Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4244

1 Thursday, 29 March 2007

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 2.22 p.m.

6 JUDGE ROBINSON: Mr. Whiting.

7 MR. WHITING: Yes, thank you, Your Honour. Good afternoon.

8 If I could just raise two very, very brief matters, administrative

9 matters.

10 The first is that, as you'll recall, a number of photographs were

11 taken during the site visit. I may want to use some of those photographs

12 during the cross-examination of Mr. Hansen on Monday. I'm wondering if

13 the Court would give us permission to go to Mr. Lesic, who took the

14 photographs, and obtain the photographs from him so that we could prepare

15 to use them on Monday.

16 [Trial Chamber confers]

17 JUDGE ROBINSON: The photographs were taken on the instructions

18 of the Trial Chamber. It is the Trial Chamber that has the control of

19 the photographs, and the Trial Chamber will therefore direct that they be

20 made immediately or, at any rate, as soon as possible available to both

21 parties.

22 MR. WHITING: Thank you, Your Honour. I'm grateful.

23 The second matter is, as Your Honours are in no doubt aware, the

24 parties have filed a combined motion to modify the Scheduling Order. We

25 are in -- we are at the moment planning the final weeks of the trial in

Page 4245

1 terms of witnesses, and so if we -- the sooner we could learn whether

2 we're going to get the four extra days that we've requested for the

3 Prosecution case, the happier we will be and the better we'll be able to

4 plan those last weeks. Because if we do not have that time, we will have

5 to start dropping witnesses, and we need to -- we need to start planning

6 that now. So I just raise that, the urgency of learning that part of the

7 motion.

8 JUDGE ROBINSON: We will give our decision by Tuesday of next

9 week. But you want four extra days, but tell me the effect of the motion

10 would have the Defence open their case how many days beyond the time that

11 the Trial Chamber had set, or weeks?

12 MR. WHITING: Well, I have to do the math. We're asking for four

13 extra days, and then we're asking for three additional -- I'm sorry, four

14 additional days of notice. So that is -- we're asking for eight, eight

15 days, and then the Defence, I believe, is asking for an additional 13

16 days, I believe. And so if you add that up, that is the --

17 JUDGE ROBINSON: About a month?

18 MR. WHITING: It ends up being --

19 JUDGE ROBINSON: That the Defence case would start about a month

20 later than the Trial Chamber had envisaged in its order.

21 MR. WHITING: I think it's a little bit less than a month.

22 JUDGE ROBINSON: A little less than a month?

23 MR. WHITING: Yeah, but that's not far from correct.

24 JUDGE ROBINSON: At any rate, we'll consider it and give our

25 decision by Monday or Tuesday of next week.

Page 4246

1 MR. WHITING: Thank you, Your Honour.

2 JUDGE ROBINSON: Now, I'll just give a decision.

3 On the 16th of March, the Prosecution filed a motion for

4 testimony to be heard via videolink. This is the testimony of

5 Dr. Sefik Beslic. The Defence did not object. In light of the

6 submissions made by the parties, as well as the law that is applicable,

7 the Chamber orders that Dr. Beslic's testimony be heard via video

8 conference link, and in that regard, the Registry must take all

9 reasonable steps to ensure that the link is established from the

10 Tribunal's Sarajevo's field office during the week of the 2nd to the 5th

11 of April.

12 Now, I turn now to the witness's evidence and to the question

13 which engaged us at the end of yesterday's proceedings. This is a matter

14 that we have been wrestling with for some time. It has to do with the

15 preoccupation of the Defence to lead evidence which relates to activities

16 by the ABiH army, which relates even to violence by the ABiH army without

17 showing how those activities of the ABiH army relate to the issue of

18 liability of the accused. How does it affect the question of criminal

19 liability?

20 And I have been asking Mr. Tapuskovic time and again to explain.

21 On some occasions, I have been satisfied. Yesterday, I asked him again,

22 and I have the transcript here in which Mr. Tapuskovic in answer to my

23 question: Is this related to any of the charges, any of the incidents?

24 And his answer was to say that the intensity of the fighting was such

25 that this was ongoing, and there were casualties on both sides. He went

Page 4247

1 on to say that this shows how many settlements in the area of

2 responsibility of the 1st Corps had been captured with fierce fighting

3 and major casualties on both sides.

4 And then I interposed another time, what does it have to do with

5 the charges? And he says: Everything that is a result of the great

6 number of casualties sustained in this area of the 1st Corps and the army

7 of Republika Srpska, all these casualties of the intensive fighting on

8 both sides. At this moment, he says: I am not going to access which

9 side more or which side less, but this was a front line, and from one

10 minute to the other, there were offensive or defence activities going on,

11 and there were casualties sustained by both sides, and the casualties

12 were primarily the result of this offensive action.

13 This is the gist of Mr. Tapuskovic's explanation as to the

14 relevance. The Chamber does not consider that this explanation provides

15 a sufficient basis for the reception of this evidence and need not remind

16 you that the basic evidential rule governing proceedings in this Tribunal

17 is set out in Rule 89(C), which allows the reception of evidence that is

18 relevant and of probative value.

19 You can forget the Latin nomenclatures tu quoque. To my mind, it

20 is really irrelevant. The essential is whether the evidence is relative

21 and probative. If it is, the Chamber will let it in.

22 It seems to the Chamber that merely to say that there was an

23 intensity in the fighting that led to casualties on both sides and that

24 there were offensive or defensive activities going on and that casualties

25 were sustained on both sides is not enough.

Page 4248

1 The Chamber is not satisfied that a link, a sufficient link, has

2 been established between this evidence, which the Defence is seeking to

3 lead, and the issues raised by the indictment. I have said on more than

4 one occasion that this is not a history class. We are not engaged in

5 writing a history of the conflict in which we want to note every and

6 everything that happened.

7 We are dealing with an indictment which has charged specific

8 violations of international humanitarian law and, even more specifically,

9 has identified 23 incidents resulting from sniping and shelling in

10 respect of which it is alleged that there was criminal conduct on the

11 part of the accused. And unless evidence which the Defence seeks to lead

12 or the Prosecution, for that matter, can be tied to the criminal conduct

13 of the accused, whether by way of incriminating him or exonerating him,

14 the Chamber will rule it as irrelevant, and we do so now.

15 We find that this evidence is not relevant, and we'll not allow

16 evidence to be led on this topic.

17 So let us move on from there.

18 Mr. Tapuskovic. Do you have something to say? I hope it is not

19 in relation to the ruling which I just gave, because I want you now to

20 continue with the cross-examination.

21 MR. TAPUSKOVIC: [Interpretation] Absolutely, Your Honour,

22 Judge Robinson. I have nothing to say in relation to what you have said.

23 I have had a sleepless night; I don't think you did. And I understood

24 full well the objection levelled at me by His Honour Judge Harhoff. I

25 will use the time left to me only to try to lead proper evidence. I must

Page 4249

1 admit that what we debated yesterday could, indeed, lead to such a

2 conclusion on your part, and I really do not have any objections in

3 relation to what you have said just now.

4 I would just like to indicate some of the evidence that has to do

5 with what actually happened, 1995. First, I dealt with general orders at

6 that particular time in time. Maybe I could have skipped them

7 altogether, but now I'm going move on to my cross-examination within the

8 time left and, indeed, I will be very direct in respect of these

9 documents.


11 Cross-examination by Mr. Tapuskovic: [Continued]

12 Q. [Interpretation] Mr. Karavelic, I have in front of me DD00-1805.

13 I have a translation which I ensured through sworn court translators.

14 Mr. Karavelic, that is an order of the command of the 12th Division,

15 Sarajevo dated the 4th of July. The document is in e-court, the English

16 version, but ...

17 MR. TAPUSKOVIC: Oh, yes, Your Honours, it's fine now.

18 Q. You see, this is the command of the 12th Division the 4th of

19 July, report on active combat activities. This report is submitted to

20 the command of the 1st Corps. Somebody signed it on behalf of the

21 commander.

22 Please, what it says here is: "With regard to your document

23 such-and-such dated 4th of July, I hereby submit a comprehensive report

24 on combat activities being carried out by the units of the 12th DKOV in

25 the area of the city of Sarajevo. In the period from 15th of June until

Page 4250

1 the 3rd of July, 1995, we operated with all types of weapons and

2 artillery pieces available to us, over VT -- 300 VT of the enemy. Out of

3 the activity carried out over VT, a large number were shot by direct

4 shots. Out of it, 36 VT to p/k was destroyed. VT are bunkers with

5 personnel PAMs, PATs, infantry weapons, preparations, dormitories, et

6 cetera.

7 "In past combat activities, we believe that we killed around 50

8 Chetniks, and far more were wounded lightly and/or seriously. We believe

9 that in past combat activities, we have destroyed two tanks, a Praga, a

10 Bovor, an armoured vehicle Glosdika," and so on and so forth. I don't

11 have to read out all of it.

12 And, particularly, I would like to draw your attention to what it

13 says at the very end: "We believe that the number of destroyed or

14 damaged VT, combat and non-combat MV, is greater because we acted upon

15 them in conditions of limited visibility at night, so we did not have an

16 opportunity to observe them entirely."

17 Mr. Karavelic, are you familiar with this report? It was sent to

18 the 1st Command; yes or no? I got this from the archive of the army of

19 Bosnia-Herzegovina. Please tell me first whether what it says here is

20 correct? Is this correct, primarily that you operated at night, that you

21 targeted all of these targets at night?

22 A. I'm not aware of that.

23 Q. You're not aware of that. But can you tell me whether it is

24 possible that you, as commander of the 1st Corps, do not know about this

25 kind a report, which shows that military positions that are within

Page 4251

1 civilian neighbourhoods are targeted during the night, dormitories?

2 A. Dormitories are military targets.

3 Q. Please just say yes or no. First of all, tell me, is this a

4 document that can be brought into question in terms of its authenticity,

5 since it was verified by your archives, the archives of

6 Bosnia-Herzegovina.

7 A. The 12th Division was one of my divisions. I had three divisions

8 in addition to that, many other independent units. On a daily basis, I

9 would receive 15, 20, 30 reports. Well, multiply that with the number of

10 days in four years. There is not the remotest possibility of me

11 remembering all of that.

12 Q. Please, this is a document that speaks of activities from

13 Sarajevo.

14 A. All divisions engaged in activity and all units every day.

15 Q. From Sarajevo that was under the control of the 1st Corps of the

16 army of Bosnia-Herzegovina, because not all of Sarajevo in the valley

17 down there was under your control.

18 A. I really don't understand this last part of your question.

19 Q. At any rate, tell me, were these activities coming from that part

20 of Sarajevo that was under the control of the army of Bosnia-Herzegovina?

21 A. Always part of the units of the 12th Division were outside

22 Sarajevo.

23 Q. I will ask you, and you have already said this to me and I will

24 repeat, your strategy was that part of these units should get out of

25 Sarajevo and operate from somewhere else, but the majority remained in

Page 4252

1 Sarajevo and engaged in activity as is related in this document; yes or

2 no?

3 A. I cannot say anything specific about this document.

4 MR. TAPUSKOVIC: [Interpretation] Your Honours, please, I

5 understand why the witness is saying no. But anyway, DD00-1805, could it

6 please be admitted into evidence as a Defence exhibit, because it is

7 directly related to incidents that occurred in this period of time. This

8 is a report that covers almost 20 days at the time when the incidents

9 occurred; that is to say, in the months of June and July.

10 [Trial Chamber confers]

11 JUDGE ROBINSON: Ms. Edgerton.

12 MS. EDGERTON: I'm not going to make any objection on this one,

13 Your Honours.

14 [Trial Chamber confers]

15 JUDGE ROBINSON: Mr. Tapuskovic, on the question of relevance,

16 would you explain the relevance of this to us?

17 MR. TAPUSKOVIC: [Interpretation] Please look at this. This is

18 June and July 1995.

19 JUDGE ROBINSON: It's not the period that I'm concerned about.

20 It's the content.

21 MR. TAPUSKOVIC: [Interpretation] Yes. The time frame, as it says

22 here, is between the 15th of June and the 3rd of July. That is 18 days

23 of daily operations from all kinds of weapons. The 12th Corps was in

24 Sarajevo, and the 12th to the 14th was out of Sarajevo.

25 JUDGE ROBINSON: But what does it have to do with any of the

Page 4253

1 incidents? Does it help to exonerate the accused? Bear in mind, of

2 course, I'm not saying there is any burden on you. The legal burden

3 remains on the Prosecution.

4 MR. TAPUSKOVIC: [Interpretation] Your Honours, is it possible to

5 endure for 20 days being fired upon without even trying to respond to

6 that? And then, of course, the consequences may be unpleasant.

7 JUDGE ROBINSON: No. This is -- this is the rub. You have

8 asked: Is it possible to endure all of that for 20 days without even

9 trying to respond? But you are not saying that that was response --

10 you're not saying that that response relates to any of the incidents.

11 Your accused, your client, rather, is charged with specific

12 criminal conduct. You're not saying that that response -- if you're

13 saying that that is responsive to -- to particular action by the ABiH

14 and, therefore, the incident charging sniping in respect of, say,

15 incident number 2 or number 3, that that explains that incident. There

16 is no liability on his part.

17 I have to say that I have been through this with you before in

18 another case. It's really a repetition. We're not writing a history.

19 If you can -- if you can say that the response of the Serb army accounted

20 for the death of one of the victims in the sniping or shelling, then of

21 course it is relevant, because they were responding properly to

22 activities or to action taken by the ABiH army. But you haven't said

23 that.

24 MR. TAPUSKOVIC: [Interpretation] Your Honours, I'm telling you

25 please look at this. There was an incident which took place on the 16th

Page 4254

1 of June, actually there were two incidents --

2 JUDGE ROBINSON: That's what I want. Let us be specific. What

3 is the incident?

4 MR. TAPUSKOVIC: [Interpretation] On the 28th of June. There are

5 numerous incidents.

6 JUDGE ROBINSON: Just a second. Incident on the 20th of June.

7 Sniping or shelling?

8 MR. TAPUSKOVIC: [Interpretation] I assert that there was no

9 intentional engagement of targets, whether they be civilians or anyone

10 else. This was merely something that had to be done and please look at

11 the incidents that took place in this period. It's another matter

12 whether these incidents -- who the perpetrators of these incidents were

13 identified, whether they have been identified or not. But look at the

14 period when these incidents happened.

15 JUDGE ROBINSON: What is the period? What's the period?

16 MR. TAPUSKOVIC: [Interpretation] The period is as it says here,

17 from the 15th of June until the 3rd of July but it was extended for

18 another month and I'm going to prove that.

