1 Wednesday, 29 September 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9:03 a.m.
5 JUDGE FLUEGGE: Good morning. The witness should be brought in,
7 [The witness takes the stand]
8 JUDGE FLUEGGE: Good morning, sir. Please sit down.
9 THE WITNESS: Good morning. Thank you.
10 JUDGE FLUEGGE: I would like to remind you that the affirmation
11 to tell the truth still applies.
12 THE WITNESS: Of course.
13 JUDGE FLUEGGE: And Mr. Tolimir continues today his
15 Mr. Tolimir.
16 THE ACCUSED: [Interpretation] Thank you, Mr. President. I would
17 like to welcome the witness and everyone present in the courtroom. May
18 this day in court and may the final judgement reflect God's will and not
19 my will.
20 WITNESS: JOHN CLARK [Resumed]
21 Cross-examination by Mr. Tolimir: [Continued]
22 THE ACCUSED: [Interpretation] Please, could I call up in e-court
23 P895. It is an autopsy report. We need page 2. There it is.
24 MR. TOLIMIR: [Interpretation]
25 Q. We are interested in the manner of determining the age of the
1 person at the moment they died. In this report the age range for one
2 person is determined as 35 to 60. This is probably an estimate made by
3 an anthropologist, but can you give us, from a pathologist's perspective,
4 your opinion as to why this range is so broad?
5 A. The -- you are correct that the estimation was done by the
6 anthropologists and they did this by looking at the bone, certain parts
7 of the bones, particularly the pelvis and maybe the ribs, and they know
8 from tables and figures that that can give an indication of age range.
9 Now, the younger a person is -- because they are still growing, the
10 younger the person is, the easier it is to see more precisely how old
11 they are. So as a young child you can practically tell almost to the
12 year how old the person is. As you get older and particularly by the
13 20s, late 20s, et cetera, it becomes much or difficult and you start
14 using broad age ranges.
15 Above perhaps about 30, not much changes in your body, so
16 somebody from a bone point of view, the bone could look the same as
17 somebody who is 30 as somebody who is perhaps 60. As you get older and
18 people develop arthritis and other diseases, then you can perhaps say
19 that that is an older person, but that's not always predictable because
20 younger people can get arthritis. So really what I'm saying is that the
21 older you get, the more difficult it is to be precise. This is from
22 simply looking at the bones and that is all we had here to look at. So
23 their duty-bound to give a very wide age range.
24 I think they would be the first to accept this person could be
25 even slightly out with that, it could be 34, it could be 61, but it's
1 somebody of middle age, it would appear, simply from looking at the
3 Q. Thank you, Professor. If that is indeed so, if this is a certain
4 problem to determine the age range and you establish it as 35 to 60, is
5 there any problem with older persons, could it happen that their age is
6 determined as 80 instead of 60? How do you determine the age of older
7 persons? What is the range that applies to them?
8 A. Well, again, the same comments really apply and -- I'm aware
9 that, I think, some people were said to be older from anthropological
10 point of view, but I think subsequent inquiries have revealed they are
11 actually younger. The trouble is that the anthropologists were basing
12 their studies, this is on looking at the bones in the pelvis, et cetera,
13 on research that's been done a number of years ago with a different
14 population of people, not people from the Balkans. So there's a
15 limitation, a limitation there already. So that's why I think they are
16 being fair. They are giving a broad range of ages and, yes, it does
17 become more difficult with the elderly people, they could actually be
18 younger in reality than what they've estimated.
19 I think at the other end, I think we are pretty safe in saying
20 that somebody is a young person in the teens or thereabouts, that is a
21 lot more -- it's possible to be a lot more precise about that because
22 then you can look at the teeth as well, and teeth can give an indication
23 of age. But so the younger it's easier; older, much more difficult.
24 Can I just make one general observation for the Court that
25 Mr. Tolimir refers to me as Professor. I am not actually a professor,
1 but just -- I'm just Doctor, but just in case anybody misunderstood that
2 title. It's in the record.
3 Q. Thank you, Doctor. Thank you, Professor. Can we -- can you tell
4 us, while we are on the subject, what exactly is your job at the
6 A. At my own university in Glasgow
7 carries out a large number of post-mortem examinations every year on
8 people who have died suddenly. This would be people who have died of
9 natural disease, from accidents, from suicides, from alcohol, from drugs,
10 and homicides. It's a whole range of material. I also teach at the
11 university and do other things.
12 The system of professors in our country is different, I think,
13 from other countries, so it may well be that in my position in your
14 country, I would be a professor, but it's just we have a slightly
15 different system in our country.
16 Q. Thank you, I apologise for that. Doctor, since we've made an
17 introduction for my next question, I want to ask you if there had been
18 any pressure on you while you were doing this work to finish it by a
19 certain dead-line or to apply a method that you perhaps did not agree
20 with, something along those lines?
21 A. Not at all. We were aware that there was a limit to the time the
22 mortuary could operate because just of physical conditions, of the
23 weather and facilities, and this did, in fact, happen and the bodies were
24 left -- for that grave were left over to the following year. So there
25 was absolutely no pressure to abandon work, to take any shortcuts or to
1 do anything of that sort. Absolutely not at all.
2 Q. Thank you. Were there any comments made on your written reports?
3 Did anyone make any demands to have certain changes made in these reports
4 or to put in different qualifications?
5 A. Absolutely not. None at all.
6 Q. Thank you, and did you, Doctor, have a toxicologist on your team?
7 A. No. No.
8 Q. Was there any information indicating that perhaps chemical
9 weapons were used and did you find any traces of that?
10 A. We were given no information about use of chemical weapons. I
11 don't think it is something that we would have seen any evidence of.
12 I've no experience of chemical weapons, but in terms of perhaps burning,
13 well, we wouldn't have seen that anyway, but there was no -- that was
14 never mentioned to us at all. I think it would have been -- even if it
15 had, it would have been extremely difficult to -- if not impossible to
16 detect any evidence of that.
17 Q. Thank you. Now, did you, as chief pathologist, supervise the
18 work and reports of other pathologists working in the mortuary? And were
19 they perhaps susceptible to any other influence, along the lines I
20 indicated in one of my previous questions?
21 A. There's two parts to that question. No, the other pathologists
22 were under no influence whatsoever. They were entirely individual
23 pathologists gathered from all different countries of the world. I was
24 there all the time. Generally the pathologists came for shorter periods,
25 so clearly they had less experience in this work than I eventually had.
1 I was able to offer them guidance and as to how -- what things to expect,
2 how to construct -- generally construct a report and what information we
3 were looking for, and very quickly they built that up. But I think if
4 you were to look at individual post-mortem reports from somebody from a
5 European country, somebody from Egypt
6 would find a different way of describing injuries which does, I think,
7 emphasise their independence and their ability to put their own thoughts
8 on the paper. There was certainly no pressure from myself or anyone else
9 to point to them and tell, You've got to write that. They were given
10 guidance about the general information we were looking for in the cases,
11 and they compiled the reports, but no pressure at all. Often we would
12 discuss difficult cases between us and anthropologists, we would all
13 gather around the table and look at these things, and perhaps come to a
14 consensus view.
15 Q. Thank you, Professor. Since there were less experienced and more
16 experienced people and you were the chief, did you perhaps have occasion
17 to modify the reports made by other pathologists if you noticed there
18 were some errors, mistakes in them?
19 A. I did. When reviewing the reports, as I reviewed all the
20 reports, for the final reports, in going through them, I would notice
21 perhaps they've got -- somebody got left and right incorrect, and with
22 the benefit of photographs and other diagrams, I was able to correct
23 them. And other simple errors like that I would correct, and I think
24 that was my role to do that. But I didn't alter causes of death, and you
25 can see we explained yesterday about the -- sometimes the difficulty in
1 establishing the precise wording of cause of death, so because I have
2 made no alterations to these, so I would have this slight -- slight
3 perhaps confusion, but it's not, so no, I didn't -- other than basic
4 grammatical and factual errors, I made no changes.
5 Perhaps one slightly allied -- I think you'll see this in my
6 final report for 2001, I've made a comment for some of the cases which at
7 the time of the mortuary operations we labelled body parts. In my
8 reviewing all the cases, I felt there was sufficient of body to make
9 it -- body part to make it a body. That didn't alter in any way the
10 gun-shot injuries or other findings on that, I just thought we had enough
11 there to make it a body and another person. But it doesn't -- it
12 certainly doesn't alter the basic pathology in that body or body part.
13 Q. Thank you. Can you tell us now, since you were the chief of that
14 team that you supervised, to whom you gave assignments, were you
15 answerable for your work to some superior to whom you possibly submitted
16 interim reports in this work?
17 A. Clearly I was being asked to produce a report for the Tribunal
18 here. I worked through investigators for individual teams. I'm not
19 aware that I ever was asked to produce any interim report. I was -- and
20 I was producing my reports entirely independently. It was not here, it
21 was back in my own country, so I worked on the files and produced -- sent
22 the report. And that was it, really.
23 So there's no pressure, other than perhaps requesting it by a
24 certain time, no pressure for the content or any alterations in the
1 Q. Thank you. Were there any attempts to exert influence by various
2 donors and sponsors, because I suppose this work involved large donations
3 and expenses, DNA
4 Were there any pressures exerted by those who provided the financing?
5 A. No, none at all.
6 Q. Could you now tell us, when you worked in the mortuary, did you
7 encounter any logistical problems that you had to deal with directly or
8 perhaps some of your team members had to deal with?
9 A. I don't know what level of logistics you are thinking about. If
10 it's on a level of transport or leaks coming in the ceiling or no water,
11 yes, we had to deal with these. I imagine you are not speaking about
12 that. Really we had -- that was not my role, but we had no major
13 logistical issues at all. We had decent mortuary facilities, good
14 refrigeration unit, very good co-operation from local people, and bodies
15 arrived from the grave-site on time, so really there were no major
16 logistic problems for us.
17 Q. Thank you, Professor. Did you encounter any problems during your
18 work in Bosnia-Herzegovina relating to these mass graves and that kind of
20 A. I'm not sure what you mean by "problems," perhaps you'd like to
21 explain. I think the answer will be no, but you might like to explain
23 Q. I meant did you have any problems with the local authorities in
24 the territories where you worked, did anybody try to disrupt your work,
25 interfere with the crime scenes and the sites?
1 A. The mortuary was -- we had absolutely no problems in the
2 mortuary, either the security or any influence from anyone else. The
3 mortuary was based in Visoko in Sarajevo
4 grave-sites may have had some security problems. I am aware of some
5 problems they may have had but we certainly had no problems in the
6 mortuary at all.
7 Q. Thank you. I wanted to know if perhaps there were some problems
8 that impacted on the overall result and outcome of your work, the work of
9 your team?
10 A. I suppose the only problems were the nature of the cases we were
11 dealing with. These were not the sort of deaths that we deal -- a
12 forensic pathologist deals with on a daily basis. We were faced with
13 large numbers of bodies, bodies in quite advanced states of
14 decomposition, often unpleasant to deal with, and perhaps the mortuary
15 facilities were not entirely of the standard that we are used to at home,
16 but nevertheless were quite acceptable. So these were the main problems
17 for us, but these were problems we were expecting and were able to work
18 around within limitations, and I've explained these limitations at some
19 length in the reports and verbally as well.
20 Q. Thank you, Doctor, for the assistance you have extended to the
21 Defence in providing answers to questions which you did not always find
22 clear, which you did not always understand. I wish you a safe journey
23 home and success in your work. I have to finish my questioning here
24 because I'm under a dead-line.
25 THE ACCUSED: [Interpretation] Thank you, Mr. President, we tried
1 to finish within the time allocated. I have completed my examination.
2 JUDGE FLUEGGE: Thank you very much --
3 THE WITNESS: Thank you.
4 JUDGE FLUEGGE: -- Mr. Tolimir.
5 Ms. Chittenden, do you have re-examination?
6 MS. CHITTENDEN: Yes, good morning, Mr. President, everyone. I
7 do, just 15 minutes or so.
