation was extremely complex in August 1993.

 2     In the neighbouring Croatia, there was a state between war and peace; and

 3     in Bosnia and Herzegovina, which had recently seceded, the war was well

 4     on its way to escalation.  As for the Federal Republic of Yugoslavia, it

 5     was in the throws of an unprecedented isolation, not only financial and

 6     material but also moral, legal, and political.

 7             At the time, the situation in the Yugoslav Army was even tougher.

 8     The existing legislation was completely outdated and there were no new

 9     laws in place yet.  Families of the JNA personnel who had lived in the

10     republics that had seceded before the war now came to the Federal

11     Republic of Yugoslavia utterly frustrated without any poverty -- on the

12     brink of poverty.

13             As the Chief of the General Staff of the Army of Yugoslavia, I

14     was fully able to recognise the interests of the citizens and of the

15     state; and I was ready, in order to implement those and protect those

16     interests, to commit all I had, including my life.  But I was also able

17     to recognise or see a situation where the regime places its own interests

18     above those of the state.  That is why we were able to stop the war from

19     spreading to the Federal Republic of Yugoslavia.  We prevented the misuse

20     of the Army of Yugoslavia, made it possible for the democratic forces and

21     processes in the Federal Republic of Yugoslavia to develop, eliminated

22     party politics from the Army of Yugoslavia, and turned it into the most

23     highly respected institution in the Federal Republic of Yugoslavia.

24             By its existence, the level of training and its treatment towards

25     citizens, in particular those who were involved in demonstrations to

Page 428

 1     protect the -- their will expressed at elections, the VJ instilled trust

 2     and, in fact, represented the most open and the most democratic

 3     institution in the Federal Republic of Yugoslavia.  This is something

 4     that the representatives of students and other protesters' delegations

 5     always stressed whenever I received them at that time, and so did many

 6     representatives of the international community, including some Western

 7     heads of state.

 8             When the Federal Republic of Yugoslavia was in the deepest

 9     isolation, the Army of Yugoslavia organised two air shows with the

10     participation of the air forces of France, Italy, Austria, Greece,

11     Romania, Bulgaria, and the Russia Federation.  The air shows were

12     attended by more than 300.000 citizens.  At that time, we mediated in the

13     effort to achieve the release of the hostages from the peace-keeping

14     forces, the international peace-keeping forces in Bosnia-Herzegovina, and

15     of the French pilots captured by the VRS personnel in the course of the

16     NATO air strikes against Republika Srpska.

17             This made it possible to sign the Dayton Agreement in Paris, and

18     I hope that our French friends, in particular former President Chirac;

19     and my colleague, the head of the Joint Chiefs of Staff of the French

20     army, General Gourmelon, have not forgotten this.

21             During this time, there was a very real danger for my removal

22     from office, but I did not fear that.  I feared that once I was out of

23     the way, the VJ would be misused and that the war would spread in the

24     territory of the Federal Republic of Yugoslavia, to be more specific to

25     Kosovo and Metohija.  Unfortunately, subsequent events have proven those

Page 429

 1     fears to be founded.

 2             I tried to exert some influence on the regime, avoiding a

 3     military coup; but when I realised that their decisions inevitably lead

 4     us into a conflict with NATO in October 1998, I went public with a

 5     warning about what was in store for us if we failed to comply with the

 6     provisions in the Resolution 1199 of the UN Security Council.  That is

 7     why, because of this conduct, at its session held on the 24th of

 8     November, 1998, the Supreme Defence Council removed me from my post of

 9     the Chief of Staff of the VJ, despite the opposition of the President of

10     Montenegro who was there as a member of the Supreme Defence Council.  I

11     was not present at the session.

12             After my removal from office, I addressed the public saying, and

13     I quote:

14             "The current government does not want to have leaders with

15     integrity, people who use their own heads."  I was removed from my post

16     of the Chief of the VJ General Staff illegally and without being

17     consulted.  I refused to accept the invented post of an advisor to the

18     federal government, and I remained at the disposal of the army, the

19     people, and the state."

20             I never did accept any new post, and the President of the Federal

21     Republic of Yugoslavia, as the chairman of the Supreme Defence Council in

22     March 1991, punished me by --

23             THE INTERPRETER:  Interpreter's correction:  1999.

24             THE ACCUSED: [Interpretation] -- punished me by passing a decree

25     discharging me from the Army of Yugoslavia ten years before the time that

Page 430

 1     was stipulated without benefits I was entitled to.

 2             In August 1999, I founded the political party that was called the

 3     Movement for a Democratic Serbia.  Together with the other democratic

 4     forces, we launched a political struggle to achieve -- to fight

 5     totalitarianism.  That is why proceedings were instituted against me

 6     before the military court of honour.  Although I was a civilian at the

 7     time, I was stripped of my rank.

 8             During the events of the 5th October, year 2000, I played a key

 9     role in the planning and implementation of the activities designed to

10     give a creative shape to the energy of the millions of protesters to

11     pressure the regime into recognising the will of the people in the

12     Federal Republic of Yugoslavia expressed at the elections, and this

13     resulted in a resounding victory of the protesters without any

14     casualties.

15             After that I was elected into the Assembly of the Federal

16     Republic of Yugoslavia.  I was appointed the chairman of committee for

17     defence and security in the FRY Assembly and deputy prime minister of

18     Serbia.  In that period, I took active part in the passing of the law on

19     cooperation of Serbia and Montenegro with the International Tribunal in

20     The Hague.

21             On the 2nd of March, 2005, when the Serb government received the

22     indictment, I made the following public statement.  I quote:

23             "I have received the indictment from the Tribunal in The Hague.

24     I did what I always do when I find myself at a turning point.  Without

25     any outside influence, and acting in accordance with my own conscience, I

Page 431

 1     decided to face the International Tribunal in The Hague.  Crimes have no

 2     nationality, and that is why I believe that whoever and wherever

 3     committed crimes must be punished.  That is why it is no dilemma for me.

 4     I will face any court, in particular the International Tribunal in The

 5     Hague, because it is the only way for me to defend my honour as an

 6     officer, the reputation of the army, and the dignity of my people."

 7             I came here and I reported to the Detention Unit on the 7th of

 8     March, 2005.  Before the indictment was made public, I believed then, and

 9     I believe now, that you, Your Honours, after a fair, unbiased, and full

10     consideration of the facts, the circumstances, and the reality of what I

11     did and what really happened at the time, will reach a just decision.

12             I regret deeply that there were victims of crimes in the

13     territory of the former Yugoslavia.  I sympathise deeply with the

14     families of the victims.  Every life lost in war is an irreplaceable loss

15     for the society, but lives lost to crime are an even greater loss.  I

16     believe that all those who committed crimes will face trial and will

17     receive proper punishment, and I hope that war crimes will never happen

18     again.

19             At my Initial Appearance before this Tribunal, I pleaded not

20     guilty on all counts in the indictment; and now, again, I say to you,

21     Your Honours, I am convinced that you will hear the arguments of both

22     parties, without any prejudice, professionally and carefully, and will

23     deliver a fair and honourable judgement.

24             I hope that I will be allowed to present my case and to exercise

25     all the rights that this Tribunal guarantees to me.  Only the totality of

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 1     evidence will make you able to understand my conduct, my role, my

 2     environment, my context.  My defence will contribute to the determination

 3     of all the relevant facts, to challenge the allegations in the indictment

 4     and prove my innocence.  After all, it is an obligation I have towards my

 5     profession, my family, and my army, my people, and my state.

 6             As a professional soldier, I hate war because I am fully aware of

 7     the fact that all wars, in particular the war that was waged in the

 8     former Yugoslavia - it was a civil war, a religious war, interethnic

 9     war - is the worst thing that can happen in a society.  I have felt the

10     horrors of war.  I despise it because of the consequences it leaves in

11     its wake, because of the lies it relies on, the hatred that it engenders,

12     because it ushers in dictatorship to topple democracy, and because of the

13     misery it leaves in its wake.

14             Your Honours, thank you very much.

15             JUDGE MOLOTO:  Thank you very much, Mr. Perisic.

16             I guess the parties would like us to discuss some of the issues

17     before we call the first witness for the Prosecution.  I've been given a

18     list of topics that the parties would like us to discuss.  There may,

19     perhaps, be some items that the Chamber might also want to add.

20             The four points that have been mentioned are, first of all, the

21     guidelines, the proposed guidelines; proofing notes; protected witness

22     issues; pending motions and recently filed motions.

23             Have I got the issues from the parties correct, Mr. Saxon?

24             MR. SAXON:  Correct, Your Honour, with the addition that the

25     Prosecution has one very brief additional housekeeping matter to raise.

Page 433

 1             JUDGE MOLOTO:  Indeed.  Would you like to add it now, or will you

 2     raise it later?

 3             MR. SAXON:  With your leave, I can add it now, Your Honour.  It's

 4     simply to correct the -- some points on the record yesterday from

 5     Mr. Harmon's opening statement, where Mr. Harmon realised last evening

 6     that he had misspoken.  I can explain that now or later, Your Honour.

 7             JUDGE MOLOTO:  Can we just add it as an item and come to it at

 8     the relevant time, because I'm not quite sure whether the Defence would

 9     like to say something on that issue.

10             Yes, Mr. Guy-Smith.

11             MR. GUY-SMITH:  Yes, Your Honour.  There would be one additional

12     issue which may well deal specifically with the first witness that the

13     Prosecution intends to call, and I sent an e-mail late last night to all

14     parties.  That deals with the enforcement of prior rulings in this case,

15     as they could well affect present testimony, specifically the testimony

16     of the first witness that the Prosecution intends to call; that is,

17     Mr. van Lynden.

18             JUDGE MOLOTO:  Thank you very much, Mr. Guy-Smith.

19             I'm going to suggest that we just deal with the items as they

20     follow seriatim.

21             On the proposed guidelines, I believe, in addition to the

22     suggestions that the parties had submitted earlier, there have been new

23     ones coming up yesterday.  Now, I haven't even seen those.  I don't know

24     whether Judge Picard and Judge David have seen them.  Maybe the best way

25     to deal with them is just for the parties to indicate what they are and

Page 434

 1     what are the new things that were added last night.

 2             Mr. Saxon.

 3             MR. SAXON:  Thank you, Your Honours.

 4             Your Honours, beginning at paragraph 1, the parties agreed to

 5     suggest to add a sentence at the end of paragraph 1, which is the

 6     paragraph titled "Order of Calling Witnesses."  And the suggested last

 7     sentence, Your Honours, would be the following:

 8             "In the case of any witness in respect of whom 100 or more

 9     documents are intended to be used, the list of such documents is to be

10     provided at least five days before the start of the testimony."

11             JUDGE MOLOTO:  May I ask, yes, Mr. Guy-Smith --

12             MR. SAXON:  "Five working days," I should have said.

13             JUDGE MOLOTO:  Yes.  "At least five working days before the start

14     of the testimony."  That's what it says.

15             Yes, Mr. Guy-Smith, is that what you wanted to correct?

16             MR. GUY-SMITH:  Yes.

17             JUDGE MOLOTO:  For my own clarification, now, you're saying 100

18     documents; you're not saying 100 pages.  Do I understand that I can give

19     you 100 -- only when I give you 100 documents, irrespective of the number

20     of pages, could each one of them could have 10.000 pages and you would

21     need five working days?

22             MR. GUY-SMITH:  That is the agreement that we have made with the

23     Prosecution.  We trust that --

24             JUDGE MOLOTO:  Was there a meeting of minds on --

25             MR. GUY-SMITH:  There actually was a meeting of minds on that

Page 435

 1     issue, and we did take into account the potential dilemma with regard to

 2     defining it by number of documents as opposed to number of pages.

 3     However, we believe that the body of information that we have been

 4     supplied thus far, some of the documents which are hundreds of pages are

 5     documents that we will be conversant with by the time those witnesses

 6     come to the fore.  So the only -- our expectation is that we won't be

 7     seeing too many more documents that run into hundreds or thousands - I

 8     don't think we'll get to thousands - but hundreds of pages under this

 9     particular plan.

10             JUDGE MOLOTO:  Okay.

11             MR. GUY-SMITH:  I also trust that in the event there is a

12     particularly large document, that the Prosecution, being aware of the

13     difficulties that exist in terms of just getting through it, will give us

14     more than what the minimum time is.

15             JUDGE MOLOTO:  So you also will give them minimum time when their

16     time comes.

17             MR. GUY-SMITH:  Absolutely.

18             JUDGE MOLOTO:  I just want to be clear that the way that the

19     document was studiously inserted.

20             MR. GUY-SMITH:  Absolutely.  We understand.

21             JUDGE MOLOTO:  Thank you very much.

22             Any other amendments?  I guess it will be paragraph 15?

23             MR. SAXON:  Yes, Your Honour, if you could turn to 15, please,

24     the paragraph entitled "Length of Examination."  After the first

25     sentence, the parties agreed to suggest the following language be added:

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 1             "Such a system shall record time used:  (a) by the Prosecution

 2     for its examination-in-chief; (b) by the Defence for cross-examination;

 3     (c) by the Prosecution for re-examination; (d) by the Judges for putting

 4     questions to the witnesses; and (e) for all other matters, including

 5     procedural matters.  Regular reports on the use of time shall be compiled

 6     by the Registry every two weeks for use by the Trial Chamber and the

 7     parties.  Significant time spent dealing with objections will not be

 8     counted against the party then examining the witness.  Where there are

 9     time savings (i.e., where direct examination takes less time than

10     estimated) these may be apportioned by the examining party to other

11     witnesses in its case."

12             JUDGE MOLOTO:  Yes, Mr. Saxon, you may proceed.

13             MR. SAXON:  That would -- that is the suggested change for

14     paragraph 15, Your Honour, that was agreed to by the parties.

15             JUDGE MOLOTO:  Okay.  And then there's paragraph 19, I guess?

16             MR. SAXON:  The parties agreed to suggest in paragraph 19,

17     entitled "92 bis Witnesses Appearing for Cross-Examination" that the

18     first sentence of that paragraph should read:

19             "Where a witness whose previous testimony or statement has been

20     admitted into evidence pursuant to Rule 92 bis, has been called solely

21     for the purposes of cross-examination, the calling party should not

22     introduce new evidence through examination-in-chief, without leave of the

23     Court."

24             And it's those last five words that the parties have agreed to

25     suggest to the Chamber be added.

Page 437

 1             JUDGE MOLOTO:  If I might ask, why must this witness be allowed

 2     to introduce new evidence at all?

 3             MR. SAXON:  Because, Your Honour, since the last time a

 4     particular witness had testified before this Tribunal, which may have

 5     been a number of years previous to their testimony in this case, it's

 6     possible that new evidence may have been obtained for which that witness

 7     can speak to that's relevant to this case.  That is the reason, Your

 8     Honour.

 9             JUDGE MOLOTO:  But this witness would have given a 92 bis

10     statement as recently as possible before giving the testimony and,

11     therefore, would have updated his memory of events.

12             MR. SAXON:  That is correct, Your Honour, but that presumes that

13     at that time, at the time of the certification process, then that witness

14     is being shown and asked to comment on new evidence that is available at

15     that time.  And the Prosecution is simply suggesting that that is simply

16     not always possible.  That may not happen, for example, until the witness

17     appears for proofing.

18             MR. GUY-SMITH:  If I might, Your Honour.

19             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

20             MR. GUY-SMITH:  I take a slightly -- a slightly nuanced view from

21     that suggested by Mr. Saxon.

22             The reason that the language of "without leave of the Court" has

23     been inserted is because we foresaw, and I mean the Defence - and clearly

24     we have not yet come to a point where our minds are necessarily melding

25     on all issues with regards to how we should view the presentation of

Page 438

 1     evidence and the taking of evidence - but the situation could well occur

 2     when an individual, during the certification process, after reading their

 3     statement which they are going to be signing for purposes of 92 bis,

 4     makes a comment, says, "Listen, there's something in the statement which

 5     needs amplification, modification, or correction."  In that case, it

 6     seems it would be appropriate if such information were to be presented so

 7     that the Chamber had an accurate 92 bis statement for that information to

 8     be available to the Chamber.

 9             Now, that is not necessarily information that would come through

10     the 92 bis process but could be something that occurred thereafter.  And

11     in such a situation, where some new information arose, it seemed to be

12     appropriate for the party calling such a witness, calling such evidence,

13     to be in a position to say to the Chamber, "Listen, there's some new

14     information here which directly impacts upon that which is presented in

15     92 bis, and we'd like the opportunity, with the Chamber's permission, to

16     present such information to the Chamber."

17             So it would be, I believe, in a highly circumscribed situation.

18     That was what our thought was at the time -- I'm sorry.  That was what

19     the thought was the Defence had.

20             The reason I'm making a slight distinction here is because

21     Mr. Saxon and I have realised that we heard each other day with regard

22     specifically to paragraph 20, and we thought we understood each other,

23     but it's clear now we were speaking somewhat of a different language with

24     regard to the issues contained in the paragraph.  So it's for that reason

25     that I'm making that distinction.