19 JUDGE ROBINSON: The 15th of June to the 3rd of July. We have

20 shelling incidents 16th of June, we have three shelling incidents the

21 16th of June; one on the 18th of June; one on the 28th of June -- two on

22 the 28th of June; and one on the 29th; and two on the 1st of July.

23 Now what you're something is that -- I'm trying to understand how

24 your case is being put. Is that the -- these shelling incidents which

25 allegedly came from Serb fire were merely responsive to some activity on

Page 4255

1 the part of the ABiH. Is that -- is that what you're saying?

2 MR. TAPUSKOVIC: [Interpretation] No.


4 MR. TAPUSKOVIC: [Interpretation] I am even saying that none of

5 these incidents, especially the ones presented so far, did not result

6 from the fire from the Serbian weapons. And that is what I'm claiming.

7 Even in -- if something happened as a result of the use of arms by the

8 VRS, then it would have been something that took place during the BH

9 army's offensive while the Serbian side was compelled to defend itself.

10 Their aim was not to target the civilians or kill the civilians. All

11 these incidents took place during this fiercest offensive during this 20

12 days and onward throughout the month of July. It has not even been

13 proved that they have been committed by the Serbian side at all.

14 Therefore, the Serbs did not respond in order to retaliate and achieve

15 vengeance it was simply a case of self-defence without desire to kill

16 anyone. They only engaged legitimate targets and those were firing

17 positions that fire was coming from.

18 [Trial Chamber confers]

19 JUDGE ROBINSON: Mr. Whiting.

20 MR. WHITING: Thank you, Your Honour.

21 I just have a couple of very brief points to make and the first

22 is that I'm a little concerned just about the way the record reads in

23 terms of relevance in connection with specific incidents in the

24 indictment. Of course, we have charged specific incidents, but the

25 indictment is not limited to those specific incidents. Those are

Page 4256

1 representative incidents and we have charge of a campaign of shelling and

2 sniping and a campaign of terror. So I just wouldn't want record to

3 suggest that if a piece of evidence can't be linked to a specific

4 evidence it is therefore irrelevant, and I don't think Your Honours are

5 suggesting that but I just wanted the record to be clear about that.

6 And -- that's actually all I wanted to ...

7 JUDGE ROBINSON: Yes. That is taken for granted.

8 We will allow this evidence. We will admit the document you're

9 seeking to tender.

10 THE REGISTRAR: Your Honours, that will go in as D159.

11 MR. TAPUSKOVIC: [Interpretation] Your Honours, I'm only going do

12 deal only with this kind of documents until the conclusion of my

13 cross-examination.

14 Now, let's move to another document, DD00-1799. I also have a

15 translation provided by a sworn in-court interpreter.

16 Your Honours --

17 Q. Witness, this is another regular combat report sent to the 1st

18 Corps, and it's yet again signed by the 12th Division commander or

19 someone who signed on his behalf, and it speaks about the 1st of July,

20 1995. It says the unit is in full combat readiness. The most important

21 artillery operations were carried out against the area of the Nedzarici

22 barracks with 80 and 120-millimetre mortars. Our structure of fire was

23 designed to hamper enemy engineering works. The same purpose was the use

24 of 100-millimetre Howitzer and T55 tanks which was used twice to fire on

25 Gusica Hala. All targets were engaged with high degree of precision.

Page 4257

1 Witness, here we see that mortars were used, 120-millimetre

2 mortars, even a tank was used. Can you confirm that this actually

3 happened and that you knew that a tank was used to fire at Nedzarici; yes

4 or no?

5 A. In the first part of this document, under item 1, "aggressor", it

6 says two 120-millimetre shells hit the Oslobodenje building at 1125 which

7 signified the beginning of artillery barrage fire on the city. The

8 locations around the Presidency of the republic UN observation post,

9 transit, Jewish Cemetery, et cetera.

10 Q. I'm not talking about this. I'm asking you about your actions?

11 A. Item 2 is a direct result of item 1. Anyway, I cannot tell you

12 anything else about this document.

13 Q. Can you show me where Nedzarici are on this map behind you?

14 A. Yes, I can.

15 Q. Is Nedzarici in the inner city?

16 A. No.

17 Q. Please show me on the map?

18 A. I'm now pointing at Nedzarici.

19 Q. So next to Rajlovo?

20 A. It's far away from the airport.

21 Q. Your Honours, I would like this document also to be tendered and

22 admitted into evidence. I'm not going to comment how come that the

23 witness said no about this document that he has no knowledge, although he

24 was the commander of the 1st Corps, and the 12th Division was part of the

25 corps that he was commander of. Because what I would like to emphasise

Page 4258

1 here under "our forces," it says that fire was intended to hamper

2 engineering work. This is what it literally says. It has nothing to do

3 with the activities of the VRS, but, rather, that these actions were

4 taken in order to make engineering works impossible; yes or no?

5 A. I would just like to draw the attention of the Trial Chamber, it

6 is that questions like this would be the same as if I asked someone what

7 kind of homework you did in the 8th grade in the first week of the second

8 term.

9 MR. TAPUSKOVIC: [Interpretation] Your Honours ...

10 [Trial Chamber confers]

11 JUDGE ROBINSON: Ms. Edgerton.

12 MS. EDGERTON: No, Your Honour, at this time I don't have a point

13 to raise.

14 JUDGE ROBINSON: Well, it's an issue that affects the trial. You

15 must have a view on it. I don't understand how you can have no view on

16 the admissibility of a document. It's a strange position.

17 MS. EDGERTON: I have a view on the admissibility of the

18 document, but I didn't understand that to have been raised at this point

19 as a question or my friend to have made a request to tender the document.

20 I certainly have a view as to the admissibility of the document in this

21 case.

22 JUDGE ROBINSON: Haven't you? I thought he had asked for it to

23 be admitted.

24 Haven't you asked for it to be admitted, Mr. Tapuskovic?

25 MR. TAPUSKOVIC: [Interpretation] Your Honours, of course.

Page 4259


2 MR. TAPUSKOVIC: [Interpretation] Yes, especially because of the

3 tank that is mentioned.

4 MS. EDGERTON: I stand to be corrected. I see it now at the

5 bottom of page 14, Your Honour.

6 I have -- my view about the document, Your Honour, especially in

7 light of the additional information or evidence that Mr. Tapuskovic is

8 offering, is that it should -- is that, first of all, we should be

9 proceeding with a complete translation of the document, rather than an

10 excerpted translation of the document. You've now heard evidence from

11 the witness about a paragraph which you don't see translated in front of

12 you at all, Your Honour.

13 But, secondly, Your Honour, this -- it's not as far away from the

14 story as I've seen it, but the action, the area, the ...

15 What's described in the document is carrying out of a war. It

16 has no relation to the charges at hand, Your Honour.

17 JUDGE HARHOFF: Mr. Tapuskovic, the difficulty that we have is

18 that you seem to be acting as if your client was charged with using armed

19 force, and so you seek to prove that the other side, too, was using armed

20 force against the VRS, but this - at least in my view - is not relevant

21 to the case because I think it is accepted by the Prosecution that there

22 was an armed conflict, and I hope that I'm not saying too much if I say

23 that the Chamber, too, accepts that there was an armed conflict. This is

24 not an issue in this trial. So we don't have to be reassured that both

25 parties were addressing attacks on the other, and that in the course of

Page 4260

1 those attacks both parties suffered a great number of casualties. That's

2 not the issue.

3 The issue is whether some of the crimes, the violations of

4 international humanitarian law that were committed during these attacks,

5 whether those violations were in any way attributable to your client.

6 And, therefore, I wish that we could focus directly on anything that

7 could explain the circumstances and the origin of those crimes, rather

8 than carrying on with looking into evidence about the armed conflict as

9 such.

10 MR. TAPUSKOVIC: [Interpretation] Your Honours, already yesterday

11 I was in a position to make closing arguments in a way without having

12 heard all of the Prosecution case. I have been brought into that

13 position yet again, but the first time I opened this indictment in the

14 general allegations and also in Count 1, the first thing I noticed is

15 that the Sarajevo-Romanija Corps carried out a long-lasting campaign of

16 shelling and sniping against the civilian population and civilian areas

17 of Sarajevo, and that that was the only objective that it had.

18 Now that we're talking about these circumstances here from the

19 12th of August, 1994, until the end of the war, that cannot be said at

20 all. So what I have to do as the Defence, first and foremost, is to deal

21 with the first count, that there was no systematic shelling or sniping at

22 the city, and these documents show precisely what it was that was

23 happening in 1995.

24 Of course, I'm going challenge many other things as Defence

25 counsel with full responsibility regarding these things that were

Page 4261

1 happening in Sarajevo, but it is not my duty to explain that now. At

2 this point in time, on the basis of these documents, it is clear that it

3 is absolutely unacceptable that the first charge from here was present at

4 all; that is to say, the crime of terror described in Count 1 and the

5 Serb side holding the hills around Sarajevo and doing this from there.

6 So that is what Dragomir Milosevic was indicted for, but I think

7 that these documents show that in 1995 there was no such thing. So it is

8 my duty to say today what should be said on another occasion. We see

9 here that a cannon or, rather, a tank is engaging objectives within the

10 city itself, and it should be in the exclusion zone anyway, and now I

11 have to explain whether this is relevant or not; whereas, the accused has

12 to defend himself from charges of having attacked Sarajevo by shelling

13 and sniping.

14 I mean, if I have to deal with that now, it is better for me to

15 sit down and not do anything. If this is not relevant, if this offensive

16 was taking place and if this system -- I mean, this strategy -- I mean,

17 that civilians were targeted mercilessly; I mean, if these documents do

18 not have probative value -- I understood your objection in respect of

19 what was done yesterday, but I obtained 6.000 documents which show

20 activities of the BH army on a day-to-day basis. 6.000, not only of the

21 division but also of the lowest ranking brigade. I have all these

22 documents, but I don't know how to deal with all of them now to show you

23 that there was shooting and action coming from Sarajevo every day. I'm

24 quite serious, 6.000 documents. These are just blatant examples.

25 Let me just say how many weapons were used and even Howitzers, cannons

Page 4262

1 and 152-millimetre guns, and so on and so forth.

2 JUDGE HARHOFF: I don't think we will get much further on this

3 line of argument.

4 I think I have made my point clear, and I suggest we move on.

5 [Trial Chamber confers]

6 JUDGE ROBINSON: The Trial Chamber, by majority - Judge Harhoff

7 dissenting - will admit this document.

8 THE REGISTRAR: Your Honours, this will become D160.

9 MR. TAPUSKOVIC: [Interpretation] Your Honours, I have two

10 documents related to the same day, the 25th of June, which show the

11 number of shells fired, 120-millimetre shells that is. The document is

12 DD00-1918.

13 I have a translation of this document in its entirety; it's a

14 short document.

15 JUDGE ROBINSON: You must be bringing your cross-examination to a

16 close now. I will not allow it go on much longer. You have had your

17 four hours.

18 MR. TAPUSKOVIC: [Interpretation] Your Honours, yes. If

19 necessary, I will complete it right this second, but I explained all

20 these things, and I spent certainly half of my time doing that, in giving

21 those explanations, but all right. It is my duty to answer your

22 questions, and I think it would be only proper to extend my time a little

23 bit more. And I will be very brief with the next witness -- rather, the

24 expert witness.

25 JUDGE ROBINSON: The computation of the four hours has not

Page 4263

1 included the time spent in answering the questions raised by the Trial

2 Chamber.

3 Now, proceed.

4 MR. TAPUSKOVIC: [Interpretation] So the document is DD00-1918.

5 It's already there, actually.

6 JUDGE ROBINSON: Just a minute. I really would like the

7 transcript to show just -- to show what I just said, which I consider to

8 be important, which is that the computation of the four hours allocated

9 to Mr. Tapuskovic does not include the time spent by Mr. Tapuskovic

10 answering questions raised by the Trial Chamber. That is important in

11 the interest of fairness to Mr. Tapuskovic that that be understood.

12 Thank you.

13 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honour,

14 Judge Robinson.

15 Can we look at this document now.

16 Q. Honourable Witness, again, this has to do with a combat report

17 sent to the command of the 1st Corps, you primarily, dated the 5th of

18 June, 1995. I would just like to show you what it says here: "Our

19 forces. The ammunition used in the afternoon hours ...", and then it

20 says exactly how many mines: 60-millimetre mines, 82-millimetre mines;

21 and over here mortar shells: 120-millimetre, 43 pieces of that in the

22 afternoon.

23 You know that daily, during your offensive, hundreds of shells

24 were fired?

25 MS. EDGERTON: The document doesn't say "shells" anywhere in the

Page 4264

1 translation.

2 MR. TAPUSKOVIC: [Interpretation] Your Honours, it says ammunition

3 used in the afternoon hours on the 25th of June, 1995. Ammunition used

4 in the afternoon hours, and then what the quantity used was for these

5 mortars, 43. In the afternoon, and I have the morning figures as well.

6 The amount is the same.

7 MS. EDGERTON: I don't see anywhere in the translation reference

8 to anything to do with mortars, either.

9 JUDGE ROBINSON: In the English version, Mr. Tapuskovic -- unless

10 it is MB, what does MB stand for?

11 Can the witness tell us?

12 THE WITNESS: [Interpretation] Mortar -- the general abbreviation

13 for mortar is that, except that the calibre has to be added, too.

14 JUDGE ROBINSON: Well, Ms. Edgerton, Mr. Tapuskovic evidently has

15 more in that art than you do.

16 Let us proceed quickly.

17 MR. TAPUSKOVIC: [Interpretation]

18 Q. Does this report correspond to the actual situation? You

19 received reports every day on the amount of ammunition used, especially

20 in terms of large calibres.

21 A. It wasn't me. It was my corps command that received these

22 reports. I'm only the commander of the corps, but it is the entire

23 command that commands the corps.

24 Q. You cannot deny that this is the report sent to you, to your

25 command? You cannot challenge what this document says?

Page 4265

1 A. It says here what the logistic situation was and then what was

2 used up in the afternoon hours. That was used up that afternoon. I

3 don't know from what moment onwards.

4 Q. Very well.

5 MR. TAPUSKOVIC: [Interpretation] Your Honours, could this

6 document please be admitted into evidence?

7 [Trial Chamber confers]

8 JUDGE ROBINSON: The Trial Chamber, by majority - Judge Harhoff

9 dissenting - will admit it.

10 THE REGISTRAR: As D161, Your Honours.

11 JUDGE ROBINSON: You have -- Mr. Tapuskovic, you have five

12 minutes more.

13 MR. TAPUSKOVIC: [Interpretation] Very well. Then just the

14 document that has to do with the morning, DD00-1991. There is also a

15 translation, English translation of it.

