1 Wednesday, 21 January 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.02 a.m.
5 JUDGE MOLOTO: Good morning to everybody in and around the
6 courtroom. Madam Registrar, will you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. Good morning
8 everyone in and around the courtroom. This is case number IT-04-81-T,
9 the Prosecutor versus Momcilo Perisic.
10 JUDGE MOLOTO: Thank you so much. Could we have appearances for
11 today. Starting with the Prosecution.
12 MR. SAXON: Good morning, Mr. President. Good morning, Your
13 Honours. Daniel Saxon for the Prosecution, with my colleagues
14 April Carter and Carmela Javier.
15 JUDGE MOLOTO: Thank you very much. For the Defence.
16 MR. GUY-SMITH: Good morning, Your Honours. Daniela Tasic,
18 appearing on behalf of Mr. Perisic.
19 JUDGE MOLOTO: Thank you so much. And just before I call the
20 witness, a small housekeeping matter. The Trial Chamber is seized of the
21 motion for permission to replace transcript references for Exhibits P84
22 and P85. Shall we perhaps move into private session for this.
23 [Private session]
11 Pages 2732-2733 redacted. Private session.
25 [Open session]
1 THE REGISTRAR: Your Honours, we are back in open session.
2 JUDGE MOLOTO: Thank you very much. Are you going to keep the
3 curtain down. You may proceed, Ms. Carter.
4 MS. CARTER: Thank you.
5 Q. MP-238, prior to today were you given an opportunity to review
6 your statement of May and June 2008 bearing the 65 ter number 9393?
7 A. Yes.
8 Q. If you were to be asked the same questions today, would your
9 answers be the same?
10 A. In essence I'm certain that they would be the same.
11 MS. CARTER: Your Honour, I tender 65 ter number 9393 at
12 paragraphs 1 through 9, 12, 26, and 29 through 30 into evidence under
14 JUDGE MOLOTO: 65 ter 9393 at those paragraphs is admitted into
15 evidence under seal. May it please be given an exhibit number.
16 THE REGISTRAR: Your Honours, that will be Exhibit P460 under
18 JUDGE MOLOTO: Thank you very much.
19 MS. CARTER:
20 Q. MP-238, prior to today were you also given an opportunity to
21 review your transcript from the Dragomir Milosevic case?
22 And for the record the transcript of 19 February 2007 bears the
23 65 ter number 9394, and the transcript of 20 February 2007 bears the 65
24 ter number 9395.
25 Sir, had you had an opportunity to review that transcript?
1 A. Yes, I have been given the opportunity to read the transcripts.
2 Q. During that read back you had indicated that a few items needed
3 to be clarified; is that correct?
4 A. That's right.
5 Q. Specifically, with regards to the transcript of 19 February 2007,
6 bearing 65 ter number 9394, you indicated that on page 2476 at line 5,
7 the term "few gas aerial bomb" is incorrect, that this was actually,
8 fugasno, f-u-g-a-s-n-o, aerial bomb, as in Fugasno-razorne,
9 r-a-z-o-r-n-e; second word, Avio, a-v-i-o, hyphen, bombe, b-o-m-b-e. Is
10 that correct?
11 A. That's correct. That was the essence of my comment.
12 Q. From page 2459 at lines 17 through 20, the quote from the
13 transcript indicates:
14 "The shell hit the window of the gym, and luckily, if it had been
15 activated 10 centimetres to the other side, it would have come directly
16 through the window."
17 You've indicated that "luckily" is believed to be a translation
18 error and incorrect, unfortunately or another term was to be intended; is
19 that correct?
20 A. That's correct that was my comment. Because it would have been
21 fortunate had the bomb hit a few centimetres higher.
22 Q. From page 2473 at lines 9 and 10, "These were meant to be used
23 for plane travel and now they were used for bombs," is the quote. The
24 term "plane travel" you've indicated was misinterpreted. "These were
25 meant to be dropped out of planes," is the intended language; is that
2 A. That's correct, these were aerial bombs, and they were meant to
3 be fired or dropped off an aeroplane.
4 Q. After those clarifications had been made, if you were asked those
5 same questions today, would your answers be the same?
6 A. Yes, they would.
7 MS. CARTER: The Prosecution tenders 65 ter numbers 9394 and 9395
8 into evidence under seal.
9 JUDGE MOLOTO: As one exhibit?
10 Yes, Mr. Guy-Smith.
11 MR. GUY-SMITH: Yes, with regard to the correction made from
12 lines 10 through -- I'm sorry.
13 JUDGE MOLOTO: You may be seated, Ms. Carter.
14 MR. GUY-SMITH: Sorry, from lines 10 through line 15, the answer
15 given by the witness indicating that there's a translation error, I have
16 no difficulty with. However, since we do have, I believe, in its
17 original in audio the answer given by the witness at the time, I would
18 ask that what is done in that regard is that the audio is re-examined so
19 that we can make a determination precisely what was said by the witness.
20 Because here there is a speculative answer of which I have no difficulty
21 in terms of what the gentleman has said just now, but to the extent that
22 we do have an actual answer in a previous proceeding in a transcript that
23 can be captured, I suggest the appropriate thing to do at the time would
24 be to have a re-examination of the audio, and other than that, I have no
25 objection whatsoever.
1 JUDGE MOLOTO: What actually is speculative about the witness's
3 MR. GUY-SMITH: Unfortunately, now I've gone up on the page. If
4 you give me a second, I'll have to capture the language.
5 "You've indicated that 'luckily' is believed to be a translation
6 error and incorrect. Unfortunately or another term was to be intended;
7 is that correct?" And the speculative part is "unfortunately or another
8 term was intended -- was to be intended."
9 Clearly the answer given by the gentleman at the time is either,
10 A, a translation error; or, B, something else. In the simplest way of
11 making a determination, first of all, of whether or not there has been a
12 translation error is to re-examine the audio of that particular question
13 and answer given. And that's all I'm referring to.
14 JUDGE MOLOTO: Well, I guess the parties can do that. The
15 witness here has told us that that is how he was misinterpreted, and he
16 wanted to correct this.
17 MR. GUY-SMITH: The difficulty is I think that what you are then
18 left with is an ambiguity in the transcript if it's going to help the
19 Chamber. If the Chamber is satisfied, so be it. But the answer given is
20 -- the answer would now be that the shell hit the window of the gym and
21 unfortunately, or another term that I intended to give, if it had been
22 activated to the other side, it would have come directly through the
23 window. I don't know if that helps the Chamber particularly, but if the
24 Chamber is satisfied with the answer, then I am.
25 JUDGE MOLOTO: Mr. MP-238, is there any other term that you
1 intended other than "unfortunately," and if so, what is it?
2 THE WITNESS: [Interpretation] Well, it's as follows: The place
3 where the shell impacted, had it been 10 centimetres higher, this shell
4 would have hit another room and the accident would have been avoided, so
5 it's simple really to understand. It had landed at the very edge of the
6 window causing many people to be killed. Had it gone a little higher, it
7 would have hit another room and then no one would have been killed. So
8 it would have been fortunate had this shell gone a little bit higher, and
9 it's unfortunate that it actually hit the edge of the window causing
10 these many deaths.
11 JUDGE MOLOTO: Thank you very much. I leave it to the parties if
12 they want to check the audio of the previous transcripts. They can do
13 so, and they can report back to the Trial Chamber.
14 Madam Carter, do you want these as two separate exhibits, or do
15 you want them as one exhibit?
16 MS. CARTER: As they were given two separate 65 ter numbers, Your
17 Honour, it believe it would be easier to have two separate exhibit
19 JUDGE MOLOTO: Thank you very much.
20 Madam Registrar, will you please assign exhibit numbers to those
21 two 65 ter numbers and give them --
22 THE REGISTRAR: Your Honour, 65 ter number 9394 will be
23 Exhibit P461 under seal; and 65 ter number 9395 will be Exhibit P462
24 under seal.
25 JUDGE MOLOTO: Thank you very much.
1 Madam Carter.
2 MS. CARTER: Thank you, Your Honour.
3 Q. Witness MP-238, while you were reviewing your transcript, you
4 also had the opportunity to review the exhibits that had been tendered
5 through that transcript; is that correct?
6 A. [In English] Can you repeat the question, please.
7 Q. Certainly.
8 While you were having your transcript read back to you, did you
9 have the opportunity to review exhibits that had been tendered through
10 you in that transcript?
11 A. That's correct, I did this simultaneously, so I studied the
12 transcript and also compared the items that were being under discussion.
13 Q. Are you now seeking to adopt those exhibits into your transcript
14 as well?
15 A. I apologise, what do you mean "as well"? What do you mean by
17 Q. Sir, do you believe that those documents are true and accurate
18 documents and you wish to have them a part of your transcript?
19 A. That's correct.
20 MR. GUY-SMITH: [Previous translation continues] ... the witness
21 wishes to have a part of his transcript or not is irrelevant. I think
22 the question as posed is absolutely improper and does not achieve
23 forensic purpose that the Prosecution wishes.