Page 439

 1             JUDGE MOLOTO:  Thank you, Mr. Guy-Smith.

 2             Mr. Saxon, would you like to round up?

 3             MR. SAXON:  Nothing more to add, Your Honour.

 4             JUDGE MOLOTO:  Nothing more to add.  Thank you so much.

 5             And I notice your next input is at paragraph 20.

 6             MR. SAXON:  Yes, Your Honour.

 7             Before I begin, I should note, as prefaced by my learned friend,

 8     the parties have not reached agreement on final suggestions for the final

 9     text of paragraph 20.  So, with your leave, I would describe the

10     suggestion to be made by the Prosecution at this time, and I know my

11     colleague will have comments to make.

12             JUDGE MOLOTO:  Okay.

13             MR. SAXON:  Paragraph 20, which is entitled "92 ter Witnesses,"

14     the Prosecution recommends that the first sentence read:

15             "Rather than filing a motion for each witness who a party intends

16     to call pursuant to Rule 92 ter, that party should provide the other with

17     all relevant materials for each witness three weeks in advance of the

18     testimony of the witness."

19             The following sentence or two sentences is, I believe, where the

20     current lack of full agreement lies.  The Prosecution would recommend

21     that the following sentences read:

22             "'All relevant materials' in this context means a notice setting

23     out the prior statements of the witness to be relied upon, with specific

24     passages to be relied upon indicated, relevant passages of prior

25     transcripts, and exhibits from those passages identified from prior

Page 440

 1     statements and prior testimony.  A list of remaining documents intended

 2     to be used with a witness is to be provided in accordance with

 3     paragraph 1 of these guidelines."

 4             And the last sentence, which I believe there is agreement on,

 5     would read:

 6             "The other party should raise any objection 12 days prior to the

 7     witness being heard or the Rule 92 ter statement being admitted by the

 8     Trial Chamber."

 9             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

10             MR. GUY-SMITH:  The thrust of the concern here is how do you

11     define "relevant materials" and how do you define "relevant statement"?

12             Our experience has been, with regard to a 92 ter statement, that

13     we receive a consolidated document that contains all of the information

14     upon which the Prosecution relies for purposes of presenting that

15     particular evidence.

16             The Prosecution, as we understand it, suggests the following:  If

17     there are two separate statements and one document containing prior

18     testimony, what the Prosecution will do is identify in statement 1, for

19     all the parties and obviously for the Chamber, paragraphs, let's say,

20     1 through 10, 53, 56, and 92 through 104.  In document number 2, the

21     second witness statement, the Prosecution would identify as being part of

22     the 92 ter submission paragraphs 1 through 7, paragraphs - and I'm

23     picking these arbitrarily, obviously - paragraphs 47 through 72 and 95.

24     With regard to the prior testimony of such a witness, the Prosecution

25     would suggest, I assume, that we be looking at page 27946, lines 14

Page 441

 1     through 19, without having that as a consolidated document, so that we'd

 2     all be in a position where we would jumping as between all of these

 3     documents at the time when we're dealing with the 92 ter issue.

 4             The witness would come to the court, as always, and the

 5     Prosecution would say, "Have you read witness statement number 1, and is

 6     all of the information contained in witness statement number 1 accurate,

 7     and would you so testify if you were to testify to those today?"  The

 8     witness would say "yes"; and then, of course, we'd go to statement 2 and

 9     then we would go the testimony.

10             The difficulty, I think, and I envision here, is that it is

11     probably unworkable; and it also puts us in a position where, when we're

12     trying to make a determination from an objective standpoint of what we

13     object to, we're not looking at it in the context of a consolidated

14     statement.  You'll notice that the language here is that of notice, not a

15     statement.  The distinction between what notice is and what a statement

16     is, quite frankly, the difference between chalk and cheese.

17             In terms of having a statement, you have a clear document of what

18     the witness would testify to.  The difficulties with between 92 already

19     are, I think the Court appreciates, are legion.  In as much as it safes

20     time, it is an excellent mechanism to take testimony.  In as much as

21     we're going to be dealing with disparate documents that create one

22     particular statement itself, we believe it is going to be a problem.

23             Rather than have that problem, why not create one document that

24     we receive three weeks before or that they receive three weeks before.

25     And to the extent there are any arguments to be made about any specific

Page 442

 1     paragraphs within that document, we'll all be able to deal with it in a

 2     very clear, concise, and easy fashion.  That's really what the discussion

 3     is about.

 4             The secondary issue which is the issue of how this paragraph 1

 5     interplays with paragraph 20, because the time provisions of paragraph 1

 6     obviously are five working days before the witness is to testify;

 7     whereas, the requirements under paragraph 20 are that any objections to

 8     be made with regard to the statement, which of course includes the

 9     material upon which the Prosecution or the Defence will rely in

10     presenting a 92 ter statement to the Chamber, requires a three-week

11     period of time.  So that there's -- there are two problems with it.

12             JUDGE MOLOTO:  Thank you.  I'm pleased to find --

13             You want to say something?

14             MR. SAXON:  Oh, absolutely, Your Honour, with your leave.

15             Your Honour, first of all, I believe my colleague slightly

16     misspoke a moment ago.  My learned friend referred to the time frame from

17     paragraph 1 as five working days, when actually, I believe, that

18     paragraph refers to two working days.

19             With respect to the merits of what we're discussing, Your Honour,

20     in the Prosecution's experience, what Mr. Guy-Smith is asking the parties

21     to do will create -- will require a great deal of individual, additional

22     work and will actually cause problems rather than -- rather than

23     clarifying the admission of evidence through Rule 92 ter.

24             The attempts to create a so-called consolidated statement will

25     not reduce confusion, Your Honour; it will, in the Prosecution's

Page 443

 1     experience, create confusion.  Your Honours, when -- at least with

 2     respect to Prosecution witnesses, when Prosecution witnesses who are

 3     going to submit their evidence under Rule 92 ter arrive here for

 4     proofing, the relevant portion of their statements or the relevant

 5     portions of their prior transcripts will be read to them by an

 6     interpreter if they are not available in written form in B/C/S.  If they

 7     are available in B/C/S, then the witness will have a chance to read them

 8     to be able to make sure, to be able to testify, that the relevant

 9     passages are true and accurate.

10             Mr. Guy-Smith remarked that the key phrase I believe at one point

11     he said is "statement," but the Prosecution submits that the key phrase

12     in this passage in paragraph 20 is the phrase at the beginning, "all

13     relevant materials."  And what's necessary here, Your Honours, is that

14     the party that's tendering the evidence under Rule 92 ter provides the

15     other party with sufficient notice of the relevant material that it will

16     rely upon as relevant evidence for this case so that the other party can

17     prepare to test the evidence as laid out.

18             In the Prosecution's experience, the creation of a consolidated

19     statement often leads to additional confusions because we are then

20     creating simply one more additional statement.  It becomes, oftentimes, a

21     very large statement and it often then, after it's completed, raises

22     issues of inconsistencies on its own.  In the Prosecution's experience,

23     this is a very -- actually, a difficult system to work with, Your Honour,

24     and we would not recommend the Chamber take it on.

25             MR. GUY-SMITH:  If I might briefly respond.

Page 444

 1             Having been in two trials, one in which we did not have 92 ter

 2     and one in which we did, the last trial, this is a mechanism whereby

 3     which we functioned.  It seemed to work pretty well, we used it with a

 4     fair number of witnesses, and it allowed for a clarity of an

 5     understanding of what any 92 ter witness was going to be presenting to

 6     the Chamber.

 7             JUDGE MOLOTO:  I have a concern to raise with you gentlemen.  I

 8     thought that what we are being given here is what the parties have agreed

 9     upon and that it's for us to decide whether it's okay, if it is

10     consistent, does it make sense, and then give the guidelines.

11             MR. GUY-SMITH:  I do apologise.

12             JUDGE MOLOTO:  It does look like we have a case within a case

13     here.

14             MR. GUY-SMITH:  I do apologise.  I do apologise.

15             JUDGE MOLOTO:  No, that's fine.

16             May I suggest a way forward, because I think time is precious.

17     Can I suggest that you continue talking and get to an agreement, and that

18     when you have agreed, make your recommendations to us and we'll see how

19     we incorporate those and then just give the guidelines, rather than --

20             MR. GUY-SMITH:  Sure.

21             JUDGE MOLOTO:  -- rather than trying to deal with these things

22     and find agreement here in court, instead of trying the case.

23             MR. GUY-SMITH:  It might have been a good idea to ventilate the

24     issue for a bit of time, but we have been taking time.  I do apologise.

25     We'll have further discussion.

Page 445

 1             There have been a couple more agreements which I'll let Mr. Saxon

 2     take care of.  I should at least flag for the Chamber that with regard to

 3     paragraphs 13 and 14, there is no agreement, and the Defence has made

 4     some suggestions some time ago with regard to those particular

 5     paragraphs, but there has been no agreement.  We sent -- we sent tracked

 6     changes, as suggested by the senior legal officer, on the 1st of October

 7     in that regard.

 8             JUDGE MOLOTO:  Okay.  Where the parties are not agreed and the

 9     Chamber might think that the matter is relevant, may the Chamber just

10     include that part --

11             MR. GUY-SMITH:  Well, the difficulty is that we have not received

12     a response, so we don't know whether or not we're not agreed at all or

13     whether --

14             JUDGE MOLOTO:  Okay.  So the actual factual situation is you have

15     not received a response, not that you're failing to agree.

16             MR. GUY-SMITH:  Right.

17             JUDGE MOLOTO:  Can you find it yourself and then make

18     recommendations to the legal officer and then deal with that issue?

19             MR. GUY-SMITH:  Absolutely.

20             JUDGE MOLOTO:  Can we then move away from the guidelines and hear

21     what the parties have to say on the proofing notes.

22             Who starts, you, Mr. Guy-Smith?

23             MR. GUY-SMITH:  I probably do, because we in the Defence have a

24     constant concern about proofing notes.  We've made a suggestion to the

25     Prosecution that they, in some fashion, make verbatim copies of the

Page 446

 1     session in which proofing comes from.  We are not asking that those

 2     verbatim copies, either through audio or video-recordings, be made

 3     available to us in the first instance; but, rather, they be retained so

 4     that in the event, unlikely, but in the event that it occurs that a

 5     witness, in testifying, when being examined concerning those

 6     representations which are made on proofing notes, disagrees with what is

 7     contained therein, we have an accurate record of what actually occurred,

 8     so that it does not put the Prosecution or, for that matter, the Defence,

 9     if such arises, in such a situation where they become either potential

10     witnesses with regard to the credibility, accuracy, or truth of what

11     occurred during the proofing session.

12             It allows all parties, if such occurs, the ability to have the

13     verbatim record of what happened.  The Prosecution in that regard has

14     declined this suggestion.  It's a suggestion that I made previously in a

15     previous case, and it was declined there also.  There were a number of

16     difficulties, which is why we made the suggestion, where witnesses

17     deviated from that which was said in the proofing notes and claimed that

18     that's not what they said.  So this seemed to be a mechanism whereby we

19     could address that particular concern.

20             The second issue with regard to proofing notes, and I understand

21     that we've started this case in somewhat of a hurried fashion by virtue

22     of matters that are outside of everybody's control, but the second matter

23     with proofing notes deals with when we get them.  Mr. Saxon, with regard

24     to the first witness, has been very kind and has supplied us with three

25     sets of proofing notes; and by three, one was a note where the witness

Page 447

 1     actually changed - and by "change," I don't mean in the negative sense, I

 2     mean he read his proofing notes and made corrections - sets of proofing

 3     notes.  Our concern is we're going to be in a position where at the last

 4     minute we're confronted with new evidence that is going to require

 5     investigation or the fullness of time for proper preparation.

 6             And we understand the difficulties in presenting a case and

 7     getting witnesses here and getting witnesses here in a timely fashion

 8     such that we can proceed in an orderly way; however, we would like to be

 9     able to get those proofing notes sometime other than a day or two right

10     before the witness is to testify.

11             Now, I have no idea what their scheduling system is.  I don't

12     know how they do their proofing.  Other jurisdictions at this point are

13     disapproving proofing or have certain kinds of disclosure cutoff dates.

14     That's not something that happens here unfortunately, as far as I'm

15     concerned; nonetheless, it's not something that happens here.  So we're

16     constantly getting new disclosure as the case develops and, oftentimes,

17     it creates havoc.  I'm happy on our side to live with disclosure cutoff

18     dates and delivery dates for the kind of body of information that we are

19     going to be dealing with when a witness testifies.

20             So there are two issues:  One is a timing issue and the other is

21     the issue of how to preserve what actually happened during that session.

22     There should be no harm in that whatsoever in terms of the preservation

23     of the proofing session, no harm whatsoever.  It's a passive way of

24     obtaining information that would allow all parties, in the event -

25     unlikely, we hope - but in the event that there is a dispute, we have a

Page 448

 1     simply way of resolving it.

 2             JUDGE MOLOTO:  Mr. Saxon.

 3             MR. SAXON:  Your Honours, as Judge Bonomy found in the

 4     Milutinovic case in December of 2006, witness proofing assists in

 5     providing a detailed review of relevant and irrelevant facts in light of

 6     the precise charges to be tried and in aiding the process of human

 7     recollection and enabling the more accurate, complete, orderly, and

 8     efficient presentation of the evidence of witnesses in the trial, and to

 9     identify and put the Defence on notice of differences in recollection

10     thereby preventing undue surprise.

11             And as I'm grateful to Mr. Guy-Smith for giving me a compliment

12     at least with respect to my behaviour with the first witness, that is, to

13     date, what we have been trying to do, to provide to the Defence as early

14     as possible any new information, particularly potentially exculpatory

15     information, that arise during a proofing session, and that is what we

16     have done to date.

17             Your Honours, the issue of recording verbatim proofing sessions

18     has been litigated in the Haradinaj case.  That Haradinaj Chamber ruled

19     that this was not necessary.  It would require the Prosecution to commit

20     additional resources that, quite frankly, it really doesn't have at this

21     point.  The Prosecution endeavours and commits itself, both to the

22     Defence and to the Chamber, that our efforts in providing material that

23     arises in proofing will be done to the most accurate degree possible and

24     as expeditiously as possible.

25             Sometimes, we are constrained, for example, by flight times,

Page 449

 1     flight schedules, by abilities to obtain visas by a certain day, which,

 2     of course, affects when a witness or witnesses can arrive here and when

 3     proofing can begin.  But the Prosecution does not see any need at this

 4     time for an instruction from the Chamber that proofing sessions be

 5     recorded verbatim.

 6             JUDGE MOLOTO:  I just want to mention a concern I have.  I don't

 7     want to discuss this again.  I think it is something that I would urge

 8     the parties to agree about outside the court, so that you come to court

 9     with something you have agreed on.  But for my little knowledge, I'd just

10     like to be educated by you gentlemen.  This whole idea of proofing notes

11     being given to the other party is rather new and foreign to me, and I

12     know I saw it for the first time in the last case I was sitting in.

13             And seeing the Defence, in fact, demanding these proofing notes,

14     is this the practice within this Tribunal and is it governed by any Rule

15     that we can look at and say that the Rule says you must give proofing

16     notes?  Because I would imagine that if the Prosecution has disclosed the

17     statement of the witness to the Defence, the Defence would not anticipate

18     any other story from that witness other than what they have been given.

19             MR. SAXON:  Your Honours, certainly during my ten years here in

20     the Office of the Prosecutor, the provision of proofing notes or, in some

21     cases, supplemental information sheets, has been the standard practice

22     here within this Tribunal.  The practice of proofing, to my knowledge, is

23     not regulated anywhere in the Rules.  However, we have at least two

24     decisions, two items of jurisprudence - one from the Haradinaj case and

25     one from the Milutinovic case from 12 December 2006 - which describe the

Page 450

 1     reasons for and the appropriateness of this practice.  It is, quite

 2     frankly, done, proofing notes are provided, again in the interests of

 3     being fair to the Defence, so the Defence is not surprised.

 4             JUDGE MOLOTO:  Okay.  Then can I, then, urge the parties to agree

 5     on how to deal with the question of proofing.  Mr. Guy-Smith would like

 6     to have verbatim copies.  You say you can only give as close to as

 7     correct as possible the copy that you're able to give, and then there's

 8     also the question of the timing of that.  I would like the parties to try

 9     and pursue that and save this Court's time from trying to resolve this

10     and come to an agreement right now, and then word it into the guidelines.

11     To me, it seems to be a guideline kind of issue which requires a

12     gentlemanly agreement between the parties.

13             Mr. Guy-Smith, I'm aware of you standing, yes.  What do you want

14     to say?

15             MR. GUY-SMITH:  With regard to the issue of timing and based upon

16     what Mr. Saxon has said, I'm sure we can come to an agreement on that.

17     With regard to the issue of resources, I will, once again, make the same

18     offer that I made before, which is I'm more than happy to buy them a

19     recorder - a recorder, a voice recorder - so they have it available.  I

20     bought a recorder for the Prosecution the last time which they chose not

21     to use.  I'm more than happy to do it again, because they were making a

22     resource claim.  So I'm more than happy to buy it for them if they need

23     it.

24             JUDGE MOLOTO:  I don't want to get into that.  Can you sort that

25     out?

Page 451

 1             MR. GUY-SMITH:  Sure.  I'll be more than happy to.

 2             JUDGE MOLOTO:  Thank you very much.  Can we leave that item on

 3     that basis, that you'll continue talking about it, and make a

 4     recommendation for purposes of the guidelines.

