1 Monday, 7 August 2006
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 8.59 a.m.
5 JUDGE BONOMY: Good morning, everyone. While we await the arrival
6 of the witness, can I invite you to introduce to me any new personnel who
7 appear. I think there's at least one change of personnel since we were
8 here before.
9 Mr. Bakrac.
10 MR. BAKRAC: [Interpretation] [No interpretation].
11 JUDGE BONOMY: Hold on a second, there's no interpretation.
12 THE INTERPRETER: Can you hear the English channel now?
13 MR. BAKRAC: [Interpretation] The Defence of General Lazarevic has
14 been joined by Mr. Djuro Cepic as co-counsel and from now on he will be
15 sitting in the courtroom with me.
16 JUDGE BONOMY: Thank you, Mr. Bakrac.
17 [The witness entered court]
18 JUDGE BONOMY: Good morning, Mr. Abrahams. You are aware, of
19 course, that the solemn declaration you took, what is now just over three
20 weeks ago, continues to apply to your evidence until it finishes.
21 THE WITNESS: Yes, I am.
22 JUDGE BONOMY: Thank you.
23 Mr. Bakrac to continue his cross-examination.
24 MR. BAKRAC: [Interpretation] Thank you, Your Honour.
25 WITNESS: FRED ABRAHAMS [Resumed]
1 Cross-examination by Mr. Bakrac: [Continued]
2 Q. [Interpretation] Good morning, Mr. Abrahams. I will continue from
3 where we broke off on the 15th of July this year. That is to say, before
4 the court recess we talked about some of the conclusions you drew on the
5 basis of investigations that you said were appropriate in your assessment.
6 Is that what you said, that your conclusions were appropriately made?
7 A. That is to the best of my recollection, yes.
8 Q. Mr. Abrahams, I'm interested in the following. Do you know how
9 many verifiers were on the Kosovo Verification Mission and do you know
10 when they came to the territory of Kosovo?
11 A. I believe the verification mission began in October 1998; at least
12 that's when the agreement was signed. I'm not sure exactly when the first
13 monitors hit the ground. Of course they supplemented a team already in
14 Kosovo, the KDOM, Kosovo Diplomatic Observer Mission. And to the best of
15 my recollection the KVM mission had, if I'm not mistaken, it was 2.000
16 monitors, but I truly do not recall the precise figure.
17 Q. So before the Kosovo Verification Mission, KDOM was there, the
18 Diplomatic Observer Mission, that also involved a certain number of
19 people. Is that right? I mean a larger number of people. Is that right?
20 A. What do you mean, "larger number of people"?
21 Q. Well, let that be my question. How many people were on the KDOM
22 mission in Kosovo; do you know?
23 A. I don't know.
24 Q. Mr. Abrahams, do you know that among these 2.000 people on the
25 verification mission there were a large number of, say, German observers?
1 A. I could not give you the precise breakdown by nationality, but I
2 do believe that Germans were a part of the delegation or the mission.
3 Q. Will you agree with me if I say, in view of the number of the
4 verifiers, that the foreign ministries of some countries, especially
5 NATO-member countries, had relevant information about what was going on on
6 the ground?
7 A. I truly cannot speak to what governments knew or did not know in
9 Q. Well, that was not my question, what they knew I mean. I'm just
10 asking if you will agree with me that through their verifiers they could
11 have had relevant information about what was going on in Kosovo, even
12 before October 1998 and especially as from October 1998 onwards?
13 JUDGE BONOMY: Mr. Abrahams, do you know the relationship between
14 verifiers and the governments of the countries from which verifiers come?
15 THE WITNESS: The precise nature of the relationship I do not
16 know, Your Honour.
17 JUDGE BONOMY: The witness isn't in a position to answer that
18 question, Mr. Bakrac.
19 MR. BAKRAC: [Interpretation]
20 Q. Well, Mr. Abrahams --
21 MR. BAKRAC: [Interpretation] Actually, now I would like Defence
22 exhibit PD1 to be shown on e-court.
23 JUDGE BONOMY: Does that mean 6D1?
24 MR. BAKRAC: [Interpretation] No -- actually, 5, 5D1.
25 JUDGE BONOMY: I see what you've got on the screen. Where is this
1 evidence leading, Mr. Bakrac? What is the point that you're trying to ask
2 the witness about, until I see whether in fact this is a witness who can
3 deal with this sort of evidence you're trying to lead?
4 MR. BAKRAC: [Interpretation] Your Honour, I wanted to put
5 intelligence reports to the witness, intelligence reports of the countries
6 involved that are quite contrary to what he reported about. I mean on the
7 basis of which reports were made of the Human Rights Watch, that is. So
8 on the basis of three or four 15-day tours of the area, where he either
9 carried out investigations on his own or with somebody else.
10 JUDGE BONOMY: I understand. Carry on.
11 MR. BAKRAC: [Interpretation]
12 Q. Mr. Abrahams, what you see before you is an excerpt from official
13 documents obtained from the International Lawyers Association Against
14 Nuclear Armament. What I'm going to read out to you are three brief
15 decisions. II, intelligence reports from the foreign ministry of
16 January 12, 1999, addressed to the administrative court in Trier. "Even
17 in Kosovo an explicit political persecution linked to Albanian ethnicity
18 is not verifiable. The east of Kosovo is still not involved in armed
19 conflict. Public life in cities like Pristina -- public life in cities
20 like Pristina, Urosevac, Gnjilani, et cetera, has, in the entire conflict
21 period, continued on a relevantly normal basis. The actions of the
22 security forces were not directed against the Kosovo Albanians as an
23 ethnically defined group, but against the military opponent and its actual
24 or alleged supporters."
25 So this is a decision of the administrative court in Trier
1 Az: 514 --
2 THE INTERPRETER: The interpreter did not get the number; it was
3 read out too fast.
4 MR. BAKRAC: [Interpretation] IV, opinion of the administrative
5 court of Bavaria of the 29th of October, 1998. "Status reports of the
6 Ministry of the Interior dated the 6th of May, 8th of June, and the 13th
7 of July, 1998, presented to the appellant in terms of -- do not allow for
8 the possibility of collective persecution against the Albanians, even
9 regional collective persecution -- even that cannot be established with
10 sufficient certainty" --
11 MR. STAMP: I think -- I'm not really objecting, but I think for
12 clarity. I think counsel is moving from bits to bits on the document
13 referring to various extracts on various dates, and the e-court picture is
14 not moving to where he's referring. So if he could take things step by
15 step, one extract and then the next extract so we could see what he's
16 referring to. That's all I ask.
17 JUDGE BONOMY: I think the point is well made, Mr. Bakrac.
18 MR. BAKRAC: [Interpretation] Yes, Your Honour, I concur with what
19 my colleague said, and I do apologise. At the very outset I said that
20 this was paragraph IV of the relevant document, that is to say, the
21 opinion of the administrative court in Bavaria, October 1998. Az: 22 BA
23 JUDGE BONOMY: Well, we have the relevant passage now clearly on
24 the screen.
25 MR. BAKRAC: [Interpretation] Yes. Your Honour, to save time may I
1 continue from where I broke off or should I start reading from the
3 JUDGE BONOMY: Carry on from where you broke off, please.
4 MR. BAKRAC: [Interpretation] "Violent actions of the Yugoslav
5 military and police since February 1998 were aimed at separatist
6 activities and are no proof of a persecution of the whole Albanian ethnic
7 group in Kosovo or in a part of it. What was involved in the Yugoslav
8 violent actions and excesses since February 1998 was a selective forcible
9 action against the military underground movement (especially the KLA) and
10 people in immediate contact with it in its areas of operation ... A state
11 programme of persecution aimed at the whole ethnic group of Albanians
12 exists neither now nor earlier."
13 VI, the opinion of the higher administrative court in Munster
14 dated the 24th of February, 1999, VI.
15 "There is no sufficient actual proof of a secret programme, or an
16 unspoken consensus on the Serbian side, to liquidate the Albanian people,
17 to drive it out or otherwise to persecute it in the extreme manner
18 presently described ... If Serbian state power carries out its laws and in
19 so doing necessarily puts pressure on an Albanian ethnic group which turns
20 its back on the state and is for supporting a boycott, then the objective
21 direction of these measures is not that of a programmatic persecution of
22 this population group ... Even if the Serbian state were benevolently to
23 accept or even to intend that a part of the citizenry which sees itself in
24 a hopeless situation or opposes compulsory measures should emigrate, this
25 still does not represent a programme of persecution aimed at the whole of
1 Albanian majority in Kosovo. As a matter of fact, if the Yugoslav
2 authorities act -- reacted to separatist tendencies by firmly adhering to
3 the law and through anti-separatist measures and if somebody due to
4 that" --
5 THE INTERPRETER: Interpreter's note, could we please have the
6 document on the screen.
7 MR. BAKRAC: [Interpretation] "... and if somebody crosses the
8 border this still does not constitute intentional policy on the part of
9 the Yugoslav state aimed at persecuting national minorities: On the
10 contrary" --
11 JUDGE BONOMY: Now, Mr. Bakrac, I think time for a question.
12 MR. BAKRAC: [Interpretation] Oh, I agree, Your Honour, but if you
13 allow me just one more minute. There is just one more brief decision and
14 then I'm not going to quote anything anymore.
15 "February and March 1998 do not evidence a persecution programme
16 based on Albanian ethnicity. The measures taken by the armed Serbian
17 forces were in the first instance directed toward combatting the KLA and
18 its supposed adherence and supporters."
19 THE INTERPRETER: The interpreters note that the text will have to
20 be read out slower. There are other booths working as well, not only the
21 English booth.
22 JUDGE BONOMY: Mr. Bakrac, the interpreters are asking that you
23 read these passages more slowly because there is an element of translation
24 involved that doesn't depend on a transcript already provided in English.
25 There are other languages to be taken into account.
1 MR. BAKRAC: [Interpretation] Your Honour, I do apologise. If
2 there is any justification or excuse for this I just want to save time, I
3 don't want to waste any time, and I am creating obviously a problem for
4 the interpretation and I'm sorry. Is it necessary for me to repeat what
5 I've read out so far or may I proceed?
6 And the last decision, VII that follows after VI, the opinion of
7 the upper administrative court at Munster, March 11, 1999.
8 "Ethnic Albanians in Kosovo have neither been nor are now exposed
9 to regional or country-wide group persecution in the Federal Republic of
11 So that is a decision dated the 11th of March, 1999, ten days
12 before the NATO bombing started.
13 Mr. Abrahams, can you explain to us how come your reports are so
14 different from the intelligence reports of the foreign ministry of a
15 serious NATO country like Germany?
16 A. First of all, I would like to correct what I consider a
17 misstatement on your part. You said that I had travelled to Kosovo two or
18 three times to collect the information in our reports, which is not
19 correct. I personally travelled there five times between the period of
20 February 1998 and March 1999. In addition, we did extensive research
21 after March 1999 in Kosovo and outside. So I want to be clear about that.
22 With regards to this document, it is exceedingly difficult for me
23 to comment without reading the text in its entirety, without knowing the
24 context in which it is placed, and without knowing that evidence that was
25 presented in the court cases that you refer to here, so I am going to
1 refrain from commenting specifically. But in general I would say that I
2 disagree very strongly with the conclusions presented in this material. I
3 believe, as I've said many times, that there was a systematic campaign
4 against the ethnic Albanian population or a failure to distinguish between
5 combatants and civilians. I believe there were also crimes against
6 combatants, such as executions.
7 The one specific detail that stands out -- and again, there was so
8 much read that it is -- we would have to go through it point by point for
9 me to reply, but I do agree with the assessment that there was no fighting
10 in the major cities as of January 1999 because at that time the conflict
11 was contained primarily in the rural areas and the fighting came to the
12 urban centres later by March -- well, in -- by March 1999. But if you
13 would like me to reply in more detail to any of these specific points, we
14 will have to go slower.
15 JUDGE BONOMY: It's also very difficult -- I certainly find it
16 difficult to see that these are actually decisions that you're quoting. I
17 mean, the very last one is a good example because in brackets after the
18 part in quotations are the words "thesis 1." Now, do you have copies of
19 these decisions of the various German courts that you can make available
20 to the Trial Chamber?
21 MR. BAKRAC: [Interpretation] No, Your Honour. For the time being
22 I haven't got copies because this is a document that I obtained just
23 recently, three or four days ago. But it was obtained through appropriate
24 procedure and we have all the relevant numbers, and the Defence will try
25 to obtain all these decisions.
1 JUDGE BONOMY: Can you also tell us what the document actually is?
2 MR. BAKRAC: [Interpretation] This is an excerpt, it's an excerpt,
3 that the International Association of Lawyers Against Nuclear Armament
4 compiled on the basis of a certain number of court decisions; that is to
5 say, of decisions of courts in Germany.
6 JUDGE BONOMY: This is compiled by a body which has an agenda
7 which is anti-nuclear, and these are selective or selected extracts from
8 court documents. Is that a correct summary of the nature of this
10 MR. BAKRAC: [Interpretation] Yes, Your Honour. These are excerpts
11 from court decisions.
12 JUDGE BONOMY: You can see why in that context where these are
13 simply selected passages that it will be important for us to see the whole
14 document because if the whole document bears out the idea that you're
15 presenting that a German court came to a conclusion that there was no
16 persecution against the Albanian population, then that would be an
17 important piece of evidence for the case. But as it stands, it's a sort
18 of disjointed document that doesn't really take us anywhere.
19 MR. BAKRAC: [Interpretation] I agree, Your Honour. I was just
20 interested in this witness's answer because he will leave and we won't
21 have an opportunity to put questions to him. The Defence is going to
22 present its own case, the Defence case, and there will be enough time, I
23 sincerely hope, to obtain all these decisions. The purpose of this was
24 for the Defence to try to establish what the position of Mr. Abrahams is,
25 in view of these completely different positions taken by individual states
1 that had verifiers on the ground and so on and so forth.
2 Q. Mr. Abrahams, you said that you are not aware of this source. I'm
3 just going to repeat that these decisions invoke intelligence reports of
4 the foreign ministry of Germany. Does that change anything in your
6 A. Without seeing those reports or understanding the context of this
7 court, I cannot comment, only to say that the text you have presented on
8 the screen now I am in disagreement with.
9 Q. Thank you, Mr. Abrahams. Since you've just told us that you do
10 not agree with such positions at all, I'm interested in the following.
11 Can you tell me something. In paragraph 4 of your first statement
12 provided from the 8th to the 11th of March, 1999, on page 4 of the English
13 version or page 5 of the B/C/S version, that is P228, Prosecution exhibit.
14 You said that you carried out an analysis of the indictment for Kosovo
15 against Slobodan Milosevic and others. When you said "and others," does
16 that pertain to the accused persons present right now in this courtroom?
17 A. Well, first of all, I didn't say that I disagreed with this
18 entirely, this document. In fact, I pointed out to you one comment that I
19 agreed with. I said in general. But if we want to go through the points
20 one by one, I can respond to you.
21 In regards to your current question, the indictment included some
22 of the defendants but not all of them.
23 Q. So it is correct that you carried out an analysis for that
25 A. For the Slobodan Milosevic et al. indictment, yes.
1 Q. That indictment. So will you agree with me now that practically
2 you are one of the authors of the indictment against Slobodan Milosevic
3 et al.?
4 A. No, I would not agree with that.
5 Q. Can you explain to me what it means that you carried out an
6 analysis for the indictment?
7 A. Yes. One of my assignments was to examine the background section
8 of the indictment which presented the history of Kosovo, context of the
9 conflict, and to obtain the concrete documentation to support the
10 historical arguments presented in the indictment. That was one of my --
11 one of my assignments -- that was my main assignment with regard to the
13 Q. And were parts of your historical background incorporated in the
15 A. I directed the Prosecution to where they can find or how they
16 might obtain the historical records and documents to support the claims in
17 the background section of the indictment.
18 JUDGE BONOMY: You refer, Mr. Bakrac, to the statement of the 8th
19 to the 11th of March, and you said in the English version this is on
20 page 4.
21 MR. BAKRAC: [Interpretation] Your Honour, my mistake. I apologise
22 once again. It's the statement of the 24th of January, 2002, and the page
23 is number 4 in the English version. In e-court it's page 12. P228.
24 THE INTERPRETER: Interpreter's correction, 2228.
25 JUDGE BONOMY: And this is on page 4, did you say?
1 MR. BAKRAC: [Interpretation] Yes, page 4. First paragraph, the
2 first paragraph, page 12 in e-court, and it's just before the subsection
3 entitled "Kosovo history."
4 JUDGE BONOMY: Thank you.
5 MR. BAKRAC: [Interpretation]
6 Q. [No interpretation]
7 But that you just told the Prosecution where they could seek
9 A. I'm sorry, I missed some of the translation.
10 JUDGE BONOMY: Not all of that question was translated. Could you
11 ask it again, please, Mr. Bakrac?
12 MR. BAKRAC: [Interpretation] Yes, I will. Thank you, Your
14 Q. You said that you directed the Prosecution to the proof relating
15 to the historical background. Does that mean that you didn't write any
16 kind of historical background but that you just pointed the Prosecutor's
17 office to where they could find evidence?
18 A. That's correct. And I don't recall the specific details of every
19 day's work, so it's certainly possible that we had discussions on the best
20 way to phrase a development in the history or the important events. For
21 example, the revocation of Kosovo's autonomy was a complex process over a
22 number of years and we would have discussed what were the key moments
23 worth highlighting in the indictment over others.
24 Q. Mr. Abrahams, are you telling me that you just gave oral
25 indications, that you did not provide a written analysis of the historical
1 background and provided that to the Prosecutor's office?
2 A. No, that would have been provided in writing.
3 Q. Thank you very much, Mr. Abrahams.
4 I would now like to just quickly cover some other questions
5 relating to the so-called Kosovo Liberation Army.
6 I would like to know, Mr. Abrahams, whether you know, since you
7 were out in the field, that members of the Kosovo Liberation Army
8 frequently wore civilian clothing?
9 A. Yes, that is correct.
10 Q. Are you aware that members of the KLA persecuted their fellow
11 Albanian citizens who were loyal to the Yugoslav authorities, they burned
12 their homes, and persecuted them in other ways. Are you aware of that?
13 A. Throughout the conflict we documented a variety of abuses by the
14 Kosovo Liberation Army against ethnic Serbs as well as against ethnic
16 Q. Can we assume that you did not manage to investigate a large
17 number of such cases, for example?
18 A. I think our reports are very complete. They contain the major
19 incidents and events that took place.
20 Q. Mr. Abrahams, are you aware that some humanitarian organisations
21 in Kosovo helped the KLA?
22 A. Can you be more specific?
23 Q. Do you have any information about some humanitarian organisations
24 providing assistance in money or weapons and so on to the KLA?
25 A. I do not have specific information, for example, who acted in such
1 a way, how they acted in such a way. I certainly heard allegations that
2 individuals in organisations of a humanitarian nature were sympathetic to
3 the KLA and were assisting the KLA. And in my professional opinion I do
4 believe that is a definite possibility, but I do not have concrete
5 evidence to prove that case.
6 Q. Thank you, Mr. Abrahams. Were there any foreigners amongst the
7 KLA members? When I say "foreigners," I mean persons who were not from
8 the Kosovo area, who were not from the area of Albania either, but come
9 from other parts of the world. Are you perhaps aware of anything like
11 A. Yes, there were a few.
12 Q. Could you please tell me what you mean when you say "a few," there
13 were a few?
14 A. I don't know the precise numbers and I have no idea if we're
15 talking -- I can't give you any exact figure. But the number is
16 definitely small.
17 In -- there were many, many allegations about a large number of
18 Islamic fighters participating with the KLA. I know for a fact that there
19 were individuals in the KLA, factions within the KLA, who supported
20 accepting these fighters, so-called Mujahedin, because they argued that we
21 must take assistance from any place that we can, building off of the
22 experience of Bosnia. However, there were also a large number of people
23 and other factions in the KLA that rejected such participation from
24 Islamic militant groups and individuals. And in the end, this position
25 won. So in the internal debates of the KLA, they made a specific decision
1 not to accept any outside fighters from Islamic countries. And to the
2 best of my knowledge, that decision was respected.
3 In addition to that, there were a couple, and I say "a couple," I
4 can't be more precise because I heard anecdotal stories of some
5 individuals from European countries also coming to Kosovo to fight, but
6 again these were very occasional, let's say, mercenaries and of a very
7 small number.
8 Q. Mr. Abrahams, would you kindly explain how you know that the KLA
9 did not accept Mujahedin?
10 A. Over the last four to five years, I have been working on a book
11 unrelated to Human Rights Watch, which is about the history of Albania.
12 It is a history of the transition from communism, and it includes a
13 chapter about the Albanians' role in the Kosovo war. And in the context
14 of research for this book, I interviewed many, many officials and
15 individuals in both Albania and Kosovo. And it is from these interviews
16 and this research that I learned this information.
17 Q. Mr. Abrahams, you talked about the KLA members in civilian
18 clothing. Are you aware that in 1998 over 80 tonnes of weapons were
19 confiscated from members of the KLA?
20 A. I was not aware of that precise amount, no.
21 Q. But in your statement you did say that after the fall of the
22 communist regime in Albania, an enormous quantity of weapons were
23 transferred to Kosovo, ended up in Kosovo. Is that true?
