1 Thursday, 31 July 2008
2 [Open session]
3 [The accused entered court]
4 --- On resuming at 9.07 a.m.
5 JUDGE AGIUS: Good morning.
6 Madam Registrar, could you call the case, please.
7 THE REGISTRAR: Good morning, Your Honours. Good morning
8 everyone in and around the courtroom. This is case number IT-05-88-T,
9 the Prosecutor versus Vujadin Popovic et al.
10 JUDGE AGIUS: Thank you, ma'am.
11 For the record, we are sitting pursuant to Rule 15 bis today.
12 Judge Prost and Judge Stole are unable to attend.
13 I notice from amongst the accused, Beara is absent today.
14 Perhaps, Mr. Ostojic, you would like to address that matter with the
15 Trial Chamber. Do we have a waiver?
16 MR. OSTOJIC: Good morning, Mr. President. Good morning, Your
17 Honours. We do not have a waiver physically. We do have an oral waiver.
18 We spoke to Mr. Beara. We were with him last night from 6.00 to 8.00.
19 He was not feeling well and there was no staff really available for us to
20 communicate that immediately, and we just weren't sure this morning. Now
21 we know that he's not going to arrive, and it's forthcoming, the waiver.
22 It should be here before the close of our session today, so I
23 anticipating that.
24 JUDGE AGIUS: Okay. I thank you for your kindness, Mr. Beara --
25 Mr. Ostojic.
1 So also for the record, the Prosecution is represented by Mr. --
2 wait, wait, because I have got some preliminaries.
3 For the record, the Prosecution is represented today by
4 Mr. McCloskey and Ms. Soljan. From the Defence teams, I notice the
5 absence of Mr. Bourgon, and I think that's it.
6 All right. There are some matters we would like to raise with
7 you, this being probably the last day we are meeting before the recess.
8 Late yesterday evening, we received another motion from the
9 Nikolic Defence team, seeking leave to add one witness to his Rule 65 ter
10 list. We would like to know if the Prosecution is in a position to
11 respond to this motion now. In it, accused Nikolic seeks leave to add a
12 witness that the Defence met for the first time in early June of this
13 year. The submission is that both the co-accused and the Prosecution
14 will have ample time and opportunity to prepare for cross-examination.
15 We know that, as such, the motion in itself is not urgent, because the
16 Defence of Mr. Nikolic is not going to start tomorrow, but still, I mean,
17 the earlier we decide this, the more time you have to prepare yourselves.
18 Perhaps we could leave it until after the break.
19 MR. McCLOSKEY: Yes, Mr. President. This is the first I've
20 heard, but Mr. Nicholls is here and we'll have him look at it. I mean,
21 he's here today, and we'll have him look at it and be able to advise me
22 at the break.
23 JUDGE AGIUS: Yes.
24 Also, the Nikolic Defence team filed two motions in the last few
25 days, seeking protective measures, protective measures of various kinds.
1 Again, if we have your response, we could perhaps dispose of these two
2 motions in good time.
3 MR. McCLOSKEY: Yes, Mr. President. I am aware of those, and we
4 are working on those. And I will get back to you on the break on those
5 as well. I'm hopeful we can get those done before the break.
6 JUDGE AGIUS: Okay, especially the one seeking delay of
8 MR. McCLOSKEY: Yes. I know we're going to be objecting to that
9 and it should be a simple objection, I hope, and so I want to get that to
10 you as soon as possible.
11 JUDGE AGIUS: Okay, thank you.
12 And then you will recall that some time back earlier on this
13 month, basically in the beginning, 4th of July, the Miletic Defence team
14 filed a motion seeking instructions regarding interviews conducted by
15 other parties of witnesses on the Miletic witness list. The essence of
16 the motion was a request to the Trial Chamber to instruct all parties,
17 Prosecution and co-accused alike, to notify the Miletic Defence team of
18 their intention to interview the witnesses on the Miletic witness list,
19 pursuant to Rule 65 ter (G), and if a witness refuses to be interviewed,
20 to respect the decision of that particular witness or witnesses.
21 We have had two responses to that, one from the Pandurevic
22 Defence team that takes no position. The same approach was taken by the
23 Prosecution in its 16 July response. On the 17th, the Gvero Defence team
24 also replied, saying that they took no position on the merits. However,
25 they questioned the competence of this Trial Chamber to decide on the
2 You know that such like issues have arisen not only in other
3 cases but also in this case, albeit involving Prosecution witnesses
4 rather than Defence witnesses, and you also know that there is nothing
5 written in the Rules, probably mainly due to the fact that these belong
6 more to the area or fall more in the area of odontological or ethical
7 behaviour, rather than rules.
8 There are two options, and the first preference is for us to
9 invite you to discuss this amongst yourselves and come to an agreement,
10 the same way we did when, earlier on, we had the same question arising
11 involving the possible interviews of Prosecution witnesses. Only then we
12 did give you some indication of what we believe is the ideal or what is
13 the way that you should deal with these issues.
14 And considering that there has been no objection to -- formal
15 objection to Madame Fauveau's motion, perhaps again the best way to go
16 about it is to have a roundtable, and anyone who wishes to interview
17 Madame Fauveau's witnesses, or any or all of them, would better sit down
18 and discuss on the protocol.
19 However, we can tell you that what we consider to be the system
20 or the protocol that you should be aiming at; namely, any one of you,
21 referring to everyone here who wishes to interview a witness on the
22 Miletic witness list, should notify the Miletic Defence team of such an
23 intention. In other words, it should not be done behind the back of the
24 Miletic Defence team.
25 The second protocol maxim that we had indicated to you was that
1 if a witness declines -- refuses to be interviewed, then his or her
2 decision should be respected. This you will find also written down in
3 decisions of this Tribunal. I mean, I could refer you to a decision of
4 mine or my team in Oric and also another decision in the Mrksic case.
5 So, more or less, that should be the -- what should inspire you as to the
6 way you should be acting.
7 [Trial Chamber confers]
8 JUDGE AGIUS: Now, there is one final --
9 [Trial Chamber confers]
10 JUDGE AGIUS: All right. There is two final things.
11 One is: You were supposed yesterday -- by yesterday,
12 Mr. Ostojic, to file -- or Monday, in relation to the Prosecution motion,
13 we had set a deadline which expired yesterday.
14 MR. OSTOJIC: Yes, Your Honour, I'm familiar with that, and we
15 did file something late last night. We were in the prison, and when we
16 got back, we finished it. We attached an annex, and we set out exactly
17 what our position is on those three or four points that were raised.
18 I think two of them were actually discussed with the OTP a couple days
19 ago. We reached an accord on those. It's reflected in the motion. You
20 should be getting it this morning at some time, if you haven't already.
21 JUDGE AGIUS: Thank you.
22 Mr. McCloskey, have you seen this filing or not?
23 MR. McCLOSKEY: Not yet, but as you know, there is a Registry
24 delay sometimes. We appreciate courtesy copies.
25 JUDGE AGIUS: The thing is this: that short of an agreement
1 between you two, we will have to hand down a decision which might hurt,
2 and that decision would need to be issued by this Friday, at the latest.
3 That's tomorrow. So what I am suggesting is Madam Registrar will check
4 with the Registry what's happened to this filing, have a quick copy of it
5 sent upstairs here, or downstairs, or across - I don't know - and if you
6 could kindly come back to us during -- or after the first break.
7 MR. McCLOSKEY: Yes. No problem, Mr. President. And the 65 ter
8 motion of Nikolic, I now do remember that, discussing that with
9 Mr. Nicholls, and I don't think that's going to be a problem. But I'll
10 get back to you definitively at the break on that as well.
11 JUDGE AGIUS: Okay, thank you.
12 The last, and it has given us quite some -- quite a few problems
13 to decide. However, I agree with -- we agree with Ms. Fauveau that
14 barring a few exceptions here and there, we have moved or conducted --
15 managed to conduct this trial so far in a positive manner, and more or
16 less to our satisfaction, although we would have preferred if things
17 were -- had speeded up more. But our experience with you has been that
18 we found your words more or less were to be trusted, and when you
19 promised that extra time would translate into more efficiency and a
20 shorter case, that seems to have worked fine. We have -- although we are
21 not in perfect harmony ourselves on this, we are not unanimous on this,
22 we are agreeing that if we give you the -- if we start on the 25th of
23 August instead of the 20th of August, it will be to everyone's benefit.
24 The understanding is those of you who've still got to prepare for
25 their defence will try to utilise these few days - we're talking of
1 including Saturday and Sunday, we're talking of five days, so we're not
2 talking of much - but it gives you basically a week within which to
3 organise yourselves even better and perhaps reduce further your defence
5 We'll be sitting on the afternoon of the 25th, afternoon of the
6 25th. Although it's a Monday, we're sitting in the afternoon because of
7 arrangements we had to make with others.
8 All right. So we'll come back to other issues after the break.
9 Madam Usher, if you could kindly bring in the witness, please.
10 Let's try and finish with this witness at the earliest possible, please.
11 [The witness takes the stand]
12 WITNESS: SVETLANA RADOVANOVIC [Resumed]
13 [The witness answered through interpreter]
14 JUDGE AGIUS: Good morning to you, Professor.
15 THE WITNESS: [Interpretation] Good morning.
16 JUDGE AGIUS: We are going to make an effort to finish you off as
17 early as possible.
18 Mr. Lazarevic.
19 MR. LAZAREVIC: Good morning, Your Honours, and I'll do my best
20 to contribute to this topic.
21 Cross-examination by Mr. Lazarevic: [Continued]
22 Q. [Interpretation] Good morning, Ms. Radovanovic. I don't know if
23 you've had an opportunity to get some rest, because we had extended hours
25 A. Yes, thank you.
1 Q. I don't know if you recall where we stopped yesterday. I read
2 the transcript, and I noticed that the last topic that we were dealing
3 with was the analysis of 4D535, and I was explaining the four criteria
4 that the Borovcanin Defence was guided in producing it. Do you need me
5 to repeat the four criteria?
6 A. I remember them, so you don't have to repeat them.
7 Q. Thank you very much. And now that you've had an opportunity to
8 look at this document, of course you can confirm that what is identical
9 for all the persons on the list is that the grave-site in Glogova is the
10 place where all of them were found?
11 A. Yes.
12 Q. And what we can see on the list is that all the persons from this
13 list meet at least one of the remaining three criteria; namely, that the
14 exact date of their disappearance is not known or that it is after the
15 13th, rather, and that the place where they disappeared is at some
16 distance from the farming co-op in Kravica?
17 A. Yes, but there are some dates that precede the 13th of July.
18 Q. Yes, I fully agree with you. So only one of the three criteria.
19 So we have one that is common to all, the Glogova grave-site, and at
20 least one of the remaining three criteria have been met?
21 A. Yes, that's right.
22 Q. And of course you can confirm, although it is quite obvious, that
23 there are 95 persons listed here?
24 A. Yes.
25 MR. LAZAREVIC: If we can now go into private session. I will
1 just ask about a couple of entries on this list.
2 JUDGE AGIUS: Okay, let's do that. Private session, please.
3 [Private session]
11 Pages 24459-24472 redacted. Private session.
25 [Open session]
1 JUDGE AGIUS: All right. Thank you, Mr. Lazarevic.
2 I take it there are no further cross-examinations from the
3 Defence teams, which means I can now ask Madam Soljan from the
4 Prosecution to cross-examine the witness.
5 Go ahead.
6 MS. SOLJAN: Good morning, Your Honours.
7 JUDGE AGIUS: Good morning.
8 Cross-examination by Ms. Soljan:
9 Q. Good afternoon, Madam.
10 A. Good morning.
11 JUDGE AGIUS: Good morning to us and good afternoon to the
13 MS. SOLJAN: Feels like the afternoon, Your Honours, already.
14 Q. Good morning. My name is Lada Soljan, for the record. I am a
15 member of the Prosecution team in this case.
16 Now, we haven't met before, that's right, and we haven't
17 discussed this case in the past?