 5             Then the next item was supposed to be protected witness issues.

 6     I'm not quite sure who raised it.

 7             Yes, Mr. Lukic.

 8             MR. LUKIC: [Interpretation] Very briefly, Your Honour.

 9             In fact, I'm interested in the position of this Trial Chamber, in

10     view of my prior experience before other Trial Chambers regarding

11     protective measures.  I would like to say a few words in principle in

12     public session, and then move into private session.

13             Before one of the Trial Chambers where I worked, every time

14     before the entry of the witness who had been granted protective measures

15     previously, the Trial Chamber considered anew whether there were any

16     reasons to apply them again, and the party who had called the witness had

17     to explain to the Trial Chamber whether they still wanted them applied

18     and to explain why.  The other party had to present its arguments as

19     well.  Before another Trial Chamber, that had not been the case.

20             Now I would like to move into private session to present further

21     arguments that had been in use.

22             JUDGE MOLOTO:  May the Chamber please move into private session.

23                           [Private session]

24   (redacted)

25   (redacted)

Page 452











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18   (redacted)

19   (redacted)

20                           [Open session]

21             THE REGISTRAR:  Your Honours, we're back in open session.

22             JUDGE MOLOTO:  Thank you so much.

23             MR. GUY-SMITH:  With regard to the next matter that's on the

24     list, I think the Chamber will be pleased to note the following, because

25     we can to it quickly:  There are a number of exhibits that have yet to be

Page 456

 1     decided that have been the subject of the Prosecution's sixth

 2     supplemental motion.  Mr. Saxon and I have had a conversation and a

 3     number of the exhibits may well come through the next witness, and we

 4     have agreed that, with the Court's indulgence, the appropriate way of

 5     dealing with those exhibits would have them marked for identification at

 6     this time and deal with their admission at a later point in time, because

 7     they are still subject to a pending motion that the Defence has not had

 8     an opportunity to respond to.  That is the beginning and end of that

 9     particular matter at this time.

10             JUDGE MOLOTO:  Thank you very much, Mr. Guy-Smith.

11             MR. GUY-SMITH:  Which brings us to the last issue, which is

12     the --

13             JUDGE MOLOTO:  Corrections to Mr. Harmon's opening statement.

14             MR. GUY-SMITH:  Fine, yes.  I'm sorry.  That's right.  That's the

15     next in order.  I do apologise.

16             MR. SAXON:  Your Honour, Mr. Harmon asked me to bring something

17     to the Trial Chamber's attention.

18             Yesterday, during Mr. Harmon's opening statement, at pages 13,

19     29, and 45 of the transcript, Mr. Harmon referred to the "Bosnian Croat

20     army."  What Mr. Harmon meant to say and should have said was the "Army

21     of the Serbian Krajina" or "SVK."

22             Thank you, Your Honours.

23             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

24             MR. GUY-SMITH:  Yes.  I take it that brings us to the last issue

25     that we had suggested, Your Honour, which is that with regard to the

Page 457

 1     issue of, as I characterised it, and perhaps it's a bit bold, enforcement

 2     of prior rulings.

 3             The issue here is really very simple; and, once again, I

 4     understand that because of some of the things that have happened

 5     previously, there has been a scramble on the part of the Prosecution to

 6     present witnesses.

 7             The witness who we anticipate is the first witness for the

 8     Prosecution is a gentleman whose name is Mr. van Lynden.  As I understand

 9     it, Mr. van Lynden's testimony will revolve around what are termed as

10     "unscheduled incidents."  Unscheduled incidents are the subject matter of

11     a decision by this Chamber on the 15th of May, 2007, and specifically the

12     holding was as follows - so I'm assuming it's the law of this case - I'm

13     referring now to the order of paragraph 3 of page 9 of the 15 May 2007

14     decision:

15             "The Prosecution shall not present evidence in respect of any

16     unscheduled incidents in relation to the Sarajevo counts unless it is

17     able to demonstrate that evidence of certain identified unscheduled

18     incidents in relation to the Sarajevo counts is essential to prove an

19     important aspect of this case.  In such case, the Prosecution may file a

20     motion requesting the leave of the Trial Chamber to lead testimony on

21     unscheduled incidents relating to Sarajevo counts at least four weeks in

22     advance of the scheduled testimony, providing reasons for its request.

23     The Defence shall have an opportunity to respond to such a motion."

24             In the body of the decision, in the rationale, the discussion,

25     this Chamber gave an example on paragraph 17 of where it could lead

Page 458

 1     evidence on an unscheduled incident, and that's at the very end, the last

 2     or almost the last -- I think it's the second to last sentence, where the

 3     Chamber said, and I quote:

 4              "It may, however, lead evidence on unscheduled incidents if it

 5     can show that such evidence is essential to prove an important aspect of

 6     this case."  That's what it says in the order, and then there's an

 7     example given.  "(For example, if an unscheduled incident is necessary to

 8     link the accused to the crimes charged)."

 9             Now, I am not sure of what is the purpose of Mr. van Lynden's

10     testimony, since his testimony does revolve around unscheduled incidents,

11     and it is clearly -- the presentation is clearly in violation of this

12     particular order.  And, once again, I understand the difficulties that

13     the Prosecution has had, and we have not received in any sense

14     whatsoever, whether it be four weeks before or one day before, the basis

15     upon which they are presenting this testimony which deals with the issue

16     of relevance.

17             I thought it would be appropriate to raise this before he

18     testified than to pop up the minute he got on the stand and say,

19     "Objection, relevance, and this is the reason why we're making this

20     objection at this time."  Perhaps the Prosecution has a position that

21     they can take in which they can convince the Chamber of the relevance of

22     his testimony, and the timing issue is a different issue whatsoever.  But

23     since the order says it, I'm raising it, I read it, I'm trying to follow

24     the Rules.  That's what the Chamber said.

25             JUDGE MOLOTO:  Mr. Guy-Smith, I understand that a preemptive

Page 459

 1     strike can be a very good means of defence.

 2             MR. GUY-SMITH:  I agree with you, but I wasn't meaning it that

 3     way.  I wasn't trying to -- I was actually trying to deal with it so that

 4     I wasn't fiddling with the time being used.

 5             JUDGE MOLOTO:  I still say a preemptive strike may be a good

 6     means of defence.

 7             May I suggest that we raise that defence at the appropriate time.

 8     The Chamber doesn't know, unless maybe the other Judges do, which witness

 9     is being called.

10             MR. GUY-SMITH:  Very well.

11             JUDGE MOLOTO:  Let alone what testimony he's going to give.  So

12     let's raise the objection and raise the decision of 2007 at the

13     appropriate time.

14             MR. GUY-SMITH:  Will do.

15             JUDGE MOLOTO:  Thank you very much.

16             Just one little point that I'd like to raise in terms of timing.

17     I know that there are different times of sitting in the different

18     Chambers here, but I was told when I got here, that we sit one hour 15

19     minutes, take a 30-minute break.  So we should have broken at a quarter

20     past.  We'll break now and we'll come back at a quarter to 11.00, and it

21     will be one hour 15 minutes, and 30-minute breaks all the time.

22             Court adjourned.

23                           --- Recess taken at 10.19 a.m.

24                           --- On resuming at 10.48 a.m.

25             JUDGE MOLOTO:  Mr. Saxon.

Page 460

 1             MR. SAXON:  Your Honours, at this time, the Prosecution would

 2     call Mr. Aernout Baron van Lynden as its first witness.

 3                           [The witness entered court]

 4             JUDGE MOLOTO:  Good morning, sir.

 5             THE WITNESS:  Good morning.

 6             JUDGE MOLOTO:  May the witness please take the declaration.

 7             THE WITNESS:  I solemnly declare that I will speak the truth, the

 8     whole truth, and nothing but the truth.

 9                           WITNESS:  CAREL DIEDERIC AERNOUT VAN LYNDEN

10             JUDGE MOLOTO:  Thank you very much.  You may be seated.

11             You may proceed, Mr. Saxon.

12             MR. SAXON:  Thank you, Your Honour.

13                           Examination by Mr. Saxon:

14        Q.   Sir, is your name Carel Diederic Aernout Baron van Lynden?

15        A.   It is.

16        Q.   Are you a citizen of the Netherlands?

17        A.   I am.

18        Q.   Did you ever serve in the Dutch Marines?

19        A.   I did, from 1976 until 1978.

20        Q.   And when you left the Dutch Marines in 1978, what rank did you

21     have at that time?

22        A.   Second lieutenant and later promoted to first lieutenant in the

23     reserve.  This was part of my national service.

24        Q.   Okay.  And did you develop a particular -- a particular specialty

25     during your service in the Dutch Marines?

Page 461

 1        A.   I was trained as a platoon infantry commander and was trained as

 2     a mortary -- mortar platoon commander.

 3        Q.   Okay.  Mr. van Lynden, after you left the marines in 1978, what

 4     profession did you follow?

 5        A.   I became a journalist specialising in war zones.

 6        Q.   And what conflicts, what wars, did you cover?

 7        A.   I covered the wars in the Middle East, specifically Lebanon.  I

 8     lived in Beirut from 1982 to 1986; I covered the Iraq-Iran conflict from

 9     1980 onwards; I covered the fighting in Afghanistan after the Soviet

10     occupation of Afghanistan during the 1980s; and I covered the Gulf War

11     from 1990 to 1991 from Saudi Arabia from the Allied side; and from 1991

12     onwards I covered the conflict in the former Yugoslavia.

13        Q.   And during those years as a war correspondent, were you working

14     for newspapers or television or both?

15        A.   I began as a newspaper correspondent, initially working for the

16     Haagse Courant, the newspaper of The Hague.  Later, I became a contract

17     freelancer working for the Washington Post, BBC Radio, and The Observer

18     newspaper in Britain; and in the late 1980s, I switched to working for

19     television, for SkyNews.  I worked for them full time, and worked for

20     them until 2001.

21        Q.   Mr. van Lynden, before I forget, you and I speak the same

22     language and we need to be sensitive to the interpreters who are working

23     very hard for us in the booths.  So can we make a deal that both of us

24     will try to speak slowly and clearly; and, also, if both of us can try to

25     pause briefly between question and answer, so that the interpreters can

Page 462

 1     have a moment to catch up with us.

 2             Mr. van Lynden, what kind of channel or network was SkyNews?

 3        A.   It was a 24-hour news channel broadcast by satellite right across

 4     Europe.

 5        Q.   And -- all right.  And you mentioned that you, beginning in 1991,

 6     you began to cover the conflict in the former Yugoslavia.  In 1991, what

 7     part of the conflict did you cover?

 8        A.   First, Slovenia in June of 1991 until mid-July 1991; then, after

 9     a few days' break, I was spent to Belgrade; and I covered the entire

10     conflict between Serbia and Croatia from the Serbian side during 1991.

11        Q.   And during that time, did you actually go physically to parts of

12     Croatia?

13        A.   I did.  I went first to Banja and Krajina; later to Eastern and

14     Western Slavonia; and later on, in the autumn, I visited the front, south

15     of Dubrovnik.

16        Q.   Did you ever visit a town called Vukovar?

17        A.   Regularly.  It's somewhere relatively close to Belgrade, which

18     was our base; and we went there from -- in September, October, and

19     November 1991.

20        Q.   And did you then make news reports for SkyNews about the events

21     that you observed at the time?

22        A.   Yes, I did.  That was the purpose, why I was there.

23        Q.   And can you explain briefly, how were your news reports sent to

24     SkyNews at the time, and then to other networks.  How were they

25     disseminated?

Page 463

 1        A.   Television news reports are usually sent by satellite.  In 1991,

 2     we worked -- we actually had an office in Belgrade Television, and the

 3     reports were sent from there by satellite to our headquarters in London.

 4     What SkyNews in London did with the reports depended on the report

 5     itself, but there were certainly moments when Sky gave specifically the

 6     pictures to American networks or to one of the two television news

 7     agencies in the world, Reuters Television or APTN; usually, Reuters

 8     rather than APTN.  But many of my reports I am aware of were being sent

 9     through to the three American networks, ABC, CBS and NBC; not to CNN

10     because that was considered a competitor.

11        Q.   Mr. van Lynden, do you know whether people in Belgrade were able

12     to watch SkyNews reports on their televisions?

13        A.   They were.  Under an agreement signed between SkyNews and

14     Yugoslav Television in 1989, there was an agreement by my office that

15     they could rebroadcast SkyNews.  This was specifically an agreement

16     because they set up something called the third channel in Belgrade; and

17     for, as I remember, 12 hours a day SkyNews was rebroadcast on that

18     channel.  Quite apart from that, many Yugoslavs right across Yugoslavia

19     had dishes and could receive SkyNews on those dishes.

20        Q.   And just so the record is clear, when you refer to "dishes," what

21     kind of dishes do you mean?

22        A.   I mean satellite-receiving dishes.

23        Q.   Thank you.  Did there come a time when the SkyNews broadcasts on

24     that third channel in Belgrade ended?

25        A.   Yes.  In 1992, I'm not aware or I do not remember the precise

Page 464

 1     moment; but in 1992, it was taken off the third channel, yes.

 2        Q.   Do you know why?

 3        A.   I didn't see the actual document, but --

 4             MR. GUY-SMITH:  Excuse me.

 5             JUDGE MOLOTO:  Mr. Guy-Smith.

 6             MR. GUY-SMITH:  I'm going to object at this time unless the

 7     witness is testifying about something of his own personal knowledge.

 8             JUDGE MOLOTO:  Mr. Saxon.

 9             MR. SAXON:  Well, perhaps the witness can explain what his

10     knowledge is, Your Honour.  He hasn't had a chance to provide his answer.

11        Q.   Do you know personally?

12        A.   We were told by our sources within the Serb government that there

13     was --

14             MR. GUY-SMITH:  Then I'm going to object on the grounds of -- at

15     this point, on the grounds of hearsay, not because it's mere hearsay, but

16     rather because it's unattributed hearsay.  To say "sources from the Serb

17     government" could be any one of a number of different people or

18     individuals or documents.  Unattributed hearsay is something that should

19     not be considered by the Chamber, as opposed to, obviously, as we know,

20     hearsay which can be considered.  This is a situation in which there is

21     no authorship, there's no way of making a determination of where the

22     information came from, and for that reason I would interpose the

23     objection.

24             MR. SAXON:  May I have one more question, Your Honour, to see if

25     the witness can identify the source or sources?

Page 465

 1             JUDGE MOLOTO:  Do you withdraw the question that is being

 2     objected against for the moment?

 3             MR. SAXON:  I wasn't planning on withdrawing the question, Your

 4     Honour.  I was simply seeing if the witness could identify the source, so

 5     it would not be unattributed hearsay.

 6             JUDGE MOLOTO:  The Chamber would have to rule on the objection at

 7     this time; so if you don't withdrew it, then the Chamber must rule.

 8             MR. SAXON:  Then I will withdraw that question at this time, Your

 9     Honour.

10             JUDGE MOLOTO:  Thank you very much.  You may then ask the

11     question you wanted to ask.

12             MR. SAXON:

13        Q.   Are you able to identify your source for this information?

14        A.   Not by name.

15        Q.   Okay.  Mr. van Lynden, at some point, did you begin to report

16     about the events in the city of Sarajevo?

17        A.   Yes, in May 1992.

18        Q.   Can you briefly, for the Chamber, describe the topography of the

19     city of Sarajevo.

20        A.   Sarajevo is a city that lies by the riverbed of the River

21     Miljacka and runs really from east to west, with hills and mountains

22     overlooking the city to the north and to the south.

23        Q.   Okay.

24        A.   It's a long elongated city running along the riverbed.

25        Q.   Okay.

Page 466

 1             MR. SAXON:  Your Honours, at this time, with leave of the

 2     Chamber, I would like to show the witness one or two images from the

 3     Prosecution's court binder, which I hope that you have.  This would be,

 4     Your Honours, map number 10 in your court binders.  The ERN number

 5     is 0424-9162.

 6             And, Your Honours, this map -- permission has not been granted to

 7     the Prosecution to place this particular image on its Rule 65 -- Rule 65

 8     ter exhibit list.  This map is part of a pending motion which

 9     Mr. Guy-Smith alluded to.

10             So, with your leave, at this time, I will ask the witness some

11     questions about it, I will ask him to mark some landmarks, and then I

12     will seek at this point only to mark for identification the image.

13             JUDGE MOLOTO:  I guess Mr. Guy-Smith said this morning that that

14     can be done?

15             MR. GUY-SMITH:  Yes, Your Honour, that's correct.  That's the

16     agreement that we worked out, with leave of the Court.

17             JUDGE MOLOTO:  Thank you very much.  The leave of the Court is

18     granted.

19             You may proceed, Mr. Saxon.

20             MR. SAXON:  Thank you, Your Honour.  We're waiting for the image

21     to come up in e-court.

22             JUDGE MOLOTO:  You want the image to come up here.

23             I'm advised that the court officer is having difficulty with this

24     thing.  Is it possible to use hard copies until the technician has sorted

25     out the problem?

Page 467

 1             MR. SAXON:  Absolutely, Your Honour.

 2             JUDGE MOLOTO:  And does the witness have a hard copy before him

 3     at this time?

 4             MR. SAXON:  Not at the moment, but we'll give him one, with the

 5     assistance of the usher, right now, Your Honour.