24 A. That is true.
25 Q. Mr. Abrahams, are you familiar with the information that during
1 the Rambouillet negotiations, the Albanian negotiators wanted to secure
2 the agreement of the local commanders in order to sign the agreement. Are
3 you aware of this fact?
4 A. That is correct. Yes, I am aware.
5 Q. Mr. Abrahams, since you do know that a large number of
6 civilians -- that a large number of civilians were members of the KLA,
7 that a large quantity of weapons ended up in Kosovo from Albania, and
8 since you are aware of the fact that the negotiators could not sign the
9 agreement without the decision of the local commanders, I would like to
10 know if you would agree with me that this is contrary to your assertion on
11 page -- I will tell you the page of statement P2228. Actually, it's
12 page 11 of the B/C/S and page 12 of the English text where you say -- and
13 that's page number 19 in e-court, where you say that the KLA -- that
14 already in February 1999, based on investigations in 1998 you had proof
15 that the KLA were an organised fighting force in terms of international
16 humanitarian law and that you were a witness to more and more indications
17 of uniformity amongst the ranks of the KLA. Isn't that contrary to the
18 fact that in February 1999 the Albanian negotiators could not sign an
19 agreement until they had secured the agreement to do so from the local
20 commanders, different local commanders?
21 A. No, I don't think it's contradictory at all. The KLA by that
22 time, February 1999, had become a more organised fighting force, but I
23 would hesitate to call it a highly organised fighting force. And in
24 particular, the KLA was a very decentralised, it had a decentralised
25 structure whereby the regional commanders had a high degree of autonomy
1 and there was a relative lack of central command and control, so that the
2 negotiators in Rambouillet needed to get the permission or approval of the
3 regional commanders before making such a major decision as whether or not
4 to sign the Rambouillet accords.
5 And I would like to add one point. You mention here that a large
6 number of civilians were members of the KLA, and I would not accept that,
7 that assertion. There were many, many civilians who sympathised with the
8 KLA, but to become a -- or maybe participated and assisted the KLA, but
9 for me there was a distinction and a difference between a civilian and a
10 fighter. So when someone picks up the arms, they lose their civilian
12 Q. Excellent, Mr. Abrahams. Are you aware of how many Albanian homes
13 were armed in Kosovo during the time that you were conducting your
15 A. I have no idea. But of course in this region arms are commonly
16 held. Many families have arms.
17 Q. Thank you, Mr. Abrahams. So if they are wearing civilian clothing
18 and many families have weapons, then they are not civilians. Would you
19 agree with me?
20 A. No, I would disagree with you.
21 Q. Mr. Abrahams, you have just said that possession of weapons is the
22 distinction between a civilian and a fighter, and now you have said that
23 you do know that many homes in that area did possess weapons. So why
24 would you not agree with me then that these are not civilians in that
1 JUDGE BONOMY: I doubt if you really need to answer that question.
2 You've already said that when somebody picks up the arms they lose their
3 civilian immunity. That's quite different from possessing them.
4 THE WITNESS: Well ...
5 MR. BAKRAC: [Interpretation] All right, all right. Very well.
6 Q. Mr. Abrahams, before the break you said in your statement --
7 actually, in answer to a question by one of the colleagues, that the
8 police and the military constitute a legitimate military target. Does
9 that mean that a policeman in New York or a soldier in America would
10 constitute a legal or a legitimate military target for a terrorist?
11 A. It would depend on the context of the -- of whether hostilities
12 were ongoing, but such an attack on a policeman or a soldier in America
13 would be a crime. If it were to take place today it would be a crime
14 prosecuted -- which could be prosecuted under US law.
15 JUDGE BONOMY: Mr. Bakrac, can you help us with a transcript
16 reference for that statement?
17 MR. BAKRAC: [Interpretation] Your Honour, I don't have the
18 transcript reference right now. I can provide that later, but I think
19 that the witness also agreed that he said that, that the police and the
20 military constitute a legitimate military target and then he now has
21 explained that to us. But I would like to put the question if that means
22 that a policeman in Kosovo is a legitimate military target, as opposed to
23 his counter-part in America, policeman or a soldier.
24 THE WITNESS: First we need to clarify what time-frame we are
25 talking about. In a period of armed conflict, a policeman can be a
1 legitimate military target, but it depends on the role of that policeman.
2 So a person performing traffic duties in Pec, for example, would not be
3 considered a legitimate military target, but a policeman who is engaged in
4 hostilities would be considered a legitimate military target. So the
5 police is a somewhat grey area in the eyes of the law.
6 MR. BAKRAC: [Interpretation]
7 Q. You say that this applies to armed conflict. Can you please tell
8 us what an armed conflict means, the sporadic attacks by the KLA which at
9 that time were -- was described as a terrorist organisation by
10 Mr. Gelbard. As far as you are concerned, were they armed conflicts at
11 that time or were those attacks by a terrorist organisation against
12 legitimate organs of the state? Could you please explain what that means
13 to you?
14 A. My position and the position of Human Rights Watch is that a state
15 of armed conflict came into being from late February/early March 1998.
16 JUDGE BONOMY: I think the question is a bit more complicated than
17 that, Mr. Abrahams. There may be a translation point here, but the word
18 you used in the previous answer was not armed conflict but hostilities,
19 and you said that where a policeman was involved in hostilities he could
20 be considered a legitimate military target. And now we've moved on to
21 armed conflict. Can you, at least for my benefit, clarify this. Do you
22 see a situation -- do you recognise the possibility of a situation that no
23 determination of a -- of the existence of an armed conflict has -- can be
24 made, but hostilities are such that a police officer could be a legitimate
25 military target? Do you envisage that possibility?
1 THE WITNESS: No, I do not. No, I do not, no. Just to clarify,
2 the question as it was posed to me, I assumed we were talking about
3 already a period of armed conflict; namely, from February/March 1998 on.
4 And in that period, then a policeman would be considered a legitimate
5 target if he or she were actively engaged in hostilities. Obviously that
6 does not apply prior to late February 1998, when a policeman is not a
7 legitimate military target.
8 Did I make myself clear?
9 JUDGE BONOMY: That certainly clarified it for me.
10 MR. BAKRAC: [Interpretation] Yes, Your Honours. It is a little
11 bit more clear to me but not completely.
12 Q. I'm asking you after February 1998, attacks from an ambush or an
13 ambush on moving police vehicle, does that constitute armed conflict or
14 hostilities in relation to official state organs?
15 A. After late February/early March 1998, in our opinion, in my
16 opinion, there was a state of armed conflict in Kosovo, and actions by the
17 state and the KLA during that time must be viewed within the context of
18 international humanitarian law.
19 Q. Mr. Abrahams, I asked you whether after February when you say,
20 according to you and your organisation, there was an armed conflict. Is a
21 moving vehicle or a police patrol that was attacked from an ambush, that
22 was ambushed, does that -- do those police officers constitute a
23 legitimate military target and are they taking part in the fighting?
24 A. That would depend --
25 JUDGE BONOMY: Well, the answer to that question wouldn't help us
1 because the statement begs a question. The vehicle could be carrying he
2 traffic policemen that the witness has already mentioned. It's all a
3 question of circumstances, whether there is actually ongoing hostility
4 which would warrant action, is it not?
5 And your question is posed on the basis that if these police
6 officers were involved in -- of taking part in the fighting are they a
7 legitimate military target. Is that question going to assist us?
8 MR. BAKRAC: [Interpretation] No, Your Honour. My question was
9 whether the policemen who did not take part in fighting, there was no
10 action under way, and who were ambushed, whether they were a legitimate
11 military target.
12 JUDGE BONOMY: Can you answer that?
13 THE WITNESS: If the car you refer to was carrying policemen that
14 were not actively involved in hostilities, then they would be an
15 illegitimate target, yes, not a legitimate target.
16 MR. BAKRAC: [Interpretation]
17 Q. Thank you, Mr. Abrahams. Do you know, since you carried out
18 detailed investigations, how many attacks against the police or the army
19 were carried out in 1998?
20 A. I do not know the exact number. We tried to obtain that
21 information through our letters sent to the authorities. We were also in
22 contact with the media centre in Pristina and presented as much
23 information we had from the government side, but I do not know the exact
24 number of attacks that took place.
25 Q. What would you say, Mr. Abrahams, if I were to tell you that in
1 1998 there were 2.768 attacks against the military, the police, and
2 civilians, 1.774 were attacks on the police, 243 against the military, and
3 751 were against the civilians. So if we were to calculate that, it would
4 come to six to eight attacks every day.
5 A. Well, like any good researcher, I would want to see the specifics.
6 Again, it depends very much on whether these incidents involved legitimate
7 military targets or not. But the overriding point is that my job is to
8 document violations of human rights and international humanitarian law.
9 Of course we need to understand the conflict to know who is attacking and
10 who is being attacked, but my concern beyond the context is not to
11 document legitimate attacks that involve legitimate military targets. And
12 furthermore, we have consistently reported on the violations by the Kosovo
13 Liberation Army in numerous reports. But I do not believe that any of
14 those actions, lawful and unlawful by the KLA, justify or explain the
15 extreme and systematic violations by Serbian and Yugoslav forces.
16 Q. Mr. Abrahams, are you aware that there were frequent violations of
17 the state border in terms of illegal crossings from Albania into Kosovo
18 and weapons were also transferred across the border in the same way?
19 A. Yes. As I've written in our reports, the KLA received most of its
20 arms from -- through the Albanian-Kosovo border.
21 Q. Would then it not be logical that the Yugoslav army would carry
22 out actions on the border in order to prevent such illegal crossings by
23 people and transfer of weapons?
24 A. What do you mean by "actions"?
25 Q. I'm thinking of all the activities that would prevent the illegal
1 crossings of the border and the illegal transfer of weapons. Sometimes
2 also there were skirmishes with firing on the border with these people who
3 were crossing the border illegally and transferring weapons.
4 A. I need to make a distinction. My job is to distinguish between
5 legitimate, legal actions and unlawful actions. So of course the armed
6 forces of Yugoslavia and of course the police forces of Serbia have a
7 duty, an obligation, and a legal right to protect the borders. There's no
8 question about that. My issue and my job is how they do it, and it must
9 be done in a way that minimises the impact of civilians. And again and
10 again we documented actions, as you put it, by these armed forces that
11 involved the clearing of villages, the separation of men and women,
12 executions of men in these villages, and a litany of violations that I
13 have documented in these reports. So I take no issue with whether they
14 can do it; I take issue with how they do it.
15 Q. Mr. Abrahams, you say that you established actions by forces. In
16 your statement 2228 on page 6 in the last paragraph and the first
17 paragraph on page 7, you say that on the 26th of September in the vicinity
18 of Mlecani village you saw a convoy of military vehicles. These vehicles
19 were moving along a main road. Does that, in your view, constitute
20 illegal activity by the army?
21 A. The movement along the road in itself does not constitute illegal
23 Q. Why then is this detail included in your report? I fail to see
24 what violation is involved in connection with this movement on the 26th of
1 A. I -- we do not label such movement as a violation, but we present
2 the information to provide a context for the fighting that took place in
3 and around that area.
4 Q. When referring to movements, are you aware - and there is
5 television footage showing this - that units of the Yugoslav army, when
6 moving toward the state border, used loudspeakers to call on the
7 population and the KLA not to attack the army, and that in spite of these
8 warnings the army was regularly attacked while moving toward the state
9 border and the security belt along the border?
10 A. What time period are you referring to?
11 Q. 1998. May 1998, that is.
12 A. Well, I have not seen the television footage of this, but it's
13 possible such calls were made through loudspeakers. But again, this was
14 an armed conflict. I am not denying that the KLA attacked Serbian
15 Yugoslav -- Serbian and Yugoslav forces. I'm not denying that in any way.
16 I'm not even denying that some of those attacks may have been unlawful.
17 It was -- it was an -- it was a war.
18 Q. Mr. Abrahams, are you aware that members of the KLA frequently
19 used civilians as human shields, especially in situations where there were
20 illegal border crossings going on and in other actions as well?
21 A. I'm not aware of that. In all of my research I never once heard
22 an allegation that the KLA used civilians as human shields. What the KLA
23 did do on occasion was put the civilian population at risk by engaging in
24 military operations from within civilian -- from within areas occupied by
25 civilians, within civilian-populated areas, which is also criticised in
1 our report. But I never documented specific cases of human shielding.
2 Q. Mr. Abrahams, you spoke about the incidents in Gornje Obrinje,
3 Orahovac, Drenica. Would you agree with me that all these are areas where
4 there was clearly KLA activity, intense activity?
5 A. You -- we would have to be more concrete to discuss the specific
6 villages and precise towns you're referring to. But in the general areas
7 that you mentioned, there was KLA activity, yes.
8 Q. Thank you, Mr. Abrahams. Do you have any information to the
9 effect that in relation to the incident in Gornje Obrinje, the commander
10 of the Pristina Corps ordered an investigation and the result of this
11 investigation was that in the incident in Gornje Obrinje the army did not
13 A. I'm not familiar with that investigation, no, and we never claimed
14 that the army was -- participated in the Gornje Obrinje killings.
15 Q. Thank you, Mr. Abrahams. Can we say the same about the incident
16 in Orahovac?
17 A. The same? What do you mean by "the same," that the military was
18 not present?
19 Q. That they were not present.
20 A. Which Orahovac incident are you referring to?
21 Q. The one on the 19th of July or from the 17th to the 21st of July,
22 nineteen-ninety --
23 THE INTERPRETER: The interpreter did not hear the year.
24 MR. BAKRAC: [Interpretation]
25 Q. 1998.
1 A. I do not have information about the presence of the Yugoslav army
2 in Orahovac at that time.
3 Q. Thank you, Mr. Abrahams. I am slowly drawing towards the end of
4 my questions.
5 In your statement 2228 on page 12 of the English version, in the
6 second paragraph, you establish there were 11 humanitarian centres in
7 Kosovo --
8 JUDGE BONOMY: Can I just interrupt. 2228 is a document which has
9 several parts, I think, and it has each of -- it has two very lengthy
10 statements, one of 14 pages and one of 19. So it would be helpful if you
11 would clarify each time which statement you're actually referring to.
12 MR. BAKRAC: [Interpretation] Yes, Your Honour, I do apologise.
13 This is the second statement of -- which is 18 pages long. And it's
14 page 12, paragraph 2 of the English version.
15 JUDGE BONOMY: We have it now. Thank you.
16 MR. BAKRAC: [Interpretation]
17 Q. You stated that in August the Serbian government opened 11
18 humanitarian centres and that a very small number of Albanians applied for
19 assistance. Your conclusion is that the reason for this was that they
20 were afraid because of the violence they had experienced. Mr. Abrahams,
21 do you allow for the possibility that they were afraid of the violence of
22 KLA members should they apply for help to the Serbian state organs? We
23 said previously that the KLA perpetrated reprisals against Albanians loyal
24 to the Serbian state.
25 A. Yes, I allow for that possibility.
1 Q. Thank you, Mr. Abrahams. Are you aware in the same context that
2 the Albanian villages near Djakovica in the border area, and I'm referring
3 specifically to the village of Korenica, asked for help from the Yugoslav
4 army and MUP, asking for protection from KLA terrorists?
5 A. No, I'm not aware of that.
6 Q. Are you aware that Generals Pavkovic and Lazarevic spoke directly
7 to the villagers of the Albanian villages of Bratusa, Rovina, Molic and
8 provided humanitarian aid to those villages. Are you aware of that fact?
9 A. I have no information about that.
10 Q. Mr. Abrahams, at the end I would like us to clarify a detail you
11 mentioned in your statement. The statement I'm referring to is the first
12 statement of P2228, page 15 in English.
13 I do apologise. Let me just check. I think it's the second
14 statement. Yes, it's the second statement, page 15 in English.
15 That on the 25th of February the Army of Yugoslavia announced the
16 beginning of winter exercises in Vucitrn where the KLA held positions on
17 Cicavica Mountain along the Mitrovica-Pristina road. Are you aware,
18 Mr. Abrahams, that these were not exercises of the Army of Yugoslavia or
19 manoeuvres; it was tactical exercises of the 125th Motorised Brigade
20 attended by Captain Ferdinand of the OSCE. Is that the event you were
21 referring to?
22 MR. STAMP: Before the witness answers, I'm having a hard time
23 finding it.
24 JUDGE BONOMY: No, I haven't got it either on page 15.
25 MR. STAMP: And also, although I think the witness is quite
1 capable, perhaps -- perhaps -- perhaps if counsel is referring to some
2 more obscure parts of his statement he might let the witness have a look
3 at it.
4 JUDGE BONOMY: Well, that may or may not be necessary, but we
5 first of all have to identify the passage.
6 MR. BAKRAC: [Interpretation] Your Honour, by your leave it's the
7 second statement from the 8th to the -- or rather, the 24th of January,
8 2002. It's page 14 in B/C/S, and in English I noted down 15, but I do
9 apologise. I made a mistake.
10 [Defence counsel confer]
11 MR. BAKRAC: [Interpretation] Your Honour, by your leave I have the
12 B/C/S version here. I cannot find ... That's page 21 in e-court in the
13 English language, page 13 of 19. So it's page 21 in e-court, fourth
15 JUDGE BONOMY: That's fine. Thank you. It's page 13 in the hard
16 copy, 13 of 19, and it's the fourth paragraph.
17 So could you ask the question again, please, Mr. Bakrac.
18 MR. BAKRAC: [Interpretation] Yes, Your Honour.
19 Q. Are you aware -- or rather, does your statement refer to the
20 tactical exercises at company level of the 125th Motorised Brigade carried
21 out in the presence of Captain Ferdinand of the OSCE?
22 A. I'm not aware of the particular brigade involved in these
23 exercises or manoeuvres.
24 Q. You carried out detailed investigations. You mention exercises,
25 and yet you don't know what unit of the army was involved. Is that part
1 of your detailed investigations?
2 A. We don't conduct detailed investigations into the precise units or
3 brigades involved in this case and we try to when there is a particular
4 crime and we want to identify which units were involved. But in this case
5 we don't have the specifics on who was active in these exercises.
6 Q. This means that the exercises were a legitimate activity. Is that
7 the conclusion?
8 A. There is no violation of the law in conducting an exercise.
9 Q. Thank you, Mr. Abrahams.
10 MR. BAKRAC: [Interpretation] Your Honours, I have no further
11 questions for this witness.
12 JUDGE BONOMY: Thank you, Mr. Bakrac.
13 Mr. Lukic -- oh, I'm sorry, Mr. Ivetic.
14 THE INTERPRETER: Thank you, Your Honour.
15 Cross-examination by Mr. Ivetic:
16 Q. Good morning, Mr. Abrahams. My name is Dan Ivetic, and I along
17 with my colleague Mr. Branko Lukic and case manager Ozren Ogrizovic today
18 represent the accused Sreten Lukic. I would like to clear up a few issues
19 before I move into my main area of questioning.
20 First of all, sir, during your examination-in-chief by the
21 Prosecutor you went through several letters that Human Rights Watch
22 prepared and sent to various persons in the Serbian and Yugoslav
23 governmental hierarchy. If I can ask you a general question first of all.
24 Can you verify for me in a Human Rights Watch did not send any of those
25 letters or in fact any letter to my client, Mr. Sreten Lukic?
1 A. We sent letters to all of the individuals and institutions that
2 have been submitted here, submitted to the Court.
3 Q. So if that group of letters does not include my client, would it
4 be safe to say then that Human Rights Watch did not individually contact
5 him regarding any of their communications?
6 A. That is correct.
7 Q. Okay. And in fact if the group of letters we have gone through
8 during your testimony do not include any police organs or structures from
9 the territory of Kosovo-Metohija, would it be fair to say that Human
10 Rights Watch did not contact or advise them either?
11 A. My recollection is one of those letters was sent to the Serbian
12 Ministry of Interior. So in my opinion that would include the Serbian
14 Q. My question was with respect to police organs and structures on
15 the territory of Kosovo-Metohija.
16 A. Well, again, my understanding is that the Serbian ministry has
17 responsibility for Kosovo which is and was a part of Serbia.
18 Q. Okay. Now, presumably you knew that there existed police
19 structures on the territory of Kosovo-Metohija and that there were at
20 least two or three international missions in Kosovo-Metohija that were in
21 daily contact with organs of the police in Kosovo-Metohija?
22 A. Yes, I was aware that Kosovo had a police structure, if you will.
23 Q. And yet no efforts were made to contact these people who were
24 perhaps closer to the ground and would be able to better respond to your
1 A. When we approached the police in Pristina, we were repeatedly
2 instructed to go to the local office, the secretary of information in
3 Pristina, or to higher authorities in Belgrade.
4 Q. Okay. Now, if I can turn your attention to your publication
5 entitled "Humanitarian Law Violations in Kosovo."
6 For the court officials that's Prosecution Exhibit P437, if we can
7 have that up on e-court, and that would be page 16 of this proffered
8 document by the Prosecution. Page 16 in e-court.
9 Q. Sir, if I could direct your attention to footnote 1 on this page
10 which is slowly coming up on the screen. In this document at this section
11 your organisation identifies some 12 officials in various organs of the
12 Yugoslav and Serbian governmental structures, including the police, that
13 your organisation believed to be responsible for running the Yugoslav and
14 Serbian government's policy in Kosovo and Metohija and for its response to
15 the so-called insurgency in Kosovo and Metohija. Isn't that accurate?