24 JUDGE MOLOTO: I'm not quite sure -- Madam Carter, I would
25 suggest that you ask the questions the way you want to ask them.
1 MS. CARTER: Thank you, Your Honour.
2 Q. Sir, again, I would ask, the documents that you reviewed during
3 your transcript and the statements that you made about them within the
4 transcript, would you ask to adopt those documents as part of your
5 complete record?
6 A. That's right.
7 MS. CARTER: Your Honours, at this time the Prosecution seeks to
8 tender 65 ter number 7194, which was P250 in the previous transcript
9 admitted at transcript 2448, which purports to be a photograph of an
10 impact site marked by the witness in case number IT-98-291.
11 Additionally, 65 ter number 7195 which is previously admitted as
12 Exhibit P251 at transcript page 2451, a photo of impact site marked by
13 witness in case number IT-98-291. 65 ter number 8591 previous Exhibit
14 number P252, admitted at transcript page 2452, a criminal investigation
15 file. 65 ter number 8592, prior Exhibit number P253 at transcript T-2455
16 which is an extract from the criminal investigation file P253 in case
17 number IT-98-291. 65 ter number 7197, previous Exhibit number P254,
18 admitted at transcript T-2457, a diagram and estimates of missile bomb
19 impact on the ground marked by witness in case number IT-98-291. And
20 finally, 65 ter number 7200, previous Exhibit number P256, admitted at
21 transcript page T-2463, a report on Simon Bolivar elementary school
22 incident of 18 June 1995
23 JUDGE MOLOTO: Thank you very much, Madam Carter.
24 Madam Registrar, will you please assign Exhibit numbers to all
25 those 65 ter numbers under seal starting with 7194.
1 THE REGISTRAR: Your Honour, 65 ter 7149 will be Exhibit P463
2 under seal. 65 ter 7195 will be Exhibit P464 under seal. 65 ter 8591
3 will be Exhibit P465 under seal. 65 ter 8592 will be Exhibit P466 under
4 seal. 65 ter 7197 will be Exhibit P467 under seal. And 65 ter 7200 will
5 be Exhibit P468 under seal, Your Honours.
6 JUDGE MOLOTO: Thank you very much.
7 MS. CARTER: And Your Honour, for clarity of the record, when
8 reviewing this witness's transcripts from the prior case, there are two
9 Exhibits that were exhibited through him during the Dragomir Milosevic
10 case which have been previously tendered in this one, ergo the
11 Dragomir Milosevic. Exhibit P259 addressed at his transcript 2471 is
12 actually P120 in the present case, and Exhibit P260 admitted at previous
13 transcript 2476 is now P452 in this case.
14 JUDGE MOLOTO: I'm not quite sure I understand the transcript.
15 You may have said something different, Madam Carter, at line 25 of
16 page 11, it says, "previously tendered in this one, ergo if there
17 Dragomir ..." I'm not quite sure what is that. Can you correct that?
18 MS. CARTER: Yes, Your Honour, my intention was that
19 Dragomir Milosevic Exhibit 259 addressed at his transcript 2471 is
20 actually P120 in the present case.
21 JUDGE MOLOTO: No, I understand that. But the line above that,
22 Madam Carter, if it says there are two exhibits that were exhibited
23 through him during the Dragomir Milosevic case, "which have been
24 previously tendered in this one ergo if they," that's just that part that
25 I don't understand.
1 MS. CARTER: Your Honour, frankly, I'm not certain what I said at
2 that moment. It may be an ergo, as in e-r-g-o, but even that doesn't
3 make very good sense to me. I do apologise.
4 JUDGE MOLOTO: Thank you very. Okay.
5 So what did you want to say about all these exhibits now, now
6 that we don't know what "one ergo" means.
7 MS. CARTER: Specific, Your Honour, Exhibit 259 in the
8 Dragomir Milosevic case is Exhibit P120 in the present case.
9 JUDGE MOLOTO: Okay.
10 MS. CARTER: And Exhibit P260 in the Dragomir Milosevic case is
11 now P452 in the present case.
12 JUDGE MOLOTO: So you don't want us to do anything, you are
13 telling us those are already admitted.
14 MS. CARTER: Correct, Your Honour, just for ease of the record,
15 if you are going back and reviewing the transcript from the
16 Dragomir Milosevic case.
17 JUDGE MOLOTO: Thank you.
18 MS. CARTER: Thank you, Your Honour.
19 Q. Witness, MP-238, I just would like to clarify one aspects of your
20 previous testimony from pages 2435 to 2451 from February 19th of 2007,
21 and that is now Exhibit number P461.
22 MS. CARTER: I would like to pull up the Exhibit 464 in the
23 present case.
24 Q. Sir, in the previous trial there were approximately 20 pages
25 dedicated to determining the angle of the Markale 2 impact. The number
1 170 was being addressed; and the numbers 220 were being addressed. And
2 you created this diagram at the behest of the Prosecution. If you could,
3 could you please explain what the 170 that we see on this document is
4 intended to signify?
5 A. I have to correct you. It is not the angle of incidents. This
6 is the azimuth, being the direction of the shell, so what you see here is
7 175 degrees of the azimuth which is the direction from which the shell
8 came and then impacted on the marked spot.
9 Q. You were also asked about the possibility of the azimuth being
10 220, and in that explanation, this graph was drawn. Can you please
11 explain to the Court what is it that you see from the crime scene that
12 takes away the possibility that 220 degree azimuth is appropriate?
13 A. The shell leaves the most evident trace and gives the most
14 information about the angle of incidence when it impacts a solid surface
15 which is concrete or asphalt. On the basis of the crater on the solid
16 surface which is actually marked by this red ellipsoid form, we determine
17 the angle to be 170 which is a vertical in respect of that direction
18 defined as such. So when the shell falls on a solid surface, the trace
19 of the explosion provides us with such information that we can determine
20 with a high degree of reliability the direction of the arrival of the
21 shell. So today we can still ascertain those directions on the basis of
22 such information even though so many years have elapsed.
23 THE INTERPRETER: And would the witness please slow down a bit
24 for the interpreters.
25 JUDGE MOLOTO: You are being asked to slow down, sir, so that the
1 interpret can keep pace with you.
2 MS. CARTER:
3 Q. Sir, in your answer you use several terms of art that I would
4 like to have clarified. When you speak of the "trace of the explosion,"
5 what specifically are you talking about and what are we seeing on this
6 picture that is "trace"?
7 A. So we can distinguish the place where the fuse actually touched
8 upon the surface and by its initial explosion caused a further explosion.
9 We can recognise the relatively circular portion which is asymmetrical
10 because of the angle of incidents of the shell of the greatest damage on
11 the surface which is a trace left by any anti-infantry shell which is
12 constructed so that most of the shrapnel, the maximum of its lethal
13 effect is actually achieved at that height. So the shell is constructed
14 thus that the strongest effect, lethal effect is achieved a relatively
15 lull in respect of the surface of the ground because it is
16 anti-personnel, anti-infantry shell which intended to kill personnel.
17 MR. GUY-SMITH: Excuse me, I do apologise for interrupting, but
18 my client cannot hear at the moment.
19 JUDGE MOLOTO: Sorry, we have a problem. Can somebody help.
20 Can you just say something, Mr. Witness, let's check whether
21 Mr. Perisic can hear.
22 THE WITNESS: [Interpretation] Yes, voice check. Testing.
23 JUDGE MOLOTO: Is that okay?
24 Thank you very much.
25 You may proceed, Madam Carter.
1 MS. CARTER:
2 Q. Now, you are speaking about the fuse actually touching the
3 surface in regards to the initial explosion. What specifically are we
4 seeing on this photograph that speaks to the fuse touching the surface?
5 A. The place where the fuse hit is this red spot in the middle, in
6 the centre on the ground, which is enhanced, and the ring surrounding
7 that particular spot actually indicates the direction from which the
8 shell came. Because as a rule, the angle of incidence of a shell is, as
9 a rule, under 90 degrees. The explosion therefore, does not leave a
10 completely concentric circle which would correspond to a 90-degree impact
11 or descent which is impossible.
12 So as a rule, the density of the shrapnel and the depth in the
13 ground is always a picture which reflects or which shows where it is
14 deepest and strongest from where the shell came. This just as if you
15 placed an open umbrella on the ground, it would lean towards one side and
16 where it actually touches the soil, that is the spot of the deepest trace
17 and the deepest impact, or the strongest impact.
18 Q. On this photograph, what items allow us to understand that this
19 azimuth did come in at 170 degrees as opposed to the 220 degrees?
20 A. On the basis of the identification of the most dense and most
21 deep traces of the impact effect of shrapnel which is marked on this
22 figure by this deformed ellipsoid, or this eyebrow shape to be more
23 precise, looking from the spot where the fuse hit which is this red spot,
24 to what is the ellipsoid form, we are actually looking in the direction
25 from which the shell came.