 6             JUDGE MOLOTO:  Thank you very much.

 7             MR. SAXON:  We have extra copies.

 8             JUDGE MOLOTO:  Do the Defence have a copy?

 9             MR. SAXON:  Yes.

10             MR. GUY-SMITH:  We do.

11             JUDGE MOLOTO:  Thank you.

12             MR. SAXON:

13        Q.   So, Mr. van Lynden, you should have a satellite image of the city

14     of Sarajevo in front of you.  Do you recognise it?

15        A.   Yes, I do.

16        Q.   Okay.  And for the -- for the orientation of the Judges, first of

17     all, we see the city elongated in this valley floor and we see what

18     appears to be a road running through the centre of the city.

19             Do you see that?

20        A.   Yes.

21        Q.   Can you tell us what that road is, or was?

22        A.   The main road through Sarajevo.

23             MR. SAXON:  I'm wondering, with the usher's assistance, could

24     Mr. van Lynden's map be placed on the ELMO, and then he could view it on

25     the monitor.

Page 468

 1        Q.   Do you see this same map now on the screen in front of you,

 2     Mr. van Lynden?

 3        A.   I do.

 4        Q.   Mr. van Lynden, on the monitor to your right, there is a pen

 5     attached to it.  Maybe with the usher's assistance, there's a marker,

 6     could you --

 7             MR. SAXON:  One moment, please, Your Honour.

 8             JUDGE MOLOTO:  You have a moment.

 9             MR. SAXON:  If a pen or a marker could be given to --

10             THE WITNESS:  There is a pen here.

11             MR. SAXON:  But we may need some better pens.

12        Q.   I know this may be uncomfortable, but I'm going to ask you to

13     lean over a little bit towards that ELMO, and perhaps if you could draw a

14     line up that main street.

15        A.   [Marks]

16        Q.   And if you could stop right there and just place a number 1 by

17     that green line to indicate that street.

18        A.   [Marks]

19        Q.   At the other end of the street where you stopped the green

20     line --

21        A.   Mm-hm.

22        Q.   -- do you recall the name of that part of Sarajevo, Mr. van

23     Lynden?

24        A.   It was called Stari Grad, the old city.

25        Q.   Okay.  And could you place a 2, then, besides Stari Grad.

Page 469

 1        A.   [Marks]

 2        Q.   Thank you.

 3             JUDGE MOLOTO:  Is there a way we can make Mr. van Lynden's life a

 4     little more comfortable?

 5             THE WITNESS:  It's okay, Your Honour.

 6             MR. GUY-SMITH:  I'll give you a chair.

 7             JUDGE MOLOTO:  If we can give you a second chair.

 8             MR. SAXON:  Perhaps if the microphone could be pushed a little

 9     bit more towards Mr. van Lynden's left.

10             MR. GUY-SMITH:  You can switch between the chairs.  That works

11     for me.

12             THE WITNESS:  Thanks.

13             MR. SAXON:

14        Q.   Mr. van Lynden, do you see --

15             JUDGE MOLOTO:  I'm sorry, Mr. Saxon, to interrupt you once again.

16     We are now being advised that we can work from e-court.

17             MR. SAXON:  Very well, Your Honours.

18             THE WITNESS:  Shall I switch back?

19             JUDGE MOLOTO:  We will come back to e-court, Mr. van Lynden, and

20     you will be more comfortable.

21             THE WITNESS:  If you could explain what e-court is.

22             JUDGE MOLOTO:  You'll see it now on the monitor and you can write

23     on the monitor itself.

24             THE WITNESS:  On here?

25             JUDGE MOLOTO:  Yes.  But they will give you a special pen for

Page 470

 1     that.

 2             Does Mr. van Lynden have a pen for the monitor?  Excellent.

 3             MR. SAXON:  Your Honours, I'm very grateful to Ms. Taseva and her

 4     court usher for their patience as well.

 5             JUDGE MOLOTO:  Thank you very much, Mr. Saxon.

 6             MR. SAXON:  Yes.  All right.

 7        Q.   If you could draw the number 1 there.

 8        A.   [Marks]

 9        Q.   The 2 is there by Stari Grad.  Do you see an airport on this

10     image?

11             JUDGE MOLOTO:  I'm sorry, Mr. Saxon.  I don't know whether this

12     is a disputed issue?  It is not a disputed issue.

13             MR. SAXON:  I don't believe so, Your Honour.

14             JUDGE MOLOTO:  Okay.  Carry on.

15             MR. SAXON:  I don't believe so.

16        Q.   Are you able to identify an airport on this image?

17        A.   Yes, I am.

18        Q.   Can you mark the number 3 by the airport?

19        A.   [Marks]

20        Q.   Are you able to identify a part of Sarajevo known as Dobrinja?

21        A.   I am.

22        Q.   Could you circle that and put the number 4 by it.

23        A.   [Marks]

24        Q.   And to the upper left from Dobrinja, are you able to identify

25     that neighbourhood?

Page 471

 1        A.   Yes.  This is the neighbourhood of Alipasino Polje.

 2        Q.   Could you circle that, please, and put the number 5 there.

 3        A.   [Marks]

 4        Q.   Thank you very much.  I don't know if it's possible or not.  Are

 5     you able to indicate the general location of the neighbourhood known as

 6     Grbavica?

 7        A.   Only fairly roughly.

 8        Q.   Okay.

 9        A.   But it would be here.

10        Q.   Okay.  And, finally --

11        A.   Do you want me to put a 6 in that?

12        Q.   Yes, please.

13        A.   [Marks].

14        Q.   Okay.  Before we move on, going back to that number 1, that long

15     red line --

16        A.   Mm-hm.

17        Q.   -- can you briefly tell us again, what does that red line

18     represent?

19        A.   That's the main road running west to east, or east to west,

20     whichever you wish to see it, through Sarajevo.

21        Q.   Okay.  And, Mr. van Lynden, are you familiar with an area known

22     as Zuc?

23        A.   Yes.  I went there once in December 1992 with the Bosnian army.

24        Q.   Are you able to identify that area on this image?

25        A.   Again, this would be pretty rough, but ...

Page 472

 1        Q.   Okay.  And if you could place a 7 there.

 2        A.   Yeah.

 3        Q.   Thank you.  Mr. van Lynden, before we leave this image, I'd like

 4     to direct your attention to the higher ground in the upper right-hand

 5     corner of the image.

 6        A.   Mm-hm.

 7        Q.   Does this image depict all of the high ground in that area?

 8        A.   No, not to my knowledge.  The terrain went further up and --

 9     sorry.  It became mountainous, and what was possible from the southern

10     slopes is that one could look right down into Sarajevo and right down

11     various streets in Sarajevo, and this image doesn't completely give that.

12        Q.   Okay.  In May 1992, which forces held that high ground that you

13     see in the upper right-hand corner of the image?

14        A.   The Bosnian Serbs.

15        Q.   And, again, in May 1992, can you indicate which forces held the

16     remaining high ground above and around the city of Sarajevo?

17        A.   Do you want me to draw a line of the front lines?

18        Q.   Only if you feel you're able to do that.

19        A.   Your Honours, this is fairly rough because this is a very -- on a

20     very wide scale.  The area numbered 6, or the area of Grbavica, was under

21     Serb control.  It may have been somewhat larger than this, and their

22     control went wider than that.  The precise front lines here I don't know

23     and I didn't know at the time precisely, but it would go here.  On this

24     section is the Lukavica barracks, which was held by the Bosnian Serbs

25     throughout the war.

Page 473

 1        Q.   Can you draw, please, the number 8 next to that circle.

 2        A.   Yeah.  And part of Dobrinja, which I've marked with the number 4,

 3     was also in Serb hands.  There was a front line running through there.

 4     When I first went to Sarajevo in May 1992, the area marked 3, the airport

 5     of Sarajevo, was also at that stage in Serb hands.  The UN forces had not

 6     yet come, as they would later do, to take control of it in July 1992.

 7             And an area here, this bit between 4 and 5, or just to the west,

 8     was an area called Nedzarici, which was in Serb hands as well.  So this

 9     was it.

10             Now, here, the precise front lines to -- in the western section

11     at the top right-hand side, I'm not precisely aware of, Mr. Saxon.

12        Q.   Okay.

13        A.   Let me see.  so this is -- I'm marking the map now as it would

14     have been in -- roughly in May 1992.

15        Q.   Okay.

16             JUDGE MOLOTO:  And what is it you're marking there?

17             THE WITNESS:  The front line.

18             JUDGE MOLOTO:  Is that a front line, too?

19             THE WITNESS:  Where I am right now.  But, as I said, Your

20     Honours, this is very rough.

21             MR. SAXON:

22        Q.   Okay.  Mr. van Lynden, you drew a line from the circle 6 to

23     circle 4.  That indicates whose positions?

24        A.   Yeah, that was the Serbs -- the one part within the city of

25     Sarajevo controlled by the Serbs was the area known as Grbavica.  The

Page 474

 1     area next to that was Hrasno which, as far as I'm aware, was mostly to

 2     the west.  The area was called Hrasno and on the other side was

 3     Skenderija, and they were in Bosnian hands.

 4             Where precisely the front line in the hills was, I can't

 5     precisely say.

 6        Q.   Are you able to identify the area known as Nedzarici?

 7        A.   Yes.  I can mark that with a 9.

 8        Q.   Thank you very much.

 9             MR. SAXON:  Your Honours, at this time, I would ask that this

10     image be marked for identification.

11             JUDGE MOLOTO:  This image is marked for identification.  May it

12     please be given a number.

13             THE REGISTRAR:  That will be Exhibit P1, marked for

14     identification, Your Honours.

15             JUDGE MOLOTO:  Thank you very much.

16             MR. SAXON:

17        Q.   Mr. van Lynden, when you first arrived in Sarajevo in May 1992,

18     eventually did you set up your reporting or your filming base in a

19     particular spot?

20        A.   Yes.  We based ourselves on the top floor of the former military

21     hospital in the centre of Sarajevo.

22        Q.   And as a television journalist, what was interesting to you or

23     what was important to you about this former military hospital?  Why did

24     you set up your equipment there?

25        A.   It was important to us because it gave us -- it was a high

Page 475

 1     building, 12 or 13 storeys high, and it gave us a view from one balcony

 2     of the eastern part of the city and the old city of Sarajevo; on the

 3     other balcony, at the other side of the building of the newer, western

 4     half of the city; and right in front of us was the Bosnian parliament and

 5     the actual front lines between the Bosnians and the Serbs.  It made it

 6     possible for us to film when there was heavy shelling or fighting in or

 7     on to the city.

 8        Q.   And when you first went to that former military hospital and

 9     decided to film from the upper floors, did you observe any Bosnian

10     military positions in or around the hospital, Bosnian Muslim positions,

11     Bosniak positions?

12        A.   No, we didn't, and we actually looked quite carefully.  The

13     hospital, when we arrived there in May 1992, had already been repeatedly

14     hit and very severely; also not just by machine-gun fire, but also by

15     heavier shell fire.  Therefore, we checked very carefully, or as

16     carefully as we could, to see whether it had been used --

17             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

18             MR. GUY-SMITH:  To the extent the witness at this point is

19     speaking in the plural as opposed to the singular, I would object.  With

20     regard to his own personal observations, I certainly have no objection.

21             Secondly, to the extent that he is referring to incidents or he's

22     making conclusions with regard to the condition of buildings or

23     conditions of anything else, at this point there's a lack of foundation

24     with regard to his ability to make such observations.  It's probably

25     something which is not critical, but I raise it.

Page 476

 1             JUDGE MOLOTO:  I'm not quite sure I understand what you're

 2     saying, Mr. Guy-Smith.  Are you saying that the witness is not able to

 3     observe with the naked eye the condition of buildings there and tell us

 4     how they looked at the time?

 5             MR. GUY-SMITH:  I'm more than -- I'm more than willing to take

 6     the position as the Court has suggested, that he can make an observation

 7     with the naked eye.  To the extent his -- he makes a conclusion as to

 8     what he saw, for example, that the buildings were -- had been repeatedly

 9     hit, not by machine-gun but also by heavier shell fire, to that extent

10     there is, at this point, no information before this Chamber with regard

11     to his knowledge in that regard.

12             I'm not suggesting he wouldn't be able to say the buildings were

13     destroyed, they were damaged, or something to that extent.  But with

14     regard to that particular kind of conclusion, that's where my objection

15     lies.

16             JUDGE MOLOTO:  Your objection is clearer this time.

17             Yes, Mr. Saxon.

18             MR. SAXON:

19        Q.   Mr. van Lynden, then, perhaps if I could lay some foundation,

20     what in your background, knowledge, and experience allowed you to draw

21     some inferences from the damage that you saw?

22        A.   Well, I'd spent 13 years in war zones.  I lived in Beirut.  I

23     know the difference between what a machine-gun, even a heavy machine-gun

24     bullet, can do and what a shell can do to a building.  I should point out

25     that the apartment I lived in Beirut itself came under fire.  We lost all

Page 477

 1     our outer wall, which was made of glass, on several occasions.  I've seen

 2     a lot of buildings hit by various forms of artillery - rocket, mortar,

 3     and machine-gun fire.  I think I can distinguish between the various

 4     sorts, without claiming that I can immediately say what kind of

 5     millimetre shell would have been used.

 6        Q.   All right.  And, again, to respond to another objection of my

 7     learned friend, when you say that "we" were checking the hospital for

 8     indications of Bosnian military positions, who do you mean by "we"?

 9        A.   Yeah, I should apologise for this use of language, but we were a

10     television crew, three people working together, and, therefore, it's

11     those three people who checked together.  Maybe I should have made that

12     clearer in the statement that I made, but I will refer to myself only if

13     the Court prefers that.

14        Q.   And did you and your crew see any indications of -- that Bosnian

15     forces had used that hospital as a military position?

16             JUDGE MOLOTO:  Before you answer, what do you mean by "Bosnian

17     forces"?

18             MR. SAXON:  I meant the opposing forces to the Bosnian Serb

19     forces, Your Honour.

20             JUDGE MOLOTO:  Maybe if you call them by their name, then you'll

21     be on the wavelength with Mr. van Lynden and with us all.

22             MR. SAXON:  Thank you, Your Honour.

23        Q.   Did you or your colleagues observe any indication that that

24     hospital had been used as a position by the forces that were at that time

25     in opposition to the Bosnian Serb army?

Page 478

 1        A.   No, we didn't.  We, even on the first night we were there,

 2     checked on the roof itself - again, "we" is the two of us went out there,

 3     the cameraman and myself - and we looked for, for instance, spent

 4     cartridges or boxes that had contained ammunition.  We were wary of

 5     placing ourselves in a building that was a military target because it was

 6     also used for military purposes.  We came to the conclusion that it was

 7     not.  We asked a lot of people as well in Sarajevo and in the hospital

 8     whether it had been used by the Bosnian military, and we were told it

 9     wasn't.

10             And in all the period thereafter that we were based there, and we

11     were based there for months, we never saw this building or its direct

12     vicinity used by military forces of the Bosnian army or those others

13     opposing the Bosnian Serbs.

14             MR. SAXON:  If we could please show the witness now on e-court

15     what is 65 ter 9240.  It has ERN number --

16             JUDGE MOLOTO:  I'm not quite sure whether that image was saved,

17     or did those lines get wiped off?

18             MR. SAXON:  It was marked for identification, Your Honour.

19             JUDGE MOLOTO:  Okay.  So it's saved.

20             MR. SAXON:  Thank you, Your Honour.

21             And, Your Honour, this image is the next map in your court

22     binder.  Just turn the page.  You'll see it is a very wide panorama.

23             First, with Ms. Taseva's assistance, if we could zoom in towards

24     the left side in particular on this photograph.  Thank you.

25        Q.   Mr. van Lynden, are you able to see the former military hospital

Page 479

 1     on this image?

 2        A.   Yes.

 3        Q.   Can you take up that magic pen again, and can you put a circle

 4     around that military hospital.

 5        A.   [Marks]

 6        Q.   And the number 1, please.

 7        A.   [Marks]

 8             MR. SAXON:  And now if we could pan -- well, I've been told, I've

 9     been warned by my case manager that I should not try to move this image.

10     So I won't at this time.

11        Q.   Mr. van Lynden, while we have this image here, can you describe

12     what you would be able to see to the right of the military hospital?

13        A.   The right of the picture as we see it?

14        Q.   Yes.

15        A.   So, in this direction, it's towards new Sarajevo, towards the

16     airport, the western side of Sarajevo.

17        Q.   Okay.  Could you draw a number 2 by that arrow, please.

18        A.   Certainly.

19        Q.   And, again, to the right of the -- to the right of the former

20     military hospital, can you describe what your view was?

21        A.   Really, the heart of Sarajevo and the Stari Grad, the old city of

22     Sarajevo.

23        Q.   Okay.

24             MR. SAXON:  Your Honour, if this image --

25        Q.   Before we do that, staying with this image for the moment, what

Page 480

 1     could you see, then, in terms of the hills above and around Sarajevo?

 2     How was your view there?

 3        A.   From the top floor of the building, when I -- both -- let me just

 4     explain.  From both 2, the view to the west, and 3, the view to the east,

 5     we would be standing on a balcony, a fairly exposed position with some

 6     cover, but a fairly exposed position.  Right in front, the position

 7     looking to the south which was looking over the Bosnian parliament and

 8     the front lines, there were no more windows; they'd all been shot out in

 9     all the rooms.