18 A. No, we haven't, no.
19 Q. Now, just before we get into the subject matter and the questions
20 I have for you, I wanted to double-check something.
21 In your report, you listed on the last two pages of it the 22
22 sources, reports, that you looked at in compiling your report; is that
24 A. Yes.
25 Q. And among those documents that I saw there, there were -- you
1 listed the six sources that had been used by the OTP demographers, the
2 OTP experts. They were the seven sources that you also list in your
3 report, six reports that were issued by Helge Brunborg and other
4 demographers, two articles, and a report by Dean Manning; is that
6 A. I suppose it's correct. As soon as I have listed them, it must
7 be correct.
8 Q. Okay. And just a clarification, please. Under number 7, you had
9 listed a document called "List of Exhumed and Identified Persons,
10 Srebrenica Region, ICMP Identified DNA List." Could you just clarify for
11 me what that list was, exactly?
12 A. In the course of my work, on several occasions I received seven
13 or eight versions of these lists, and that's why I did not list the
14 versions precisely. The versions were very different. I had an occasion
15 to see versions that were disclosed by the OTP, i.e., letters that were
16 sent by individuals from the International Commission for the
17 Identification of Persons sent to the demography department. In other
18 words, I saw versions relative and ranging in numbers from 4.000
19 something, and I can't tell you the exact numbers, 5.000 something, 8.000
20 something, and even 10.000 something. I can't give you the precise
21 numbers to give you at the moment, but I have those in the witness room.
22 I have two versions that I can show you in hard copy.
23 To sum it up, I've seen several versions of the same document.
24 Q. And just to clarify, when you were looking at them, were they in
25 Excel spreadsheet format or did you get hard copies of them, or Excel
1 spreadsheets that were on a CD?
2 A. No, nothing was in hard copy. However, what I do, everything is
3 in hard copy. I did my all -- all printing in order to be able to carry
4 out some comparisons and in order to arrive at a complete picture. In
5 other words, I never received anything in hard copy. Whatever I have in
6 hard copy is the printed versions of the material disclosed by the OTP
7 which I printed by myself. When I work, I always use -- I always
8 scribble on the margins, make my little notes, and that makes my work
9 easier for me.
10 Q. Okay. And you understood where this data, the one that you call
11 list of exhumed and identified persons, where it originated?
12 A. Absolutely. The origin is the demographic department of the OTP,
13 that's the origin. I don't have any other sources of lists that I might
14 have received from the Commission. All the documents originated from the
15 OTP. But based on some note of correspondence, I could see where they
16 had come from. There was correspondence about corrections, about
17 possible numbers, possible suggestions, and so on and so forth. That's
18 part of the correspondence attached to those lists.
19 Q. I think I may not have been clear enough when I was asking the
20 question. What I meant was: This document that you list as
21 ICMP-identified DNA lists, do you know what that source of that data is?
22 Who created that list or those lists?
23 A. According to what I could conclude from reading different
24 documents, this was done by the International Commission for
25 Identification, and the lists contain certain interventions, and I don't
1 mean corrections, but certain conclusions about people who were
2 identified, who were not, who were still missing, and this was done by
3 the expert demographers of the OTP in The Hague.
4 There are several lists. There's one which provides the names of
5 the persons and the DNA identification. You can see those. There's a
6 lot of duplicates because a lot of re-association was done.
7 Later on, you have the same lists, but then the demographic
8 department had compared them with the lists of missing and dead and
9 conclude that some persons are still missing, some were identified, and
10 so on and so forth.
11 The way I understood it is that the authors of those lists were
12 from the International Commission for Identification.
13 Q. Okay. And you're aware, Madam, that OTP experts considered it as
14 a primary source to be used together with the ICRC and the PHR lists in
15 the establishment of this -- of the new progress report?
16 A. You would have to define or clarify the meaning of a primary
17 source. In what terms can something be a primary source? What did they
18 use in order to establish who was identified? Is that the meaning of a
19 primary source, as you use it?
20 Q. "Primary source" in the sense in which, I think they -- they also
21 used it -- in which Helge Brunborg used it when he was testifying as
22 well, in the sense that the ICRC and the PHR lists were his primary
23 source, and he was now considering ICMP as a third primary source in
24 putting together the list of missing unidentified persons.
25 MR. OSTOJIC: Excuse me.
1 JUDGE AGIUS: Mr. Ostojic.
2 MR. OSTOJIC: I'm objecting only because I don't think my learned
3 friend answered the doctor's question as to how she defines "primary
4 source." She just said Dr. Brunborg utilised it as a primary source, but
5 I think the witness is asking for clarification as to what constitutes a
6 primary source.
7 JUDGE AGIUS: Yes, Ms. Soljan.
8 MS. SOLJAN: Your Honours, I don't actually -- I don't think I
9 need to be clarifying this. I just -- I think "primary source" is a
10 pretty clear -- it's being discussed in all of Mr. Brunborg's reports.
11 JUDGE AGIUS: Yes, I think everyone knows what a primary source
12 is, as distinct from a secondary one.
13 MS. SOLJAN: But I can move on.
14 THE WITNESS: [Interpretation] If you will allow me, I would like
15 to say something.
16 Irrespective of the interpretation of the term "primary," in my
17 report I say under item 6 that I also use data on the exhumed
18 unidentified persons, and they can be obtained only from the
19 International Commission of the Red Cross. Whether Mr. Brunborg used
20 those directly or not, I can't say, but I know that one of the
21 co-authors, Ms. Ewa Tabeau, compiled her list of 7.661 persons, and on
22 the margin or on the side she made her remark -- she put her remark:
23 "Identified," "still missing," and so on and so forth. I can't claim
24 that this was done by Mr. Brunborg and that he had requested that, but he
25 does mention that source in his report and that's why I listed it.
1 Whether it was a primary source to Mr. Brunborg or not, I wouldn't know,
2 because he did not dwell upon it, and he did not go into the greatest of
3 details in that respect.
4 MS. SOLJAN:
5 Q. In fact, I would beg to differ, in his direct examination he
6 actually specifically referred to it as his primary source, but I'll move
8 When you were preparing your expert report and your testimony for
9 this week, did you review any other testimony beyond Mr. Brunborg's?
10 A. Again, I don't understand "any other testimony about that."
11 About what?
12 Q. Any other related testimony in this case, any other testimony
13 related to demography, related to graves, related to the events of
14 Srebrenica, any testimony in the Popovic case.
15 A. I observed Dr. Brunborg's testimony. I was present at his
16 cross-examination. I observed Dr. Ewa Tabeau's testimony and also the
17 testimony of Dr. Mladen Kovacevic.
18 Q. Did you also have a chance to review the report of Mr. Kovacevic?
19 A. Yes.
20 Q. But you haven't seen or followed or read the testimony of
21 Dr. Thomas Parsons?
22 A. Dr. Thomas Parsons and the recording of his testimony I did not
23 see, but I read his letters to Ewa Tabeau about identification and about
24 reaching a certain number of identified persons eventually.
25 Q. And you didn't follow the testimony of Mr. Dean Manning, either,
1 did you, or read it?
2 A. I only read Mr. Dean Manning's reports. I did not read the
3 transcript of his testimony, nor did I watch him providing his testimony.
4 I read both reports by Dean Manning.
5 Q. Sorry, I cut you off. What you meant was, I presume, the June
6 and November 2007 reports of Mr. Manning.
7 A. To be really precise, I have them on me and I can tell you which
8 reports these are. One is June 2007, and the other is November 2007.
9 Q. And just additionally, did you listen to or read any of the
10 testimony of the forensics experts, such as Jose Baraybar, John [sic]
11 Haglund, John Clark, Richard Wright, or Christopher Lawrence, all of whom
12 testified in 2007?
13 A. I did not listen to them, but I listened to some other forensic
14 experts who did not testify in The Hague at this Tribunal, but rather at
15 the court in Sarajevo
17 Q. Therefore, since you didn't review the testimonies of these
18 individuals testifying in this current case, you also wouldn't have
19 reviewed any of the documents they had produced, any of their experts
20 reports, forensic expert reports; right?
21 A. If you are referring to the forensic experts that you mentioned
22 just a while ago, no, I really did not peruse any of their expert
23 reports. But I have to tell you something. The fact that I did not
24 review their reports is nothing that I deemed very important or
25 significant. I am interested in the possible number, and what the
1 forensic experts think, it is not up to me to be the judge of what they
2 think. What I did read was the detailed methodology for the
3 identification of bodies, which includes DNA analysis and some bone
4 analysis. I just wanted to have a rather broad picture of the methods
5 used in the process of identifying missing persons.
6 Q. Now, as you testified in the last few days here, your task was to
7 study all the reports that were prepared by the OTP experts, to look at
8 the sources that they used, to also consider other sources, and to come
9 up with your own report, analysing all that data; is that correct?
10 A. Yes.
11 Q. And you take issue with the results reached by the OTP experts
12 due to the sources that they use; is that right?
13 A. I contest the methodology that the OTP experts used to arrive at
14 the results that they have offered to this Court. I believe that the
15 methodology is completely wrong, non-scientific, that it is not used
16 anywhere else in the world but here at the Hague Tribunal, and I fully
17 believe that such methodology is not capable of delivering reliable
19 Q. But your conclusion during your testimony, as well as how you lay
20 it out in your report, isn't it, is that a part of the methodology is
21 also the sources that you used, and you're saying more sources should
22 have been used; the six sources that they'd been considering in their
23 analysis were not sufficient?
24 A. You probably did not understand me correctly. The first step in
25 the system called "methodology" is sources. Sources are part of any
1 methodology and cannot be separated from it.
2 The first step in methodology is the system of procedures to
3 arrive at results. If your first step is wrong, you can be as good a
4 methodologist as you may, but the result will always be problematic
5 because of the erroneous first step.
6 JUDGE AGIUS: All right. Whenever it's convenient to you,
7 Ms. Soljan, we'll have the break.
8 MS. SOLJAN: Your Honours, I can stop now and take it up in the
9 next -- after the break.
10 JUDGE AGIUS: We'll have a 25-minute break now. Thank you.
11 --- Recess taken at 10.30 a.m.
12 --- On resuming at 11.00 a.m.
13 JUDGE AGIUS: Yes, Ms. Soljan.
14 MS. SOLJAN: Thank you, Your Honours.
15 MR. McCLOSKEY: Excuse me, Mr. President.
16 If we could get maybe five minutes before the next break, and
17 Mr. Nicholls -- and we'll be able to deal with a couple of the issues
18 very briefly that you brought up before.
19 JUDGE AGIUS: All right. My idea, Mr. McCloskey, was to finish
20 today's sitting during the next break, if Ms. Soljan can promise us to do
21 that, leaving us five minutes or ten minutes.
22 Do you think you can do that, Ms. Soljan?
23 MS. SOLJAN: I will do my utmost, Your Honours.
24 JUDGE AGIUS: All right, thank you.
25 MS. SOLJAN:
1 Q. Hi, again. So we were just speaking about the work you were
2 doing and the work you were tasked to do by the Defence counsel. Just
3 briefly, using your own criteria and the sources you analysed, what would
4 your number of missing persons from Srebrenica be?
5 A. I don't know that. In order to be able to say -- to give the
6 accurate figure for the missing persons in Srebrenica, a lot of things
7 have to be done. You have to be able to inspect some other sources. You
8 have to know what Srebrenica is. You have to be sure that your sources
9 are reliable. So I would not dare at all to say what, in my opinion, is
10 the accurate figure for Srebrenica.
11 Q. Okay. So you, yourself, did not try to put together a list of
12 missing persons for Srebrenica?
13 A. No. That was not my task, and that was not a task that I would
14 accept in the current situation at this time. I would not be able to do
15 it properly.
16 Q. Have you -- while disputing the methodology of the demographics
17 experts of the OTP, have you taken any steps to confirm whether any
18 individuals on the missing and dead list are, in fact, alive?
19 A. Well, that was not my task, either. But your expert was able to
20 determine, as early as in 2000, that there are nine such persons, and in
21 2005, well, I can't give you the exact information, but I think he
22 determined that there were 20 something. And he used the
23 strictest-possible method, and your expert did not present a probability,
24 how many persons might still be determined to be alive had he used the
25 41st criterion.
1 Q. And, Madam, in the course of your testimony in the last few days,
2 you've made a few highly-critical remarks about Mr. Brunborg and the work
3 methodology of his team; is that not correct?
