1 Monday, 15 November 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.18 p.m.
5 JUDGE MINDUA: Good afternoon to everyone. I will speak in
6 French. [No interpretation into English] Good day. I would like to open
7 the session. I would like to greet everybody. I would like to -- should
8 I start from the beginning? Is it all right now? All right. Very well.
9 I would like to welcome all the parties in the courtroom, the
10 representatives of the Defence, of the Prosecution, all those who are in
11 the courtroom and all the staff that assist us in our work. I'm now
12 going to ask the registrar to call the case.
13 THE REGISTRAR: Thank you and good afternoon, Your Honours. This
14 is case number IT-05-88/2-T, the Prosecutor versus Zdravko Tolimir.
15 JUDGE MINDUA: [Interpretation] Thank you very much,
16 Mr. Registrar. As you have probably noticed already, the Presiding
17 Judge, Judge Christoph Fluegge was unable to attend the hearing today.
18 Pursuant to Rule 15 of the Rules of Procedure and Evidence, Rule 15 bis,
19 the Trial Chamber is convinced that despite the absence of the Presiding
20 Judge, it can continue with the hearing today. Pursuant to the seniority
21 of the Judges at this International Tribunal, today I have the honour and
22 the difficult task of presiding over today's hearing and I am hoping that
23 everything will go smoothly. If I'm not mistaken -- last week, we
24 finished at the point when the Prosecution was carrying out its
25 examination-in-chief, which was conducted by Mr. Vanderpuye, the witness
1 was Ms. Erin Gallagher. Am I correct, Mr. Prosecutor?
2 MR. VANDERPUYE: Yes, Mr. President.
3 JUDGE MINDUA: Then we may bring in the witness, please. Madam
4 usher, could you please bring the witness in.
5 [The witness entered court]
6 WITNESS: ERIN GALLAGHER [Resumed]
7 JUDGE MINDUA: [Interpretation] Good afternoon, Witness. Please
8 be seated. I would like to remind you that the solemn declaration is
9 still in effect and we are here today to continue with the
10 examination-in-chief by the prosecutor. I am now giving the floor to
11 Mr. Vanderpuye.
12 Examination by Mr. Vanderpuye: [Continued]
13 MR. VANDERPUYE: Thank you, Mr. President, good afternoon to you
14 and Your Honours, good afternoon to everyone, good afternoon to you,
15 Ms. Gallagher.
16 If I could have in e-court, please, 65 ter 2183. We'll need to
17 go to page 4 and then page 5 of that document. Let's go to page 5,
18 please. Yeah, that's where we were. Okay.
19 Q. As you recall, when we broke last, we were just beginning to look
20 at the various sections of this proposed -- well, rather, this exhibit,
21 which is the identification of certain Bosnian Muslims who were depicted
22 in video footage.
23 MR. VANDERPUYE: If we could go to the next page, please.
24 JUDGE MINDUA: [Interpretation] Mr. Tolimir, go ahead.
25 THE ACCUSED: Thank you. I would like to welcome all those
1 present. I would like these proceedings to finish as God wills it, not
2 as I. The monitor is not working. Thank you.
3 JUDGE MINDUA: [Interpretation] We are just waiting to have the
4 transcript ready for Judge Nyambe, so I just ask for your patience.
5 The transcript now is working. Mr. Tolimir, I think you are also
6 all right. Everything is fine. Very well.
7 Mr. Vanderpuye, please go ahead.
8 MR. VANDERPUYE: Thank you very much, Mr. President.
9 Q. We were looking now at the first page of this exhibit, which
10 falls under the heading of Bosnian Muslims identified as missing. Before
11 we get started with this page I just wanted to ask you if you can tell us
12 basically, Ms. Gallagher, of the 31 individuals that are the subject of
13 this identification book, can you tell us how many of these individuals
14 are missing and how many of them are survivors, as you determined them to
15 be most recently?
16 A. Of the 31, there are now four that are deemed missing, and there
17 are six, seven, let me double check, there are seven that are survivors.
18 Q. All right. And we will look at that a little bit -- in a little
19 bit more detail as we go along but on this page here, which is page 5, I
20 believe, in e-court -- page 6 in e-court, can you just tell us basically
21 what this photograph depicts initially?
22 A. Right. This is a photograph taken from the Petrovic video on
23 July 13th. These are as you see, the men that are walking alongside
24 trucks and buses, and they are being sent to, in this case, to the buses.
25 They've been separated.
1 Q. And in terms of the date, 13 July, with respect to this Petrovic
2 video, were you able to confirm that is the date in fact that this image
3 was taken?
4 A. Yes. We've confirmed that by many means and one of them being by
5 Zoran Petrovic himself who took the footage.
6 Q. I can take it that you had the opportunity to compare this
7 particular still to the video footage itself?
8 A. That's correct.
9 Q. And in terms of the identification of these individuals, we see
10 number 1, it's indicated here is a person by the name of Meho Mehmedovic,
11 and beneath that there is an indication that he was identified by his
12 wife and also by his nephew during interviews with the OTP in June of
13 2000. Now, with respect to those interviews have you had an opportunity
14 to look at these either statements or have you heard a tape, can you tell
15 us what form they were in?
16 A. They are written statements, I've read the statements.
17 Q. And in terms of the process of the identification that was done
18 through these statements, can you tell us how that occurred? Was a
19 photograph shown? Were you able to connect the photograph to this
20 particular exhibit and so on?
21 A. Yes, these photographs were shown to, for example, Meho
22 Mehmedovic's wife and nephew, and they confirmed by this exact photo and
23 sometimes some additional photographs that this was her husband and his
25 Q. And was the process in terms of your review of these
1 identifications, the same with respect to Ahmo Mehmedovic and also Sefko
2 Mujic that are indicated as number 2 and 3 respectively on this page?
3 A. Yes, it was the same process.
4 Q. With respect to the statements that are indicated, for each of
5 these three individuals, we see that some are identified by OTP interview
6 statements and then we can see here a reference to an identification by
7 Pasaga Mesic during the Rule 61 hearing, 9 July 1996, with respect to the
8 other statements. Now, with respect to the statement -- I should say the
9 testimony, rather, of Pasaga Mesic, did you have an opportunity to review
11 A. I reviewed his testimony in the Rule 61 hearing as well as read
12 the statements that he based his testimony on.
13 Q. And are the statements as are indicated here, are they all part
14 of an annex in relation to this particular exhibit? Are they all set out
15 in the exhibit at some point?
16 A. Yeah, there are two indexes that are part of this book. One for
17 the missing, one for the survivors, and it lists all the statements that
18 were relied upon with the -- for the identifications, both in the year
19 2000 and 1996.
20 Q. Does it list statements in that part of the exhibit that aren't
21 listed, for example, on this page?
22 A. It will list all the statements that were used based on the
23 identification. In this particular example, for example Ahmo Mehmedovic
24 it says identified by Pasaga Mesic, it doesn't list what statements he
25 used to make the identification but they are listed in the index.
1 Q. What I'd like to do is I'd like to go to annex 3 of this book and
2 I think we may find it on page 35. It's page 36. Thank you very much.
3 All right. And here we can see there is a reference to the testimony
4 transcript of Pasaga Mesic, and what I'd like to do is to go to page --
5 since I was one off before, I would say page 40. And I think right at
6 the top of the page there we can see a specific reference to Ahmo
7 Mehmedovic and beneath that, well, we can see who identified him. Can
8 you tell us a bit about that?
9 A. As you can see from the testimony, Ahmo Mehmedovic was identified
10 by a neighbour.
11 Q. If we could go briefly to page -- I think it should be page 39,
12 and if we take a look, I think if we take a look at line 23, down, we can
13 see there was an identification also of Sefko Mujic who was another
14 person that's referenced on page 6 of this exhibit as we've just seen,
15 and can you tell us a little bit about the circumstances of his
17 A. And as you can see from the testimony he was also -- Sefko Mujic
18 was also identified by a neighbour.
19 Q. Back on page 40, you can see also - and perhaps I neglected to
20 mention this before - but you can see also an identification of Meho
21 Mehmedovic and that would be at line 8 of that page, do you see that,
22 Ms. Gallagher?
23 A. Yes.
24 Q. Okay.
25 MR. VANDERPUYE: If we could just go back to page 6, please.
1 Q. With respect to the identifications that were made by Pasaga
2 Mesic, were these based upon photographic identifications in addition to
3 statements that you referred to?
4 A. Correct, Pasaga Mesic had shown photographs to neighbours,
5 relatives, et cetera, who identified the people from the photographs.
6 Q. Were you able to first of all examine such photographs and, if
7 so, were you able to connect them to the photographs, for example, that
8 we see here that are the photographs depicted in this book?
9 A. Correct. The same footage was used, the same photographs were
10 taken from the same footage that Pasaga Mesic used in 1996. Sometimes
11 the stills are slightly different. They might be further along in the
12 video, slightly different angle, some of them are exactly the same, but,
13 yes, they are basically the same photographs that he used or basically
14 the same ones that you see in the book, but there is an appendix or an
15 annex that indicates the photographs that he used with the witnesses.
16 Q. I'd just like to go over, before we go to the next page, I'd like
17 to just go briefly to page 30, I believe, in e-court. On this page, we
18 see that it's an identification -- well, it indicates that there is an
19 identification table of missing Bosnian Muslims.
20 MR. VANDERPUYE: And if we could just go to the next page,
22 Q. Can you briefly tell us what this shows.
23 A. It's an index showing primarily the identified person, you'll see
24 in the fifth column, how they -- who they were identified by, the
25 relation to that person, if they are wife, brother, neighbour; the
1 photograph that was used for the identification, and you see that in the
2 picture ERN as well as the ERN of the statement; and then the -- which
3 photograph that is in the book; and also the photograph that was used,
4 the Rule 61 exhibit number is the photograph that Pasaga Mesic used and
5 referred to in his testimony and the photographs that were used in
6 identifying the men with the witnesses.
7 Q. Does this include the statements from the OTP, those from AID,
8 and any other statements that were used in the identification process of
9 these individuals?
10 A. Yes, it includes all the statements that were used in this book.
11 Q. And is there any particular -- well, are the OTP statements
12 annotated or indicated in red?
13 A. That's correct.
14 Q. Okay. And are these the statements that you relied on in order
15 to identify -- or I should say confirm the identities that are indicated
16 in the book itself?
17 A. Correct. I looked at all of these statements.
18 MR. VANDERPUYE: What I'd like to do then is to go to page number
19 -- should be 7 in e-court. All right. Here we have what appears to be
20 similar footage, can you tell us first of all is it similar footage, is
21 it the same or what its source is?
22 A. It's the same footage, it's also from July 13, from the Petrovic
23 video, and it's just shortly I think right after the footage you see
24 before, it's -- there is a short -- short amount of footage that shows
25 all the men that are walking alongside heading towards the buses, so this
1 is part of that same footage.
2 Q. And here we have two individuals, one and two, respectively Kasim
3 Hafizovic and Senahid Hafizovic, were you able to confirm their
4 identities based upon the statements that are indicated here?