1 When a compass, in this case military compasses, which has a
2 mirror and a thin cord to adjust the direction with, and enhanced
3 preciseness in the mirror, it is possible to read directly on the
4 compasses the azimuth which is 170 degrees. It is a very simple
5 technique, in fact, but it is a very precise technique at the same time
6 which scouts, boy scouts are also familiar with. This is one of the very
7 first things they learn for orientation purposes.
8 Q. Sir, again going back to the eyebrow shape that you are referring
9 to, obviously the 220 degree azimuth is also intersecting that same
10 eyebrow. Can you be specific why is the position of the eyebrow where it
11 currently not indicative of a 220 degree azimuth?
12 A. Very simply, because the assumed azimuth of 220 degrees
13 intersects this, let us call it, eyebrow, not in the middle, but around
14 one-third of it. The intersection of that deformity on the ground has --
15 on the ground has to be along its centre, along the axis of symmetry. It
16 has to cut along its middle from the place where the fuse was activated
17 towards the middle, towards the centre, the half of that deformity. And
18 that is how we get the direction and can read the 170 degrees.
19 The direction of 220 degrees also, I repeat, intersects this
20 geometrical figure, but not in half.
21 Q. Thank you, sir. That certainly make it is clear.
22 MS. CARTER: That's the completion of the direct examination of
23 this witness.
24 JUDGE MOLOTO: Thank you very much, Madam Carter.
25 Mr. Guy-Smith.
1 Cross-examination by Mr. Guy-Smith:
2 Q. Good morning, sir.
3 A. Morning.
4 Q. I'd like to discuss with you your investigation of the incident
5 on June 18th.
6 A. Yes. Can you just remind me, is it this incident or some other
7 incident? Can you be a bit more specific, please.
8 Q. Surely. It's the incident involving the school, and the -- what
9 I believe was a water collection area.
10 A. That's right. Now I know what you are talking about.
11 Q. In your investigation of that incident, when you were
12 investigating the incident, the projectile that you were investigating,
13 the tail-fin was in a position different than the explosion, was it not?
14 A. Could you be please more specific. What do you mean when you say
15 the "tail-fin was in a different position"?
16 Q. Sure. Your investigation with regard to that particular incident
17 indicated that the tail-fin had continued on a point of trajectory after
18 the explosion had occurred. I think that's a fair way of saying it;
20 A. Now you have formulated it well, and this is exactly what
21 happened. That's right.
22 Q. Thank you for your confidence in my formulation of the question.
23 When -- when that occurred in this particular incident, and as a
24 general matter, the tail-fin, the presence of the tail-fin then is not
25 particularly helpful in making a determination of the direction of
1 travel, is it?
2 JUDGE MOLOTO: Mr. Guy-Smith, shall I suggest that once you have
3 asked your question, you switch off your mike because we are on voice
4 distortion here.
5 MR. GUY-SMITH: Thank you.
6 THE WITNESS: [Interpretation] In this case, it is a fact that the
7 tail-fin continued and went into the other room because it was drawn in
8 by the huge vacuum created by the explosion in its centre. And this is
9 what the other traces also show, that the explosion actually happened,
10 took place at a lower sill of the window. And this only actually rounds
11 off the picture of an explosion which happened at that particular section
12 of the window, the lower section of the window's edge because the
13 tail-fin continued into the other room. But as a rule, the position of
14 the tail-fin does not provide much information about the descent, about
15 the fall of a shell on solid ground. Sometimes it actually bounces off,
16 I mean the tail-fin, just bounces off to one side, and sometimes it is
17 riveted into solid ground. And if the ground is soft, then it actually
18 is lodged in quite deep.
19 Q. I thank you for your answer, but I believe you misapprehended my
20 question, which is whether or not the tail-fin was of assistance in
21 determining the direction from which the projectile came, and in this
22 situation it was not. That your investigation, examination of the
23 tail-fin itself, did not help you in determining the direction from which
24 the projectile came?
25 A. You are right, in the sense that it is not possible to use the
1 tail-fin position to determine the direction. The tail-fin provides
2 information about the calibre, the year of manufacture. Very often it
3 does, and very often also about the type of the shell used.
4 Q. Now, with regard to this particular incident, there was media
5 information concerning where this particular shell came from, wasn't
7 A. That's right. That evening, the evening of that tragic event, I
8 heard on the television that the shell had come from Lukavica which is
9 approximately from the east which is absolutely impossible because a
10 mortar shell does not have such a trajectory, nor does any shell has --
11 make such a yaw in its trajectory, so that I checked actually checked to
12 re-establish the facts and to be satisfied myself of the traces.
13 Q. And with regard to -- with regard to that particular issue which
14 is the report from the media, can you tell us, if you know, where the
15 media received their information that would make such a report drawing
16 the conclusion that the shell came from a direction quite distinct from
17 that which you believed it came from?
18 A. I don't know where the media got their information from, but at
19 any rate, that information was completely incorrect.
20 Q. And do you hold the position that you have held previously in
21 your testimony that -- once again with regard to this particular issue,
22 that concerning the media, they often portray distorted pictures?
23 A. We witnesses during the war, prior the war, after the war, and
24 today, that just as they do carry the absolute truth, they very often,
25 the media that is, distorted the facts.
1 Q. And with regard to this particular incident, it is your position
2 that the media's reporting portrayed a distorted, as you put it, fact;
4 A. I absolutely adhere to my earlier statement, and now I confirm
5 that the media carried a wrong piece of information. Why that
6 information was created and how it came to be published as such, I really
7 don't know.
8 MR. GUY-SMITH: Could we please have 1D00-4563 brought up.
9 Q. Are you aware of the fact that after your investigation,
10 investigation was done by a team from the United Nations military
11 observer unit?
12 A. Yes, I think so. They were also interested in that case, and
13 they arrived at the scene and made some measurements.
14 Q. And the --
15 JUDGE MOLOTO: Madam Carter.
16 MS. CARTER: Your Honour, pursuant to the rules of this court, am
17 I to assume that Defence counsel intends to bring Mr. Thomas Hansen as a
18 witness in this case, otherwise it would be an inappropriate use of his
20 JUDGE MOLOTO: Mr. Guy-Smith.
21 MR. GUY-SMITH: I am not positive whether or not we intend on
22 bringing Mr. Hansen or not, and I do not believe it is an inappropriate
23 use of his statement because to my knowledge, Mr. Hansen has not
24 testified previously. If I'm mistaken on that regard, then what I would
25 like to do is, first of all, have clarification on that, and then I'll
1 move from that to my next position.
2 JUDGE MOLOTO: I'm not quite sure that I understand what you are
3 saying, Mr. Guy-Smith. I do understand that you are saying you are not
4 positive whether or not you intend calling Mr. Hansen. And that you do
5 not believe that it is inappropriate to use his statement. From then on,
6 I don't understand the rest of that sentence and the rest of your
8 MR. GUY-SMITH: Well, if I might, this should probably be done
9 outside the presence of the witness, but I believe that if Ms. Carter is
10 referring to the guide-lines, she's incorrect. Specifically if that is
11 the world in which we are in, let's, first of all, make that as a
13 JUDGE MOLOTO: Madam Carter, any specific rule you want to refer
15 MS. CARTER: Certainly, Your Honour, I refer to Rule 12:
16 "The parties may confront a witness in court with a statement of
17 another witness or transcript of prior testimony from another case before
18 this Tribunal only when that person will come to testify in the present
20 JUDGE MOLOTO: Mr. Guy-Smith.
21 You said Rule 12.
22 MS. CARTER: Yes, Your Honour.
23 MR. GUY-SMITH: Yes --
24 JUDGE MOLOTO: Sorry. Just a second, Mr. Guy-Smith. My Rule 12
25 talks of determinations of courts of any state. And it says:
1 "Subject to Article 10, paragraph 2 of the statute,
2 determinations of Courts of any state" --
3 MR. GUY-SMITH: She's referring to the guide-lines, Your Honour.
4 JUDGE MOLOTO: That's not a rule.
5 Okay. Thank you, Madam Carter.
6 Now, do you have any response to that --
7 MR. GUY-SMITH: I do.
8 JUDGE MOLOTO: Paragraph.
9 MR. GUY-SMITH: This is something -- first of all, this was an
10 issue that was raised the time that the guide-lines were being
11 promulgated and something that the Defence objected to at that time
12 because of our concerns of the double standard and the -- that it would
13 create as well as -- the double standards that would create a number of
14 different respects, not only that it would force the Defence to put on
15 affirmative evidence in a situation where, simply put, cross-examination
16 would become the vehicle whereby we could test the Prosecution evidence.
17 And that in this situation, the rule as constituted caused a problem. So
18 we have previously objected to it.
19 With regard to whether or not we intend on calling this
20 particular witness, I cannot say that we will at this point in time call
21 this particular witness. What I would suggest that we do, because there
22 are now two issues that are raised, is, one, that I be allowed to examine
23 the witness with regard to Thomas Hansen's statement; that, two, the
24 Chamber can make a determination as to whether or not it wishes to
25 consider it or not at a later point in time; and, three, the issue that
1 had been previously presented during the time that we were going through
2 the discussion of the guide-lines has now crystallized, and we now are in
3 a position to further brief it.