8 JUDGE FLUEGGE: Go ahead, please.
9 Re-examination by Ms. Chittenden:
10 Q. Good morning, again, Doctor.
11 A. Good morning.
12 Q. I've just got maybe four short topics I'd like to ask you about
13 before we conclude today. Firstly, yesterday you were asked a question
14 by His Honour Judge Mindua about the possibility of injury due to trauma
15 caused by a sharp object as opposed to a projectile trauma. Are there
16 any distinct features in the way that these type of sharp-trauma injuries
17 are presented?
18 A. Yes, the injuries in the bone will look different. I mean, sharp
19 trauma could be a sharp edge striking a bone direct on to the surface,
20 really cutting across it, in which case it will leave a nice narrow
21 groove. Without all the fracturing 'round about it. Secondly, a sharp
22 object could be used in a stabbing motion to penetrate through the bone
23 and that will leave a hole which will be the shape of the large object.
24 So if it was a knife or a bayonet it will leave the shape of that, again
25 with very little fracturing 'round about. So for that, these are the two
1 forms of sharp trauma which we would pick up, I think.
2 MS. CHITTENDEN: Please could we have P917 in e-court.
3 Q. Dr. Clark, can you tell us what type of trauma this photo shows
5 A. This is the top of the skull, looking down on it. At the top of
6 the screen is the front of your head and down at the bottom, with the
7 numbers, is the back of your head. So we are looking right down at the
8 top of the skull and you have this long, horizontal defect dark area,
9 without any fracturing 'round about it. Clearly something has gone
10 through that skull, has penetrated right through it. It's not at all
11 typical of a bullet because it's far too big and it's the wrong shape,
12 and that would suggest to me that something of that shape has gone
13 through the top of the skull.
14 Could be various things, it could be a very broad knife. It
15 could be a chisel, it could be a bayonet. You could think of various
16 things it could be. But something fairly strong, well, strong to get
17 through the bone and obviously broad to produce damage like that.
18 MS. CHITTENDEN: Thank you, Doctor. If we could just look at
19 P912, which is one of the photographs we looked at yesterday.
20 Q. And just a follow-up question just before we go, can you tell if
21 this injury was caused before or after death?
22 A. Very difficult, I think. I don't think I could -- I can't
23 confidently say it was before or after death, no.
24 Q. Okay. Thank you, we are on to P912 now, can we -- we looked at
25 this photo yesterday. Can you just compare that to the one we just saw?
1 A. Yes. This is again is the side of the skull, the right side.
2 Here we have the bottom left, as I explained earlier, a circular, dark
3 hole which is highly typical of a bullet going through the skull. It's
4 much smaller than the other damage and a different shape, and again, just
5 to emphasise, you see the fractures coming off it in varying directions.
6 So that's highly typical of a bullet injury.
7 MS. CHITTENDEN: Thank you, Dr. Clark. I've finished with that
8 exhibit now. Thank you.
9 Q. I'd like to move on to the second topic. You were cross-examined
10 extensively yesterday in relation to whether the bodies you examined
11 could have been combat casualties. Several times you mentioned the
12 victims at the Kozluk grave-site who had significant disabilities. I
13 would like to show you some photographs in relation to that now.
14 MS. CHITTENDEN: If we could have P899 in e-court.
15 Q. Dr. Clark, can you tell us about this photo here? Does it need
16 to be changed?
17 A. I'm just trying to work out specifically --
18 Q. Direction --
19 A. -- what part -- I think that's an elbow joint. And the dark area
20 in the middle would be your -- normally the joint, the moveable part of
21 it. What we've got here is somebody who's had obviously an injury or
22 perhaps infection in the past and the whole joint has become rigid, so
23 the arm is fixed in that sort of bend. You can see the -- I think --
24 part of the bone, the forearm, going up the top of the screen and the
25 upper arm up at the top. It may be the other way around. It's a little
1 difficult to see from this photograph.
2 MS. CHITTENDEN: If we can turn it to the -- just so the numbers
3 and letters are at the bottom of the page.
4 THE WITNESS: Well, it's actually -- it's kind of too close. It
5 would have to be -- I mean, there must be a reference to what specific
6 that is.
7 MS. CHITTENDEN: That's correct. If we can see, I can point the
8 Court, for the record, to the exhibit list which is photo showing a fixed
9 elbow joint.
10 Q. But, can you tell us, Dr. Clark, what the effect of this type of
11 condition would be on the person's ability to use that arm and engage in
13 A. Well, that person clearly cannot bend their elbow. Their elbow
14 is fixed, their arm is in an angle like that, so they cannot bend their
15 elbow or straighten their arm. It is fixed in that position. I would
16 have thought anybody trying to fire a weapon with that disability would
17 have great difficulty.
18 Q. Thank you, I'd like to show you a second photo.
19 MS. CHITTENDEN: If we can have P900 in e-court. And if we can
20 also just turn this one around.
21 Q. Thank you. Dr. Clark, can you tell us what we can see in this
22 photo here?
23 A. This is a knee joint. On the left-hand side of the screen is the
24 lower end of the femur, the thigh bone. It's been sawn off by us. And
25 at the right-hand end is your shin bone, your tibia. The normal knee
1 joint is in the middle. Normally the two bones would move on top of each
2 other, here they are stuck together, and this person would have a
3 straight leg, rigid straight leg which they could not bend their knee.
4 Q. And again how would that, this condition here, affect their
5 ability to engage in combat?
6 A. Well, you can imagine as well as I can, somebody with a straight
7 leg, they would have difficulty in walking. It doesn't stop them
8 fighting, but it certainly limits their ability to move around.
9 Q. And from those numbers and letters we can see there, which grave
10 is this?
11 A. This is Kozluk, "KK" is "Kozluk," grave 3 of Kozluk, and this is
12 the body number 820.
13 Q. And is that type of finding that's consistent with what you were
14 talking about yesterday --
15 A. Yes.
16 Q. -- from that grave?
17 A. I mean, this wasn't common. I think I've shown you probably the
18 only two examples of that, but there were other people with abnormality
19 of the hand, there were some people with amputations of a forearm, there
20 was certainly one man with a glass eye, there were people with arthritis,
21 so what I would call significant disabilities. And I've estimated about
22 4 per cent of the bodies in the Kozluk grave, I emphasise just Kozluk
23 grave, had these disabilities.
24 MS. CHITTENDEN: Thank you, Dr. Clark. I have finished with that
25 photo there.
1 JUDGE FLUEGGE: Before we move to another picture or document,
2 Judge Nyambe has a question.
3 JUDGE NYAMBE: Thank you. Dr. Clark, I have you saying at
4 page 13, line 13, maybe I have to -- "This is a knee joint. On the
5 left-hand side of the screen is the lower end of the femur, the thigh
6 bone." It's been my interest is on: "It's been sawn off by us."
7 THE WITNESS: Yes. In the mortuary after we had examined the
8 body, probably the -- well, maybe two reasons. Either actually to
9 facilitate this photograph, but also in taking a DNA sample from the
10 bone, we took it from the femur, we had to saw through the bone to take
11 the DNA
12 entirely post-mortem after all the examination has been done to -- and
13 this is what we are left with. So it's entirely sort of mortuary
14 procedure, the cutting of the bone at either end. There's nothing more
15 sinister in it than that.
16 JUDGE NYAMBE: Thank you. I didn't mean to say it's sinister, I
17 just wanted to understand. Thank you.
18 JUDGE FLUEGGE: Ms. Chittenden.
19 MS. CHITTENDEN:
20 Q. Dr. Clark, just to move on to the third topic, yesterday during
21 cross-examination you mentioned at page 5916 that in large conflicts, the
22 characteristic injuries of victims are from explosions. My question is
23 to you, are injuries from explosions or blasts exclusive to combat
25 A. No.
1 MS. CHITTENDEN: I would like to show you now if we can go to
2 Exhibit P896.
3 Q. This is your 2000 season report.
4 MS. CHITTENDEN: And if we can go to page 19, please. And these
5 findings are in relation to the Glogova grave-site.
6 JUDGE FLUEGGE: Mr. Tolimir.
7 THE ACCUSED: [Interpretation] Mr. President, this issue was not
8 dealt with in cross-examination. And that's my objection. It does not
9 arise from cross-examination.
10 JUDGE FLUEGGE: Ms. Chittenden, what is your comment?
11 MS. CHITTENDEN: Thank you, Mr. President. Dr. Clark, as I
12 mentioned at page 5916, lines 1 and 2, in response to a question by the
13 accused about the typical type of wounds caused in combat made this
14 answer. It's a very short point that just goes back to his report,
15 that's what it arises from. You can look at the transcript.
16 JUDGE FLUEGGE: Mr. Tolimir, this is also my recollection, that
17 you asked the witness about results and wounds of blasts and other
18 explosions. Therefore, Ms. Chittenden should go ahead.
19 MS. CHITTENDEN: Thank you, I've just got one question. I
20 believe on the B/C/S it's not that page. Just so the accused has the
21 correct B/C/S page. 22 in B/C/S, please, I think.
22 Q. Dr. Clark, if we can just have a look at the top there, as I said
23 this is in relation to your Glogova findings. We have a heading "Blast
24 injuries" there and we can see that you've concluded injuries caused by
25 shrapnel were present in almost half the bodies. They were given the
1 general term "blast injuries." We were informed they may have
2 represented the contents of grenades, and victims had both blast and
3 gun-shot injuries. Is that your recollection?
4 A. Yes.
5 Q. Great.
6 MS. CHITTENDEN: If we can just turn to page 17 in English of
7 that report. Just should be two pages back on the B/C/S too. Page 20,
9 Q. If we can just go to paragraph 3 where it states:
10 "We are informed there was evidence to suppose many of the bodies
11 at Glogova were victims of the mass killing at the nearby Kravica
12 warehouse --"
13 JUDGE FLUEGGE: Please slow down while reading.
14 MS. CHITTENDEN: Okay, sorry. I was do that with reading.
15 Q. "We were informed that there was evidence to suppose that many of
16 the bodies at Glogova were the victims of a mass killing at the nearby
17 Kravica warehouse, where it is alleged that a number of men were crammed
18 into the building and fired on with automatic weapons and grenades."
19 Dr. Clark, my question is: Is that finding there consistent with
20 your conclusion you mentioned before about explosions or blast injuries
21 not being exclusive to combat?
22 A. Yes, that's entirely possible. I mean, I did make the
23 observation yesterday that we generally had little background information
24 to most of these graves. This was one perhaps we were given a little bit
25 more information but not much more than I've written there. Clearly,
1 when we started to find blast injuries in these bodies, you know, we
2 asked questions and that this was information we were given. So
3 certainly my findings about the finding of blast injuries and pieces of
4 shrapnel would certainly fit with this scenario.
5 Q. And just who gave you that information, just for the record?
6 A. This would be the investigators. I can't specify a name, but the
7 Tribunal investigators would have passed that information on.
8 Q. Thank you, Dr. Clark.
9 MS. CHITTENDEN: I've finished with that exhibit now.
10 Q. Finally, Dr. Clark, I've just got one final question for you
11 before we finish. I'd like to clarify with you one of your answers on
12 cross-examination yesterday. It was in reference to page 10 of your 1999
13 season report and you were asked the following question and gave the
14 following answer, beginning at page 5951, line 1 of the transcript. I'll
15 read it out to be clear. The question:
16 "You've just said that out of these 55 cases -- in these
17 55 cases, it was not possible to determine the cause of death. Now my
18 question is: When it is impossible to determine the cause of death, like
19 in these 55 cases, is it impossible for a pathologist to decide what the
20 cause of death was and, therefore, impossible to make a reliable
21 conclusion as to the circumstances in which that person met their death?"
22 And your answer was:
23 "Yes. I think, clearly, if we do not know the cause of death, it
24 becomes very difficult to have any certainty of the circumstances of the
1 Now, Dr. Clark, when you say that it is difficult to have any
2 certainty of the circumstances of the death if we do not know the cause
3 of the death, do you state that as a general proposition or can I take it
4 that you are referring to the specific role and function of a forensic
6 A. That's general proposition. I mean, I could qualify that in
7 saying that one of the reasons why we had to give unascertained for some
8 of the bodies was there were parts missing, and it may well be that some
9 of these parts, the missing parts, were the body parts which we looked at
10 independently which did have gun-shot injuries in them. So I am quite
11 willing to accept that if it was possible to associate the body part with
12 an injury with the body, then it would be possible to come to a cause of
14 So that would perhaps reduce that number, if we were able to do
15 that. But equally, there are some cases in which we had a whole body and
16 found no injuries, and that I think leaves it open to a variety of
17 potential causes of death.