4 A. Well, I have to stress that this has nothing to do with
5 Mr. Brunborg as a person. I was critical of the expert and professional
6 who applied the methodology that is improper in this manner. And let me
7 underscore once again, Mr. Brunborg stated in his research -- he,
8 himself, said in his study that this was unique methodology. This means
9 that it has never been -- it had never been used before in any kind of
10 scientific research.
11 Q. So when you are calling the work being done as result driven,
12 stating terms like "manipulation," "statistical exhibitionism," saying
13 that he's looking for elements that suit his end result, that he would
14 really like at any cost to find as many missing and dead as possible,
15 doing something like that seems to imply dishonesty, that you're saying
16 that he's dishonest; is that not correct?
17 A. Well, I wouldn't agree with you. I don't know Mr. Brunborg, and
18 I don't know whether he is an honest or a dishonest man. But I read his
19 CV, and Mr. Brunborg graduated from great schools, highly-esteemed
20 schools. He has been working in statistics bureau of Norway
21 and their statistics is one of the highly developed in Europe. So I
22 really can't comprehend how Mr. Brunborg can apply certain methods in the
23 way that he's done, and that's what I'm critical of. And now whether
24 Mr. Brunborg is honest or dishonest, that has nothing to do with what I'm
25 saying. He's just not doing this in a professionally-proper manner.
1 Now, as to the reasons why he is doing that, I don't know that either.
2 Q. Madam, at the end of the day, what this is all about is simply
3 figuring out how many persons went missing or died after the fall of
4 Srebrenica in 1995; is that correct?
5 A. According to what Mr. Brunborg writes in his reports, he says
6 that he was tasked by the Prosecution to determine the number of persons
7 that went missing, and in the paper, The Genocide Count, he says that his
8 task is to determine the number of persons killed by the army of
9 Republika Srpska. So I'm just quoting from what Mr. Brunborg wrote,
10 himself. So it was his task to determine the number of the missing and
11 to confirm that they are, indeed, all of them dead, or at least to find
12 some evidence to support the claim that they are all dead. And you can
13 see that in the first report, the 2000 report, in the second report that
14 he wrote in 2003, in the paper that he published and that is attached to
15 the second report, and you can see that in 2005, he does not define the
16 task, merely saying that he is updating the list.
17 Now, in the list that Dr. Brunborg published in -- it's
18 co-authored by Mr. Urdal, you can see the missing related to Srebrenica,
19 that -- the army and so on, so from the forward to the 2000 list, you can
20 see what Mr. Brunborg's task is, except on what you can conclude on the
21 basis of the explanations he provides in the report.
22 Q. And the starting point for Dr. Brunborg's analysis, as you were
23 able to find, was an analysis of the ICRC list of missing persons; that's
25 A. If I understand you correctly, I don't know what the starting
1 point is. The term that was used in B/C/S --
2 Q. He looked at the ICRC missing list in order to determine how many
3 individuals from this list are missing persons from Srebrenica in 1995?
4 A. To be quite precise, Dr. Brunborg did not analyse the ICRC list.
5 Dr. Brunborg states that there is such a list and that missing persons
6 are recorded there, the date when this work started, and he also states
7 the number of persons on that list at the time when he is doing his first
8 report, and he indicates how many versions of the list there were at the
9 time when he started doing his job. So he did not analyse the ICRC list
10 in the sense in which we, in our profession, understand an analysis to
11 be. Dr. Brunborg analysed, to a limited extent, from my point of view,
12 the data that he extracted from the ICRC list, on the basis of the date
13 of disappearance, and regarding this analysis which is rather unilateral,
14 because he analyses only his own data. You cannot have a comparative
15 list when you're only comparing one thing with the same thing, so in this
16 sense Dr. Brunborg did analyse the ICRC list, but only in this way that I
17 just described.
18 And I would just like to add, if I may - I apologise - that
19 Dr. Brunborg, had he analysed this, he would have listed all the
20 attributes that exist in the ICRC list that are not shown as attributes
21 that Dr. Brunborg uses. In my opinion, if you analyse something, that
22 means that you have to show everything that you have, everything that you
23 can obtain from the ICRC raw material, to make an assessment and
24 evaluation of the data that the ICRC has, and to emphasise some
25 statistical deficiencies, indicating that you as a statistician, as a
1 demographer, will do on -- will work on some of that, complying with all
2 the statistical procedures, because the Red Cross is not bound by those
4 Q. Well, Madam, actually, since you mentioned the raw material, a
5 few days ago you mentioned -- you were saying that you didn't know
6 whether the OTP Demographics Unit ever attempted to get the raw data from
7 the ICRC, and therefore that a major error was made precisely because
8 we're not in possession of the raw material. But, in fact,
9 Mr. Brunborg's testimony on May 9th, which you personally attended, he
10 delineated precisely what data was made available and the fact that a
11 request had been made, but that the ICRC, for neutrality purposes, was
12 not able to honour that request, and therefore that the data that was
13 possible was the basic data of names, father's name, last name, date of
14 disappearance and place of disappearance, as reported by concerned family
15 members. Isn't that correct?
16 JUDGE AGIUS: Yes, Mr. --
17 MR. HAYNES: Making a ten-line statement and just putting "isn't
18 that correct" at the end of it doesn't make it a question. That isn't a
19 question at all. It's quite simply a comment, and I don't know how the
20 witness can be expected to answer it.
21 JUDGE AGIUS: Yes, Ms. Soljan, I think Mr. Haynes could be right
22 this time.
23 Do you think -- Doctor, do you think you can answer the question
24 as phrased?
25 THE WITNESS: [Interpretation] Well, the question, if it was a
1 question, was rather lengthy, but it is a fact that Dr. Brunborg, in the
2 course of his examination - I don't know whether it was in chief or in
3 cross - did say that from the ICRC raw material, the only thing that he
4 saw was the questionnaire. There is a record of it. You can check. All
5 the other attributes that Dr. Brunborg notes and all the things that he
6 gathered that was in the cross-examination, it's just some of the
7 attributes that are made public by the Red Cross. And I say that -- I
8 state that with full responsibility.
9 Now, is there raw material in the ICRC? Well, you can -- it is
10 reasonable to conclude that if something was transferred from magnetic
11 storage media, well, certainly there is raw material, because you
12 couldn't do that just like that. Now, whether the Demographic Unit asked
13 for those materials, I don't know. I don't have -- I didn't see any
14 memos indicating that they wanted to get something and were not given it.
15 But if the lead researcher says that the only thing that he saw was a
16 blank questionnaire form, then I believe that those materials were never
17 even sought.
18 MS. SOLJAN:
19 Q. Well, Madam, on 9th of May, 2007, in testimony - and this is at
20 pages 1184 and 1185 - he was asked by Madam Nikolic: "Did you ask to get
21 an insight into the questionnaire of the ICRC that served as basis for
22 the ICRC list on their web site? Did you use the raw information from
23 those questionnaires or did you just use the data from list?"
24 "Yes, I think I've the questionnaire, an empty blank
25 questionnaire, but as I told you just now, we did not get that other
1 information. ICRC is very" --
2 THE INTERPRETER: Would you mind slowing down.
3 MS. SOLJAN:
4 Q. " ... very protective about the information they are releasing,
5 to preserve the neutrality so they have access to all sides in a
7 Then Madam Nikolic continued to ask: "But did you ask for such
8 information? Did you ask for that particular information in regard to
9 every person reported as missing?"
10 And Mr. Brunborg answered: "We made general requests for
11 information, and I believe it was denied, but we could only get the
12 information that had already been provided in electronic format. For
13 example, there was also on the questionnaire they asked about ethnicity,
14 which was not provided to us."
15 So did you not hear this testimony, Madam?
16 A. Yes, I heard it, and precisely on the basis of this question I
17 based my conclusion that Dr. Brunborg may have asked for this material,
18 but that he did not see a single questionnaire that had been filled in,
19 and that Dr. Brunborg was happy with the electronic format that was given
20 to him, and that perhaps he did not persist enough in his efforts to get
21 it. But on the basis of what Dr. Brunborg said, that the justification
22 that the ICRC decided to treat this material as confidential, is not
23 logical enough.
24 If the Red Cross places on the internet the first name, second
25 name, date of birth, place of birth, father's name, and all the other --
1 or various other attributes, why would they conceal ethnicity or
2 professional background? And if they thought that this material could
3 not be posted on the internet, even if that were true, I can find it hard
4 to believe that they would refuse to place this material at the disposal
5 of an institution such as the ICTY.
6 Q. Madam, just to read back the answer you just gave before giving
7 me this rather long response, you said to my question regarding whether
8 the raw material had been sought, you said:
9 "Now, whether the Demographic Unit asked for those materials, I
10 don't know. I don't see any memos indicating they wanted to get
11 something. But if the lead researcher says that the only thing that he
12 saw was" --
13 THE INTERPRETER: Counsel, please slow down.
14 JUDGE AGIUS: Slow down, Ms. Soljan, please.
15 MS. SOLJAN: " ... and I believe that those materials were never
16 even sought."
17 Q. Now, Madam, which is it of those two?
18 A. Again, I'm not sure if I understand you correctly. You quote
19 Mr. --
20 Q. Just to make it clear, you said that you believed that the
21 materials were never sought. Did you or did you not hear his testimony
22 saying that he sought the raw materials and did not receive them?
23 JUDGE AGIUS: Yes, Mr. Ostojic.
24 MR. OSTOJIC: I object to the form of the question, Your Honour.
25 Without saying more in front of the witness, I think it mis-characterizes
1 the testimony of Dr. Brunborg. And I think the witness did hear as it
2 was given to her, and she's providing her answer based on that question.
3 Now, my learned friend may have a different interpretation when
4 Mr. Brunborg said that he generally asked for it, whether he generally
5 assumed that because of neutrality, they may not give it. But if they
6 have a document, and this cross-examination that any of the OTP experts,
7 including Brunborg, asked for that specifically, they've never tendered
8 it that I'm aware of, show it to the witness and we can move on on this
9 issue rather quickly.
10 JUDGE AGIUS: Thank you, Mr. Ostojic.
11 [Trial Chamber confers]
12 JUDGE AGIUS: We've been carefully following what was going on,
13 what the previous questions were, what the witness's previous answer was.
14 Amongst other things that she said, that in her mind perhaps Mr. Brunborg
15 was not persistent enough, but she continued to explain how, in her mind,
16 also there seems to be a contradiction between what she knows and what he
17 has stated. I think we can move ahead. We can move forward with your
18 next question.
19 MS. SOLJAN: Thank you, Your Honours.
20 Q. Madam, are you really suggesting that the ICRC should be giving
21 up this highly-sensitive data to any party that requests it?
22 A. I'm not trying to suggest anything, Madam. I'm just trying to
23 say that a lot of sensitive data was obtained at the request of the ICTY.
24 Now, I really can't tell you, I don't whether the ICRC would be willing
25 to give it or not, but I think that there is a lot of sensitive
1 information right here, and you know that probably better than I do.
2 Q. I don't think I quite understood that, but are you really -- are
3 you basically saying that the ICRC should compromise its neutrality,
4 especially in wartime situations such as these, out of which this kind of
5 data arises?
6 MR. OSTOJIC: I object to the form --
7 JUDGE AGIUS: You're assuming that -- yes, Mr. Ostojic.
8 MR. OSTOJIC: Go ahead.
9 JUDGE AGIUS: No, no, you go ahead.
10 MR. OSTOJIC: I object to the form of the question, and I think
11 that the requests were made several years, if not many years after -- or
12 should have been after the investigation of this case and during the
13 trial. If they have a document that they asked for this documentation,
14 they should show it to her. If they looked at the raw material, they
15 should give us the documents that we asked for and were required to
16 provide to us. Show it to the witness. It's cross-examination.
17 It's not for this witness to say that Dr. Brunborg, based on his
18 testimony, didn't look at that raw data. If she has evidence to counter
19 that, they should bring it forth, and it's quite straight forward.