4 JUDGE MOLOTO: Sorry, Mr. Guy-Smith, I hear that you previously
5 objected to this thing, but, however, at this stage it is part of the
6 guide-lines, and the guide-line is quite clear that unless you are going
7 to call the witness to testify later, you may not use his statement to
8 confront this witness. And I think you have to make a determination
9 whether or not you are going to call this witness, and if you are not --
10 if you say you are not sure, I'm afraid according to that guide-line you
11 may not use this statement.
12 MR. GUY-SMITH: Well, once again, I respectfully disagree. And I
13 disagree for the following reason, which is that paragraph 13 indicates
14 that where a witness is confronted in Court with a statement or
15 transcript of another witness who is scheduled to come and testify in the
16 present case, and in our situation we don't have somebody who is
17 scheduled to testify in the present case because the Defence case
18 certainly has not yet come to the fore, the Prosecution has not yet
19 completed their case. There's question as to whether or not the
20 Prosecution will even meet their burden. So although it would put us in
21 a slightly different situation, in the event that Mr. Hansen was
22 scheduled to testify as a Defence witness and did not testify, then the
23 remedy would be found in paragraph 13.
24 And I'll put in other terms, Your Honour, the rule as constituted
25 causes a series of not only procedural, but actually fair-trial problems
1 under Article 21 for the Defence. And I think you have probably
2 crystallized it in another sense, which is we have no burden at this
3 point to make a determination of what witnesses we are going to be
4 calling. We may call this witness. I do not -- I could say to you at
5 this point in time we are going to call -- we are going to call
6 Mr. Hansen. That would satisfy the initial inquiry. That, however,
7 wouldn't be an accurate statement, and as an officer of the court, not
8 the kind of statement because I, in good faith, can't tell you at this
9 point that it's something that we are going to do. I can tell you in
10 good faith that the statement of Mr. Hansen puts into stark contrast
11 issues that exist with regard to this witness's testimony. I can tell
12 you in good faith, and the Prosecution is well aware of it, that this
13 witness was previously examined about this self-same matter, that the
14 Prosecution had previously through cherry-picking made a determination
15 not to call Thomas Hansen as a witness, and that it puts us in an
16 untenable position because we are now being forced to make a
17 determination of whether or not we are going to be calling witnesses
18 prior to the time that you have even made a determination whether the
19 Prosecution has proved their case beyond a reasonable doubt to your
20 satisfaction at a half time submission.
21 If you want me to say for purposes of a record something that I
22 can't accurately say, I can say, Yes, we intend on calling -- we intend
23 on calling Mr. Hansen in the event that this Chamber makes a
24 determination at the half time submission that the Prosecution has met
25 their burden. I can say that. And then if I don't call him at a later
1 point in time, you would rightfully criticize me, and you would ask me
2 whether or not at the time that I made this statement I was being honest
3 with you. And I'm not in the habit of not being honest with the Court.
4 JUDGE MOLOTO: Mr. Guy-Smith, I think you should look at
5 paragraph 12 and 13, those two paragraphs are governing two different
6 situations. In the one situation in paragraph 12, the situation where
7 the witness is not going to be called. If you can only do so, you can
8 only confront the witness here with a statement of a witness that you
9 intend to call. Okay.
10 Paragraph 13 deals with a situation where, in fact, you have
11 determined that you are going to call the witness and you have scheduled
12 him, but for one or other reason, the witness does not turn up. At that
13 stage it's -- paragraph 13 deals with a situation that arises which had
14 not been planned.
15 MR. GUY-SMITH: Okay.
16 JUDGE MOLOTO: And if that situation arises at that stage, then
17 that is the remedy. To suggest now at this stage that because you have
18 not made a determination whether or not to call Hansen, therefore we must
19 then take resort in paragraph 13 is -- is this as you say, you want to be
20 honest with the Court and tell it exactly where you stand? I'm not
21 forcing you to say you are going to call this person or not call him, but
22 this situation envisaged in paragraph 13 is a situation where something
23 happened which had not been planned.
24 MR. GUY-SMITH: I understand what you've said, Your Honour, and I
25 think that paragraph 13 is instructive of what to do where -- where there
1 is a prior testimony or a prior statement from a witness which because
2 the witness has not been called to testify, the Chamber has a mechanism
3 whereby to deal with that particular evidence.
4 But I'm dealing with a more fundamental issue, quite frankly,
5 which is this, Which is why I said that we had objected to it initially
6 and why the issue exists now: As this is presently drafted, if
7 Ms. Carter's position is the position that this Chamber is going to call
8 -- going to adopt with regard to our ability to cross-examine, to use the
9 crucible of cross-examination as a basis upon which this Chamber makes a
10 determination about whether the Prosecution has met its burden of proof,
11 then our hands are effectively tied in a number of areas. Because if the
12 Prosecution has gone out and taken a statement and then by virtue of the
13 fact the statement is beneficial to the Defence and detrimental to the
14 Prosecution, they choose not to present that evidence to the Chamber in
15 the fullness of the presentation that they are supposed to make seeking
16 justice, then we are left in a position where you are foreclosed from
17 having the information by virtue of the fact that we are supposed to tell
18 you who we intend to call. And we have no burden at this point to call
19 anyone whatsoever. We have not reached that point in these proceedings.
20 The burden, if at all, is the burden upon the Prosecution in their case
21 in chief to present the evidence. It is not for us at this point in time
22 to labour under the assumption that we are going to have to call
23 witnesses. Otherwise -- otherwise the burden of proof has absolutely no
24 meaning whatsoever.
25 JUDGE MOLOTO: The burden of proof has every meaning, sir. Even
1 if you relied on paragraph 13, if at the stage of 98 bis proceedings you
2 decide not to call any witness and we have to assess the testimony that
3 has been given by the Prosecution witnesses, at that stage you will have
4 not called Hansen, and whatever you may have used from Hansen's statement
5 to confront this witness would be valueless.
6 MR. GUY-SMITH: But you see, Your Honour, therein truly lies the
7 rub. I mean, and I'm asking you for a moment to reflect upon the
8 situation that we are in. Hansen's statement directly has relevant
10 JUDGE MOLOTO: Yes.
11 MR. GUY-SMITH: Let me finish, please. It was obtained by the
12 Prosecution with regard to this incident. It's evidence that they don't
13 care for, and that's been established in a prior proceeding when they
14 chose to drop him from the witness list. This is the -- this is the most
15 -- this is the most clear example of cherry-picking that you can possibly
16 have in a case where now evidence that they know could objectively,
17 objectively be considered by the Chamber independent about whether he is
18 called, independent of that issue, is now being foreclosed because of the
19 rule that they suggest exists now at a point in time when I have no
20 burden whatsoever to call a witness.
21 JUDGE MOLOTO: Mr. Guy-Smith, I want to believe that you
22 understood what I'm saying. I'm saying, yes, I agree with you. You have
23 no burden to call a witness, and therefore at the close of the
24 Prosecution case, it will be as if you have not even called -- you don't
25 expect this Court when you have not -- when you are burdened to call a
1 witness that has not arisen to then consider the testimony of a person
2 that has not been called simply because it was used to confront this
3 witness. And I'm saying to you, if you will not interrupt me.
4 MR. GUY-SMITH: I apologise, Your Honour.
5 JUDGE MOLOTO: I'm saying to you at that stage, if you decide to
6 rest the Defence case without calling a witness, we couldn't -- the
7 Chamber cannot use Mr. Hansen's statement in evaluating this witness's
8 testimony because at that stage Mr. Hansen is not a witness.
9 And the question of cherry-picking by the Prosecution, I will not
10 comment on. I do not control the Prosecution. The Prosecution is
11 independent. They choose who they want to call as a witness, and they
12 conduct their case the way they want to conduct it. But I just want to
13 say to you, you may go along paragraph 13. Do know, however, that if
14 Hansen is not called as paragraph 13 does say, the Chamber will not take
15 into regard what effect he had --
16 MR. GUY-SMITH: I understand the position. I believe there is an
17 underlying legal principle that's being lost as a result of the
18 guide-lines as they've been promulgated, first of all, with all due
19 respect. Second of all, I think that we will find that another anomaly
20 will occur as we go on when we enter into the mysterious world of
21 92 quater, but I reserve my remarks about 92 quater problems --
22 JUDGE MOLOTO: Yes, can we deal with the point at issue and
23 forget 92 quater.
24 MR. GUY-SMITH: I think I would like to do the following, which
25 is I would like to examine this gentleman with regard to Mr. Hansen's
1 statement at this time. I also would like to and will be filing a motion
2 with regard to the Chamber's reconsideration of paragraph 12 as it's
3 constituted. In the event that the Chamber makes a determination that
4 paragraph 12 will remain the same, I will be seeking -- and I'm telling
5 you now because I think this is a point of some importance. I will be
6 seeking review of that because I think the issue that is presented here
7 is an issue which is fundamental to the entirety of these proceedings.