5 A. Yes, I was.
6 Q. And with respect to these statements, I can see that, for Kasim
7 Hafizovic, there is a reference to three statements, one from his niece,
8 one from his wife, and one from his cousin respectively, and these are
9 all three OTP interview statements from June of 2000. And then there is
10 an indication of an identification by Pasaga Mesic during this Rule 61
11 hearing in 1996.
12 MR. VANDERPUYE: If we could just go into private session for a
13 moment, Mr. President.
14 JUDGE MINDUA: [Interpretation] Mr. Registrar, please.
15 [Private session]
8 [Open session]
9 THE REGISTRAR: Back in open session, Your Honour.
10 JUDGE MINDUA: [Interpretation] Thank you, Mr. Registrar.
11 Mr. Prosecutor you may continue.
12 MR. VANDERPUYE: Thank you, Mr. President.
13 Q. You can see from this document, Ms. Gallagher, that this
14 particular individual identifies Kasim Hafizovic, who was otherwise
15 depicted in this book, and what I'd like to ask you is, is there a
16 particular reason why a statement of identity such as this one is not
17 included as part of the -- part of this exhibit, this book, at the front
18 part where the photograph is or where other documents listing the
19 identity of this individual are located?
20 A. May I -- I'm not really sure what the decision was at the time as
21 to what should be listed with the photographs and what shouldn't be at
22 the time that the book was made. Sometimes it seems fairly evident that
23 they are going with the identification of an immediate family member,
24 such as a wife or a son, or daughter. But otherwise, it would be
25 speculation on my part.
1 Q. And do you know what statements Pasaga Mesic relied on or
2 information Pasaga Mesic relied on in 1996 in order to testify about the
3 identity of these individuals?
4 A. Pasaga Mesic relied upon the statements that were taken by the
5 Tuzla AID in 1996.
6 Q. All right. Now, with respect to this we can see that this
7 statement is not included in the up-front part, as I would call it, of
8 the book where the other identifications are included with the photograph
9 contained in the exhibit. Are there other such circumstances or other
10 such cases with respect to the missing individuals that are in the book,
11 that you're aware of?
12 A. If I understand your question correctly, the statements that
13 Pasaga Mesic relied upon are in the index, and in the front part of the
14 book it will -- what you will see -- it says the testimony, the Rule 61
15 hearing testimony of Pasaga Mesic. It doesn't list in the front part of
16 the book which statements he was looking at. It's in the index where you
17 can find the statements that he relied upon.
18 Q. So although this isn't apparent when you look at the
19 identification page of this individual Kasim Hafizovic, it would be fair
20 to say that it should be located inside in the index of all the
21 statements of identity?
22 A. That's correct.
23 Q. Okay. Why don't we take a look, then, at 65 ter 2183? Oh, yes,
24 I'm reminded I should tender this particular document, so I am tendering
25 it as 65 ter 6788, under seal.
1 JUDGE MINDUA: [Interpretation] We will admit it under seal,
2 Mr. Prosecutor.
3 THE REGISTRAR: As Exhibit P1361 under seal.
4 MR. VANDERPUYE: Thank you. I'd like to go just briefly to 65
5 ter 2183. I think we will have to go to page 30. I think we should go
6 to the next page. And before we blow it up, Mr. President, I think we
7 should not broadcast it.
8 JUDGE MINDUA: [Interpretation] Mr. Registrar, this should not be
9 broadcast to the public.
10 You may continue, Mr. Prosecutor.
11 MR. VANDERPUYE: Thank you, Mr. President.
12 Q. Witness, I'd just like to draw your attention, if I could, to, if
13 you look in the left-hand column where you see a reference to 10 B, there
14 is a -- there are several references but it's the second one down, you
15 can see that -- does that reference correspond to the statement that we
16 just took a look at?
17 A. Correct, that's the same statement we just saw.
18 Q. All right. And it is the case that any such statement that is
19 referred to or relied on, I should say, in the testimony of Pasaga Mesic
20 with respect to the identification of individuals in the book, the photo
21 exhibit, would be contained in this index?
22 A. That's correct.
23 Q. All right. Thanks very much. I'd like to move now to page 8 on
24 this exhibit, please. I think we can broadcast this from this point on.
25 JUDGE MINDUA: [Interpretation] Mr. Registrar, this photograph may
1 be broadcast to the public. Thank you very much, Mr. Registrar.
2 Mr. Prosecutor, please go ahead.
3 MR. VANDERPUYE: Thank you, Mr. President.
4 Q. Now, Ms. Gallagher in your earlier testimony you indicated you
5 reviewed documents besides statements including certain autopsy reports
6 in order to confirm the identity and status of some of these individuals
7 that were reported missing. Can you tell us a little bit about this
8 particular photograph, the circumstances, and then about the individual?
9 A. Once again, this is the footage from the Petrovic video on July
10 13th. He is -- Mesa Efendic, he is part of the same group of men that
11 you have seen in the other photographs walking alongside the trucks and
12 buses who have been separated out. And in regards to him, I had read
13 these statements and then there was some other documents that I had also
14 looked at pertaining to him.
15 Q. All right. Here we can see there it's indicated that he was
16 identified by his wife and by his neighbour as well?
17 A. Correct.
18 Q. And there was apparently an identification also by Pasaga Mesic
19 which is included in his testimony, part of this exhibit, as well?
20 A. Correct.
21 Q. All right. Did you have an opportunity to review an autopsy
22 report for this individual?
23 A. I did.
24 MR. VANDERPUYE: All right. If I could have 65 ter 6783, please,
25 in e-court.
1 Q. And here we can see -- well, first of all, do you recognise what
2 this is?
3 A. It is an autopsy report, and I know from the case number it
4 corresponds with Mesa Efendic.
5 MR. VANDERPUYE: All right. If we could just go into private
6 session for a moment, Mr. President.
7 JUDGE MINDUA: [Interpretation] Mr. Registrar, let us move into
8 private session, please.
9 [Private session]
14 [Open session]
15 THE REGISTRAR: Back in open session, Your Honour.
16 JUDGE MINDUA: [Interpretation] Thank you, Mr. Registrar. Please
17 continue, Mr. Prosecutor.
18 MR. VANDERPUYE: Thank you, Mr. President.
19 Q. Here we can see that the cause of death that is indicated here
20 was gunshot wounds to the head and pelvic region, the back. Now, I take
21 it you've had an opportunity to review the whole of the autopsy report?
22 A. I have.
23 Q. Okay. And given your experience and involvement in the
24 investigation to this point, as concerns the men that are depicted in the
25 photograph on the 13th of July, is this consistent with other information
1 that you have reviewed concerning what happened to other men besides this
2 particular one?
3 A. Yes, looking at other autopsy reports, listings on the ICMP list
4 statements, interviewing witnesses, it's consistent.
5 Q. What I'd like to show you is page -- should be page 3 of this
6 autopsy report. Here you can see a little bit more detail about the
7 types of injuries to the body of Mr. Efendic. It talks about in
8 particular with the injuries under item number 2, to the head and neck,
9 it talks about a partially crushed part of his head, a fracture, and it
10 indicates gunshot. It talks about a double crush fracture to the right
11 mandible. Have you had an opportunity to look at the drawings and
12 associated documents concerning this autopsy?
13 A. Yes, I have.
14 Q. And have you -- are they consistent with the injuries that are
15 described here?
16 A. Yes.
17 MR. VANDERPUYE: If we can go to page 2 of this document.
18 Q. You can see here a description -- I should say of the clothing
19 that was found associated with this body, and here we can see under item
20 B it's described as dark, striped pants, following that you can see a
21 striped light colour pajama bottom, after that you can see a light
22 coloured shirt, buttoned at the front, long sleeve; red cardigan, short
23 sleeved; and then black lower cut boots. What I'd like to do, and I
24 don't know if it's possible, maybe somebody can help me, is to juxtapose
25 this report with the photograph that we have in 2183, that's 65 ter 2183,
1 page 8. If we can show that side by side I think it would be most
3 JUDGE MINDUA: [Interpretation] We will wait to see the
4 photographs of the documents, yes.
5 MR. VANDERPUYE: If we are able to just focus on the individual
6 in the left, the identified one, with the -- if you can just blow him up
7 that would be -- we don't need the name or anything, just the person.
8 All right. That's not bad. Did you compare the description that is
9 indicated in the autopsy report to the video footage of the person that
10 we have here on the right screen, identified as Mesa Efendic?
11 A. I did. And you'll see especially points out is the light
12 coloured or white button up shirt and the dark red maroon sweater vest or
13 short sleeved cardigan on him.
14 Q. All right. What I'd like to show you now is 65 ter 51 -- I'm
15 sorry, 5415, and if we could replace the autopsy report and show that
16 picture side by side to the photo identification book that we have there,
17 and maybe we can rotate it so that we can get it a little bit -- if you
18 can flip it the other way around that would be better, that's it. And we
19 can blow up the photograph so we can compare what we have here.
20 Now, can you tell us a little bit about the photograph we have on
21 the left side of the screen? That's 65 ter -- I think I said it was
23 A. I see it's a photograph from the exhumation site in Kozluk with
24 the same case ID number as you see in the autopsy, and from the
25 photograph you see some -- you see a body with blue, looks like blue dark
1 pants, a light coloured or white long-sleeved shirt, and then a dark red
2 short sleeved top on top of it.
3 Q. And in terms of the exhumation photo that we have on the left
4 side of the screen I would note that the autopsy report we looked at a
5 moment ago bears the number KK3543B, and this photograph we don't see the
6 designation B. Although we do see KK3543. Do you know the reason for
8 A. It's going to refer to the main body of the 543KK. It's the --
9 it's the same number, and any additional letters may be -- will be
10 different body parts or locations associated with that body.
11 Q. All right. Thank you for that.
12 MR. VANDERPUYE: Mr. President I would like to tender 65 ter
13 5145 -- 5415, and I'd also like to tender 65 ter 6783.
14 JUDGE MINDUA: [Interpretation] Just one moment, Mr. Prosecutor.
15 I can see Mr. Gajic is on his feet.
16 Go ahead, Mr. Gajic.
17 MR. GAJIC: [Interpretation] Your Honours, I would like to wish a
18 good afternoon to everyone. We have a problem here and that is that none
19 of these documents has been translated so that Mr. Tolimir is not in an
20 opportunity to look at the autopsy reports or what is noted in this book
21 of identifications, since it is in a language he does not understand. As
22 far as this exhibit is concerned that the prosecutor would like to
23 tender, the position of the Defence is that for now it can only be marked
24 for identification but not admitted until we have the translation.
25 JUDGE MINDUA: [Interpretation] Mr. Prosecutor, you've heard the
1 position of the Defence. I would like to add a question to that: Are
2 you sure that all these documents that you mentioned, specifically 6783,
3 6788 and 6789, are all on your 65 ter list?
4 MR. VANDERPUYE: Thank you, Mr. President. Let's see. 65 ter --
5 thank you, Mr. President, 6789 is not part of our 65 ter list,
6 Mr. President, although it is specifically listed in the document which
7 is on our 65 ter list and that is the book that I've been going over with
8 the witness. All of these statements are indicated specifically in that
9 document as the witness has established through her testimony, and the
10 document itself has obviously been disclosed to the accused, both the one
11 I'm using and the underlying statement. So I'll answer your question as
12 follows. It's not on the 65 ter list as a particularised item although
13 it is specifically referenced in a document that is on the 65 ter list
14 and forms an integral part of this particular exhibit.