16 Just one more question after that.

17 Q. You see, this is the document from the same date, but it says in

18 the morning hours. In the time stated here or, rather, combat

19 operations, the following amount was spent. And, again, it says 41 of

20 the 120-millimetre MBs. So on that day, about 100 were used up --

21 JUDGE ROBINSON: Ms. Edgerton.

22 MS. EDGERTON: Before we go any further, I don't think that

23 document was on my list that I was given from the Defence counsel.

24 JUDGE ROBINSON: Are you really pressing that, Ms. Edgerton?

25 Ms. Edgerton is not pressing that.

Page 4266

1 All right. Yes, let's -- let's proceed.

2 MR. TAPUSKOVIC: [Interpretation]

3 Q. Is the situation the same like what you said in terms of the

4 previous document?

5 A. I can barely see anything on this document. I can't read any of

6 it.

7 Q. Look, it says what was used up on that day. 41, it says.

8 A. I see something. It's a poor copy. Now I see it a bit better.

9 The state of logistics; that's what I see.

10 Q. Can you just look at 120-millimetres, 41 pieces?

11 A. It says: Shells 120-millimetres 41 pieces.

12 Q. So is that correct at least in this report? Was that used?

13 That's what it says here, used?

14 A. Just like in the case of the previous documents, I cannot confirm

15 that for you, but if this is correct, then that was preparation for

16 preventing the kind of thing that happened in Srebrenica 15 days later,

17 genocide, from happening to Sarajevo.

18 MR. TAPUSKOVIC: [Interpretation] I have just one more document,

19 and then I will finish.

20 For the Prosecutor, it is number 69 on our list.

21 MS. EDGERTON: No objection.

22 JUDGE ROBINSON: I'm sorry, I haven't heard any request. What

23 did you not object to?

24 MR. TAPUSKOVIC: [Interpretation] I also tender this document,

25 yes.

Page 4267

1 JUDGE ROBINSON: I wasn't aware of that request.

2 [Trial Chamber confers]

3 JUDGE ROBINSON: Yes, the Chamber by majority - with

4 Judge Harhoff dissenting - admits the document.

5 THE REGISTRAR: As D162, Your Honours.

6 JUDGE HARHOFF: And, excuse me, let me just explain that I'm

7 dissenting on the ground that I find these documents to be - as

8 interesting as they are - to be irrelevant to the case, and I would like

9 to add also that my dissent also goes to admission of Exhibit number D159

10 because that has the same nature. So all four documents are admitted

11 with me dissenting.

12 Thank you.

13 MR. TAPUSKOVIC: [Interpretation] Your Honours, just this thing

14 and I'm going to finish. That's DD00-1460. I have an official

15 translation provided by the CLSS of this Tribunal.

16 Q. It's a letter dated the 4th of April, proposal regarding the

17 extension of the truce, and it's addressed to the President of the

18 Republic, Mr. Alija Izetbegovic, and it refers to one of the most

19 important things and that is the truth. I'm going to read only three

20 short passages:

21 "Pursuant to your request regarding the session of the

22 Presidency, I propose the following: An extension of the truce is

23 unacceptable for the following reasons ..."

24 And then the reasons are listed below.

25 And then under item 2: "Demilitarisation of Sarajevo is out of

Page 4268

1 the question for the following reasons ..."

2 And the most thing that I would like to read to you is the

3 paragraph before item 2, which reads:

4 "We must continue saying that we will defend ourselves and that

5 we will not be the first to attack, which is what you always do."

6 Please, this is a letter sent by your commander, Rasim Delic, to

7 Alija Izetbegovic, and it must have certainly be submitted to you as

8 well. You knew this position of the Presidency and your command that

9 truce was out of the question; yes or no?

10 A. What is written on paper is one thing and what happened in

11 practice is something completely different.

12 THE INTERPRETER: Microphone for witness, please.

13 JUDGE ROBINSON: Who is this letter coming from? Delic?

14 MR. TAPUSKOVIC: [Interpretation] From the chief of General Staff,

15 personally addressed to the President of the Presidency with respect to

16 the decision taken by the Supreme Command, and that is what actually

17 happened, there was no truce.

18 Q. Is that true, Mr. Karavelic?

19 A. You're asking me again. Do you know how many truces there were?

20 I can ask a counter-question to you. There were numerous truces, and

21 none of them sustained. It was because of the Sarajevo-Romanija Corps

22 that all this happened. I didn't have any -- any food. Why didn't

23 they -- why didn't the Sarajevo-Romanija Corps open Sarajevo for just one

24 kilometre?

25 JUDGE ROBINSON: Just a minute.

Page 4269

1 Witness, this is an interesting comment in the letter. "We must

2 continue saying that we will defend ourselves and that we will not be the

3 first to attack, which is what you always do."

4 That would seem to me to be reflecting a policy position of

5 the -- of the ABiH.

6 What do you say to that?

7 THE WITNESS: [Interpretation] I was sentenced to death in

8 Sarajevo. And the whole of Sarajevo was sentenced to death --

9 JUDGE ROBINSON: I never asked you, never asked you that. Just

10 answer the question. I'm saying that I find very interesting this

11 observation in the letter that it has now gone off the board - here it

12 is - that "We must continue saying that we will defend ourselves, and

13 that we will not be the first to attack ..."

14 I'm saying that that appears to me to be reflecting a policy

15 position on the part of the ABiH. What it seems to me to be saying is

16 that it is placing more importance on a statement as distinct from what

17 might actually be the reality of the situation. It's almost like a

18 public relations statement.

19 Say that we will always defend ourselves, even if that is not

20 actually the position. Say that we will not be the first to attack, even

21 if that is not actually the position.

22 THE WITNESS: [Interpretation] The army of Republic of

23 Bosnia-Herzegovina, let me begin with that, even if this is true, as you,

24 Your Honours, have interpreted, the BH army throughout the whole war was

25 by far in a more inferior position with regard to the army of

Page 4270

1 Republika Srpska; it was powerless.

2 JUDGE ROBINSON: You said that yesterday and I had wanted to --

3 to raise that with you. When you say "inferior," not in manpower. Was

4 the BiH army inferior in manpower to the Serb army in terms of the number

5 of forces available to it.

6 THE WITNESS: [Interpretation] Speaking about inferiority, Your

7 Honours, the first thing that you look at is weapons. Manpower is just

8 cannon fodder. That applies to all the armies. Nowadays the US army can

9 defeat any army with very few number of forces. What matters in a war is

10 equipment and technological development. Nowadays, technology overrides

11 human factors and that applies to specifically to today's state of the

12 art, armament and equipment.

13 A shell can kill 100 people. Human beings are nothing compared

14 to a shell.

15 JUDGE ROBINSON: I understand, you know -- I understand the

16 explanation that you have given. In respect of the -- the question of

17 the inferiority of the BiH army, but I don't believe you have answered or

18 commented on the issue that I raised, that arose from the observation in

19 the letter, that we must continue saying that we will defend ourselves

20 and that we will not be the first to attack.

21 THE WITNESS: [Interpretation] You have to give me a minute or two

22 to give an explanation instead of just saying yes or no.

23 Sarajevo was unable to survive. An army commander was

24 responsible for both Sarajevo and the whole of Bosnia-Herzegovina. We

25 are now talking about Sarajevo. In order to make it possible for

Page 4271

1 Sarajevo to survive, including its population and its army, and to defend

2 itself. Despite many agreements that were never honoured these were just

3 dead letters on paper and they were never honoured by the VRS and it's

4 international community knows that very well. We became indifferent to

5 that. So it's small wonder that the commander wrote this to the

6 President.

7 Mr. President, do politically whatever you want. What we can and

8 must do is to fight in order for us to survive.

9 JUDGE ROBINSON: Very well. And I think we have concluded the

10 cross-examination. We'll admit -- do you want to have this admitted?

11 MR. TAPUSKOVIC: [Interpretation] Yes.

12 JUDGE ROBINSON: Yes, we admit this. We admit this document.

13 Any re-examination?

14 MS. EDGERTON: No, Your Honour.

15 THE REGISTRAR: Your Honours, this will be admitted as D163.

16 JUDGE ROBINSON: Thank you.

17 Witness, that concludes your evidence. Thank you very much for

18 coming to the Tribunal to give it, and you may now leave.

19 [The witness stands down]

20 [Trial Chamber confers]

21 JUDGE ROBINSON: Mr. Docherty, I see you have been waiting

22 patiently.

23 MR. DOCHERTY: Well, I have been waiting, Your Honour.

24 Sorry. Your Honours, the Prosecution calls Patrick Van der

25 Weijden.

Page 4272

1 JUDGE HARHOFF: Mr. Van der Weijden is called under 65 ter, I

2 believe? I can't remember.

3 MR. DOCHERTY: Mr. Van der Weijden is an expert, Your Honour, and

4 he will be introducing a report, and then I have some questions about the

5 report.

6 I will take the opportunity of saying that this witness was the

7 subject of some discussion yesterday, and it appeared the

8 cross-examination was running a bit long and that Mr. Tapuskovic did

9 agree that whatever happened, Mr. Van der Weijden could leave today. He

10 is a serving officer in the Dutch army and he needs to be redeployed on

11 Saturday. And I will also tell that my own direct examination will be as

12 brief as possible. The time estimate for the Chamber is one and one half

13 hours, and I can say I certainly will take no more than one hour, and I

14 hope less than even that.

15 JUDGE HARHOFF: Thank you, and for please forgive me for failing

16 to remember the character of this witness.

17 [The witness entered court]

18 JUDGE ROBINSON: Let the witness make the declaration.

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

20 whole truth, and nothing but the truth.


22 JUDGE ROBINSON: You may sit and you may begin, Mr. Docherty.

23 Examination by Mr. Docherty:

24 Q. Good afternoon, sir, would you introduce yourself to

25 Their Honours by telling them your name and also what it is that you do

Page 4273

1 for a living?

2 A. My name is Patrick Van der Weijden. I'm a Dutch army Special

3 Forces Lieutenant. My specialty in the Special Forces has been sniping

4 for, at least, the last 13 years.

5 Q. Lieutenant Van der Weijden, how long have you been a member of

6 the Dutch army?

7 A. I've been a member of the Dutch army since 1990. I have been out

8 of the army on two occasions on one-year breaks, but in all since 1990.

9 Q. And did you start your career as an enlisted man?

10 A. I started my career as an enlisted man, yes.

11 Q. All right. And then got commissioned as you went along?

12 A. Yes, I did.

13 Q. Could you summarize for Their Honours the -- you've mentioned

14 that you are a Special Forces officer and that you specialised in

15 sniping. Could you summarise for Their Honours the - I'll call it - the

16 formation of a sniper in the Dutch army?

17 A. My career started in the mechanised infantry, which is infantry

18 that uses army personnel carriers to go into combat and use them as

19 support. That was my initiation in the army. Later when I rejoined the

20 army as a career soldier, my first unit was an airmobile unit in which I

21 served as a sharpshooter, which is an infantry soldier within a regular

22 infantry group who uses a slightly accurised rifle compared to regular

23 soldiers to be able to shoot at longer distances that most other soldiers

24 in his unit.

25 After deployment to Bosnia, I joined up with the army Special

Page 4274

1 Forces to become a -- and in that unit, which is at this time still the

2 only unit in the Dutch army which deploys -- officially deploys snipers,

3 I received sniper training and later also served as a sniping instructor

4 on several occasion and got my sniper instructor degree in 2004.

5 Q. Lieutenant Van der Weijden, did you at the request of the Office

6 of the Prosecutor, prepare a written report for this trial?

7 A. Yes, I did.

8 Q. And there is a document to your right as you sit there. Is that

9 the report that you prepared?

10 A. This is a copy of the report I prepared.

11 MR. DOCHERTY: Your Honours, the Chamber issued an order

12 admitting this report at an earlier date, and at this time I would

13 respectfully ask that an exhibit number be assigned to the report and

14 that it be completely admitted into evidence.


16 THE REGISTRAR: Your Honours the report becomes Prosecution

17 Exhibit P514.

18 MR. DOCHERTY: For the record, Your Honours, the report that

19 Lieutenant Van der Weijden prepared contained the names of several

20 protected witnesses. That document was, therefore, filed under seal.

21 The document that has been uploaded into e-court and that we will be

22 using today is identical, except that those witnesses' names have been

23 changed to their witness numbers. So a number has been replaced with

24 "W-" what have you.

25 Q. Lieutenant Van der Weijden, were you asked to assess the places

Page 4275

1 from which a shot could have been fired in respect to scheduled sniping

2 incidents in the amended indictment in this case?

3 A. Yes, I was.

4 Q. Would you please walk Their Honours through the methodology that

5 you used to work out what was the most likely origin of fire in these

6 scheduled incidents.

7 A. At each occasion, I visited the incident site together with the

8 Prosecutor and an investigator on the scene. At every incident site, I

9 looked at the -- the surroundings and tried to determine what is

10 tactically possible for a shot to have originated from. After

11 determining what those possibilities were, I looked at the tactical

12 possibility; for instance, someone -- if there are houses in the area,

13 among the possibilities, but also open fields. An open field will be

14 less likely to have been the point of origin from the shot because it's

15 tactically not wise to stand out in the open on a field for your own

16 safety.

17 After looking at it tactically, well, then, I reached the

18 conclusion what the most likely area was where the shot might have

19 originated from, and I wrote up -- I made my conclusions into a report

20 that I have here on my right.

21 Q. Lieutenant, would I be correct in saying that when you assign an

22 origin of fire in an incident, in your report on the maps, for example,

23 or the photographs that you have marked up, that tends to be an area

24 rather than a specific point?

25 A. Yes, it does.

Page 4276

1 JUDGE ROBINSON: Mr. Docherty, it's -- it's time for the break.

2 The legal officer will attend at my chambers.

3 --- Recess taken at 3.47 p.m.

4 --- On resuming at 4.14 p.m.

5 JUDGE ROBINSON: The Chamber apologises for the delay, for the

6 lateness in starting. We had to be carrying out consultations.

7 Mr. Docherty.

8 MR. DOCHERTY: Your Honour.

9 Q. Lieutenant, just before the break, we had been talking about

10 whether your opinions as to the origin of fire were precise or general,

11 and in connection with that I ask that page 23 of the English version,

12 page 22 of the B/C/S version of your report in e-court be published at

13 this time.

14 And, Lieutenant, I see you going through the report. The page

15 numbers I use will be one higher than the ones on the report -- excuse

16 me, one lower than the ones on the report. I'm sorry, I'm off by one

17 page.

18 On the monitor in front of you, Lieutenant, you see a schematic

19 that you've done, and according to the key in the lower right-hand corner

20 of the colour photograph, the area outlined in red, but white inside, is

21 location of shooter, and obviously that is not a point; it is an area.

22 Correct?

23 A. That is correct.

24 Q. And what I'd like you to do now is just explain to the folks in

25 the courtroom why it is that you are limited to an area as the likely

Page 4277

1 origin of fire, rather than getting it down to a specific point?