20 MS. SOLJAN: Your Honours, if I may, Mr. Brunborg testified under
21 oath about this issue. This was on cross-examination, and the Defence
22 counsel had every opportunity at that time to ask for that raw data, if
23 they were not satisfied.
24 MR. OSTOJIC: With all due respect, we do not carry the burden of
25 proof. If they had that information pursuant to these Rules, they're
1 required to provide it to us. If they're telling us now that
2 Dr. Brunborg has that raw material, we invite them to produce it to us
3 immediately. I don't think that's going to be their position, but this
4 cat-and-mouse game really of shifting the burden of proof to us has got
5 to stop. They're required to meet their burden. They are not doing it
6 in this regard at all. If they don't have the documents to show this
7 witness, I respectfully request that they move on on another topic.
8 JUDGE AGIUS: Mr. Haynes.
9 MR. HAYNES: Really, what does it matter, what opinion this lady
10 has as to whether the ICRC should disclose this material? Is it going to
11 help you one bit with your judgement in this case? It's an utterly
12 irrelevant question.
13 JUDGE AGIUS: Yes, thank you, Mr. Haynes.
14 Ms. Soljan, will you move to your next area and question.
15 MS. SOLJAN: I will move to my next question, Your Honours.
16 Q. Now, a part of the analysis that Dr. Brunborg used, that the OTP
17 experts used, in order to assemble their list of missing persons, was by
18 taking the ICRC list and then, first of all, comparing it to the 1991
19 census; isn't that right?
20 A. Yes, that's what we said yesterday. That's how Dr. Brunborg
21 tried to prove that persons on his list were real people who actually
23 Q. And you've already said that the 1991 census, the official, is
24 not a perfect document; it contains errors?
25 A. I said that first names and last names were never checked. But
1 generally speaking, the census in Bosnia and Herzegovina was evaluated as
2 a success. This was not done by me. There is a procedure that is
3 carried out when you want to declare whether a census is a success or
4 not. So apart from the first and the last names that are not used as raw
5 material for the census, and they're never checked, this census was a
6 success. Of course, there are some questions where answers can be taken
7 with some -- with a grain of salt because they're perhaps more or less
8 reliable. And I would like to say something else.
9 The moment you publish the census book, it means that the census
10 was a success. There is not an institution dealing in statistics, the
11 national statistics bureau, that would publish the census books with the
12 results that are not considered to be good. If some attributes are
13 considered to be bad, for instance, occupation, then no book is published
14 regarding that attribute. So once the census books are published, it
15 signals that the census was a success. Of course, we always have to look
16 at what attribute this particular book is dealing with.
17 Q. But you'll agree with me that the 1991 census was not a
18 100 per cent complete document, listing all the individuals living in the
19 former Yugoslavia
20 A. I will not agree with you. What you say now, it's really
21 something new for me. I wouldn't say that. In particular, if you're
22 talking about the former Yugoslavia
23 all the republics of the former Yugoslavia
24 former Yugoslavia
25 As far as I know, there is not a single republic in the former
2 not been a success." Of course, there are some attributes. Now, I don't
3 know whether there's a census book for occupation in Bosnia-Herzegovina.
4 Maybe there is, but I haven't seen it. So there are some attributes that
5 are not dealt with in books because they are not considered to be a
7 Q. What I'm asking is: Not every single individual is listed in
8 that list, not every person from every village has made it into the
10 A. Madam, I don't know where you get this information from, I really
11 don't. There is a precise definition of the population, and if persons
12 do not fall under the definition, they will not be entered. The
13 population implies permanent residence, people who have a permanent
14 address in the place where the census is taking place, irrespective of
15 the fact whether the person is there or not at the moment when census is
17 There were a lot of people who were guest workers abroad, and
18 they had been there for 5, 10, or 20 years. They were still part of the
19 population of the former Yugoslavia
20 they were absent. And when I'm talking about the 1991, a lot of people
21 arrived in different places to study there, work there, but they were not
22 compromised in the census because they were not the permanent residents.
23 Whether every single villager of every single village was compromised in
24 the census, I can't tell you, but there is a check and double-check of
25 the census subsequent to the census, in addition to all the checking that
1 was done during the census-taking itself. And then it is this control
2 that will tell you whether the census was, itself, successful or not.
3 Who is it who can tell you whether every single person is
4 accounted for? There may be major problems arising from totally
5 illogical situations. For example, in one village you may have a
6 thousand inhabitants and still you accounted for only 100 of them, but
7 this is double-checked on the ground. Something else is then found as
8 the reason for such an illogical thing. But in statistics, there is
9 nothing illogical.
10 Second of all, when you embark on a census, you don't just do it
11 randomly, without any previous information. You have your estimates that
12 are provided by the statistics, by a scientific methodology. You take
13 into account natural flows in migrations.
14 To cut a long story short, I can't claim that every single
15 villager of every single village was accounted for, but I claim with full
16 responsibility that the census in Bosnia-Herzegovina was successful
17 because there was no single official institution in Bosnia and
19 published is actually rubbish and should be taken with reservations.
20 When I say that a census was successful, this does not mean that
21 I should agree with the method and with the way things were done, but the
22 statistics of the State of Bosnia-Herzegovina
23 and this data therefore is official. I may criticise them as much as
24 I can, taking certain features and characteristics into account, but I
25 cannot -- I simply cannot ignore this reliable source of data.
1 Q. And, Madam, the OTP experts found that 87 per cent of the names
2 on the ICRC list matched against or were found on the 1991 census. You
3 can agree with me on that?
4 A. Yes, this was established using a lot of keys, and that's what
5 they put in their report.
6 Q. Thank you. And as was discussed yesterday, 1.030 persons did not
7 match the 1991 census, were not found on the census?
8 A. That is stated in the report, yes.
9 Q. And you're suggesting that these 1.030 persons are fictitious, or
10 you've even called them non-existent?
11 A. Dr. Brunborg says that when he defines his methodological
12 procedure, and he says, and I quote: "In order for me to check whether
13 certain persons are real or fictitious," because there had been
14 objections about the published lists, "I matched the list" --
15 Q. What I was actually asking you -- I'm sorry to interrupt you, but
16 what I was asking you was what you were saying yesterday, and you
17 certainly had certainly mentioned non-existent persons.
18 A. I did, because the methodology used by Dr. Brunborg says whoever
19 is not identified in the census does not exist. I may be paraphrasing it
20 a bit wrongly, but I can quote, and he says to prove that somebody does
21 exist, that he's not fictitious, "we matched with the census." And if
22 your match result is 87 per cent, according to that methodology, then the
23 remainder of the persons are not matched, so why should you keep them on
24 the list? If that is your method for you to prove that somebody is alive
25 or that they existed, then why would you still keep on your list
1 something that you could not match and, thus, prove as ever having
3 Q. And your suggestion, indeed, as you were saying yesterday, is it
4 would be professionally correct to exclude these 1.030 persons from the
5 OTP list of missing and dead persons?
6 A. It would be professionally correct, to say the least, to
7 emphasise -- to highlight that now you are dealing with certain
8 individuals of whom you're not sure that they exist, rather than
9 distribute these people mostly onto the territory of Srebrenica
10 no single statistical proof, according to Dr. Brunborg's methodology, for
11 these people, so how does he know that most of them hail from Srebrenica,
12 fewer of them from other places? How can he tell?
13 Q. Madam, are you basically suggesting, then, that all these Muslim
14 families who were reporting these 1.030 persons as missing were lying to
15 the ICRC?
16 A. No, Madam, not for a single moment did I say that Muslim families
17 lied to the ICRC. What I'm saying is that Dr. Brunborg does not perform
18 his job in a methodologically-proper way. The fact that he was not able
19 to match about 1.030 persons doesn't mean that these people do not exist,
20 these Muslims and their families. And what does it have to do with them,
21 after all?
22 In his table 5 or 6, Dr. Brunborg, in his report, he is not aware
23 of the national background or ethnic background for 999 male. How does
24 then, Madam Prosecutor, know that these were Muslims? And let me tell
25 you exactly what table that is. It is on page -- on page 27 of the
1 Serbian version. I wouldn't be able to point you to the English page.
2 And please allow me to finish. Page 27 of Dr. Brunborg's report,
3 drafted in 2005, table 7, he says "National and Sex Distribution of the
4 Missing and Dead Person Related to Srebrenica."
5 MR. OSTOJIC: I'm sorry. It's page 23 of the report, if you want
6 to follow along.
7 THE WITNESS: [Interpretation] Dr. Brunborg provides a table with
8 national and sex distribution. You will see there is 6.531 Muslim males,
9 37 females, and 6.568 in total. There are also Croats, Serbs and other
10 ethnic backgrounds, but I would like to draw your attention to those
11 whose ethnic background is not known. There's 999 of them, males, 31
12 females, or 1.031 persons in total whose ethnicity is unknown.
13 Q. Thank you, Madam. Well, one point I'd like to make is after you
14 testified yesterday, I consulted with the Demographic Unit and asked them
15 to just assemble the list of those 1.030 so-called fictitious persons and
16 match it against the July list that we have just received from the ICMP,
17 and it was disclosed to all the Defence and, I presume, to you, and the
18 is that result 527 of the individuals you have called non-existent can be
19 found in Srebrenica-related graves, according to this DNA data. What do
20 you have to say to that?
21 A. I can't say a thing, because I, myself, did not see the list.
22 I can trust your words, but I would need to take a look, I would need to
23 have the time to do that, and then I could tell you. And if Dr. Brunborg
24 did that in time for 7.661 persons, and if he said, "These are the ones
25 that I found on the list," "These are the ones that I did not find on the
1 list for various reasons," if he had done that in time, then I would be
2 in a position to tell you what I think about that.
3 Q. Thank you. Now, yesterday you stated that the more sources you
4 have, the higher degree of reliability there is for your statistical
5 research; correct?
6 A. Well, this is not exactly how I said it, Madam.
7 In any profession, it is very important to be very precise. I
8 did not say that it is important to have many sources. You can have a
9 thousand of them, but they don't have to be good. But if you have good
10 and reliable sources which will provide good-quality data, then obviously
11 it is good to have more of them because your job is to produce the most
12 reliable data possible. It is up to a professional to evaluate a source
13 as good or not, and it's very important.
14 The sources that I used were the ones that I considered relevant
15 in order to obtain reliable results and data.
16 Q. In asking this question, Madam, I was actually referring
17 precisely to your words at page 47, lines 23 and 24, but I'll go on.
18 Now, what I'm understanding is that you're suggesting that the
19 data gathered and collected by an internationally-recognised and neutral
20 organisation, such as the ICRC, is possibly less reliable than, for
21 example, the data from Ministries of Defence or offices of former warring
22 parties, such as the ABiH?
23 A. I never said that, Madam. I said something totally different. I
24 said that a source of information coming from the BiH Army, by its
25 quality, is the same if not even better than the sources that the OTP
1 experts have used. I -- the way I worded my answer is not the way you
2 say I worded it.
3 Q. Okay. Well, let's go for a moment to this ABiH list that we
4 discussed -- that you discussed yesterday.
5 Your basic argument for the lack of reliability of the OTP
6 missing and dead list was, in part, based on your analysis of the ABiH
7 list, and one of the things you noted in your report was that more than
8 100 persons found on both the ABiH list and the OTP list were listed as
9 dead or missing prior to July 1995; correct?
10 A. Correct, Madam.
11 Q. And you provided us a few weeks ago with annex 3 to your report,
12 where you listed by name 137 such persons from the ABiH list, that you
13 say were listed as -- or that were listed at dead or missing prior to
14 July 1995 on the ABiH list?
15 A. Correct, Madam.
16 Q. And if we go now to Exhibit 3D457, and for the purposes of what
17 I'd like to show, could we not broadcast this document, please, and if we
18 could please take it to annex 2, which is page 5 of this document.
19 And, Madam, just so you know what we're talking about, this is
20 the 24 July 2008
21 where she matched the OTP missing list with the ABiH list and then with
22 the newest ICMP data that was obtained in July, and indeed she found even
23 a higher number of individuals that on the ABiH list were listed at
24 missing prior to 1995. She actually found 220. And of those 220
25 individuals, if you look all the way to the right, under the rubric "ICMP
1 Grave-site, July 2008," you will see the names of grave-sites listed. In
2 other words, of these same 220 individuals reported to be missing by the
3 ABiH prior to 1995, 140 can be located in Srebrenica-related graves?
4 A. Not for all 220, but for 140. But there is another thing that is
5 very important here.