15 JUDGE MINDUA: [Interpretation] Mr. Gajic, you've heard what the
16 prosecutor said about the documents which are part of the greater, bigger
17 document, the report.
18 MR. GAJIC: [Interpretation] Yes, Mr. President, they are in this
19 bigger document, they have been disclosed. Unfortunately, we still
20 didn't receive the translation. But perhaps I would like to deal with a
21 different question here, which might be related to the question of
22 admission of the autopsy reports through this witness. I'm not sure
23 whether it's the practice, whether it's a uniform practice here at the
24 Tribunal, because I would like to read one paragraph from the --
25 THE INTERPRETER: Mr. Gajic is kindly asked to slow down when
1 he's reading.
2 MR. GAJIC: [Interpretation] This is a decision of the Martic
3 Trial Chamber from the 12th of July, 2007. The passage is short, I'm
4 going to read it so that the Prosecution can be aware of the position of
5 the Defence on the matter of these issues. The paragraph states:
6 "On the 4th of May and the 9th of May 2006, Ari Kerkkanen who was
7 previously employed in the OTP as an analyst of criminal intelligence
8 reports or data testified as a Prosecution witness before the Trial
9 Chamber. His written statement was admitted on the 19th of April, 2006,
10 in a redacted version. The Trial Chamber reminds the parties that
11 Ari Kerkkanen was one of the organisers and participants of a number of
12 OTP missions which were entrusted with searching the archives including
13 the state archive of Croatia for the purpose of compiling documents about
14 the Krajina MUP and the MUP of the RSK.
15 "The Trial Chamber notes that Ari Kerkkanen during his testimony
16 and in his written statement about the documents that were collected
17 presented the positions and drew conclusions from information -- from the
18 documents that the -- from the information contained in the document
19 without being an expert in that field and without having any personal
20 knowledge about that information. Pursuant to that, the Trial Chamber
21 did not accord any weight to those positions, conclusions, and analyses
22 of Ari Kerkkanen."
23 I think that I have finished with reading the passage, so I think
24 we are here in a similar situation. Of course, the question of admitting
25 a document and giving it weight as to its probative value and admission
1 of a witness's statement, these are two different things, and I think
2 that at this point in time, it's important both for the Trial Chamber and
3 the OTP to be aware of the position of the Defence in relation to matters
4 that are being presented through this witness.
5 JUDGE MINDUA: [Interpretation] Thank you, Mr. Gajic, for your
6 intervention. You did say correctly that the practice of the Tribunal on
7 matters such as these is not completely uniform and that is quite
8 correct. On the other hand, Ms. Gallagher is testifying about very
9 technical things and it seems that what she is doing has to do with the
10 conclusions that we have in front of us, and you know very well that it's
11 one thing to admit a document and it's quite something else to give
12 probative value to a certain exhibit or document. In any case, we know
13 at this point in time that these documents have not been translated yet
14 and you suggested that the documents be MFI'd in the meantime. We would
15 like to hear the position of the Prosecution on this matter now, please.
16 MR. VANDERPUYE: Thank you, Mr. President. I was just awaiting
17 the translation. There is a couple of things. One is that Mr. Gajic is
18 correct that admissibility and weight are clearly separate issues in the
19 jurisprudence of the Tribunal, and I think that the testimony of this
20 witness clearly establishes that and speaks to that issue.
21 She he has relied upon this information in reaching certain
22 conclusions concerning the confirmation of the identity and status of
23 individuals that are the subject of 65 ter 2183, which is the photo
24 identification book. This is one of the documents that she relied upon
25 which is connected to other evidence before this Tribunal in terms of
1 establishing the identity of the individual that's depicted, in this
2 case, on page 8 of this exhibit. We feel that it is helpful, certainly,
3 to the Trial Chamber to look at this information, in terms of the
4 reliability -- in terms of assessing reliability of the photo
5 identification book. There are many statements which support the
6 identifications that are indicated in the book, as Ms. Gallagher has
7 testified to. We don't intend to tender every statement because I think
8 that would be really overburdensome to the Trial Chamber and I think it's
9 not necessary to establish the reliability of the identifications that
10 the witness is testifying to.
11 On the matter of the translations we do have a pending
12 translation request as concerns the autopsy report that I have offered
13 into evidence and with respect to the statements, these are, as
14 Ms. Gallagher indicated, by and large Tuzla AID statements, they are
15 already in B/C/S, they have already been disclosed in B/C/S to the
16 accused, and I think the ones that I have any way indicated or intended
17 to use do have translations. I think the one that I put up, I can't
18 remember the number just now but I think very clearly came up in B/C/S,
19 it was signed by an individual who was a protected witness. And so
20 that -- those statements have been translated and they are -- they are
21 available to the accused to inspect. With respect to the photo
22 identification book itself, the one that I've been using, he is correct
23 that that is not translated and there is -- there are two reasons for
24 that. One is that I think it's never actually been translated in any
25 other -- in any prior proceeding but that's not an excuse. In this case,
1 it hasn't been translated yet because it is a work in progress and the
2 final version of that book has yet to be tendered or put before the Trial
4 As I indicated at the beginning of this examination, I'm using
5 this book to familiarise the Trial Chamber with the book that is being
6 prepared that will be offered into evidence, obviously disclosed to the
7 accused, but is fundamentally the same, less the updated information that
8 Ms. Gallagher has worked on and is testifying about. So that's
9 essentially, for the purposes of these proceedings, to mark the book
10 itself for identification purposes, I think, is the best thing to do. We
11 will offer new one with the translation to supplant that. In terms of
12 the admissibility of the autopsy report, pending the translation request,
13 I think it's best to mark that for identification as well. But in terms
14 of the Tuzla AID statements, those I would submit should be admitted
15 because they do have translations and they have been available to the
17 JUDGE MINDUA: [Interpretation] Yes. Then we all agree that the
18 autopsy report should be translated to make this a fair trial and so that
19 the Defence can use them as far as statements are concerned.
20 I see that Mr. Gajic is on his feet, so please, go ahead,
21 Mr. Gajic.
22 MR. GAJIC: [Interpretation] I think my colleague maybe made an
23 error but I think that the statements given to the documentation,
24 investigation agency are originally in the Serbian and they were
25 translated into English. I'm only saying this in order to have this
1 perfectly clear for the transcript.
2 JUDGE MINDUA: [Interpretation] Mr. Gajic, do you want to say that
3 you do have the translation of these documents, then?
4 MR. GAJIC: [Interpretation] Mr. President, we don't have a
5 translation of the autopsy reports and we don't have a translation of the
6 identification book. As for the statements that were given to the AID,
7 they were originally given in the language Mr. Tolimir understands, so
8 perhaps this can only be a question of whether they were then translated
9 into English, and from what I know, I think that they were.
10 JUDGE MINDUA: [Interpretation] Very well. We need to find a
11 solution for all of these things. We will leave the autopsy reports
12 aside, which need to be translated. We've got the B/C/S statements that
13 were translated into English, and now, Mr. Vanderpuye, you would like to
14 tender document 5415, which is on your 65 ter list. Is that your
15 position or are we talking about some other document?
16 MR. VANDERPUYE: That's correct, Mr. President. 5415 is the --
17 no, no it's the photograph, yes, that's right. I would like to tender
18 that as well.
19 JUDGE MINDUA: [Interpretation] Very well. The Trial Chamber has
20 decided that the documents will be given identification numbers and then
21 we will decide later what to do with them. Mr. Prosecutor, please, you
22 may continue.
23 THE REGISTRAR: Your Honour 65 ter 06783 will be MFI P1362, and
24 65 ter 05415 will be MFI P1363.
25 JUDGE MINDUA: [Interpretation] Thank you. Please go ahead,
1 Mr. Vanderpuye.
2 MR. VANDERPUYE: If we can go now to, I think, page 9 of 65 ter
3 2183. All right.
4 Q. Here we have another identification, this individual's name is
5 Nazif Krdzic, and you can see here he's indicated or designated by the
6 number 1. The book indicates that he was identified by his wife in an
7 OTP interview in June of 2000 as well as by Pasaga Mesic in his testimony
8 during a Rule 61 hearing in July of 1996. Did you have an opportunity --
9 this is a little bit different, but did you have an opportunity to review
10 this particular statement concerning this identification?
11 A. Yes, I do actually remember this specific statement by his wife.
12 Q. And did you -- tell us what you remember about that statement,
13 and in just a moment I'll get it up for you.
14 A. I remember that he and his wife were in Potocari on the 13th, and
15 that they were moving, they were being moved along to the trucks and
16 buses by the soldiers, and he at -- one point the two of them were being
17 split up, the -- they were wanting to separate him away from her, he go
18 to the bus, she go to the trucks, and she was asking, if I remember
19 correctly, asking why or saying that she didn't want to be separated from
20 him and the Serb officer, soldier, saying, basically -- it's in the
21 statement, but saying, "If you don't want the same thing to happen to you
22 as to him, you should go your separate ways." And that was the last time
23 that she saw her husband.
24 MR. VANDERPUYE: Just a moment. All right. Can I have 65 ter
25 2424, please, in e-court. All right. I think I have mixed up, perhaps,
1 the exhibit numbers. Maybe we will get back to that one.
2 Q. And just bear with me for a moment. Based on what you recall
3 from the statement itself, is that consistent with the circumstances
4 under which this -- under which this person is -- was last seen in the
5 photographs that you looked at?
6 A. It's consistent that you see her husband with the other men, and
7 alone with all the men and not with other women, their wives, daughters,
8 et cetera.
9 MR. VANDERPUYE: All right. I think we may have found it. If we
10 can go to page 3 in the B/C/S and also page 3 in the English. All right.
11 I think we have it.
12 Q. In particular, what I'd like to draw your attention to is the
13 third paragraph in English, here you can see there is a recitation of the
14 circumstances under which Srebrenica fell, where this person indicates
15 that they were shelled and that the following day, a Thursday, you can
16 see that in the middle of the paragraph, that would be 13 July, wouldn't
18 A. That's correct, July 13th, is a Thursday.
19 Q. Did you rely on that in terms of establishing the date of the
20 footage in question in addition to the other information you testified
22 A. That was one more confirmation, corroboration, of July 13th date.
23 Q. And what she describes is that they were told to move towards the
24 trucks in columns, is that consistent with the investigation as you know
1 A. That's correct.
2 Q. And is that consistent with the photograph in which this
3 particular individual, Nazif Krdzic is depicted and identified?
4 A. That's correct. You see the men walking alongside there --
5 mainly trucks right there as well as some buses.
6 Q. And in particular, you recall the part where she says, and you'll
7 see this I think two sentences from where I've just read, where it says:
8 "The soldier told him that that he should come with us but the
9 same thing will happen to your husband as will happen to you," where she
10 says -- I'm sorry, I've mis-read it. It says:
11 "The soldier told him that he should come with him. I asked the
12 soldier if I could come as well, and the soldier said, okay, you can
13 come, you can come with us but the same thing that will happen to your
14 husband will happen with you."