18 Q. Thank you, Dr. Clark. From your answer there, I can see you're
19 responding to cause of death and your findings of cause of death or
20 inability to state the cause of death as a pathologist.
21 A. Yes.
22 Q. My question, sorry, is slightly broader. May I give you just a
23 hypothetical question just to put it in a bit more context. It's a
24 different example. A plane takes off --
25 A. Yes.
1 Q. -- at 9.00, it's got 300 passengers. All the passengers are
2 alive upon takeoff.
3 A. Yes.
4 Q. Half an hour later, the plane crashes, bursts into flames. At
5 the crash site, 245 of those bodies are examined by a pathologist and
6 their cause of death is determined with certainty. So, for example,
7 severe trauma to multiple parts of the body or organs, burns, heart
8 attack before impact, et cetera. The other 55 bodies are also recovered
9 from the crash site but are so charred from the flames that the
10 pathologist cannot state with medical certainty the clinical cause of
12 My question is: Does this mean that no other professional, for
13 example, a policeman, an accident investigator, a fireman, or even an
14 eye-witness, can state with certainty the factual circumstances
15 surrounding how these 55 people died; that is, as a result of a plane
17 A. They can state with confidence the fact that they were on the
18 plane, were alive on the plane, and they were dead after it, and that
19 could give very strong indications that the likelihood of dying in that
20 incident, yes. And I think in the context of here, we still -- these
21 bodies, the unascertained cases are still bodies who were in a mass grave
22 and that is worth observing. I mean, I'm fully happy to accept that
23 there may even be some people in the unascertained who have died of
24 natural causes, I cannot exclude that, whose bodies have then been put
25 into mass grave. I think given the overall circumstances that's
1 possible. Which is a slightly different scenario from a plane crash,
2 which is we know that it's observed people getting on to it, it's
3 observed crashing, and when it comes down everyone is dead. It's a
4 slightly more specific example than I think we have here.
5 JUDGE FLUEGGE: Mr. Tolimir.
6 THE ACCUSED: [Interpretation] Mr. President, the doctor has
7 answered the question in a professional manner and in keeping with his
8 knowledge and ethics. I wanted to oppose the fact that the doctor was
9 being given the role of an investigator, which he is not. He is an
10 expert in his field. Thank you.
11 JUDGE FLUEGGE: I think, Mr. Tolimir, everybody in the courtroom
12 realised the purpose of that question, which was really hypothetical, and
13 the doctor indeed answered that question and made it clear that there's a
14 difference between a mass grave and a plane crash. Thank you for your
16 Ms. Chittenden.
17 MS. CHITTENDEN: Thank you, Mr. President. I have no further
19 JUDGE FLUEGGE: Judge Mindua has a question.
20 Questioned by the Court:
21 JUDGE MINDUA: [Interpretation] Witness, Dr. Clark, I know that
22 your work is not an easy job and it's not a very common job either.
23 Pathologists are hard to find. As we can see in this trial, your job is
24 extremely important for society at large and your testimony is crucial.
25 This is why I'm putting you a question.
1 Yesterday, I believe the numbering has changed, but yesterday
2 this was on page 21 of the transcript, lines 3 to 5. You mentioned the
3 difficulties you had in seeing the bodies. You mentioned your thoughts
4 which crossed your mind all the time while you were conducting the
5 exhumations, or rather, the work at the hospital, at the mortuary. On
6 today's transcript, line 7 to 9, you mentioned your thoughts and you
7 mentioned the case of a number of deaths which were not common. Usually
8 you examined bodies of people who had committed suicide or had died in a
9 traffic accident.
10 Now, this is my question: Do you think that because of these
11 uncommon deaths, according to you, and in light of the thoughts that were
12 crossing your mind at all times, your conclusions could be influenced one
13 way or another, in general terms?
14 A. I think you are correct in saying that we -- our normal work is
15 to examine fresh bodies and we have all the facilities there. In these
16 decomposed bodies, we try to apply the same principles of full
17 examination of a body and looking at findings and trying to assess the
18 significance of that. And I think -- I think we've done it very fairly
19 and I don't think we have been biased in any huge way.
20 I mean, naturally, as a human being, you are -- if you are told
21 that you are dealing with bodies from a mass grave, there's an immediate
22 assumption, but I think we can put that aside and look at all our
23 findings very objectively. Just in the same way we have to on our
24 routine work with a straightforward homicide in which police officers are
25 asking us to look at things, but we've just got to stand back and look at
1 all the evidence and assess it very impartially. So I don't think -- I
2 think it's still possible to be completely impartial in this, and
3 hopefully that comes over in the evidence that we provide, in indicating
4 levels of doubt and uncertainty and where we can't come to a full answer.
5 Not sure if that answers your question or not, but it's an
7 JUDGE MINDUA: [Interpretation] Yes, thank you very much.
8 JUDGE FLUEGGE: May I ask you a follow-up question. Does it
9 happen in your normal work in Glasgow
10 that you are confronted and have to deal with decomposed bodies as well,
11 for instance, a dead person was -- a person was missing and found later
12 in a decomposed situation? How often does that happen?
13 A. That's quite frequent in our practice. And again, quite often we
14 will be -- we will -- having done all the investigations, we will be
15 saying, I don't know the answer, I don't know why this person has died.
16 Decomposition makes various things difficult. It makes interpretation of
17 natural disease, like in the heart or the lungs, very difficult to see.
18 It makes toxicology, if we're thinking of alcohol or drugs, that becomes
19 very difficult as well. So it's not uncommon that we have to give
21 But bear in mind, in most of these cases, what we are looking at
22 is the soft tissues of the body, fluids and the organs of the body, and
23 that's where the evidence lies. That's what decomposes quickly. In the
24 bodies in the mass graves, there's still a lot of evidence from the
25 skeleton which does remain and so that makes it -- we have the advantage
1 of that. Most of our decomposed bodies in Glasgow will not have died
2 from gun-shot injuries hitting the skeleton or other parts of the body
3 which we would still see, so there's slight difference in both cases.
4 JUDGE FLUEGGE: Thank you very much. Mr. Tolimir asked you about
5 your normal work at the University of Glasgow
6 explained that quite extensively, but you didn't say anything about your
7 position. What is your post, your position in this institute for
8 forensic pathology?
9 A. Well, we have a team of six forensic pathologists at what we call
10 consultant level. I'm the most senior of them. I've been there the
11 longest time. And so I'm kind of naturally the -- I have more role in
12 administration and organisation, but I'm one of a team of six trained
13 forensic pathologists, fully trained forensic pathologists, and the most
14 senior one.
15 JUDGE FLUEGGE: Thank you very much. And, indeed, thank you very
16 much for your answers and the information you were able to provide for
17 the Chamber. Thank you that you have come to The Hague and assisted us
18 to find the truth. And you are now free to return to your normal
19 activities. And like Mr. Tolimir, I wish you on behalf of the Chamber a
20 safe journey back. Thank you. Thank you very much.
21 THE WITNESS: Thank you very much.
22 [The witness withdrew]
23 JUDGE FLUEGGE: If I'm not mistaken, the next witness is ready as
24 well. I would like to make a proposal. We should have the break, the
25 first break now. It is easier for all arrangements. And we must have a
1 slightly longer break today because the Chamber has to consider some
2 duties, and therefore we have a break of 45 minutes and we'll resume
3 quarter to 11.00. We adjourn.
4 --- Recess taken at 10.01 a.m.
5 --- On resuming at 10.56 a.m.
6 JUDGE FLUEGGE: Mr. McCloskey, I see you are on your feet, but
7 before you raise some procedural matters, the Chamber would like to
8 render an oral decision which was taken by a majority, and everybody will
9 have realised that we have had some problems to come to a common
10 conclusion in the Chamber.
11 This is an oral decision on admission of evidence tendered
12 through witness Dusan Janc. The Chamber would like to return to the
13 pending issue on the admission of certain videos and documentary evidence
14 that the Prosecution tendered through witness Dusan Janc on the 22nd and
15 23rd of September, 2010.
16 The Chamber had marked these exhibits for identification pending
17 a decision on admissibility. Mr. Tolimir raised some objections to the
18 admission of some evidence. First, before turning to the merits, the
19 Chamber wishes to clarify the applicable law and practice before the
20 Tribunal with regard to evidence submitted to the Chamber.
21 The Chamber, by majority, emphasises that there are two phases
22 that should be considered in this regard. The first is the admission
23 phase. During this phase it is sufficient for the tendering party to
24 establish prime facie relevance and probative value of evidence and it
25 should be admitted unless probative value is substantially overweighed by
1 the need to ensure a fair trial. However, evidence may not be admitted
2 if obtained by methods which cast such substantial doubt on its
3 reliability or if its admission is anti-ethical to and would seriously
4 damage the integrity of the proceedings. Yet the Chamber's decision to
5 admit evidence is not binding upon the weight assigned to the piece of
6 evidence during deliberations which is the second phase of evidence
7 consideration. The decision to admit reflects no ultimate determination
8 of the authenticity or trustworthiness of the evidence.
9 In light of this standard, the Chamber has reviewed the witness
10 Janc's testimony regarding the documents and videos submitted by the
11 Prosecution and is, by majority, satisfied that they are prima facie
12 relevant and probative under Rule 89(C) of our Rules. The Chamber is
13 further satisfied that there are sufficient indicia and reliability
14 present in this evidence. This finding does not prevent the Prosecution
15 from providing more information and/or calling other witnesses who can
16 attest to the materials in question. And this is, in fact, the question
17 the Chamber has considered intensively and we -- on which we couldn't
18 find a common position.
19 The position of Judge Nyambe is that it would be much more
20 preferable to admit some of the videos through another witness, for
21 instance, the videographer who shot the video. Of course, he will be
22 called by the Prosecution, as we have heard, but we can't be sure that he
23 will appear in court at a later stage of this trial.
24 So that is the reason why we marked several documents for
25 identification in order to be able to identify them and to use them at a
1 later stage and admit them at a later stage with some other witnesses.
2 This is the position of Judge Nyambe.
3 By majority, the Chamber has decided to admit the videos and
4 documents tendered through witness Dusan Janc. These include Exhibit
5 numbers P1021, P1022, P1023, P1024, P1027, P1025, I forgot that. P1028,
6 P1029, and the document 65 ter number 6576.
7 That was the decision of the Chamber and now, Mr. McCloskey, if
8 you want to raise another matter.
9 MR. McCLOSKEY: Yes, good morning, Mr. President, Your Honours.
10 And we will, of course, endeavour to bring the videographer and we'll
11 keep you informed on our efforts to do that. And he has testified in
13 will endeavour to bring him here with all the power of the Court and our
14 ability to do so. And that, of course, is true of any other witness that
15 you think is appropriate. We can't always -- that one we know we need to
16 get for you. And we will try to anticipate all the others that you may
17 need, but of course, we will endeavour to bring anyone that you think --
18 well, of course, you, as you know, have the absolute power to bring
19 whoever you would like.
20 JUDGE FLUEGGE: And, Mr. McCloskey, may I interrupt you. The
21 Chamber would appreciate that, and this not only by majority, but all
22 members of the Chamber.
23 MR. McCLOSKEY: Thank you.
24 JUDGE FLUEGGE: Please carry on.
25 MR. McCLOSKEY: Absolutely. On the similar subject, today
1 Ms. Gallagher, who has always been scheduled to testify about two basic
2 exhibits, one is the trial video which I think you've seen a fair amount
3 of, we played part of it through Mr. Ruez, the sort of chronologic video
4 of Srebrenica and other things, and specifically a book of stills that we
5 have made based on that video so that when you see the video, you can see
6 who the Prosecution feels the various people are, so that it makes some
7 sense. It's a lot of video, it's a lot of material, it's going to
8 require your viewing a few times. However, we have -- we'll bring the --
9 the key witnesses that are in this video we hope to bring to you as the
10 most significant evidence. But Ms. Gallagher will give you our best
11 efforts on where the video came from, where we got it, those sort of
12 basic things, plus she will go through the video book and explain the
13 identifications that were made. Much of this, of course, is -- are
14 hearsay identifications of the investigations.