10             And, again, this was a very exposed position, only a few hundred

11     metres from the actual front lines.  So we had to be very careful going

12     into those rooms.  It's not a room that you could just walk into for

13     obvious reasons.  But what we could see was the Bosnian parliament, as I

14     said, and then the hills to the south as they rose up, and the district

15     of Grbavica we could see very clearly from there.

16        Q.   Just for the record, the arrow pointing to number 3, that is the

17     view you had to the east of that hospital; correct?

18        A.   That's correct.

19             MR. SAXON:  Your Honour, if this image could be marked for

20     identification, please.

21             JUDGE MOLOTO:  The image is admitted into evidence, marked for

22     identification.  May it please be given an exhibit number.

23             THE REGISTRAR:  That will be Exhibit P2, marked for

24     identification, Your Honours.

25             JUDGE MOLOTO:  Thank you very much.

Page 481

 1             MR. SAXON:  And if we could now -- perhaps if we could move away

 2     from this image and call up the unmarked version of this 65 ter number,

 3     please, 9240.  And if we could move toward the right, if we could.

 4        Q.   Are you -- this, if I understand you, this image now depicts an

 5     area to the east of that former military hospital?

 6        A.   Yes.

 7        Q.   Are you able to tell us what part of the city we're looking at?

 8        A.   Stari Grad, the old city.

 9        Q.   And could you just mark with that pen again the area that you

10     would indicate as Stari Grad.

11        A.   [Marks]

12        Q.   Okay.

13             MR. SAXON:  And if this image could be marked for identification,

14     Your Honours.

15             JUDGE MOLOTO:  The image is marked for identification.  May it

16     please be given an exhibit number.

17             THE REGISTRAR:  That will be Exhibit P3, marked for

18     identification, Your Honours.

19             JUDGE MOLOTO:  Thank you.

20             MR. SAXON:  And, briefly, if the witness could be shown 65 ter

21     number 9241, this is the next image in your binder, Your Honours, image

22     number 12.  It's another panoramic photograph.  It's ERN number

23     0424-9164.  And if we could pan towards the right of this image.  Thank

24     you very much.

25        Q.   Mr. van Lynden, do you see the former military hospital in this

Page 482

 1     image?

 2        A.   Yes.

 3        Q.   Could you put a circle around it and the number 1, please.

 4        A.   [Marks]

 5        Q.   What does this image depict for us?

 6        A.   This is a picture taken from the south of, let's say, the

 7     business heart of Sarajevo, I suppose from the area known as Grbavica.

 8        Q.   And from that military hospital, the former military hospital

 9     marked as number 1, to the left we see two large dark-coloured buildings.

10     Do you know what those buildings were?

11        A.   They were called the UNIS towers.

12        Q.   Can you place a circle and the number 2 around those buildings,

13     please?

14        A.   They are these two buildings.  The other high rise is part of the

15     Bosnian parliament.

16        Q.   Can you place a number 3 next to that high rise part of the

17     Bosnian parliament?

18        A.   [Marks]

19        Q.   And so, just to move on, Mr. van Lynden, does this image then

20     show the area more to the west of that former military hospital?

21        A.   To the south and to the west, yes.

22        Q.   Okay.

23             MR. SAXON:  Your Honours, if this image could be marked for

24     identification, please.

25             JUDGE MOLOTO:  The image is marked for identification.  May it

Page 483

 1     please be given an exhibit number.

 2             THE REGISTRAR:  That will be Exhibit P4, marked for

 3     identification, Your Honours.

 4             JUDGE MOLOTO:  Thank you very much.

 5             MR. SAXON:

 6        Q.   Mr. van Lynden, how did you broadcast your reports from Sarajevo

 7     at that time, in late May 1992?

 8        A.   In a complicated manner.

 9        Q.   And could you try to explain that in summary form.

10             JUDGE MOLOTO:  And simpler terms.

11             THE WITNESS:  I will try to keep it simple, Your Honours.

12             At the time, SkyNews had sent its own dish with engineers,

13     satellite dish, into Bosnia, but the engineers and the dish were in Pale,

14     which was the headquarters of the Bosnian Serbs, together with the

15     editing equipment and the picture editor of the stories.  What was

16     required from us was that on a daily basis my cameraman, George Davies,

17     and myself would have to drive across the front lines of Sarajevo and

18     into the area of Ilidza where we would encounter our producer, hand over

19     the tapes.  Then he would drive through Ilidza, across Sarajevo airport,

20     past Lukavica, around to Pale.

21             There the story would be edited and then fed by satellite to

22     London.  We would then have to cross the lines again into Sarajevo.

23     There is a basic rule for war correspondents:  Don't cross lines.  In

24     Sarajevo, at that stage, we had to do it on a daily basis and it was

25     always dangerous.

Page 484

 1             MR. SAXON:

 2        Q.   Mr. van Lynden, how about after May, during the summer of 1992,

 3     how did you broadcast your reports?

 4        A.   In May and June, what I've just explained was how we did it.  We

 5     returned towards the end of June.  At this stage, the UN had moved into

 6     the airport, and we then brought with us into Sarajevo the satellite dish

 7     that I had earlier described as being in Pale, and then we no longer had

 8     to cross lines to feed our stories to London, to send our stories to

 9     London.

10        Q.   And so, as a reporter, for you and your team, what benefits did

11     this arrangement give you?

12        A.   The obvious one of not having to cross lines and be shot at every

13     time we had to get a story out.

14        Q.   And apart from that?

15        A.   Having your own satellite dish, if you work for television, meant

16     that we could do live reports; that is to say, the correspondent standing

17     in front of the camera answering questions asked in realtime by a

18     presenter in studio.  This was something we had not been able to do

19     before and we were then able to do in -- towards the end of June and July

20     and August of 1992.

21        Q.   And can you recall where in Sarajevo you positioned that SkyNews

22     satellite dish?

23        A.   It didn't actually belong to SkyNews.  It was hired, it was

24     rented for a period, and we put it into part of the Kosevo hospital

25     duplex, into a building that still under construction that had not been

Page 485

 1     finished, and where it was relatively safe and protected on three sides

 2     by concrete.

 3        Q.   Just so the record is clear, this is a different hospital from

 4     the former military hospital that we've discussed previously?

 5        A.   Absolutely.  The Kosevo hospital is the academic, the teaching

 6     hospital of Sarajevo.  The former military hospital, as its name implied,

 7     was the military hospital and has since changed its name.

 8        Q.   And did the SkyNews -- I shouldn't use that term.  Did this

 9     rented satellite dish remain in the Kosevo hospital throughout 1992?

10        A.   No, it did not.  It was moved out of Sarajevo when I was not

11     there, either at the end of August or at the beginning of September 1992.

12        Q.   And so, after that, by the beginning of September, then, how did

13     you broadcast your reports?

14        A.   In September, I worked out of Pale, the Bosnian Serb

15     headquarters, and there we were able to use Serb television facilities to

16     send our stories from Pale to Belgrade Television, and from there they

17     were satellited on to London.

18             In October, November, and December, when I was in Sarajevo, or at

19     least at the end of October 1992 until December 1992 I was in Sarajevo,

20     and then we sent the stories through the satellite dish brought into

21     Sarajevo by the European Broadcasting Union and set up at TV Sarajevo.

22        Q.   Okay.  Mr. van Lynden, what was the subject of your very first

23     SkyNews report from Sarajevo?

24        A.   As I recall, it was a story simply of what it looked like on the

25     streets of Sarajevo and of how people, the civilians, had to run when

Page 486

 1     they were crossing streets.

 2        Q.   And why did these people have to run when they were crossing

 3     streets?

 4        A.   Because they were --

 5             MR. GUY-SMITH:  I'm sorry.

 6             JUDGE MOLOTO:  Mr. Guy-Smith.

 7             MR. GUY-SMITH:  I think, at this point, we are beginning to

 8     approach what I was discussing previously.  This question calls for

 9     information which is outside of the indictment period and may well run

10     afoul of the Court's decision of 15 May.

11             JUDGE MOLOTO:  Mr. Saxon.

12             MR. SAXON:  Your Honour, with leave of the Chamber, I can

13     present, describe the relevance of this information to the events of this

14     case.

15             JUDGE MOLOTO:  My concern, Mr. Saxon, is that is this the time to

16     demonstrate the relevance or should it have been demonstrated at the time

17     the motion was made; and if it wasn't, what's the good cause, what's the

18     reason for that?

19             MR. SAXON:  Your Honour, the good cause was simply, in the

20     Prosecution's haste to prepare for this witness and get this witness

21     here, the Prosecution omitted attending to such a motion.

22             JUDGE MOLOTO:  Do you have any comments?

23             MR. GUY-SMITH:  I appreciate the dilemma the Prosecution may have

24     had in terms of getting witnesses here.  This was a subject that we dealt

25     with sometime before we began this trial.  The Prosecution's choice of

Page 487

 1     witnesses was entirely up to them.  I actually even made a suggestion of

 2     a witness who they had available that could have taken care of some of

 3     their difficulties.  That suggestion was rejected for whatever reason.

 4             Be that as it may, the fact of the matter is that as this

 5     particular witness sits here now and the information that the Prosecution

 6     is attempting to elicit from him, we have not had an opportunity to

 7     respond to any objections we may have to the asserted basis of relevance,

 8     which puts us in an uncomfortable position of having to either object to

 9     each and every question as they are propounded and answered or puts us in

10     a position of having some submission from the Prosecution with regard to

11     the relevance and allowing us some period of time to consider what their

12     position is and respond in an intelligent fashion so that the Chamber has

13     the benefit of our opinion based upon the preexisting order.

14             Now, I understand that we are clearly not in a four-week

15     situation just because of the manner in which we find ourselves; however,

16     we have no information whatsoever with regard to the issue of relevance.

17     I'd like to have that information so that I could respond.  We may take

18     the position that we don't disagree and it is relevant.  We may well have

19     objections to certain aspects of it.

20             JUDGE MOLOTO:  Do you have any objection to Mr. Saxon

21     demonstrating the relevance right now, which is what he's asking for?

22             MR. GUY-SMITH:  I have an objection to him demonstrating the

23     relevance in the presence of the witness.  In the absence of the witness,

24     I have no problem to him demonstrating the relevance.  How we will

25     respond to that and whether or not we will have the fullness of time to

Page 488

 1     respond to that is another issue.  I don't know whether, once he does

 2     that, whether or not I will be called upon to immediately respond to the

 3     issue of whether or not it's relevant or not.  I may request a bit of

 4     time.

 5             I understand, once again, that it's at the beginning of the trial

 6     and we're kind of pressed because of, as I said earlier, matters that are

 7     outside of anybody's control.  But the Prosecution chose to call this

 8     particular witness at this time, and I think at some level we at least

 9     need the ability to respond to it in some intelligent fashion.  I'm not

10     asking for a four -- I'm clearly not asking for a four-week period, but I

11     may need some period of time.

12             Then, again, he may convince me.  I just don't know.  But outside

13     of the presence of the witness, I would prefer because that's what would

14     have normally happened.

15             MR. SAXON:  I'm prepared to make that submission, Your Honour,

16     outside the presence of the witness.

17             JUDGE MOLOTO:  Okay.

18             Mr. van Lynden, will you please excuse us for some time?  We'll

19     call you when it's completed.

20             THE WITNESS:  Yes, Your Honour.

21             JUDGE MOLOTO:  Thank you very much.

22                           [The witness stands down]

23             MR. GUY-SMITH:  Indeed, before Mr. Saxon starts, the reason that

24     I flagged this issue a little bit earlier was an attempt to flag time, so

25     people could at least have some advanced warning of what the issue may

Page 489

 1     be.

 2             JUDGE MOLOTO:  Thank you.

 3             Mr. Saxon.

 4             MR. SAXON:  Your Honour, the relevance of this witness' evidence

 5     pertaining to the events pre-indictment period in 1992, the first half of

 6     1993, exists on several levels.

 7             First of all, the accused is charged with criminal responsibility

 8     for crimes against humanity that occurred in the city of Sarajevo, and

 9     the evidence from 1992 that this witness could provide is relevant to

10     show the widespread and systematic nature of the attacks on civilians and

11     civilian areas in the city of Sarajevo beginning in 1992 and continuing

12     through 1995.

13             Secondly, Your Honour, the relevance of this evidence is more

14     personal, if I can put it that way, directly personal to this accused.

15     This evidence will be relevant to the charges against Mr. Perisic

16     pursuant to Article 7.1 of the Statute, to show that Mr. Perisic was

17     aware of the substantial likelihood that the participation in the

18     provision of weapons, ammunition, and other material to the Army of

19     Republika Srpska would have a substantial contribution to the commission

20     of crimes in Sarajevo, as described in schedule A of the revised second

21     amended indictment.  So this evidence from 1992 is relevant to the amount

22     of information and notice that Mr. Perisic received vis-a-vis the mens

23     rea element of aiding and abetting.

24             Thirdly, Your Honour, the evidence from 1992 is relevant to the

25     allegations in the revised second amended indictment that pursuant to

Page 490

 1     Article 7.3 of the Statute, Mr. Perisic bears criminal responsibility for

 2     the crimes that occurred in Sarajevo and listed in schedule A.  This

 3     evidence is relevant to demonstrate that, given the information available

 4     to Mr. Perisic about the events occurring in Sarajevo, that Mr. Perisic

 5     knew or had reason to know that his subordinates in the Army of Republika

 6     Srpska were about to commit or had committed these crimes.

 7             And this is a matter in dispute, Your Honour.  The Defence, in

 8     their pre-trial brief, paragraph 135(u), state that the Defence contest

 9     the Prosecution assertion that Mr. Perisic was fully informed about the

10     events, alleged, including violations of international law that had

11     occurred in Bosnia and Herzegovina.

12             Your Honours, I would direct you to jurisprudence from the

13     Boskoski and Tarculovski case, case number IT-04-82-T, oral decision,

14     presiding Judge Parker, on the 2nd of July, 2007, page 2921 of the

15     transcript, where the Trial Chamber held that:  "Publication of

16     information about acts committed by the subordinates of a superior

17     accused during the pre-indictment period can give the superior, 1, notice

18     of the possibility and prospect of misconduct by his subordinates, and,

19     2, should subsequent allegations of misconduct occur during the

20     indictment period, give the superior additional reason to act on

21     information about the crimes that occurred."

22             So, on these three different levels, Your Honour - widespread and

23     systematic, mens rea of Article 7.1 responsibility, the mens rea of

24     Article 7.3 responsibility - the evidence of this witness from 1992, in

25     the Prosecution's submission, is highly relevant to these proceedings.

Page 491

 1             MR. GUY-SMITH:  I believe that the wisdom of the Court's previous

 2     ruling becomes self-evident in terms of giving the Defence an opportunity

 3     to respond.  It would not be responsible at all for me to respond to the

 4     arguments just made by Mr. Saxon concerning this very important issue in

 5     haste, and I will need some time to respond to those arguments, as they

 6     have been set forth.  This is not a situation in which I feel comfortable

 7     at all rapidly reposting.

 8             JUDGE MOLOTO:  The problem, Mr. Guy-Smith, is that this Trial

 9     Chamber has to make a ruling on this objection and this witness must

10     carry on with his evidence.

11             MR. GUY-SMITH:  Well, that's the reason why I raised the issue

12     before.

13             JUDGE MOLOTO:  I understand --

14             MR. GUY-SMITH:  The problem is at this point that there -- from

15     what I understand Mr. Saxon's argument to be, at first blush, it, in

16     fact, requires a re-examination of this Chamber's previous order.

17             JUDGE MOLOTO:  If I understand that previous order, it says that

18     the Prosecution or a party is not allowed to cover testimony outside the

19     indictment period unless it can demonstrate the relevance of that

20     testimony to the act and conduct of the accused.

21             MR. GUY-SMITH:  I'm in total agreement with Your Honour.

22             JUDGE MOLOTO:  That's right.

23             MR. GUY-SMITH:  Then it has a secondary part which is, and if

24     such a situation arises where the Prosecution chooses to do so, they have

25     to give advance notice so that the Defence can respond, and that's the

Page 492

 1     problem here.  Not that if they make a showing of relevance, that they're

 2     entitled, obviously, after the Chamber's determination, to adduce the

 3     evidence - I'm in total agreement with that - but, rather, that we need a

 4     chance to respond.

 5             I've seen what Mr. Saxon has said.  Perhaps it was not the best

 6     thing to tell him beforehand of what my concern was; but because I was

 7     concerned about breaking up the testimony of the witness, I figured it

 8     would be better to raise it beforehand, as soon as I realised that we

 9     were -- what kind of evidence we were dealing with and that this would be

10     the first witness called, than to raise it at a later point in time.

11             So I find myself -- I find myself in a bit of a dilemma.  I

12     understand the Court's concern, I understand what the Court wishes to do,

13     but I don't believe that I would be doing justice to Mr. Perisic at this

14     point if I shot from the hip on this particular issue.  What I would ask

15     for, if that is not unreasonable, is I would ask for some very short

16     period of time in order to respond; "short period of time" meaning at

17     least a day, at least a day.

18             JUDGE MOLOTO:  Are you asking for an adjournment?

19             MR. GUY-SMITH:  I am.  I think that's the most probably what I am

20     doing.  I think it's the most prudent thing to do and that's what I'm

21     doing, and I do apologise.