16 A. That is accurate.
17 Q. And, sir, as I look through this list -- and I invite you to do so
18 as well if you're not sure about it. But isn't it a fact that not a
19 single one of the six accused here today is mentioned on this list as
20 being someone responsible for the government's policy in Kosovo and
21 Metohija, according to your organisation?
22 A. According to this list, yes, although this list was later revised.
23 Q. Okay. Thank you. Now, the other week when you testified before
24 this Trial Chamber you seemed to hedge and deny that the OSCE publication
25 As Seen, As Told was relied upon or cited in your publication Under
1 Orders. Isn't that correct?
2 A. I do not recall how I precisely responded to that, but I can tell
3 you that we did at times refer to and cite the OSCE report in our
5 Q. And, sir --
6 JUDGE BONOMY: If, Mr. Ivetic, you're going to accuse witnesses of
7 hedging, then I would welcome a specific reference.
8 MR. IVETIC: One moment, please.
9 Q. I believe, Mr. Abrahams, in the transcript pages 910 and 911 you
10 were asked by Defence counsel whether in fact you relied mainly on the
11 OSCE report called As Seen, As Told, and your answer was: "No, that is
12 not correct."
13 A. Well, the key word there is --
14 JUDGE BONOMY: Well, hold on. Deny is fine, Mr. Ivetic, but
15 there's no basis there for suggesting the witness is hedging.
16 MR. IVETIC: I apologise and I'm trying to --
17 JUDGE BONOMY: Thank you very much. Please carry on.
18 MR. IVETIC:
19 Q. Now, in fact, sir, I've had an opportunity to review your document
20 and there are no fewer than 55 distinct references or citations to the
21 named OSCE publication in Under Orders. Does that refresh your
22 recollection and allow you to amend your previous answer?
23 A. No, in no way. First of all, I -- as the statement you read back
24 to me from three weeks ago makes clear, I said "mainly." I deny that
25 we "mainly" relied. We mainly relied on our investigations in the field
1 with about 600 interviews. The report Under Orders does cite the OSCE
2 material as well as other secondary sources. I have not added it up, but
3 I trust your calculation. But we did not, at no time, use information or
4 allegations or documentations from the OSCE report as the sole basis for
5 our conclusions. We cited their material when it corroborated or rejected
6 information that we had obtained. So it was part of the body of secondary
7 sources that we used in preparation for this report.
8 JUDGE BONOMY: [Microphone not activated].
9 THE INTERPRETER: Microphone, please.
10 JUDGE BONOMY: Sorry.
11 MR. IVETIC: Microphone.
12 JUDGE BONOMY: If you can find a suitable time to interrupt we'll
13 have our first break.
14 MR. IVETIC: I will have just one question that I hope will have a
15 short answer.
16 JUDGE BONOMY: Carry on.
17 MR. IVETIC:
18 Q. Mr. Abrahams, do you know of any other of these secondary sources
19 which is cited 55 or more times in your report?
20 A. I would have to review the material to answer that question.
21 Q. Okay. Fair enough.
22 MR. IVETIC: Can we take a pause and perhaps the witness can
23 review the material during the pause.
24 JUDGE BONOMY: Would you care to do that, Mr. Abrahams, or are you
25 in a position to do so?
1 THE WITNESS: I do have the report with me.
2 JUDGE BONOMY: If you have the opportunity, it would be helpful.
3 We will adjourn now and resume at 11.00.
4 --- Recess taken at 10.30 a.m.
5 --- On resuming at 11.00 a.m.
6 JUDGE BONOMY: Mr. Ivetic.
7 MR. IVETIC: Thank you, Your Honour.
8 Q. Now, Mr. Abrahams, I don't know if you had an opportunity or
9 ability to check your publication Under Orders during the break. Have you
10 in fact been able to do so?
11 A. I made a cursory examination, yes.
12 Q. Okay. And can you first verify for me that your cursory
13 examination revealed that the OSCE report As Seen, As Told was in fact
14 repeatedly cited, and I don't know if you can verify my 55 citations that
15 I was able to count through my cursory review?
16 A. I was not able to conduct a count and determine -- verify your
17 number, but it is true that the report is cited throughout.
18 Q. Okay. And is there any other of these secondary sources that is
19 cited throughout Under Orders with as much frequency as the OSCE report As
20 Seen, As Told?
21 A. Yes, there is.
22 Q. Which ones?
23 A. There are a series of official Yugoslav and Serbian documents,
24 specifically the magazine Policajac, which is an official publication of
25 the MUP, of the Serbian police. There is the magazine Vojska, which is
1 the official publication of the Yugoslav army. There is the MUP web site,
2 which we referred to in a number of places, and also the Politika
3 newspaper which was from the ruling Serbian political party.
4 Q. And, sir, would it be fair to say that these other sources that
5 you've cited are types of publications where you would -- perhaps cited
6 multiple articles from various issues of those publications. Is that
8 A. Yes, that is accurate.
9 Q. Okay. Whereas the OSCE report we're talking -- all the citations
10 refer to the exact same report. So as far as a single article or
11 publication is concerned, the OSCE report is by far the most widely cited
12 document in our report?
13 A. That's a reflection of the report's magnitude.
14 Q. Okay. And while we're on the topic of the OSCE-KVM report As
15 Seen, As Told are you familiar with the methodology utilised by that
16 organisation in selecting interviewees and performing interviews to obtain
17 their source material?
18 A. No, I am not.
19 Q. Okay. And, sir, I believe, correct me if I'm wrong, I believe in
20 your direct testimony from Mr. Stamp of the Prosecutor's office you
21 testified that your findings in Under Orders were of limited statistical
22 value and that the results could not be said to be extrapolated to the
23 whole population of Kosovo-Metohija. Isn't that accurate?
24 A. There are two separate points in your question.
25 Q. Okay.
1 A. The second point is the extrapolation, and that is correct because
2 we did not conduct random sampling so that we cannot reach Kosovo-wide
3 determinations based on the data.
4 The first point, however, is that -- is whether our statistical
5 analysis had a limited value, and I believe it had a very powerful value
6 in determining or better understanding the patterns of abuse.
7 Q. Perhaps I had the question improperly phrased. My emphasis was on
8 the greater population as a whole. Would it be fair to say then that
9 based upon your explanation here your report is not even of any value with
10 respect to extrapolation to the population as a whole?
11 A. Let me clarify. By extrapolation I mean that we documented
12 statistically 3.453 executions by government forces against ethnic
13 Albanians, and from that figure I cannot extrapolate a larger number, I
14 cannot take that amount and give you a total. However, I can analyse
15 those 3.453 executions and come to some very powerful conclusions from my
16 perspective on the manner in which and the environment in which these
17 executions took place.
18 Q. Now, sir --
19 JUDGE BONOMY: Just to clarify the position for the transcript,
20 the figure is 3.453.
21 THE WITNESS: That's correct.
22 MR. IVETIC: I believe that's already in the transcript in the
23 corrected form.
24 Q. Now, sir, the gist of this is, though, that your source material
25 are interviews conducted with approximately 600 individuals and what they
1 told you. Isn't that correct?
2 A. That's correct.
3 Q. So all the conclusions, analysis that is being performed is based
4 upon just these 600 interviews?
5 A. I wouldn't use the word "just" to explain 600, but that is
7 Q. As far as the primary source material from actual interviewees,
9 A. That is correct.
10 Q. Okay. And you mentioned that you had not performed random
11 sampling, statistical sampling. I presume that since you had the advice
12 of professional statisticians in doing your report that you were aware of
13 the limitations of your report because of the fact that random sampling
14 groups were not utilised?
15 A. Absolutely, and that is why we include a section in the report
16 entitled "limitations of the data."
17 Q. That's where I was going, sir. Now, wouldn't it be fair to say
18 that the 600 or so interviewees which were interviewed by your
19 organisation represented a extremely limited fraction of the entire
20 population as a whole? Specifically I think I calculate it to be
21 approximately .03 of 1 per cent of the Kosovo Albanian population.
22 A. I would have to take time and do the calculation to agree with you
23 on the figure, but the -- it is the -- that the results of our statistical
24 findings rely on 600 interviews.
25 Q. Okay. Now if another organisation such as the OSCE followed a
1 similar method of obtaining interviews, that is to say if they did not
2 utilise random sampling groups, would their report or conclusions suffer
3 from the same limitation that you have specified for your report, that is
4 to say a limitation with respect to extrapolation to the greater
5 population as a whole?
6 MR. STAMP: I object, Your Honour, because the question invites
7 the witness to speculate about the methodology of some organisation that
8 he has already said he doesn't know about.
9 MR. IVETIC: I believe I'm just asking him if the limitation he
10 has testified that he does know about, whether that is something that is
11 specific just to his report or whether it's endemic to the type of method
12 that was utilised, whether it's something that is from the method that was
14 JUDGE BONOMY: I repel the objection to the question. I think the
15 question is perfectly properly formulated. The only question is whether
16 the witness feels able to answer it.
17 THE WITNESS: I can try. I have not reviewed the OSCE report in
18 many years, in a few years, but my recollection is that it doesn't attempt
19 to provide statistical analysis in the way that we do. So that
20 extrapolation is a technical term to suggest that the data gleaned from a
21 limited body can be applied to the province as a whole in this case, which
22 is different from the -- which is different from reaching conclusions
23 based on testimony. And I don't believe that the OSCE report is
24 presenting hard statistical evidence based on their findings, unless I
25 have forgotten a section of the report.
1 MR. IVETIC:
2 Q. And you do say you haven't reviewed the report in some time, so it
3 is possible that that is a part of that report?
4 A. It is but -- yes, it is.
5 Q. Okay. Well, let me just ask you then a more general question.
6 Would it be fair to say that if one interviews a smaller group
7 than the whole and extrapolates to the whole without using random group
8 sampling, that that study would suffer the same limitation on its data
9 that your report has?
10 A. If they were attempting to reach statistical conclusions, then
11 suggesting that a limited and not randomly selected group was indicative
12 of the whole population, then yes. But not if it was based on descriptive
13 testimony that explains what took place.
14 Q. Okay. And where you relied upon reports or findings of other
15 organisations in formulating your own conclusions in Under Orders, if
16 those other reports utilised methodology that has the same limitation,
17 your reliance upon that information would also inherit those same
18 deficiencies, would it be not?
19 A. Well, I would not say that we relied upon reports or findings. We
20 made every effort to conduct investigations on our own by interviewing
21 witnesses and collecting first-hand information from the field. We
22 utilised the work of other organisations to help us complete the picture
23 when we believed that those organisations operated in a credible manner.
24 Q. Okay. I don't know that you've actually answered the question,
25 though. If there was a report that also did not use the random sampling
1 group methodology, would the deficiencies of that report be inherited by
2 you when you cite to it to corroborate your own findings?
3 A. It would again depend on whether we are talking about statistical
5 Q. Yes.
6 A. And -- well, can you be specific? Maybe I can answer your
7 question more.
8 Q. Yes. I'm talking about drawing conclusions and making conclusions
9 about the population as a whole based upon interviewing a small fraction
10 of the population and not utilising random sampling group statistical
12 A. It would depend on what conclusions they were reaching.
13 Q. Okay. Fair enough.
14 A. I mean, just to clarify. Coming back to our 3.453 executions, we
15 did not attempt to apply that figure to Kosovo as a whole, for example, to
16 say: Therefore, X number of people were killed. But we took that limited
17 body, the 3.400, and analysed it as a self-contained unit because it can
18 provide very important information about the gender of victims, the age of
19 victims, the place in which the crimes took place. So to answer your
20 question would depend on what the organisation you're referring to was
21 intending to do.
22 Q. Okay. Now, you would agree with me, would you not, that you also
23 cite throughout your report to various newspaper articles relating to the
24 events in Kosovo-Metohija during the relevant time period?
25 A. At times we refer to media sources, yes.
1 Q. Okay. Now, you would agree with me, would you not, that -- let's
2 call them media sources as you have qualified them, they're not always
3 very reliable sources of information, are they?
4 A. Which media sources are you referring to?
5 Q. In general.
6 A. In our reports we made a concerted effort to rely on when we
7 used - and I retract use of the word "rely" - because we used media
8 sources to corroborate information. We used sources that we considered to
9 be reputable.
10 Q. Well, sir, that's one way of looking at it, but even reputable
11 news sources, let's say for instance American newspapers, I believe such
12 as the New York Times reported in 1999 that Ibrahim Rugova had been
13 assassinated by the Serbs, as I recall. Do you recall that being
14 discussed in the media at that time?
15 A. I do not, no.
16 Q. Okay. But in fact Mr. Rugova survived the war, did he not?
17 A. He did indeed.
18 Q. So to that extent, even legitimate or trustworthy, as you call
19 them, media sources still have their flaws because they are journalists.
20 They're not necessarily investigators or experts in various areas?
21 A. What is your question?
22 Q. Would you agree with me on that, that therefore the value of media
23 sources is not as great as, say, primary sources for information?
24 A. We always tried to get the primary source, which is more reliable
25 than a media source.
1 Q. Could you help me out here. Are you agreeing with me or
2 disagreeing with me?
3 A. Am I agreeing with you that newspaper sources are not as reliable
4 as primary sources, yes, I agree with you.
5 Q. Thank you. Now --
6 JUDGE CHOWHAN: Excuse me, I have a question.
7 Have you been adding bibliographical notes to your report? Did
8 you add from where you got particular information, I mean entirely? You
9 have been covering all what -- wherever you gathered it from in the
11 THE WITNESS: Yes, Your Honour.
12 JUDGE CHOWHAN: I'm grateful. Thank you.
13 MR. IVETIC:
14 Q. Now, sir, if we can move on to another topic that was brought up
15 in your direct examination by Mr. Stamp. If we could talk about these
16 letters that were sent to various Yugoslav and Serbian government
18 I believe, and correct me if I'm wrong, I don't recall if it was
19 you or the Prosecutor who intimated that this -- that these documents were
20 sent to put the Yugoslav authorities on notice of the nature of crimes
21 being committed by their forces. Was that something that you had stated
22 or that the Prosecutor had stated?
23 A. I'm sorry, I don't recall.
24 Q. Okay. Well, you would agree with me, would you not, that the
25 documents that were tendered, these letters from 1998, they don't
1 accomplish anything of the sort, do they? They don't talk about any type
2 of crimes being committed but rather are merely requests for information
3 regarding very general facts. Isn't that correct?
4 A. I cannot -- I cannot imagine whether they were received as a
5 manner of notification or not. The primary purpose of those letters was
6 to obtain information about alleged violations to include in our report so
7 that we included government views in our -- in our coverage.
8 Q. Okay. Well, let's look -- now, first of all, of the -- I believe
9 there are about five or six letters. They are essentially almost
10 identical letters, are they not?
11 A. They are similar letters.
12 Q. About 90 per cent is identical with specific items depending on
13 whether it was sent to the army or to someone with respect to the police.
14 Is that --
15 A. I would have to review to agree with your statistical conclusion,
16 I won't extrapolate, but I do accept your general --
17 Q. The premise?
18 A. The specific questions depended on the addressee.
19 Q. Okay. Well, then, let's look at one of them.
20 MR. IVETIC: Let's call up Exhibit P543 on e-court, please.
21 Q. Sir, this is I believe the letter that was -- that your
22 organisation claims was sent to the Yugoslav secretary of information,
23 Mr. Matic, on or about July 20, 1998. Now, sir, if you could -- and
24 perhaps while the document is scrolling if you could look through that and
25 if you could tell me or point to any -- any notice of any specific alleged
1 criminal wrong-doing, such as violations of international humanitarian
2 law, that are specified in this letter?
3 A. Can you give me a moment to review it?
4 Q. Absolutely.
5 A. Now, I would categorise the letter this way. This is -- we are
6 informing the government that we are conducting an investigation into
7 alleged violations of IHL, international humanitarian law, and that we are
8 requesting information from them to clarify a specific number of concerns.
9 Q. And yet you don't identify any specific or alleged violations of
10 IHL that they would be on notice on, do they?
11 A. Because this letter was sent in the phase of research, so we had
12 not yet reached the conclusions that we eventually released -- reached in
13 the report humanitarian law violations in Kosovo.
14 Q. Okay. Well, then, sir, I guess my question for you is: After
15 these letters were sent in 1998, prior to the publication of your report,
16 you did not send any additional letters to try and obtain input from the
17 Yugoslav or Serbian authorities relative to specific charges of IHL,
18 violations of international humanitarian law, that your organisation later
19 claimed in the report. Is that correct?
20 A. This -- these -- we did not send any letters after these letters.
21 Q. Okay. So I think you're agreeing with me. Is that accurate?
22 A. Yes.
23 Q. Okay. Now, would it be fair to say then that your reports were
24 generated without any information or input from the Yugoslav or Serbian
1 A. I would not say that's fair to say. We used open-source material
2 whenever possible to present the government view, and I sincerely wish
3 that we had received responses to these letters from one of the many
4 agencies and ministries to whom they were sent, to which they were sent,
5 because I would have -- the report would have been strengthened greatly
6 and all our work would have been strengthened greatly by having official
7 answers to these particular inquiries.
8 Q. Now, you would concede, however, though, that that's another
9 limitation of your report, that it's missing documentation, for instance,
10 or official documentation from one of the parties in the conflict that you
11 allege occurred?
12 A. We utilised all able information and in my view gave the
13 governments of Serbia and Yugoslavia the opportunity to provide
14 information, an opportunity that they declined.
15 Q. Now, you in your organisation, you did not have any formal mandate
16 from the United Nations, the OSCE, the European Union in regard to
17 dealings with the Serbian and Yugoslav authorities. Is that correct?
18 A. That is correct.
19 Q. Your inquiries to the Yugoslav authorities came from a private
20 source, from your private NGO. Is that correct?
21 A. From a non-governmental organisation, that's correct.
22 Q. Okay. And you will concede, I hope, that there were several
23 internationally mandated organisations that were on the ground in
24 Kosovo-Metohija who were in daily contact with the appropriate officials
25 of the Serbian and Yugoslav organs who were mandated by the UN, the OSCE,
1 and the European Union?
2 A. That is correct, yes.
3 Q. And perhaps the Yugoslav authorities, if they were in daily
4 contact with these entities, perhaps the information that these entities
5 received would have supplemented your report, would it not?
6 A. Perhaps.
7 Q. But you did not --
8 JUDGE BONOMY: Mr. Abrahams, what are the entities you're thinking
10 THE WITNESS: I'm thinking of the Kosovo Verification Mission, and
11 prior to that the Kosovo Diplomatic Observer Mission.
12 JUDGE BONOMY: Well, that can't be what counsel is asking about
13 because he's already been asking you questions to suggest you shouldn't
14 have been relying on that information if it wasn't --
15 MR. IVETIC: Actually, Your Honour, I am asking about these
16 organisations. There is other information that they had that somehow did
17 not make it into their publications that is of great importance to this
18 area of questioning.
19 JUDGE BONOMY: But that's -- these are the only organisations you
20 are thinking of?
21 THE WITNESS: Those are the two I am thinking about.
22 JUDGE BONOMY: Counsel talked about several organisations mandated
23 by, and he referred to the UN, the OSCE, and the European Union. But
24 that's what we're talking about this -- the observer missions and nothing
1 THE WITNESS: That's what I was assuming counsel was referring to.
2 JUDGE BONOMY: All right. Thank you.
3 MR. IVETIC:
4 Q. Yes, I believe the -- KDOM, as it was called, that was a joint
5 between the European Union and the UN. Is that accurate?
6 A. I do not believe the UN --
7 Q. It was a joint mission so that the entities that were involved
8 would have been encompassed by the KVM, KDOM, and perhaps the Red Cross?
9 A. My recollection is that the KDOM had a series of participating
10 units. There was a US KDOM, there was an EU KDOM, and there was also a
11 Russian KDOM.
12 Q. Okay. Now, would it be fair to say that in a situation where
13 there are -- we heard testimony -- we heard you testify to the nature of
14 the skirmishes between the KLA and Serbian and Yugoslav forces on the
15 ground in Kosovo-Metohija, would it be fair to say that the Yugoslav
16 authorities perhaps had their hands full with other matters insofar as
17 they were giving daily reports to these official organisations perhaps did
18 not have time to respond to every private inquiry such as those from your
20 A. I cannot speculate as to the workload of the authorities.
21 Q. Okay. But that does not defy logic, does it?
22 A. Does what defy logic, sorry?
23 Q. My proposition that perhaps they were not able to respond to every
24 private inquiry insofar as they had their hands full on the ground and
25 they were giving daily reports to a handful of internationally recognised
1 organisations that were essentially doing the same task.
2 A. Whether the authorities responded to us or not was their decision,
3 and we had not mandate to force their compliance in that regard.
4 Q. Okay. Now, just to clear up something that you testified to I
5 believe actually earlier today. Are you familiar with the general terms
6 of the OSCE agreement by which the Kosovo Verification Mission came to
7 Kosovo and the interactions between, for instance, the Serbian police and
8 the KVM?