8 That is one possibility and one mechanism to proceed forward.
9 Another way to proceed forward, is I would at this time move for
10 admission and making an offer of proof as to what the questions would be
11 that I would ask this gentleman and move for admission three separate
12 exhibits which then would perfect the record so that the Chamber would be
13 in a position to see precisely why it is necessary not only, one, to
14 allow for this kind of examination to occur in the view of the Defence,
15 but be in a position to have all of the information.
16 So I'm in the Chamber's hands as to how to proceed. But I'm not
17 going to say to you at this point in time that I intend to call somebody
18 who I cannot in good faith say that I am or am not intending to call. I
19 just won't do that.
20 JUDGE MOLOTO: I think the Chamber has made clear what is likely
21 to happen depending on what developments take place in the future. And
22 if you are relying on paragraph 13, you may go ahead and use the
23 statement, but I think the Chamber has made it clear what it states.
24 MR. GUY-SMITH: I'm actually going beyond --
25 JUDGE MOLOTO: I am sorry, I will not deal with issues that are
1 not before me now. I know that you have mentioned that you have three
2 separate exhibits that you intend to tender, we don't really want that.
3 I am really on this statement now. You can use it, and we will watch as
4 the trial goes on whether this man gets called or not, doesn't get
5 called. If you want to deal with exhibits later, you can deal exhibits
7 MR. GUY-SMITH: Fine, thank you so much.
8 JUDGE MOLOTO: Madam Carter.
9 MS. CARTER: Your Honour, I wanted to allow the conversation to
10 continue before I interject on this as well. There are still other
11 provisions in paragraph 12 that we must be cognizant of, specifically
12 that we can't un-ring the bell, but it says:
13 "The presenting party must identify to the Trial Chamber and the
14 other party the name of the statement, make or prior of the witness, the
15 date of the statement or transcript, and page references of the portions
16 statement of the transcript which will be read out in Court or referred
17 to. However, this information shall not be disclosed to the witness in
18 court. The second it was brought up on the screen, we were already in
19 violation of the guide-lines. While we certainly understand he can
20 cross-examine this witness on anything within his knowledge if he has a
21 reasonable basis for asking the question, however, to do it in this
22 specific manner is a clear violation.
23 JUDGE MOLOTO: Mr. Guy-Smith, you will make sure, therefore, to
24 the extent that you can still comply with 12, paragraph 12, make sure you
25 do comply with paragraph 12.
1 MR. GUY-SMITH: I would at this point then ask that the witness
2 be excused.
3 JUDGE MOLOTO: May the witness please be excused. Shall we
4 please move into private session.
5 [Private session]
15 [Open session]
16 THE REGISTRAR: Your Honours, we are back in open session.
17 JUDGE MOLOTO: Thank you very much. We'll take a break and come
18 back at quarter to 11.00. Court adjourned.
19 --- Recess taken at 10.14 a.m.
20 --- On resuming at 10.46 a.m.
21 JUDGE MOLOTO: I'm told you asked that the witness not be brought
22 in yet, Mr. Guy-Smith.
23 MR. GUY-SMITH: That's correct. Very briefly, I'm going to be
24 questioning -- because of the concerns raised by Ms. Carter and because I
25 want to try to keep whatever issues ultimately presented as pure as
1 possible with regard to the variety of matters, I have informed
2 Ms. Carter and I will inform the Chamber that I intend on cross-examining
3 the witness concerning a statement made by Thomas last name is Hansen,
4 H-a-n-s-e-n. The statement was taken on the 8th and 9th of September
5 1995 by interviewers Jan van Hecke, that's H-e-c-k-e and Todd Cleaver.
6 I'm going to be asking him questions specifically in relation to page 2
7 which is identified as ERN number 0064-6492, the last full paragraph.
8 And page 3, which would be of course the next ERN number in order. With
9 regard to paragraphs 2 -- I believe -- I don't know if I have mentioned 2
10 to you, before, Ms. Carter. 2, 3, 4, and 8, and I'm counting them off
11 just because these are not numbered paragraphs. This was a statement
12 that was taken, as I understand it, by the Office of the Prosecutor and
13 was forwarded to us pursuant to Rule 68. And with that being said, we
14 can then call in the witness. But to the extent that Ms. Carter
15 indicated there were some concerns about guide-line paragraph 12, I want
16 to make sure that we don't run into any further difficulties.
17 JUDGE MOLOTO: Any comments to make, Ms. Carter?
18 MS. CARTER: None, Your Honour.
19 JUDGE MOLOTO: Thank you.
20 You may call the witness.
21 May we move into private session for the purposes of the
22 witness's entry.
23 [Private session]
11 Pages 2764-2765 redacted. Private session.
10 [Open session]
11 THE REGISTRAR: Your Honours, we are back in open session.
12 JUDGE MOLOTO: Thank you very much.
13 Yes, Mr. Guy-Smith.
14 MR. GUY-SMITH:
15 Q. I'm going to read something to you and ask you some questions
16 about it, okay. I'm now referring the Court and counsel to the matter
17 that we discussed in the absence of the witness beforehand, and I'm
18 referring the Court and counsel to page 2:
19 "I think we finally arrived on the scene about" --
20 JUDGE MOLOTO: We don't have that page 2 now that it is not
21 displayed on the e-court.
22 MR. GUY-SMITH: Is there -- I ask the usher, is there a way of
23 displaying the page to the Chamber and to not have it displayed on the
24 screen for the witness?
25 JUDGE MOLOTO: Is that possible? Is that possible, Mr.
2 MR. GUY-SMITH: I don't know. I think it's being asked.
3 [Trial Chamber and registrar confer]
4 JUDGE MOLOTO: It's not possible.
5 MS. CARTER: Your Honour, to facilitate, I actually have hard
6 copies of the document that at issue in triplicate for the Court. I just
7 notifying Mr. Smith --
8 MR. GUY-SMITH: Thank you.
9 MS. CARTER: That on the top right corner, I did write the
10 previously exhibit number and the place that it was admitted in the
11 transcript, but that's the only writing that was on it.
12 MR. GUY-SMITH: Fine, not a problem. I thank you for your
13 assistance in this regard.
14 Q. And I'm referring to page 2, the bottom paragraph which starts
15 with the words "I think ..."
16 "I think we finally arrived on the scene about 1 to 1 and a half
17 hour after impact. At the time we arrived, the Bosnian police had
18 already carried out their investigation, and the investigation team had
20 Before I go any further, when you were engaged in your
21 investigation, did you engage in your investigation with any other team?
22 Were there any other people there investigating at the time that you were
24 A. The team that conducted the investigation was a mixed team. The
25 local Sarajevo
1 seven members, two of whom were from a higher level from the ministry of
2 police. One of them being myself, and the other, a member from the KDZ.
3 So we conducted an investigation because it was our responsibility. It
4 was our obligation to do after our flag was recognised in New York
5 as a state, we were the ones who had the right and obligation to conduct
6 this investigation.
7 Q. At the time that you were conducting the investigation with the
8 mixed team that you discussed, were there, to your knowledge, any
9 international teams conducting an investigation of the same incident that
10 you were conducting the investigation of on June 18th at the school, at
11 that time while you were doing your investigation on site?
12 A. It is hard to say. I can't claim that I recall that. It is
13 possible that toward the end of the investigation, there were some other
14 people there taking part in it, but I cannot be more specific. I do know
15 that after our investigation there were some, let's call them foreigners
16 who also conducted an investigation.
17 Q. Okay. Thank you.
18 I'm going to continue:
19 "Anyway, we were accompanied by a Bosnian official when we went
20 to the scene. The only thing we could see at the scene was an impact on
21 the west side of a wall 4 metres above ground level and some blood and
22 brains and human parts."
23 I'll stop there. When you were engaged in your investigation,
24 did you see an impact point approximately 4 metres above ground level?
25 A. That was the key detail in conducting an investigation, or this
1 particular investigation. As such, it was prominent in the next
2 following days. Of course, based on this, we concluded the direction
3 from which the shell came and the azimuth.
4 Q. And I take it would it be fair to say that with regard to the
5 blood and other human remains that were found, you also, during the time
6 that you were investigating the matter, saw that too, and unfortunately
7 so, but you saw that too; correct?
8 A. Of course because the bodies were dismembered, the killed people
9 had been massacred and dismembered taken away before we came so that when
10 we arrived we saw huge quantity of blood and parts of brains because the
11 explosion came from above the people's heads, and this is what we saw
12 when we arrived at the scene.
13 Q. I continue:
14 "By seeing the impact, in my opinion the shell came from the
15 west, eventually from the north-west. The tail-fin was already removed
16 by the Bosnian police and the victims were brought to Dobrinja hospital."
17 Now, my question to you is, were you involved in removing the
18 tail-fin, and there's nothing wrong with that obviously, from the site
19 during your investigation? Is that something that you were involved in
21 A. The investigating team always in events such as these collects
22 the material traces of the origin of the fact. The tail-fin is the crown
23 exhibit, the crown piece of evidence about the type of the incident, and
24 the traces at the spot of the explosion are actually proof about the
25 direction, the azimuth of the arrival of the shell. I personally did not
1 remove the tail-fin. It is a routinely collected with other parts, with
2 other segments, and it is taken to the KDZ centre for further analysis.