22                           [Trial Chamber confers]

23             JUDGE MOLOTO:  I see you're still on your feet, Mr. Guy-Smith.

24             MR. GUY-SMITH:  I'm trying to figure out whether there is an

25     interim solution, which is perhaps to the extent there is other evidence

Page 493

 1     to be led through this witness which does not cause the particular area

 2     of concern, we could at least proceed with that evidence so that we could

 3     meaningfully use the Court's time.  Then we would only have this one

 4     discrete area which now has been articulated by the Prosecution.  And if

 5     the Chamber is so inclined, we could have some time to respond.

 6             I'm trying to figure out how to use the time.  It may be another

 7     way of grabbing some more time.  I don't know if that works for Mr. Saxon

 8     or not at all.

 9             MR. SAXON:  Your Honour, in all frankness, the amount of evidence

10     that would not be touched by this issue would really only be a small

11     fraction of the remaining evidence of this witness.

12             JUDGE MOLOTO:  Mr. Guy-Smith, the view of the Chamber is that

13     this is really a very simple issue.  The question of whether or not there

14     was widespread attack on civilian population and whether the accused had

15     notice of it is part and parcel of proving the case, where you've got to

16     prove the element of whether the person had notice or didn't have notice.

17     It is a little difficult for the Trial Chamber to fathom how much of this

18     day you would need to be able to respond to this explanation.

19             MR. GUY-SMITH:  Well, I'm in the habit of not fighting with the

20     Chamber, and when a Chamber makes the kind of pronouncement that you've

21     just made, I am trying to figure out a way of retreating ever so slightly

22     yet still maintaining the position that I have with concern for my

23     client.

24             In that regard, what may well be a way of attending to the

25     immediate issue is for me to note the objection on the record, for

Page 494

 1     Mr. Saxon to proceed with his examination with an understanding that that

 2     aspect of the evidence, assuming that I have an argument against what he

 3     said, once I've had a chance to reflect during the break --

 4             JUDGE MOLOTO:  We are actually at break time.

 5             MR. GUY-SMITH:  -- during the break, and then if I have a further

 6     objection, I'll note the objection.  Then if the Chamber feels it

 7     appropriate to strike the testimony at a later point in time, they may;

 8     and if you feel it's appropriate to keep the testimony and consider it,

 9     you'll give it whatever weight you deem appropriate.  I'm trying to come

10     up with a solution.

11             JUDGE MOLOTO:  Thank you.  Thank you very much, Mr. Guy-Smith.

12     It is, indeed, the proper time for the break.  The Chamber will refrain

13     from making a ruling to allow you to be thinking about the matter during

14     the break, and when we come back at half past 12.00, we will take it from

15     there.

16             MR. GUY-SMITH:  Thank you.

17             JUDGE MOLOTO:  Court adjourned.  We'll come back at half past

18     12.00.

19                           --- Recess taken at 12.00 p.m.

20                           --- On resuming at 12.31 p.m.

21             JUDGE MOLOTO:  Mr. Guy-Smith, have you --

22             MR. GUY-SMITH:  Yes, I've had an opportunity to reflect.  I have

23     but a few comments and then I'll leave it in your capable hands.

24             Looking at the indictment, specifically paragraph 40, which

25     identifies a period for aiding and abetting between 1993 August and

Page 495

 1     November 1995, specifically with regard to Sarajevo, and addressing

 2     paragraph 45 in which the Prosecution has alleged, A, the crimes involved

 3     numerous individual criminal acts that were perpetrated over an extended

 4     period of time in the capital of Bosnia-Herzegovina; and, B, that crimes

 5     received widespread attention from the media, inter-governmental

 6     organisations, international negotiators, and non-governmental

 7     organisations, many of which base their reports on the first-hand

 8     accounts of the crimes, which refers back to the period that I'm

 9     referring to, between August of 1993 and November of 1995, and taking

10     into account this Chamber's pronouncement in the decision that I raised

11     before, paragraph 17, the Trial Chamber, and I quote:

12             "However, finds that the scheduled incidents, having regard to

13     all the relevant circumstances, including the crimes charged in the

14     amended indictment, their classification, nature, the places where they

15     are alleged to have been committed, their scale and victims of the crimes

16     are reasonably sufficient -- are reasonably and sufficiently

17     representative of the crimes charged."

18             Then the Chamber goes on into the rationale that I've discussed

19     beforehand.

20             I don't believe that the Prosecution is contending that between

21     August of 1993 and November of 1995 that there was no media attention in

22     Sarajevo upon which their need, as the Court has appointed out

23     appropriately, to prove notice would not be based.  And if notice, which

24     is, as I understood you right before the break, one of your concerns -

25     and I understand why it is and I don't disagree that that is one of the

Page 496

 1     things that they must prove - if notice is to be proved, then it should

 2     be proved during the indictment period considering that the Chamber

 3     already has dealt with the issues as to their extent and their scale.

 4             Apart from that, and I raise it because - I don't know if we'll

 5     ever get in the situation again; I hope that we don't - we have been

 6     placed in not necessarily an untenable position but certainly an

 7     unfortunate one procedurally by virtue of the Prosecution's failure to

 8     follow an order, an order which they actually acknowledged in a filing

 9     sometime after this Court's decision.  That was, I believe, when they

10     filed one of the requests for revised 65 ter list.

11             It is an awkward position to be in for the Defence and it creates

12     a difficulty for us; however, I will leave my remarks at that at this

13     time.

14             JUDGE MOLOTO:  Thank you very much, Mr. Guy-Smith.

15             I don't know whether you anything have to say, Mr. Saxon.

16             MR. SAXON:  No, Your Honour, not at this time.

17             JUDGE MOLOTO:  All right.  Let me suggest a way forward here

18     because I think time is of the essence; namely, that we will hear the

19     witness, and if at any other stage the Defence feels that the testimony

20     has to be expunged maybe for further reasons that you may have, then that

21     part of the testimony will be expunged at that time.

22             But I think since the witness is here, let's hear what he's got

23     to say, and get done with it.

24             MR. GUY-SMITH:  Thank you for your consideration.

25             JUDGE MOLOTO:  You're welcome.

Page 497

 1             You may call the witness in.

 2                           [The witness takes the stand]

 3             JUDGE MOLOTO:  Mr. van Lynden, let me just apologise on behalf of

 4     the Trial Chamber for getting you out of the court while you were

 5     testifying.  It's one of those procedural things that we try to avoid.

 6             Thank you so much.

 7             Yes, Mr. Saxon.

 8             MR. SAXON:  Thank you, Your Honour.

 9        Q.   Before you left the courtroom, Mr. van Lynden, I believe I asked

10     you, what was the subject of the first SkyNews report that you did in

11     Sarajevo.  Can you tell us what that was, please?

12        A.   Yes.  It was about what life on the streets of Sarajevo looked

13     like and it included shots of people running across streets, and they

14     were running across streets because they were afraid that they would be

15     shot at.

16        Q.   Okay.  And when you refer to "people running across streets," are

17     you referring to soldiers or civilians?

18        A.   These were civilians.

19        Q.   And when you refer to "people running across streets because they

20     were afraid that they would be shot at," these civilians, if you know,

21     which force or forces were the source of this shooting that induced this

22     fear?

23        A.   This was shooting that was coming from the southern hills

24     overlooking Sarajevo and was done by the Bosnian Serbs.

25        Q.   And why did you decide to do a report about -- or part of your

Page 498

 1     report about the persons running across the streets?

 2        A.   Because it was rather different to the way that most of us go

 3     about our business as civilians in the cities in which we live.  It

 4     marked Sarajevo as being a different city to others.  I should add that I

 5     lived in Beirut during four years of war there, a city divided by what

 6     was called the green line; and while there were areas close to that green

 7     line that were dangerous for anyone venturing there, it was not as if

 8     people in Beirut couldn't get on with their daily lives in most of the

 9     rest of the city.  They often could.

10             In Sarajevo, that was markedly different because of the terrain

11     of the city, because it was this elongated city sitting in the valley

12     bed, and that those who were firing on the city help positions higher and

13     could literally look down the streets of the city.

14        Q.   Thank you, Mr. van Lynden.

15             MR. SAXON:  Your Honours, at this time, I'd like to show a

16     portion of video material to Mr. van Lynden.  This video material was not

17     shot by Mr. van Lynden or his SkyNews team.  It was taken by a resident

18     of Sarajevo by the name of Zoran Lisic during September or October of

19     1992.  But Mr. van Lynden can speak to this video clip so I'd like to

20     show it, and then ask him some questions about it.

21             So we will begin this clip, and then we will -- this is from

22     65 ter number 3062 from 9 minutes to 9 minutes and 20 seconds, and we

23     will begin and then stop at 9 minutes 04.

24                           [Videotape played]

25             MR. SAXON:  Stop.

Page 499

 1        Q.   So, again, just to be clear, when you were present in Sarajevo in

 2     1992, did you personally observe persons running across intersections,

 3     such as the image we have at 9:05.2 on the screen in front of us?

 4        A.   Yes, I did.

 5             MR. SAXON:  And can we go forward, please.

 6                           [Videotape played]

 7             MR. SAXON:  Can we go back, though, to the last scene, please.  I

 8     didn't want to take that away, the last image that we had at 9:20.  Okay.

 9     We can stop there.

10        Q.   Mr. van Lynden, we see parked across that street a large blue

11     truck.  This is at 9:21 of the -- this video clip.  It seems to have some

12     material inside it.  Did you observe such large trucks parked in

13     intersections in 1992 in Sarajevo?

14        A.   There were trucks there with containers placed at intersections,

15     one on top of the other.  There were tarpaulins that were hung down

16     streets.  So, yes, the answer is yes, and I imagine this one was -- and

17     it looked like it was filled with earth.

18        Q.   And what was the purpose, if you know, of placing these large

19     trucks or containers across streets or intersections?

20        A.   To allow the civilians walking on foot, or actually those driving

21     by car, to cross those intersections more safely and to take them away

22     from the sight of those in the hills above the city.

23        Q.   How often did you observe such scenes of people running in

24     Sarajevo during your time there in 1992?

25        A.   On a daily basis, every single day.

Page 500

 1        Q.   And if I can ask, how do these scenes of people running depicted

 2     in this video clip compare to the scenes that you reported on in your

 3     first report of SkyNews?

 4        A.   They were fairly similar, the only difference being that in that

 5     first report, we also had an elderly man, a stooped elderly figure, as I

 6     remember, with a walking stick trying to go as quickly as he could, but

 7     he couldn't actually run.

 8        Q.   Mr. van Lynden, did you ever personally observe civilians who had

 9     been struck by gunfire from Bosnian Serb positions?

10        A.   Yes.  I never actually saw the it, the actual moment of impact

11     that they were hit, but we saw at various times people who had been

12     wounded or killed by such gunfire lying on the streets or lying on the

13     pavements.

14        Q.   And, again, when you refer to "people," are you referring to

15     civilians or military personnel?

16        A.   I'm referring to civilians.

17        Q.   Okay.

18             MR. SAXON:  Your Honours, at this time, I would seek to tender

19     this video clip from 9:00 to 9:21, from 3062.  The ERN number, do we have

20     that?

21             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

22             MR. GUY-SMITH:  Yes.  As I understood this, this was not a video

23     clip that was broadcast, but rather was a video clip upon which the

24     witness was indicating that it was representative of some other -- some

25     of the things that he saw.  To the extent that it is, one, an unscheduled

Page 501

 1     incident, two, outside of the indictment period, and, three, would not

 2     serve the ostensible period of notice, I would object to its admission.

 3             MR. SAXON:  Your Honours, the point is, regarding notice, the

 4     witness testified that he did, he produced a report for SkyNews quite

 5     similar to this report, and that is why this video clip is relevant to

 6     notice, Your Honour.

 7             MR. GUY-SMITH:  Well, if that be the case, then let's produce

 8     that.  let's produce that video with regard to the reason in which the

 9     Prosecution is seeking to introduce this particular evidence.  Now we're

10     one step removed in regard to an unscheduled incident.

11             MR. SAXON:  Your Honours, obviously, the best evidence rule

12     applies in this courtroom and in this Tribunal, and the Prosecution has

13     not been able to locate Mr. van Lynden's first report containing footage

14     similar to the footage you have just seen.  In the Prosecution's

15     submission, this, then, is the best evidence that we have available.

16             MR. GUY-SMITH:  Well, I mean, from an evidentiary standpoint,

17     there are two distinct issues here now.  This is not the best evidence of

18     a broadcast, which is what we are referring to here.  This gentleman has

19     a video clip which was broadcast.  This particular video clip, apart from

20     authentic ethnicity issues, and when it was taken which is at this point

21     kind of rough - we have a period of months - and a series of other issues

22     have not been addressed.

23             I, quite frankly, think that Mr. Saxon is using the best evidence

24     rule in kind of a curious way.  He is -- actually, what he's doing is

25     he's substituting a kind of evidence for the reality of a situation that

Page 502

 1     he's attempting to portray through this witness which is broadcast

 2     information, which is the important point I'm dealing with, broadcast

 3     information, not a condition that may have existed at a particular time

 4     but rather that that information served as, as he told us in the

 5     beginning for purpose of relevance, as a notice, and therein lies the

 6     problem.

 7             JUDGE MOLOTO:  Yes.  We are with your colleague, Mr. Saxon.  The

 8     problem is that if this particular video was not broadcast, how does it

 9     serve as notice to the accused?  Is it possible for you to keep searching

10     for the video that was taken by Mr. van Lynden and tender it at a later

11     stage?

12             MR. SAXON:  Certainly, it is possible, Your Honour, and we will

13     endeavour to do that.

14             JUDGE MOLOTO:  If you could.  For that reason, then, this video

15     will not be admitted.

16             MR. SAXON:  All right.  Thank you, Your Honours.

17             At this time, I would like to show the witness a series of video

18     footage that were produced by this witness and his crew in Sarajevo and

19     broadcast on SkyNews.  Just for the record, the series of video clips

20     that you'll see soon, Your Honours, all were previously admitted in the

21     trial of Slobodan Milosevic as part of Exhibit D192 and in the Galic

22     trial as part of Exhibit P/540.5.1.

23             One technical matter, Your Honour, before we show the first clip.

24     The clips have the B/C/S translation -- transcript, I should say, visible

25     underneath the video footage itself so that the accused can follow along

Page 503

 1     what is being said.  Everyone else, of course, can listen to the English.

 2     The question is whether the Chamber prefers that our colleagues in the

 3     B/C/S interpretation booth also read that B/C/S transcript as the video

 4     is playing so that will become part of the record of this trial as well.

 5             JUDGE MOLOTO:  We don't take the record in B/C/S, Mr. Saxon.

 6             MR. SAXON:  I meant in an audio sense, Your Honour.

 7             JUDGE MOLOTO:  In an audio sense.  Well, to the extent possible,

 8     I think if the interpreters in the B/C/S can interpret that, I'm not

 9     quite sure whether they are not going to be disturbing Mr. Perisic while

10     he's trying to read himself what is on the screen, and then he hears

11     people talking over his head and disturbing him.

12             MR. SAXON:  Very well, Your Honour.  That's fine.

13             JUDGE MOLOTO:  But whichever way is convenient.  I'm not sure

14     whether the Defence has any comment to make on the point.

15             MR. LUKIC: [Interpretation] I think Mr. Perisic will find it

16     easier to follow if he reads the text from the screen; and if there

17     accidentally occurs a discrepancy, that might cause a confusion.  So I

18     really don't think the interpreters need to read the subtitles.

19             JUDGE MOLOTO:  Thank you very much.

20             Then the B/C/S interpreters don't need to read.  Thank you so

21     much.

22             MR. SAXON:  Your Honours, this video clip, a SkyNews broadcast,

23     was filmed on the night of the 4th/5th of June, 1992.  This is

24     Prosecution 65 ter number 4347.  The entire length of this video footage

25     is 3 minutes, 35 seconds; however, we will only show 1 minute and 53

Page 504

 1     seconds.

 2        Q.   Mr. van Lynden, right at the very beginning of this clip, at

 3     00:00:4, can you explain what you see on the screen in front of you?

 4        A.   Yeah.  This -- this would have been put on in London at SkyNews.

 5     Every story that is run in a news broadcast has a slug, has a name.  The

 6     programme is the 2100 programme.  This would have been British

 7     summertime, the day was a Friday, and then the date that it was

 8     broadcast.

 9        Q.   So, when you say the date of the broadcast, what, then, should we

10     infer about the day or date when the footage was actually taken?

11        A.   Because, as I have explained to the Court, the procedure of

12     getting my footage back to London was a complicated one at this stage,

13     the footage that you are about to see was filmed the previous day or on

14     the morning of the 5th of June, 1992.

15        Q.   Thank you.

16             MR. SAXON:  If we can begin this clip, please, and stop at 19

17     seconds.

18                           [Videotape played]

19             THE REPORTER:  "Dusk in Sarajevo, amongst the city's ancient

20     minarets, the rockets fall, heralding another night of heavy shelling."

21             MR. SAXON:

22        Q.   Mr. van Lynden, if you can tell us, we see some smaller lights

23     going that are going across the screen here.  Are you able to tell us

24     what kind of fire we're seeing?