9 A. I'm familiar with the general contours of that agreement.
10 Q. Okay. Let me ask you if you're familiar with this. Are you
11 familiar with the fact that that agreement specified certain police
12 activities, including check-points, that were on the territory of
14 A. No, I'm not.
15 Q. Okay. Well, if you for a moment take me at my word, if I can
16 present for you what for you is a hypothetical since you don't have the
17 knowledge. If in fact the agreement called for the police to undertake
18 certain activities such as check-points or perpetuated such activities,
19 would the KLA's attack of those posts be in your view a legitimate or
20 illegitimate act, in view of your discussions earlier today regarding
21 attacks on police officers?
22 A. It depends what you mean by "legitimate."
23 Q. Well, what do you mean by "legitimate"? As a violation of -- is
24 it a terrorist act?
25 A. A terrorist act, no. Is it a hostility and is that police
1 check-point a legitimate target under IHL?
2 Q. That's what I'm asking.
3 A. That would depend on the function of that check-point.
4 Q. Okay. And again, since you don't have knowledge of the OSCE
5 agreement we can't really go much further into that, right?
6 A. I can only repeat what we said prior to the break, which is that a
7 check-point for traffic purposes, for instance, would not be considered a
8 legitimate military target but one that had -- that contributed to the --
9 to the ongoing hostilities in some way would be considered.
10 Q. I guess what I'm trying to get at is: Illegitimate targets are
11 not limited just to traffic police and traffic stops. Is that correct?
12 There's a whole wide range of other potential police functions that would
13 be illegitimate targets under IHL for the KLA, or for any other armed
14 group for that matter. You're just using the traffic police as a clear
16 A. Well, I'm not a lawyer, but my understanding of the law is that
17 it's the term direct participation in hostilities, that is the threshold
18 with which one judges whether a target is legitimate or not.
19 Q. So insofar as you are not a lawyer, would that then -- would that
20 qualification have to apply to all the other legal conclusions that you
21 have testified to, such as your claim that there was an armed conflict,
22 for instance?
23 A. That claim is the position of the organisation which was reached
24 after ongoing consultations within Human Rights Watch, which included our
25 legal team.
1 Q. Okay. Now, the other week you testified relative to a tragic
2 incident in Gornje Obrinje which occurred, I believe you said, in
3 September of 1998. First of all, the site of the incident in question,
4 that is extremely close to an area that was a KLA stronghold in 1998.
5 Isn't that correct?
6 A. There was -- the KLA had a base, if you can call it, in the nearby
7 village of Likovac.
8 Q. That's what I'm referring to. Now, and isn't it also true that
9 the area saw fierce combat between the KLA and the Serbian forces
10 immediately prior to the discovery of the bodies of the victims?
11 A. There was combat between the two sides, yes.
12 Q. Okay. And isn't it also fair to say that there was fierce combat,
13 or at least hostilities, even subsequent to the discovery of the bodies?
14 A. My understanding is that the hostilities were ongoing for at least
15 two days prior to the discovery of the bodies.
16 Q. I'm talking about subsequent to, sir.
17 A. Subsequent to?
18 Q. The discovery of the bodies.
19 A. That's what I'm referring to.
20 Q. Oh. Okay. Now, in fact, around the time that you were in the
21 area, I believe on 30 September 1998, isn't it true that an International
22 Red Cross vehicle on the road heading toward Gornje Obrinje was attacked
23 and disabled by the KLA and pinned down?
24 A. I don't recall the precise date of that incident, but I do recall
25 the incident, also because I observed the ICRC vehicle. And what
1 precisely happened is that this Land Rover, if I'm not mistaken, struck a
2 land-mine on the road between Gornje Obrinje and Likovac and at least one,
3 I believe it was an ethnic Albanian doctor, was killed in the blast. And
4 another vehicle from the KDOM, if I'm not mistaken, Canadian, also struck
5 a land-mine in that area.
6 Q. And wasn't it a fact, sir, that they were pinned down by KLA fire
7 so that they had to be evacuated by a Serbian MUP helicopter and a
8 detachment of Serbian MUP forces?
9 A. I'm not aware of that.
10 Q. Okay. But in fact you do actually have the reporting of the
11 Red Cross vehicle being destroyed and of the casualties that ensued in
12 Under Orders. That's published in that report as well, is it not?
13 A. That's correct. I observed that vehicle myself.
14 Q. Okay. But your description of the International Red Cross vehicle
15 being struck -- of striking the mine and of being -- and of the casualties
16 resulting from this KLA action, that didn't appear in your publication
17 regarding the Drenica valley, Week of Terror in Drenica, did it?
18 A. I would have to check, but that report, the Week of Terror in
19 Drenica, is very explicit in the degree of fighting that took place in and
20 around Gornje Obrinje.
21 Q. My point is, sir, that you were an eye-witness to the tragedy that
22 befell the International Red Cross at the hands of the KLA but you did not
23 publish that until 2001?
24 A. Again, I would have to look back into the Week of Terror in
25 Drenica report, but we mentioned in that report that up to 12 Serbian
1 policemen died in fighting in Gornje Obrinje. And I'd have to check that
2 precise number, but that's my recollection. So I believe we were very
3 upfront that hostilities were taking place.
4 And secondly, my information is that the ICRC vehicle struck a
5 land-mine, and I did not know -- I have no information that they were
6 pinned down by KLA fire. That I don't know.
7 Q. Okay. Fair enough. Now, would it be fair to say that under such
8 circumstances the area around Gornje Obrinje was, at the very least, a
9 contested area if not under the control of the KLA and out of effective
10 control of the legitimate government forces of Serbia or Yugoslavia?
11 A. The KLA had an established presence in Likovac and the area and
12 was active around Gornje Obrinje at that time.
13 Q. Okay. And without effective control of Gornje Obrinje and with
14 the presence of the KLA there, that would make it very difficult for the
15 Serbian authorities to carry out any investigations of the Gornje Obrinje
16 site, would it not?
17 A. There was an attempt by an international team to conduct an
18 exhumation of the Gornje Obrinje site. This was a Finnish forensic team
19 headed by Dr. Helena Ranta.
20 Q. Correct. And they were also -- the convoy was also -- included
21 certain pathologists from the Serbian authorities as well. Isn't that
23 A. I believe that is accurate, yes.
24 Q. Okay. And isn't it also accurate that due to the threat of the
25 KLA in the area, that convoy could not proceed and could not complete
1 exhumations and investigations?
2 A. That is not correct.
3 Q. Well, if other witnesses state so, we'll find out.
4 But, sir, the question I have for you is: Are you aware of the
5 fact the Serbian authorities, and in particular the judiciary, issued an
6 official inquiry and authorised an exhumation and directed the police to
7 carry out the exhumation?
8 A. I was not aware of that fact.
9 Q. Okay. Again this brings us back to the point that your
10 publications suffer from a deficiency that they don't have all of the
11 information relative to the events that are being reported.
12 A. Let me tell you about the exhumation in Gornje Obrinje.
13 Q. Can you answer my question, sir?
14 A. Let me read it once again then.
15 Q. Sure.
16 A. We provided the Serbian and Yugoslav governments and the relevant
17 officials with the opportunity to provide us with information. They
18 declined to do so. We relied then on the public and open sources that
19 were available at that time to present and provide information that gave
20 the government's view. And I wish that we had received more information
21 from the authorities so that they could have been included in our reports.
22 Q. Now, if there is information from the Serbian authorities showing
23 their activities to investigate things that occurred even before your
24 publication was published in February of 1999, we're talking about the
25 Week of Terror in Drenica, that would very much change the conclusions
1 contained in your report, would it not?
2 A. No, it would not.
3 Q. As to the inaction of the Serbian authorities in attempts to carry
4 out investigations?
5 A. I do not recall us reporting that they failed to investigate
6 what -- this specific incident. What we reported in the Week of Terror in
7 Drenica report was what we concluded was an attempt to block the Finnish
8 forensic team from accessing the area.
9 Q. And again, you did not have the information that might have
10 changed those conclusions?
11 A. We did have the information from individuals in the Finnish convoy
12 that Serbian police forces prevented them from accessing the
13 Gornje Obrinje area.
14 Q. You were not physically present to eye-witness any of this?
15 A. No. I relied on interviews with the Finnish team, as well as
16 villagers in the area.
17 Q. Okay. Now, for instance, also would it be fair to say that you
18 did not have at your disposal information regarding the number of
19 investigations or criminal charges or indictments levied by the Serbian
20 authorities, that is to say investigations by the Serbian MUP, official
21 criminal charges filed with the Prosecutor's office, et cetera, for the
22 period of July 1st, 1998 through to June 1st, 1999 dealing with crimes
23 committed by various individuals against victims of Kosovo Albanian
25 A. We asked for that information in some of these letters and it was
1 not provided.
2 Q. Okay. So you do not have any information regarding the fact that
3 over a thousand such criminal charges were prepared by the Serbian
4 authorities against alleged perpetrators?
5 A. I do not have knowledge of that precise number, but I take no
6 issue whatsoever with the Serbian and Yugoslav government's right and,
7 indeed, their obligation to prosecute crimes within the territory under
8 their authority.
9 Q. You would agree, would you not, however, that knowledge of these
10 facts would be instrumental to some of the conclusions that you draw in
11 your various reports regarding the culpability of various state organs in
12 crimes that you allege occurred?
13 A. I would not agree with that, no. I believe we have collected
14 evidence that documents very serious crimes by the Serbian police in the
15 case of your client, and the evidence speaks for itself.
16 Q. But again, that evidence is missing a key element as to what was
17 done afterwards by the authorities.
18 A. I don't believe so. I believe we have documented accurately both
19 the actions and subsequent inactions that surrounded the incidents we
21 Q. Okay. Now, you earlier testified that the source of your
22 information regarding Gornje Obrinje were I believe the persons who
23 happened to cross and discover the bodies. Isn't that accurate?
24 A. Our research into Gornje Obrinje relied on -- primarily with
25 interviewing individuals who found the bodies in the forest, that is
2 Q. Okay. And in fact these persons did not -- were not eye-witnesses
3 to the actual killings themselves, were they?
4 A. That is correct.
5 Q. And in fact I believe in your report you state that these persons
6 fled the area and only found the bodies when they returned?
7 A. That is correct.
8 Q. Okay. Now, therefore when it comes to the bodies in the forest,
9 wouldn't it be more honest to say that the accounts of their death are
10 based on speculation and guesses because these people were not
11 eye-witnesses to the actual killings, that there is a degree of
12 speculation there?
13 A. Excuse me. Our conclusions are based on more than two weeks -- in
14 fact, I believe it's three weeks of extremely rigorous research. And when
15 the body of evidence is taken in its entirety, which includes the
16 testimony of multiple witnesses, plus our examination of the crime scene,
17 plus the fact that hostilities did take place, we reached the conclusions
18 in our report, namely that these individuals were executed.
19 Q. Sir, there were no eye-witnesses to the killings in the forest,
20 were there?
21 A. Nobody saw the precise killings, no.
22 Q. Nobody saw the perpetrators performing the acts alleged?
23 A. People saw the perpetrators in and around the area, but nobody
24 witnessed the perpetrators pulling the trigger.
25 Q. And, sir, correct me if I'm wrong, you've already clarified that
1 you are not legally trained, but am I also correct to say that you have no
2 formal training or education as a police investigator or as a police
4 A. That is correct.
5 Q. You have no formal training or education as a forensic
7 A. I have what I would call preliminary forensic training, meaning
8 I've been -- that I have what I would consider a good knowledge of basic
9 forensics, but I do not have a formal education in forensic science.
10 Q. You have not had any formal training or education as a criminal
12 A. That is correct.
13 Q. Okay. Now -- so therefore your opinions or conclusions as to how
14 these individuals died and in what means they died are of limited value in
15 that regard. They're just your personal, untrained, unqualified
17 A. I take issue with the word "untrained," but I will say this. We
18 have made every effort in all of our reporting to state what we know and
19 what we don't know. Everything has a footnote. Everything is cited.
20 We're upfront about the limitations on our data, and the reports speak for
21 themselves. We will allow the readers to reach conclusions based on the
22 facts as we have provided them.
23 Q. Now, Mr. Abrahams, in any event you are aware of instances where
24 the KLA killed ethnic Albanian civilians, are you not?
25 A. Yes, I am.
1 Q. And you are also familiar with the efforts of the KLA to try and
2 obtain intervention from the outside world against the Serbian and
3 Yugoslav forces, particularly in 1998 and 1999?
4 A. Can you clarify what you mean by "obtain intervention."
5 Q. Military intervention.
6 A. I am aware that the KLA was interested in getting, particularly
7 NATO, involved in the conflict, yes.
8 Q. Okay. And isn't it also a fact that your organisation made a
9 finding or a conclusion that for propaganda purposes the KLA intentionally
10 provoked attacks against Albanian civilians to try and gain such
11 intervention from NATO?
12 A. The conclusion you are referring to can be categorised as such. I
13 believe that the KLA was aware of the -- of the need to win public opinion
14 and that the unfortunate crimes and the abuses against ethnic Albanians
15 were for them -- they had an interest in getting that information out to
16 the world.
17 Q. Well, sir, I think it's a little more than that. I believe your
18 organisation stated, and I can direct you to Under Orders, which is P438,
19 e-court it's page 80, and this is again repeated at page 130 as well. And
20 I believe I'm quoting your organisation in saying: "In the very least,
21 the KLA understood the political benefit of civilian casualties."
22 A. I think that's exactly what I just said.
23 Q. Okay. And I believe that the -- isn't it a fact that we can -- we
24 cannot exclude the possibility that the Gornje Obrinje tragedy was at the
25 hands of the KLA, since there were no eye-witnesses?
1 A. I collected no such information to lead me to that conclusion.
2 Q. Did you interview Imer Delilaj?
3 A. Yes, I did.
4 Q. He was a member of the family of the victims in Gornje Obrinje,
5 was he not?
6 A. Yes, he was.
7 Q. And you interviewed him on November 10th, 1998?
8 A. Interviewed him on more than one occasion.
9 Q. Okay. And, by the way, Imer was a self-avowed fighter in the KLA,
10 was he not?
11 A. Yes, he was.
12 Q. And in lamenting the death of his brother, one of the victims, he
13 reported to you -- and this is also in -- this is in Exhibit P441, in
14 e-court page 36. Why don't we wait for that to come up on the screen,
15 sir. It might be easier for you, sir, to comment on where I'm going to
17 Page 36 on the e-court. If you could scroll down. Is this 36?
18 I'm showing 1 of 1 on my -- this is not the page. I'll see if I can get
19 the ERN number. That might assist us. The ERN number is K0364957. That
20 appears to be the page. If we can zoom in on the indented text in the
21 middle of the page and in particular the last two lines of that indented
22 text, sir.
23 This is your recitation of your interview with Mr. Imer Delilaj.
24 Is that accurate?
25 A. Can you scroll up a touch?
1 JUDGE BONOMY: You want to see the bottom of the page, do you?
2 THE WITNESS: I think this is okay, Your Honour. Yes, I believe
3 this is a citation from my interview with Imer Delilaj.
4 MR. IVETIC:
5 Q. And if you could focus your attention again to the last two lines
6 of this where I believe the statement is: "Adem was 33 years old and had
7 never been armed in his life. He never had problems with the government
8 or the KLA."
9 Now, Mr. Abrahams, my question for you is: Doesn't this statement
10 from Mr. Delilaj, himself a member of the KLA and was knowledgeable about
11 the KLA's activities, seem to imply that it was possible for ethnic
12 Albanians to have a threat from the KLA?
13 A. I mean, we have acknowledged and documented that some ethnic
14 Albanians did have problems with the KLA, and how this statement is read,
15 I suppose, open for interpretation, but one interpretation could be the
16 conclusion you've reached.
17 Q. Okay. Would that interpretation -- strike that.
18 Would people living in Gornje Obrinje who perhaps knew of attacks
19 or killings by the KLA of ethnic Albanians be able to view -- to view this
20 as saying that there are two potential culprits for these killings, namely
21 the government forces or the KLA?
22 A. I'm sorry. Can you repeat the question?
23 Q. Sure. If we have knowledge of killings by the KLA in
24 Gornje Obrinje of ethnic Albanians that predate this instance, then we
25 would have to conclude, would we not, that there are two potential
1 culprits for the killings in this particular case as well?
2 A. I never heard information about ethnic Albanians killed by the KLA
3 in Gornje Obrinje. That is -- I have no information about that.
4 Q. So again we come back to the point that you -- your reports lack
5 critical information relating to the events that are reported?
6 A. Well, it doesn't lack information if that information doesn't
8 MR. IVETIC: May I have Exhibit 6D12 up on the screen, please. It
9 should be 6D12 -- I think the transcript has -- okay, now it's corrected.
10 Q. Now, sir, this is the English translation of a document, the
11 original of which is also in the e-court system in Serbian. This is an
12 onsite investigative report dated 13th February, 1998 in the village of
13 Gornje Obrinje, is it not?
14 A. It is, yes.
15 Q. And it regards the murder of postman Mustafa Kurtaj, does it not?
16 A. It does, yes.
17 Q. And based upon your knowledge of -- of the people there and the
18 languages spoken, can you make any conclusions regarding the ethnicity of
19 this victim?
20 A. Kurtaj is an Albanian name, yes.
21 Q. Okay. And if you read further it would appear that this document
22 talks about the fact that Mr. Kurtaj was killed in the region, the same
23 region that you specified, does it not?
24 A. Yes, it does.
25 Q. Okay. And again this is information that you did not have in your
1 possession at the time that you created your report?
2 A. That's correct.
3 Q. Okay. And he was a postman. Are you familiar with attacks by the
4 KLA against postmen who were doing their job within the legitimate
5 structures of the Serbian and Yugoslav governmental organs?
6 A. Specifically against postmen I'm not aware of cases, no.
7 Q. Okay. Would a attack on a postman --
8 MR. STAMP: Just a matter of clarification. The question itself,
9 terms of the question is not necessarily improper. But the question is
10 asked with this document on the screen, so therefore there is an issue as
11 to whether or not the question is connected with the document, i.e., the
12 question asks about KLA killing of postmen. Is that question related to
13 something in this document? Is that the reason we have this document?
14 MR. IVETIC: We have this document to talk about a killing of an
15 ethnic Albanian in Gornje Obrinje which the witness said he did not have
16 knowledge of such things occurring, and now I'm moving on to separate
17 issue talking about legitimacy of attacks on governmental organs.
18 MR. STAMP: But perhaps if counsel could assist us by showing us
19 where he said he had no knowledge of the killings -- of any killing of
20 ethnic Albanians in Gornje Obrinje. I think he said that he had not
21 knowledge of any ethnic Albanian being killed by the KLA.
22 MR. IVETIC: That's correct.
23 MR. STAMP: He didn't say he had no knowledge of ethnic Albanians
24 being killed at all. Now the question refers to the killing of an ethnic
25 Albanian postman by the KLA. Is that question related to this document.
1 That's all I'm asking.
2 MR. IVETIC: In part, but I'm moving beyond the document. That
3 was just to -- since he says he has no knowledge of this, I cannot ask him
4 about this specific instance. I'm asking him more generally speaking if
5 he was aware of postmen being attacked by the KLA. I believe he has
6 answered that. And now I would just ask him a general question, if in
7 fact there were facts --
8 JUDGE BONOMY: Before you do that, can I just be clear. This
9 translation is accurate in respect that this is a postman, that's a person
10 who delivers letters?
11 MR. IVETIC: Correct.
12 JUDGE BONOMY: It's not simply a SUP officer occupying a
13 particular post. It's someone who actually delivers letters, is it?
14 MR. IVETIC: It's my understanding that it is someone who delivers
15 letters. But since this witness doesn't have knowledge about the
16 specifics --
17 JUDGE BONOMY: I wasn't aware so far that the SUP dealt with the
18 delivery of letters, but that's now expanding my knowledge of the --
19 MR. IVETIC: The SUP does not, Your Honour, but postal services is
20 also an organ of the Serbian government, public enterprise, so ...
21 JUDGE BONOMY: Well, no doubt it will become clear in due course.
22 But continue with your question.
23 MR. IVETIC: Okay.
24 Q. Now, first of all, sir, do you have knowledge of the fact that the
25 postal service in Kosovo-Metohija was a -- was viewed by the KLA as being
1 part of the government of the Serbian authorities in your interviews with
2 the KLA?
3 A. No. Specifically about the postal service, no, I do not.
4 Q. Okay. Would you -- would you consider attacks against postal
5 service employees to be legitimate or illegitimate under IHL?
6 A. I'm sorry to interrupt, Your Honour, but there's a very odd siren
7 in the --
8 MR. IVETIC: I think we all hear it. It's outside.
9 THE WITNESS: Oh, I see. It's a bit distracting, if I may --
10 okay. Sorry. I thought it was just in the headphones.
11 No, I would not consider attacks on postal workers legitimate
12 under IHL, unless that postal worker was actively engaged in hostilities.
13 But by definition, postal workers are not.
14 MR. IVETIC:
15 Q. Okay. Fair enough, sir. Now, let's turn for a moment to the
16 historical presentations in your various reports, and I believe you
17 indicated that during your time period with the Office of the Prosecutor
18 you were primarily engaged in the historical aspects of the indictment,
19 the background, historical background. Is that accurate?
20 A. With regards to the indictment in particular?
21 Q. Yes.
22 A. That is correct.
23 Q. Okay. Now, as far as the historical presentations in your reports
24 and in the indictment, you did not -- you have no formal education in
25 Balkan history, do you?
1 A. My degree is in international studies, a master's degree, with a
2 focus on eastern Europe.