15 And -- but to try to clear up a matter, the video -- the trial
16 video is P991, and Ms. Stewart tells me that that came into evidence
17 through Mr. Kingori on e-court. However, Mr. Kingori only testified, as
18 you recall, about a few clips, mostly that he was in or that he was part
19 of. And the trial video is much more immense than that. And so we
20 don't -- never expected that the entire video would have come in. I
21 don't know if that's the way it looks on e-court, but that's not
22 necessary now for it to be in.
23 One of the reasons I say that is because what we want to provide
24 to you is a complete trial video based on the new material that Mr. Janc
25 was speaking about and that we got relatively recently, so we don't need
1 that video in evidence right now. We want to provide you the complete
2 version as we finish doing the editing and putting it together and so you
3 have a complete -- a complete video that we can provide you on DVDs as
4 well so you are not having to search in e-court for the various pieces.
5 As well, we'll have a new book of people that are in the video
6 that will go along with it. But it's my intention today to play parts of
7 the -- the old video so that you can see where we are getting pieces from
8 and she can help you identify various people in it and use the old --
9 well, pictures from the old book because it will also help identify the
10 video. And the video and the book are, I'm not sure, 80 per cent the
11 same than the new material, but with new material we want to give you a
12 package that's complete and we should be able do that in the next month
13 or so as -- well, we now especially since we see that -- we didn't want
14 to put anything in a book that wasn't into evidence. So now that there
15 are things into evidence, we can put a more complete picture for you.
16 And I just wanted to let you know that. So I'll be dealing with
17 these two P numbers, the book, P624, and the trial video, P991, and be
18 asking the witness about that.
19 JUDGE FLUEGGE: Thank you very much. If there's nothing else to
20 address the Chamber with, the witness should be brought in, please.
21 MR. McCLOSKEY: And Ms. Stewart will be working the video and the
22 Registrar will be working the stills book and we'll hope things will go
23 smoothly as they have, but we'll give it our best.
24 JUDGE FLUEGGE: I'm sure, and there are so many experienced
25 people in the courtroom, it will be managed.
1 [The witness entered court]
2 JUDGE FLUEGGE: Good morning, Ms. Gallagher. Welcome to the
3 Tribunal. Would you please read aloud the affirmation on the card which
4 is shown to you now.
5 THE WITNESS: I solemnly declare that I will speak the truth, the
6 whole truth, and nothing but the truth.
7 JUDGE FLUEGGE: Thank you very much. And now please sit down.
8 Mr. McCloskey for the Prosecution has questions for you. Just a moment.
9 Mr. Gajic.
10 MR. GAJIC: [Interpretation] Your Honour, just one technical
11 remark. Since Mr. McCloskey and the witness speak the same language, the
12 transcript -- in fact, the Serbian interpretation lags sometimes as much
13 as two paragraphs behind the transcript. And Mr. Tolimir sometimes has
14 difficulty, he is still listening to the interpretation of testimony, for
15 instance, when you have already started speaking, Mr. President. I would
16 therefore, appreciate if Mr. McCloskey and the witness would make a short
17 pause before questions and answers.
18 JUDGE FLUEGGE: Thank you very much for that advice, it's indeed
19 very helpful. That is always the problem if counsel and witness speak
20 the same language, and I hope very much that Mr. McCloskey and the
21 witness will take that into account.
22 MR. McCLOSKEY: Yes, Mr. President. You'd think after 12 years I
23 would have had that figured out, but I do, as you know, as probably as
24 early as a couple of days ago, do that. We will try our best, of course,
25 and do that. All right.
1 WITNESS: ERIN GALLAGHER
2 Examination by Mr. McCloskey:
3 Q. Can you tell us your name.
4 A. It's Erin Gallagher.
5 Q. And what is your position?
6 A. I'm an investigator with the OTP.
7 Q. And what case have you been assigned to?
8 A. I've been assigned to the Srebrenica case, to both Popovic and to
9 now the Tolimir case in trials.
10 Q. Okay. Have you ever testified here before?
11 A. No, this is my first time.
12 Q. Okay. We do need to, both of us, keep in mind this delay. And
13 one good thing to -- if you can look at the -- sometimes looking at the
14 screen will help, but --
15 JUDGE FLUEGGE: This is not the only indicator because the
16 translation into B/C/S you can't see on the screen, so please be even
17 more patient.
18 MR. McCLOSKEY:
19 Q. The trouble is the longer I wait the more my mind goes somewhere
20 else. But we'll get a good rhythm going and we'll be able to do this.
21 Can you tell us how long you have worked as an investigator for the
22 Office of the Prosecutor?
23 A. I've worked for the OTP for a little over four and a half years
24 now. I arrived in January 2006.
25 Q. And has -- have you worked on the same Srebrenica case that
1 entire time?
2 A. Yes, I have.
3 Q. And before we go into a little more detail about your work as an
4 investigator, let's hear a bit more about yourself. Where were you born
5 and raised?
6 A. I was born in the US
7 last 20 years in San Francisco, California.
8 Q. And can you tell us your educational levels?
9 A. I went to college, to university, the University of Wisconsin
10 did my bachelor's degree there and then I did a master's degree at
11 San Francisco State University
12 Q. And can you tell us what you majored in, what your bachelor major
14 A. My bachelor's was in international relations, Russian studies.
15 Q. And your master's?
16 A. And my master's was in gender studies.
17 Q. And when did you get your master's degree, what year?
18 A. That was in 1995.
19 Q. And what did you do after getting your master's in 1995?
20 A. Shortly thereafter I actually joined the San Francisco police
22 Q. And can you describe, just briefly, your career there, what kind
23 of training you had, for how long, and what kind of assignments you had?
24 A. I went to the police academy for six months, my first six months
25 in training, and then worked as a police officer on the streets for two
1 years after that.
2 Q. And then what did you do?
3 A. Then I transferred to the district attorney's office and worked
4 as an investigator for that office.
5 Q. And you can you tell us what a district attorney's office is?
6 A. It's the -- the prosecutor for crimes in the city and county of
7 San Francisco.
8 Q. And can you just briefly describe how an investigator's job may
9 differ from the prosecutor's office than it would the police department?
10 A. Generally, the police department, the detective inspector in a
11 police department will do the immediate investigation. They will do
12 immediately from the arrest or up until the arrest and then oftentimes
13 the district attorney's office will take over the investigation after the
14 arrest and prior to the trial. At the same time there are cases that the
15 district attorney's office will investigate right from the start, and
16 will keep the case, the investigation, through to the trial.
17 Q. And how many years did you work as a DA, as they call it, DA's
19 A. I worked there for eight years.
20 Q. And can you give us just a few examples of your most significant
22 A. I worked many of the violent crimes that came through
23 San Francisco, through the office. I worked a -- was a cold case
24 homicide, a murder case that was 15 years old. I worked a serial rape
25 case, a number of serial rape cases, a number of rape cases, sexual
1 assault cases. I also worked a number of child abuse cases. Those were
2 predominantly the areas that I worked when I was with the district
3 attorney's office.
4 Q. And after your eight years there, what did you do next?
5 A. Then I came to the ICTY.
6 Q. And do you remember the month and year?
7 A. I arrived here January 2006.
8 Q. All right. And can you tell us a little bit about the
9 investigative -- your investigative work here. Let's start with who else
10 was in your investigative team for the Srebrenica case?
11 A. When I first arrived, it was a little bit of a time of
12 transition. The prior investigator, Bruce Bursik, was leaving so we did
13 not overlap very much at all. And then shortly thereafter, Investigator
14 Tomasz Blaszczyk came back on to the team, and then not long after,
15 another investigator, Dusan Janc also joined the team. So it was the
16 three of us very early on in 2006.
17 Q. Is that the current makeup of the team?
18 A. Those are the investigators. Certainly the team encompasses
19 analysts, interpreters, you know, attorneys, so it's a larger team than
20 obviously just the three of us investigators.
21 Q. All right. And have you had any particular assignments or been
22 given any particular areas to focus on?
23 A. It's been quite varied since I've been here. One part of the
24 investigation that I did work quite a bit on was the Kravica execution
25 and the events around Kravica. Otherwise some of the areas that I've
1 spent a bit of time on are some of the forensic analysis or work or
2 consulting with forensic experts.
3 Q. How about anything to do with the Ministry of Interior police
5 A. And that's part of the Kravica execution. It's the MUP forces
6 that were in the area at that time.
7 Q. Okay. And how about anything related to the video and the stills
8 book that came out of what we all have been referring to as the
9 Srebrenica trial video?
10 A. And certainly as part of the investigation as well as assisting
11 with the trials and trial exhibits is working with what we call the
12 stills book, the photo book.
13 MR. McCLOSKEY: And for the record, the stills book is P624 and
14 the trial video I speak of is P991. And there is a transcript of the
15 trial video in e-court which is P008. Sorry, P1008.
16 Q. Now, in fact, were you prepared to testify about the stills book
17 in the previous trial, the Popovic trial?
18 A. Yes, I was.
19 Q. And did you in fact testify?
20 A. No. At the time there was a stipulation by the Defence to the
21 book and I ended up not having to testify.
22 Q. All right. Now, let's go to the subject matter of your testimony
24 MR. McCLOSKEY: Unless there's any other questions, of course,
25 feel free to interrupt us at any time.
1 Q. Have you managed to view in part and study the Srebrenica trial
2 video, P991?
3 A. Yes, I have.
4 Q. And what have you -- what has your study in preparation for your
5 testimony today -- what have you looked into? Just give us a rough idea,
6 we'll go into some details.
7 A. Of course part of it is viewing the video many times. Also
8 looking at the original footage, the raw footage that made up the trial
9 video. Looking at researching where we got some of that original
10 material, and also speaking with the film-maker who made the video.
11 Q. All right. And the Trial Chamber has seen portions of it, large
12 portions, through Jean-Rene, that was a long time ago, and through
13 others, so I don't think we need to describe that too much. But can you
14 tell us what you've learned about how this trial video, this series of
15 shots from south of Srebrenica, Srebrenica, Potocari and on, how that was
17 A. The film-maker as well as the investigators that were working on
18 the case at that time compiled numerous videos that were in-house at the
19 ICTY and assisted in -- the investigators assisted the film-maker with
20 what the videos were, anything that was related to Srebrenica, to the
21 Srebrenica operation, and she, the film-maker, Marta Fracassetti, viewed
22 all the footage that existed at the Tribunal and started compiling some
23 rough edits of the video and working closely with the investigators and I
24 think the trial attorneys at that time.
25 Q. Now, when you say Ms. Fracassetti looked at all the video of the
1 Tribunal, is that correct or was she looking in a particular area?
2 A. She was looking at all videos that were related to Srebrenica.
3 Q. And can you tell us just a little bit about how it was that
4 Ms. Fracassetti was working on this project?
5 A. She was hired to make this video, employed to make this video at
6 the Tribunal.
7 Q. Do you know when she worked doing this job?
8 A. This was from 2002 to 2003.
9 Q. And can you tell us where she's working today?
10 A. She works in the audio-visual unit for the courtrooms.
11 Q. And so --
12 A. Here at the Tribunal.
13 Q. So she began with the Office of the Prosecutor and then what?
14 A. And then she started working for, which I believe is the
15 Registry, the audio-visual unit here.
16 Q. Okay. And when did you have a chance to speak with her about the
17 process that she used?
18 A. I spoke with her a few days ago.
19 Q. And can you just tell us roughly what her mandate was and what
20 she did in looking at all these videos?
21 A. Her mandate was to create a video that was as complete and full
22 and accurate that told the story of Srebrenica with the footage that we
23 had, and her focus was to use the most complete footage, video footage
24 that existed, as well as the best quality footage that existed, so to
25 make the best quality video they actually could.