2 A. The reason why I could not make a pinpoint location is because

3 from -- several locations within the building it was possible to get a

4 view of the incident site, and since I didn't have signs of -- there

5 aren't any signs left now of shooting in the building, there are some

6 bullet-holes visible on the outside of the building where people fired

7 back at the building. There are no shells remaining, there are no

8 shooting positions visible anymore, and so for me it was only possible to

9 get a general location where the shooter might have been.

10 Q. And continuing on the format of the report, if I could ask the

11 court officer to turn to the next page in both versions.

12 We can proceed because it's the photographs that I'm interested

13 in and not the text.

14 We see at the top of the page on the left a curricular photograph

15 with three blue silhouettes in it; one larger than the other two. And

16 then below that, we see a photograph with some red text on it.

17 The top photograph, with the three blue silhouettes, what is that

18 meant to illustrate in this report?

19 A. It is meant to illustrate that for identification of which I had

20 a separate appendix, according to my information that I received, the

21 victim was 31 and had a seven-year-old son and a daughter as well. This

22 is to depict just what a shooter must have seen, an adult with a small

23 child, which would indicate non-combatant instead of members of the

24 fighting faction. So it's just to indicate that it's an adult and a

25 small child -- two small childs [sic] in this case.

Page 4278

1 JUDGE ROBINSON: I would like to have you clarify this for me,

2 Lieutenant. The sniper from the position at which he was shooting would

3 have been able to identify the persons as an adult and a small child?

4 THE WITNESS: Yes, Your Honour, I do believe so.

5 JUDGE ROBINSON: How far would that distance be?

6 THE WITNESS: In this case, the distance was measured by a laser

7 range-finder, which I had with me at the time, and it was 312 metres,

8 which even with the naked eye on a sunny day would someone -- it would

9 give someone with just the naked eye the possibility to see the

10 difference in height, from which you can conclude it's an adult with a

11 child, instead of two adults or several adults.

12 JUDGE ROBINSON: And so you make that point, then, to illustrate

13 that even from a greater distance of, say, twice that distance, 600, 700

14 or even 800 metres, with the benefit of telescopic sight, the -- a sniper

15 would be able to identify a person and determine whether that person was

16 a child or an adult?

17 THE WITNESS: Yes. There are some -- some indicators that can --

18 which helps you to discern between civilians or non-combatants and

19 combatants, among which is the difference in height or the comparative

20 height for children. And even at a larger distance, even with cloudy

21 weather, you would still be able to see the difference in height. You

22 wouldn't be able to see colours or maybe hairstyles, but it would give

23 you a very good indication that it's a child with an adult, instead of

24 two combatants.

25 JUDGE ROBINSON: Yes, Mr. Docherty.

Page 4279

1 MR. DOCHERTY: Just a couple of questions to follow up on

2 His Honour's question.

3 Q. First of all, am I correct that this photograph was taken from

4 where you believe the shooter to have been?

5 A. This photograph was taken from a window inside an apartment which

6 I visited in Sarajevo. There are some other possibilities because I was

7 only able to visit one apartment, so -- but this apartment does give a

8 view of the incident site.

9 Q. And my follow-on question to that is if one goes through this

10 report, was it your methodology to always take a photograph from what you

11 considered to be the likely source of fire towards the -- towards the

12 target?

13 A. It is my -- if it's possible, I will have taken a photograph, but

14 sometimes if locations not accessible for me, then I naturally won't be

15 able to provide a photograph.

16 Q. In addition, His Honour was asking you -- excuse me, in response

17 to a question from Judge Robinson, you said that the comparative height

18 was one indicator that a shooter would have. Are there other indicators

19 that a shooter would have in making the decision, Is this a combatant or

20 a non-combatant? And if the answer to that is yes, could you tell us,

21 please, what some of those indicators are?

22 A. The answer is yes. Apart from the comparative side --

23 comparative height, it would be that non-combatants move differently

24 from -- from combatants. A bundle of wood wouldn't be carried by a

25 combatant out in the open, because if you're, well, at war, and you move

Page 4280

1 from a position to position, you do so as fast as you can and try to make

2 use of the cover that's around you. And it's just contradictory for

3 combatants to move -- to walk on a street with a bundle of wood and just

4 walk plainly in sight of possible positions.

5 Another indicator would be just the colour of clothing, maybe

6 hairstyles, accessories. Like I said, a bundle wood. But a handbag

7 would also be a very good indicator of not being combatants. It's

8 just -- or the absence of weapons. It's just little things that add up

9 to making conclusions.

10 Q. Now, following on to this point and, first of all, for the

11 record, I'm referring to -- the discussion over the last few minutes has

12 been about photo 1 on e-court page 24 in the English version.

13 You also made an effort in your report, I believe, to identify

14 the weapon that was most likely used in each particular incident, and as

15 with location, could you just take a minute or two and walk us through

16 how you went about making that determination and also how precise you

17 were able to be in that determination?

18 A. The methodology that I used was using the information provided to

19 me, which is the summary of the incident. In this case, for case number

20 5, there were -- there is mention of several shots -- well, several shots

21 with sniper rifle is more difficult, of course, than firing a burst

22 through a machine-gun. The distance of 321 metres is a very real

23 distance when using machine-guns. So the combination of several shots in

24 a short time together with the distance would bring me to the more likely

25 use of a machine-gun over a sniper rifle.

Page 4281

1 And then looking at the existing weapons used in the conflict, I

2 draw my conclusion that it probably would have been a machine-gun or a

3 semi-automatic sniper rifle which would also be possible.

4 Q. And did you follow that same process with regard to each incident

5 that you examined; looking at the range and the type of shot and how many

6 shots were fired and then drawing some conclusions as to what was the

7 most likely weapon to have been used by the shooter?

8 A. Yes, I did.

9 JUDGE HARHOFF: Counsel, can I -- just for clarification, what

10 you see in photo 1, would that be what a sniper would have seen from that

11 apartment building from which you took the photo through his magnifying

12 telescope on a sniper rifle, or would that be what he could see with the

13 naked eye?

14 THE WITNESS: This would be what he would be able to see with the

15 naked eye, so not through magnification.

16 JUDGE HARHOFF: Do you have a comparison with a picture showing

17 what the sniper would have been able to see through his magnifying

18 telescope?

19 THE WITNESS: No, I don't, sir.



22 Q. Lieutenant, let's follow up for a moment or two about the

23 apartment from which this photograph was taken.

24 On e-court page 6 - and that does not need to be published,

25 that's simply a reference for the record - but on e-court page 6 in both

Page 4282

1 English and B/C/S, you talk about using streets as funnels, in the

2 context of urban sniping, to make longer shots possible. Do you know

3 what I'm referring to in your report or would you like to see it?

4 A. I know what you're referring to. Usually in urban sniping or

5 fighting in urban areas in general, the range is dramatically decreased

6 to a very short range. The average range of infantry combats in built-up

7 areas is almost between 5 to 10 metres because of the streets,

8 room-to-room fighting.

9 A sniper -- sniper shots fired in urban environments can be, in

10 general, 25 to 50 metres, but there are possibilities, as the counsel

11 says. If you look down a street, like the street in case number 5, which

12 shows just -- you look down the street, you have few -- or 300 metres, so

13 the range schematically increases, especially if a sniper or a shooter

14 has his position on an elevated position from which he can look into

15 several streets at the same time.

16 Q. And let's take a look at that street.

17 MR. DOCHERTY: And if I could ask to have published 65 ter number

18 2825, please.

19 Q. Lieutenant, do you recognise the scene that is on this photograph

20 in front of you?

21 A. Yes, I do.

22 Q. Okay. And do you see a street there that could be used as you

23 have explained to help increase accuracy and range by a sniper in an

24 urban environment?

25 A. Yes, I do.

Page 4283

1 Q. There's a pen on the right-hand side of the monitor, and the

2 court officer will help you, but I'm going to ask you to outline that

3 street for us, please. Just draw a line, a rectangle, illustrating that

4 street?

5 A. That would be the street.

6 Q. Now, you have also mentioned in your testimony that you took the

7 photograph, the circular photograph on e-court page 24, from an apartment

8 in a particular building in Sarajevo; is that correct?

9 A. That is correct.

10 Q. Does that apartment building appear on the photograph that is on

11 the monitor in front of you?

12 A. Yes, it does.

13 Q. Would you please take the pen again and would you mark that

14 apartment building by putting an X through it?

15 A. That would be the building.

16 MR. DOCHERTY: Your Honour, I offer this photograph as marked.

17 JUDGE ROBINSON: Yes, we admit it.

18 THE REGISTRAR: As P515, Your Honours.


20 Q. And, Lieutenant, in your --

21 MR. DOCHERTY: Mr. Usher, I'm finished. Thank you.

22 Q. Lieutenant, again, I don't need these pages published. But you

23 indicate that you were up in a building in the Grbavica neighbourhood

24 with regard to your discussion of case 1 on page 20 of the English and 18

25 of the B/C/S; case 5 at page 23 in English, page 22 in B/C/S; case 8,

Page 4284

1 page 26 in English, page 27 in B/C/S; case 13, which is page 29 in

2 English and page 31 in B/C/S; and case 14, which is page 32 in English,

3 page 36 in B/C/S.

4 With regard to all of those, you indicate that you were in a

5 building in Grbavica. Is it the building that is marked with the X?

6 A. That is the building, yes.

7 MR. DOCHERTY: And, Your Honours, at this time, if I could refer

8 to Exhibit P00097. This would be an exhibit that was introduced during

9 the testimony of Slavica Livnjak in response the question: Do you see

10 the building known as Metalka on this photograph; and, if so, would you

11 mark it with an X? If we could have Exhibit 97 displayed, please.

12 Thank you.

13 [Trial Chamber confers]

14 JUDGE ROBINSON: Yes, Mr. Docherty.


16 Q. Lieutenant, a number of these scheduled incidents in case

17 concerned firing upon Sarajevo trams; is that correct?

18 A. That is correct.

19 Q. Is a tram, in your training and experience in the Dutch Armed

20 Forces, capable -- or well-suited to military uses?

21 A. No, it's not.

22 Q. Why not?

23 A. It is a slow-moving -- a relatively slow-moving vehicle. It

24 sticks to fixed tracks so it's not able to deviate from a regular --

25 normal line of travelling. It's usually brightly coloured, lots of

Page 4285

1 windows and it's not armoured, so it's very unsuitable for technical

2 transporting of personnel.

3 Q. From the building that is marked with an X on the photograph in

4 front of you, and you see down at the bottom a red squiggle, which is

5 marking some tram tracks, do you have an opinion as to whether a sniper

6 in the X building could tell that he or she was shooting at a tram and

7 not at a military vehicle over that range?

8 A. Yes, it would be very possible to see that it's a tram.

9 Q. Lieutenant, in your training and in your experience with the

10 Dutch army, have you become familiar with the term "rules of engagement"?

11 A. Yes, I have.

12 MR. DOCHERTY: And, Mr. Usher, we are finished with the SMART

13 Board, thank you.

14 Q. What does "rules of engagement" mean, Lieutenant?

15 A. The rules of engagement for me mean the guidelines for the use of

16 force that can be used by military units in conflicts or peace-keeping

17 operations. They describe in general when and how force might be

18 applied. In general, for the Dutch army it has always been use force

19 only as -- only if necessary. In peace -- sorry, in peace-keeping

20 operations, force is only allowed to be used for self-defence, and the

21 defence of colleagues or the defence of innocent civilians.

22 Q. And what is the training in the Dutch Armed Forces regarding the

23 legitimacy of shooting at civilians whom you know to be civilians?

24 A. In -- well, what normally -- what usually happens if an incident

25 like that would occur is that the soldier shooting the civilian would be

Page 4286

1 inquired [sic]. If there is a suspicion that he was wrong, he would be

2 arrested, brought to the Netherlands, and put on trial.

3 Q. And in your experience with the Dutch army, have you worked with

4 armies of other NATO countries?

5 A. Yes, I have.

6 Q. And based upon what is what you just described as the enforcement

7 mechanism in the Dutch army also generally applicable in other NATO

8 armies?

9 A. Yes, it is.

10 Q. I have two last questions, and then I'll be finished.

11 First of all, in all of the incidents that you reviewed, did you

12 consider the possibility that the shots that struck the person had come

13 from territory under the control of the army of Bosnia and Hercegovina,

14 rather than territory under the control of the army of the Republika

15 Srpska?

16 A. I have not looked at the possibility. For me, it was just purely

17 a theoretical possibility where the shots might have originated from.

18 Q. Did you concern yourself with who controlled the territory in

19 question, or did you simply refer to the territory itself without regard

20 to which army controlled it?

21 A. Just the territory itself.

22 Q. All right. Lastly, you have done a report that includes all of

23 the scheduled sniping incidents attached to the amended indictment. In

24 how many of the cases that you examined did you find that a shooter would

25 not have been able to distinguish a civilian from a combatant when he or

Page 4287

1 she took the shot?

2 A. Well, I have to add something to that, because at very long

3 distances, of which some of the incidents involved longer distances, it

4 is very difficult to discern between civilian or non-combatants and

5 combatants but again with rules of engagement, it is only after positive

6 identification that are you allowed to take -- to take a shot. So even

7 at the longer ranges where it's very difficult to discern between

8 combatants and non-combatants, I drew the conclusion that fire should

9 have been withheld.

10 JUDGE ROBINSON: Can you give us an idea of what that distance

11 is, the longer distance?

12 THE WITNESS: Well, the distances would be above 6 to 800 metres

13 under cloudy conditions, because weather conditions influence greatly the

14 possibility to identify persons.

15 JUDGE ROBINSON: Yes, Mr. Docherty.


17 Q. And so if a shooter in an army is in doubt about whether the

18 person in the cross-hairs is a civilian or a combatant, what is that

19 soldier to do?

20 A. Withhold fire.

21 MR. DOCHERTY: Your Honour, I have no further questions. That

22 concludes my direct examination.

23 JUDGE ROBINSON: Thank you.

24 Mr. Tapuskovic.

25 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honour.

Page 4288

1 Cross-examination by Mr. Tapuskovic:

2 Q. [Interpretation] Mr. Van der Weijden, I am Defence counsel for

3 General Dragomir Milosevic, and I would just like to clarify a few

4 matters.

5 First of all, in relation to your profession, as far as I can see

6 from this document, which is basically your professional CV, as far as I

7 can see, you were born in 1971; is that right?

8 A. That is right.

9 Q. At the time when this conflict started in the territory of

10 Bosnia-Herzegovina, you were 21, 22?

11 A. I was 23, 24, and later on 25.

12 Q. Thank you. As I can see from your CV, you graduated from a

13 technical college. You actually have a degree in architecture. Is that

14 right?