3 Q. Okay. How many professors of Balkan history were employed by
4 Human Rights Watch, if any, in the drafting of these reports?
5 A. Employed? None.
6 Q. None. Okay. During the vetting process that you described
7 earlier, did any professors of Balkan history review and make comment on
8 the historical sections of your reports?
9 A. I do not believe so, no.
10 Q. For that matter, during the vetting process did you have any
11 police experts review your reports and offer any criticism thereupon?
12 A. What's your definition of a police expert?
13 Q. Well, someone who -- let's break it down to several categories.
14 Did you have anyone -- did you have any police instructors in any
15 accredited police academies or police colleges as part of the vetting
17 A. No, we did not.
18 Q. Did you have any high-ranking members of police forces, national
19 police forces, anywhere outside of the Balkans as part of the vetting
21 A. No, we did not.
22 Q. Did you have any authors, distinguished authors who had written
23 upon the topic of police activities and police structures as part of your
24 vetting process?
25 A. Not to my knowledge, no.
1 Q. Okay. Now, returning to the time period when you worked for the
2 Prosecutor of this very same Tribunal, would it be accurate to say that
3 your work at the Office of the Prosecutor assisted that office in
4 preparing the indictment, at least the historical part of the indictment
5 against Mr. Milosevic, that in essence is part of the -- part of these
7 A. Let me clarify my role. When I arrived here, the indictment had
8 already been issued and the Office of the Prosecutor was in the process of
9 amending the indictment. So I was asked to assist by collecting or by
10 pointing the team in the right direction to where they might collect the
11 documentation to bolster these -- to bolster the historical claims. I
12 also want to state that that was -- that was just one of my -- one of my
13 tasks and not a primary -- not a primary one.
14 Q. Well, sir, at that time, however, the indictment against the --
15 against these accused had not yet been formulated and issued. Is that
17 A. My recollection is the -- that the Milosevic indictment included
18 some of the individuals here today but not all.
19 Q. Not all. Okay. And wouldn't it be fair to say, sir, that in
20 generating your reports you stated that it was a very important objective
21 to assist the process of investigations against Serbian Yugoslav officials
22 for the events in Kosovo-Metohija?
23 A. One of the primary objectives of our documentation is to promote
24 the interests of international justice, and towards that aim we hope our
25 material will assist the tribunal, this Tribunal, in its investigations
1 and prosecutions against all who are alleged to have violated the law,
2 regardless of their ethnicity.
3 Q. Okay. And that objective, to essentially investigate events that
4 would lead to prosecution of Serb officials, that was the main objective
5 of taking interviews from persons in Kukes and wherever else the
6 interviews were conducted. Is that accurate?
7 A. It was one of many objectives.
8 Q. But it was an objective?
9 A. It was an objective.
10 Q. Okay. And isn't it a fact, sir, that these interviews that were
11 undertaken and that are -- that portions or summaries of which are
12 reproduced in our various publications, such as Under Orders, are not or
13 were not taken under oath?
14 A. Under oath, no. No, they were not taken under oath.
15 Q. They were not -- there was no court officer to swear the witness
17 A. No.
18 Q. They were not subject to the penalty of perjury, et cetera?
19 A. That's correct.
20 Q. Okay. Now, furthermore your reports have not provided or
21 disclosed much of the source material for the summaries of the interviews
22 as well as the identities of many of the interviewees. Is that correct?
23 A. All of the interviews in our reports are cited. On some occasions
24 to protect the identity of witnesses who requested protection due to fear
25 of reprisals, we would use initials or some other method to protect their
1 full identity. But I would have to go through the footnotes to tell you
2 how -- what percentage of the witnesses requested that protection.
3 Q. Okay. In any event, your organisation did not do any significant
4 background checks of these interviewees to ascertain any connection with
5 the KLA or any bias resulting therefrom, did you?
6 A. Our research relied on as many witnesses as possible to obtain an
7 accurate picture of events, and to do so we witnessed multiple victims
8 and -- excuse me, we interviewed multiple victims and witnesses, asking
9 detailed questions to corroborate the information that -- that they
10 provided. So if you are asking whether we obtained that -- legal
11 documents to describe this person's full history, no, we did not. But we
12 conduct our interviews in such a way that we can, as best as possible,
13 confirm, verify, and corroborate the information they provide.
14 Q. Okay. Sir, isn't it true that the KLA which was mainly based in
15 villages was primarily based around familial units?
16 A. You'll have to explain what you mean by that so I can answer
18 Q. Sure. Would it be fair to say that in particular villages there
19 would be particular families who were in the KLA and particular families
20 that were not in the KLA?
21 A. I would, in general, agree with that conclusion.
22 Q. We're talking generally.
23 A. Generally speaking, families would participate or would not
24 participate, but there certainly were occasions where one brother would
25 and one brother wouldn't, for example.
1 Q. Correct. But again, generally speaking, isn't it true that the
2 familial patriarch, that is the leading male figure in the family, would
3 have a great deal of say or control over the remaining members of that
5 A. I would agree with that statement.
6 Q. And would you also agree that if the familial patriarch was a
7 member of the KLA or sympathised with the KLA, he would have control or
8 pressure over his remaining family members regarding what they talk about
9 with respect to the KLA?
10 A. I agree with that statement.
11 Q. Okay. And I believe that you, yourself, or your organisation have
12 knowledge or reached an understanding that the KLA did have a history of
13 pressuring people with regards to what was presented to the media and to
14 outsiders. Is that accurate?
15 A. There were cases where the KLA would exert its influence on
16 individuals in Kosovo. So, yes, that did take place.
17 Q. Okay. And in fact this is a concern that you cited I believe in
18 Under Orders, if I'm accurate, if not I can get you the page number. But
19 I believe that you stated that your -- you had reached the knowledge and
20 understanding that the KLA had instructed people not to speak about
21 certain events to the media and to other people interviewing them. Is
22 that -- do you recall that, or do we need to get to the exhibit?
23 A. Well, it would be better to get to the exhibit, if you don't mind.
24 Q. Fair enough.
25 MR. IVETIC: That's Under Orders, I believe that's P438, and I
1 believe this appears at page 22 on the e-court variant. I believe this is
2 not page 22 on e-court. Let me -- let me try and get the e-court number.
3 JUDGE BONOMY: It is there. "In some cases they had been
4 instructed by the KLA not to speak of certain events."
5 That's not the one you're looking for.
6 MR. IVETIC: That -- that, I think, is, but I'm not seeing it on
7 the screen.
8 Ah, there it is in the middle. Yes.
9 Q. Sir, now, does that assist you in answering my prior question,
10 which I believe was: Is it accurate that your organisation found that the
11 KLA had instructed people not to speak about certain events?
12 A. In certain cases, that is correct.
13 Q. Okay. And, sir, wouldn't it be a logical by-product of that
14 conclusion and understanding that if the KLA told people what not to speak
15 about, there could very well have been instances where the KLA told people
16 precisely what to speak about.
17 A. My answer to that question is -- you'll have to bear with me, it's
18 a little complex. Because that is precisely why we conduct interviews in
19 such a detailed fashion, so that there is no way possible that an
20 investigation like into Gornje Obrinje that lasted for three weeks and
21 involved interviews with multiple witnesses in one-on-one settings could
22 have been coordinated from above because we ask such specific questions.
23 For example, what was the weather like at that moment? What was he or she
24 wearing at that moment? Questions which sometimes seem inane but allow us
25 to reveal inconsistencies, inconsistencies which undermine the credibility
1 of the witnesses, and that is exactly why this research takes as long as
2 it does. So in the case of Gornje Obrinje, we did that research, we
3 followed that methodology, and we reached the conclusions that we've
4 presented in the report.
5 Q. And I think we've already reached the understanding or conclusion
6 that there was no direct testimony in Gornje Obrinje regarding the
7 perpetrators, so I think we can put that aside. I'm focussing on Under
8 Orders which talks about the results of the interviews in Kukes, which I
9 referenced earlier, which I believe were refugees in the various centres
10 there and the reporting or the conclusions of why they left their homes
11 that I was making reference to. Would it be a logical by-product of the
12 Human Rights Watch finding that the KLA had instructed people what not to
13 speak about, that it also instructed them on what to speak of in place of
14 what not to speak about?
15 A. While there may be isolated incidents of what we could call
16 coaching, I am firmly of the belief that this did not happen on a
17 systematic level or in a coordinated manner because the exodus of more
18 than 850.000 people was so chaotic and so violent that people were flowing
19 across the borders with none of their possessions and moving quickly into
20 different refugee camps in Macedonia and in northern Albania. And there
21 is no way that the KLA or any other force could have instructed them in
22 such a systematic manner to give consistent and reliable reports of the
23 nature you're suggesting.
24 Q. And your interviews were in Kukes which is near a KLA base, is it
1 A. My interviews were in Kukes and there are KLA bases in northern
3 Q. Okay. Now, in fact I believe in Under Orders you reach the
4 conclusion that any evidence coming either directly or indirectly from the
5 KLA heightened your suspicions about its accuracy. Is that a fair
6 assessment of your findings, or your belief I should say?
7 A. We view information coming from any -- any official source or any
8 party to the armed conflict with a healthy dose of suspicion.
9 Q. Okay. And would it be fair to say that you cannot -- first of
10 all, you only interviewed 600 persons from one of the centres. Is that
12 A. What do you mean, "one of the centres"?
13 Q. In Kukes. From Kukes, not from other -- from Macedonia, for
14 instance, or ...
15 A. Well, again I take issue with the descriptive "only." I consider
16 it --
17 Q. Let's take out "only." You interviewed 600 individuals in our
18 preparation of your findings, or your report?
19 A. In both Albania and Macedonia.
20 Q. Okay. You did not interview the 800.000 that you cited before?
21 A. That's correct. We interviewed 600.
22 Q. You interviewed a limited group in a limited area that had KLA
23 activity, at least part of it, Kukes?
24 A. Well, we would have to go through -- no. The 600 individuals who
25 were interviewed, they were interviewed in different areas, which is in
1 northern Albania, as well as in other parts of Albania, like Tirana, the
2 capital, as well as in Macedonia. And furthermore, we returned to Kosovo
3 in June 1999 and continued our investigations precisely with the objective
4 of investigating further the reports we received from refugees during the
5 war. So we went back to the villages that they told us about to find --
6 to investigate the scenes, to interview more witnesses. And that is part
7 of the 600.
8 And one point I want to stress is I was continually amazed by the
9 degree of consistency between the reports of refugees and our findings
10 when returning down to the degree of specific names. So refugees, for
11 example, would tell us that in such-and-such a village 11 people were
12 killed, ethnic Albanians, were killed by Serbian forces, and they would
13 give us the names. And when we returned to that village, we found
14 precisely the same number of people and the same names. So I was quite
15 astounded by the degree of corroboration we found between the refugee
16 accounts and our onsite investigations.
17 Q. Well, let's return back to the KLA for a second, since that was my
18 question. Let's take a step back to 1998 and 1999. I believe you've
19 already confirmed that there were -- or at least acknowledged that there
20 were frequent attacks on the part of the KLA against, first of all,
21 civilians of all nationalities and then against legitimate government
22 forces and then against army forces. Is that correct?
23 A. It depends what time-frame you are referring to because --
24 Q. 1998 through 1999 is what I specified.
25 A. Well, again, we need to be more precise, because we have
1 documented crimes by the KLA against ethnic Serbs and Albanians in 1998.
2 No question about it. It's all there in our reports.
3 Q. Fair enough.
4 A. In the period of 1999, specifically the period of the NATO
5 bombing, we do not have documentation of KLA abuses during that time. The
6 explanation of course is that they -- it was the period of the NATO
7 bombing and the KLA was otherwise engaged, was in hiding, was active in
8 fighting. So we don't have evidence of abuses against civilians at that
9 specific time, March through June 1999.
10 Q. Okay. Well, isn't it a fact that -- strike that.
11 First of all, let's talk about 1998 and then we'll get to 1999.
12 Isn't it a fact that in 1998 the KLA on the 40 per cent of the territory
13 that it controlled did regularly or -- let's not even say regularly, but
14 did significantly engage in a campaign of violence against civilians of
15 all nationalities and ethnicities?
16 A. I prefer to be specific. It is true in a number of serious
17 incidents the KLA abducted and killed ethnic Serbs as well as ethnic
18 Albanians in places such as Orahovac, in places such as the Belacevac
19 mine and in and around -- in the Djakovica area. It happened, yes.
20 Q. And if you want, let's go specific, if you'd like to, as an
21 example. Isn't it true that on September 9th, 1998 near the Kosovo town
22 of Glodane the bodies of 34 civilians, victims of the KLA, were found in a
23 lake. Do you recall that instance?
24 A. That is correct, yes.
25 Q. Okay. And isn't it also likewise true that -- first of all, are
1 you familiar with the so-called October accords that were entered into in
2 October 1998, the cease-fire?
3 A. I am familiar of its existence but not its details.
4 Q. Okay. Are you aware of the fact or do you have knowledge of the
5 fact that the KLA repeatedly violated that cease-fire agreement subsequent
6 to October of 1998?
7 A. Again, without -- without knowing the details of the agreement, I
8 can't say whether they violated it. But if you're asking whether the KLA
9 engaged in hostilities after October 1998, they did, yes.
10 Q. Okay. And if we were to look even earlier, you would have to
11 agree, would you not, that even as early as 1996 the KLA was organised in
12 or was engaged in pre-planned violence against both civilians and the
13 civil authorities, would you not?
14 A. The KLA began its military operations or its hostilities in Kosovo
15 in 1996, that's correct.
16 Q. Okay. And in fact you summarise some of that in Under Orders. Is
17 that correct?
18 A. That is true.
19 Q. Okay. And you have knowledge, then, I presume, regarding the
20 funding and support base of the KLA and that one source was this Homeland
21 Calling fund which levied attacks on Albanians in the diaspora, would you
23 A. I'm familiar with the organisation Homeland Calling, but I, to my
24 knowledge, I would not call it attacks but they collected contributions
25 from the diaspora on a voluntary basis.
1 Q. Okay. And are you familiar with pressure or violence used against
2 persons who refused to contribute to this -- to this fund, if you will?
3 A. I am not aware of that, no.
4 Q. Fair enough. In addition to the fund, the KLA was founded and
5 drew its support from other activities, including drug smuggling, human
6 trafficking, money laundering, and other criminal activities? Isn't that
8 JUDGE BONOMY: Don't answer that for the moment.
9 Mr. Ivetic, can you help us with the purpose of these questions.
10 Where is it they are leading?
11 MR. IVETIC: What I'm leading to, Your Honour, is that this
12 witness gave some testimony going around how to qualify the KLA. He
13 wouldn't call them terrorists. He wanted to call them insurgents. I'm
14 trying to find out what his definition of the KLA encompasses. And the
15 words I'm using right now come from his report, so I'm not trying to place
16 any words in his mouth that he hasn't already uttered.
17 JUDGE BONOMY: Just give me a moment then.
18 [Trial Chamber confers]
19 JUDGE BONOMY: We see the legitimate purpose for which these
20 questions are being asked. But I think, Mr. Ivetic, it's also legitimate
21 for us to invite you to get more quickly to the point rather than explore
22 in detail activities of the KLA of which we are fairly well aware.
23 MR. IVETIC: Fair enough. I will try to abbreviate my discussion
24 of that.
25 I'm directed to the clock. Should we -- do we need to take a
1 pause or can we continue?
2 JUDGE BONOMY: Yes, Mr. Hannis.
3 MR. HANNIS: Your Honour, since we're near the break I just want
4 to address a question to you to my colleague to ask if we can have an
5 estimate for how much for purposes of scheduling witnesses. We have got
6 one with a young baby and one with a medical condition.
7 JUDGE BONOMY: Can you help, Mr. Ivetic?
8 MR. IVETIC: Yes, I should have about 45 to 50 more questions
9 which I would estimate would be about an hour.
10 JUDGE BONOMY: All right. Thank you.
11 MR. IVETIC: I'll try to be a little less, obviously. I'll try
12 and use the break to cull my questions to be more succinct.
13 JUDGE BONOMY: Okay. Well, we'll take the break now and we'll
14 resume at 2.00.
15 MR. IVETIC: Thank you.
16 --- Luncheon recess taken at 12.28 p.m.
17 --- On resuming at 2.01 p.m.
18 JUDGE BONOMY: Mr. Ivetic.
19 MR. IVETIC: Thank you, Your Honour.
20 Q. Mr. Abrahams, I'd like to first return for just a brief moment to
21 Gornje Obrinje, since I had an opportunity to review the transcript and
22 saw that I'd missed one critical element. Namely, are you aware that
23 after the Serbian judicial authorities ordered an investigation and an
24 exhumation, and that while the forensic pathologists and criminal
25 technicians were on their way under the security of the police, because
1 obviously the police does not perform the exhumation, they provide
2 security, are you aware that the convoy itself was shot at in Likovica
3 [phoen], an area that you previously identified as a base for KLA
5 A. That information is not known to me.
6 Q. Okay. You would agree, would you not, that that bit of
7 information would have a significant bearing on conclusions relating to
8 Gornje Obrinje and whether or not the authorities were responsive to
9 complaints about that incident?
10 A. A significant bearing, no, I would not agree.
11 Q. You would agree that it has some impact on your conclusions?
12 A. If the government was in good faith making an effort to
13 investigate the crime with an eye towards prosecuting those responsible,
14 then, yes, that is a -- that is a -- that would --
15 Q. That would change things --
16 A. No, that would -- sorry, I'm still digesting my lunch. I
17 apologise. Then that would be relevant.
18 Q. That would be relevant. Okay. And again, this is information
19 that you did not have.
20 A. That the authorities had sent a delegation or sent a forensic
22 Q. Correct, and that they were shot upon and could not proceed due to
23 the shootings in -- from the direction of Likovic?
24 A. No, I did not know that.
25 Q. Okay. Now, if we could return for a moment to the issue of the
1 KLA. We had talked before the break about some of the activities of the
2 KLA. As someone who has studied the region and has some knowledge on it,
3 are you familiar with another organisation that helped recruit fighters
4 for the KLA called the Albanian Arab Islamic Bank?
5 A. No, I'm not familiar with that.
6 Q. Are you aware with statements made by Mr. Fatos Klosi, the former
7 head of the Albanian intelligence service in 1998, that this organisation
8 and other al Qaeda terrorist cells were sending fighters to join the KLA?
9 A. No, I am not aware of that statement, no.
10 Q. Was that part -- you did not -- strike that.
11 I take it, then, that was not part of your research for your book
12 on history where you claim that the KLA was distancing itself from
14 A. For my research, I actually interviewed Mr. Klosi, Fatos Klosi to
15 whom you refer, and further investigated the claims of Islamic fighters,
16 but at no point did I encounter statements from him about this bank.
17 Q. Did he mention al Qaeda fighters?
18 A. Al Qaeda, no.
19 Q. Okay. Terrorists?
20 A. No.
21 Q. Okay. With respect to -- are you aware with the French national
22 Claude Kader who was arrested in France in 1998 and was -- and testified
23 that he personally trained and recruited al Qaeda fighters for the KLA?
24 A. I'm familiar with that name, yes.
25 Q. Okay. And are you aware with the subject matter of his testimony
1 as I have summarised it?
2 A. My understanding of that case, but my recollection is not precise,
3 is that Mr. Claude Kader was arrested in Tirana for murdering an Albanian,
4 I believe his translator, if I'm not mistaken. And in the course of his
5 testimony he said that he had been hired to recruit Islamic fighters for
6 the KLA.
7 Q. Okay. Now, the point of all these questions is, sir, you stated
8 earlier that you tend to avoid classifying the KLA as a terrorist group
9 but rather call it insurgency. But wouldn't it be fair to say that
10 whether you coin the KLA as a terrorist group or an insurgency, or just
11 some type of organised criminal element, you would have to qualify their
12 activities of attacking civilians, including civilians of all
13 nationalities, including non-Serbs and non-Albanians, such as Goranje
14 [phoen], Roma, Turks, Egyptians, et cetera, that those would constitute
15 criminal acts by any definition, would they not?
16 A. I would say that the KLA's attacks on legitimate military targets
17 during the state of armed conflict were not violations of international
18 humanitarian law but they could be categorised, classified, and prosecuted
19 as violations of Serbian or Yugoslav law.
20 Now, attacks on illegitimate targets, such as civilians, would, in
21 addition to being violations of domestic law, also be a violation of
22 international humanitarian law.
23 Q. And wouldn't you also have to agree that eliminating such criminal
24 activity, be it quantified as terrorism or other criminal acts, and
25 stopping those engaged in the abduction and/or killing of civilians is a
1 legitimate function and obligation of any state, not just Serbia or
2 federal Yugoslavia as it was at the time?
3 A. Yes, and my work is not whether a state does that, but how the
4 state does that.
5 Q. I believe you've mentioned that before. Now, I believe that you
6 testified the other week before the break that you could agree that there
7 was -- that in general there was some degree of intimidation upon the
8 ethnic Albanian population from the side of the KLA.
9 Now I'm going to ask you a different question. Are you aware of
10 the fact that the KLA also engaged in some conflict with other organised
11 Kosovo Albanian groups, armed or otherwise?
12 A. Yes, I am aware.
13 Q. Okay. And of which -- of which groups are you aware of, that were
14 in conflict with the KLA?