1 Q. But who was actually directing the overall substance of it?
2 A. The content was directed mainly by the investigators on the team
3 at that time, as well as input from the attorneys.
4 Q. And you say the most complete, do you know if she actually edited
5 any segments of it or was it everything that the Srebrenica video
6 collection had, or a combination thereof?
7 A. It is actually a combination, obviously she couldn't put in all
8 the footage for all of us to watch for days so she had to make edits.
9 And some of the footage that existed at the Tribunal also was, you know,
10 in duplicate form too. There are some portions that she put in in its
11 entirety, some portions of the video, and some other portions that she
12 had to edit and using the best quality of the video that existed.
13 Q. All right. We may get into a little more detail on that as we go
14 through some of it, and of course, Ms. Fracassetti is available if
15 anything more particular is needed.
16 All right. So tell us about your job, your mandate in relation
17 to this stills book, P624, and the trial video?
18 A. Well, the stills book parallels the video. The stills book is
19 comprised of photographs that are captured from the video. So everything
20 that is in the stills book is from the trial video. Over time I've added
21 photographs from the videos myself in to it, but for the most part, it
22 was already a pre-existing book that was made years ago. So I've
23 certainly familiarised myself with the stills book at the same time as
24 watching the trial video.
25 Q. Is the trial video and the stills book, are they both still works
1 in progress?
2 A. They are. They are. We -- though the stills book has for the
3 most part remained the same for many years. In the last couple of years
4 we had received new -- last year, I should say, we received new video
5 footage and so we would like to add more photographs from the recent
6 videos. And also as -- over the course of when I have been reviewing the
7 book and reviewing the videos, I'm noticing some things that I think
8 should be changed, we think should be changed and some corrections.
9 There are some small mistakes in it as well.
10 Q. Okay. Have you had a chance to look at most of the -- or
11 actually identify, not look at, but actually identify the various sources
12 of video that Ms. Fracassetti used in compiling and editing and making
13 this product?
14 A. Yes. And not only have I viewed the entire video numerous times,
15 I've also looked at the underlying original footage used within the
17 Q. Okay. Let's go through, well, most of or some of to give the
18 Court an idea of the kinds of sources she was using, and if you can do it
19 in the time-frame chronologically of when we received the material at the
20 OTP, that would be helpful. If not, then just give us an idea of what it
21 is the OTP got and when we received it.
22 A. Right. We've gotten videos from a number of different sources
23 spanning many years. The -- some of the first Srebrenica-related video
24 that I know that we've received was actually early, it was in December of
25 1995, and that was received by Jean-Rene Ruez when he was in Sarajevo
1 when he received it directly from the police in Sarajevo in 1995.
2 Q. And what roughly did this video he received contain?
3 A. It was footage of the approach to Srebrenica and entry into
4 Srebrenica. Much of it -- in fact, I think all of it is from the -- what
5 is called SRT
6 you can see was broadcast on SRT
7 Q. And how are you able to make that conclusion, that it was
9 A. You will see the SRT
10 the trial video, you'll see it's in Cyrillic, looks like CPT, but SRT
11 the upper corner, upper right corner or upper left corner of the video
12 footage. So that I believe is the first, the earliest footage we
14 Q. Can you give us a brief idea of -- I mean, obviously you were not
15 here in 1995. What sorts of investigation or review, what have you
16 looked at to determine these basics of when we receive things and from
17 who? How do you know that?
18 A. Well, each video as well as every document that comes through
19 will -- comes through the Tribunal is placed into our evidence unit.
20 It's given an evidence number and therefore there's a trail, a record of
21 when it arrived and on that record -- and it's called a MIF,
22 mini-indexing information form, will be some information of when it was
23 received, who it was received by, where, and the date. So that's
24 generally the first place to look.
25 In addition, we may find that there have been requests, letters.
1 There may be some correspondence, RFAs, request for assistance, that can
2 also provide a record of when videos arrived to the Tribunal.
3 Q. Okay. So this material, this Serb television, Serb radio and
4 television material that was provided by, I think you said the Sarajevo
5 police, would this be the Bosnia and Herzegovina Muslim side of the world
6 back in those days, or would it have been the Republika Srpska Sarajevo
8 A. This particular footage from 1995 came from the
9 Bosnia-Herzegovina Muslim side and specifically came from the Centre for
10 Security Services.
11 Q. Is that known as AID?
12 A. CSB
13 Q. Oh, the CSB
14 or did you find out, you know, how the Muslim police obtained this
15 footage that appears to be from Serb radio and television?
16 A. From the record it gives me limited information of where and when
17 it was received. I fortunately work with the interpreter who happened to
18 be there at the time with Mr. -- with Investigator Ruez and she actually
19 remembered picking up the video footage during a mission in December of
21 Q. Any information on how the -- how the Muslim police actually got
22 this footage?
23 A. It was broadcast on SRT
24 off of the TV and the tapes arrived in a VHS format.
25 Q. Okay. What other source of video did we get that found its way
1 into the trial video?
2 A. And I'll still try and keep it chronological. In 1998 we
3 received directly from SRT
4 was also a mission with analysts who were collecting documents and at the
5 same time collected video footage from SRT in -- which is located in
7 Q. Okay. What else?
8 A. 1999, we received quite a bit of footage, you'll see on the trial
9 video, that is from Antelope Productions and that was a production
10 company that made a documentary called "A Cry From the Grave" which was
11 then aired on the BBC
12 time, requested all the raw footage that made up their documentary, "A
13 Cry From the Grave." So in 1999, December 1st, 1999, they gave us all of
14 their raw footage.
15 Q. And were you able to determine where they got their raw footage,
16 and I mean not their, you know, their movie side of things but the raw
17 footage that was alleged to be real-time event-related footage?
18 A. They did give us a tape log that listed all of their footage. It
19 did include their own footage, you know, that they taped in 1999, but it
20 also included what would be archival footage, where they got footage from
22 Q. And can you give us some examples of where they got their
23 material or where at least they say they got it in their -- in this index
24 you are referring to?
25 A. They received some of their footage from archives, such as Pale
1 archives --
2 Q. Do -- sorry, do you know what that was a reference to?
3 A. No, actually, I just have limited information. I would only
4 presume what it might be, but I actually don't know. It's fairly limited
5 what they gave us in terms of description of where they got their
6 original sources. They also received footage from archives in Tuzla
7 know they received footage from the archives at the BBC, from the
8 Tribunal, from United Nations. They received footage from individuals as
9 well, individuals that were there at the time.
10 Q. Now, there's a part of the trial video, I think the Court has
11 seen it, that shows mostly men walking through meadows and woods in a
12 path, and we'll get to that a little bit later, but was -- where did we
13 get that from?
14 A. The footage that you are talking about does come from Antelope
15 Productions. It is from their original source. We don't know who that
16 person is. They haven't identified them, but you will see from the
17 footage that it is a, you know, somebody that was -- who was in the
18 column, a Muslim who was in the column.
19 Q. All right. Well, we may get a little bit more into that or we
20 will when we get to that segment of the video.
21 Anything else in the -- that they pointed us to in their index of
22 where they got material?
23 A. They did also receive material from the Dutch authorities, from
24 DutchBat individuals who were in Srebrenica in 1995.
25 Q. Aside from reviewing their index, have you been able to reach
1 anyone or get any further information on, you know, more detail about
2 where these journalists, movie-makers got their sources?
3 A. No, not yet.
4 Q. Okay. Aside from Antelope Productions, where else did we get
6 A. We received a large portion of material as well from the BBC in
7 the year 2000. And if I can add that the footage that we got from the
9 from WTN, World Television Network, and from Reuters.
10 Q. And tell us what WTN is?
11 A. World Television Network, it's a -- my understanding basically
12 like a clearing house like Reuters. They sell raw footage to network
13 stations around the world, and such as the BBC.
14 Q. All right. Any other -- what are the other sources, anything
15 else? We may as -- how about did the --
16 MR. McCLOSKEY: And could we go into private session briefly.
17 JUDGE FLUEGGE: Yes, we turn into private session.
18 [Private session]
17 [Open session]
18 THE REGISTRAR: We are in open session, Your Honours.
19 JUDGE FLUEGGE: Mr. McCloskey.
20 MR. McCLOSKEY:
21 Q. Now, the Trial Chamber has heard about some new sources of video
22 from Dusan Janc, but not counting those that Mr. Janc has mentioned, are
23 there any other sources that you can recall right now that you may have?
24 A. There's another large portion of the trial video that you'll see
25 that is made up of video footage from Zoran Petrovic. We often refer to
1 it as the Petrovic video. And that will cover from July -- mainly the
2 day of July 13th.
3 Q. All right. We'll talk a little bit more about that when we get
4 there. I notice that you've got some materials in front of you. Can you
5 just tell us what they are so we know what you might be using?
6 A. Well, I have the stills book that you have in front of you as
7 well, and then at the same time there is an index that is -- basically
8 it's a list of all the sources that were used in the making of the trial
10 Q. And I see a little blue book underneath that?
11 A. And this is a -- it is the MIFs, the MIF forms of the sources, of
12 the videos.
13 Q. All right. And if you need to review any of that material to
14 answer, that's fine, just let us know you are doing it so that is clear.
15 And in the book itself, the trial -- the stills book, have you made any
16 of your own little notes in there that won't be on the version that was
17 provided to the Defence?
18 A. I have. In the places where it says that somebody has testified
19 in trial, I've just noted in pencil for myself the dates that they
20 testified just to give a more exact day of when they identified the
22 Q. And when did you make those notations?
23 A. In the course of the last couple of days.
24 Q. All right.
25 MR. McCLOSKEY: Mr. President, Your Honours, the index that she's
1 referred to is 65 ter 1451.
2 Q. Okay. I think we'll get started pretty quickly, but can you tell
3 us before we do just a little bit more about how the layout of the stills
4 book worked for any given still. What information aside from the still
5 is on there and why?
6 A. You'll see that the stills book follows chronologically the
7 video. It's not a hundred per cent accurate. There may be a scene or
8 two that's out of order, and within each still, there will be the person
9 or sometimes the vehicle that's identified from the video, as well as who
10 identifies them or how they are identified. And in addition to that,
11 there will be the site of the video source, the original video source,
12 and our evidence number of that video.
13 Q. Okay. And in the making of the editing of the trial video, was
14 there an attempt to make this in some kind of chronology?
15 A. Correct. It was done as best as possible to keep it
16 chronologically accurate, both the video and the stills book.
17 Q. Having seen it and studied it, in your view was it always
18 possible to get the chronology just right?
19 A. In the stills book, as I mentioned, there's a couple of pages
20 that will be a little bit out of order perhaps from the video. In terms
21 of the video, with the knowledge that everyone had, they did try to make
22 it chronological. There are some of the days you'll notice in the video
23 and in the stills book where, you know, we don't know if it's for sure
24 July 10th or July 11th and that's noted. So it's possible that there
25 could be, you know, a mistake made on one of those two days, but the best
1 of our knowledge, the best of the knowledge of the team at that time and
2 based off of testimony reports, et cetera, they've tried to make it
4 Q. Okay.
5 MR. McCLOSKEY: Well, if I can ask Ms. Stewart, we will get ready
6 to start the video, but before we do -- of course, she's ready to go.
7 Q. Can you just give us a little preview of what we are going to see
8 in the opening shots of the video?
9 A. As the video starts, you'll see some motorised artillery moving
10 down the road. That's mainly it, you'll see Pragas, tanks, et cetera,
11 moving on the road.
12 MR. McCLOSKEY: And for the Registry, we'll be starting with the
13 stills book which was P624 and the first still will be -- should be
14 number 5. E-court number -- page 5 in that, but we'll first --
15 JUDGE FLUEGGE: Before we deal with the documents, the stills and
16 the video, there are some questions I would like to ask you,
17 Mr. McCloskey. Sometimes when we have seen videos, we saw subtitles in
18 English, the original text we could hear was in B/C/S, and we had
19 problems with translation into French and so on. Could you explain if
20 there are transcripts of the videos, of the text, in B/C/S, in English,
21 in French, so that we can follow better and we have understanding about
22 the documents.