3 Q. And to your knowledge, were the victims brought to the Dobrinja
5 A. To my knowledge, the victims were taken to the Dobrinja mortuary,
6 to the morgue, it was by the Dobrinja hospital, and it was used very
8 Q. I continue:
9 "So we could not do a proper investigation. By the way the
10 shell hit the wall it was obvious that the shell was fired from a roughly
11 west position."
12 With regard to that statement, does that statement comport with
13 your investigation? And by that I mean that the shell was fired from a
14 roughly west position?
15 A. Yes, however, the claim that the shell came from either the west
16 or the north-west is much more imprecise, and in our finding we ascertain
17 that it had come from the north-west. And these two claims are not on a
18 collision course. But this other assertion is more precise.
19 JUDGE MOLOTO: Sorry. According to your determination, which
20 site did it come from? I heard something slightly different on the
22 THE WITNESS: [Interpretation] According to our finding, the shell
23 had come from the direction which is shown by the azimuth which is the
24 north-west direction.
25 MR. GUY-SMITH:
1 Q. I'm now going to page 3 for the Chamber's and counsel's
2 information, starting on the second paragraph:
3 "In the hospital, a Bosnian official showed me a tail-fin that he
4 said they found at the scene. It was definitely a tail-fin of 120
5 millimetre shell."
6 Were you involved in showing anyone at the hospital a tail-fin
7 concerning the incident on June 18th? And by that I mean, were you
8 personally involved, yes or no, in showing any international -- let me
9 make the question a little more precise, any international, a tail-fin?
10 A. The tail-fin, not me. No, I was not at the hospital. I had no
11 occasion, nor did I -- was I in possession of that tail-fin, nor did I
12 show it to internationals. Probably it was someone from this team who
13 took the foreigners to the hospital, and as they had taken the tail-fin
14 as a material piece of evidence for further analysis, they probably could
15 have shown it to them. Why not.
16 Q. Thank you for your answer.
17 "Of course it was impossible for me to know ..." I continue with
18 the statement.
19 "Of course it was impossible for me to know if this was a
20 tail-fin of this incident, but there was no reason to lie about this.
21 Because we could not carry on investigation, we could not confirm the
22 findings of the Bosnian police."
23 My question at this point is, did you ever have a joint
24 meeting -- once again, I'm talking about you personally. Did you ever
25 have a joint meeting or a joint discussion with the international
1 investigation team concerning this particular incident? Once again, it's
2 always the incident on June 18th, the school incident. Did you do that
4 A. I do not recall having participated in any such joint meeting
5 myself. However, the international forces wanted to be seen as our
6 supervisors, like it was that we sometimes knew things, sometimes did
7 not, and they always knew what was the case. I think it was just the
9 Q. Sorry, when you say you think it was just the opposite, I take it
10 -- I'm not sure what you mean by that. What was just the opposite?
11 A. I'm saying that it is the opposite in the material since. That
12 is, that the international forces should be our supervisors, because in
13 such instances, in such cases we have a far vaster experience, we had,
14 than the international forces. Just as war surgeons had by far a greater
15 war experience as surgeons than the -- their counterparts in London
16 They had a three-year experience by that time.
17 Q. Okay. I think I understand what you are saying now. What you
18 are saying is that the international forces took the position that they
19 always knew what was the case. And as a matter of fact, you think --
20 it's your opinion that by virtue of your experience on the ground that
21 that wasn't accurate at all, that they were not the people who knew what
22 was going on all the time but rather you people who had been experiencing
23 the situation and had been involved in a great number of investigations
24 were the individuals who actually knew what was happening? Is that a
25 fair statement?
1 A. Your question is not exactly precise, but a large number of cases
2 confirm exactly what you have said and what I'm stating.
3 Q. I'll continue with what the statement says:
4 "The only thing we could determine was that the general direction
5 of the firing had to be west to north-west. When you see the
6 confrontation line west to north-west from the point of impact, it is
7 almost impossible to determine whether the shell was fired by a BiH or a
8 BSA mortar. With a possible ranges for a 120 millimetre shell, it could
9 have been fired from either side."
10 Now, my first question is this: With regard to the issue of
11 possible ranges of a 120 millimetre shell, could you tell us what the
12 possible ranges are of such a shell, if you know?
13 A. The gentlemen's claim that the shell could have been fired from
14 the west from our positions is a claim --
15 Q. Sorry, sir, I hate to interrupt you. I ask you a very specific
16 question, and then I will ask you other questions. My first question is
17 this: With regard to the issue of possible ranges of a 120 millimetre
18 shell, could you possibly tell us what the ranges are of such a shell, if
19 you know?
20 A. A couple of kilometres. However, the range figures have faded
21 from my memory. But it is a big range of that shell, it is impossible to
22 fire from a close range which would correspond to its having been fired
23 from our positions which is a couple of metres, a couple of hundred
24 metres. That would be as if a plane took off from this courtroom here as
25 its runway, which is impossible.
1 Q. Is it your testimony that the confrontation line with -- in
2 relationship to the school was a couple of hundred metres away? Is that
3 what you are telling us here? And by a couple of hundred metres, I take
4 it you mean 200 metres?
5 A. From the place where the shell fell to the west towards
6 Nedzarici, it is indeed a couple of hundred metres, but not -- 200
7 metres, a bit more than that. But that can be established from looking
8 at a map. We can establish the exact number of metres. In looking in
9 hindsight from today, the line of separation towards the west and its
10 distance from the place where the shell impacted.
11 Q. When you were doing your investigation on the 18th, and did you
12 at that time take into account the confrontation line and the location of
13 your forces in relationship to the school?
14 A. That was not an essential factor in the analysis.
15 Q. I take it your answer would be, no, you did not do that?
16 A. We used a map which this [indiscernible] Tribunal is familiar
17 with. I've seen it in my previous giving of testimony, and I drew in the
18 precise line of the azimuth and the firing position from the location in
19 Nedzarici. And that map shows exactly the line of separation, the
20 positions of the other party, and that is quite clear on the map.
21 Q. During the time that you were involved in investigations in 1995,
22 were you aware of the fact that your army had captured mortar shells from
23 the enemy?
24 A. I'm not quite certain that I understand this question, but in
25 every occasion we capture shells in order to defend ourselves and we
1 manufacture our own whenever we were in a position to do so. So the
2 assumption does not stand that we were bare-handed and would take
3 something which belongs to another. Of course, we did take all ordinals
4 that we could lay our hands on in the course of the exchange of fire, and
5 we used them for our Defence.
6 Q. I certainly meant no insult there in terms of your capabilities
7 or the amount that you had military assets. So let me ask you this
8 question: During this period of time, would it be fair to say that your
9 army was in possession of mortars and included in that were mortars that
10 were 120 millimetres?
11 A. Yes, of course we were in possession of them, and we produced,
12 manufactured most of the shells for these mortar in several towns in
13 Bosnia-Herzegovina because we had very competent personnel in our
14 industry in Bosnia
15 Q. And what towns in Bosnia-Herzegovina were you manufacturing these
16 mortar shells?
17 A. For instance in Tesanj.
18 Q. Anywhere else?
19 A. I know that there were several other organised manufacturing
20 facilities, but I do not know the details.
21 Q. When you say "several," without knowing the details, could you
22 tell us how many, and by that I mean the word several could mean two, it
23 could mean ten, and if you could give us a number of other manufacturing
24 facilities that you were aware of during this period of time, that would
25 be appreciated.
1 A. At that time I was a member of a special police detachment for
2 investigations of the time that we are discussing. All the details
3 associated with military tactics, strategy, and logistics is something I
4 was not privy to and was not familiar with, nor were they informed about
5 that. As a recognised, internationally recognised country, we could and
6 were able to manufacture weapons for our own defence because the embargo
7 actually did not apply to us.
8 Q. And when you say the embargo did not apply to you, could you tell
9 the Chamber which embargo you are referring to?
10 A. I'm referring to the arms embargo, but you did not hear me
11 properly. It was mistranslated. What I said was, that the embargo for
12 the import of arms applied to only Bosnia-Herzegovina, everybody else had
13 free access to the arms trade, and it was indeed a very vigorous trade.
14 Q. Were there issues concerning a request by your government at the
15 time to lift that embargo?
16 A. There were countless requests to that effect by our minister of
17 the -- of foreign affairs at that time, who I think was Haris Silajdzic
18 and all international meetings. And in such context we requested for
19 that embargo to be lift because it was detrimental to only the Army of
20 Bosnia-Herzegovina in those circumstances.
21 MR. GUY-SMITH: Thank you. I have no further questions.
22 JUDGE MOLOTO: Thank you very much.
23 Any re-examination, Madam Carter?
24 MS. CARTER: Yes, Your Honour. And with leave of the Court,
25 based on this examination of this document, it brings up two other
1 documents that were submitted to the Prosecution by the Defence as
2 potential exhibits that I would like to address in the redirect
3 examination. It's coming strictly from what was brought out in the
4 cross-examination. These are not on our original 92 ter package, but we
5 do believe that the door has now been opened to use them.