6 There is a number of certificates issued by the ABiH Army. There
7 is 135 of them which has been disclosed. I will not enter into the
8 reasons why this was done, but it is evident that the date of death was
9 erased and tampered with. And these certificates were sent to The Hague
10 in July of 2004. I controlled the material in February 2007. I will not
11 try to provide any evaluation of these certificates and why they were
13 Among these certificates, I found all the persons that I named as
14 dead, because then the names were not erased. Nothing was changed to say
15 that the ABiH Army had sent a list to the effect that the person did not
16 die in 2004 but in 2005. In other words, the material that I had at my
17 disposal showed fewer persons than listed by Dr. Tabeau, but what I did
18 is not any sort of a revision, and I don't consider that a mistake on my
19 part. If I had had available the certificates at the time, and if I had
20 been aware of the changes in the dates of death, then I would have had a
21 different explanation or I would have sought an explanation. There are
22 various explanations for that possible. For example, this could have
23 been done in order for Mr. Jeffrey Nice to get the confirmation of the
24 names of the soldiers who indeed were killed in 1992, 1993, 1994, or
1 The letter that was returned to the demographic department of the
2 OTP says: "At your request, we have revised the list, and we have
3 established that the following persons did not get killed in 1994, but in
4 1995." This is what I saw here over the course of the past few days.
5 There are situations in which, for example, a soldier got a
6 certificate proving that he was a member of the BH Army from 1992 to
7 1994, and then again between 11 July and -- 11th of July, for one day,
8 and that he went missing on the 11th of July. I really can't be the
9 judge of the whole situation. The situation is possible, but what I'm
10 saying is that this information about the revision has been in existence
11 in the demographic department for a long time, and when I was dealing
12 with the BH Army documents, I never knew that they existed. Nobody ever
13 alerted me to their existence.
14 Q. Madam, another source that you discuss was a set of four CDs that
15 you analysed, and they're titled "Data on Displaced Persons from
16 Srebrenica," individual levels with names and other details. Now, do you
17 know who compiled these four CDs?
18 A. What CDs are you talking about? Please be more specific.
19 Q. Yes, Madam, just a moment. In your report, at page 34, you list
20 these documents as D000-2101 all the way to 2104, concerning lists of
21 persons displaced from Srebrenica in 1995.
22 A. Okay. I can't find it. You probably are quoting from the
23 English version. The page is not the same. But when you mention
24 displaced persons, I know what you're talking about. Those are CDs that
25 I have received from the Defence as materials disclosed by the OTP.
1 Q. Okay. Do you know who compiled these lists?
2 A. You mean the list containing names, family names, and so on and
3 so forth? Well, I really couldn't be able to tell you. I don't
4 remember. I really can't remember, as I sit here, who it was. It was a
5 long time ago when I did that, and at this moment I can't remember who
6 the author of the lists is, but I can check. There are CDs, there are
7 lists, and it's easy to establish who the author of those lists is.
8 Q. Okay. Well, basically you -- you find that there are 36.562
9 people you could locate on these four CDs as being displaced from
10 Srebrenica in 1995?
11 A. I misspoke. The version that I enclosed contained 36.000
12 something, but the true figure is 34.457. When I arrived here, I
13 disclosed that to the attorney-at-law, who informed you and provided you
14 with a new CD. So 36.000 is not correct as a figure. The correct figure
15 is 34.457 persons.
16 Q. You provided us with an annex also, indicating that 23 persons
17 that you were able to find in this displaced persons list were also found
18 in the OTP missing list; isn't that right?
19 A. This is just by way of example to show that it is possible, if
20 you have the name and the date and place of birth, you can find dozens of
21 people under the same name and with the same personal data. I have just
22 illustrated this by singling out 23 people, and I'm not claiming that
23 they are the same people. But they could be, according to Dr. Brunborg's
24 methodology. In my report, I even say that specifically, that if we
25 apply Dr. Brunborg's methodology, that we could arrive at the conclusion
1 that they are the same people.
2 MS. SOLJAN: And if we could have Exhibit P0614 also not
3 broadcast, please.
4 Q. Madam, on the left side is the table -- is a copy of the table
5 that you presented to us in your table at annex 5. Do you recognise it?
6 A. Yes.
7 Q. And on the right side is the information showing that 13 of these
8 23 persons you claim overlap between the OTP list and the displaced
9 person list are identified in Srebrenica-related graves?
10 A. And what am I supposed to say? Am I supposed to confirm that
11 these are the same persons who were displaced or should I confirm that
12 the demographic department is sure, 100 per cent sure, that these are the
13 same persons? I really wouldn't be able to do that.
14 What I'm giving you is just an example. Whether they are really
15 the same people, I don't know. It would take some more information for
16 me to be able to tell you. What I see before me are people bearing the
17 same name, the family name, with the same father's name, the same year of
18 birth. Some of these people have been identified. I don't know how many
19 of them are one and the same person.
20 Q. Well, Madam, it's rather similar to the line of questioning that
21 Mr. Lazarevic had with you, where he was having you compare one name to
22 another name on different lists. My question, though, is: Are you
23 basically saying that these four CDs that you were gathering your data
24 from are more reliable than the data collected by the ICMP and the ICRC,
25 as gathered together by the DU or the Demographic Unit?
1 A. I never said that, and this was never my guiding thought. I
2 never assessed the reliability of the information disclosed by the OTP.
3 I only say that there is a lot that you have to take into account if you
4 want it to be professional, because the situation is very complex, it's
5 anything but black and white, and there's no way you can say this is good
6 and this is 100 per cent reliable, and the other thing is not good. So
7 it was not my task to assess the reliability of data. I just reviewed
8 what the OTP used and disclosed, and I just wanted to point to the
9 complexity of the situation and the fact that you cannot adopt a
10 one-sided approach in dealing with such a complex situation.
11 Q. Thank you, Madam. And turning to what I hope is the final topic,
12 do you -- do you know what the ICMP is?
13 A. I know how this term is translated, and I know what this
14 institution is doing. If you were to ask me in detail, I don't know
15 whether I would give you accurate enough answers. So depending on the
16 structure of your question, the brunt of your question as to what they're
17 doing, I wouldn't be able to give you a very precise answer. But I did
18 hear about that organisation, and I saw some of their work.
19 Q. Thank you for that. And you are aware, since you did have access
20 to the data, multiple versions of the data provided to you by the Defence
21 counsel, of the fact that ICMP is in the process of identifying, via DNA
22 matching, identifications of people out of various mass graves?
23 A. I know that.
24 Q. And they have been providing the Prosecution, and as a result the
25 Prosecution the Defence, with updated versions of lists of persons
1 reported as missing in Srebrenica related to the Srebrenica events of
2 July 1995; correct?
3 A. What I do know is that the Red Cross provided some information
4 for the region of Srebrenica. In some documents, you can find
5 information that this region comprises ten municipalities. And then the
6 Demographic Unit did all kinds of comparisons and provided materials
7 where it is indicated that a person has not been identified yet, has been
8 identified, and so on.
9 Q. And when you're talking about identifications, I'm assuming
10 you're referring to this document that might have been shown to you by
11 Defence counsel, the progress report, the newest list of missing matched
12 together with the identifications; is that correct?
13 And for the record, this is P003159A.
14 A. If I could just have it for a moment to look at the front page,
15 because I handled several lists. Yes, yes, that's the one.
16 Q. Okay. And just based on their November data, you were aware that
17 there were DNA identifications of approximately 4.300 -- well, to be
18 exact, 4.263 Srebrenica-related victims that is said of in the
19 introduction to that update; is that right?
20 A. Again, there is no definition of Srebrenica. Lists that I am
21 aware of were sent for the Srebrenica cases, I underline "cases." They
22 pertain to the region of Srebrenica comprising ten municipalities. And
23 the last memo, or memo that was disclosed by the Prosecution, does not
24 speak only about identified persons, but also buried persons, and it says
25 "3.554." Out of that 3.299, Potocari, 169 individual cases. So this is
1 the summary, but I don't know, I think this was disclosed on the 24th of
2 July, 2008.
3 Q. And thank you for anticipating my next question. I was just
4 going to bring you to this document.
5 If I could get 3D461, please.
6 Now, Madam, you may be aware that the way that these
7 identifications are done is that the bone DNA samples of persons from
8 graves are matched against blood donor samples that are collected, and
9 there are, as has been to testified to already by Dr. Brunborg, over
10 20.000 such blood samples actually collected.
11 Now, in the third row of this tracking chart for the Srebrenica
12 cases, the number of missing individuals represented by the blood samples
13 collected, as of - and this is an update dated July 18th, 2008 - the
14 number of missing according to the ICMP data is 7.789 persons. Do you
15 see that?
16 A. Yes, I do.
17 Q. And based on just the preliminary analysis of the data that we
18 obtained on 3 July, and this is the Excel spreadsheet data with all the
19 names listed, we were able to just find out, and you can find that
20 information in Dr. Tabeau's memo at 3D457, that there were at least 4.705
21 such individuals who were actually found on the OTP list of missing.
22 Just back to the tracking chart for Srebrenica cases for a
23 moment, you see that it has a DNA reports row, which is the third -- "DNA
24 reports," it's called. It's the third row -- third title row down, and
25 under it, it talks about individuals represented. The number of
1 individuals represented currently, as of July 18th, 2008, according to
2 the ICMP tracking --
3 THE INTERPRETER: Thank you for slowing down when mentioning
4 figures. Thank you.
5 MS. SOLJAN:
6 Q. The number is 5.616 individuals represented. Now, I've read you
7 all these figures rather quickly. One of the points is that based on the
8 October data that you had at your disposal, including the progress
9 report, there we saw that out of the 4.263 individuals that had been
10 identified by the ICMP, 3.837 were also found on the OTP missing and dead
11 list. That's approximately a 50 per cent overlap. And based on the new
12 data and based on the new numbers that we have, there are, as I've
13 already said, 4.705 persons found in the OTP list of missing against the
14 data we received in July from the ICMP.
15 Now, you would agree with me that these numbers are -- indicate
16 growth, that numbers of identifications continue to grow, to rise?
17 A. I didn't understand the question, except if you want me to agree
18 with you that the number is increasing. Well, I have no doubts as to the
19 fact that the number of identified persons is growing, but I think that
20 in the report that Dr. Brunborg and his associates did, it was not the
21 purpose of this report to determine that the number is growing. The
22 purpose was to determine that these were people who were killed in 1995.
23 And there is a certain cut-off date. I think it's the 10th or the 11th
24 of July.
25 The fact is there is statistical indicia that cannot be ignored,
1 that there is a large number of people who were killed before 1995 and
2 are being counted as having died after the 11th of July, 1995. These are
3 the facts, and there is certain indicia, even proof of that.
4 And it is also a fact that the demographers, and it was their
5 duty to do so, and the International Commission for Identification, do
6 not specify what Srebrenica is, whether the people who were identified in
7 the municipalities that Dr. Brunborg shows, the five municipalities,
8 people originally from those areas, whether they are victims of
10 So from my point of view, I don't doubt that the number of people
11 identified is growing, but the key problem is to determine when or,
12 rather, how many of those persons who have been identified are those who
13 cannot be linked with Srebrenica based on the date of the events in
15 How many of the people amongst those identified cannot
16 geographically, territorially, be linked with Srebrenica and the events
17 in Srebrenica in July? I think this is the key question. And from where
18 I sit, as I said, there are numerous indicia as to those questions.
19 Q. Madam, is your conclusion here today that there are actually
20 fewer individuals missing related to the fall of Srebrenica than have
21 been identified as dead in Srebrenica by the ICMP up to date?
22 A. I don't know. There seems to be a misunderstanding. What do you
23 base your claim that this is my conclusion on, what reports, what
24 statements I made? Maybe I am not making myself clear, and I would like
25 me to be clear.