23 MR. McCLOSKEY: Yes. The transcript is P1008. That should be in
24 B/C/S and English. I don't know if we've done it in French so I don't
25 think there is a French transcript, but of course, we can send that to
1 CLSS and have that in French.
2 JUDGE FLUEGGE: In that case we will not have a translation,
3 actual translation today into French. Just you should bear that in mind.
4 MR. McCLOSKEY: All right.
5 JUDGE FLUEGGE: Because there's no interpretation directly from
6 the video, as we have learned recently.
7 MR. McCLOSKEY: Yes, we normally prefer that you hear the
8 language and the tone, though this does create a problem because not only
9 do we, of course, want French for you to hear, there needs to be a French
10 archives for this Tribunal and so that's -- normally the interpreters
11 will speak over the -- basically reading out the subtitles and then that
12 gets translated into French and that can be done if you prefer. And it's
13 just -- the interpreters have been very flexible on this point, but like
14 you've said, if there's not a French transcript, it may be difficult.
15 But sometimes they've been able to manage with -- but I guess we'll just
16 have to see how it goes. But we, of course, can have them read the
17 subtitles and then that gets translated, if you would like.
18 JUDGE FLUEGGE: But we are in the hands of the interpreters. We
19 all are.
20 MR. McCLOSKEY: Okay.
21 JUDGE FLUEGGE: And there's something else Judge Nyambe wants to
23 JUDGE NYAMBE: I have a clarification I would like from the
24 witness for my better understanding of the proceedings. You, in line --
25 page 38, line 10 to 13, you referred to reviewing of videos and still
1 book and also somewhere else you referred to editing of video footages.
2 Have I understood you correctly?
3 THE WITNESS: No. I must have misspoken. I certainly didn't
4 edit any of the video footage myself. That would have been the
5 film-maker. I reviewed the footage.
6 JUDGE NYAMBE: Then I'll try to rephrase my question again. Do
7 you have an understanding of what editing of a video entails exactly?
8 What do you achieve at the end of the process?
9 THE WITNESS: I do, having done a little bit of video editing
10 work myself prior to becoming -- prior going to graduate school. It is
11 looking at a lot of different footage, raw footage, choosing which
12 sections you would like to make -- to become a part of the, let's say,
13 the trial video, and cutting out those sections, whether it's actually
14 splicing in film with actual film or the old video machines or computers
15 these days, but selecting those sections, putting them into the new
16 video. And you can intersperse those sections, those edits, all
17 throughout the course of the video.
18 JUDGE NYAMBE: So it is my understanding then that in the process
19 of editing of video, you can leave some materials or you can add some
21 THE WITNESS: Correct.
22 JUDGE NYAMBE: Thank you. Then I have another question for you.
23 At page 38, lines 10 to 13, and please correct me if I don't quote you
24 correctly, I've got you saying:
25 "When I have been reviewing the book and reviewing the video, I'm
1 not seeing some things that I think should be changed, we think should be
2 changed and some corrections. There are some small mistakes in it as
4 Can you just explain to me exactly what that means, what you mean
5 to say there?
6 THE WITNESS: Sure. And I am pretty much exclusively just
7 talking about the stills book. As I've been reviewing it, I've noticed a
8 couple of small mistakes or some changes to make it more complete. For
9 example, even on this first page here where it says "Reuters footage," I
10 know that some of this footage is also from WTN as well as Reuters. It's
11 a bit detailed but I would put WTN and Reuters. There'll be a page that
12 comes up later where it is the wrong video that was cited and I would
13 choose to put in the correct video since I've been able to find which one
14 that is.
15 In the book, I would also add in where there's been more
16 testimony that has identified where people have identified individuals in
17 the book. This book, as I said, was made in 2003 for an older trial,
18 Blagojevic and Jokic. It has remained pretty much the same and though
19 there have been additions added to it, but it hasn't been completed since
20 partway through the last trial, so there's more testimony that can be
21 added to it.
22 JUDGE NYAMBE: Thank you.
23 JUDGE FLUEGGE: Mr. McCloskey.
24 MR. McCLOSKEY: Thank you.
25 Q. And let me add a bit to that. When you say that it was material
1 that was actually edited out, sort of left on the cutting-room floor, do
2 you know, from speaking to Ms. Fracassetti and your knowledge of an
3 investigation, why something would have been edited out generally?
4 A. Yeah, both in speaking with Marta Fracassetti as well as viewing
5 the original raw footage myself, the times that anything has been edited
6 out either it's -- it's, let's say, duplicative, it exists in other
7 versions so no need to put in several versions of SRT's footage.
8 Sometimes it's just it might not be very good quality and there may be a
9 choice of something that's better quality. And sometimes it's just too
10 much footage, we don't need to see, you know 20 minutes of something when
11 a couple of minutes shows the exact same story, the same point. So those
12 are the main reasons why anything was left out.
13 Q. Do you recall were there any specific areas of the film where
14 Ms. Fracassetti received instructions not to leave anything out but just
15 to put in the whole collection of what the Prosecutor had?
16 A. Yes. She told me that she had kept everything related to the VRS
17 in Srebrenica, so to have everything from that that exists to be put into
18 the video, as well as all existing footage from the Hotel Fontana
19 meetings, those three meetings.
20 Q. Okay. And can you recall -- can you give us an example of the
21 kind of thing where she would have done significant editing and leaving,
22 you know, material out that may have just been too long, as you've said?
23 A. I know one example is the individual who gave us the footage on
24 the -- about the column. And it's not long footage but it's too long to
25 put into the trial video, and it's -- what you see is what exists there,
1 it's just more of the same thing for another, you know, 10 minutes or so.
2 So she's just taken you know, a couple of minutes of that and put that
3 into the trial video.
4 MR. McCLOSKEY: And, Your Honours, for your knowledge, we have
5 not offered all the raw footage for you, but we have provided all the raw
6 footage to the Defence, so they have all of that material. And of
7 course, we can provide any raw footage that you would like.
8 Q. Another question, you mentioned the old-fashioned splicing of
9 tape or film. Do you know what -- the basic technology that
10 Ms. Fracassetti used?
11 A. I don't know exactly what machines she used. I know she referred
12 to doing the rough edit on the videotape machines and doing the final
13 edit using -- now using the computer systems, so you can download the
14 video, let's say, the rough edit of the video on to the computer and then
15 make more exact -- exact edits on the computer.
16 Q. And have you, to help explain this process, set out or retrieved
17 some two video segments to try to illustrate how this was done?
18 A. Correct. You'll see later there's some raw footage of an
19 interview with General Mladic and you'll see the complete footage from
20 the two different original sources. And then you'll see what is in the
21 trial video, which is the edited version of that video.
22 Q. So we'll get into a little more detail about how -- when we get
23 to that section. All right. Well --
24 JUDGE FLUEGGE: Judge Nyambe would like to put a question.
25 JUDGE NYAMBE: I just want a clarification. Just now you've said
1 "raw footage," does that imply there is another kind of footage?
2 THE WITNESS: I'll use the term "original footage," so the
3 footage that Marta Fracassetti used to make the trial video.
4 JUDGE NYAMBE: Thank you.
5 MR. McCLOSKEY: Okay.
6 Q. Well, since we have e-court page 5 of P624 up on the screen, we
7 might as well have you discuss that.
8 MR. McCLOSKEY: Could we blow it up one more time, just for my
9 eyes. If we could go down a little bit so we can see the text.
10 Q. All right. Can you -- we see it says "Zvornik Brigade Praga
11 self-propelled anti-aircraft gun." How do you know that?
12 A. If you -- well, if you read further you'll see that there is a
13 registration number associated with the Praga. If you look at the Praga
14 and you see the bicycle ...
15 [Trial Chamber and Registrar confer]
16 THE WITNESS: If you look at the Praga, you see the bicycle and
17 go to the left over the tire, you'll see a number, licence plate number.
18 And if it were a little brighter, yeah, you can see that it's 11067.
19 MR. McCLOSKEY:
20 Q. I can't make that out on this still myself. Is there any other
21 way to do it?
22 A. Yes, actually in the -- we have the luxury of seeing the video
23 where we can get -- we are able to view it moving a little bit closer and
24 can freeze it a little bit better so the numbers are a little more
25 clearer than this particular photograph.
1 Q. So were you able to do that or the team able to do that to
2 determine these numbers?
3 A. Right. So the team did that and was able to get the registration
4 number of the 11067. And we have a vehicle log from the Zvornik Brigade
5 that was seized from the Zvornik Brigade in 1998, and in the original
6 vehicle log it shows that there is a Praga with that registration number
7 that is part of the Zvornik Brigade.
8 Q. All right. I apologise if we've gone over this, but can you tell
9 the Court a little bit about the seizure from the Zvornik Brigade. When
10 that occurred, what that was about, just briefly? If you know.
11 A. It was in March of 1998. There was a team actually split up into
12 two teams of investigators and analysts that went to both the Zvornik
13 Brigade and the Bratunac Brigade and seized numerous documents from both
14 brigades, and as part of the collection of those documents were quite a
15 few vehicle logs which this vehicle log was found.
16 Q. And how did you use the vehicle log to identify this machine?
17 A. On the vehicle log itself it shows the registration number, it
18 shows the Praga, it shows that it's a Praga, it shows it's from the
19 Zvornik Brigade and there's more information as well.
20 Q. Okay.
21 MR. McCLOSKEY: Let's go to that, 06595 is the number I have.
22 Q. And did you --
23 MR. McCLOSKEY: Do we have the originals? If anyone would like
24 to see the originals, we have them. We won't be doing this for every
25 exhibit but we thought we would start off to give you a feel for this.
1 And if we could get that up on the screen, that's 65 ter, we can get an
2 idea. All right. If we could -- I think we need to blow up the left
3 side. I'm not sure initially -- sorry, not that side but the other side
4 of the B/C/S document. I'm not sure we absolutely have to have the
5 English but, yes, that's very helpful.
6 Q. So is this the information you are talking about?
7 A. That's right.
8 Q. And so we see that in the second line it -- well, we have a date,
9 1 July through 31 July 1995
11 Now, aside from this identification from the Zvornik Brigade,
12 does this document give us any idea where this machine was in July 1995?
13 A. Yes. If you go to the next page, you'll see the routes
14 designated on certain days.
15 MR. McCLOSKEY: And I think we are really going to need to blow
16 up the -- well, the English at first, if we could, so we can look in the
17 period of July.
18 Q. Now, I note that your still book at the bottom says under
20 "On the road just south of Srebrenica, 10th or 11 July 1995."
21 So what do you gain from this document in putting together this
22 information in the stills book?
23 A. It also helps to confirm or corroborate that this Praga was in
24 this area at that time. If you look at the July 9th route, it shows
25 Pribicevac, Zeleni Jadar and Zivkovo Brdo. And then on the 10th and
1 11th, worked in those positions and then the same the day after.
2 Q. Okay. I see it says "Z. Brdo." Why did you say Zivko -- I am
3 sorry, I can't pronounce that, Zivkovo Brdo?
4 A. Zivkovo Brdo. Well, you'll actually see another vehicle log
5 where it is, there's tank that actually spells it out, that it's in that
6 pro location. We also know from actually testimony from witnesses prior
7 that placed their units themselves in that location prior to the entry
8 into Srebrenica on the 11th.
9 Q. And can you just remind us very generally, where Pribicevac,
10 Zeleni Jadar, and this Zivkovo Brdo are?
11 A. They are south of Srebrenica. Zeleni Jadar is -- all the
12 locations are south of Srebrenica. Zivkovo Brdo is maybe halfway between
13 Zeleni Jadar and Srebrenica. It's north of it, north-west of it. It's
14 an elevated area, it's a hill area. And Pribicevac is north and east of
15 that, and that's where the forward command post was.
16 Q. Okay. And I won't put that up, but are all these three listed on
17 the map in the map book?