15 Is that -- you recall that part of the statement; is that right?
16 A. That's correct.
17 Q. And what did you understand that to mean when you read it?
18 A. In the context of knowing what did happen, I interpreted that to
19 mean that they would be killed.
20 Q. Now, did you consider the fact that this person describes being
21 separated from her husband as consistent with the investigation and
22 important to the reliability of the video footage that you were comparing
23 for identification purposes?
24 A. Yes, I did.
25 MR. VANDERPUYE: Now, if we go to, hopefully, the next page, it
1 should be page 4 I think in both documents.
2 JUDGE MINDUA: [Interpretation] Mr. Gajic.
3 MR. GAJIC: [Interpretation] Mr. President, just briefly, I would
4 like to ask Mr. Prosecutor to clarify whether the person he mentions
5 here, Behara Krdzic, is a witness who is under number 72 on the list of
7 JUDGE MINDUA: [Interpretation] Mr. Prosecutor, I would like first
8 of all to be sure whether this document can be broadcast publicly.
9 MR. VANDERPUYE: It can be broadcast publicly, yes,
10 Mr. President.
11 JUDGE MINDUA: [Interpretation] Very well. Therefore, please
13 MR. VANDERPUYE: I am informed that she is actually number 72 on
14 our witness list as has been indicated, and I don't believe she is a
15 protected witness. I hope that clarifies things for Mr. Gajic. In terms
16 of the page that we are on now, at the bottom of the page, you can see
17 here the following declaration:
18 "I have been shown a photograph by Magda Karaginnakis in which
19 I recognise my husband. The photograph is marked with the number
20 00696327 on the back side. My husband is the second man from the left in
21 this photo."
22 If we can go to page 7 in the English, we should be able to see
23 the photograph that she is referring to.
25 Q. Did you have an opportunity to look at this, Ms. Gallagher?
1 A. Yes, I did.
2 Q. Does it correspond to I think we were on page 8 in e-court, with
3 respect to the photo identification book?
4 A. Yes.
5 Q. All right. If we can just -- I'd like to offer this into
6 evidence, Mr. President, this document.
7 JUDGE MINDUA: [Interpretation] Which document, Mr. Prosecutor?
8 The photograph or the declaration of this witness?
9 MR. VANDERPUYE: Thank you very much, Mr. President. The
10 declaration of this witness and I believe it actually includes the
11 photograph, so they are all one -- it's all one document which includes
12 both the statement and photograph.
13 JUDGE MINDUA: [Interpretation] The Trial Chamber will consult.
14 [Trial Chamber confers]
15 JUDGE MINDUA: [Interpretation] Mr. Prosecutor, the Trial Chamber
16 has a difficulty to admit this declaration of the witness and the
17 document, namely the photograph, because you have said yourself that the
18 witness will come to testify. So why couldn't we wait and admit these
19 documents through this witness?
20 MR. VANDERPUYE: Thank you, Mr. President. The witness is a 92
21 bis witness. The documents are part of the 92 bis -- that is the
22 declaration is part of the 92 bis package that was submitted for this
23 witness, and I believe the witness has actually been approved by this
24 Trial Chamber as a 92 bis witness and therefore the statement and the
25 documents associated with that should be provisionally admitted already.
1 I think it's relevant also to the testimony of this particular witness,
2 Ms. Gallagher, because it bears upon her ability to confirm the
3 identifications and the status of the witnesses that are identified -- of
4 the -- I should say the victims identified in this -- in 2183, the photo
5 identification exhibit book.
6 JUDGE MINDUA: [Interpretation] You want to say that this document
7 was already previously admitted?
8 MR. VANDERPUYE: I think it should have been provisionally
9 admitted, yes, Mr. President.
10 JUDGE MINDUA: [Interpretation] Provisionally admitted but what do
11 you mean by that? Do you mean marked for identification or in what way
12 was it provisionally admitted?
13 MR. VANDERPUYE: Good question. I am using unfortunately the
14 language of the decision that decided the 92 bis application by the
15 Prosecution which refers specifically to the admission of certain
16 documents associated with that -- associated with the proffered evidence.
17 I'm not sure, maybe it doesn't use the word "provisionally admitted,"
18 maybe it just uses the word "admitted" as distinguished from a 92 ter
19 witness, but the gist of what it is is that it's already been decided by
20 the Trial Chamber that it is relevant and probative evidence to the
21 proffered testimony and for that reason is admitted in this case.
22 Whether it's provisionally or qualified in some other sense, I'm not
23 really sure, although my understanding is that it's in the decision dated
24 7 July 2010, that's the decision that admitted this witness's evidence
25 pursuant to Rule 92 bis.
1 JUDGE MINDUA: [Interpretation] Mr. Gajic.
2 MR. GAJIC: [Interpretation] Mr. President, the Defence will not
3 oppose any of the decisions of the Trial Chamber. However, as for this
4 witness, we will most probably request from the Trial Chamber,
5 considering the nature of her testimony, which has now been presented to
6 you, that this witness appear in the courtroom for the purpose of
7 cross-examination, because of the seriousness of some of her claims,
8 which have been presented today, and as for the question whether the
9 witness is included in the 92 bis decision, I would propose that
10 I briefly consult with the OTP during the break so that I can check the
11 decision and then it won't be a problem to make any sort of decision that
12 has to do with admitting this particular statement into evidence.
13 JUDGE MINDUA: [Interpretation] Thank you, Mr. Gajic. The Trial
14 Chamber will also hold some consultations.
15 [Trial chamber and legal officer confer]
16 MR. VANDERPUYE: Mr. President, I did want to point out --
17 JUDGE MINDUA: One minute, Mr. Prosecutor.
18 [Trial chamber and legal officer confer]
19 JUDGE MINDUA: [Interpretation] Mr. Prosecutor.
20 MR. VANDERPUYE: Thank you, Mr. President. I just wanted to
21 point out that this particular statement was disclosed back in -- on 7
22 March 2008. It's not new and it was the subject, as I've indicated, of
23 the Prosecution's 92 bis application, so if the Defence has a different
24 position that they -- than what they took in respect of opposing that
25 application, I don't think now is a good time to deal with that issue and
1 it seems to me that it could have been raised maybe even a year ago.
2 There is nothing new in this statement than what was proffered together
3 with the 92 bis application, which the Defence has been aware of as of
4 its filing and aware of the substance of that statement as of its
5 disclosure back in March of 2008, so I don't know that it's a valid
6 objection at this time to raise. Obviously, we will consider the Defence
7 application, I'll consult with Mr. McCloskey about that, but I think to
8 the extent that it raises an issue that Mr. Gajic has identified as a
9 serious important issue concerning the facts of this case, it's something
10 that should have been raised well before today.
11 JUDGE MINDUA: [Interpretation] Thank you very much. Mr. Gajic,
12 I would not like to prolong this discussion. Can you just be brief?
13 What do you wish to add?
14 MR. GAJIC: [Interpretation] Just a brief response to what the
15 prosecutor has said. The defence opposed admitting this into evidence on
16 the basis of 92 bis rule, and the only thing that I suggested was that
17 the discussion about this issue be postponed until we can see the
18 specific decision because I cannot remember off the top of my head the
19 decision which relates to each of the more than 100 witnesses.
20 JUDGE MINDUA: [Interpretation] Well, in fact, Mr. Gajic is right
21 and if I understood him properly, he wants to consult the Prosecutor's
22 Office during the break. And as I already pointed out, in view of the
23 Trial Chamber, we will have the occasion to admit this statement when the
24 witness appears in the courtroom. On the other hand, we have already
25 done some research and it seems that this document has not been admitted
1 as yet. So we will now mark it for identification and then, if such a
2 need arises, we shall return to this issue later on.
3 Mr. Registrar.
4 THE REGISTRAR: Yes, Your Honour. This will be MFI P1364.
5 JUDGE MINDUA: [Interpretation] Thank you, Mr. Registrar.
6 Mr. Prosecutor, please go ahead.
7 MR. VANDERPUYE: Thank you, Mr. President. I just did want to
8 point out that this is a 92 bis witness, and so she won't be coming to
9 testify in court unless the Trial Chamber revisits its 92 bis decision
10 which I've indicated was decided back in July of this year. So she has
11 already been approved as a 92 bis witness and she is not coming to court.
12 That's the whole gist. And if she doesn't come to court, then clearly
13 the exhibits that are associated with her testimony or written evidence,
14 of which this is among, have to be disposed of in one way or another, and
15 it seems to me that the admissibility of this associated document has
16 already been determined by the Trial Chamber.
17 So it's not a question that we are trying to get it in, although
18 this witness is testifying about it in a relevant way. It's that it is
19 in already and Mr. Gajic or the Defence, General Tolimir, is trying to
20 have it not be admitted when it's already been determined. Now,
21 I appreciate that the Trial Chamber may not have found a reference to the
22 admission of this document just now, and I think I can find it for you,
23 I can see we are two minutes before the break, and I think I can find it
24 for you and have that information available to you as soon as we return.
25 JUDGE MINDUA: [Interpretation] Thank you very much,
1 Mr. Prosecutor. It is not necessary for you to look for this document
2 for the sake of the Trial Chamber. I can see that in one minute it will
3 be the moment when we must take the first break. In the meantime, the
4 legal assistants will join the Judges so that we will try to examine the
5 decision which you're referring to, because it's quite long and I cannot
6 read all of it now, and then once we return to the courtroom we will
7 clarify the issues about this exhibit.
8 So as I said, it is now the time for the break. And therefore,
9 we will now take the break.
10 --- Recess taken at 3.45 p.m.
11 --- On resuming at 4.16 p.m.
12 JUDGE MINDUA: [Interpretation] We can continue with the trial.
13 Mr. Prosecutor, before we continue, I wish to go back, as
14 I already said, to your request to admit into evidence Exhibit 2124 on
15 the 65 ter list. As for this exhibit, the Trial Chamber reviewed its
16 decision of the 7th of July 2010, entitled, "[In English] Decision on the
17 Prosecutor's Motion for Admission of Written Evidence Pursuant to Rules
18 92 bis and 94 bis." [Interpretation] Page 30, paragraph 46 -- or,
19 rather -- yes, paragraph 46 [as interpreted]. I will read what it says:
20 "[In English] The cantonal statement of witness number 72 refers
21 to a Prosecution statement that is five pages long, while the Prosecution
22 statement that is attached contains only two and a half pages and a
23 full-page photograph. The Chamber is therefore of the view that the
24 proposed evidence of Witness number 72 is incomplete, and admission is
25 therefore denied without prejudice. Accordingly, the admission of the
1 written evidence of witnesses number 63, 67, 72, and 80 pursuant to
2 Rule 92 bis is denied without prejudice. Notwithstanding the fact that
3 the Prosecution remains free to obtain a new declarations pursuant to
4 Rule 92 bis(i)(b) if it sees fit to do so."
5 [Interpretation] So, Mr. Prosecutor, I think the decision is
6 clear. Your request was denied but without prejudice.
7 Mr. Vanderpuye.
8 MR. VANDERPUYE: Thank you, Mr. President. And I appreciate your
9 reading that out into the record. I did become aware of it over the
10 break and I did intend to raise that and bring that to your attention.