15 A. No, I don't.

16 Q. Here, it says civilian education: Technical University, Delft,

17 Architecture.

18 A. Yes, sir. But I don't have a degree. I attended for one year,

19 and then I left the university.

20 Q. And you were a sniper instructor in 2004; is that right?

21 A. Yes. I have been instructing sniping before that, but my diploma

22 or certificate was handed to me in 2004.

23 Q. So, basically, you were an instructor for the use of fire-arms;

24 right?

25 A. Yes, I was. I still am.

Page 4289

1 Q. And, as I can see, in 2002, you were leader of a team of the

2 105th Commando Company in Afghanistan? In 2002?

3 A. No, I was -- I became team leader in 105 Commando Corps Company

4 in 2002, but I was deployed to Afghanistan in 2003, in the summer.

5 Q. And you actually functioned within a commando group in combat

6 operations; right?

7 A. Yes, I did.

8 Q. And, finally, I see that your hobbies include military history,

9 walking, and work-related shooting; right?

10 A. That is correct.

11 Q. Mr. Van der Weijden, you -- you do not have any training in terms

12 of ballistics expertise in the actual sense of the word. You do not have

13 the training that a ballistics expert should have.

14 A. I have had some of the training.

15 Q. But not of an expert nature, certainly.

16 A. I don't have a degree in ballistics, no.

17 Q. Can we say that the same goes as far as forensic principles are

18 concerned?

19 A. That is correct.

20 Q. Particularly, as far as any kind of medical training and

21 education are concerned.

22 A. I did receive medical training concerning gun-shots as part of

23 the military, and I did have lessons in [indiscernible] or wound

24 ballistics in several of the courses that I attended, but I don't have a

25 degree in medical science, no.

Page 4290

1 Q. Witness, as for this work that you carried out and the findings

2 and the opinion that you gave, can we say, for example, judging by what I

3 saw from your findings, that not in a single case did you bear in mind

4 where the separation line was between the two conflicting parties in

5 concrete situations related to individual incidents?

6 A. That is correct. I did not take into account the conflicting

7 lines. The separation line, sorry.

8 Q. Further on can we take this as a fact, and you will say yes or no

9 to that, that you did not take that into account, especially as far as

10 machine-gun fire was concerned, then automatic weapons, infantry weapons

11 and ordinary rifle fire? Not in a single case did you take into account

12 whether the incident occurred close to the separation line or not?

13 A. Since I don't know where the separations line were, I wouldn't be

14 able to answer that.

15 Q. For example, as far as Spicasta Stijena is concerned. You never

16 took into account anything else except for the distance involved. You

17 were proceeding from the fact that the sniper was at a particular

18 location, right?

19 A. As for Spicasta Stijena, I took into account where the witness --

20 where the victims say the fire originated from and then I looked,

21 according to my methodology, what is technically possible and then what

22 is tactically a wise position.

23 Q. Can we say, Mr. Van der Weijden, that not in a single case did

24 you establish what the axis of the exit/entry wounds was in terms of the

25 medical documentation? You did not establish where the bullet had hit

Page 4291

1 the body of a person who had lost his or her life, or where the bullet

2 exited from the -- that person's body? I didn't see information of that

3 kind anywhere in your analysis.

4 A. That is correct, because I didn't have the medical information

5 available to me, apart from the information in the summary of the

6 incident.

7 JUDGE ROBINSON: And if you had had that information, would you

8 have been able to establish those things?

9 THE WITNESS: It would be difficult to establish those things

10 after a long time like this, but it would help in narrowing down the

11 choice of -- the possibility of which weapon was used and perhaps also in

12 the direction of fire.

13 MR. TAPUSKOVIC: [Interpretation]

14 Q. Do you know at least that in the case of any killing in

15 principle, we're not talking about the matters involved here, the first

16 thing that has to be dealt with in terms of where a person fired from is

17 very important, because this is one of the most reliable ways of

18 ascertaining where a bullet had come from; yes or no?

19 A. If you are talking about the medical information, that would

20 be -- it would be very important, yes.

21 Q. Another thing that I'd like to ask you about: Where you

22 established that an M76 or an M91 using 7.62-millimetre ammunition and 55

23 er [as interpreted] with optical sights, even where you established that

24 that was the case, you did not establish whether the calibre of that kind

25 of a sniper rifle corresponds to the appropriate medical document; yes or

Page 4292

1 no?

2 A. No. There was no way for me conclude specifically which

3 ammunition was used.

4 Q. I assume that you do know that sniper bullets fired from sniper

5 weapons have certain characteristics that considerably differ from the

6 characteristics of these other types of automatic weapons: infantry

7 weapons, automatic rifles, that the bullet there is different; yes or no?

8 A. No, it's not that different.

9 Q. Let me ask you something about your general views pertaining to

10 your findings.

11 MR. TAPUSKOVIC: [Interpretation] That's document 65 ter 3055,

12 page 3 in English and also page 3 in B/C/S.

13 Q. It's toward the bottom of the page where you talk about a sniper

14 and when it became a popular term used in the media and it's still widely

15 in the use. Can you see that?

16 A. Yes, I can.

17 Q. "It got a new impulse in the conflict in the Balkans. 'Sniper

18 Alley' in Sarajevo is known to the whole world."

19 Is that correct?

20 A. Yes, it is.

21 Q. When did you read about this "Sniper Alley"? You read about it

22 at the time when you were much younger than are you now; yes or no?

23 A. Yes, that's true.

24 Q. Is it fair to say that you already formed an opinion already back

25 then with relation to this whole issue, which was generally known around

Page 4293

1 the world as the "Sniper Alley"?

2 A. No, I did not.

3 Q. When did you reach this conclusion that since that conflict, the

4 world "sniper" is used to indicate a shooter who shoots at whoever he

5 gets in his sights: men, women or children, combatant or non-combatants?

6 Did this belief of yours originate at that period, or how did you arrive

7 at that conclusion?

8 A. Well, I arrived at that conclusion even nowadays -- well, the

9 Balkan conflict has been -- doesn't exist anymore. The Iraq conflict

10 still does exist and in that conflict, again, there -- the term "sniper"

11 has been used extensively in the media. So it's every time there's a

12 conflict and civilians are fired upon by people from a concealed

13 position. Time and time again the term "sniper" pops or comes back to be

14 used in the media. I never conclude it is a sniper that is shooting but

15 it's the general opinion of the media.

16 Q. Mr. Van der Weijden, concerning the opinions propagated by the

17 media, and the fact that it still prevails today that a sniper shoots at

18 everyone regardless of that being a man, women or children, combatants or

19 non-combatants, you think that this applies solely to the Serbian side;

20 is that correct?

21 A. No, I don't.

22 Q. I'm referring primarily to the conflict in Bosnia-Herzegovina.

23 Can you say about this conflict that the same applied to both sides and

24 that precisely on this "Sniper Alley," it sometimes happened that people

25 got shot by the army of Bosnia-Herzegovina; yes or no?

Page 4294

1 MR. DOCHERTY: Objection.

2 JUDGE ROBINSON: Yes, Mr. Docherty.

3 MR. DOCHERTY: Your Honour, the witness has set out in his report

4 and has testified about the facts that were available to him when he was

5 doing this report. He has testified that he looked at what was

6 theoretically possible in terms of shooting and then narrowed that down

7 but what he understand as a professional soldier to be tactically wise or

8 likely. Nowhere was it mentioned that Lieutenant Van der Weijden has

9 detailed knowledge of operations inside Sarajevo, and I don't understand

10 that there is a basis, therefore, for putting that question to this

11 witness.

12 [Trial Chamber confers]

13 JUDGE ROBINSON: Yes, that's outside the scope of the report.

14 Ask another question.

15 MR. TAPUSKOVIC: [Interpretation] I will do my best to finalise

16 this quickly.

17 Let us move on now to page 6 in the English version and also

18 page 6 in the B/C/S version. It's this chapter called "Sniping in Urban

19 Areas," and in paragraph 2 it says: "Large buildings or factories offer

20 multiple possibilities to establish a shooting position."

21 Q. My question is: In urban areas, were there any high-rise and big

22 buildings that were situated on both sides; yes or no?

23 A. There are high buildings on both sides, yes. Or, yeah, at least

24 that are high buildings, because I don't know exactly where the -- the

25 line -- the separating line was.

Page 4295

1 Q. Thank you. In the same chapter, speaking about the range, you

2 say that: "In built-up areas, shooting ranges are at an average of 75

3 metres. Long shots are possible only from dominating positions with an

4 overview from above (hilly areas)."

5 Yes or no?

6 A. That is correct.

7 Q. Did you know at all who was holding these hilly areas primarily;

8 yes or no?

9 A. I know in general who was holding the areas, yes.

10 Q. Who was it?

11 A. According to the media, it was the Serbs that held the mountains

12 around Sarajevo.

13 Q. Thank you. Can we discuss a few incidents that you gave your

14 opinions about; for instance, incident -- or case 2 of 24th of October,

15 1994. It's on page 11 of the English version, and also page 11 in the

16 B/C/S version.

17 This is an incident in which a young boy was hit through a

18 passage, if you remember?

19 A. Yes, I remember this.

20 Q. As Mr. Dragomir Milosevic's Defence counsel, I'm interested in

21 what is actually described on the next page as kind of additional

22 information.

23 You can see it here, additional information, you speak about the

24 distance and then a little bit further on, you said: "The victim cannot

25 have been shot from another direction than the red area in the layout."

Page 4296

1 Is that correct?

2 A. That was my conclusion, yes.

3 Q. But then, in the very next sentence, you say: "Only a few

4 possibilities remain where the shooter may have had his shooting

5 position."

6 Is that correct? This is also what you said?

7 A. Yes, it is.

8 Q. So it means that there were other possibilities for someone else

9 to have been shooting at this particular person?

10 A. No, there isn't. As I have written in the report, the victim --

11 the possibilities lie within the red area in the layout.

12 Q. You claim in your report, and on the basis of the photograph

13 here, is that the victim was turned with his chest towards the direction

14 from which the shot had come?

15 A. No, I don't.

16 Q. Can you tell me anything at all about the elevation from which it

17 was possible to shoot at a person who was at the other side of the

18 passage, on the ground? Was that feasible and possible at all, to shoot

19 from a roof through a passage at a person who was on the ground, at the

20 ground level? At the street level?

21 A. Yes. In this case, it was very possible.

22 Q. How can you explain that? I read this, but for the benefit of

23 the Trial Chamber, could you please elaborate on this.

24 A. For that, I would need a piece of paper so I can draw something.

25 JUDGE ROBINSON: Yes, let the witness have a piece of paper so he

Page 4297

1 can draw something, and then we can look at it on the ELMO.

2 THE WITNESS: If this were to be a rifle with a scope, when

3 firing a scoped rifle or any rifle, in fact, in general, there are sights

4 on it that can be -- usually can be adjusted to the range. The sight

5 line towards the target will always be a straight line. The longer the

6 distance, the more -- if this were a scope on a long range, this would

7 not be the case but just to get a general impression, the bullet would go

8 up and travel above the sideline to the target and meet up at one

9 distance.

10 At a very long range, which is then I'm talking about above 600

11 metre, this is distance would be -- could become more than a metre, more

12 than one metre. So it really travels above this in the line of sight.

13 So with that very long distance if a shooter -- a rifleman is here with

14 his rifle and there's a tunnel and his target would be -- would be here,

15 if it's a very long distance, it could happen that a bullet would -- he

16 would be able to see the victim or his target, but the bullet would

17 strike the upper part of the tunnel, so the roof of the tunnel.

18 But at this distance at 320 metres, it would not be the case. It

19 would only be not possible for the shooter not to see the victim if the

20 shooter would be in a very tall apartment building. The tunnel would be

21 somewhere here, and the target would be here. If it's like this, he

22 wouldn't be able to see the target. But at 320 metres, it is very

23 feasible to see the target and be able to take a shot at the target

24 without the bullet striking the roof of the tunnel.

25 I hope this is sufficient.

Page 4298

1 MR. TAPUSKOVIC: [Interpretation]

2 Q. I don't think so. What you draw here is almost a straight line

3 between the passage and the weapon from which it was fired. As I can see

4 here, this line is almost at the ground level. But according to what we

5 heard before, the shot came from a roof of a building. This is what I'm

6 asking you: How is it possible to fire 3 or 4 metres above ground or

7 even more, let's assume that, to hit a person at the other side of this

8 passage?

9 A. Well, as I tried to explain, it has to do with the difference in

10 altitude or the elevation. If the shooter is at very high elevation

11 compared to the victim or to the target, he won't be able to -- he might

12 be able to see the target but not be able to shoot at the target because

13 the bullet will travel above the line of sight and only meet up with the

14 line of sight at the target.

15 So -- but in this case, I strongly disagree with that because at

16 321 metres, it would probably be -- even if the shooter would be

17 50 metres above ground level, he would still be able to see and shoot at

18 the target without the bullet striking the roof of building through which

19 the tunnel goes.

20 JUDGE HARHOFF: What would be the deviation at the broadest part?

21 Did you say that it is above 1 metre at 600 metres distance; then at

22 320 metres, what would be the maximum deviation between the line of sight

23 and the ballistic trajectory of the bullet?

24 THE WITNESS: No, I wouldn't be able to get the exact data out of

25 my head, but I believe that with 7.62 times 51 millimetres, which is a

Page 4299

1 NATO -- standard NATO rifle round, if a regular assault rifle is sighted

2 at 300 metres, the bullet will travel not higher than 20 centimetres

3 above the line of sight. So that's only 20 centimetres, which is --

4 yeah, roughly this distance. To that, I would have to add that the

5 rounds, which I believe were most likely used in this case, which is the

6 7th -- 762 times 54, which is the round that is used in the M76 but also

7 in the M84 machine-gun, and 7 times 92 times 57, which is a round that is

8 also used -- which are also models available in the M76 and is also used

9 in the M53 machine-gun, and those rounds have slightly similar trajectory

10 characteristics compared to the NATO round. So it's not that much

11 difference -- difference in height.

12 MR. TAPUSKOVIC: [Interpretation]

13 Q. Tell me, Witness, please, did you measure the distance of this

14 tunnel or passage, whatever you wish to call it?

15 A. The distance of the tunnel itself?

16 Q. Yes.

17 A. No, I did not. But my guess would be not more than 10 metres in

18 that ...

19 Q. So how could you establish anything at all if you didn't measure

20 the length of the passage precisely? Can you please first make a drawing

21 of this tunnel as you did so in this lower sketch. Was it possible at

22 all to establish anything with respect to someone several metres above

23 the ground and to determine how it was possible for this person to hit

24 someone else through the tunnel at the end of the tunnel? How can you

25 explain that?