18 A. Yes, they are.
19 MR. McCLOSKEY: All right. Let's go back to the still
20 photograph, if we could, number 5 of 624. Actually, let's just leave it
21 there --
22 JUDGE FLUEGGE: Mr. McCloskey, are you tendering this log-book?
23 Or at a later stage?
24 MR. McCLOSKEY: It's one of those ones that we picked up in
25 preparation for this to help you provide detail that did not believe have
1 a 65 ter number, so --
2 JUDGE FLUEGGE: It has --
3 MR. McCLOSKEY: -- I can't offer it. I mean, it's got a -- one
4 that we gave it so it could be used in court and we provided it to the
5 Defence and they didn't have any problem. I can offer that into evidence
6 as a helpful guide to this material. The Defence has had it for a while,
7 they understood that we were going to do this and I heard no objection
8 from them.
9 JUDGE FLUEGGE: But in the lists of documents you intend to use
10 with the witness, there are many which are not yet on the 65 ter exhibit
11 list. All those with a star, you had a 65 ter number. This is one of
12 them, and therefore I don't know how to -- you want to proceed to give
13 the accused a chance to give his comment on that.
14 MR. McCLOSKEY: Mr. President, those video stills are taken right
15 off the video, so I don't know how technical we want to get with 65 ter
16 numbers, but they are -- the 65 ter number is the video itself, that
17 frame is on the video. So it does in that sense have a 65 ter number,
18 but for the simple sense that we'd freeze it and that would be something
19 that we could relate to, we've given it a new number.
20 This is different, this particular one we just -- it's mentioned
21 in the stills book. It's cited in the stills book. So in some sense,
22 its 65 ter number would be the stills book number where it's cited. As
23 you know, 65 ter is made -- put the Defence and everyone on notice, so
24 notice really isn't an issue because this log is cited as historically
25 part of the record forever. They haven't objected reasonably and so I
1 could argue that this is a 65 ter number, but fundamentally, it's better
2 to give it a new one for the record. And I think that's probably the
3 story with all of these. They are just a different format of something
4 that already has a 65 ter number.
5 JUDGE FLUEGGE: At a later stage we have to identify the
6 documents. And you have in the list of documents to be used with this
7 witness two documents, Zvornik Brigade vehicle log number 22, and then
8 the same number but related to different vehicles. This is 65 ter 06594
9 and 5. And now we have on the screen the number with 5 at the end. But,
10 I think I would like to know Mr. Gajic's or, respectively, the Defence
11 position on that.
12 MR. GAJIC: [Interpretation] Your Honours, just a remark. I will,
13 of course, give my response once I've consulted Mr. Tolimir. Firstly,
14 Mr. McCloskey said twice that the Defence did not oppose it or make an
15 objection. Well, just to make the record clear, the Defence has not had
16 an opportunity to speak their mind on this yet, so I want to make that
17 clear. This is a different matter altogether.
18 JUDGE FLUEGGE: Mr. McCloskey. Oh, you want to add something,
19 Mr. Gajic.
20 MR. GAJIC: [Interpretation] As far as this specific document is
21 concerned, the Defence do not oppose its admission into evidence.
22 JUDGE FLUEGGE: First, it will be added to the 65 ter exhibit
23 list with the leave of the Chamber and admitted into evidence. This
24 specific document on the screen.
25 THE REGISTRAR: Your Honours, the two-page document under
1 65 ter 06595 will be assigned Exhibit P01128.
2 JUDGE FLUEGGE: Mr. McCloskey.
3 MR. McCLOSKEY: Your Honour, this brings up a -- just another
4 issue. If I -- it would be very helpful, as it would be in any trial in
5 any country, for the parties to know when there are objections to
6 materials as soon in advance as possible because it's impossible to
7 predict. If we went through every iota of detail on every document we
8 had, we would be here for ten years, and they have been very reasonable
9 in not objecting to material that is very clear and has been open to them
10 for a long time, but I'm a little concerned about not hearing about
11 objections until we are halfway there. In many jurisdictions, if a party
12 is going to move that evidence be withdrawn or not be used, suppressed,
13 it's incumbent to do that before the trial. We don't have that rule
14 here, but if we could just -- if the Defence could work on providing us
15 with notice on that as soon as possible, that would just help everyone
16 quite a bit.
17 They can absolutely -- don't have to take a position ever. It's
18 our burden, of course. But in this adversarial hybrid system, that would
19 be very helpful, and I would appreciate that, thank you. I think I've
20 probably talked our way into the break.
21 JUDGE FLUEGGE: Mr. Gajic.
22 MR. GAJIC: [Interpretation] Your Honours, of course the
23 Prosecution have always put us on notice of matters, sometimes earlier,
24 sometimes later. But let's make one thing clear, the material that is
25 not officially listed on the 65 ter list evidently is a sort of material
1 the Prosecution did not intend use, at least not within the foreseeable
2 future. And I believe that the Chamber has given clear guidance, both to
3 the Prosecution and the Defence, on the use of material and the handling
4 of material. I think the Prosecution was specifically told what the
5 guidance was with regard to the material that can be put on the 65 ter
6 list. Of course, where the material is not that relevant or important,
7 the Defence will not object. In other cases, however, there are matters
8 that pose great difficulties for us because there is a great amount of
9 non-disclosed [as interpreted] material, and it is physically impossible
10 ever since the pre-trial stage to date to even go through all the
12 So we request that if the Prosecution intend to use certain
13 documents, to notify us reasonably in advance.
14 JUDGE FLUEGGE: I'm a little bit concerned that we have this
15 discussion now because I thought that we have resolved this problem
16 already at an earlier stage in this trial, and I, in fact, don't see any
17 conflict or any problem up to now. I think the way the parties gave
18 notice to each other was very well maintained, and therefore, I think we
19 should leave it like it is and look that we have a fair trial.
20 And of course, sometimes it's last-minute notice. We received
21 three different versions of the documents the Prosecution intends to use
22 since yesterday, so that happens and will happen by the other party as
23 well. We are not concerned about that. We are sure that everybody is
24 aware of the procedure and we will avoid any problems in this respect.
25 We have now the time for the second break, indeed, and we will
1 resume 10 minutes before 1.00.
2 --- Recess taken at 12.24 p.m.
3 --- On resuming at 12.55 p.m.
4 JUDGE FLUEGGE: Mr. Gajic.
5 MR. GAJIC: [Interpretation] Your Honours, just one correction on
6 page 59, line 20. It seems to be a case of misinterpretation because I
7 didn't say non-disclosed material, I said there is a great amount of
8 disclosed material.
9 JUDGE FLUEGGE: Thank you very much. Indeed this is a big
11 MR. GAJIC: [Interpretation] And second, I would like to clarify,
12 the Defence has always been very flexible as far as adding to the 65 ter
13 list is concerned and this is clear from our practice until now, and we
14 always state our position as to whether we accept something or not. I
15 would just appreciate it if the Prosecutor would refrain from stating our
17 JUDGE FLUEGGE: Yes. I think everybody can -- you are in the
18 position to make your position very clear by your -- that's acceptable.
19 And I think there is no concern about the disclosure procedure any longer
20 because there is no concern by the Defence.
21 Mr. McCloskey, go ahead, please.
22 MR. McCLOSKEY: Yes, could we blow this up a little -- I mean,
23 make it so it's smaller so we can see the dates on this -- the document
24 that's on the screen now. It's the vehicle log 1128. So we can just see
25 the dates there.
1 Q. And I notice in your still book of this Praga, at the bottom it
3 "South of Srebrenica -- on the road just south of Srebrenica,
4 10 or 11 July."
5 How is it that it's only 10 or 11 July?
6 A. Well, it's a combination of different things. Partly from the
7 vehicle log you see that there in that area of certainly July 9th, 10th,
8 11th. You'll see another vehicle log that will pin-point it a little bit
9 more. It's consistent of where we know units were at, where people have
10 testified where the Zvornik Brigade is located on the 10th or 11th,
11 before entering Srebrenica on July 11th.
12 Also from testimony and documents, there was fighting in this
13 area on July 9th and also again on the morning of July 10th before the
14 Zvornik Brigade and VRS take this area, and the road is clear to proceed
15 into Srebrenica. So it's a combination of logs, of testimony, knowledge
16 of events that pin-points it during those several days but we are not
17 able to say exactly whether it's the afternoon of the 10th or the morning
18 of the 11th.
19 MR. McCLOSKEY: Okay. Thank you. Let's actually continue
20 playing the video.
21 JUDGE FLUEGGE: Would you please state for the record the number.
22 MR. McCLOSKEY: Yes, this will be P991, and when I say "the
23 video," it will be the same video each time. And the still book will be
24 P624 each time.
25 Yeah, if we could just play it and try to stop it at the Praga,
1 similar to where the stills book is. It doesn't need to be exact.
2 [Video-clip played]
3 MR. McCLOSKEY:
4 Q. Okay. Is this roughly the footage that the still was taken from?
5 A. That's correct.
6 MR. McCLOSKEY: All right. And for the record it's 00.23.8. All
7 right, let's continue to play the trial video.
8 [Video-clip played]
9 MR. McCLOSKEY: Okay. Now, let's go to the stills book, P624.
10 We note for the record we are now stopped at 32.4 on the counter. The
11 stills book, 624, e-court page 6.
12 Q. Now, can you just briefly explain this?
13 A. As you just saw in the video where it stopped, this is a tank and
14 you can see once again there's registration number similar to what you
15 saw on the Praga. Now this time it is above, if you see where the driver
16 is, his head, there's a four-digit number right above his head on the
17 right side. It says "6717." And similar to the Praga, it is also a
18 Zvornik Brigade tank.
19 MR. McCLOSKEY: And, all right, if we could go to 65 ter 6594.
20 Q. And just again, how does this exhibit, as it's coming up, relate
21 to the tank on the screen?
22 A. Similar to what you saw with the Praga, you have the date, you
23 have that it's a tank, T-55, with the registration number of 6717, as
24 being a vehicle, part of the Zvornik Brigade.
25 MR. McCLOSKEY: Sorry, we want the other -- the right side of
1 both documents. Thank you. All right. If we could go to the next page
2 in both documents. And if we could below it up a little bit so we can
3 see 9, 10, 11.
4 Q. And we had talked briefly about -- I'd ask you how you knew it
5 was Zivkovo Brdo. Does this document help you sort that out, because in
6 the last document I think it just said "Z. Brdo"?
7 A. Yes, it is one of the means that helped sort that out.
8 Q. Where do you see that?
9 A. You'll see it on the July 8th row of where the -- the route of
10 where the tank was.
11 Q. All right. And this area, Bojna, that we see on the 11th, do you
12 know where that is?
13 A. That's south of Srebrenica, on the road to Srebrenica. A little
14 bit, it would be east and north of Zivkovo Brdo.
15 Q. All right. And is your explanation on why we say 10 or 11 the
16 same as the last exhibit?
17 A. Correct.
18 MR. McCLOSKEY: All right. We'd offer this document into
20 JUDGE FLUEGGE: It will be received.
21 THE REGISTRAR: Your Honours, the two-page document under
22 65 ter number 06594 will be assigned Exhibit P01129.
23 JUDGE FLUEGGE: Mr. Tolimir.
24 THE ACCUSED: [Interpretation] Thank you, Mr. President. I would
25 kindly ask, when a question is being put, not to ask, Is your answer
1 going to be identical to your previous answers, because that is
2 suggesting what the witness should say.
3 JUDGE FLUEGGE: Mr. Tolimir, that was my impression as well.
4 Mr. McCloskey.
5 MR. McCLOSKEY: I don't think it suggests the answer, it could be
6 either way. It could be yes or no. And I'm obviously just trying to
7 save some time, but I don't believe it's a leading question. But if the
8 Court rules it is, I won't do that again.
9 JUDGE FLUEGGE: I didn't rule on that, I told you my observation.
10 Perhaps you just be careful. Sometimes Mr. Tolimir is objecting to some
11 questions which could appear to be a leading question but it depends, of
12 course, on the capability of the witness.
13 MR. McCLOSKEY: And, Mr. President, some questions can be leading
14 and be appropriate for the Court for the very reason, to save some time,
15 that it's nothing that is going to cause any problem or any issues for
16 anyone. I'd like to know what the particular problem is in such a
17 question, because if it's a problem I won't do it, but it seems to me
18 it's an objection for the sake of objecting and it's absurd in the
19 context of this case to be objecting like that.