25        A.   What we're seeing here is machine-gun fire, probably of various

Page 505

 1     different calibres, and, quite possibly, including 20 and 30-millimetre

 2     anti-aircraft guns.

 3        Q.   For the record, whose voice do we hear on this clip?

 4        A.   This is my voice.

 5             MR. SAXON:  Can we stop there.

 6        Q.   Where was this fire coming from?

 7        A.   This fire was coming from, yeah, the Bosnian Serb-held positions

 8     south -- on the southern side of Sarajevo.

 9        Q.   On this evening, did you see any outgoing fire from within

10     Sarajevo towards the positions of the Bosnian Serb forces?

11        A.   From within Sarajevo, not.  There was fighting on the front lines

12     as well; and there, there would have been outgoing fire.  But I did not

13     see from any position within the city proper any outgoing fire, no.

14             MR. SAXON:  Can we continue, please.

15                           [Videotape played]

16             MR. SAXON:  Let's keep going, please.

17                           [Videotape played]

18             THE REPORTER:  "For the next six hours, there is no letup.

19     Eerily let up by flares, the city is hit from every side by practically

20     every imaginable projectile.  Long lines of heavy machine-gun fire

21     gliding across the roofs, exploding against their targets."

22             MR. SAXON:  Stop.

23        Q.   Stopping here at 1 minute, 14 seconds, we're seeing this fire

24     coming into the city of Sarajevo at night.  If you can tell us, based on

25     your experience and knowledge, machine-gun fire, rocket fire, is it, at

Page 506

 1     night, more accurate during the day, less accurate, or it doesn't make

 2     any difference?

 3        A.   For any observer observing the fire and, therefore, then telling

 4     the battery commander, for instance, within an artillery unit, I would

 5     say that it is more difficult.  My experience tells me it's more

 6     difficult, and those who are professionals in that work have told me that

 7     it is more difficult to direct that fire accurately at night than it is

 8     during the day.

 9             MR. SAXON:  Can we continue, please.

10                           [Videotape played]

11             THE REPORTER:  "Heavy shells slamming into buildings, within

12     seconds engulfing them in claims.  A mass of crazy sparks lighting the

13     brow of one hill from a quite-fire folly of mortar bombs.  This is a

14     scene of wholesale devastation of a city being obliterated while the

15     world watches but does nothing."

16             MR. SAXON:  Stop there, please.

17        Q.   Was that you we saw on the screen a couple seconds ago at around

18     1:45, 1:50?

19        A.   It was, yes.

20        Q.   You commented about -- made comments about wholesale devastation

21     and a city being obliterated.  Why did you believe that Sarajevo was

22     being obliterated?

23        A.   What we were witnessing - and this was for hours and this is only

24     a very small part of what was filmed - was a variety of shells, mortar

25     bombs, and, as I've already mentioned, different calibre machine-guns or

Page 507

 1     anti-aircraft fire, hitting the city but hitting it all over the place.

 2     It wasn't that it was just one particular spot that was being targeted,

 3     but these various projectiles were hitting right across the city.  It was

 4     of a nature that was very heavy, indeed, and we felt that the whole city

 5     was being targeted.  That was our impression.

 6        Q.   On the night this footage was made, did you observe any

 7     concentrated fire directed at a single target?

 8        A.   No, not really.  There were those moments, for instance, where

 9     what I describe as mortar bombs on the brow of one hill, when a number of

10     projectiles did hit one particular spot, or at least appeared to from the

11     distance we were at and looking and filming it.  But most of it was all

12     over the place and it seemed very random.

13        Q.   Mr. van Lynden, are you familiar with how professional armies use

14     artillery?

15        A.   I am, I think.  I'm not an artillery -- I was not an artillery

16     officer, but I was trained in the use of mortars; and during the Gulf

17     War, I spent quite a lot of time with both British and American artillery

18     units.  It was explained then by the officers commanding those units

19     precisely how such an artillery battery would function and what the

20     purpose of it was.

21             What we witnessed in early June 1992 in Sarajevo was, apart from

22     the bombardment of the Marsal Tito barracks, completely different from

23     what I had been told and what I'd seen earlier, which was that one

24     particular target would be taken and come under sustained fire.  There

25     would be one, two, or three rounds fired initially so that an observer

Page 508

 1     could say to the battery commander that the target had been actually hit,

 2     and then there would be sustained artillery fire on that target, with

 3     usually the purpose of the military being that such an artillery barrage

 4     would be followed up by some kind of move by infantry or armoured

 5     infantry or tanks into that area.

 6        Q.   Mr. van Lynden, what effect did this kind of shelling or

 7     machine-gun fire have on the inhabitants of Sarajevo?  What effect could

 8     you observe?

 9        A.   Fear.  People lived as much as they could in the basements of

10     their apartments or in bomb shelters, and people were made fearful

11     because they became aware that wherever they were -- may be living in the

12     city, they could be hit by either an artillery shell or a mortar bomb or

13     heavy machine-gun fire.

14             MR. SAXON:  Your Honour, at this time, I would seek to tender

15     into evidence this video footage along with the attached transcripts.

16             JUDGE MOLOTO:  The video footage is admitted into evidence.  May

17     it please be given an exhibit number.

18             THE REGISTRAR:  That will be Exhibit P5, Your Honours.

19             JUDGE MOLOTO:  Thank you very much.

20             MR. SAXON:  If we can leave this video footage for a moment, I

21     would like to show the witness what is Prosecution 65 ter number 4347.01,

22     which was footage shot on the night of the 5th and 6th of June, 1992, and

23     we will stop at 23 seconds.

24                           [Videotape played]

25             THE REPORTER:  "Just hours after the evacuation of the troops

Page 509

 1     from the Marsal Tito barracks, it becomes the night's prime target.  The

 2     shells land long."

 3             MR. SAXON:  We have lost sound.  Can we try it again, please?

 4                           [Videotape played]

 5             THE REPORTER:  "Just hours after the evacuation of the troops

 6     from the Marsal Tito barracks, it becomes the night's prime target.  The

 7     shells land long."

 8             MR. SAXON:  Okay.  Obviously, we have a technical problem.  Let's

 9     stop here at 23 seconds, point 4.

10        Q.   If you can explain to us, Mr. van Lynden, what were the Marsal

11     Tito barracks in Sarajevo, and where was it located?

12        A.   The Marsal Tito barracks were the main barracks of the JNA, the

13     Yugoslav Army, inside Sarajevo, a large complex predating the communist

14     regime in Yugoslavia and located just to the west of the former military

15     hospital, from which this is being filmed.  In the current picture, you

16     can see part of the Marsal Tito barracks in the bottom right-hand corner

17     of the screen.

18        Q.   And before this evening, the night of the 5th and 6th, who held

19     control over the JNA barracks, before that evening, the Marsal Tito

20     barracks?

21        A.   It was still in the hands of the JNA until an agreement was

22     reached that day for the evacuation of those troops out of the barracks

23     and out of Sarajevo.

24             MR. SAXON:  Can we continue, please.

25        Q.   And before we do, again, just for the record, whose voice do we

Page 510

 1     hear on this video clip?

 2        A.   It's mine.

 3             MR. SAXON:  Can we continue.

 4                           [Videotape played]

 5             THE REPORTER:  "Around Sarajevo's railway yard, but inside the

 6     vast army complex, those still looking for loot get the message and run.

 7     Not long after the gunners in the hills above the Bosnian capital find

 8     their range.  The barracks explodes in flames.  The barracks form the

 9     principal target, yet no district escapes.  Through the dark, the rockets

10     streak down, for a moment illuminating Sarajevo's ancient centre, before

11     reducing it to further rubble.  They come in ones, in twos, in threes,

12     and it sounds as if the city's crying.  At 3.00 in the morning, the

13     barracks are again bearing the full weight of attention ..."

14             MR. SAXON:  We're stopping now at 1 minute and 27 seconds, and we

15     see here the Marsal Tito barracks on fire.

16        Q.   Where was this shelling coming from, whose forces, Mr. van

17     Lynden?

18        A.   The Bosnian Serbs.

19        Q.   And was the kind of and the character of the shelling of the

20     Marsal Tito barracks on the night of the 5th to the 6th of June, 1992,

21     consistent with the other shelling of Sarajevo that you had observed by

22     that time, or not?

23        A.   No, this was different.  This was clearly sustained fire on one

24     target.  We were aware that the JNA, in withdrawing from the barracks,

25     had not been able to take all its equipment with them; and this was

Page 511

 1     clearly, in our analysis, an attempt on the part of the Bosnian Serbs to

 2     see to it that that equipment did not fall into the hands of their

 3     opponents.  It was sustained shelling of that target that night and the

 4     night that followed.

 5             MR. SAXON:  Can we continue, please, and we'll stop at 1 minute,

 6     37 seconds.

 7                           [Videotape played]

 8             THE REPORTER:  " ... of this vast but now deserted military

 9     complex aflame.  With light the people rarely come out to inspect the

10     damage, recover what ..."

11             MR. SAXON:

12        Q.   Mr. van Lynden, why did you film this particular scene?  This is

13     at 1:37.4.  We see people carrying what appears to be a bed out of a

14     store or out of a store area.

15        A.   Every day that we were there this in period, the heavy shelling

16     took place in the late afternoon and during the nighttime hours; and

17     during the day, we would drive around town to see how bad the damage was,

18     to try and find out, of course, also casualty figures, not only at the

19     hospital in which we were staying where it was relatively easy to figure

20     out, but also the Kosevo hospital and other hospitals, and to see the

21     damage and to see how people reacted to that.

22             This was a scene we had come across of a store where there had

23     clearly been damaged because of the shelling, and people were taking

24     things out of the store because the store was clearly no longer tenable.

25             MR. SAXON:  Can we move forward now to what will be 2 minutes and

Page 512

 1     18 seconds of this video.  Start from there, please.

 2                           [Videotape played]

 3             GANIC:  "...they're destroying the city and they're buying time

 4     by signing the agreements.  But we, you know, we did our best, we

 5     cooperate with UN, we belong to that family, and we hope the Security

 6     Council will act quickly."

 7             THE REPORTER:  "So does the small UN contingent here ..."

 8             MR. SAXON:  Can we stop, please.

 9        Q.   That last scene we saw a gentleman wearing a tie speaking from

10     about 2 minutes, 25 seconds, to 2 minutes and 30 seconds.  Who was that

11     man speaking?

12        A.   That was Ejub Ganic, the vice-president of Bosnia.

13        Q.   And when he referred to "they," they were destroying the city or

14     their buying time, who is the "they" that he was referring to?

15        A.   The Bosnian Serbs.

16             MR. SAXON:  Your Honours, at this time, I would seek to admit

17     this footage into evidence, please.

18             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

19             MR. GUY-SMITH:  Just a point of clarification, is it the

20     Prosecution's intent to introduce at this point int time only those

21     portions that were shown to the witness or the entire -- I'm seeing

22     nodding, so --

23             MR. SAXON:  Only those portions that were shown to the witness

24     and are now on the record.

25             MR. GUY-SMITH:  Okay.  Just so I'm clear about it.

Page 513

 1             JUDGE MOLOTO:  Thank you very much, then.  The video clip, 65 ter

 2     4347.01, is admitted into evidence.  May it please be given an exhibit

 3     number.

 4                      [The Trial Chamber and registrar confer].

 5             JUDGE MOLOTO:  The Registrar says that from this video clip, two

 6     portions were shown and the in-between portion was not shown.  Do you

 7     want two numbers or one number?

 8             MR. SAXON:  Two numbers, please, Your Honours.

 9             JUDGE MOLOTO:  Two numbers, please.

10             MR. SAXON:  And I should also should have said, Your Honour, that

11     these video portions should have -- also be admitted -- well, along with

12     these video portions, the transcripts of this video is 65 ter number

13     4348, in English and B/C/S.  If those could be admitted as well, Your

14     Honour, to form part of the record, the transcripts that you saw going

15     across the screen.

16             MR. GUY-SMITH:  I certainly have no objection to that

17     methodology.  I rose only for purposes of indicating to the Chamber that

18     rather than standing up with regard to each video clip that we are shown

19     which is of an unscheduled incident, we do have an continuing objection

20     based on the arguments made previously.  I just figured I'd do it one

21     time as opposed to jumping up for each video.

22             JUDGE MOLOTO:  Very well.

23             MR. SAXON:  I'm grateful.

24             JUDGE MOLOTO:  Then the video clip, together with the transcripts

25     that go with it, will be admitted into evidence.  I'm not quite sure, but

Page 514

 1     I guess the video clip with its own transcript will get one exhibit

 2     number?

 3             MR. SAXON:  Yes.

 4             THE REGISTRAR:  Your Honours, the video clips shown will be

 5     Exhibit P6 and Exhibit P7.

 6             JUDGE MOLOTO:  Thank you very much.

 7             MR. SAXON:

 8        Q.   Mr. van Lynden, I'd like to show you now a SkyNews broadcast and

 9     the -- you'll see this is 65 ter 4347.02.

10             MR. SAXON:  If you go to the beginning, please, and stop there.

11        Q.   You'll see it's -- on the SkyNews clock, it says "7 June 1992."

12     So would it be fair to say that the footage was then produced on the

13     6th of June?

14        A.   That is my understanding, yes.

15             MR. SAXON:  Can we begin, and then we'll stop at 35 seconds.

16                           [Videotape played]

17             THE REPORTER:  "It was the symbol of modern Sarajevo, now of its

18     destruction.  Flames tear across the floors and up into the higher

19     storeys, showering debris onto the streets of the heart of the Bosnian

20     captain, the disintegration of one of the city's UNIS towers reflected in

21     the broken windows ..."

22             MR. SAXON:

23        Q.   These UNIS towers, you had marked them on a map previously and

24     you refer to them as the symbol of modern Sarajevo.  What were they used

25     for at that time?

Page 515

 1        A.   They were office buildings.

 2        Q.   And where was the fire hitting the UNIS tower that was on fire

 3     coming from?

 4        A.   Again, from the Bosnian Serbs, southern part of Sarajevo.

 5        Q.   And was that your voice that we heard?

 6        A.   It was.

 7        Q.   Were you able to observe the kind or kinds of munitions that

 8     struck the UNIS tower that evening?

 9        A.   The building was already on fire when we arrived at the former

10     military hospital, and we had been in another part of Sarajevo during the

11     day.  As I recall, we came somewhere in the latish afternoon, 4.00 or

12     5.00 in the afternoon, and the building was already on fire.  So we did

13     not witness the beginning of the fire in the UNIS towers.  What we

14     witnessed and filmed after that was specifically machine-gun fire being

15     directed at the sort of lower part of the building.  But as far as I

16     recall, no large shell or any large projectile hit the UNIS towers after

17     we had arrived.  It simply burnt.

18        Q.   And on that day, the 6th of June, did you see any outgoing fire

19     from the UNIS towers or the area around the towers, fire directed towards

20     the positions held by the Bosnian Serb army?

21        A.   No, I did not.

22             MR. SAXON:  Can we continue, please, until 55 seconds.

23                           [Videotape played]

24             THE REPORTER:  "... of its twin.  Three-hundred metres on across

25     the road, the parliament of this newly independent state is also struck."

Page 516

 1             MR. SAXON:

 2        Q.   Well, we've stopped at 56.1, but at 55 we saw a flash and

 3     buildings were illuminated at that time.  What were those illuminated

 4     buildings?

 5        A.   That was the parliament building in Bosnia.

 6        Q.   And was the parliament building composed of one building or two?

 7        A.   Well, there's a lower building and then there's a tower block

 8     right next to it, and my understanding is that's all part of the same --

 9     that's all part of the parliament.

10             MR. SAXON:  Can we continue, please.

11                           [Videotape played]

12        Q.   That's fine.  Now we have a better view.  We see -- can you

13     describe what we're seeing here at 1 minute, 2 seconds, Mr. van Lynden?

14        A.   Yes.  On the right-hand side of the screen is the tall office

15     block of the parliamentary office complex, and then on the lower

16     left-hand side is the lower building that is also part of the parliament.

17        Q.   And this bright light was caused by what, if you know?

18        A.   Either a shell or a rocket --

19        Q.   Okay.

20        A.   -- hitting it.

21             MR. SAXON:  Can we continue, please, and stop at 1 minutes and 17

22     seconds.

23                           [Videotape played]

24             THE REPORTER:  "It doesn't burn, but the nearby Marsal Tito

25     barracks do.  Since its evacuation two days early, it's being

Page 517

 1     systematically destroyed."

 2             MR. SAXON:

 3        Q.   We just saw, the last few seconds, we see it now on the screen,

 4     it appears to be footage shot in daylight.  So can you explain, was the

 5     footage of the Marsal Tito barracks taken at the same time as the

 6     shelling of the UNIS tower and the parliament?

 7        A.   I mean we were continuously filming that late afternoon, evening,

 8     and night, but I think the sequence of events, as put together by the

 9     picture editor, was that he began with the first shots that the

10     cameraman, George Davis, took of the UNIS towers burning; and then he put

11     in two shots of the parliament being hit before moving on to the Marsal

12     Tito barracks.  That has to do with the way that I had, of course,

13     scripted the story.

14             It looks from these pictures as if we're slightly going from

15     daytime to nighttime and back to daytime again.  That's partly due to my

16     script and it's also partly due to the fact that I did not have direct

17     control over the editing as I was not in the same place as the editor who

18     was at that time in Pale.