Page 4300

1 A. Well, this would be a roughly because I don't have a centimetre,

2 but it's -- if this would be 300 metres, which I -- 320 metres, so

3 roughly this would be -- divide it into 100-metre sections. Well, then

4 100 divided into 50, this would be the length of -- approximately the

5 length of the tunnel. So even at that range, it's a very short distance

6 for the -- for the bullet trajectory for which -- when it flies through

7 the tunnel.

8 So the highest -- the culmination point, which is called --

9 from -- at which -- that's the height at which the bullet is the highest

10 above the line of sight, if that is with this -- with the calibres used

11 approximately 20 centimetres. When it reaches the end of its trajectory

12 before hitting the target, it will drop again to zero, because at 320

13 metres it will coincide again with the line of sight and be the same as

14 the line of sight.

15 So at the end, it will not be 20 centimetres higher than the line

16 of sight but maybe 2 or 3 centimetres higher. So there's no reason --

17 it's not difficult or it's not impossible to shoot through a tunnel and

18 hit someone on the other side of the tunnel. It's very possible.

19 Q. Sir, Witness, that's not what I doubt, but you again drew a

20 horizontal line as the line of the passage of the bullet through this

21 tunnel. There's a difference between these two evaluation. If the point

22 at the top vertically is the point from which the bullet came, how could

23 it have passed through a tunnel which was 10 to 12 metres long and hit

24 someone standing at the other end?

25 Can you demonstrate to the Trial Chamber whether this was

Page 4301

1 physically possible to shoot from this point that you just indicated and

2 for the bullet to pass through a 12-metre long tunnel and hit someone

3 standing at the other end? Not like this, as a straight line. It makes

4 sense. But to shoot from the roof of a building, 300 metres away through

5 the passage, explain to me where is the logic of that?

6 A. I will try to explain. As I roughly sketched here, this is 300

7 metres. You would have to agree that a normal building, a two-level

8 building with an attic would not be higher than 20 metres. Do you agree?

9 This is 100 metres, this is 50 metres, so this would be the

10 height at which the shooter would have been, because that was the highest

11 building within the red area marked on my layout. So 20 metres of

12 height, a straight line, it's not that far above ground level.

13 If the building in which a shooter could have been would have

14 been 10 metres in front of the building, then he would have difficulties

15 seeing the target. But at 300 metres at a height of 20 metres, there is

16 no difficulty in seeing and taking a shot at the target.

17 Q. Please, I will end with this by stating something like this:

18 First of all, you don't have the exact position from which the shot came,

19 with respect to the height. You did not measure the height between the

20 ground level and the point from which the shot came; yes or no?

21 A. No.

22 Q. You also don't have the exact length of the passage; yes or no?

23 A. I don't have the exact length -- exact length to within 10 metres

24 deviation.

25 Q. You also don't have the exact distance between the passage and

Page 4302

1 the place where the victim was?

2 A. I don't have the exact distance, no.

3 Q. So how can you make any categorical claims based on which the

4 Trial Chamber can reach conclusions that something really happened

5 without any shadow of a doubt, if you fail to make exact measurements and

6 to give your opinion based on that?

7 A. The reason why I didn't make any calculated -- or I didn't

8 calculate any data and use that in conclusions because -- because at the

9 time of visiting, there was in my professional view not a doubt that the

10 shooter would have been able to fire from the location that I marked in

11 the layout towards the incident site with a rifle. There would be no

12 problem for -- so it was, for me, beyond a doubt that it would be

13 possible.

14 Q. But you have been chosen as an expert to present to us all the

15 data on the basis of which the Trial Chamber can reach a solid conclusion

16 that this is what definitely happened. You did not do what an expert is

17 expected to do in order for us to have a clear picture. You just

18 proceeded from your own beliefs. Is that right?

19 A. I did not proceed from my own beliefs. I proceed from my own

20 personal experience and long shooting experience. They are not

21 assumptions; they are conclusions from my personal experience.

22 Q. Can you please tell me why didn't you address this issue in a

23 precise way and proper way? You failed to do that. You went there on

24 the spot, and you were there for -- supposed to establish elementary

25 information in order to make any views or any --

Page 4303

1 JUDGE ROBINSON: Just a minute.

2 MR. DOCHERTY: Your Honour.

3 JUDGE ROBINSON: You have asked too many questions.

4 Mr. Docherty, what --

5 MR. DOCHERTY: I have two objections, Your Honour. First of all,

6 I object to this as being repetitive. The witness has been asked the

7 same question multiple times.

8 I also object to the immediately preceding question or questions

9 on the grounds that it is compound. There are several questions there,

10 and it's anybody guess which one the witness is to answer.

11 JUDGE ROBINSON: Yes, Mr. Tapuskovic. Reformulate a single

12 question for the witness, and let it not be a question that you have

13 already asked.

14 MR. TAPUSKOVIC: [Interpretation]

15 Q. You did not even climb up to a location from where the shooting

16 perhaps came?

17 A. No, I did not.

18 Q. In relation to that incident, I have no further questions.

19 Let us move on to incident number 1 now.

20 [Trial Chamber confers]

21 JUDGE MINDUA: [Interpretation] Witness, I would like to get a few

22 moments of precision here. This is not the first time that we see each

23 other, so before anything else I would like to greet you and remind that

24 we saw each other in another case three days ago, another case I'm

25 sitting in, and I know you're here in your field of experience.

Page 4304

1 And so the question I would like to ask you is to know whether

2 for this particular incident, when we look at your sketch, is it possible

3 that apart from the point from which the shot originated, there might be

4 another point of origin? Because when you look at the sketch, at the

5 back, or, rather, at the -- the furthest corner on the right there is the

6 target and when we look at the origin of the firing there's an opening,

7 an open angle. You said that you did not visit the site but you said

8 that based on your experience there was not a shadow of doubt as to the

9 origin of the shooting.

10 Could you explain this, please?

11 THE WITNESS: I will try to, Your Honour.

12 From what is visible in the layout of -- just the enlarged

13 section of the geographical map, there are other possible fields of fire

14 which would come from the south, the east, or the north. The reasons why

15 I didn't conclude that it had come from that direction is the boy was

16 moving alongside the building towards the south with his friends. The

17 other positions would offer -- they would offer views of the boys and, in

18 my professional opinion, if targets would walk that direction, it would

19 be tactically very -- not -- it would not be smart to start firing when

20 there would be an avenue of escape for the -- for the targets. Because

21 if the shooter would have been in the south, the north, or the east where

22 he would have a view of the targets, the targets at the time the target

23 was shot, the other targets could have -- might have got away through the

24 tunnel to the other side of the building, would be safe for those -- the

25 shooters in those locations. Apart from that, it was also strange that

Page 4305

1 the other boys then were not targeted by the same shooter.

2 The reason why I reached the conclusion that it would have come

3 from that direction is that the boy was only visible to the shooter at

4 that -- at that location and exactly at that location was fired at. So

5 that -- that, for me, that narrows down the possibilities of the location

6 of the shooter. From the position of the blue dot, which marks the

7 location of the victim in the layout, the three buildings, they would

8 offer -- offer a view of the position of the victim.

9 I hope that answers your question.

10 JUDGE MINDUA: [Interpretation] Thank you.

11 JUDGE ROBINSON: Can I just take you back to a question asked by

12 Mr. Tapuskovic when he said that you didn't even climb up to the location

13 where the shots, perhaps, came from, and you said no. Does that mean

14 that if you were told that the shots allegedly came from the sixth

15 floor -- let us say the sixth floor of a building, you did not go to the

16 sixth floor?

17 THE WITNESS: The reason why I didn't go into -- go to the

18 building, because at the time -- at the location of the victim, there

19 was -- for me, there was absolutely no doubt that the shots would have

20 come from those buildings. If there was any doubt, I would have gone to

21 the buildings, go up to several of the rooms to try and look at the

22 possibilities. But for me, it was just very obvious that through the

23 tunnel, which -- which they ever -- saying with lasers is lasers point

24 back to you, and same goes for a tunnel. If you're shot through a

25 tunnel, if you look back through the tunnel, that's where the origin of

Page 4306

1 fire will be because bullets still don't -- they deviate and they follow

2 a trajectory, but they still don't go around corners. So it just points

3 back to the location of the shooter.

4 JUDGE ROBINSON: So in relation to this boy who was shot through

5 the tunnel, have you estimated at what height the shooter would have

6 been?

7 THE WITNESS: Well, I estimated the height. I didn't include it

8 into the report but looking at the buildings that were visible through

9 the tunnel, the maximum height of the -- of the buildings would be 20, 25

10 metres high -- of height, and that would be -- offer no difficulties for

11 the shooter to shoot at the target.

12 JUDGE ROBINSON: Mr. Tapuskovic, it's time for one more question

13 before the break.

14 MR. TAPUSKOVIC: [Interpretation]

15 Q. Let us go back again to what I asked you in the beginning. This

16 time you did not have any insight whatsoever into the medical

17 documentation involved on the basis of which you could establish how a

18 person had been hit, where a bullet entered one's body, and where it

19 exited the body. You didn't even look at that in order to reach a proper

20 conclusion, in addition to all of the other omissions you made?

21 A. No, I didn't look at the medical information, apart from the

22 information available to me in the summary.

23 JUDGE ROBINSON: We'll break now.

24 --- Recess taken at 5.34 p.m.

25 --- On resuming at 6.02 p.m.

Page 4307

1 JUDGE ROBINSON: Mr. Tapuskovic.

2 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honour.

3 Q. As for incident number 18, I don't really want to deal with that,

4 because a witness who was supposed to be heard hasn't been heard yet so I

5 cannot deal with that at this point in time?

6 Honourable Witness, then I would like to you asking about

7 incident number 1, the 8th October, 1994. It's page 18 in B/C/S and page

8 18 in the English version as well.

9 MR. DOCHERTY: Your Honour.

10 JUDGE ROBINSON: Yes, Mr. Docherty.

11 MR. DOCHERTY: Before Mr. Tapuskovic puts his question could the

12 sketches that the witness has made be introduced into evidence. If

13 Mr. Tapuskovic is not going to move their admission, I respectfully will.


15 THE REGISTRAR: Your Honours, that exhibit will be admitted as

16 P516.

17 MR. TAPUSKOVIC: [Interpretation]

18 Q. Mr. Van der Weijden, I would like to proceed from the point where

19 you talk about the calibre of the weapon. You concluded here that most

20 probably automatic rifles fired. Is that right?

21 A. Automatic machine-guns, yes.

22 Q. And then you say that this excludes the M76 and M91

23 semi-automatic rifle; yes or no?

24 A. Yes.

25 Q. And then at the next paragraph, you said the M70 assault rifle

Page 4308

1 series have a capability to fire on automatic but are prone to muzzle

2 climb and, therefore, extremely difficult to keep aimed at a target even

3 at ranges under 50 metres; yes or no?

4 A. Yes.

5 Q. We said that you did not take into account the separation line

6 that existed, right?

7 A. Yes.

8 Q. And then you say here: "The weapons used will have been the M84

9 such-and-such calibre or M53 machine-gun Mauser on bipod or tripod

10 mounted? Is that right?

11 A. That is correct.

12 Q. Can you say, generally speaking, how you came to this, that this

13 weapon was on a bipod or a tripod at the separation line. On the basis

14 of what information did you come to that?

15 A. The information is from my personal experience that while

16 machine-guns generally are used on a bipod, on a bipod they are less

17 efficient then when employed on a tripod, especially weighted down with

18 sandbags. Machine-gun on a bipod will, similarly to the M70 assault

19 rifle, have more muzzle climb and move away from the target the longer

20 the burst of target is, but if a machine-gun is mounted on a bipod or a

21 tripod -- or sorry, on a tripod, the efficiency of the machine-gun will

22 go up greatly.

23 Q. However, until now, in these proceedings I did not hear from a

24 single witness that it was established through any evidence that this --

25 what you have been saying is the case. So this is your assumption,

Page 4309

1 right?

2 MR. DOCHERTY: Objection, Your Honour. The basis of an expert's

3 opinion can be drawn from personal experience from training. It does not

4 need to be drawn from what other witnesses have testified to. If that

5 was the rule, no witness could ever say anything original.

6 JUDGE ROBINSON: The question that was asked was so "until now in

7 these proceedings, I did not hear from a single witness that" it was

8 established through any evidence, et cetera et cetera. Yes, it doesn't

9 have to be established through evidence, Mr. Tapuskovic. And I'm sure

10 you know that. He gives the evidence on the basis expertise. In fact he

11 is not here as a fact witness. He is here as an expert.

12 So proceed to the next question.

13 MR. TAPUSKOVIC: [Interpretation] Well, that was not what I wanted

14 to ask, but I was compelled to do so.

15 Q. If you say that you know this from your own experience that means

16 that when you were a member of those units where you took part in certain

17 actions, you would always put a machine-gun or a rifle on a tripod. Is

18 that what you're trying to say?

19 A. No, it's not.

20 Q. Well, on the basis of what are you asserting now in proceedings

21 like these if you don't even know that from your own personal experience?

22 A. The reason to put a machine-gun up on a tripod has to do with

23 several facts. If I carry a machine-gun into battle, it will be -- a

24 machine-gun is not a light weapon, it's over 10 kilos, and over long

25 distance it can be very heavy.

Page 4310

1 So in offensive operations where people move on foot, it's

2 generally used on a bipod because that's the easier way to use it. In

3 set-up positions, such as along separation lines, it is very common for

4 machine-guns to be put on tripods and weighted down with sandbags to

5 improve the efficiency of the machine-gun. That is the reason why I

6 included the part about the tripod.

7 Q. But you said that assault rifles from the M76 series are prone to

8 muzzle climb and, therefore, extremely difficult to keep aimed at a

9 target even at ranges under 50 metres. Is that right?

10 A. Assault rifles from the M70 series are prone to muzzle climb

11 when fired on automatic, not on semi-automatic. So when firing in

12 bursts, it's very difficult to keep on target.

13 JUDGE ROBINSON: Sorry, I didn't understand the "climb". Did you

14 say "muzzle climb"?

15 THE WITNESS: Yes, the muzzle. Yes.


17 THE WITNESS: Muzzle.



20 JUDGE ROBINSON: And what is that?

21 THE WITNESS: Muzzle climb -- when firing a weapon, with the

22 action of the weapon, when the bullet leaves the barrel, there are

23 several moving -- there are moving parts that push the rifle back into

24 your shoulder, but also when the bullet leaves the barrel, the general

25 direction of the rifle to climb is upwards with -- it can be compensated

Page 4311

1 with the use of flash-hiders or with compensators, in which the --

2 JUDGE ROBINSON: With the use of what?

3 THE WITNESS: [Interpretation] Of compensators, and with

4 compensators is a device mounted on the end of a barrel that directs the

5 gas in the opposite direction of muzzle climb to keep the rifle more on

6 its target. That is not always present on rifles. And with the M70

7 series, it is not -- there are versions with have -- which have sort of a

8 compensator, but that's the reason why with assault rifles in general

9 it's very difficult on automatic -- on automatic to keep a rifle on its

10 target instead of it moving away.