1 Q. Madam, it was just a simple question. I want to know whether you
2 find that the ICMP data, the ICMP numbers, are -- don't support -- or,
3 rather, let me start again. The individuals listed as missing by ICMP at
4 this point in time are 7.789. It's actually a larger number than the
5 data compiled by the OTP Demographic Unit; isn't that right?
6 A. In my profession, you have to be precise. I do not challenge the
7 fact that the ICMP quoted those figures. I said a little while ago it is
8 very important for me to know what territory is covered. How do they
9 define Srebrenica? They say "related to Srebrenica," is that how they
10 phrase it? But we can define this courtroom in different ways, and let
11 alone an area that covers several municipalities. So I am not disputing
12 that this is the number put forward by the International Commission for
13 Missing Persons, but I don't know what they mean when they say
15 [Prosecution counsel confer]
16 MS. SOLJAN:
17 Q. Madam, you are aware of the fact that there has been testimony
18 and there's been evidence of numbers of graves, both primary and
19 secondary mass graves, related to Srebrenica; isn't that right?
20 A. I am aware of that fact.
21 Q. And, in fact, these graves continue to be exhumed? I don't know
22 if you're aware of that fact.
23 A. I don't know that. This is not my area, so I haven't been
24 following it.
25 Q. And as exhumations continue, more samples -- and more samples are
1 going to the ICMP and are being tested against the 21.327 samples donated
2 by individuals who are reporting to the ICMP that their loved ones went
3 missing sometime after the 11th of July, 1995?
4 JUDGE AGIUS: One moment before you answer the question.
5 Mr. Haynes.
6 MR. HAYNES: Is this a question or a speech? The lady's already
7 said she has no knowledge of this. It doesn't seem to be a fair
9 JUDGE AGIUS: Let her continue. We are getting there. I mean,
10 let's hear the question eventually.
11 Go ahead.
12 MS. SOLJAN:
13 Q. Well, Madam, basically does DNA data lie, do you know? Does it
15 A. Well, Madam, I'm not a doctor, I'm not a physician. This is not
16 my area of expertise. I have no reason to even think that they lie.
17 JUDGE AGIUS: Stop. Next question, Ms. Soljan.
18 MS. SOLJAN: Your Honours, I have no more questions.
19 JUDGE AGIUS: Thank you, Ms. Soljan.
20 Is there re-examination, Mr. Ostojic?
21 MR. OSTOJIC: Not from me, Mr. President.
22 JUDGE AGIUS: Thank you.
23 Ms. Nikolic.
24 THE INTERPRETER: Microphone is not on.
25 JUDGE AGIUS: Yes. Your microphone.
1 MS. NIKOLIC: [Interpretation] Yes, Your Honour. If I may, can I
2 start right now? Thank you.
3 I would like to go back to the document that we saw in e-court a
4 little while ago, 3D461.
5 Re-examination by Ms. Nikolic:
6 Q. This is the document that you, Professor, heard several questions
7 by my learned colleague today. What I would like to ask you is this:
8 When you went through all the lists that we submitted to you, as we
9 received them from the Prosecution as part of the disclosure, could you
10 please tell us, the ICMP lists of identified persons, do those lists
11 contain cases or, to be quite specific, persons on those lists?
12 A. They list cases. What that means is that one person can be
13 listed several times. So you have a list where a certain name with the
14 same identification attributes appears several times because several
15 analyses are done, so these are not persons, these are cases. And that
16 is why there are many duplicates on those lists.
17 So if you had a list with 5.000 something, if you get rid of all
18 the duplicates, you get maybe 3.000, two and a half, depending on what
19 list you're looking at.
20 Q. In your practice, once the DNA analysis is done, once a person is
21 identified using this analysis, is this sufficient to determine whether a
22 person really died or not?
23 A. Well, it's not my practice, I don't do that, but I -- based on
24 what I heard from people and my participation in some other cases, well,
25 they say that the process of identification ends once the relatives are
1 invited to identify that person and to provide information that they
2 have. That's how it ends, and it starts with the exhumation.
3 So I'm not an expert in this area. This is what I heard from
5 Q. And have you ever seen death certificates in your practice?
6 A. Yes. In my practice, I dealt with death certificates while I
7 worked in statistics, because a death certificate is a document that
8 is -- it's a document that is kept in perpetuity. When you enter a
9 person into the register of deaths, there has to be a death certificate
10 filed, and it is kept there in the archives. One copy of the death
11 certificate goes to the statistics office, the office that employees
12 physicians, who then, on the basis of this death certificate, determine
13 the cause of death and so on. So this was one way in which I dealt with
14 death certificates.
15 The second way was when I participated in a trial being conducted
16 before the Sarajevo Court, and then for the purposes of my analysis I
17 received not only the identification records, but also the death
18 certificates, so that I was able to see that there are death
19 certificates. And I consider the death certificates to be official
21 And in my work here, I did not have an opportunity to look at the
22 death certificates, but I didn't seek them, so I don't know whether they
23 exist or not. It was only in early 2000, in Sarajevo, was I able to see
24 that it is possible to obtain not only the identification records issued
25 by ICMP, but also the death certificates.
1 THE INTERPRETER: Microphone, please.
2 MS. NIKOLIC: [Interpretation]
3 Q. I would like to go back to the document that we have in front of
4 us here on the screen. Could we just scroll down a little bit.
5 According to this document, if you look at totals, it says
6 "Number of closed cases," and if I'm not mistaken, it says "3.554."
7 A. Yes.
8 Q. On the basis of this, we can then conclude that the ICMP has
9 closed 3.554 cases to date?
10 A. Yes.
11 Q. And after that, the procedure to determine whether this person
12 really -- those persons really died starts, and then the death
13 certificate is issued. Are you aware of this procedure?
14 A. As far as I know, according to the procedure, nobody could be
15 entered into the death register without a death certificate, and death
16 certificates cannot be issued before all legal and other requirements
17 have been met. So I did come across such situations. You cannot enter
18 anyone into the death register, and it is quite well known, it's that way
19 all over the world. You have those register books, register of births,
20 or register of deaths, and we also had a register of marriages. That's
21 what we had in the former Yugoslavia
22 kept in perpetuity, for ages, provided, of course, nothing happens, no
24 So nobody can be entered into the registry -- register of deaths
25 if there is no death certificate, and the death certificate must be
1 signed by a medical doctor. There are exceptions. The Court may, if it
2 is impossible to find the body, declare somebody dead, and pursuant to
3 this ruling of the Court, this person can then be entered into the
4 register of deaths.
5 MS. NIKOLIC: [Interpretation] Thank you. Could we please now
6 have document 3D455 in e-court.
7 Q. While we're waiting for the document to appear on our screen,
8 Doctor, just for your information, this is a letter that the Federation
9 of Bosnia and Herzegovina, the federal Defence Ministry, sent on the 4th
10 of August, 2004, to the OTP. It's about the issue that my learned friend
11 raised in cross-examination, the soldiers who were killed before 1995.
12 I don't want to waste our time. This is the response of the
13 Federal Minister of Defence informing the OTP about the total of 142
14 members of the BH Army and other persons that are being sought about the
15 date -- this is all about the date of their death.
16 You have seen this document in the course of preparing for your
18 A. Yes.
19 Q. We received 142 certificates appended to this document?
20 A. Yes.
21 Q. And the Defence Ministry informs the OTP that in light of the
22 circumstances, the fact that these people were killed as they tried to
23 cross into the BH Army-controlled territory after the capture of
24 Srebrenica, it is very difficult to obtain verified information about the
25 circumstances of their deaths?
1 A. That's what it says here.
2 Q. Now I would like us to look at 3D451 in e-court. That would be
3 one of those certificates. Well, I don't want to look at all 142 of
4 them. The date of this letter is the 4th of August, 2004. I would like
5 to keep this document confidential. I don't want the public to have
6 access to it.
7 Professor, have you seen this document before?
8 A. Yes.
9 Q. Is this one of those certificates, 140-odd certificates, that you
10 inspected as you prepared for your testimony?
11 A. Yes.
12 Q. And the date is the 28th of July, 2004?
13 A. Yes.
14 Q. And the year of birth of these people -- of this person is 1946?
15 A. Yes. On this certificate, the year of birth is listed as 1946,
16 but such a person with this first name, last name, and father's name does
17 not exist in the Prosecution list, the 7.661 persons. There is another
18 person bearing the same first name, last name, and father's name, but he
19 was born on the 7th of March, 1935. The Prosecution considered this
20 person to have been identified and indicates that the identification was
21 carried out.
22 I have to stress that it's 13 years between the two years listed
23 as years of birth.
24 Q. Just for the transcript, I don't want to go back to this
25 document. It's Prosecution Exhibit P3159A. It's page 91 in e-court or
1 87 in hard copy, so I don't want to look at it now.
2 But, Professor, were you able to find a number of such cases as
3 you inspected the material disclosed to us by the Prosecution in May
5 A. Yes.
6 Q. And does that confirm your argument about the overall findings
7 that the Defence received?
8 A. That confirms my view and raises reasonable doubt that anything
9 that was done must be redone in a much more careful manner, and this
10 confirms my initial view that things were painted in black and white. Of
11 course, the only thing where I don't have any doubts about is that the
12 methodology that was used was no good.
13 Q. You do have reasonable doubt or not?
14 A. No doubt whatsoever. This methodology is not used anywhere in
15 the world but in the demographic department of the OTP.
16 MS. NIKOLIC: [Interpretation] Thank you, Madam. I have no
17 further questions for you.
18 JUDGE AGIUS: Thank you.
19 Yes, Ms. Soljan.
20 MS. SOLJAN: I just wanted to clarify that reasonable doubt was
21 not being used as a legal term, but simply a term of opinion.
22 JUDGE AGIUS: I would imagine so. I mean, I don't think --
23 anyway, I leave it to you to clarify.
24 All right. Now, we have only got left the residues of what I
25 brought up earlier on as preliminaries.
1 No, Madam, we can actually dispose of her.
2 Yes, Mr. Haynes.
3 MR. HAYNES: Excuse me, I wouldn't mind asking her a couple of
4 questions in re-examination.
5 JUDGE AGIUS: Okay. I thought no one else --
6 MR. HAYNES: But if she would like a break now, I can do it after
7 the break.
8 JUDGE AGIUS: We'll have the break now.
9 MR. HAYNES: It really won't take more than five minutes.
10 JUDGE AGIUS: Okay. Otherwise, we can do this: I figured out
11 that we may have 15 minutes, at the most, to dispose of the other issues,
12 probably less than that; five minutes cross-examination -- redirect by
13 Mr. Haynes. If there is no objection, we can sit a further 20 minutes.
14 THE INTERPRETER: Objections from the booth.
15 THE INTERPRETER: Fine, fine.
16 THE INTERPRETER: Objections from the booth.
17 JUDGE AGIUS: Fine, fine, no objection. Did I hear "objection"?
18 THE INTERPRETER: No, no objections.
19 JUDGE AGIUS: I thought I heard "no objections" from the booth.
20 No objections, yes.
21 Okay. Now, if there is an objection, speak now. No objections.
22 Mr. Haynes, five minutes.
23 MR. HAYNES: Thank you very much.
24 Re-examination by Mr. Haynes:
25 Q. Dr. Radovanovic, I'd just like you to help me, please, with a
1 document which I think you've only seen quite recently and which was
2 shown to you in cross-examination by Ms. Soljan, and it's P3159A. And it
3 might be useful if we looked at page 9 together, please. Thank you.
4 Now, I'm really interested in you helping me and us with, as it
5 were, the last two entries on the far right of those pages. The protocol
6 number indicates what, according to your understanding?
7 A. I can only rephrase what Dr. Tabeau says. I did not deal with
9 In one of her reports, Dr. Tabeau says that every person is
10 attached to protocol for identification, and these protocols exist in
11 order to follow a person, because one person may be given two, three, or
12 five findings, and all those are then compiled under a protocol. But I
13 would not be able to tell you, with any degree of certainty, what a
14 protocol is. I can only tell you that the first figures, I assume, are
15 just the initial figures, and the last two digits are the years when the
16 body was exhumed, and all that, if I were able to sum up what Mrs. Tabeau
17 did, and she's the one who provides more detail of the meaning and the
18 essence of protocols. I, myself, did not deal with that or dwell upon
20 Q. Right. But if we go to the very last column, far easier, the
21 grave-site indicates, as you understand it, a grave-site where a body or
22 a part of that body, which has been matched through DNA, was discovered;
24 A. I know that these are grave-sites, but I wouldn't be able to
25 guarantee you that there is an indication of the match. I can tell you
1 that this indicates that a body or parts of the body, indeed, were found,
2 but I can't tell you whether a matching exercise was carried out and
3 whether a match was found.