20 JUDGE FLUEGGE: Except the word "absurd," I would agree with you.
21 Please carry on.
22 MR. McCLOSKEY: All right. I think we can just continue to play
23 the video. Of course, if anyone has any questions, otherwise, I think
24 I'll just let it play. We don't, as she said, don't have stills for
25 every part of the video.
1 [Video-clip played]
2 MR. McCLOSKEY: If we could go to stills book 624. And we are
3 now at 55.2. And it's e-court page 7. If we could put that up on the
5 Q. We can see that this says "Colonel Vinko Pandurevic, commander of
6 the Zvornik Brigade." And how can you come to that conclusion?
7 A. A couple of ways. One of them is that Lieutenant-Colonel
8 Pandurevic identified himself when he testified, January 29th, 2009
9 was not this exact still but it was shortly thereafter in a nearby
10 location on the approach to Srebrenica. As well as I'm familiar with him
11 just over the years of the course of our investigation and having been a
12 part of the trial, where I saw him in trial for the last three years.
13 Q. You might want to try a talk a little slower just -- I know it's
14 difficult to get the rhythm, but -- all right. And it says, "Location:
15 South of Srebrenica, 10 or 11 July." Do you know any more than south of
16 Srebrenica? Have you figured out exactly where this is?
17 A. I don't know exactly where it is. No, I can't tell you exactly
18 where it is other than south of Srebrenica.
19 Q. And how do you conclude that it's south of Srebrenica?
20 A. It's going to be from certainly prior testimony of people that
21 were in the area such as Lieutenant-Colonel Pandurevic, once again from
22 combat reports, situation reports, where we know roughly where units are,
23 and we know in particular that his unit was fighting for that elevation I
24 mentioned of Zivkovo Brdo, on the 9th and again on the 10th. So we
25 believe that he is near this location, but don't know exactly on those
1 dates before entering Srebrenica on July 11th.
2 Q. All right.
3 MR. McCLOSKEY: Let's just continue to play the video.
4 [Video-clip played]
5 MR. McCLOSKEY: Okay. We are at 1.13.4.
6 Q. Do you have any idea who is taking this video?
7 A. No, I don't.
8 MR. McCLOSKEY: Okay. Let's just continue.
9 [Video-clip played]
10 MR. McCLOSKEY:
11 Q. Okay. Now at the trial video we are at 1.38.4. We've changed
12 scenes and we have an image in front of us. Can you tell us what this
14 A. This is -- this is Major Milan Jolovic, he has the nickname of
15 Legenda, speaking into the radio, obviously.
16 MR. McCLOSKEY: All right. And let's go to the stills book, P24,
17 e-court page 8.
18 Q. Is this roughly the same image as we've had on the screen,
19 unfortunately not as good quality?
20 A. That's correct.
21 Q. All right. And how were you able to make this conclusion that
22 this is Legenda or Milan Jolovic?
23 A. Well, as you see, as noted on the still there, that he was
24 identified by Colonel Mirko Trivic in the Popovic trial, and I can give
25 you the date on that, that's May 21st, 2007. In addition, he was also
1 identified by Lieutenant-Colonel Vinko Pandurevic in the Popovic trial
2 when he testified himself on January 29th, 2009.
3 Q. And can you just tell us the unit Colonel Trivic belonged to?
4 A. He was commander of the 2nd Romanija Brigade.
5 Q. Can he be seen on any of the Srebrenica videos?
6 A. You will see him coming up shortly in the town of Srebrenica
7 Q. All right. We see down at: "On the road south of Srebrenica,
8 10 or 11 July." Do you have anything to add to your explanation about
9 how those conclusions were made?
10 A. Right. In the testimony of Lieutenant-Colonel Vinko Pandurevic,
11 he testified that Major Jolovic was in this area, he believed to be in
12 the, once again, Zivkovo Brdo area overlooking Pusmulici village, trying
13 to -- egging his troops on and that he believed that to be on July 10th
14 during the counter-attack.
15 Q. And can you tell us what you think this lettering up in the
16 right-hand corner, I think we all know at this point that eight-digit
17 number is an ERN; is that correct?
18 A. That's correct.
19 Q. I'm talking about right underneath that, what is that that we can
20 see? It's sort of a pinkish-brown, blackish colour?
21 A. In Cyrillic that's "SRT
22 as I mentioned, that they had broadcast some of this footage on this
23 station. And so you will see the "SRT" in some of this footage in the
24 trial video.
25 MR. McCLOSKEY: Okay. If we can continue playing P991, the trial
2 JUDGE FLUEGGE: Mr. Tolimir.
3 THE ACCUSED: [Interpretation] Sorry, I didn't turn on my
4 microphone. Since this goes to identification on a photograph, sometimes
5 it is claimed that somebody was in a certain place on the 10th or on the
6 11th, and we have evidence that Vinko Pandurevic was somewhere on the
7 10th or 11th, can we see from this footage whether this still was made in
8 a certain place at a certain time? If an assertion is just made that
9 Legenda was in such and such a place on the 10th or the 11th, I don't
10 think that's acceptable.
11 JUDGE FLUEGGE: Mr. McCloskey.
12 MR. McCLOSKEY: I think the sources cited by Ms. Gallagher are
13 fine. Vinko Pandurevic testified, as she said, in his own case and can
14 confirm this. You will be able to see the video and at this point with
15 the purpose of this witness, this is perfectly appropriate and fine. I
16 don't know what else the General is suggesting we do at this point, but
17 through this witness she has provided the basics that the investigation
18 has and I think it's perfectly appropriate.
19 JUDGE FLUEGGE: The Chamber doesn't give any weight to these
20 documents at this stage of our proceedings. We will come to that later
21 when we are in the position to give weight to all evidence before the
22 Chamber. It's not a -- if we can believe it or not, we don't know yet.
23 Please carry on.
24 MR. McCLOSKEY: And, Mr. President, just logistically, I think I
25 will be offering all of these images into evidence. I could do it as we
1 go, but it's part of one exhibit, so I think it would be better if I just
2 waited at this point.
3 If we could just continue to play the video.
4 [Video-clip played]
5 MR. McCLOSKEY:
6 Q. Did you hear any location in that audio?
7 A. Other than the reference to a bridge, no.
8 Q. Okay.
9 A. And also "down there," hinting at their -- at an elevation.
10 Q. All right.
11 MR. McCLOSKEY: We can continue.
12 [Video-clip played]
13 MR. McCLOSKEY: I apologise, let's just keep running it.
14 [Video-clip played]
15 MR. McCLOSKEY:
16 Q. Okay. We are now at 2.33.1 and we have this SRT logo and there's
17 some Serbian overlay to this. What can you tell us about this? It's
18 clearly different. We now have this overlay of somebody speaking. Do
19 you know what that is?
20 A. It appears to be a newscast from SRT.
21 Q. And these shots from this newscast, where do you think they are
22 from, and what locations do you think they are filming?
23 A. Once again, I think it's going to be roughly the same location
24 south of Srebrenica.
25 Q. Is it possible they have pulled this from some archival footage
1 and it's not Srebrenica?
2 A. Well, it's consistent with testimony that we've heard who -- from
3 people that have been in the area that it is still south of Srebrenica
4 during the operation.
5 Q. Have you or the investigators been able to make any
6 identifications from this film that we are seeing to actual areas?
7 A. In terms of this part of the film, no, I couldn't say exactly
8 where it is along the road, no.
9 MR. McCLOSKEY: Okay. Let's just continue to play, then.
10 [Video-clip played]
11 MR. McCLOSKEY:
12 Q. Do you know when and where this footage at 3.10.7 that -- of men
13 in uniform with blue helmets is?
14 A. No.
15 Q. Okay.
16 MR. McCLOSKEY: Let's keep going.
17 [Video-clip played]
18 MR. McCLOSKEY:
19 Q. Okay. We've come to about 4.50.1, was entitled "Muslim footage
20 Srebrenica." I believe it said 10 July. What can you tell us about the
21 source of this footage that we are about to see?
22 A. This is -- the source is from --
23 MR. McCLOSKEY: And could we go, I am sorry, could we go into
24 private session.
25 JUDGE FLUEGGE: Private.
1 [Private session]
11 Page 6025 redacted. Private session.
8 [Open session]
9 THE REGISTRAR: We are in public session, Your Honours.
10 MR. McCLOSKEY: Okay. And if we could just --
11 Q. One other question, is there some shots in an apartment?
12 A. That's correct. You will see a little bit shot of inside his
13 apartment and his family.
14 Q. Has there been any editing at that point for any reason regarding
15 people's faces?
16 A. Yes. They are blocked out by -- not by him, it's not in the
17 original footage, so it's by our team.
18 Q. And why was that done?
19 A. To protect their confidentiality, their identity.
20 Q. All right.
21 MR. McCLOSKEY: And I think we can play it.
22 [Video-clip played]
23 MR. McCLOSKEY:
24 Q. We are at 06.12.1 and we see some men in uniform. And do you
25 know, has the investigation determined what unit this is, or what army?
1 A. Well, I assume it's the BiH Muslim Army.
2 MR. McCLOSKEY: All right. Let's continue.
3 [Video-clip played]
4 MR. McCLOSKEY:
5 Q. Just briefly, what is this?
6 A. That's the UN base in Srebrenica, Bravo Company.
7 MR. McCLOSKEY: At 6.43.3. Okay. We can continue.
8 [Video-clip played]
9 MR. McCLOSKEY:
10 Q. Just for the record, we now for the first time at approximately
11 7.29.8, perhaps a second or two before that, we now see some numbers on
12 the left. What are those numbers?
13 A. It's the date, July 10th, 1995
14 11 minutes.
15 MR. McCLOSKEY: All right. Let's continue.
16 [Video-clip played]
17 MR. McCLOSKEY:
18 Q. Does the person who provided this video identify anyone in this
19 frame at 8.42.9?
20 A. He states in his statement that Ramiz Becirovic spoke to the
21 people in Srebrenica. I don't know if this -- my assumption is that this
22 is who he is. I can't identify him myself.
23 MR. McCLOSKEY: Okay. Let's just continue, then.
24 [Video-clip played]
25 MR. McCLOSKEY: And just for the record, we've now gone to what
1 is marked as 11 July in the time stamp and we are at 10.19.9. If we
2 could continue to play it.
3 [Video-clip played]
4 MR. McCLOSKEY:
5 Q. Okay. Now at 13.57.9 we've clearly changed from the crowded
6 down-town area to somewhere else. Does the provider of this provide any
7 information on where this is or what it is that we are seeing now?
8 A. Yeah, he noted in his statement that at 14.37 he took footage of
9 the men leaving the enclave and walking towards Susnjari.
10 MR. McCLOSKEY: Let's continue to play. We'll stop pretty soon.
11 [Video-clip played]
12 MR. McCLOSKEY: Okay. We are now stopping for the day at
14 Q. That last section of footage, does he provide anything in his
15 statement about where that is?
16 A. No, nothing more than it was the approach to Susnjari.
17 MR. McCLOSKEY: All right. Then I think this is a good place to
18 stop. And Mr. President, I hope you got the word, but this was meant as
19 a -- as to take up our day because this is, it's a lot of video so it's
20 good to break it up and as a good person to -- as the gap filler, we need
21 to start tomorrow morning with the witness as scheduled who is here and
22 will be ready to go, the other witness.
23 JUDGE FLUEGGE: Thank you very much. As you perhaps know, during
24 the break, and you will be here -- before you will be here again, you are
25 not allowed to contact the parties about the content of your testimony,
1 although you are an investigator of the OTP, you should work with your
2 colleagues of course. We have to adjourn now and you will be called at
3 another day in this trial.
4 We resume tomorrow morning at 9.00 in this courtroom.
5 [The witness stands down]
6 --- Whereupon the hearing adjourned at 1.46 p.m.
7 to be reconvened on Thursday, the 30th day of
8 September, 2010, at 9.00 a.m.