6 JUDGE MOLOTO: Are you saying that the Defence did refer to those
8 MS. CARTER: When the Defence was making their submissions
9 earlier and they indicated that there were multiple documents at issue
10 along with the statement that we've just been referring to, these are the
11 documents that I am now referring to that I would like to be able to use
12 them --
13 JUDGE MOLOTO: Yeah, but my question is, did the Defence use
15 MS. CARTER: The Defence did not use them yet, no.
16 JUDGE MOLOTO: Why would you then want to use them, Madam Carter?
17 MS. CARTER: Because the Defence has now brought into question
18 the line of fire from that shell, and these documents provided by the
19 Defence would allow us to address that more fully and more completely.
20 JUDGE MOLOTO: Any comments, Mr. Guy-Smith?
21 MR. GUY-SMITH: Submitted. No comments.
22 JUDGE MOLOTO: Thank you.
23 You may proceed.
24 MS. CARTER: Thank you, Your Honour.
25 Re-examination by Ms. Carter:
1 MS. CARTER: The document that was provided to us by the Defence
2 had Defence number D000-4571, but it also maintains a 65 ter number from
3 the Prosecution of 8594. So I'd like to have it brought up under 8594,
5 JUDGE MOLOTO: Is that a document that you are now going to
6 expose to the witness?
7 MS. CARTER: Yes, Your Honour, it is a UN headquarter daily
8 sitrep as opposed to a statement. Or I can simply ask questions and not
9 have the witness see the document as well. Either is fine.
10 MR. GUY-SMITH: I think that is be probably a preferable in this
11 instance, considering the document --
12 JUDGE MOLOTO: Thank you, Madam Carter.
13 MS. CARTER:
14 Q. Sir, you were discussing the shell that fell on to the
15 Simon Bolivar school with Defence counsel, and I want to explore that a
16 little further with you. The UN headquarters -- were you aware that the
17 UN headquarters was monitoring all of the activity in Sarajevo
18 A. We had information that the UN headquarters had a monitoring
19 system of the trajectories of all the artillery weapons about Sarajevo
20 and they had data about all of the artillery positions about the army of
21 the Bosnian Serbs and the army of Bosnia and Herzegovina, and that they
22 knew much more than they would let on.
23 Q. Would it surprise you that the UN HQ was actually monitoring
24 every cease-fire violation and firing incident that was taking place in
1 MR. GUY-SMITH: To the extent that the question goes beyond the
2 cross-examination, I object to it. And it does.
3 JUDGE MOLOTO: Do you have any response?
4 MS. CARTER: Simply, Your Honour, to lay the foundation of going
5 directly to what was discussed in cross-examination.
6 JUDGE MOLOTO: The question is allowed.
7 MS. CARTER: Okay.
8 Q. Sir, I'll repeat my question.
9 Would it surprise you that the UN HQ was actually monitoring
10 every cease-fire and firing incident that was taking place in Sarajevo
11 A. No, it would not surprise me because I know that they monitored
12 everything, and that suited us. Although there had been some ill-meant
13 interpretations and analyses on the part of the UN troops such as a
14 shooting incident with many people, deaths where the mortar was -- mortar
15 was used with a table used from the -- in the Chinese war, so that the
16 analysis results were quite different. But what you asked me about that,
17 that would not surprise me at all.
18 Q. Sir, I appreciate that you have quite a familiarity with what
19 occurred in Sarajevo
20 the question I specifically ask.
21 Sir, on June -- sorry. On June 18th, 1995, would it surprise you
22 that the UNMO had registered 69 cease-fire breaches? Would that seem
23 consistent with your experience?
24 MR. GUY-SMITH: Well -- I'll let it go.
25 MS. CARTER:
1 Q. On that singular day, would it surprise you that there were 69
2 cease-fire breaches in Sarajevo
3 A. No, it would not surprise me because it was the rule. Every time
4 a cease-fire was proclaimed, there would be a massive shelling following.
5 That was the rule. So that would not surprise me.
6 Q. Sir, I want to know if this is consistent with your experience on
7 that day. At date time group 11.46, there was a singular explosion in --
8 MR. GUY-SMITH: Page, please.
9 MS. CARTER: It's on page 8 of the document.
10 Q. That of the day at 11.46, there's a single explosion in Dobrinja,
11 and it was fired by the Bosnian/Serb army, is this consistent with your
13 A. Absolutely. Absolutely correct.
14 Q. And, sir, is it also consistent with your experience in Dobrinja
15 that that was the only incident that took place in Dobrinja on 18 June
17 A. I think that it was the only one in Dobrinja.
18 JUDGE MOLOTO: Madam Carter, could you please switch off your
19 microphone when the witness is answering. We are here on voice
20 distortion. And secondly, you are talking of page 8 of a document which
21 we have no access to.
22 MS. CARTER: Your Honour, the document can go up on e-court at
23 8594, or I do have hard copies as before.
24 JUDGE MOLOTO: Yes, please, ma'am.
25 In fact, I think it would be preferable if it went up here
1 because then it forms part of the record, unless there is any special
2 objection from the Defence.
3 MR. GUY-SMITH: None.
4 JUDGE MOLOTO: Thank you.
5 MS. CARTER:
6 Q. All right. Sir, now that we've discussed the direction of the
7 shell that hit Dobrinja, I would now like to discuss the shell itself.
8 Did your unit have the opportunity to analyse that 120 millimetre shell?
9 A. Excuse me, are you referring to the traces which remained there
10 and the tail-fin because this is the shell after the explosion. This is
11 what you have after an explosion.
12 Q. I'm specifically referring to the primary charge and the
13 stabilizer. Did your team have the opportunity to review that?
14 A. Yes, we studied those parts, and more importantly, we also
15 studied the geometry of the trace following the explosion, the trace left
16 on the wall. On the basis of which we concluded what the azimuth was.
17 Q. And I thank you, sir, for that. Fortunately in your prior
18 testimony, you were quite verbose in regards to the tracings on the
19 outside, so I want to focus specifically on the shell itself.
20 JUDGE MOLOTO: Just so that you take us along with you,
21 Madam Carter, we have the document here, and I'm not sure whether you are
22 discussing the Dobrinja shelling, or are you discussing the shelling of
23 the 18th of June, 1995, which was at a school, Simon Bolivar school.
24 Where are you?
25 MS. CARTER: Your Honour, I have moved off of the direction of
1 fire. The indication is -- and within the transcript was that that was
2 registered at 11.40 in Dobrinja. And I what I was attempting to elicit
3 from the witness and for the Court's attention is that there's only one
4 single firing into Dobrinja at all on the 18th. It is consistent with
5 the time that we have indicated, and that the firing position was
6 actually from the Bosnian/Serb army. So I completed that line of
7 questioning. Now I've moved on to the specifics of the investigation and
8 the shell itself.
9 JUDGE MOLOTO: But which incident is this?
10 MS. CARTER: It's A7, Your Honour, on 18 June, 1995.
11 JUDGE MOLOTO: Thank you very much.
12 Can I ask you this question, Madam Carter, is this incident you
13 are discussing discussed in the witness's statement that has been
14 tendered into evidence?
15 MS. CARTER: At paragraph 12, Your Honour.
16 JUDGE MOLOTO: Paragraph 12. Very well. Now, at paragraph 12
17 the incident that is being discussed there refers to an incident at the
18 Simon Bolivar school. Is that what you are discussing?
19 MS. CARTER: Correct, Your Honour.
20 JUDGE MOLOTO: Now, I hear you talking of Dobrinja. How does
21 Dobrinja come in? Is this school in Dobrinja?
22 MS. CARTER: Yes, Your Honour.
23 JUDGE MOLOTO: We don't know that.
24 MS. CARTER: I apologise. I'll lay the foundation.
25 Q. Sir, can you confirm where is the Simon Bolivar school located in
2 A. Simon Bolivar school is in the centre of down-town Dobrinja,
3 that's the new part of the town. It is almost a separate municipality,
4 it's a settlement. And this school was right in the middle of this
5 settlement, so practically it's the same location.
6 Q. Thank you, sir.
7 MS. CARTER: Did that clarify the Court's question?
8 JUDGE MOLOTO: Yes, thank you so much.
9 MS. CARTER: Thank you.
10 Q. All right. Sir, I had like to turn your attention to the shell
11 itself, the projectile, and the primary charge and the stabilizer. Did
12 your team --
13 MR. GUY-SMITH: I'm going to object. This has been asked and
14 answered and is part of their 92 ter package.
15 MS. CARTER: With all due respect --
16 JUDGE MOLOTO: Sorry, just a second. What has been asked and
17 answered, Mr. Guy-Smith? I haven't heard the question.
18 MR. GUY-SMITH: Issues concerning investigations of primary
19 charge and stabilizers.