19        Q.   Very well.

20             MR. SAXON:  Can we keep going as well.

21                           [Videotape played]

22             THE REPORTER:  "Every night in Sarajevo you think it can't get

23     worse, but it does making a mockery of the attempts of mediators to bring

24     peace to this city which is enfolded in war.  Less than 24 hours earlier,

25     the Serb commanders had put their signatures on yet another agreement,

Page 518

 1     affirming a truce never adhered to and their readiness to reopen the

 2     airport.  Now the Serb gunners in the hills show where their true

 3     commitment lies.  Under a sickle moon, the city rocks to the explosions,

 4     lit up by fire and the mass of glowing sparks adrift across its roofs.

 5     With daylight we find the intensive care wards of the city central

 6     hospitals packed with amputees in pain.  Some will live, but the doctors

 7     are resigned to this girl's death.  Not far from where she lies do others

 8     that have gone before; a place of haphazard death, some covered, some

 9     not, where maggots crawl the floors.  A little house of Bosnian horror.

10                 "Aernout van Lynden, SkyNews, Sarajevo."

11             MR. SAXON:

12        Q.   Where did you shoo this last footage where we see a number of

13     dead bodies?

14        A.   This in the morgue of the Kosevo hospital, the main academic

15     hospital in Sarajevo, And the earlier picture of those who were injured

16     was also shot at the Kosevo hospital.

17        Q.   And in the last seconds of this footage from 2:40 to 2:45, we saw

18     a young boy -- we saw someone who appeared to be a boy.  Do you know how

19     old this person was, this body?

20        A.   I believe he was eight or nine years old.

21        Q.   Do you know how he died?

22        A.   From shrapnel wounds, we were told.

23             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

24             MR. GUY-SMITH:  He was asked if he knew.  He's relying on

25     hearsay.  I don't know if it's attributed or unattributed hearsay.

Page 519

 1             THE WITNESS:  Your Honour, if I may.  I was in the morgue, I saw

 2     the boy, and I asked the man looking after the morgue how he had died.

 3             MR. GUY-SMITH:  Fine.  Does the man have a name?  Once again,

 4     it's unattributed hearsay.  I mean, this is a problem, and I -- I mean,

 5     the conclusions made about how he died is distinct from the issue of

 6     whether or not he was dead, to which I have no objection.

 7             This also calls for -- is a conclusion which is based upon a

 8     different form of expertise and certainly not one that this gentleman

 9     has; and if he has information which is given to him by somebody who

10     does, then, of course, I take a different position.

11             MR. SAXON:  Your Honours, the witness has testified from whom,

12     without giving a particular name, he received this information about the

13     death of this young man.  Yes, that is hearsay.  Having said that, Your

14     Honour, hearsay evidence is admitted here in this Tribunal, and the

15     Prosecution's submission is that the real question for the Chamber is not

16     the admissibility of this evidence but how much weight it should be given

17     at the end of this case.

18             JUDGE MOLOTO:  Mr. van Lynden, you say you don't know the name of

19     your source?

20             THE WITNESS:  I don't remember the name of the man looking after

21     the morgue at that time at the Kosevo hospital at that time, no, Your

22     Honour.

23             JUDGE MOLOTO:  Very well.  The evidence will be admitted and the

24     weight to be attached to it will be considered at the relevant time.

25             MR. SAXON:

Page 520

 1        Q.   Mr. van Lynden, you mentioned that this was the morgue at the

 2     Kosevo hospital.  Did you ever see injured civilians being brought into

 3     the former military hospital from where you filmed the shelling of the

 4     city of Sarajevo?

 5        A.   Yes, we did.

 6        Q.   How often?

 7        A.   Practically on a daily basis.

 8        Q.   And what kind of wounds did you observe on these civilians?

 9        A.   A variety of wounds.  We witnessed it, as well, at the casualty

10     department of the Kosevo hospital; shrapnel wounds, bullet wounds.  We

11     also saw people coming in who were simply ill.  But most of the

12     casualties that came in to the hospital in those late afternoon and

13     evening hours were people who had been wounded.

14        Q.   Thank you.

15             MR. SAXON:  And if we can just finish, go to the end of this

16     clip, please.

17                           [Videotape played]

18             MR. SAXON:  Thank you.

19             Your Honour, the Prosecution would seek to tender this video

20     material along with the English and B/C/S transcript, which is 65 ter

21     number ...

22             JUDGE MOLOTO:  4347.02.

23             MR. SAXON:  Yes, that's correct.

24             JUDGE MOLOTO:  That video clip is admitted into evidence.  May it

25     please be given an exhibit number.

Page 521

 1             THE REGISTRAR:  That will be Exhibit P8, Your Honours.

 2             JUDGE MOLOTO:  Thank you.

 3             MR. SAXON:

 4        Q.   Mr. van Lynden, at some point, did you attempt to gain access to

 5     the area where the Bosnian Serb forces had their positions?

 6        A.   Yes, we did, both in June 1992 and again in September 1992.

 7        Q.   And did you eventually get access in September?

 8        A.   We did.

 9        Q.   Can you describe how you obtained this access to the Bosnian Serb

10     positions?

11        A.   In June 1992, we had had a meeting in Pale, which was the

12     headquarters of the Bosnian Serb political leadership, with Radovan

13     Karadzic --

14        Q.   Can I interrupt you.  Just for the record, who was Radovan

15     Karadzic?  What position did he hold?

16        A.   He was the leader of the Bosnian Serbs.

17        Q.   When you say "leader," are you referring to political,

18     military --

19        A.   The political leader of the Bosnian Serbs.

20        Q.   I'm sorry for interrupting you.  Please continue.

21        A.   But at that time, it was not possible to work up any kind of

22     agreement that we could get such agreement.  During the August conference

23     of 1992 held in London, I held a further meeting with Mr. Karadzic.

24     Then, at the beginning of September, again Mr. Karadzic, in Belgrade, and

25     he then agreed that if I and a SkyNews were to come to Pale, we would be

Page 522

 1     given access and an escort of two military police officers to various

 2     different parts of the front line and also to various figures within the

 3     Bosnian Serb leadership.

 4        Q.   And why did you want to go and view the Bosnian Serb positions?

 5        A.   Both myself and, let's say, the bosses in London felt that we

 6     should absolutely try to cover the war from both sides and allow the

 7     Bosnian Serbs to speak for themselves in reports done from the areas of

 8     Bosnia that they controlled; but that required their cooperation, if we

 9     were to be able to film their and interview them.

10        Q.   Very well.

11             MR. SAXON:  I would like to show the witness what is 65 ter

12     number 4347.06.  It is video material from SkyNews from September 1992,

13     and we'll play it up to 48 seconds.

14                           [Videotape played]

15             THE REPORTER:  "The Serb position is a commanding one.  They have

16     the whole of Sarajevo in their sights, with treetops shorn to provide

17     better fields of fire.  The slopes are practically insurmountable to

18     direct attacks, and the lines of sturdy ..."

19             MR. SAXON:  Can we stop there.  Can we go back a few seconds, if

20     that's possible, and start from there.

21                           [Videotape played]

22             THE REPORTER:  "The slopes are practically insurmountable to

23     direct attacks ..."

24             MR. SAXON:  Stop.

25        Q.   Can you tell us what we're viewing now, Mr. van Lynden, at 18.6

Page 523

 1     seconds of this video material?

 2        A.   That's Sarajevo filmed from the south.

 3        Q.   And whose voice do we hear on this video?

 4        A.   Mine.

 5             MR. SAXON:  Can we continue, please.

 6                           [Videotape played]

 7             THE REPORTER:  "...and the lines of sturdy log cabins, some

 8     already being prepared for winter, have an air of permanence.  For the

 9     moment, the Serb guardians of these hilltop strongholds appear relaxed,

10     yet they're adamant that anything won in battle cannot be surrendered in

11     negotiation.

12             INTERPRETER:  "Giving any territory away would be a great treason

13     against the Serb people and the Serb capitulation."

14             MR. SAXON:

15        Q.   Mr. van Lynden, were you able to observe from the Bosnian

16     Serb-held positions above the city of Sarajevo whether Bosnian -- the

17     Bosnian Serb soldiers there were able to personally sight their targets

18     or did they depend on observers?

19        A.   I saw it - I think it's a later scene in this report - that they

20     did it themselves, but they undoubtedly also used observers.  We visited

21     specialist sniper positions where they had radios and where they said

22     that they were in touch with observers elsewhere who, via the radio,

23     would tell them about the acquisition of targets.

24        Q.   You used the term "sniper."  Can you describe to the Chamber what

25     do you mean when you refer to "sniper"?

Page 524

 1        A.   By the term "sniper," I'm referring to usually a solitary soldier

 2     with a specialist rifle which includes a scope.

 3        Q.   And when you say "a scope," what kind of scope?

 4        A.   Well, a scope so that they can target more precisely on whoever

 5     they're shooting on.  It's usually a specialist rifle because it has more

 6     distance; for instance, a Kalashnikov will not be very accurate much over

 7     50 metres, certainly not over a hundred metres.  Specialist rifles can

 8     fire far further than that.

 9             MR. SAXON:  Your Honours, at this time, I would seek to admit

10     this video clip along with its accompanying transcript, which is 04353,

11     65 ter.

12             JUDGE MOLOTO:  This video clip, 65 ter 4347.06, is admitted into

13     evidence.  May it please be given an exhibit number.

14             THE REGISTRAR:  That will be Exhibit P9, Your Honours.

15             JUDGE MOLOTO:  Thank you very much.

16             Yes, Mr. Saxon.

17             MR. SAXON:

18        Q.   Mr. van Lynden, during your time touring or visiting the Bosnian

19     Serb positions, did you go to a neighbourhood called Grbavica?

20        A.   I did.

21        Q.   And can you describe where Grbavica was located?

22        A.   Grbavica goes to the river of Miljacka.  It's on the southern

23     side.  It's really at the heart of Sarajevo.  It's one of the

24     neighbourhoods at the heart of Sarajevo.

25        Q.   And what positions, what Bosnian Serb army positions did you

Page 525

 1     observe there?

 2        A.   We were taken to various front line positions of, as I already

 3     explained, sniper positions and of other simply defensive positions,

 4     specifically the part of the town called the Jewish cemetery.  We were

 5     also shown higher up positions on the western side that were the --

 6     higher up from the -- by the front line itself, let's say.

 7        Q.   Can you describe the field of fire or the target area that the

 8     Bosnian Serb forces had from their positions in Grbavica?

 9        A.   Right down below by the River Miljacka, they could simply look

10     across the river, and so very limited scope.  At the Jewish cemetery,

11     that was very much also the case.  At higher up positions, they could --

12     they were overlooking the town and were able to look right into the heart

13     of Sarajevo and down the streets of Sarajevo.

14        Q.   Okay.  And if you know, how did that affect persons living and

15     working on the other side of the Miljacka River, in the area that was not

16     held by Bosnian Serb forces?

17        A.   Well, as we already -- as I already described, it meant that

18     people on the other side were open to gunfire at any moment of day or

19     night when they went out onto the streets; and, therefore, it made their

20     lives very dangerous in that they had to run across the streets if those

21     were the streets in the line of fire of their opponents.  So they could

22     be targeted.

23        Q.   In 1992, Mr. van Lynden, did you ever meet a man named Ratko

24     Mladic?

25        A.   I did.

Page 526

 1        Q.   And who was Mr. Mladic?

 2        A.   Ratko Mladic was the commanding officer of the Bosnian Serb army.

 3        Q.   Okay.

 4             MR. SAXON:  I'd like to show the witness what is Prosecution 65

 5     ter number 4347.07.  It was taken in September 1992, and we'll start it

 6     and then we'll stop at 1 minute.

 7                           [Videotape played]

 8             THE REPORTER:  "He's the scourge of Sarajevo, the chief warrior

 9     of the Serbs.  He's called Ratko Mladic.  Appropriately, "Ratko" means

10     warrior, and this square-jawed Serb general has lived up to the name.

11     The commander's always on the move.  A visit to one of the mountain

12     chalets where the Serbs of Bosnia have established their separatist

13     government is but a fleeting one.  In a short briefing, the

14     Commander-in-Chief speaks only of attacks on his forces, never of

15     offensives by them.

16             "As if to prove the point, he gives us a rare chance to accompany

17     him to front line artillery positions where the UN observers are

18     conspicuous by their absence.  High up on the wind-swept hills, the

19     100-millimetre guns are dug deep into the rocks directly overlooking

20     Sarajevo, an overwhelming position of strength which is obviously to the

21     general's satisfaction.  As he says, he holds the city in his palm."

22             MR. SAXON:

23        Q.   We're looking down now, in this video shot, at 1 minute, it's

24     very difficult -- what we mainly see is basically a colour white or grey.

25     What are we looking at here?

Page 527

 1        A.   It's through a haze, but we're looking at the city of Sarajevo

 2     from the mountaintops to the east of the city.

 3        Q.   And just before we stopped, you said, "as he says," referring to

 4     General Mladic, "he holds the city in his palm."  Do you recall, how did

 5     Mr. Mladic express that to you?

 6        A.   Yes.  We were walking to the position where Mr. Mladic gave the

 7     interview; and as we were looking over this position, he turned to me and

 8     he literally cupped his hand and pointed like that and said those words

 9     in Serbo-Croat, and it was translated to me by my field producer, Zoran

10     Kusovac.

11        Q.   Okay.  Can we continue, please.

12                           [Videotape played]

13             THE REPORTER:  "And many of the buildings in the haze below bear

14     testimony to that power.  If General Mladic ..."

15             MR. SAXON:  Stop.

16        Q.   Were you able to look through the haze to the city below?

17        A.   Yes, we could.  And I should say, Your Honour, if you'd seen the

18     original - I mean, this is something probably because the original

19     footage has been transposed a number of times, and now you don't see it

20     anymore - but in the original pictures you could actually see Sarajevo

21     through the haze.

22        Q.   Okay.

23             MR. SAXON:  Can we continue, please.

24                           [Videotape played]

25             THE REPORTER:  "... Mladic is quite unrepentant.  He is a man who

Page 528

 1     has no doubts, only a total assurance that he's right, the world's wrong,

 2     and that his people have been slandered.

 3             INTERPRETER:  "I hope the UN Security Council first takes measure

 4     to understand that we Serbs are a reality in this world, not some sort of

 5     extra terrestrials, and that we have the right to defend ourselves."

 6             MR. SAXON:  Can we stop there.

 7        Q.   Just for the record, who is speaking here?

 8        A.   This is General Mladic.

 9        Q.   Okay.

10             MR. SAXON:  Can we continue.  That was at 1 minute --

11                           [Videotape played]

12             "THE REPORTER:  "Nearby, more positions are being dug.  In the

13     general's eyes, the world may deny his people their rights, but that's

14     not going to stop him.

15             INTERPRETER:  "We have to fight as long as we continue to exist,

16     to defend ourselves.  There is no other way, and we are prepared for a

17     long war.

18             REPORTER:  "Far away from the battlefield, the UN is preparing a

19     resolution on war crimes.  It leaves Ratko Mladic quite unmoved.

20             INTERPRETER:  "I'm not bothered at all.  I did not take part in

21     any crimes.  I have only defended my only.

22             Reporter:  "With that ..."

23             MR. SAXON:  We've stopped now at 2 hours and -- 2 minutes and

24     6 seconds, point 7.

25        Q.   Mr. van Lynden, why did you ask General Mladic about a war crimes

Page 529

 1     tribunal and bring up that subject?

 2        A.   Because at the time it was being discussed by the UN in New York.

 3     It was our understanding that this was a debate as to whether the UN were

 4     actually going to set up the Tribunal, which they, of course, did and

 5     which is why we're all here today.

 6             So it was a news-worthy question to ask because it seemed likely

 7     to us already that General Mladic, if such a Tribunal was set up, would

 8     be indicted by the Tribunal, as he has indeed been.

 9        Q.   Did General Mladic indicate to you who or whom was in control of

10     the city of Sarajevo at that time?

11        A.   I'm not sure that I completely understand your question.  I mean,

12     he was aware that most of the city was in the hands of his opponents, the

13     Bosnian forces.

14        Q.   Okay.

15        A.   But as he said, he had it in the palm of his hands in terms of

16     the fire-power at his disposal.

17        Q.   Okay.

18             MR. SAXON:  Your Honours, I would now seek to tender this video

19     clip, along with its transcripts, which is 65 ter 4354.

20             JUDGE MOLOTO:  The video clip is admitted into evidence.  May it

21     please be given an exhibit number.

22             THE REGISTRAR:  That will be Exhibit P10, Your Honours.

23             JUDGE MOLOTO:  Thank you.

24             MR. SAXON:  Your Honours, would this be the appropriate time to

25     stop for the day?

Page 530

 1             JUDGE MOLOTO:  I was just going to ask you the same question,

 2     Mr. Saxon.  I think it is.

 3             That brings us to the end of the session for the day.  We'll have

 4     to continue on to next week on Monday, at a quarter past 2.00, in

 5     Courtroom I, same courtroom.  Thank you very much.

 6             Court adjourned.

 7                           --- Whereupon the hearing adjourned at 1.45 p.m.,

 8                           to be reconvened on Monday, the 6th day of

 9                           October, 2008, at 2.15 p.m.