4 Q. Okay. But just looking at the spreadsheet, where we have no
5 protocol and no grave-site, your understanding of that would mean we've
6 not found a part of that body anywhere; correct?
7 A. I could agree with you, but I cannot be 100 per cent sure that
8 that would be correct. But I assume that if there were any document, it
9 would probably be entered in here.
10 Q. Yes. Now, I just want you to look down at one, two, three, four,
11 five, six -- the seventh entry down on the grave-site list. I think it
12 reads "Seher."
13 A. You mean -- can you repeat the name? Number 7 or line 7?
14 Q. It's line 7 if you follow the grave-sites. Yes, I'm terribly
15 sorry, this should not be broadcast.
16 JUDGE AGIUS: Fine, then let's not broadcast it. Have you been
17 broadcasting it? We haven't. Okay.
18 MR. HAYNES:
19 Q. Count the grave-site names rather than the names of people.
20 JUDGE AGIUS: Yes, exactly. Not the lines.
21 THE WITNESS: Yes, I have counted them, and I have found there
22 that this is a grave-site named "Seher."
23 MR. HAYNES:
24 Q. Have you come across that name in relation to Srebrenica?
25 A. No, never.
1 Q. I'd just like to show you another document that you were shown by
2 Mr. Lazarevic, and I've got this in hard copy. So if somebody could put
3 it on the ELMO. And I'm afraid I must confess, I will have to beg
4 assistance as to whether this has a 65 ter number from, perhaps,
5 Ms. Cmeric. Just show it to her, would you?
6 [Defence counsel confer]
7 MR. HAYNES: I'm sorry, it's a document that Ms. Soljan handed
8 out this morning. It's the thinner of the two documents, if the Bench
9 have it. And I just wonder whether the first sheet of that document can
10 be placed on the ELMO, please, so we can all see. Again, please don't
11 broadcast it.
12 Q. Now, would you, with me, Dr. Radovanovic, go down to an entry
13 relating to a man called Alic, Beriz, whose father's name was Bekto?
14 A. In the document that you have just shown me; is that where you
15 want me to look for it?
16 Q. Yes.
17 A. Could you please repeat the family name, kindly?
18 Q. It's Alic. His first name is Beriz, and his father's name
19 apparently was Bekto. And can we go across to where he was buried,
20 please? Giving the amount I'm actually putting onto the record, this
21 better be in private session, not just not broadcast, I think.
22 JUDGE AGIUS: Okay. Let's go into private session, please.
23 [Private session]
16 [Open session]
17 JUDGE AGIUS: And, Dr. Radovanovic, your testimony comes to an
18 end, and first and foremost I wish to thank you for having come over and
19 for having stayed with us all these days to give your entire testimony.
20 On behalf of everyone present here, I also wish to wish you a
21 safe journey back home.
22 THE WITNESS: [Interpretation] Thank you.
23 JUDGE AGIUS: Thank you.
24 [The witness withdrew]
25 JUDGE AGIUS: Now, let's start with the documents. Let's get rid
1 of them.
2 Mr. Lazarevic -- sorry, not Mr. Lazarevic. Ms. Nikolic.
3 MS. NIKOLIC: [Interpretation] Your Honour, I am just receiving a
4 message, a mail message from my assistants, that they are just in the
5 process of completing the list. It will take them another ten minutes,
6 if I may ask your indulgence and allow them to complete that.
7 JUDGE AGIUS: Let's do the documents last, then. Let's do the
8 documents last, and let's go through the so-called preliminaries.
9 The Drago Nikolic motion, yesterday's motion seeking leave to add
10 one witness to his Rule 65 ter lists -- yes, okay.
11 MR. NICHOLLS: Sorry, Your Honour, I'm trying to see you both.
12 No objection.
13 JUDGE AGIUS: All right, no objection.
14 Is there any objection from the other Defence teams? No.
15 So permission is granted. We are deciding the motion orally by
16 granting leave, there being no opposition.
17 The Nikolic two motions seeking protective measures. Let's take
18 them one by one, please. One moment until I find ... yes, Mr. Nicholls.
19 MR. NICHOLLS: I can address those, Your Honour, thank you.
20 JUDGE AGIUS: Let's start with the first, one motion requesting
21 protective measures and delayed disclosures of the identity of Witness
23 MR. NICHOLLS: Your Honour, we've reached agreement with our
24 friends, no objection to the protective measures sought in that motion.
25 And we've spoken on the name, they have agreed to disclose to us after
1 the break so that there's no disagreement on this motion. It's the week
2 of the 18th of August the name will be disclosed to us, and no objection
3 to voice and image distortion.
4 JUDGE AGIUS: Okay. So if my colleague agrees with me, the best
5 way to go about it is not to decide it now. We'll wait to see that this
6 has, indeed, taken place, and then we'll declare the motion moot.
7 Okay, is that agreed?
8 MR. NICHOLLS: The other motion, Your Honour --
9 [Trial Chamber confers]
10 JUDGE AGIUS: You agree. And then the protective measures will
11 be issued, then, after the recess. And then there is the other --
12 MR. NICHOLLS: Yes, Your Honour.
13 JUDGE AGIUS: -- motion relating to witnesses W5, W6, W7.
14 MR. NICHOLLS: And I also believe 29 is in there, Your Honour.
15 JUDGE AGIUS: Yes, and 29. Yes, you are correct.
16 MR. NICHOLLS: Your Honour, I think with that one, we're not
17 ready to give a final answer. I can talk to my friends some more after
18 the break, but we will file something before the close of business
20 JUDGE AGIUS: All right. I think there is no urgency, in any
21 case. It can wait until we return. We still have a couple of weeks.
22 MR. NICHOLLS: And we may reach an agreement. I'll talk to my
23 friend. I just didn't have time to talk about all the issues.
24 JUDGE AGIUS: Okay, thank you.
25 That leaves us with the Beara issue. We have gone through the
1 response filed yesterday night by the Beara Defence team. Do you wish to
2 address the Chamber, Mr. Nicholls?
3 MR. NICHOLLS: I can very briefly, Your Honour, although I think
4 the pleadings speak for themselves.
5 JUDGE AGIUS: Exactly. Can I just direct you, as regards the
6 list of exhibits, I think there isn't much --
7 MR. NICHOLLS: I was going to thank my friends for providing that
8 and say that's no longer an issue.
9 JUDGE AGIUS: All right. As regards compliance or otherwise with
10 Rule 67(A)(ii), do you have anything to start after reading what
11 Mr. Beara has stated --
12 MR. NICHOLLS: Yes, yes.
13 JUDGE AGIUS: -- namely, that they don't have any further
15 MR. NICHOLLS: Well, what they say, Your Honour, is that they
16 don't have any further signed witness statements, and what our request
17 would be, if those -- if they have statements which are unsigned of
18 witnesses who they intend to call viva voce that have not been provided,
19 that they be provided to us straight away. I don't think signing or not
20 signing should be a -- I don't want to say a way to get around a rule,
21 but a factor. When the witnesses come and are proofed, if they have --
22 the signed statement can be provided to us, and if there are errors or
23 changes, then that will be in the proofing note. But if we can get the
24 information now, that's what we request.
25 JUDGE AGIUS: Yes, Mr. Ostojic.
1 MR. OSTOJIC: Thank you, Mr. President.
2 I think that we were quite clear, if we had possession of any
3 such statements, we would give them to him, with the exception of several
4 witnesses that the Prosecution has interviewed or have given other
5 testimony in other ICTY proceedings here. We can provide that to them,
6 if that's what they really wish for, but I think they have them, because
7 they've provided them to us from time to time. But we're not in
8 possession of any statements, signed or otherwise.
9 We do have counsel notes. One of our legal assistants had passed
10 away. I do have some of his notes, not all. We are going to the field
11 the entire during the break in order to obtain more information from each
12 of the remaining witnesses that we have. And as I've set forth in my
13 motion, we will, immediately upon obtaining any such statement, send that
14 to them, as well as any other information that they deem relevant.
15 JUDGE AGIUS: Okay. Having heard that, would you be happy with
16 not having a decision at this point in time?
17 MR. NICHOLLS: Yes, Your Honour. I mean, my friend's told me he
18 doesn't have any more statements taken by them of any witnesses, signed
19 or unsigned, and if that's the case --
20 JUDGE AGIUS: Yes, that's what he said.
21 And as regards the first part of his response, namely, the
23 MR. NICHOLLS: Your Honour, we stand by our motion. We've
24 compared the summaries attached to the filing from last night to the
25 summaries which have previously been provided and they haven't been
1 changed at all from the motion which we submitted a few days ago, so we
2 stand by our pleading.
3 JUDGE AGIUS: Isn't there a possibility that you meet
4 tomorrow - we are not sitting - and you discuss this? When we were
5 having the same problem with the Popovic Defence team --
6 MR. NICHOLLS: Your Honour, if I may --
7 JUDGE AGIUS: -- a meeting which lasted barely half an hour
8 helped solve all the problems to mutual satisfaction.
9 MR. NICHOLLS: Your Honour, frankly, my view is no. I've met
10 with them, I met with him and Mr. Thayer a long time ago. We've been
11 e-mailing. We have sat down and spoken, as Mr. McCloskey said, before we
12 filed this pleading. We have tried. We feel we need a court order. I
13 do not think it would be profitable in the least, frankly, based on past
15 JUDGE AGIUS: Mr. Ostojic.
16 MR. OSTOJIC: It's a question of that we agree to disagree.
17 We've met not only with Mr. Nicholls and Mr. Thayer, but I think with
18 Mr. Elderkin and Mr. McCloskey for time and time again, and we've met for
19 a very long time. They seem to agree on some points, but it's not enough
20 for them.
21 I think if we read the rule, and I think quite frankly if you
22 look at two, if I can just highlight, or even three of the witnesses out
23 of the remaining 17 and just compared their 65 ter list summaries of that
24 witness with what the witness said in an interview to them, what the
25 witness said during his testimony in another case, and we met with the
1 witness, admittedly, on one occasion to confirm that which he said in an
2 interview to the OTP. If they need more information than that, I truly
3 cannot provide that to them. I think they're really being unreasonable
4 on this point. I strongly believe that our summaries are more than
5 sufficient and in compliance with the Rule, and I would ask the Court to
6 reject -- if they're not even willing to sit down, to reject their
7 requests on these 65 ter summaries that they're requesting.
8 I think that they have more than enough information. It provides
9 them the factual backdrop, it gives them notice of the witnesses.
10 They've clearly not been prejudiced when any of the witness that have
11 come forward. Even Witness who was 2DW007, Mr. Mrkovic, they had his
12 intercepts. They failed to provide that to us in a timely basis.
13 They've had it for a long time.
14 If the Prosecution truly believes they are being prejudiced in
15 any way, they could have, and, in my opinion, should have filed a motion
16 immediately after May 1st 2008
17 at the eve of a break. They could have requested and met with us and
18 made that statement well before, as the Court, I think, suggested to them
19 when they were dealing with the Popovic matters.
20 MR. NICHOLLS: Your Honours, if I may, that's just why there's no
21 point in meeting. He thinks his 65 ter summaries are fully adequate,
22 even ones which say things like he'll discuss an even in 1992. He thinks
23 he doesn't need to provide -- tell us what the witness will say, if the
24 witness is given an interview. There is really nothing left to discuss
25 and we just hope for a ruling. And I don't want to take time, but we
1 have been prejudiced by these delayed disclosures or lack of -- complete
2 lack of disclosure.