15 A. The one group I know of is called the FARK, Forcat e Armatosura
16 e Republikes se Kosoves.
17 Q. We're on the same wavelength, that's where I was heading. And
18 this so-called FARK, the English translation being the armed forces of the
19 republic of Kosova, I believe, this was headed by Bujar Bukoshi. Is that
21 A. Mr. Bukoshi had a role in FARK to the best of my knowledge, but
22 I'm not sure if he was the leader or -- what word did you use?
23 Q. I used the word "head." I believe -- let me quantify that.
24 Mr. Bukoshi was the self-styled Prime Minister of the
25 self-proclaimed government in exile of the Kosovo Albanians. Is that
2 A. I wouldn't call him self-styled. I believe he was the chosen
3 Prime Minister in that government. Whether you view that government as
4 legal or not is another question.
5 Q. Well, that government wasn't recognised by any states, was it?
6 A. That's correct.
7 Q. Now, isn't it also true that FARK had armed units within the
8 territory of Kosovo-Metohija during the relevant time period 1998, 1999?
9 A. There were periods when FARK had armed units in Kosovo, yes.
10 Q. And isn't it also true that FARK's armed units clashed with those
11 of the so-called KLA?
12 A. There were incidents of so-called clashes, but I'm not aware of
13 the extent. And at a certain point there was a cessation of hostilities
14 between the two.
15 Q. At a certain point, they merged. Some elements merged. Is that
17 A. That's correct.
18 Q. But in fact the -- there is some intimation that FARK's military
19 leader, Ahmet Krasniqi, who was assassinated in Tirana in September of
20 1998 had been assassinated by KLA supporters. Isn't that correct?
21 A. There are many allegations about why Mr. Krasniqi was murdered in
22 Tirana, and I, through my investigations with Human Rights Watch and my
23 book, have never been able to determine who the perpetrator was.
24 Q. But that is one of the theories that's out there, isn't it?
25 A. That the KLA killed Mr. Krasniqi? That is one of the theories,
2 Q. Thank you. And in addition, the KLA was also at odds with the
3 LDK, which was the political party that Mr. Rugova headed. Is that
5 A. The LDK political party and the KLA had different views on how to
6 resolve the Kosovo issue, and those views were often at odds with one
7 other, yes.
8 Q. And in addition to being at odds with one another, isn't it also
9 true that there were reported instances of the KLA harassing or beating up
10 LDK officials who were advocating for a peaceful solution rather than a
11 military solution?
12 A. There are some cases of that, yes.
13 Q. Okay. So you are aware of them?
14 A. Yeah.
15 Q. Now, would it be fair to say then also that the civilian
16 population, the Kosovo Albanian civilian population, likewise would be
17 split up amongst these various affiliations or support for these various
19 A. It depends what time period you're speaking about. Because
20 popular support for the LDK, Ibrahim Rugova, and that political party was
21 very strong leading up to 1998, but it was eroding over time as the abuses
22 continued and as the militant organisation of the KLA, the armed group of
23 the KLA, began to present itself as an alternative to the LDK. And as the
24 abuses continued, the moderate politicians or the politicians who were
25 pursuing the non-violent approach in the LDK, and Rugova specifically,
1 were losing ground to the militants who said: This policy is not working
2 and we must confront the Serbian state with force.
3 And in particular, I would point to the events of Drenica in late
4 February/early March 1998 when in a series of incidents Serbian forces
5 killed 85 individuals, among them more than 20 women and children. And in
6 my opinion, this was a watershed moment when public opinion shifted from
7 the LDK to the KLA, viewing the armed insurgency as both a means of
8 defence and also the only viable option to confront the aggression -- what
9 they viewed as the aggression of the Serbian state.
10 Q. That being said, though, sir, I'm sure you can't deny that there
11 maintains some tensions if not open hostility and conflict between these
12 various ethnic Kosovo Albanian groups who had differing agendas and
13 differing plans for how to obtain those agendas. Isn't that correct?
14 A. There were many different views and a constant tension between the
15 groups, yes.
16 Q. Okay. Now, turning back to the areas that you previously
17 testified that IHL violations are alleged to have occurred or that from
18 where the interviewees came from, isn't it fair to say that these areas
19 that you previously mentioned, these several municipalities, were areas
20 where there were a significant number of armed exchanges between the
21 so-called KLA, terrorist or otherwise, and the legitimate police and army
22 forces of Serbia and Yugoslavia?
23 A. In some cases, yes, and in some cases, no.
24 Q. Okay.
25 A. In general -- excuse me. In general there were violations in
1 areas where the KLA was active; that is absolutely true. But we also
2 documented cases where the KLA had no activity. For example, in the city
3 of Pec or in the city of Pristina or in districts like Istok and Lipljan
4 where KLA activity was significantly less.
5 Q. Okay. Well, let's focus on those areas where KLA activity
6 vis-a-vis the legitimate police and army forces was prevalent. Would it
7 be -- and you've already -- I believe we've already discussed the fact
8 that the KLA had no problem initiating attacks from villages knowing that
9 civilians would get caught in the middle. Would it -- under those
10 circumstances, would it be fair to say that the average Kosovo Albanian
11 had reason to fear for their safety, given these inter-party clashes
12 between the legitimate police and army forces on the one hand, and the
13 KLA, whatever you want to call them, on the other hand?
14 A. Well, first I would say that on occasion the KLA put the civilian
15 population at risk by launching attacks from populated areas. I wouldn't
16 say that they did it with the purpose or the aim of opening this
17 population to attack, but there were cases when their actions did have
18 that result due to the overreaction from the Serbian police force.
19 Q. In that situation then, wouldn't -- strike that.
20 You cannot exclude, then, that some people that left those
21 municipalities left as a direct and proximate result of the ongoing
22 fighting that was going on between the so-called KLA and the legitimate
23 state forces?
24 A. What time period are you referring to?
25 Q. In 1998 and 1999.
1 A. Those are very different periods. This was a dynamic conflict in
2 which the conditions changed.
3 Q. Okay. Well, what about in areas where the KLA was feuding with
4 FARK or other Kosovo Albanian organisations, wouldn't it be logical and
5 possible that people would flee to avoid that conflict as well?
6 A. The tension and conflict between KLA and FARK was limited to the
7 areas in the far west of the country along the border with Albania. And
8 to my knowledge, nobody left those areas as a result of that fighting.
9 And it's an exaggeration to say that there was hostilities between the two
10 of them. They were hostile to one another, but there was no open fighting
11 to the extent of coordinated and organised military action.
12 Q. To your knowledge?
13 A. To my knowledge.
14 Q. Okay. And again you said to your knowledge no one left the area
15 due to that. That's again based upon your interviews of 600 individuals
16 who represent .03 of 1 per cent of the entire population?
17 A. The departure from Kosovo of 850.000 people was the result, based
18 on my interviews, of a coordinated campaign to expel them. And at the
19 time period we are referring to, which is from March to June 1999, by that
20 point FARK and KLA had made up, if you will, had decided to cooperate with
21 one another. So there was not tension and fighting between -- well,
22 tension always existed but fighting and hostility between the two in the
23 period of the NATO bombing.
24 Q. And again, this is all based on your knowledge. And again if the
25 KLA did pressure people not to talk about other reasons for leaving, then
1 you would not have heard about them. Is that correct?
2 A. No, that is incorrect.
3 Q. Well, if -- are you telling me that if the KLA pressured people
4 not to talk about other reasons you would somehow find out about that?
5 A. I believe yes.
6 Q. Well, that's your testimony.
7 Now, let's move to the NATO attacks for which I believe you do
8 have some knowledge and information from what I've read. I believe you've
9 acknowledged in one of Human Rights Watch's reports that about 250.000
10 displaced persons of non-Albanian ethnicity, including primarily Serbs,
11 fled their homes in Kosovo-Metohija during the period in question when the
12 NATO bombs began to fall. Or I, pardon me, strike that. From the period
13 of 1998 through the end of the NATO bombing that 250.000 Serbs had been
14 displaced from Kosovo-Metohija or non-Albanians and some of them were not
15 ethnic Serbs?
16 A. Can you direct me to the reference in my material?
17 Q. I would believe -- unfortunately, I don't have a page reference,
18 but I do have a page reference later on for some of the other stuff. It's
19 in our report relating to the NATO air-strikes. Once we get to that maybe
20 I'll find a page number.
21 But do you have knowledge of the fact that Serbs and other
22 non-Albanians from Kosovo-Metohija fled their homes and became internally
23 displaced persons as a result of a fear for their personal safety
24 resulting from the NATO attacks and bombardments? Do you have any
25 knowledge without getting into specific numbers or statistics?
1 A. Just to clarify, you're talking about non-ethnic Albanians who
2 left their homes in the period -- during the period of the NATO bombing?
3 Q. Correct.
4 A. Well, I don't have numbers, but I do believe that people did leave
5 their homes due to the air campaign and the ongoing war. But even more
6 left their homes after, when there was definitely a discrimination against
7 Serbs after June 12th, 1999, which we have covered in our reports also.
8 Q. Let's focus on the period of the NATO bombing for right now for
9 clarity. I believe that your organisation has amassed information
10 relating to the scope of the human tragedy that resulted from the NATO
11 bombing in Yugoslavia in general but more specifically relating to the
12 province of Kosovo-Metohija. Is that an accurate description?
13 A. We have produced reports based on field research that documented
14 the civilian casualties from -- as a result of the NATO bombing as well as
15 human rights conditions in Kosovo after June 12th, 1999.
16 Q. Okay. And I believe you testified in your direct examination the
17 other week that a significant portion of all the NATO attack sorties took
18 place over the territory of Kosovo-Metohija. Isn't that accurate?
19 A. Our report documents approximately 90 incidents of civilian
20 casualties in all of Yugoslavia, about a third of which occurred in
22 Q. Well, that's what I want to take issue with you on. That's how
23 you testified when the Prosecution asked you to testify on this topic, but
24 I'm a little confused because when I read your report specifically Under
25 Orders at page 40 in e-court, P438, it's clear that you state that -- your
1 organisation states that 56 to 60 per cent of civilian casualties from the
2 NATO bombings were on the territory of Kosovo-Metohija, which is
3 considerably more than one-third?
4 A. No, I said a third of the cases.
5 Q. Okay, of the incidents. So would it be fair to say, then, that
6 two-thirds of the civilian casualties resulting from the NATO bombings
7 took place on the territory of Kosovo and Metohija?
8 A. 56 to 60 per cent.
9 Q. Okay. And that many of these instances or incidents where
10 civilian -- what NATO calls collateral damage but which is really the loss
11 of civilian life occurred in these very same municipalities that we've
12 been discussing these past several days' worth of testimony?
13 A. I would have to examine the report in detail to tell you where
14 precisely those incidents took place in Kosovo.
15 Q. Well, by way of an illustrative example I believe in appendix B of
16 your report, civilian deaths in the NATO air campaign, do you recall an
17 incident in Djakovica on April the 14th, 1999, when it was reported that
18 37 named Albanians, naturally Kosovar Albanians, and an additional 36
19 other unidentified persons were the victims of and were killed by the NATO
20 bombings, and again these would be all civilians. Do you recall that
21 incident, for instance?
22 A. I have a vague recollection, but I don't remember the details.
23 And I'm -- frankly I'm a little surprised if there's one incident with
24 60-plus casualties.
25 Q. I believe that was one day, one day in Djakovica those were the
1 deaths that were registered. Perhaps you can explain. P703 is the
2 exhibit in question on e-court. It's appendix B. I'll get the page
3 number in just one moment. That's page 74 in e-court. Yeah, I've
4 confirmed it's page 76.
5 The date of the incidents are April the 14th, and it's there, that
6 portion that starts: "Area between Djakovica and Decani," and it lists
7 members who are known and 36 unidentified persons. So perhaps you can
8 correct me. Was I accurate in stating that this is a summary of the
9 persons who died in that area as a result of NATO bombing in that one day?
10 A. Correct.
11 Q. Perhaps not incident but one day?
12 A. Yes.
13 Q. In fact, we know that there were probably multiple instances where
14 NATO bombs, either directly or indirectly, caused civilian deaths?
15 A. That is correct.
16 Q. Okay. Now, these -- for instance, this one day where some 60-plus
17 persons died, that would be qualified as a very significant and in fact
18 devastating day in the NATO campaign, would it not, in terms of civilian
19 deaths resulting therefrom?
20 A. I agree.
21 Q. And again, this is one of the areas where we -- where we've heard
22 you testify that people left during this same time period, that is to say
23 after NATO bombs began, left the territory, and either left -- some of
24 them left Kosovo-Metohija entirely. Now, what I'm asking is: You would
25 agree that NATO bombing cannot be excluded as a cause for these people to
1 leave their homes if they had a fear for their personal safety, given the
2 fact that bombs were falling and that there were instances of many
3 civilians being killed by these bombs?
4 A. I can exclude it and I'll tell you why. There may be individuals
5 who left Kosovo because they feared a NATO bomb, but I, in all the
6 interviews that I personally conducted and in all the interviews that my
7 colleagues conducted, not a single person claimed that was the reason, and
8 conversely they gave detailed and consistent testimony on why exactly they
9 were leaving and how in particular they had been forcibly expelled from
10 their homes, villages, and towns.
11 Furthermore, they explained to us a process that we dubbed
12 identity cleansing, which was on the border with Albania or Macedonia,
13 Serbian officials or Yugoslav forces took from them their identity
14 documents, their identification, their birth certificates, and what not,
15 which we interpreted as a way to restrict or inhibit their return to the
16 province. And again and again these individuals explained how their area
17 was surrounded, how the men were separated from the women, how at
18 sometimes the men were at that point executed, and how the rest of the
19 families were pushed along the roads where they were encouraged towards
20 the border, usually the army was on the roads, and forcibly expelled from
21 the province. And we determined no correlation between the areas of NATO
22 bombing and the areas that were being expelled, forcibly expelled, none
24 Q. And again, this is based upon your knowledge of the 600 people
25 that you interviewed, what they told you?
1 A. This is based on over how many months, I have to count to be
2 exact --
3 Q. Well, let me ask you this: If other people interviewed by other
4 agencies reported that they did leave because of NATO bombing, then that
5 is something that would not be covered by your survey. Isn't that
7 A. I would have to review that material to determine whether I found
8 it credible or not.
9 Q. Okay. Well, if Ms. Mitchell of the OSCE told us that there were
10 instances of people that testified to her that they left because of NATO
11 bombing, would that be a source you would find credible?
12 A. Yes.
13 Q. Okay. Fair enough. Now, you previously had testified, I believe,
14 that you did not have any knowledge of the KLA undertaking acts of
15 violence or attacks upon civilians of Albanian ethnicity in the year 1999?
16 A. Between -- in the months March through June 1999.
17 Q. In the months March through June 1999. Okay. So we're clear on
18 that. I take it then that you did not have access to or information about
19 reports submitted by the Serbian police in the terrain regarding
20 information they had or reports of villages that had been attacked by the
21 KLA and whose inhabitants, including ethnic Albanians, had been displaced?
22 A. In the period March through June --
23 Q. In the period March through June 1999.
24 A. Excuse me. Can you repeat the question?
25 Q. Sure. I take it then that you did not have access to or
1 information about reports submitted by the Serbian police in the terrain
2 regarding information they had or reports of villages that had been
3 attacked by the KLA and whose inhabitants, including ethnic Albanians, had
4 been displaced by the KLA from those villages in the time period from
5 March to June of 1999?
6 A. I did not have access to that -- those police records, no.
7 Q. And in fact, insofar as you testified that the only inquiries --
8 the written inquiries that were sent were in 1998 and that you did not
9 send any subsequent written inquiries, you didn't even ask for that
10 information from anyone, did you?
11 A. No, we did not.
12 Q. Okay. So would it be fair to say then, sir, that again this is an
13 area where your report, as comprehensive as it is, is lacking due to not
14 having all of the relevant information regarding the region that is being
16 A. Police reports on the activity of the KLA during the period of the
17 NATO bombing would have expanded the scope of our research. I would have
18 gladly included it.
19 Q. Okay. One moment, please.
20 [Defence counsel confer]
21 MR. IVETIC: I apologise. Just trying to see if there's some
22 questions that I can short-circuit.
23 Q. You would agree, would you not, that in order to have a full and
24 complete picture in any circumstance it is always preferred and in fact
25 even essential to hear both sides in a conflict, is it not?
1 A. Yes.
2 Q. Okay. And in fact, due to not having the type of information that
3 I've mentioned several times here and that we've seen some examples of,
4 your report does not fully present both sides. Isn't that correct?
5 MR. STAMP: I hate to interrupt. This is about the tenth time
6 we've had that question in various different formats. The witness has
7 already indicated that he would not even know of the existence of these
8 reports, and so it leaves him in an area where he needs to speculate if
9 they existed what would he do. And the question has come so many times
10 that I have to rise, although I don't normally object in situations like
11 this, but we have time considerations in respect to other witnesses who
12 have problems.
13 JUDGE BONOMY: Thank you, Mr. Stamp.
14 Mr. Ivetic.
15 MR. IVETIC: If time's a problem, I believe that I'm close to
16 winding up my questioning, and I'm just asking for a conclusion now that
17 we've gone through several instances where the witness has confirmed he
18 has not had knowledge of stuff, and we have seen an exhibit detailing some
19 of the stuff he has not had knowledge of, and I believe it's relevant to
20 the matters that he has just been testifying to, and I'm just trying to
21 find out whether in fact he will acknowledge that his report is lacking at
22 least in one respect due to not having this information, which obviously
23 since he doesn't have knowledge of it I'm not going to go through
24 documents with him. But I can bring him through some other means --
25 JUDGE BONOMY: Well, it's a matter for argument in due course. I
1 don't think an answer to that question would add to our knowledge, so move
2 on to something else, please.
3 MR. IVETIC: Fair enough.
4 Q. Now, with respect to the NATO bombings, I believe that you
5 indicated in your direct examination that you -- your organisation viewed
6 the acts by NATO that led to civilian casualties as being violations of
7 international humanitarian law. Is that accurate?
8 A. That's accurate.
9 Q. Okay. Now, I'd like to move, if I may, to the oft-cited so-called
10 Operation Horseshoe, which was utilised by NATO or was promoted by NATO as
11 one of the main justifications of its commencement of air attacks against
12 Yugoslavia. And if I remember correctly, this was a claimed offensive
13 plan by the Yugoslav forces, purportedly to encircle Kosovo-Metohija and
14 expel the civilian population. Is my recollection accurate as to what
15 NATO portrayed or promulgated with respect to this Operation Horseshoe?
16 A. Prior to answering that, I have one small comment with reference
17 to your previous question, if I may address it.
18 Q. The previous question about IHLs of NATO?
19 A. No, about our requesting information from Serbian and Yugoslav
21 JUDGE BONOMY: We're past that, Mr. Abrahams Deal with the
22 question which you've now been asked.
23 THE WITNESS: I'm sorry. I'm just reviewing the question.
24 Yes. There was much speculation and comment about the existence
25 of Operation Horseshoe, which ostensibly was meant -- was the plan to
1 expel the ethnic Albanian population. I never uncovered evidence to
2 suggest that this specific "Operation Horseshoe" existed as such.
3 MR. IVETIC:
4 Q. In fact, to the contrary, you uncovered suggestions or evidence
5 that in fact this Operation Horseshoe was a hoax that was faked by the
6 German government to deflect growing criticism at home over the direction
7 of the NATO campaign. Isn't that accurate?
8 A. Can you refer me to the statements that you're --
9 Q. Yes. In Under Orders, P438, page 86 in e-court.
10 While we're waiting for that, sir, do you generally remember
11 something along those lines without getting into specifics?
12 A. I'm afraid I have to see it because my memory is --
13 Q. No problem. We'll get there. Again, that's page 86. There it is
14 right in the middle, and I'll start with the sentence, you see that, sir,
15 where it says: "A retired brigadier general in the German army, however,
16 later stated that the claims of a plan were faked from a vague
17 intelligence report in order to deflect growing criticism in German of the
19 A. Yes, I recall that media report.
20 Q. Okay. And -- so does that refresh your recollection as to whether
21 or not you discovered indications that in fact Operation Horseshoe was a
22 non-existent propaganda tool being used by one of the NATO countries to
23 prop up support for the air campaign?
24 A. I included this statement in the report because I felt these
25 allegations were credible enough to merit their inclusion; namely, that
1 there were strong suggestions that the certain governments, in this case
2 the German government, was using the so-called Operation Horseshoe to
3 mobilise public support within Germany. However, while I am to this day
4 not convinced that "Operation Horseshoe" existed per se, I am firmly of
5 the opinion that there was a systematic and coordinated campaign to expel
6 large numbers of the ethnic Albanian population.
7 Q. Well, sir, are you aware -- I'm sure you are, since you indicated
8 this was included because it was a credible source, that the individual
9 who uncovered this in April of 2000, retired German brigadier general
10 Heinz Loquai, actually published a book regarding this where he detailed
11 precisely what the true intelligence was, namely that the Germans were
12 using general Bulgarian intelligence, which stated to the contrary that
13 any activities that the Serbian military forces were planning intended to
14 drive out the KLA and not Albanian civilians?