11 I discussed it also with Mr. Gajic and you're right, the decision is
12 clear. It appears to be that it's based upon a discrepancy between this
13 tendered statement that is referred to in the motion and its attachment,
14 which the Prosecution will endeavour to clear up so that we can resolve
15 the issue once and for all. But I do appreciate it and I do acknowledge
16 that my remarks concerning the decision and the import of the decision as
17 concerns this particular witness were erroneous.
18 I would, however, like to proceed. I think I may be done with
19 this particular document anyway, and I don't know if --
20 JUDGE MINDUA: [Interpretation] Just a second, Mr. Prosecutor.
21 [Trial Chamber and registrar confer]
22 JUDGE MINDUA: [Interpretation] So, Mr. Prosecutor, I just wanted
23 to tell the Registrar quite precisely what the decision was about this
24 Exhibit 2428. And now you may continue, Mr. Prosecutor.
25 MR. VANDERPUYE: Thank you, Mr. President.
1 I think I had left off with that same document and I had just
2 shown the witness the photograph that was appended to it.
3 Q. Did you compare that photograph to the photograph that's in the
4 book identifying this particular individual, Nazif Krdzic?
5 A. Yes, I did.
6 Q. And having compared the photograph with the one that is in the
7 book, which identifies this individual, are they the same?
8 A. I have to double check what's in the -- if we can take a look at
9 the one in the book.
10 Q. All right. I think we were at page 9 in the book, and that's
11 2183. First take a look at the photograph that's in e-court. All right.
12 Now we are going to go over to I think it's page 9 in 65 ter 2183. All
13 right. Did you have an opportunity to compare these photographs?
14 A. Yes, I can see that they are the same.
15 Q. And just for the record, it appears that the tape counter that's
16 indicated on both of these photographs looks like 00:03:16:05 and looks
17 like a small 0 or symbol after the 5. I think it's on both photographs,
19 If we could go to the following page in 65 ter 2183, please?
20 Sorry, just bear with me for one moment.
21 Okay. We are going to have to go two pages beyond this page.
22 All right. There we are. Wait, that's page 12 for the record.
23 Can you tell us what is depicted in this photograph?
24 A. This is a photograph of Ramo Osmanovic, and he is in Sandici
25 meadow. We've seen this on the Petrovic video on July 13th, in the
1 afternoon, and the video footage, you see him calling out for his son
3 Q. And can you tell us anything about the individuals that are
4 behind him on the right side of the photograph?
5 A. Right. You see a man holding a rifle over his shoulders, and
6 the -- these were both -- these were police, both PJP and Special Police
7 that were guarding the men who had surrendered down to Sandici meadow on
8 that day.
9 Q. You mentioned something about his son, Nermin. Can you tell us
10 about him? What does the investigation reveal concerning him or what do
11 you know about him?
12 A. We never see him surrender, come down, in the video footage but
13 from -- well, from his mother's statement, he is missing and then in --
14 later in the investigation, we have discovered that his remains were
16 Q. I'd like to show you -- well, we can see on this document first
17 that he was identified, that is, Ramo Osmanovic was identified by his
18 wife and identified by a neighbour in their respective statements to the
19 OTP in June of 2000. Have you had an opportunity to review those
21 A. I've read those statements.
22 Q. Okay. And are they consistent with the information that you've
23 otherwise learned concerning the identity of the individual depicted in
24 this photograph?
25 A. They are consistent.
1 Q. I'd like to show you 65 ter 6789, please.
2 What I'm showing you, you can see from the heading, is a Tuzla
3 AID, Agency for Investigation and Documentation, statement. Have you had
4 an opportunity to review this one?
5 A. I've read this one, yes.
6 Q. And in this particular statement, a person by the name of
7 Kemal Osmanovic identifies himself as a cousin of Ramo Osmanovic; is that
9 A. Correct.
10 Q. And do you know if this statement was the subject of
11 Pasaga Mesic's testimony concerning the identification of Ramo Osmanovic?
12 A. Yes, it was.
13 Q. Okay. I'd like to -- and also let me ask you, since we are on
14 the topic, is it listed in the index of statements concerning the
15 identification of Ramo Osmanovic?
16 A. Yes, it is.
17 MR. VANDERPUYE: All right. Mr. President I'd like to offer this
18 statement into evidence. I see that it does have a translation.
19 JUDGE MINDUA: [Interpretation] It will be admitted,
20 Mr. Prosecutor.
21 THE REGISTRAR: As Exhibit P1365, Your Honours.
22 JUDGE MINDUA: [Interpretation] Thank you, Mr. Registrar.
23 Mr. Prosecutor, please continue.
24 MR. VANDERPUYE: Thank you, Mr. President.
25 Q. I'd also like to show you -- well, if we could go to the next
1 page in 2183, 65 ter 2183, that should be page 13, all right. Have you
2 had an opportunity to consider or determine, I should say, the status of
3 this individual?
4 A. Yes, I have.
5 Q. For the record, his name is Ramo Mustafic, and it indicates in
6 this exhibit, on this page, that he was identified by Pasaga Mesic during
7 his Rule 65 testimony on 9 July 1996. There is no indication of any
8 other identifying criteria or features for this individual. Have you had
9 an opportunity to review anything that confirms this identity --
10 identification, rather, made by Pasaga Mesic?
11 A. Yes. There is at least one statement that Pasaga Mesic referred
12 to from 1996.
13 Q. I can show you 65 ter 6789, please. Just a moment. All right.
14 6787, I'm sorry. This is another statement from the Tuzla AID, and it's
15 made by a person named Ramiz Bektic, and you can see from this
16 statement -- and it's in the -- well, it's near the last -- it's
17 second-to-last paragraph in the middle of that, he refers to himself as a
18 relative of Ramo Mustafic. Have you had an opportunity to review this
20 A. Yes, I have.
21 Q. All right. And in this photograph -- in this identification,
22 I should say, rather, he identifies Mustafic as a person in a photograph
23 marked with the letter "P" and marked as number 23. Did you have an
24 opportunity to look at that photograph?
25 A. Yes, I have.
1 Q. And is it consistent with or is it the same photograph, I should
2 say, as what we have on page 13 of the book?
3 A. Yes, it is.
4 Q. All right. And it's included as part of this exhibit, is it?
5 A. It's part of the book, part of his testimony, the exhibits to his
7 Q. All right. What I'd like to do --
8 MR. VANDERPUYE: Well, I'd first like to tender this document
9 into evidence, Mr. President.
10 JUDGE MINDUA: [Interpretation] Just a minute, Mr. Prosecutor, the
11 Trial Chamber needs to deliberate on this.
12 [Trial Chamber confers]
13 JUDGE MINDUA: [Interpretation] So the Trial Chamber has decided
14 to have this document admitted.
15 Mr. Registrar.
16 THE REGISTRAR: This will be Exhibit P1366.
17 JUDGE MINDUA: [Interpretation] Thank you very much,
18 Mr. Registrar.
19 Mr. Prosecutor, please continue.
20 MR. VANDERPUYE: Thank you, Mr. President. I just wanted to show
21 the witness page 62 in e-court, please -- 63 in e-court, please. I'm
22 sorry, it's of 2183, 65 ter 2183, page 63. All right. We can go to the
23 next page, I'm sorry. I made a mistake.
24 Why don't we try two pages before this one, please. One page up,
25 please. My apologies. One more. It's not there? It's not there, okay.
1 It's a missing page apparently.
2 All right. Let's move on. If we can go to private session,
4 JUDGE MINDUA: [Interpretation] Mr. Registrar, let us move into
5 private session, please.
6 [Private session]
11 Pages 7724-7736 redacted. Private session.
19 [Open session]
20 THE REGISTRAR: We are now in public session, Your Honour.
21 JUDGE MINDUA: [Interpretation] You may continue, Mr. Vanderpuye.
22 MR. VANDERPUYE: Thank you, Mr. President.
23 Q. If we can go to the next page, we can see here an individual by
24 the name of Ibro Huseinovic, and he's identified in this 9th March 2000
25 communication to the OTP that the we just looked at, and on the following
1 page, if we can go there, please, this is page 28 for the record, we have
2 here another person by the name of Ibro Husejnovic, who identifies
3 himself in an interview with local authorities in Tuzla on 26 January
4 1996. Now, I see that we have two different pages that are devoted to
5 this or these individuals. Can you tell us how you distinguished between
6 them in terms of their identity?
7 A. Right. There are two different Ibro Huseinovics, as you can see,
8 with different spelling, and one is the son of Aljo and I think the other
9 one was the son of Amo. And the one whose photograph you see in front of
10 you, son of Aljo, he identified himself and made a short statement to the
11 Tuzla AID at that time, and the other Ibro Husejnovic was identified by
12 the Bosnian authorities as still being alive.
13 Q. And did you compare the information that was related in these
14 statements to one another to determine or exclude the possibility that
15 they might be the same individual?
16 A. Correct. There were two different individuals, different
17 spellings of names, different fathers, I'd have to double check how close
18 they are in age as well. And there is a difference in age.
19 Q. And just for the record, is it that you're referring to the --
20 what we had on the -- on the ELMO just a moment ago, it was marked for
21 identification, the "Bosnian Muslim Photo Identification Book, Index of
22 Individuals Identified"?
23 A. Yes, I just referred to that for their ages.
24 Q. And what's the difference in age as you can determine?
25 A. Ibro Huseinovic, the one whose photo you see in front of us who
1 identified himself, he gave his date of birth of August 8, 1933, so that
2 would have made him 62 years old at the time in 1995, and the other
3 Ibro Huseinovic was -- Pasaga Mesic testified that he was 51 years old,
4 and he's the one who is the son of Amo.
5 MR. VANDERPUYE: I'd like to go to the next page, please.
6 I think we may have to duck back into private session for a moment,
7 Mr. President.
8 JUDGE MINDUA: [Interpretation] May we move into private session,
9 please, Mr. Registrar.
10 THE REGISTRAR: Your Honours, we are now in private session.
11 [Private session]
16 [Open session]
17 THE REGISTRAR: We are back in open session, Your Honours.
18 JUDGE MINDUA: [Interpretation] Thank you, Mr. Registrar. Go
19 ahead, Mr. Vanderpuye.
20 MR. VANDERPUYE: Thank you, Mr. President.
21 Q. And I'll put my question to you again, which is: Based upon your
22 experience, your involvement in the investigation concerning the fall of
23 Srebrenica and Zepa, and your familiarity with the facts and
24 circumstances surrounding those events, and having reviewed the
25 documents, as you have, concerning the identification of these
1 individuals or the update that you have made concerning their current
2 status, do you consider it, those identifications and that update, to be
3 reliable and accurate?