11 MR. TAPUSKOVIC: [Interpretation]

12 Q. It is not only that you don't know where the separation line was,

13 but you also didn't know that in that part of town where the separation

14 line was, where all these things happened, that the front lines of both

15 sides were barely 15 metres away, and sometimes the front line went

16 through a single house. You don't even know about that?

17 A. I have read about it in general, but I don't know about the

18 specific incidents, if that was the case.

19 Q. Under such circumstances, could anybody have been fixed to a

20 tripod; yes or no?

21 A. Yes.

22 Q. I'm putting to you -- putting it to you that it is far more

23 logical that no one would dare use a tripod but on the contrary because

24 the warring parties were so close to each other, everyone had to be on

25 the move all the time; yes or no?

Page 4312

1 A. No.

2 Q. But I am asserting the exact opposite, that everyone had to be on

3 the move, and that there always had to be this muzzle climb; yes or no?

4 A. No.

5 Q. And finally, I would like to put something directly to you;

6 namely, that in that case, precision could not have been attained even at

7 50-metre ranges?

8 A. Could you rephrase the question, please?

9 Q. I'll ask even more directly. Does this mean that under such

10 circumstances, actually, there could only be an exchange of gun-fire, and

11 in that situation there would invariably be this muzzle climb, which

12 would prevent precise targeting and precise hits?

13 A. No.

14 JUDGE ROBINSON: Why? I'm asking to you explain.

15 THE WITNESS: Yes. In urban warfare, the separation or front

16 lines are usually fluid. They -- one day a house is in a position of one

17 party; next day it can be in the position of the other party. But there

18 are always features in the terrain which are dominated by one party for a

19 longer period of time. And especially with sniping as I have written in

20 the introduction to sniping, the sniper or the shooter, you don't -- the

21 front line is not a straight line; it moves -- it -- it flows through

22 the -- through the terrain according to the positions available or the

23 features in the terrain such as buildings.

24 So it's not a straight line going through all the buildings,

25 which also means that a shooter doesn't have to be exactly on the front

Page 4313

1 line; he could be 100 metres behind the front line and still fire across

2 the front line to the other -- to the other side. So there is --

3 although most things in urban warfare are fluid, it doesn't mean that

4 there is -- that there are no fixed positions.

5 In addition to that, with the muzzle climb the only -- the

6 weapons that I've -- of which I write about as to being very prone to

7 muzzle climb are the M70 series assault rifles, and those especially I

8 rule out as a possibility. So I didn't because -- because of muzzle

9 climb and their lack of accuracy. So those are the weapons that I've

10 excluded as being -- of being used.

11 JUDGE ROBINSON: Are you in possession of information as to the

12 kind of rifles that would have been used by snipers in conflict?

13 THE WITNESS: Well, the -- yes, sorry.

14 The rifles used by snipers in the conflict, they probably would

15 have been used by -- by all sides because the M76 and M91 or Dragunov,

16 which is a copy of a -- a Russian sniper rifle, they were present in

17 large quantities at the beginning of the conflict. So with the conflict,

18 probably all sides would have used the same weapons.

19 But the sniper rifles used in the conflict -- well, M76 and M91,

20 those are the sniper rifles that were used by the military at the time,

21 but there were rifles which were considered obsolete at the time, which

22 was the M48, which was a German rifle in the Second World War, which was

23 also used by Yugoslavia after the war. And in addition, there are also

24 hunting rifles, which would -- could be used but of the hunting rifles,

25 there are such a large variety that it would be difficult to -- to point

Page 4314

1 out a single rifle --

2 JUDGE ROBINSON: But those -- the rifles that you have identified

3 as having been used in the conflict, would they have been susceptible to

4 this muzzle climb?

5 THE WITNESS: Sniper rifles, in general, are optimised for

6 accuracy and will have less muzzle climb than other rifles. The main

7 reason for muzzle climb is firing several shots in a rapid succession, so

8 on automatic rifles tend -- the most impact of muzzle climb, sniper

9 rifles -- there are -- to my knowledge, there are no automatic sniper

10 rifles, there are semi-automatic sniper rifles, but even with those the

11 shooter decides himself how rapidly he fires. And with two -- in my

12 opinion, a shooter with a scope rifle will never fire more rapidly than

13 he would be able to get his scope back on the target again. So with

14 sniper rifles, the muzzle climb is not normal. It happens, but it's not

15 of an impact.

16 JUDGE HARHOFF: So, if I understand you correctly, what you're

17 saying is that if you have evidence of automatic shooting that does not

18 appear to have been deviated by muzzle, then that shooting most likely

19 would have come from a machine-gun mounted on a tripod; is that correct?

20 THE WITNESS: Yes. That is what I have written for this case as

21 well.

22 MR. TAPUSKOVIC: [Interpretation]

23 Q. But if it is not on a tripod, this M70 weapon and the other

24 weapon, the machine-gun, then it's not a sniper any longer. If it's not

25 on a tripod, it cannot be a sniper rifle anymore. Is that correct?

Page 4315

1 A. For the -- the M70 is an assault rifle which is not possible --

2 it's not made to be mounted on a tripod. It doesn't have holes in it

3 that are used to put it on a tripod. It's a standard assault rifle

4 similar to the AK47 Kalashnikov assault rifle used by the Russians. The

5 M70 is a Yugoslavian copy of -- of that rifle.

6 I never, in the report, wrote that the shooter has been a sniper,

7 I -- because if someone uses a machine-gun, well, he's not a trained

8 sniper but just a trained soldier with a machine-gun. So there's never a

9 conclusion that it has been a sniper, it has always been a shooter. And

10 from the information I concluded -- from the information provided to me,

11 I concluded what type of weapon was most likely used, and if it was a

12 machine-gun it will not have been a sniper using the weapon.

13 Q. However, I have to insist, sir, on this assault rifle, which is

14 characteristic for trench position, it could not have been accurate even

15 at 50 metres with regard and due to this muzzle climb that exists when

16 fired?

17 A. I wrote that it is not accurate on automatic. The rifle is more

18 precise when used in a semi-automatic mode, which is every time you pull

19 the trigger, one shot -- one bullet leaves the barrel. You have to

20 release the trigger and press the trigger again to shoot another -- to

21 get another bullet out of the barrel.

22 In addition to the muzzle climb in the M70 series, the sights on

23 the M70 assault rifle are -- have a very short sight radius, which means

24 that the front side and the rear side are a very short distance apart

25 from each other, and it is very similar to air rifle sights and not

Page 4316

1 suitable for shooting at distances over 2000 metres.

2 It doesn't mean that someone won't be able to fire in that

3 direction and or that he will never hit a target over 200 metres, it is

4 just not suited at distances over 200 metre -- 200 metres.

5 But on an automatic, it's a different -- it's different because

6 then the muzzle climb will be -- will force the weapon to -- away from --

7 from the target and make it very difficult to hit something with -- on

8 automatic distances over 50 metres for a longer time.

9 Q. Can we then, at least, conclude that the use of this rifle is

10 characteristic for an exchange of fire between the parties to the

11 conflict?

12 A. Well, I believe this is the rifle that was mostly used by most

13 warriors in the conflict, yes.

14 Q. During the exchange of fire, when both sides are firing at the

15 same time?

16 MR. DOCHERTY: Your Honour.


18 MR. DOCHERTY: I object to the supposition that is contained in

19 that question. There is no way that you can conclude from the type of

20 weapon used that someone is shooting back at you. All that the

21 Lieutenant has done is say this is the sort of weapon that was used to

22 fire a shot. From that, it is impossible to conclude that because this

23 particular weapon was used, someone must have fired back.

24 JUDGE ROBINSON: Well, let us hear whether the Lieutenant can

25 answer the question on the basis of his expertise.

Page 4317

1 Are you in a position to answer it?

2 THE WITNESS: [Interpretation] Well, it wouldn't be yes or no.

3 Well, if there's an exchange of fire in modern conflict, there is no --

4 no one uses the same -- not everybody uses the same weapon. In every

5 infantry unit there is a mix of machine-guns, pistols, rifles, assault

6 rifles. So it's always a mix of weapons that is used. It's not just the

7 M70 assault rifle, which was the weapon most present on the battlefield

8 properly because it's produced in the largest numbers. But in addition

9 to that, the M84, the M53 machine-guns, the M76, the M91, will all have

10 been used at the same time.

11 MR. TAPUSKOVIC: [Interpretation]

12 Q. You included precisely this rifle in your report as a suggestion,

13 not as a supposition. I would just like to put it to you that given that

14 you said that this particular rifle was used, that it did not allow for

15 precision fire, and I'm asking you wasn't that precisely the rifle that

16 was used on the separation line for -- for returning the fire? I'm not

17 now raising the question who fired first.

18 A. Well, most of the warriors on the -- at the separation line will

19 probably have used his rifle, but it wasn't the only rifle used at the

20 separation line, because it's always a mix of weapons.

21 Q. I must ask you again, you yourself said that under such

22 circumstances, this rifle is ineffective. It cannot precisely engage a

23 target, not even at 50 metres. That's what you said. Then this is what

24 you wrote.

25 A. In this case in which the victims and witnesses mention bursts of

Page 4318

1 fire like a machine-gun, the reason why I included the M70 series of

2 assault rifle is because it is capable of firing automatic, but because

3 of the lack of accuracy at ranges over 50 metres, I ruled it out of

4 the -- as a possibility. It also means that it's not -- in my opinion,

5 it's not a regular line soldier who has fired the shots at the target but

6 a machine-gun mounted on a tripod.

7 Q. Do you know at all that the army of Republika Srpska has this

8 kind of machine-gun? Do you know that at all?

9 A. The machine-guns are still in service and still being produced at

10 the Sastav [phoen] Arms Factory. So I -- I do believe the machine-guns

11 at that time were already in service as well as visualised by the media,

12 and there will be photos newspapers from time to time.

13 Q. As far as I can understand, you persistently base your claims on

14 what you heard from the media. I'm asking you, did you have any way at

15 the time when you were making the analysis to establish and determine

16 what you are talking about, whether based on evidence of proof or any

17 document. Apart from what you heard or read in the media?

18 A. According to Jane's Infantry Weapons, barracks infantry weapons

19 which is very -- is a database of small arms being used by the armies all

20 over the world. You will see that every year preceding the war in

21 Bosnia-Herzegovina and after the war, the M84 and M53 machine-guns will

22 be mentioned in Yugoslavia or in the separate nations that were formed

23 after the war.

24 Q. Then it would mean that both parties had these kinds of weapons?

25 A. Yes. That is very likely.

Page 4319

1 Q. If we can now go a little bit onwards, after the photographs on

2 the next page, there is another piece of information, additional

3 information. Page 20. I suppose it's the same in the English version?

4 Here you say somewhere in the middle in the third passage: "The

5 information provided by the victim determines the Grbavica area as the

6 source of fire but this is contradictory to the coordinate mentioned in

7 the witness report."

8 You are making an assessment here which is contrary even to what

9 the witness stated. Was that within your mandate as an expert?

10 JUDGE ROBINSON: Just a minute. I'm trying to find it in the

11 English. Can you help me find it, Mr. Docherty?

12 MR. DOCHERTY: It's e-court page 20, yes, it's the very first

13 line on the left-hand side. The information provided by the victim.

14 Your Honour, there is a disjunct between the e-court page and the printed

15 page. It is printed page 19 of 57 is e-court page 20 and it begins at the

16 very top of -- the very top of the page. Exactly, Judge Harhoff.

17 JUDGE ROBINSON: Yes, thank you.

18 Go ahead.

19 MR. TAPUSKOVIC: [Interpretation]

20 Q. So it says here that the information provided by the victim

21 determines the Grbavica area as the source of fire, but this is

22 contradictory to the coordinate mentioned in the witness report?

23 You are making an assessment here of what the witness said and

24 you even recognise the existence of something that is contradictory.

25 A. That's true. That's correct.

Page 4320

1 Q. And then you go on to say: "This information indicates a

2 location 50 metres east of the one given by the victim." Isn't that

3 again something for this Trial Chamber to decide and assess?

4 A. The report reflected my personal opinion in my experience and

5 with the information provided me -- to me by the Prosecutor and the

6 visit -- my visiting Sarajevo and the incident site, I reached the

7 conclusion that the victim -- the witness which in this case was also the

8 victim, gave a location of -- mentions the Grbavica building as the

9 source of fire, but the problem was that the location of the GPS

10 coordinate which was provided from that coordinate it was not possible to

11 see the Grbavica building so that is why I included this section in the

12 report.

13 Q. And you shifted it of all places to the Jewish cemetery which was

14 known as a place of sniping activity. On the basis of what did you now

15 suddenly decide that the location from which the shot came was the Jewish

16 cemetery? Because it was a known place from which sniper fire came. How

17 did you know that? Can you explain this?

18 A. I didn't conclude that Jewish cemetery was the origin of fire.

19 And the Jewish cemetery was -- is mentioned in a different paragraph --

20 of in a different incident so -- that's why I included it in this case as

21 well, from the Jewish cemetery it is possible to look to get a view of

22 the incident site -- at the GPS coordinate, but for me it is -- for me it

23 is more likely that the victim or the witness with the confusion

24 happening at the time of the shooting mistook the exact moment when the

25 shooting took place. You have to take into account that he is moving --

Page 4321

1 he is in a tram, that it is moving eastwards towards the town centre

2 and -- well, according to the information -- to my summary, he suddenly

3 hears shooting, saw people running, he recalled burst of fire. At that

4 time before realising they are already several seconds farther into the

5 incident and at that time the tram keeps moving, so I believe he was

6 fired upon from the Grbavica building or at least a building marked in

7 the -- in layout number 2, and the GPS coordinate was taken at the

8 location where the tram stopped.

9 So I didn't conclude that the firing came from -- originated from

10 the Jewish Cemetery but, rather, from the Grbavica building or from

11 Grbavica.

12 Q. Let us dwell a little bit longer what you say here, under heading

13 additional information. Did the individuals who provided this additional

14 information to you tell you that a significant part of the Jewish

15 cemetery was under the control of the BH army?

16 A. No.

17 Q. Thank you. And at the end of this section, so last page relating

18 to this incident, under the heading identification. I'd like to

19 understand -- it's page 22 in B/C/S and I think it's the 21st or 22nd

20 page in English. You can see it here, identification?