3 MR. OSTOJIC: Just one last point, if I may, Mr. President.
4 We have amended them and we have provided them additional
5 information. It's just not adequate. We've given them the names that
6 they've requested, the date of birth, the father's name, all the
7 information that they've had in their own database and in the database
8 that we utilise together. We are sticking with our summaries on this
10 If they really want to know what he said about 1992, I'm sure it
11 will draw an objection. I think really what they want, I can go back and
12 call this witness this afternoon. If they want to know what event, I
13 quite frankly don't know what he's going to say about 1992, but I'm sure
14 it involves Bratunac and possibly and Mr. Deronjic, which they're very
15 familiar with.
16 But if they really need that information and they're being
17 prejudiced because of -- a witness is going to say something in 1992
18 [sic], I'll provide it to them.
19 JUDGE AGIUS: I think you are unnecessarily taking a very rigid
20 position, both of you, we have spent hours going through the summaries
21 and the complaints of the Prosecution to see whether they were -- and
22 also because it's not exactly easy to establish criteria on the basis of
23 which you can decide whether a summary is adequate or sufficient or
24 insufficient, but while I say you're taking a very rigid position
25 unnecessarily, I mean it.
1 There is, for example, in relation to Witness C. Majovanovic
2 [phoen] one of the Prosecution complaints was information should have
3 been -- more information on the facts underlying the witness's alibi
4 testimony, such as attending Beara's birthday party and other facts
5 relating to the 1990 episodes of how Beara adhered to JNA policy of
6 calming down ethnic tensions, I'm sure you have more details than this
7 laconic description of what this witness is supposed to be testifying
9 Again, in relation to Bojan Subotic, Bojan Subotic, in your
10 summary you have:
11 "Witness will also testify about an event from 1992."
12 And no one knows what this event is. You don't need criteria at
13 this point in time to establish whether the summary, as far as this goes,
14 is sufficient or not.
15 Don't you think that the Prosecution are not entitled to know
16 what event you are talking about or this witness would be talking about?
17 MR. OSTOJIC: Mr. President, you do make a good point with
18 respect to Mr. Subotic.
19 JUDGE AGIUS: I'm just mentioning two -- [Overlapping speakers]
20 MR. OSTOJIC: And I'll clarify that point right there, so they
21 can have a restful vacation. We'll withdraw that aspect. I won't lead
22 any evidence of this witness with respect to events leading to 1992. I
23 did suggest to meet with them. I'm not taking a rigid approach, with all
24 due respect. They refuse to because they're not satisfied with whatever
25 we give them, with respect, other than if I depose and have a court
1 reporter there and if they're present during the sessions with the
3 With respect to Mr. Subotic, I think really his testimony will
4 relate to the other aspects other than 1992, so I will orally here amend
5 that 65 ter summary. And if that was their concern, since they cite it,
6 I think we have an agreement that the rest of them should be adequate.
7 MR. NICHOLLS: Your Honours, this is what I mean. It's like
8 pulling teeth. I don't know the amount of times we have asked for that
9 information about 1992. Mr. Ostojic is trying to act as though this has
10 just come up. We've asked for that before. We've asked in e-mails, and
11 we haven't gotten it. You've been able to get something, Your Honours.
12 We're not, on our own. And to be clear, we stand by our pleading, and I
13 ask him to correct his 65 ter summaries and submit them immediately or
14 provide the relief we sought.
15 MR. OSTOJIC: I am sorry, but I was on trial with not nine
16 lawyers or eight lawyers but two lawyers, so with all due respect I did
17 not find in my priority list that this was that critical and that it
18 would prejudice them. Had I known that it was that important, and I do
19 apologise to them, I should have responded to them. But I didn't believe
20 when they requested that an event in 1992 is that important that it may
21 cause the Prosecution prejudice. That was my decision and I take full
22 responsibility for that.
23 But I had witnesses here under some adverse circumstances. We
24 tried to do the best we could. I think accomplished the guidelines that
25 the Court set forth for that. I will address that issue with my learned
1 friend if that's really his concern.
2 JUDGE AGIUS: Yes, Mr. McCloskey, we have to close down within
3 the next three minutes.
4 MR. McCLOSKEY: One last point.
5 I mean, you can see how strongly Mr. Ostojic, I believe, is
6 arguing on behalf of his client, and we understand that. I have been
7 facilitating this process the whole time, and I can tell you it's reached
8 an end. What's happening here is my team and my lawyers are getting tied
9 down by this, and it's taking away time. We're stuck protecting the
10 Srebrenica area, when we want to be in Trnovo, and it's something that we
11 need to get on with the case and not go into this constant reframe that's
12 not going anywhere.
13 He's strongly defending his client. In our view, we need a court
15 Thank you.
16 JUDGE AGIUS: All right.
17 [Trial Chamber confers]
18 MR. HAYNES: Can I just say something?
19 JUDGE AGIUS: Yes, Mr. Haynes.
20 MR. HAYNES: I am concerned, because you might recall, when a
21 motion was filed in relation to the Popovic Defence 65 ter summaries, I
22 jumped into the ring on that one, because I feared that this would be a
23 procedure that was used to make even more difficult the process of
24 presenting your case. And we compromised that, and perhaps I and several
25 others here misunderstood the agreement we had, but I perceived there to
1 be an agreement that the Prosecution would not use this procedure again.
2 And there is still, as it were, relief sought in my cross-motion that any
3 further applications for amplified 65 ter summaries was to be made by a
4 date that we have now passed, and so I have some sympathy for Mr. Ostojic
5 in his impassioned plea that this comes --
6 JUDGE AGIUS: But not much.
7 MR. HAYNES: Well, what I really want to know is: Are we to
8 assume that we must press on for you to rule that any further requests
9 must be made within a limited time, or is there an agreement that this
10 turn will not be used against the rest of us who are waiting to present
11 our cases?
12 JUDGE AGIUS: Yes, we have to break. Either bring it to an end
13 here -- let's break for five minutes, until they change the tapes, and
14 conclude this story.
15 Five minutes. You can stay here, actually. I mean, and in the
16 meantime Judge Kwon and myself will have a chance to discuss it.
17 --- Recess taken at 1.01 p.m.
18 --- On resuming at 1.09 p.m.
19 JUDGE AGIUS: So we'll try to be as brief as possible.
20 We primarily feel that you should help us in your own interests,
21 not just the Beara team at the moment but also the others too, to avoid
22 putting us in a position where we have to decide these issues. And I
23 don't need to say much. I think you should all know why.
24 We do understand that everyone is used to his or her own domestic
25 system. In my country, for example, you would only be required, before
1 the trial, to indicate the purpose of the testimony of each particular
2 witness that you intend to bring over, and you have to indicate the
3 entire list of witnesses you intend to bring over, but that's about it.
4 You don't furnish any summaries at all. But we have our system here. I
5 do know what the system is and I can quite understand that sometimes it's
6 difficult to adapt, but we have our own system here, and our own system
7 requires that intelligible summaries which are sufficient on the face of
8 it are to be provided.
9 We think that the best way to go about it at the present moment,
10 also in the hope that the next couple of weeks will help you relax a
11 little bit and approach this matter in a more serene way, is for you to
12 sit down together, identify who the first ten witnesses are going to be
13 after the break, find out whether, in relation to any of those ten
14 witnesses, there is still an outstanding dispute between you as to the
15 sufficiency or otherwise of the summary, and sort out those for the time
17 We have gone through all the summaries, and we don't believe that
18 it should be difficult. However, to help you, we also are in a position
19 to indicate to you that although we agree with some of the objections of
20 the Prosecution, in other words, we think that more information is
21 warranted, there are some witnesses where we are satisfied that
22 sufficient information has been given, and we are going to give you the
23 names so that you will have this clear on your table when you meet and
25 First of all, there were two witnesses that there seemed to be an
1 agreement that the information provided was insufficient, but it's
2 already on record that the Beara team promised to add more information.
3 We are talking of - I will just give numbers - 2DW24, 2DW21, and 2DPW20.
4 [Trial Chamber confers]
5 JUDGE AGIUS: Unless any of these is being dropped, Judge Kwon is
6 telling me that in your latest filing you have indicated that you are
7 dropping 2DW24, but, anyway, that's up to you.
8 Now, we consider that the summaries relating to the following
9 witnesses, 2DW17, 2DW18, 2DW34, 2DW63, 2DWPW1, we are satisfied with the
10 summaries provided.
11 [Trial Chamber confers]
12 JUDGE AGIUS: Yes, that's more or less it. I mean, we had
13 reached these conclusions, although we are not deciding the motion prior
14 to seeing Beara's response, of course, which we will study further.
15 So basically now you know where we wouldn't expect any further
16 developments. But in the case of other summaries, other witnesses, we
17 suggest you deal first in an open manner and in a positive way with the
18 ones that we will be dealing with soon after the recess, and then we
19 decide, if necessary, about the others. But as we don't know exactly who
20 you intend to bring over starting on the 25th of August, now that we are
21 not sitting -- yeah, but we are not sitting now on the 20th, 21st and
22 22nd, so I wouldn't know, Mr. Ostojic, whether you would need to revise
23 your strategy and your list. I will leave that in your hands, because we
24 wouldn't interfere.
25 But having said that, once you know exactly who, it's easy to sit
1 down with Mr. Nicholls or whoever, see exactly what else they do require.
2 At the end of the day, they are not asking for information that is going
3 to compromise your case. I mean, some of it is so neutral, and it only
4 helps. I mean, at the end of the day it could help you as well.
5 Do you wish to comment on this proposed approach or not?
6 MR. McCLOSKEY: No, Mr. President. We'll, of course, follow your
8 JUDGE AGIUS: When are you leaving town, Mr. Ostojic?
9 MR. OSTOJIC: I -- and I've set my schedule. I'm meeting with
10 various witnesses here Friday and Tuesday, and then I'm leaving for
13 entire two and a half weeks. And as I said, I offered that I'd give
14 them -- once I sit down with these witnesses, I'll give them what
15 information they deem appropriate. But I will be here -- Friday night I
16 have a meeting with an expert that's here in the Netherlands, so I could
17 meet Saturday morning as early as they'd like, or Sunday in the evening.
18 JUDGE AGIUS: Our hope is that by the time we meet again on the
19 25th of August, this dispute would have whittled down to nothing or
21 All right. So I wish you a nice break.
22 Oh, yes, we still have the exhibits. I forgot those.
23 Ms. Nikolic, thank you for reminding me. We were too anxious to
24 make you come to an agreement.
25 Ms. Nikolic.
1 MS. NIKOLIC: [Interpretation] Thank you, Your Honour.
2 My assistants have provided me with a list and have provided the
3 list to all the parties and the Chamber, so this is the list that you
4 have in front of you. But I need to provide an explanation here.
5 The quantity of documents, the number of documents, relates to
6 the footnotes in Professor Radovanovic's report, and some of the
7 documents are documents that were used in court during her
8 examination-in-chief and the re-examination.
9 JUDGE AGIUS: All right. Any objections?
10 MS. SOLJAN: No, Your Honours.
11 JUDGE AGIUS: Any objections from the other Defence teams?
12 They are all admitted.
13 Mr. Ostojic, do you have any documents?
14 MR. OSTOJIC: None, Mr. President.
15 JUDGE AGIUS: Mr. Haynes?
16 MR. HAYNES: No, thank you, Mr. President.
17 JUDGE AGIUS: Thank you. Ms. Soljan?
18 MS. SOLJAN: None, Mr. President.
19 JUDGE AGIUS: Thank you.
20 That concludes the -- Mr. Lazarevic.
21 MR. LAZAREVIC: Yes, we have nine documents to tender into
22 evidence. A list was provided.
23 JUDGE AGIUS: Yes, earlier on.
24 MR. LAZAREVIC: The only thing that I would like to mention in
25 this respect, that the last three documents, we believe that they should
1 be under seal.
2 JUDGE AGIUS: All right. Any objections?
3 MS. SOLJAN: None, Your Honours.
4 JUDGE AGIUS: Okay. They are admitted, and the last three
5 documents will remain under seal.
6 So I wish you all a nice break and that you will return full of
7 energy when we resume on the 25th of August.
8 Thank you.
9 --- Whereupon the hearing adjourned at 1.22 p.m.
10 to be reconvened on Monday, the 25th day of August,
11 2008, at 2.15 p.m.