4 A. I do consider the identifications and updates to be reliable and
6 MR. VANDERPUYE: All right. I have no further questions for you
7 at this time. That concludes my direct examination, Mr. President, Your
9 JUDGE MINDUA: [Interpretation] Thank you very much,
10 Mr. Vanderpuye.
11 I am now addressing the Defence and I am giving the floor to
12 General Tolimir for him to begin his cross-examination. Go ahead,
13 Mr. Tolimir.
14 THE ACCUSED: [Interpretation] Thank you, Mr. President. I would
15 like to say good afternoon to everyone, including the witness, and
16 I would like this day to end as God wills it and not as I will it.
17 Cross-examination by Mr. Tolimir:
18 MR. TOLIMIR: [Interpretation]
19 Q. Ms. Gallagher, I would like to put some questions to you that I
20 believe are indicative of something that can be contested in the
21 identification process. In view of what my legal adviser has said and
22 what you have said during the examination-in-chief, I'm asking the
23 following: During the examination-in-chief, you said that a number of
24 persons identified themselves on the basis of photographs only after
25 2002, so five years after the war, in cases such as this last witness,
1 PW-14, who identified himself at the Krstic trial, my question to you is
2 this: Was this list of missing persons drafted by their closest
3 relatives or was it drafted by the authorities and organs in
4 Bosnia-Herzegovina? Thank you.
5 A. With the missing persons, do you mean the missing persons -- the
6 ICRC missing persons list or the missing persons that are from the book?
7 Q. Thank you. I'm thinking of the missing persons from the
8 documents that you used in order to make this identification book and
9 several times you mentioned that some people identified themselves, such
10 as this person called Ajo and another person with the same name and so on
11 and so forth, like Muriz, I'm mentioning the names, I'm not mentioning
12 the last names because I don't know who is a protected witness and who
13 isn't. So I would like you to tell me who reported the missing persons
14 to the ICRC or other organs whose sources you used in your own work?
15 Thank you.
16 A. My sources came from the ICRC list, from the Srebrenica missing
17 persons list, which is gathered from the ICRC list, and then of course
18 those who have been identified from the ICMP list as well as the
19 statements that are a part of this book. In terms of those that have --
20 in terms of who ICRC got their names from, I think that comes from a
21 multitude of places and probably an ICRC person can explain it in more
22 detail than I can, but certainly some of it is going to be relatives that
23 have reported that they have a missing person, that they have a loved one
24 that's missing. Reading the Pasaga Mesic testimony, he and the police in
25 Tuzla went around to the refugees in the camps in Tuzla trying to find
1 out who was missing and showing photographs to those in the camps shortly
2 after Srebrenica.
3 Q. Thank you. In your answer you mentioned Pasaga Mesic. Could you
4 please tell the Trial Chamber who this Pasaga Mesic is and did he need
5 five years to take somebody off the missing persons list? Thank you.
6 A. Yeah. He was the chief of police in Tuzla, and as far as I'm
7 aware, his involvement was strictly or primarily in 1996. The next
8 grouping of statements that the OTP received was in the year 2000. So
9 during that time, it was a time period where remains were found, ICMP was
10 involved with lists, so, yeah, obviously there was a change of who was
11 missing throughout the course of the years and still continue to change
12 even now, each time we get an ICMP list there is more people that are
14 Q. Thank you, Ms. Gallagher. Are you able to tell us if you looked
15 into whether the Muslim authorities deliberately kept people on the
16 missing persons list even if they were alive, and were you able to
17 determine exactly how many such cases were there?
18 A. No. That was certainly much beyond the scope of this book.
19 I was looking to see the status, whether they were alive, still missing,
20 or their remains have been found.
21 Q. Thank you, Ms. Gallagher. Earlier you said that Mr. Pasaga Mesic
22 worked in the police. Are you aware that the police stations have a list
23 of all reported persons lists by the residence, by social benefits,
24 taxes, unemployment status, things like that? Did -- was he in a
25 position to identify and find people on the basis of those lists or was
1 he forced to wait for people to identify themselves just like this Ajo
2 did when he identified himself? Thank you.
3 A. I'm assuming, and this is my assumption just based on his
4 testimony and what was happening at the time, there was, you know, many
5 of the refugees, thousands of them, came to Tuzla, and so they were
6 displaced from their local homes and towns where lists might exist at
7 that time. I think many of the refugees were -- went to many different
8 places and temporarily for years as well, so I don't know how easy it was
9 to access any stable and permanent steady information on them.
10 Q. Thank you, Ms. Gallagher. Did you look into whether the
11 authorities in Bosnia and Herzegovina kept alive persons on these missing
12 persons lists for seven years, right until the time that they themselves
13 came and asked to be taken off these lists? And why do you think they
14 did that?
15 A. I have no --
16 Q. And what happened in the meantime?
17 A. I have no knowledge of this.
18 Q. Thank you, Ms. Gallagher. Could you please tell me if the OTP
19 investigated the fact that a large number of persons, including people
20 who were alive, were placed on these missing persons lists only in order
21 to show the international community that a large number of people were
22 casualties in the Srebrenica and Zepa enclaves?
23 A. I've never heard of such a thing.
24 Q. Thank you. Did you hear that the president of the commission for
25 finding missing persons, this year, at press conferences, publicly stated
1 that he had established that more than 500 persons were being kept on the
2 missing persons list? Are you aware of this? Did the Prosecution
3 perhaps investigate this claim?
4 A. No, I'm not very knowledgeable of this claim, and certainly as
5 far as I know, no one from our team has investigated such a claim.
6 Q. Thank you. And Mr. Tokaca, the president of that committee for
7 missing persons, did he inform officially the Prosecution and furnish
8 them with a list with 505 persons on it that had been listed as missing
9 persons and are now being reported as being alive? Actually, the figure
10 is over 200 people. Did the Prosecution look into that or receive this
12 A. Once again, I'm not very knowledgeable of this list or the
13 context of it, so I can't answer this.
14 Q. Thank you, Ms. Gallagher. Did you investigate when this list of
15 missing persons was verified last time, when was it updated and verified?
16 And after that, was the OTP informed of this verification? Thank you.
17 A. Are you referring to the ICRC list of missing persons?
18 Q. Thank you. Yes, this is what I'm asking you. When the list was
19 updated for the last time, are there any persons that are still alive
20 still on that list or is it only the deceased or persons or -- that are
21 considered to be still missing on the list and was this OTP officially
22 informed of this last updating?
23 A. The last list that I'm aware of of missing persons by the ICRC
24 was in 2009, and that's a list of those that are still missing. Now,
25 since ICMP has updated their list as of February, there will be some
1 people on that 2009 ICRC missing list whose status has changed now to
2 have been -- to being identified. And when I say "identified," their
3 remains have been identified.
4 Q. Thank you, Ms. Gallagher. Are you able to tell the Trial Chamber
5 if you had looked at this list dated February 2009, and were there any
6 persons on it that are alive and that had only then been taken off the
7 list because it was found that they were alive? Thank you.
8 A. None of the people in this book that were missing in February
9 2009 have identified as having survived. The seven that you see in this
10 book are the seven that survived back in 1995. I haven't gone through
11 the ICRC list to identify, that's quite a large list, to identify who
12 is -- who may have survived, if any, from that list.
13 Q. Thank you, Ms. Gallagher. Since Mr. Tokaca is the president of
14 the State Committee of Bosnia-Herzegovina for Finding Missing Persons,
15 this year took 205 persons off the list and announced that these persons
16 were alive and that he had informed this Tribunal and this Court about
17 it, did anybody in the OTP check whether those persons were on the
18 missing persons list from Zepa and Srebrenica at the time when judgements
19 were passed on persons who at that time were convicted of crimes in those
20 cases? Thank you.
21 A. I can't answer that question. What I can answer is that those
22 that were missing from this book, I looked and verified from the missing
23 persons list, the ICRC list, from 2009, and from that list then compared
24 it to the ICMP to see if there had been any change of status, and from
25 what you can see from the index, there were four that remained from this
1 book on the missing persons list, the ICRC list.
2 Q. Thank you, Ms. Gallagher. Based on your answer, my next question
3 to you is this: Since you are an OTP investigator, are you going to
4 investigate and take off the list the number of missing persons in this
5 case, since this is now a different number that Mr. Tokaca announced from
6 the number which was cited in the indictment and which is used in the
7 source material that you based your work on? Thank you.
8 A. As an investigator, I'm not going to be updating the ICRC list
9 and changing what's on the list. I certainly will look at the list and
10 when it is being updated by other sources, change any findings that
11 I would have, would find, in the book.
12 Q. Thank you, Ms. Gallagher. Based on what you just said, my next
13 question is: Was the -- were the number of persons who were alive
14 identified by this Tribunal or was this done by authorities in Bosnia and
15 Herzegovina, and do you know if there are still people who are alive on
16 that missing persons list? Thank you.
17 A. I don't know the answer to that question. I can only refer to
18 this book. Those that were cited in the book from the video, I've been
19 able to verify if they are still missing, so they are still on this 2009
20 missing persons list. If they were not still missing, I have updated
21 their status, as you saw from the index, and certainly if it had turned
22 out any of them had survived, I would have updated that as well but that
23 was not the case.
24 Q. Thank you. Are you able to tell us whether the OTP and you, as
25 an investigator, update your data after receiving the latest information
1 from organs from Bosnia and Herzegovina, or do you wait for a certain
2 period of time before updating that data? And before this is approved by
3 the ICRC?
4 A. It's probably a better question for a demographer. I don't know
5 when -- how quickly information is updated and dispersed to the OTP once
6 it comes in from ICRC or ICMP. As I mentioned, I can base what I've done
7 in this book from information that came from ICMP in February 2010, and
8 in terms of ICRC it's in 2009.
9 Q. Thank you. In view of what you said, that you updated this only
10 in 2010, in your estimate, do you think that it would be possible, by the
11 time the trials are completed of all the accused before this Tribunal,
12 that the number of missing persons will be established definitely in view
13 of the position of the International Committee of the Red Cross and the
14 Bosnian authorities? Thank you.
15 A. As an investigator, it's a bit of speculation on my part. I'm
16 not a -- once again not a demographer to answer it accurately, but as you
17 can see from lists that are coming in from ICMP, throughout the year,
18 more and more people are being identified every time. I don't know. But
19 otherwise I can't answer that question. I don't know.
20 Q. Thank you, Ms. Gallagher. Please, on page 46, 47, 48, 49, and 50
21 of today's transcript, you said that how on the basis of DNA you
22 established when and how certain persons went missing, and then the
23 Prosecutor asked you about Mr. Bajazit. He asked you how come that in
24 one place he's reported as being 35 and in another place he's being
25 reported as 37. Are you able to account for this discrepancy? Thank
2 A. Certainly if there were another person by the same name, with the
3 same father's name, and near the same date of birth, then that would be
4 difficult. I wouldn't make such a -- I wouldn't say that they had --
5 that you could identify him. But in this case, where there is only one
6 person by that name, with only that one father's name, and missing from
7 Srebrenica at that time and place in July of '95, and the age is pretty
8 close, it's unlikely it can be anyone else.
9 Q. Thank you, Ms. Gallagher. As you have now said that there is a
10 possibility that in one generation that died in Srebrenica, there is
11 several people with one name, and that names are given in a hereditary
12 manner, people are named after relatives --
13 JUDGE MINDUA: [Interpretation] Excuse me for a moment,
14 Mr. Tolimir, I'm not hearing interpretation into French. What is
15 happening? Please go ahead, Mr. Tolimir.
16 THE ACCUSED: [Interpretation] Thank you, Mr. President.
17 MR. TOLIMIR: [Interpretation]
18 Q. My question is, Ms. Gallagher, since you have just said what you
19 have said, I am asking you whether names that are given after family
20 members, in the family who are dead or alive, in a generation of persons
21 killed in Srebrenica, there were several persons with the same name and
22 of the same birth year, how did you establish in that case whether -- how
23 did you identify that person? Thank you.