21 What does this mean, what you said: "The previous incidents were

22 widely reported on television and in newspapers since they happened under

23 the nose of the international press assembled at Holiday Inn Hotel just

24 metres away from the incident site"?

25 What was the relevance of this, to your expert opinion of this

Page 4322

1 whole incident? Did you succumb to the press -- through the pressure of

2 the media?

3 A. No, I didn't. The reason why I included this under

4 identification is as I have written a tram is a means of public

5 transport. It is used to transport civilians. There were

6 several -- according to my knowledge, and the information provided, there

7 were several incidents in which trams were fired upon. I don't reach the

8 conclusion as to which site shot at. I just indicate a direction from

9 which -- where the shooter must have been.

10 The incidents were almost all reported in -- by the international

11 press at the Holiday Inn. It's just an indication that through the press

12 coverage, the people shooting the weapons would have -- be able to

13 conclude that there was civilians they were firing on and that should be,

14 in my opinion, reason not to shoot at trams another time. So that is why

15 I conclude this section in -- under identification.

16 Q. I'm not going to read to you the last paragraph where you speak

17 again about the media. I'd like to ask you about your expert analysis.

18 Could it have -- could anything that is written in the paper or published

19 in the media have any bearing on your analysis, or was it your duty

20 within the limits of your skills and the experience to establish what

21 exactly happened?

22 A. It was my duty to -- to try to determine the source of fire,

23 where the shooter might have been, what the range was, the most likely --

24 the weapon that was most likely used, an inside in sniping and also if it

25 was possible to identify the victims or targets as combatant or

Page 4323

1 non-combatant as referred.

2 Q. Sir, can we just go briefly to incident 5 of the 18th of

3 November?

4 MR. TAPUSKOVIC: [Interpretation] English version 22, and B/C/S

5 version page 23.

6 MR. DOCHERTY: Your Honour.


8 MR. DOCHERTY: Just for information, at this point I would have

9 perhaps five minutes of re-direct of the Lieutenant.

10 JUDGE ROBINSON: Thank you. We'll take that into account, yes.

11 MR. TAPUSKOVIC: [Interpretation] Of course, I will finish by five

12 to 7.00.

13 Q. Here, you talk about an incident which took place on the 18th of

14 November in which a little boy, Nerman Divovic, was killed. I'm not

15 going to go into ballistic or sniper or any other elements with regard to

16 this incident. What I would like to hear from you is to tell me this:

17 How is it possible that even in this case, you didn't take into account

18 the medical records? Can you explain that or not? Why didn't you use

19 medical documentation in this case, either?

20 A. Medical documents weren't available to me, and I didn't deem them

21 necessary for me to reach my conclusions.

22 Q. Thank you. Now case number 8.

23 MR. TAPUSKOVIC: [Interpretation] English page 25, B/C/S 27.

24 Q. In order to expedite my questioning, if you can see it,

25 everything in relation to this case. Again, we have a tripod here, so do

Page 4324

1 you maintain the same position as before with regard to a tripod for

2 semi-automatic rifles M76 and M91.

3 A. I never concluded that the M76 or M91 were used on tripods since

4 they are sniper rifles and they are not employed on tripods. If

5 tripods -- if there are tripods mentioned, it is in conjunction with the

6 M84 or 53 machine-gun, not with the M76 or M91 with sniper rifles.

7 Q. The point here is that these semi-automatic rifles were most

8 probably used; their accuracy is, again, within 50 metres?

9 A. No. That is not the case. I exclude the M70 assault rifle

10 series because they are difficult to keep aimed at a target even at range

11 under 50 metres. The reasons I -- in my opinion were used are the M84

12 and 53 machine-gun, bipod or tripod-mounted.

13 Q. But here you talk about semi-automatic sniper rifles M76 and M91.

14 In what context was that?

15 A. They are in the context of being excluded because there were

16 several shots fired at a rapid rate, which usually excludes sniper

17 rifles.

18 Q. Can we say that this is precisely characteristic of an exchange

19 of fire between warring parties? I'm not going to tell you what happened

20 on that particular day, it is for the Trial Chamber to examine this

21 evidence, but isn't this characteristic of an exchange of fire?

22 A. No.

23 Q. Speaking of a tripod in general, do you know that this tripod for

24 a machine-gun weighs 45 kilos? Who can carry that? If it is stationary,

25 couldn't that become a target that can very easily and quickly be

Page 4325

1 eliminated and annihilated? Do you know that it weighs 49 kilos?

2 A. I don't believe the tripod for the M84 weighs 45 kilos, but even

3 if it weighs 45 kilos, a machine-gun or an urban shooting position can be

4 reinforced with sandbags to keep it functioning for a longer time to make

5 it sort of a bunker in a house.

6 So it does -- a machine-gun does attract fire, as was evident by

7 the bullet-holes visible -- still visible on the Grbavica building or the

8 building that I visited. So, yes, I do believe it attracts fire, but

9 it's not that easy to neutralise as a shooting position when using

10 sandbags.

11 Q. Incident number 13 and 14. Since it's the same story, I don't

12 want to repeat it. But let us move on to incident number 6.

13 MR. TAPUSKOVIC: [Interpretation] English page number 36; B/C/S,

14 40. I hope I will have enough time for that, too, at least.

15 Q. You see the calibre, don't you? The use of hand-held launchers

16 or anti-aircraft weapons, the range from which I believe the firing came

17 is over 500 metres.

18 My question is whether you know at all there are two types of

19 hand-held launchers, if the maximum range is 240 metres - we heard about

20 that from several witnesses here - do you know that at all? Do you know

21 that on the basis of your own knowledge and experience?

22 A. It is on the basis of my own personal knowledge and experience,

23 yes.

24 Q. Thank you. And we have a few more incidents. Incident number 7

25 is the same, so I'm not going to dwell on that, and also the other

Page 4326

1 tripods.

2 But 10 and 15 are both incidents at Sedrenik. I would just like

3 to ask you the following: You probably don't know that at all, that up

4 there at Sedrenik, that you do not know at all where the separation lines

5 were up there? You don't, right, at Spicasta Stijena? Or, rather, you

6 mentioned Spicasta Stijena up here in your findings. Do you know that

7 at Spicasta Stijena there were separation lines or, rather, where they

8 were?

9 A. I wasn't aware of any separation lines. I was aware that there

10 are separation lines since there was a conflict. But I wasn't aware of

11 any specific locations, apart from the positions visited by me which are

12 visible on the -- I think that it's page 44 then, if it's in the English

13 version, because I took the photo of trench lines that are still visible

14 at the -- somewhere on that hill.

15 Q. Since there's no more time left, do you know that there, at

16 Spicasta Stijena, most of the gun-fire exchanges occurred? I don't want

17 to explain anything else to you now. Did anybody tell you that piece of

18 information; that there was a great deal of fire exchange up there

19 between the parties that were in conflict?

20 A. No.

21 Q. Thank you.

22 MR. TAPUSKOVIC: [Interpretation] Your Honours, I have completed

23 my cross-examination. Thank you.

24 JUDGE ROBINSON: Mr. Docherty.

25 Re-examination by Mr. Docherty:

Page 4327

1 Q. Lieutenant, just a few questions in redirect. First of all, I

2 want to clear up -- I'm a bit confused as to the role -- potential role

3 of medical information in your analysis.

4 Back at the beginning of cross-examination, Mr. Tapuskovic asked

5 you a question about medical information, and I believe you said it could

6 be important. And then towards the end of your cross-examination when

7 being asked about the shooting of Nermin Divovic, you said that you did

8 not have access to the medical information, and I believe you indicated

9 it would not have mattered if you had, because it did not play a role in

10 your analysis. And I'm just wondering if you could just clear up those

11 two answers?

12 A. I will try to.

13 The medical information -- every rifle round has different

14 characteristics and will have a different effect when entering human

15 tissue. If a witness states that he was hit by a 50-calibre round but in

16 his knee -- but still has his knee, it will not have been a 50-calibre

17 round because the 50-calibre round will probably -- will most likely

18 destroy his -- completely and with it his lower leg.

19 The problem that ballistic experts have with the police - and I

20 know, I have had classes by ballistics experts - is most of the ballistic

21 experts, the cases they handle take place within rooms or at short ranges

22 in which -- under which you can use a dummy, insert sticks into the dummy

23 to determine the exact origin of fire. The problem is at short ranges

24 bullets travel in relatively straight lines, so with -- yeah, with a

25 stick you could point back to the origin of fire, and that would help

Page 4328

1 determining the type of weapon -- the origin of the shooting location.

2 Coming back to medical information, it's standard military

3 ammunition, as allowed by the Convention of Geneva, is full metal jacket,

4 which doesn't have that much deformation when entering human tissue. It

5 will tumble, it will cause damage, but it won't -- it will destroy tissue

6 but not -- it won't destroy it that much.

7 If you compare that to hunting ammunition, which is also

8 available, hunting ammunition, especially the hollow-point ammunition,

9 has a tendency to bloom open like a mushroom, which in a very short

10 instance of time transfers kinetic energy towards -- to the body and

11 destroying more of the tissue.

12 Q. Lieutenant, I'm sorry, maybe I could just cut short. I think --

13 perhaps we're miscommunicating.

14 Let me ask you this: What role does medical information have if

15 you're trying to determine the origin of fire?

16 A. If you have the entry and exit wound of the victim and you have

17 the exact body position and location of the victim, you would be able to

18 get the -- the -- the direction of the shooter.

19 Q. Was the exact body location of the victim available to you in any

20 of the cases that you studied in preparing your report?

21 A. The exact body position was available, but the -- of the body

22 location was available, but the body position was not available, apart

23 from some testimony by the witnesses.

24 Q. And as a matter of an example, if someone is shot in the right

25 side, let us say, does that information gain or lose usefulness depending

Page 4329

1 upon whether the person was turning to their left, turning to their

2 right, bending over, standing up straight, et cetera?

3 A. Yes, it does.

4 Q. Moving quickly to this question of muzzle climb that took quite

5 awhile on cross-examination. When -- start with this proposition: When

6 a gun is fired, it recoils; is that correct?

7 A. That is right.

8 Q. And just to get some terminology, what does it mean when you say

9 that a weapon is being fired on full automatic?

10 A. On full automatic, when -- keeping the trigger depressed, when

11 pressing the trigger the bullets will -- the whole action of the weapon

12 will automatically cycle and keep going automatic firing bullets until

13 the trigger is released.

14 Q. And with the weapons that are used in NATO armies, when a weapon,

15 an assault rifle, is being fired on full automatic, about how many rounds

16 a minute are coming out of the barrel, as an approximation?

17 A. I would say seven to 800 rounds a minute.

18 Q. And this recoil that you mentioned a few -- a minute or two ago,

19 what does that do to the barrel of the rifle every time that a round

20 leaves it? Does it move it up, down, left, right, or what?

21 A. It depends upon the design of the weapon, but in general the

22 weapon goes up and to the right -- the barrel to the right.

23 Q. And when a weapon is being fired on full automatic, and this is

24 happening is seven to 800 times per minute, how much control does the

25 rifleman have over this motion upwards and to the right?

Page 4330

1 A. If it is an assault rifle used on automatic from standing or a

2 sitting position, he has very limited control. To give an impression, at

3 5 metres firing an automatic weapon, it would probably -- the first round

4 would hit at the target, but the second round would probably hit 10

5 centimetres up and to the right, and so on and so on. So within five

6 shots, it will be off the target at 5 metres.

7 Q. And is this the phenomenon that you call muzzle climb?

8 A. It is.

9 Q. How much of a factor is muzzle climb when you are firing not on

10 fully automatic but on semi-automatic, or even single-firing with a

11 bolt-action rifle?

12 A. Muzzle climb still happens, but it is not of importance because

13 every -- with every shot fired on semi-automatic or single shot, the

14 shooter will come back with his rifle in the direction where he -- on his

15 target, get his target in his sight, and will then press the trigger

16 another time.

17 Q. And then lastly, Lieutenant, there was lot of testimony

18 concerning this incident number 2, the shooting of the young man through

19 the tunnel, and I'm not going to draw triangles and I'm not going to --

20 or anything like that. But you were at the scene; is that correct?

21 A. I was, yes.

22 Q. And looked through that tunnel; correct?

23 A. Yes, I did.

24 Q. All right. You are a fairly good shot, would you say?

25 A. I would say so, yes.

Page 4331

1 Q. All right. And, Lieutenant, if you were to take that shot, from

2 the highest point in those buildings that are outlined in your report, if

3 you were going take that shot ten times, about how many times do you

4 think you would hit the target?

5 A. If there would be a paper target at that location stationary, I

6 would hit it ten times easily.

7 MR. DOCHERTY: I have no further questions, Your Honour.

8 JUDGE ROBINSON: Thank you, Lieutenant. That concludes your

9 testimony. Thank you for giving it, and you may now leave.

10 Please escort the Lieutenant out. I have an administrative

11 matter to attend to.

12 [The witness withdrew]

13 JUDGE ROBINSON: As a result of the joint motion filed by the

14 Prosecution and the Defence to amend the Scheduling Order of the 15th of

15 March, the Chamber has decided to amend its order, and I will now give

16 you the new dates. I should say immediately that the Chamber will have a

17 written decision filed.

18 The Trial Chamber will sit from 9.00 until 5:00 on Friday, the

19 20th of April and the 27th as well, provided that a courtroom will be

20 available in the afternoon. That is for the 27th, and that is to be

21 confirmed as soon as possible.

22 The Prosecution case will close on Wednesday, the 2nd of May.

23 Oral submissions of both parties pursuant to Rule 98 bis, if any, will be

24 made on Thursday, the 3rd of May. The submissions pursuant to that Rule

25 are to be made within a time frame of one and a half hours for each

Page 4332

1 party, and the decision, in relation to that submission, will be rendered

2 on Thursday, the 3rd of May.

3 The Defence is to provide the Prosecution and the Trial Chamber

4 with a list of their first two witnesses and the 65 ter summaries for

5 those witnesses on Tuesday, the 15th of May. The Defence will file their

6 submissions pursuant to Rule 65 ter on Monday, the 21st of May by 1.00

7 p.m. at the latest. The pre-Defence conference will take place on

8 Thursday, the 24th of May, and will last no longer than one and a half

9 hours. The pre-Defence conference will be immediately followed by the

10 Defence opening statement, which will last no longer than one and a half

11 hours.

12 The first witness for the Defence will be heard on Thursday, the

13 24th of May, following the Defence opening statement.

14 The Trial Chamber will not sit on Friday, the 25th of the May.

15 And as I indicated before, a written decision will be filed tomorrow.

16 We're adjourned.

17 --- Whereupon the hearing adjourned at 7.05 p.m.,

18 to be reconvened on Monday, the 2nd day of April,

19 2007, at 9.00 a.m.