15 A. I am not aware of the book.
16 Q. Your research did not go that far.
17 A. When was the book published?
18 Q. April of 2000.
19 A. No, I'm not familiar with it.
20 Q. Okay.
21 JUDGE CHOWHAN: Sorry, I have to ask a question, Mr. Abrahams.
22 What was the criteria usually which you kept in mind while accepting
23 certain statements to be credible and some statements not to be credible?
24 I mean, you would be having a general criteria about it, because otherwise
25 it will be capricious taking some and not taking the other. Could you
1 dilate a bit on that so that we -- at least for my purposes. Thank you
2 very much.
3 THE WITNESS: Yes, Your Honour.
4 I cannot give you a strict formula. There is no way to say that
5 this newspaper is credible and this one not. But we did try and rely
6 largely on media sources that are - how can I explain it? - this may seem
7 vague, but generally accepted to be -- to have large readerships and
8 are -- have reputations as valuable sources.
9 But that said, most important for us was to provide the citation
10 in a footnote so that the reader himself or herself can then best
11 determine how they view this source, because credibility is of course in
12 the eye of the beholder.
13 JUDGE CHOWHAN: Did you try to have it corroborated with or check
14 the material which corroborated the information that you got? Because
15 repetition is one thing, of course, but then corroboration means if two,
16 three sources are talking of the same, then of course there is a sense
17 that you would -- that there is credibility about it?
18 THE WITNESS: Yes, we tried to make sincere efforts at
19 corroboration. And I should stress we never relied on media reports when
20 making allegations about crimes; we would use media sources we considered
21 credible to corroborate in addition to multiple witness statements. But
22 in this case I raised this because I felt it -- it introduced a legitimate
23 point again about the Operation "Horseshoe" per se about which I never had
24 found evidence to support it existed per se this particular plan, which is
25 not to say that I don't believe there was a plan.
1 JUDGE CHOWHAN: Thank you very much.
2 MR. IVETIC:
3 Q. Okay, sir. Now, just to get back a point that we had touched upon
4 before we took our last break. You had mentioned several areas where you
5 had knowledge of attacks or activities by the KLA that were aimed at the
6 civilian population, be they Serb or otherwise. Let's focus for a moment
7 on the activities of the KLA vis-a-vis ethnic Serb civilians that
8 inhabited the areas that they controlled. You had mentioned I believe
9 Djakovica as one of the areas where the KLA had undertaken attacks upon
10 the civilian Serb population. Could you expound upon that, and please
11 give us an overview of some of these attacks or activities that you have
12 knowledge of.
13 A. In the Djakovica area, most of the incidents I'm familiar with are
14 from the period of 1998, in the spring/summer of 1998, at which time the
15 KLA exerted pressure and used violence against civilian populations in the
16 area under its control.
17 Q. And these incidents, how -- how many or how frequent are we
18 talking about, or was there just one incident or were there several such
19 instances in the Djakovica municipality?
20 A. I'm not able to answer how many incidents were in particular. If
21 I'm not mistaken, and I would have to consult with our reports, I believe
22 that 198 people, both Albanians and Serbs, went missing during 1998. And
23 that figure is from the International Committee of the Red Cross, but
24 please, I have to check that number to be precise.
25 Q. That's okay, but what I'm trying to get at is given that number,
1 whether it's 198, 190, 150, would it be safe to say that we're talking
2 about more than one incident and just leave it at that?
3 A. Yes, that's fair to say.
4 Q. Okay. Well, Mr. Abrahams, I thank you for your time. I think I
5 have exhausted all the questioning that I have for you today.
6 MR. IVETIC: Your Honours.
7 JUDGE BONOMY: Thank you, Mr. Ivetic.
8 Mr. Stamp.
9 MR. STAMP: Just a couple questions.
10 Re-examination by Mr. Stamp:
11 Q. You said in response to questions from my learned friends for the
12 Defence that after the letters which were exhibited in evidence here you
13 did not send any other letters?
14 A. To the best of my recollection, that is correct.
15 Q. And in your statement you said that you made several attempts to
16 speak with the Yugoslav authorities for armed security, internal security,
17 under the VJ in Belgrade, but you were not permitted to speak with them in
18 spite of your best efforts?
19 A. That's correct.
20 Q. And then finally in answer to my friend Mr. Ivetic you said --
21 well, I think it was Mr. Ivetic, but in answer to one of the Defence
22 counsel you said in respect to the MUP you also made attempts to speak
23 with MUP authorities in Pristina, that's the MUP for Kosovo, but you
24 failed to do so. Could you elaborate upon that. What sort of efforts did
25 you make to speak with the MUP authorities in Kosovo?
1 A. At various times we approached police stations in Pristina and
2 other areas, and we were continually told to refer our questioning to the
3 proper authorities. I would add also that we did have a researcher in
4 Belgrade throughout the period of the NATO bombing, a Yugoslav citizen,
5 who was following the war from Belgrade. And in, if I'm not mistaken, May
6 this individual, an employee of Human Rights Watch, was summoned to the
7 police station in Belgrade -- to a police station in Belgrade, I believe
8 Stari Grad, where he was interrogated for five hours by the secret police.
9 His passport was confiscated and the Human Rights Watch laptop was
10 confiscated. He was also visibly and verbally threatened, after which
11 time we decided that our colleague should no longer actively engage in
12 research, due to the threats against him.
13 Q. Thank you very much. You were shown a footnote from the -- from
14 the Human Rights Watch publication, Exhibit 437. It's human rights
15 violations in Kosovo. Well, you were shown the footnote. I won't
16 belabour it by reading the footnote again. And the point was made that
17 none of those persons named in the footnote which detailed persons in
18 command positions or armed forces and police in Yugoslavia include any of
19 the accused here and you agreed with that, but you said that later on that
20 report was revised. First, then, as a matter of the record, you would
21 agree with me that that report is dated 1998, October 1998?
22 A. That's correct.
23 Q. And further, without going through all the reports, this is also a
24 matter of record so I just lead straight to it. The names of the persons
25 involved in the command and control of the force of the FRY and Serbia
1 that were involved in the human rights abuses in Kosovo during the NATO
2 bombing are also -- are named in the report As Seen, As Told -- Under
3 Orders, I beg your pardon. Is that correct?
4 A. That is correct.
5 Q. And that would be the section dealing with the chain of command in
6 which you would name every accused here?
7 A. That's correct.
8 Q. And that is page 10 of the exhibit Under Orders.
9 MR. STAMP: I have nothing further.
10 JUDGE BONOMY: Thank you, Mr. Stamp.
11 [Trial Chamber confers]
12 JUDGE BONOMY: Well, thank you, Mr. Abrahams. That completes your
13 evidence. Thank you for coming to the Tribunal yet again to give it, and
14 you're now free to leave.
15 THE WITNESS: Thank you, Your Honour.
16 [The witness withdrew]
17 JUDGE BONOMY: Now, Mr. Visnjic, you have submitted a notice of
18 objection to portions of Exhibit P2228, and in fact it's one of the items
19 that make up 2228 to which you take exception. I think your objection is
20 to the admissibility of pages, I think, 4 to 18 of the 19-page statement.
21 Is that correct? Sorry, Mr. Sepenuk. Now, this builds upon an earlier
22 point taken by Mr. Lukic. Is that right?
23 MR. IVETIC: By our Defence, Your Honour, that's correct.
24 JUDGE BONOMY: And what you're concerned about is the portion of
25 the statement which gives an account of the historical and political
1 situation within Kosovo?
2 MR. SEPENUK: That's correct, Your Honour.
3 JUDGE BONOMY: And you object to coming -- that coming in as a
4 matter of fact, as it were, or even opinion from this particular witness.
5 Is that correct?
6 MR. SEPENUK: And I stress, Your Honour, from this particular
7 witness, yes.
8 JUDGE BONOMY: Yeah. Now, let me just clarify first of all with
9 Mr. Stamp what purpose, if any, he would seek to rely on this particular
10 portion of the statement.
11 MR. STAMP: The portion of the statement, as I understand it,
12 that's being referred to by the Defence is that portion dealing with the
13 history of Kosovo. And when we say "history," we speak of a brief
14 treatment of the period 1974 to 1995 and then a more detailed treatment
15 from the period 1995 thereafter.
16 Now, insofar as that is history, since it is in the past, firstly,
17 that period, particularly the period 1995 thereafter, is well within the
18 area that the witness could speak about as matters of fact since he was --
19 he studied eastern European affairs, including the Balkans, and he lived
20 there, researched it, and studied it for the purposes of his work.
21 Secondly, most of this history is relevant to the case in terms of
22 the context in which the offences that were committed later on in 1999
23 were committed in the same sense that the indictment has a
24 section "general allegations" in which it appears the history, so does the
25 pre-trial brief, to make a setting or a background for the circumstance in
1 which the offences charged were committed. And secondly, there are some
2 aspects of the history, the later part, the 1998 section, which in the
3 Prosecution's submission clearly forms a basis for which a Court can,
4 having heard all the evidence, make determinations in respect to the
5 notice to each of the accused in respect to crimes that were being
6 committed prior to the ones specifically charged in the indictment, and
7 I'm speaking particularly about 1998. So those are the two main purposes
8 for the history, insofar as it could be called history.
9 JUDGE BONOMY: I think the objection, though, is a bit more basic
10 than that as I understand it.
11 The -- a witness can present an account of a historical -- of the
12 historical background to demonstrate his understanding of history, and I
13 doubt if any objection could be taken to that because the Defence might
14 then want to demonstrate themselves that he had a false impression of
15 history, that his evidence might be undermined because of an inaccurate
16 understanding of history. So his understanding of the historical
17 background seems to me to be relevant in that context. But the second way
18 in which this evidence may be used is to actually prove what happened as a
19 matter of historical fact. And it's so that that I understand the
20 objection is directed, on the basis that he is not an expert qualified in
21 history to give an account on which the Trial Chamber might -- might rely.
22 Now, do you seek to use his evidence perhaps in -- undoubtedly in
23 conjunction with other evidence as evidence of historical fact on which
24 the Tribunal might make a finding that a particular event for -- well, a
25 series of events, for example, the dilution of the autonomy of Kosovo in
1 which the Trial Chamber might make a finding about that, or do you simply
2 use it as an indication of what the witness's understanding of these
3 events was?
4 MR. STAMP: May I, with your leave, confer briefly in respect to
5 that specific question?
6 JUDGE BONOMY: Yeah.
7 [Prosecution counsel confer]
8 MR. STAMP: Thank you, Your Honour, for allowing me the time.
9 Clearly, as indicated by the Court, his -- it is relevant to his
10 understanding of the period, but the Prosecution would further submit that
11 it is relevant for a little bit of a second element, the different element
12 that was raised by Your Honour. And that is if corroborated by other
13 witnesses in the course of the case, then his evidence in respect to the
14 history or the background events can be accepted by the Trial Chamber as
15 evidence of those facts.
16 JUDGE CHOWHAN: With your permission, sir.
17 It's -- I want to comment on this for more clarity. First of all,
18 it's no compulsion not to accept a single person's testimony. This is
19 universal. If the man is sounding credible, well, then, his credibility
20 is accepted, whether it's corroborated or not.
21 Secondly, I must say, as My Lord has said, a person is a recorder
22 of history and that for his own purposes he understands it. A person is a
23 professional historian, Toynbee for instance, and so on. Now, he's
24 talking of cause and effects of things. There the matter differs, but
25 anybody else who is writing a chronicle and writing things in that order
1 is only stating this happened that day, that happened that day. And if
2 he's truly doing it, he has a diary, he has something else to talk about,
3 well, that is different, and you have to kindly appreciate it in that
4 perspective as well, and that is my view. And thank you for listening to
6 MR. STAMP: Thank you, Your Honour. If I --
7 JUDGE BONOMY: Well, okay, carry on, Mr. Stamp. But before you do
8 I should make it clear that we want to hear any submissions that are to be
9 made on this at this stage. And while I don't envisage making a decision
10 without at least some debate among the Judges in private, we'll do this
11 fairly quickly. So now is your opportunity to say anything else you wish
12 to say about it.
13 MR. STAMP: Before I go to the purposes again, I think I barely
14 touched upon and maybe I should, without repeating myself too much,
15 indicate that this witness is not testifying about history or the history
16 of events that occurred 100 years ago or 50 years ago. The history that
17 he speaks of primarily relates to the affairs of the Balkans of the former
18 Yugoslavia from the 1990s onward --
19 JUDGE BONOMY: Let me give you an example from this. On page 9 of
20 the hard copy I have, 9 of 19, the first full paragraph: "Human rights
21 abuses in the province intensified towards the end of 1996 as the
22 government attempted to quash the growing insurgency. Police acted with
23 near total impunity as they maltreated and occasionally killed ethnic
24 Albanians. Police abuse took -- generally took three forms, random
25 beatings on the streets and other public places, targeted attacks against
1 politically active ethnic Albanians, or arbitrary retaliation for KLA
2 attacks on Serbian policemen. This period is documented in the report I
3 researched and wrote. Persecution persists. Published in December 1996."
4 Now, do you think that the Trial Chamber should be invited on that
5 basis to make findings in fact about the way in which the police acted in
7 MR. STAMP: Indeed, Your Honour.
8 JUDGE BONOMY: All right.
9 MR. STAMP: This witness is ideally suited to speak about the
10 human rights situation in Yugoslavia, in Kosovo in particular, since, as
11 he testified from 1993, that area and that specific type of inquiry was
12 the focus of his academic work, his studies, and his research. So he is
13 not speaking of history in the academic sense; he is speaking of the
14 affairs of that country and that part of that country that he himself was
15 involved in investigating personally as somebody who had done a master's
16 degree in that field, not only specifically the area, eastern Europe and
17 the Balkans, but also human rights studies. And not only had he done that
18 academically, but he was there on the ground doing the research.
19 So insofar as that is an issue which -- and it is probably an
20 issue which to a limited degree might concern the Court. Insofar as there
21 is that issue, this is one source that the Court, it is my submission,
22 could use to come to a decision on that issue.
23 Indeed, I'm reminded that that very year, according to his
24 statement, he was there in Kosovo in the field doing research.
25 JUDGE BONOMY: [Microphone not activated].
1 Sorry. Is there anything else you would like to add on any aspect
2 of this point?
3 MR. STAMP: [Microphone not activated].
4 JUDGE BONOMY: All right. Thank you.
5 Now, Mr. Sepenuk, do you wish to supplement what you've submitted
6 in writing?
7 MR. SEPENUK: Yes, Your Honour, just very briefly.
8 I'd like to add -- Your Honour read from page 9, the first
9 paragraph of this 19-page report, the statement of 24 January 2002. There
10 are other indications in that report, Your Honour, that -- that
11 Mr. Abrahams is giving opinions and conclusions that simply should be
12 inadmissible in this case.
13 Can I just give a few more? For example, on page 8 of this
14 19-page statement he says in the middle of the page: "By mid-1996 I
15 documented a clear pattern of arbitrary and indiscriminate retaliation by
16 the Serbian police and special security forces against ethnic Albanians
17 who lived in the areas where KLA attacks were taking place. Police broke
18 into private homes without warrants and detained ethnic Albanians, often
19 abusing them physically, et cetera."
20 Another example, Your Honour. By the way, he speaks also about
21 the Racak incident on page 13 of this 19-page statement, which has been
22 excluded by Your Honours in the case.
23 But he says on page 14 under the period -- the period of NATO
24 bombing right in the middle of the page: "With the withdrawal of the KVM
25 monitors, Serbian and Yugoslav forces implemented a coordinated campaign
1 to expel large numbers of ethnic Albanians from Kosovo."
2 And he goes on to say on page 15 of this 19-page statement, the
3 last full paragraph: "The forced expulsion was well-organised. Refugees
4 were driven into flight or were transported in state-organised
5 transportation to the borders in a concerted programme of forced expulsion
6 and deportation characterised by a very high degree of coordination and
8 Well, Your Honour, that could be Mr. Hannis or Mr. Stamp making
9 their closing arguments in this case, or indeed making their opening
10 statements in this case. And the irony of this, Your Honour, is that
11 Mr. Stamp in his submission, Mr. Hannis and Mr. Stamp in their submission
12 on the report As Seen, As Told state as one of the justifications for
13 admitting the report that these reports contain "recitations of witness
14 accounts or otherwise relayed or observed facts rather than conclusions or
16 Well, the fact is that those two reports contain all sorts of
17 opinions and conclusions, and needless to say this is what purports to be
18 objective dispassionate history contains these conclusions and opinions of
19 the witness that are really totally inadmissible. One was read by Your
20 Honour, now we have read several, based upon 600 interviews which to this
21 day we have not seen. We have not seen a single one of those unsworn
22 cross-examined interviews. So I think that his -- and his bias for the
23 Prosecution. And forgive me, because the man has obviously done fine
24 work. He's well-intentioned, he's a human rights activist. I'm glad he's
25 on the planet, but he shouldn't be here, and he is here as an advocate for
1 the Prosecution, not as a dispassionate witness. He's worked for the
2 Prosecution, he's done analysis for them. And as you'll recall from my
3 cross-examination about Mr. Milosevic, he said as early as I think it was
4 February, or August, I forget, in 1998, he says the first priority, not
5 one of the priorities, the first priority of American foreign policy
6 should be the indictment of President Milosevic.
7 So this man is an advocate; he's not a dispassionate witness. He
8 really just for nothing else than the appearance of impropriety, he
9 purports to give, you know, this history, this cool, dispassionate survey
10 of history. You know, he gave that to the Prosecution for their
11 background part of the indictment, and now he's giving it here to you.
12 And human activists, good as they are, well-intentioned as they are,
13 should really have no role in determining the ultimate outcome of this
14 case which will be determined by Your Honours.
15 Therefore, we say that this entire statement should not be
16 admitted into evidence.
17 JUDGE BONOMY: Thank you, Mr. Sepenuk.
18 Mr. Ivetic, do you have anything to add to this?
19 MR. IVETIC: Yes, I'll just very briefly add to what my colleague
20 has said, and I'll limit my comments to this particular exhibit rather
21 than the objections we have to Under Orders as well.
22 The main problem is as we saw through his testimony is that a lot
23 of his conclusions and findings are based upon the information he had at
24 hand and that is not necessarily the totality of the information
25 available. Given that this information in his Rule 89(F) statement is
1 culled from his various reports, we do not know what portions are the
2 result of things that he actually eye-witnessed or did research on and
3 what was written by somebody else, or what he heard from somebody, what he
4 heard from an interviewee, for instance. So it's very difficult to
5 discern what is first-hand history that he experienced and which he could
6 report upon, and what is second-hand history that he is reciting from some
7 other source of which since we don't even know who that source is we have
8 no idea about the credibility or the credentials of the same. And so in
9 that instance I do not think that this type of documentary testimony can
10 be taken for the second purpose, that is to say, to have the Court -- have
11 that proved to the Court the factual backdrop that is relevant to these
12 proceedings --
13 JUDGE BONOMY: I take it that you accept that the evidence is all
14 relevant to establish his understanding of what the history --
15 MR. IVETIC: His belief and his understanding, I think, you know,
16 that is correct. And again the limitations of his belief and his
17 understanding as well, if we show that to be.
18 And then I just had one issue of a -- more of a question really.
19 I believe Mr. Stamp indicated that this was the focus of his academic work
20 and that the research he was doing on the ground was part of an academic
21 work. I don't recall any testimony of that, so if that's what's being
22 presented here, I would object to that. I think it was very clear that
23 this was -- this was his -- he was not part of any academic endeavour, so
24 that there would not have been any academic review, et cetera, of these
25 items. And without that, I think the applicability of this evidence to
1 the second prong is really non-existent, or not appropriate I should say.
2 Thank you.
3 JUDGE BONOMY: Now, your original objection was to the
4 admissibility of this -- of the report Under Orders.
5 MR. IVETIC: That's correct.
6 JUDGE BONOMY: And that you said was for the same reason as your
7 objection to As Seen, As Told.
8 MR. IVETIC: Correct, Your Honour. And now that we have
9 submitted --
10 JUDGE BONOMY: Do you have anything to add to that?
11 MR. IVETIC: Well, now that we've submitted the written brief on
12 As Seen, As Told I think the same parallels and arguments apply. That
13 namely, it is my understanding and my belief from the testimony that was
14 elicited from this witness that it's very clear that one of the main
15 objectives of his work in interviewing these people was to obtain
16 information for the assistance of the prosecution of war crimes before
17 this Tribunal. And therefore I believe it very squarely falls within the
18 grounds of the Milosevic appeals decision, that summaries of such
19 witnesses are not appropriate to be led in written form as that's a
20 violation of Rule 92 bis.
21 Furthermore, to the extent that he -- his reports, in particular
22 Under Orders tend to try and conclude legal factors, such as widespread
23 and systematic, such as notice, these are all items that we have I think
24 fully briefed, and so Your Honours are aware of our position and the
25 citations to authority that we rely upon to cite that this is an
1 inappropriate means of getting material in through documentary evidence,
2 and in fact that whether it's qualified as coming in through 89(F) you
3 still have to apply all the other rules that would apply to the evidence
4 if it were being submitted in the other -- under one of the other rules.
5 So I think basically if we look at the areas that we objected to in
6 As Seen, As Told, particularly in the further submissions that we filed
7 just recently, I think the same arguments can be applied to Under Orders,
8 particularly in light of what has been elicited here today and in the
9 prior days' testimony from this witness.