24 A. From the book, there was actually only one person that that
25 happened to, and that was Salihovic, and the issue with that is that
1 there were three men with his same name, and there was an unknown
2 father's name in the witness statement. So, therefore, it's possible it
3 could have been any one of these three Salihovics. So in that case, he's
4 not -- he's not been identified as being from a particular location.
5 However, all the Salihovics had been identified by ICMP, so it's safe to
6 say that he is one of those three, but you cannot determine which site
7 his remains were found at. With the father's name, that would be
9 Q. Thank you. And for you as an investigator, and your colleagues,
10 would this be a problem when trying to establish whether a person was
11 executed or lost his or her life in combat activities because it's not
12 possible to establish the place and manner of this person's death? Thank
14 A. Well, in this case, all the Salihovics that had been reported
15 missing had been located at a mass grave, so it doesn't pertain to this
16 example. We can establish his manner of death. What we can't establish
17 is which grave site -- which of the three grave sites he was found at.
18 Q. Thank you. If you cannot establish in which of the three grave
19 sites it was found, how can you establish whether a person was killed
20 point blank or were the person lost his or her life during the column was
21 trying to break through? So how can this Court establish how some of
22 these Salihovics were killed?
23 A. With the three Salihovics with the same first and last name, they
24 were -- all three of them were found at a mass grave and thereby those
25 mass graves are linked to three different execution sites. So these --
1 all these Salihovics were executed. In the book, this particular
2 Salihovic, we don't know which execution site he was executed at. It is
3 one of those three, and his remains were found at one of those three mass
4 graves. We just don't know which one.
5 Q. Thank you. Did you investigate whether in these mass graves they
6 were buried after the bodies were collected from the battlefield? I mean
7 the bodies of other persons who had lost their lives in combat
8 operations? Thank you.
9 A. I think that the anthropologists, archeologists are better ones
10 to answer that than myself. What you can see, at least from the book and
11 the men that we have viewed as missing, such as the one with the autopsy
12 report that we saw, you see an elderly man in civilian clothes who ends
13 up in a mass grave in Kozluk with bullet wounds, some of them to his back
14 and one to his head, and there is no weapons you see on him or on him as
15 part of the autopsy report, so I think from that you can make your own
16 conclusion. He does not appear to have died on the battlefield.
17 Q. Thank you. Thank you.
18 JUDGE MINDUA: [Interpretation] Please excuse me, Mr. Tolimir.
19 I think that it's the time to make the break, if you don't mind. And if
20 not, it is now 1752. We will now take the break and we will stop the
21 proceedings until 6.20 p.m. So we take the break now.
22 --- Recess taken at 5.52 p.m.
23 --- On resuming at 6.21 p.m.
24 JUDGE MINDUA: [Interpretation] We are continuing. Mr. Tolimir,
25 the floor is yours.
1 THE ACCUSED: [Interpretation] Thank you, Mr. President.
2 MR. TOLIMIR: [Interpretation]
3 Q. Ms. Gallagher, before we took the break, you said that no weapons
4 were found in mass graves. My question on the basis of this is the
5 following. Would the opposing side bury the weapons together with the
6 remains of their fighters? And was there a single instance in which
7 weapons were found beside the bodies in mass graves?
8 A. Actually, what I said -- I was using the particular example of
9 Mesa Efendic and that no weapon was found on him or with him. And
10 I can't really answer whether the Bosnian Serbs would bury Muslim men
11 with weapons in the grave or not, or why they would do so or would not do
12 so. I think the majority of the reports I've read, there are not weapons
13 found in the grave, but I would not hazard a guess whether there may have
14 been one.
15 Q. Thank you. I asked you on the basis of what you said, that the
16 weapons were not found. Now I'm asking you this: Do you know that the
17 anthropologists and pathologists said that they could not determine the
18 distance from which a bullet was fired if it was fired from a greater
19 distance than one metre, so that it is not known whether the bullet was
20 fired from a greater distance or from a distance that is just greater
21 than one metre? Thank you.
22 A. Whether I know this or not, no, having seen the -- how the
23 remains, they look in the mass graves from the photographs and from the
24 mass grave I've been to, they are generally fairly decomposed to be able
25 to ascertain how far away a bullet - this is my assumption - how far away
1 a bullet or a gun would have been from the person.
2 Q. Thank you. This is why I'm asking you that, because during the
3 examination-in-chief, you said that you carried out some identifications
4 on the basis of the wounds which you saw and I can remind you where you
5 said that, if you cannot remember. Can you remember that? Thank you.
6 A. The identifications were not on the basis of the wounds. My
7 confirmation of the identifications came from the -- from the statements
8 and from the ICMP list and yes, I looked at the autopsy reports and any
9 photographs to help corroborate that.
10 Q. Thank you. Are the autopsy reports also reports that describe
11 how the injuries came about and do they include the description of the
12 wounds and so on? Thank you. Yes or no, thank you.
13 A. They will say if the injuries come from a gun, where the injury
14 is on the person.
15 Q. That's right. And didn't you say that you used autopsy reports
16 when establishing someone's identity? Do they contain anything else
17 apart from a description of the wounds and injuries? Thank you.
18 A. Yes. They will also, if they can identify anything about the
19 person, they will identify the clothing, what remains do exist, if there
20 is anything found with the body, if there is, you know, teeth, hair,
21 et cetera, so they will describe the body as much as possible from what
22 they can see.
23 Q. Thank you. On pages 46, 47, 48, and 49 of the transcript, from 1
24 to 17 you said that seven of the persons of the 33 whom you identified,
25 you said that seven survived and that some were identified through the
1 international commission and that four persons are still recorded as
2 missing. Does it follow from this information that of the persons whom
3 you identified, more than 50 per cent were identified on the basis of
4 DNA? Thank you.
5 A. Yes, that their remains were identified based on DNA.
6 Q. Thank you. Is the identification on the basis of DNA valid when
7 it is possible to identify somebody on other bases as well, on bases
8 which are exact? Thank you.
9 A. I'm not sure what you mean by "on bases which are exact." But do
10 I think there is other means of identifying somebody other than DNA, yes,
11 but DNA is obviously a very good way of doing so.
12 Q. Thank you. When on page 46 or 47 of the transcript,
13 Mr. Vanderpuye, during the examination-in-chief, asked you the following,
14 why there is a discrepancy when determining the years, for example, 37 or
15 35, in case of Bajazit. And he asked you, I quote, whether discrepancy
16 affects the identification procedure. And you said, no, this does not
17 affect it.
18 Can you please explain to the Trial Chamber how come that it does
19 not affect it? Thank you.
20 A. In this example, there is only one person by that name, by that
21 father's name, who was from the Srebrenica municipality, who went missing
22 at that time, shortly after the fall of Srebrenica, and who was in that
23 close age range. So in that example, there is no other one even
25 Q. Thank you. Further on in the response to Mr. Vanderpuye's
1 question you said that the age is different because relatives didn't know
2 the exact age so they would report different dates of birth. Are, then,
3 the date that is correct those on the basis of DNA from ICRC or those
4 provided by the relatives who gave statements about the missing persons?
5 Thank you.
6 A. The dates of birth that the ICMP used in their -- from their data
7 that is on my index, are dates of birth that they received from those
8 that -- relatives that they took samples of DNA from in order to do the
9 match with the remains.
10 Q. Thank you. And if DNA samples are taken then they are taken from
11 close relatives, such as the father, the mother, the sister, or a
12 brother. Is it possible that the brother, a mother, and a sister does
13 not know when their closest relatives were born for which they give DNA
14 samples and that the ICRC knows that better than them? Thank you. Not
15 the ICRC but rather the ICMP. This was a correction from my legal
16 assistant. Can it know this better than the close relatives? Thank you.
17 A. Yes, ICMP is gathering its samples from close relatives and
18 apparently from -- we see that there are some close relatives that don't
19 know the exact dates of birth or certainly they were not relayed --
20 correct dates of birth were not relayed to ICMP.
21 Q. Thank you. Please tell us whether DNA samples were taken from
22 persons who were not the closest relatives, like, for example, uncles,
23 cousins, or somebody else, and that they didn't know that if these
24 relatives were not just once removed but further removed from this
25 person? Thank you.
1 A. First, if I can just back track, I didn't mean to say correct
2 dates of birth because I think these are fairly correct dates of birth.
3 I meant exact dates of birth. So they are sometimes not at all exact.
4 Yes, I know they are trying to -- they do take DNA samples from the
5 closest relatives. In some occasions, I don't know how far -- how
6 distant that goes from immediate family, and I think it would be better
7 for someone from ICMP to answer that for you.
8 Q. Thank you. Did you, as an investigator of this Prosecutor's
9 office in this Tribunal, try to establish whether there were any cases in
10 which DNA data was taken from relatives who were not just the relatives
11 who were once removed? Thank you.
12 A. Regarding this data for the missing -- the photo identification
13 book, I don't know which sources they took their DNA samples from. I
14 don't know if they're daughters, sisters, uncles, aunts, that's not
15 information that I know, in terms of being able to compare and look to
16 see if they are on the ICMP database.
17 Q. Thank you. Can you please tell us whether the Defence or this
18 Trial Chamber can review the database of the relatives who gave the
19 samples for the DNA analysis and, on the basis of that, establish its
20 validity through their experts? Thank you.
21 A. I'm not sure what ICMP releases, and what specifically has to be
22 requested. I can answer for myself. I haven't seen the data as to who
23 exactly they received the samples from in these identifications. So once
24 again, I would defer to someone from ICMP on this one.
25 Q. Thank you. I asked you that because you're an investigator and
1 would you have to know that, on -- you cannot determine the DNA on the
2 basis of random data. My next question has to do with data which you
3 mentioned on pages 42 and 43 in lines 1 to 14 and page 44 to 45 during
4 the examination-in-chief. If you remember, this had to do with a photo
5 identification of Bosnian Muslims based on the table which was presented
6 in the courtroom, the dates of birth, the father's name, and so on. You
7 then said that on the basis of that, you made certain identifications.
8 As for the data which you extracted from the document, such as the list
9 of the ICMP and other international and domestic commissions, did you
10 ever compare these documents and try to determine the identification
11 through the close relatives of the missing persons? Thank you.
12 A. I'm not sure I understand your question. Is it that did I go
13 to -- did I interview the relatives of the missing persons?
14 Q. Thank you. Perhaps you might understand me now. The 65 ter 787
15 was presented here as an exhibit on page 38 of the transcript. It is a
16 Prosecution document. And in connection with that you said that Ramiz
17 Bektic said that his relative Ramo Mustafic was recognised by him on
18 photograph number 23, page 13 of your book. This is my question: Is
19 this more valid than if he had been recognised by a closer relative who
20 also gave a DNA sample rather than having a distant relative recognise
21 the man from a photograph? Do you understand me now? Thank you.