20 JUDGE MOLOTO: Yeah, but we don't know what the question is going
21 to be. She is just turning his attention to them, and you --
22 MR. GUY-SMITH: I'll wait. I'll wait. I'll wait.
23 MS. CARTER:
24 Q. In order to address what was being discussed in the
25 cross-examination, sir, you were asked about the Bosnian's abilities to
1 receive shells from Defence counsel. And so what I would like to cover
2 with you is the possession of the 120 millimetre shell that is at issue
3 at the Simon Bolivar school?
4 Did you have an opportunity to investigate that specific charge?
5 A. I had the opportunity to examine this and also the tail-fin in
6 the charge, but in order to clarify the transcript, you mentioned the
7 ability of the Bosnian army to receive shells. Do you mean manufacture?
8 Q. It was posited that you would either be able to retrieve such
9 shells from the Serbian side or receive them from other means. And so
10 what I'm trying to determine from you is, the shell at issue, where did
11 that shell come from in regards to the manufacturing?
12 MR. GUY-SMITH: Well, as a matter of fact, it wasn't received at
13 all, but rather capture as opposed to receive. I don't believe that
14 gifts were being made as between conflicting armies.
15 JUDGE MOLOTO: Fair enough. But after having captured it, you
16 had it in your possession, isn't it? Would you like it to answer the
18 THE WITNESS: [Interpretation] The tail-fin of the shell is key,
19 the key element to analyse the type of projectile. And because it also
20 has on its body the initial primary charge, there would be the initials
21 there imprinted "KB Krusik" with the month and year of manufacture. This
22 is a routine matter where every item that is used in war-time, including
23 war-time items would bear these markings. And that's how we recognise
24 where it came from. And most often this is part of our reports where we
25 always mention both the year and place of manufacture of a shell.
1 Q. Sir, specifically with regards to the charge that was found at
2 the Simon Bolivar school, are you aware of the markings on that charge?
3 MR. GUY-SMITH: Well, once again, now this is asked and answered.
4 This was part of the 92 ter package. It's part of their case in chief,
5 no examination was made with regard to this specific issue, and the
6 evidence has already been elicited by virtue of the manner in which the
7 Prosecution has chose to present it to the Chamber. And it's contained
8 not only in this gentleman's statement but also in his examination.
9 JUDGE MOLOTO: Well, I guess the witness was asked by the Defence
10 or it was put to the witness by the Defence that the Bosnian army did
11 capture some shells from the Bosnian/Serb army, and therefore I
12 understand this question then to be saying, to trying to establish where
13 this specific shell came from. And for that --
14 MR. GUY-SMITH: They have done so. In the statement they have
15 done so. It has been done.
16 JUDGE MOLOTO: They did so and the Defence put certain questions
17 to the witness to contradict that. The objection is overruled.
18 MS. CARTER: Thank you, Your Honour.
19 Q. Sir, did you have the opportunity to determine the manufacturer
20 of the specific shell that hit the Simon Bolivar school?
21 A. Yes, and it is in the report that we saw yesterday as well, and
22 as far as I can recall, it was Krusik, Valjevo KB, with a month of
23 manufacture which is from the war-time period, in fact.
24 Q. And where is Krusik, Valjevo?
25 A. Krusik is the factory, and Valjevo is a town in Serbia
1 well known military complex, military production complex in Serbia.
2 Q. Sir, there was an implication during cross-examination that you
3 were able to capture certain shell rounds. Is that correct?
4 A. The examination -- the purpose of the examination was that this
5 is where the shell came from. However, this is an old story. It is
6 impossible, really, to bring in connection the capture of shells by our
7 side with this event in any sense, and this is absolutely not true.
8 Q. Sir, when the Bosnian army is capable of capturing a shell that
9 was fired from the Serbian army, is it possible then to just shoot it
11 A. No. Once a shell is fired, it becomes useless. The only thing
12 that can be used, if it is unexploded, we can use the explosive in it and
13 produce some other item.
14 Q. So just so we can be clear, if the Bosnian army had been able to
15 capture a shell such as the one that was found in the Simon Bolivar
16 school, would it have been able to fire it again at itself and hit its
17 own targets?
18 MR. GUY-SMITH: Well, that -- unfortunately the hypothetical as
19 posited may well be outside of the purview of this witness's knowledge,
20 but independent of that, it makes an assumption, and that is the
21 assumption is that the only time that the shell could have been captured
22 would have been after firing, which is not what the cross-examination
23 went to, and certainly not what this gentleman testified to.
24 One of the things that happens during a war is that armies do
25 obtain the assets of their opponents in a pristine form, not in a used
2 JUDGE MOLOTO: That may be so. What is your ground of objection,
3 if you are objecting at all?
4 MR. GUY-SMITH: The objection is that it is outside of the
5 examination -- cross-examination. And it is irrelevant to the questions
6 that were posited to this gentleman during cross-examination.
7 JUDGE MOLOTO: Okay. Thank you. Now I understand you.
8 The objection is overruled.
9 MS. CARTER:
10 Q. Sir, I'll re-ask the question. Is it possible to -- is it
11 possible to refire a captured shell to the event that the Bosnian army
12 would have been able to use a Serbian weapon to hit the Simon Bolivar
14 JUDGE MOLOTO: I don't understand the question. I don't know
15 whether the witness does.
16 THE WITNESS: [Interpretation] I think I do.
17 JUDGE MOLOTO: If you do, go ahead.
18 THE WITNESS: [Interpretation] The dilemma here is whether a shell
19 once fired can again be used to be fired. The answer is no. However, a
20 captured shell that is pristine, that hasn't been used, it can be
21 re-used, of course.
22 MS. CARTER:
23 Q. To your knowledge, did the Bosnian -- was the Bosnian army able
24 to capture in pristine condition 120 millimetre shells on or about
25 June 18th, 1995
1 A. As far as that period is concerned, I have no information as to
2 that. I was a member of the police force, and the army had a different
3 task and different logistics and so on. However, I think it is
4 impossible to tie or make any connection between the capture of the
5 shells, our capturing of the shells from the Serbs, and this events. I
6 think this is something that has been insinuated throughout the period
7 after the war and during the war that we actually fired on our own
9 MS. CARTER: Your Honour, at this time I have no further
10 questions of the witness.
11 JUDGE MOLOTO: Thank you, Madam Carter.
12 Questioned by the Court:
13 JUDGE MOLOTO: Do you know whether -- beg your pardon, not
14 whether but what the Bosnian army did with captured shells?
15 A. As far as the information that I had, the captured shells were
16 activated right there on the frontline. They were put in action on the
17 frontlines so that they could be used because you needed to fire
18 ammunition. That's what it is used for. And it was used as a very
19 valuable asset on the most critical parts of the frontline.
20 JUDGE MOLOTO: Are you saying that when it gets fired right at
21 the place where it gets captured, is that what you are saying when you
22 say right there on the frontline? Is that what you mean?
23 A. What I mean is, once you have such shells in your possession,
24 then they are taken to the places where they are most needed. That can
25 be a kilometre away from the place where they were captured or 50
1 kilometres. That would depend on where they were needed most on which
2 lines of defence, and they would be transported to that place according
3 to the assessment made by the army.
4 JUDGE MOLOTO: And do you know whether anything is done to them
5 before they are used?
6 A. No.
7 JUDGE MOLOTO: Thank you very much. Any questions arising from
8 the questions by the Chamber, Madam Carter?
9 MS. CARTER: No, Your Honour.
10 JUDGE MOLOTO: Mr. Guy-Smith?
11 MR. GUY-SMITH: None, Your Honour.
12 JUDGE MOLOTO: Thank you very much. I almost called you by name
13 in violating your protective measures. Mr. MP-238, this brings us to the
14 conclusion of your testimony, thank you so much for taking the time off
15 to come and testify. You are now excused, you may stand down and please
16 do travel well back home.
17 Before you leave --
18 THE WITNESS: [Interpretation] Thank you.
19 JUDGE MOLOTO: May the Chamber please move into private session.
20 [Private session]
14 [Open session]
15 THE REGISTRAR: Your Honours, we are back in open session.
16 JUDGE MOLOTO: Thank you so much. Mr. Saxon?
17 MR. SAXON: Just so be more precise following up what Ms. Carter
18 said, the Prosecution does not have more witnesses to call this week.
19 JUDGE MOLOTO: This week. Mr. Guy-Smith, I see you slug your
20 shoulders. Do you have anything to say.
21 MR. GUY-SMITH: I have no witnesses to call.
22 JUDGE MOLOTO: I wasn't asking about witnesses.
23 MR. GUY-SMITH: Sorry, I was just trying to make a slight joke.
24 JUDGE MOLOTO: Thank you. Okay. That brings us to the end of
25 today's hearing. And if we don't have any witnesses for the week, do we
1 have a witness for Monday the 26th?
2 MR. SAXON: Absolutely, Your Honour.
3 JUDGE MOLOTO: Okay. Then the matter stands adjourned to Monday
4 the 26th of January at 9.00 in the morning in Courtroom I. Court
6 --- Whereupon the hearing adjourned at 11.51 a.m.
7 to be reconvened on Monday, the 26th day of January
8 2009, at 9.00 a.m.