22 A. I mean, in this circumstance you had a -- I think it was a
23 distant relative recognise Ramo Mustafic and then at the same time Ramo
24 Mustafic was identified through DNA by the ICMP so you have -- you have
25 both identifying Ramo Mustafic and then the ICMP confirming his status,
1 where his remains were found. I'm not sure if that answers your
3 Q. Thank you for your answer. I asked you why distant relatives
4 would give DNA samples and why this would be taken as more valid
5 information than DNA samples taken from closer relatives. My following
6 question has to do with witness PW-14, for whom you said it was the boy
7 who was called by his father, you said that he was only identified in the
8 Krstic trial in 2004. Can you please tell us whether you know when he
9 registered his identity and why he had been registered for nine years as
10 a missing person? Thank you.
11 A. Just to go to the top part of your question, I would not say that
12 distant relatives giving DNA samples would be better than closer
13 relatives giving DNA samples. As for the boy, Witness PW-114 [sic], I
14 don't remember when he was first interviewed. I certainly know it was
15 before he testified in 2004. I'd have to find that out to see.
16 JUDGE MINDUA: [Interpretation] Just a minute, please. I think
17 that there is a problem with the transcript. On page 75, in line 6, this
18 has to do with Witness PW-14, rather than 114. Correct, Witness?
19 THE WITNESS: Correct. I actually don't know his PW number, but
20 I am basing it off of the question of PW-14.
21 JUDGE MINDUA: [Interpretation] All right. Mr. Tolimir, please
23 THE ACCUSED: [Interpretation] Thank you, Mr. President.
24 MR. TOLIMIR: [Interpretation]
25 Q. Thank you, Ms. Gallagher. In line 17 and 16, you talked about
1 the remains of Mesa Efendic. This is the autopsy report. And you said
2 that the -- used the clothing, the appearance of the clothing, as
3 identification. Can you please tell me whether this constitutes evidence
4 and whether it's possible that in one town, a number of people wear the
5 same clothing? Thank you.
6 A. The identification was made in many ways, once again, by the
7 name, the father's name, his age, date of birth, that he was from
8 Srebrenica, that he disappeared at this time, that his -- that his
9 remains were identified by DNA in a mass grave. It's the autopsy report
10 that adds additional information and corroboration that he's wearing a
11 white shirt, white button-up shirt or light coloured button-up shirt and
12 a red, short sleeve cardigan. It was used as corroboration on this point
13 and not the sole means of his identification.
14 Q. Thank you, Ms. Gallagher. On page 20, you were asked by the
15 Prosecutor if this was acceptable and if it had probative value, if
16 something was not complete. That's what you said. And that that would
17 not be admitted or included as part of the documents. Are there any
18 unreliable or incomplete details that were included in the autopsy report
19 comparison with photographs, parts of clothing? Is this something that
20 is reliable and credible? Thank you.
21 A. I didn't make any comment about the autopsy reports being
22 acceptable or probative in value. In answer to your question, the
23 autopsy report adds information to the information that we already had,
24 as I mentioned, with Mesa Efendic. We have many means that he's already
25 identified. The autopsy report tells you how he was killed, by what
1 means, where his body was found, and also in this case, since you can see
2 his clothing, what clothing he was wearing when he was killed.
3 Q. Thank you. In view of that, my question is: Why did you carry
4 out the identification on the basis of body parts and DNA on the basis of
5 which you cannot carry out recognisable identification but you can only
6 do that with the use of documents? What did you take as your identifying
7 criteria? Thank you.
8 A. Initially the identification is coming from the witnesses, the
9 statements, the relatives, neighbours, friends, et cetera, who last saw
10 them and have not seen them since. Then more identification of course
11 came through the DNA taken from relatives and have been matched with the
12 remains found in the graves. I have to rely upon ICMP data and ICMP
13 professionals. They are the experts. And that's the only way that
14 I could move forward in confirming the identifications. And I consider
15 ICMP to be -- and DNA to be quite reliable.
16 Q. Thank you, Ms. Gallagher. On page 10 of the transcript, up until
17 page 12, and then again on page 22, lines 1 to 15, you talk about
18 identification on the basis of police reports collected in Tuzla, and you
19 mentioned the name of that person, I'm not going to mention the name, I
20 don't know if it's a protected person or not, but you did say that his
21 name publicly when you said that he identified Sefko Mujic and others.
22 I would ask you this now: Why did you carry out identification
23 on the basis of police reports, and is it possible for those police
24 reports to contain errors due to the fact that people were not informed
25 enough about events, did not have reliable data, but could -- somebody
1 could have perhaps provided data, second-hand data, to the police?
2 A. It was based on the investigation at the time in 1996. People
3 were shown photographs of the men and they were identified by the
4 photographs and statements were taken. And as you see, in the majority
5 of these identifications, more than one person has identified the person
6 by a photograph. And as you see in many of them, they were close
7 relatives who identified the person. Is there room for error? Of course
8 there is. And you do see in this book that there was a mistaken identity
9 made on a man, and they learned of it, discovered it, and corrected it.
10 In terms of the review that I've done of what's in the book, I'm very
11 confident that these identifications are accurate.
12 Q. Thank you. You said a number of times that the identification
13 was confirmed by the police inspector from Tuzla, his initials are PM.
14 I'm not going to mention his name because I don't know if he's a
15 protected witness or not. Why would his identification be more important
16 than identifications carried out by immediate family members, closest
18 A. He's not the one that is making the identifications. I presume
19 he probably doesn't know all these people. He and his employees, other
20 police, at the time, were interviewing relatives, friends, neighbours,
21 anyone who could identify any of the men in this book. So he himself was
22 not making the identities -- identifications. He was basing -- when he
23 testified, he was basically speaking on behalf of all the witnesses who
24 had made statements and who had done the identifications, but his
25 identifications are based off of witness statements that are in the book.
1 Q. Thank you. Can you look at page 7 of the transcript, please?
2 Lines 16, you showed a table or a chart of Muslims from Bosnia that are
3 listed as missing and you said that the identification was carried out by
4 such and such a person, so and so, so and so, and PM. I am just naming
5 his initials. I don't know why and how he could have carried out the
6 investigation -- the identification for 30 persons that are listed in
7 that part of the report. Thank you.
8 A. I'm not sure I'm able to look at page 7 of the transcript.
9 Certainly I know that he himself was not making the identifications, and
10 I certainly never implied that. His -- when he has listed in the book,
11 he's making an identification based on the witnesses who actually did the
12 identification. He himself is actually not making the identification.
13 He testified to the fact that relatives, neighbours, friends, were making
14 the identifications, so instead of bringing all of those people into the
15 Rule 61 hearing, he spoke on their behalf.
16 Q. [Microphone not activated]
17 THE INTERPRETER: Microphone, please.
18 MR. TOLIMIR: [Interpretation]
19 Q. Thank you. It's very important for the Trial Chamber to know
20 what you have just said, that he was actually speaking on behalf of the
21 relatives. This is page 7, line 16 onwards, and that is page 30 of your
22 book that you are presenting here.
23 I would have a few more questions but in any case, thank you,
24 Ms. Gallagher, for the explanations that you provided regarding the book
25 that you are presenting and these 33 persons. Thank you to everybody who
1 was following us. Thank you to the Trial Chamber. The Defence has
2 finished with its cross-examination and we thank everybody. Thank you.
3 JUDGE MINDUA: [Interpretation] Thank you very much, Mr. Tolimir
4 for your cross-examination. Judge Nyambe has a question.
5 JUDGE NYAMBE: On page 77 lines 1 and then going into 78, lines 1
6 to 3 you say that:
7 "Is there room for error? Of course there is. And you do see in
8 this book that was a mistaken identity made on a man."
9 How exactly was that error made, do you know? Thank you.
10 THE WITNESS: It is explained in the book but someone who the --
11 who Pasaga Mesic had interviewed had stated that it was a different
12 person, and when he testified, he didn't have any other information at
13 that time, and then stated that it was that person, and it was only later
14 that the Bosnian authorities had discovered -- have to check -- that
15 he -- that that person was still alive and that it was a mistaken
16 identity. I still have not determined who that person is, but they
17 discovered the error and it then was amended in this book, so that
18 everyone knew that there was an error made at the time in 1996, but it
19 was a witness who thought the person was somebody else.
20 JUDGE NYAMBE: How did it come to be realised that this person
21 was not the person being referred to?
22 THE WITNESS: If you don't mind, if I can check the book, I think
23 it says that he was found alive, but I'd have to check whether he
24 identified himself or somebody else said that it was him. Just a moment.
25 So it's in annex 6 of the book, and it's number 20, it's the name
1 of a Mustafa Mucinovic. And what it said is, this is from the Bosnian
3 "By additional checking it was concluded that the person on the
4 photograph number Z37 was falsely identified, meaning that it is not
5 Mucinovic, Mustafa. By operative work we shall try to identify the
6 person on the photograph."
7 And as far as I'm aware that person was never identified. So
8 actually that's all that I know of that mistaken identity. But just to
9 be clear, he is not in the book for that reason. He's not somebody who
10 is identified.
11 JUDGE NYAMBE: Thank you.
12 MR. VANDERPUYE: Your Honours, I --
13 JUDGE MINDUA: [Interpretation] Mr. Prosecutor, please go ahead.
14 [No interpretation].
15 It was just to alert the Court that the page reference the
16 witness was referring to was page 63 I think it was in e-court -- 65 in
17 e-court. It's Exhibit 2183, 65 ter 2183, and maybe it would be helpful
18 to actually see what she's referring to but that's the only reason I'm on
19 my feet at this time.
20 JUDGE MINDUA: [Interpretation] Judge Nyambe has finished with her
21 questions, and I would like to know whether the Prosecutor has more
22 questions and how much time do you need for that?
23 MR. VANDERPUYE: I do, Mr. President. I wanted to point that out
24 because I see that General Tolimir has concluded his cross-examination in
25 anticipation of the time, but I do have redirect examination which will
1 take us into another day, maybe Wednesday, maybe another day. In any
2 event. So if he's not finished putting his questions to the witness,
3 with the Court's leave, I would invite him to do so to his satisfaction,
4 just so that it's clear for the record that he's actually completed what
5 he wanted to complete, after which I can follow with redirect
6 examination. And if it is the case that he's already finished, then
7 I would propose to conduct re-examination on another date.
8 JUDGE MINDUA: [Interpretation] Exactly, General Tolimir has
9 completed his cross-examination and that is what he said. It is now
10 7.00 p.m. It's time for us to finish the hearing for today.
11 Mr. Vanderpuye, you say that you intend to put your questions as
12 part of your redirect. This shouldn't be a problem because the witness
13 is employed here. I would now like to thank her for today's
14 co-operation. Your solemn declaration, Ms. Gallagher, still applies and
15 you are not to discuss your testimony with anyone, particularly not with
16 the Prosecutor.
17 The witness may leave the courtroom. We are finished with this
18 session. We are going to reconvene at 1415 on the 17th of November in
19 this same courtroom. Thank you very much. As you know, tomorrow is a
20 holiday. I would like to thank everyone, to all those who assisted us in
21 our work today, who helped for us to complete today's hearing
22 successfully. Thank you.
23 --- Whereupon the hearing adjourned at 7.03 p.m.,
24 to be reconvened on Wednesday, the 17th day of
25 November, 2010, at 2.15 p.m.