10 So, to be short, I think we'll just adopt those arguments and
11 leave it for the Trial Chamber to consider what the end result of all that
12 would be.
13 Thank you.
14 JUDGE BONOMY: Thank you, Mr. Ivetic.
15 Now, Mr. O'Sullivan.
16 MR. O'SULLIVAN: Your Honour, for the record on behalf of
17 Mr. Milutinovic we have already in writing adopted the submissions filed
18 on behalf of General Ojdanic, the submissions of the 31st of July, in
19 regard -- in relation to As Seen, As Told. We would also like to adopt
20 orally the submission of August 2nd of General Ojdanic in relation to
21 Exhibit P2228, the statement of this witness. We have already made our
22 submissions orally in relation to As Seen, As Told.
23 JUDGE BONOMY: Yeah.
24 MR. O'SULLIVAN: And we adopt the submissions in relation to Under
1 I would also add that the Prosecution's written submission of
2 19 July, which we've had reference to this morning in relation to these
3 two documents, As Seen, As Told and Under Orders, I'm looking at page 4 of
4 that submission where the Prosecution identifies the sections which it
5 moves or seeks admission into evidence goes beyond mere recitation of the
6 witness's understanding of a historical context. It also includes such
7 things as his executive summary and his conclusions on the chain of
8 command. And we say he's not qualified to make those kinds of
9 submissions, given his admission that he's looked at a web site and some
10 police and military magazines and he's not a legal scholar or an expert in
11 these areas.
12 So it's more than just history, we say. It goes also to crime
13 base and all the other areas that are listed in the Prosecution's
14 submission --
15 JUDGE BONOMY: This is -- are you now referring to a submission
16 about Under Orders, or are you back to As Seen, As Told?
17 MR. O'SULLIVAN: I'm -- this comment here is in relation to Under
19 JUDGE BONOMY: The 19th of July submission of the Prosecution,
20 remind me what that is?
21 MR. O'SULLIVAN: That's the Prosecution's submission in response
22 to your oral direction of the 13th of July where you asked the Prosecution
23 to make its submissions to expand upon three points.
24 JUDGE BONOMY: That's As Seen, As Told.
25 MR. O'SULLIVAN: Well, they've also addressed Under Orders in that
2 JUDGE BONOMY: So it's in that context you say that they seek to
3 rely upon an executive summary and other matters to which you take
5 Now, have you responded to that in writing or are you just simply
6 responding to that now?
7 MR. O'SULLIVAN: This was responded to in writing by the Ojdanic
8 Defence team on the 31st of July, and we joined that.
9 JUDGE BONOMY: And that submission deals with that point, does it?
10 MR. O'SULLIVAN: Yes.
11 JUDGE BONOMY: Okay.
12 MR. O'SULLIVAN: Those are my submissions.
13 JUDGE BONOMY: Now, am I wrong to assume that each accused takes
14 the three points I suppose that are in issue here, the objection to As
15 Seen, As Told, the similar objection to Under Orders, and the particular
16 objection to part of Exhibit P2228, or does anyone distinguish themselves
17 by not wishing to take any of these points?
18 MR. PETROVIC: [Interpretation] Your Honour, by your leave, on
19 behalf of the Defence of Mr. Sainovic, on the 31st of July we submitted a
20 submission in writing which is a response to the Prosecution position on
21 As Seen, As Told and also Under Orders in which we oppose the admission of
22 both these documents.
23 If they are used, however, we wish to join with what the Ojdanic
24 Defence has stated about this part of the testimony of Witness Abrahams.
25 As for the first two elements, we have dealt with them in our
1 written submission, and on this occasion we wish to join what has already
2 been said as regards the third point that has been raised.
3 JUDGE BONOMY: Now, is that everyone's position? I don't really
4 need to hear from you unless you want to differ from that position.
5 Mr. Bakrac, you want to take a different position, do you?
6 MR. BAKRAC: [Interpretation] No, Your Honour. Last time I
7 understood that it would be useful for the Chamber if we were to state
8 whenever we had a joint position. I apologise if I misunderstood you.
9 My colleague Mr. Petrovic has already said that Sainovic and
10 Lazarevic have a joint Defence submission challenging everything, and we
11 would like to join what has been said by the Ojdanic Defence as regards
13 JUDGE BONOMY: Now, does any Defence counsel feel that there is
14 something else to be said on the matter or do we now rest content that
15 everything that needs to be said has been submitted either in writing or
16 orally? All right.
17 Mr. Stamp.
18 MR. STAMP: I thought that Your Honour had finished with the
19 Defence counsel. I was wondering if I may briefly respond to one of the
20 submissions that were made.
21 JUDGE BONOMY: Which submission?
22 MR. STAMP: The submission in respect to the Milosevic appeals
24 JUDGE BONOMY: And has that not already been addressed? Is there
25 something else you need to say about it?
1 MR. STAMP: Very briefly. I would just invite the Court to
2 consider -- I had it right here.
3 JUDGE BONOMY: Yeah.
4 MR. STAMP: The submissions by my learned friend is that the
5 appeals judgement would exclude works of the nature of As Seen, As Told
6 and Under Orders. But I would invite the Court to consider the judgement
7 at paragraphs 22 to 24 in particular where a distinction is made between
8 the purpose of the interviews, and the Court held that wherein that case
9 an OTP investigator had gone into the field to conduct interviews for the
10 purpose of a specific trial that was before the Court, then those
11 statements would have to come in pursuant to the rules of the Tribunal,
12 perhaps Rule 92 bis, but that that was distinguished from the present type
13 of situation where the interviews themselves were not conducted by OTP
14 investigators of prospective witnesses for a specific case.
15 And another distinction was made in paragraph 23. May I just read
16 one sentence from that paragraph. I'm sure the Court will consider the --
17 JUDGE BONOMY: It's one of these rather less-than-helpful
18 statements to say that that's different from the situation where the
19 interviews were not conducted by OTP investigators for a specific case.
20 What if they were conducted by someone else who's not an OTP investigator
21 but for a specific case, what's the answer to that question?
22 MR. STAMP: If they were conducted by someone else?
23 JUDGE BONOMY: Yeah.
24 MR. STAMP: For a specific case before the OTP?
25 JUDGE BONOMY: Yeah.
1 MR. STAMP: And these were the statements of prospective
2 witnesses --
3 JUDGE BONOMY: I mean, that's arguably the position about As Seen,
4 As Told.
5 MR. STAMP: With respect, Your Honour, the witness has indicated
6 the very purposes that the --
7 JUDGE BONOMY: Yeah, I understand that. But let's assume. I'm
8 posing a hypothetical question, and there is an arguable position that
9 Ms. Mitchell was in fact an arm of the Prosecution, as it were. Maybe
10 there were other purposes, but was an arm of the Prosecution conducting
11 inquiries for a specific case, in other words, a case against the
12 authorities of Serbia. Now, what's the answer from the Milosevic appeals
13 judgement to that question? Does that fall within the excluded categories
14 or not?
15 MR. STAMP: It would not fall within the excluded categories. I
16 think the sentence I was about to read from paragraph 23: "The fact that
17 the summary," and this is As Seen, As Told, Under Orders, "the fact that
18 the summary has been prepared for the purpose of the particular litigation
19 may be relevant as to whether it should be admitted but as the Prosecution
20 submits it would be quite wrong to submit that or to suggest that such a
21 summary is ipso facto, unreliable."
22 And the Court there made a clear distinction between the situation
23 where the OTP itself goes out to gather evidence and a situation, as in
24 this case, where parties, for a variety of reasons, including what they
25 say is in the interests of justice generally, gathers this information and
1 shares it with this organisation.
2 JUDGE BONOMY: Could you let me see these paragraphs just now,
4 MR. STAMP: I refer specifically to paragraphs 22 --
5 JUDGE BONOMY: To 24.
6 MR. STAMP: -- to 24. And I think in the judgement --
7 JUDGE BONOMY: I don't have it in front of me. Can I see your
8 copy just for a moment? Thank you. Thank you.
9 Now, is there anything else you wish to say?
10 MR. STAMP: It is in that context that the court of appeal
11 referred with approval to the comment of Judge Kwon in the Trial Chamber
12 itself in speaking about the issue. And I quote -- and this is from page
13 T5932 of the trial record.
14 "So to speak for myself, the Chamber is not against accepting any
15 hearsay or summarising witnesses. Take Fred Abrahams, he is a man from
16 Human Rights Watch who made some intensive interviews with a lot of
17 victims. So what we reject with regard to his evidence is only the
18 redaction of the identities of the source of information. But to speak
19 for myself, we are ready to accept him. But this Mr. Barney Kelly is
20 quite different. He is part of the Prosecution team."
21 That's the only reason we are thinking of.
22 So I think therein lies two distinctions; one the purpose that
23 whole interviews were conducted and whether there is sufficient indicia of
24 reliability. If there is that indicia, then it is my submission that the
25 test of admissibility is passed, and it is my submission that the balance
1 of the submissions from the Defence really refer to what weight it should
3 May it please you, Your Honour.
4 JUDGE BONOMY: Thank you.
5 Well, the Trial Chamber will consider the various submissions that
6 have been made, both by writing and by word of mouth, and a decision will
7 be conveyed to you as soon as possible.
8 We will now adjourn and resume at five minutes past 4.00.
9 --- Recess taken at 3.32 p.m.
10 [The witness entered court]
11 --- On resuming at 4.05 p.m.
12 JUDGE BONOMY: Before we proceed, I take this opportunity to
13 intimate a change to the sitting schedule. It's now possible for us to
14 sit for the full day on Thursday, and I think that we ought to take
15 advantage of that this week. It's not going to be possible to do that on
16 many occasions thereafter, so we'll sit on Thursday on the same basis as
17 we've sat today.
18 Now, Mr. Hannis, who is your next witness?
19 MR. HANNIS: Your Honour, our next witness is Fuad Haxhibeqiri.
20 But before I begin I wanted to raise to Your Honours' attention there are
21 two brief procedural matters we would like to raise with you before the
22 end of the day. They could be discussed in front of the witness, but I
23 don't know if you want to wait until five or ten minutes before stopping
24 time or do it now.
25 JUDGE BONOMY: Well, how long will they take?
1 MR. HANNIS: Mine is five minutes, and Mr. Stamp has one that is
2 one minute, he says.
3 JUDGE BONOMY: All right. We will do that just five minutes
4 before the end of the day.
5 MR. HANNIS: All right. Thank you.
6 And we'll have the witness sworn then, Your Honour.
7 JUDGE BONOMY: Now, Mr. Haxhibeqiri, would you please stand and
8 would you please take the solemn declaration.
9 THE WITNESS: [No interpretation].
10 JUDGE BONOMY: Now, I got no translation of that. Is there a
11 problem with the English translation?
12 THE INTERPRETER: Can you hear me on this channel?
13 MR. HANNIS: I heard a voice asking if I could hear.
14 JUDGE BONOMY: That's all I've heard on this.
15 THE INTERPRETER: Can you hear me now, please, Your Honours?
16 JUDGE BONOMY: Yes.
17 THE WITNESS: [Interpretation] I solemnly declare that I will speak
18 the truth, the whole truth, and nothing but the truth.
19 JUDGE BONOMY: Mr. Haxhibeqiri, please be seated.
20 MR. HANNIS: Your Honour, and I would like to begin with handing
21 the witness a hard copy of his statement, and on the screen we can put up
22 Exhibit P2235 which is the 92 bis package for this witness.
23 JUDGE BONOMY: Thank you.
24 WITNESS: FUAT HAXHIBEQIRI
25 [Witness answered through interpreter]
1 Examination by Mr. Hannis:
2 Q. Mr. Haxhibeqiri, one of the first things I wanted to do was to ask
3 you if you could state your full name for us and spell it, because I
4 understand we've had some confusion about the spelling of your first name.
5 A. My name is Fuad Haxhibeqiri, and it is spelled F-u-a-d, the name,
6 and the last name H-a-x-h-i-b-e-q-i-r-i.
7 Q. And you were saying, sir -- is that the correct spelling of your
8 first name?
9 A. The last letter of the name is T, not D. The first name is
10 F-u-a-t instead of D.
11 Q. Thank you. Could you take a look at the document that's put in
12 front of you, sir. This is a copy of your 92 bis statement to the ICTY.
13 Did you have a chance to review that before today?
14 A. Yes.
15 Q. And apart from changing the spelling of your first name from Fuad
16 with a D to Fuat with a T, are you satisfied that that statement is
17 accurate and truthful to the best of your knowledge and belief?
18 A. Yes, I am.
19 Q. And you confirm it to the Court at this time as your evidence in
20 this case?
21 A. Yes, I can. Yeah, it's my statement.
22 Q. Thank you. I would now --
23 MR. HANNIS: Well, Your Honour, this is a 92 bis statement that's
24 been offered before. I would like to tender it at this point in time.
25 JUDGE BONOMY: Yeah. Is it a document which has a number. At the
1 moment does it have a Prosecution number?
2 MR. HANNIS: It does, Your Honour, it is Exhibit P2235.
3 JUDGE BONOMY: It's been referred to, adopted by the witness so
4 it's part of the process with that number.
5 MR. HANNIS: Okay, Your Honour. I had a question about that
6 because I know in dealing with another case where we're trying to deal
7 with appellate issues it was difficult researching, trying to determine
8 when a particular document had come into evidence. I come from a
9 jurisdiction where the magic word "admitted" is said and it's easy for us
10 to find. I know that hasn't been our practice so far in this court, but I
11 would ask if you would be willing to consider that.
12 JUDGE BONOMY: Let's just carry on the way we have been dealing so
13 far, Mr. Hannis, where unless there's objection taken to a document, then
14 it's part of the process once it's been referred to by a witness.
15 MR. HANNIS: Thank you, Your Honour.
16 JUDGE BONOMY: Mr. O'Sullivan.
17 MR. O'SULLIVAN: Yes, we object to the admission of this
18 statement. I'm not sure if Your Honours have received a copy of it, of
19 P2235, but in particular -- I don't know if we want to make these
20 submissions in front of the witness or not. But we object to the portions
21 in particular beginning at page 6 through 9 where this witness claims to
22 be the chairman of the Council for the Defence of Human Rights and
23 Freedoms in Djakovica, claims to have interviewed over a thousand people,
24 and summarised the information that they gave him. We say that we're in
25 this same situation that we had with the previous witness and our
1 objections to his statement coming in under 92 bis.
2 JUDGE BONOMY: Well, the sensible thing for us to do is to follow
3 the same practice as we followed in relation to the two previous witnesses
4 to whom this objection has been taken, and we'll reserve our decision on
5 the matter until we've heard the evidence.
6 Mr. Hannis.
7 MR. HANNIS: Thank you, Your Honour.
8 Q. Mr. Haxhibeqiri, I want to ask you -- first of all, is it correct
9 that you were born in and have lived your entire life in Gjakove or
10 Djakovica town in Djakovica municipality in Kosovo?
11 A. Yes --
12 THE INTERPRETER: We cannot hear the witness.
13 MR. HANNIS:
14 Q. I'm sorry, you may have to sit a little closer to the microphones.
15 The interpreters say they can't hear your answer.
16 A. Yes.
17 Q. And at the time you made your statement, you indicated that you
18 were chairman of the Council of the Defence of Human Rights and Freedom.
19 Could you tell the Court what that council is, what kind of organisation
20 is that?
21 A. It is an NGO which was formed in 1991 in Pristina.
22 Q. And what was its purpose or mission when it was formed?
23 A. The purpose of this organisation was to collect evidence mainly on
24 the violence perpetrated since 1990 and even earlier in Kosova up to the
25 post-war years.
1 Q. And any particular kind of violence?
2 A. Violence committed by the regime in power. The Serb regime, I
4 Q. How many offices were there in Kosovo?
5 A. We had 30 such centres out of 29 communes.
6 Q. When did you start working for them?
7 A. To be precise, in 1995 in July, July or August -- August, I think,
8 rather than July.
9 Q. And how long did you continue to work for them?
10 A. For seven years.
11 Q. Now, I want to refer to certain portions of your statement. I
12 have some questions that I would like to ask you to amplify on your
13 statement a bit.
14 First of all, in paragraph 11, which is on page 3 of the English,
15 the second full paragraph up from the bottom, you noted that since 1981
16 that there had been arrests and beatings of Albanian citizens by the MUP
17 in Gjakove but that it had become worse in 1998. How were you aware of
18 this fact of arrest and beatings and of the fact that the condition had
19 worsened in 1998? What was your source of knowledge or information?
20 A. My source of information were the injured persons who came to our
21 office and reported the injuries. There -- these were frequent cases.
22 They were invited to the secretariat allegedly for informative talks.
23 They were tortured there and some of them were even arrested. It happened
24 that due to tortures some of them died in these centres.
25 Q. And I believe you mention a couple of those in the next paragraph
1 in your statement. -.
2 When you say "the secretariat," are you referring to the
3 secretariat of the interior, the local police?
4 A. Yes -- no. The secretariat of the internal affairs. This is what
5 I mean. The local police was part of this organ. It was formed in 1998.
6 When I said "due to tortures," I have reported the case of Halit
7 Izet Alija, 48 years old, who was killed because of tortures made on him
8 in this building of the MUP secretariat in January 1999.
9 Q. Let me take you to paragraph 14 of your statement, and I think
10 this is the first time in your statement you mention
11 the term "paramilitary." You mention it in the context of the military,
12 the police, and paramilitaries taking part in joint operations in 1998, in
13 April and May. Could you explain to the Court how you distinguish between
14 those three separate forces, the military, the police, and the
15 paramilitary. How could you tell one from another?
16 A. I could tell them one from another because they have different
17 uniforms. I have been a soldier myself. You can tell the police because
18 they wear blue uniforms; whereas the paramilitary, they used to wear
19 another kind of uniform, another colour. It was like camouflage uniform.
20 Part of them were distinguished because they wore bands on their arms, and
21 so it was easy for anyone to distinguish them.
22 Q. And I don't know if you mentioned what kind of uniforms the
23 military or the regular VJ wore.
24 A. They wore kind of olive-colour uniforms.
25 Q. In paragraphs 16 to 18 of your statement, Mr. Haxhibeqiri, you
1 talk about --
2 MR. VISNJIC: Excuse me.
3 MR. HANNIS: Sorry.
4 JUDGE BONOMY: Mr. Visnjic.
5 MR. VISNJIC: [Interpretation] I'm sorry for interrupting. I'm
6 sorry for interrupting, but we have a bit of a problem in following this
7 testimony -- or rather, Mr. Hannis keeps referring to certain paragraphs.
8 In actual fact, we haven't got any statements where the paragraphs are
9 marked by numbers. Now, is this some kind of internal marking that he has
10 or do we have the wrong copies? I mean, if it's internal it's all right,
11 but I mean I keep looking for this number and then maybe I just shouldn't.
12 MR. HANNIS: Now, I should advise Your Honour that I have
13 hand-numbered my English copy and Mr. Haxhibeqiri's Albanian copy is
14 hand-numbered, but I don't have a hand-numbered copy of the B/C/S. I'll
15 try to refer to the page and give Defence counsel a chance to identify by
16 perhaps reading from the first line from the paragraph to them get there.
17 And I apologise, Mr. Visnjic, I wasn't able to get that on the
18 B/C/S copy.
19 MR. VISNJIC: It's okay. Thank you very much.
20 MR. HANNIS:
21 Q. On paragraph 16 that I want to start with in my English version
22 begins near the bottom of the fourth page, and the first sentence
23 is: "The largest military barracks was on the outskirts of town."
24 MR. FILA: [Interpretation] Your Honour, for a long time now we
25 haven't had any translations into Serbian. And by your leave -- perhaps
1 it would be a good thing if you placed your own copy on this thing,
2 whatever you call it, e-court, so perhaps we can follow it in English.
3 JUDGE BONOMY: No, no -- well, Mr. Fila, it's important you draw
4 to my attention any deficiency in the translation immediately it occurs.
5 It's something that's very difficult to go back over. And are you saying
6 that you're still not receiving any? Well, this problem has to be
8 MR. FILA: [Interpretation] Oh, I hear him now -- I mean, I hear it
9 now -- I mean -- but you were looking the other side, so I didn't dare
10 interrupt you. I mean, I'm sorry. Well ...
11 I don't know how else I can handle this, but that's the way it is.
12 Well, I just wanted to ask to have this in English so then we can follow
13 it easier. I mean, say he says paragraph whatever and then we -- I mean,
14 I don't know Albanian, but we can rely on the English for the numbering, I
15 mean through e-court.
16 MR. HANNIS: Your Honour, I think with my rudimentary B/C/S I'm
17 going to be able to give them a reference in the B/C/S version as to the
18 paragraph and page number.
19 JUDGE BONOMY: Yeah.
20 MR. HANNIS: And in the B/C/S version I'm --
21 JUDGE BONOMY: Well, I think, though, Mr. Hannis let's just think
22 about the fairness of this. The witness is working from a hard copy, is
24 MR. HANNIS: He is, Your Honour.
25 JUDGE BONOMY: So is there any difficulty about putting the B/C/S
1 version on e-court?
2 MR. HANNIS: We can do that on e-court.
3 JUDGE BONOMY: Well, that seems to be what's requested to avoid
4 any further difficult with translation, so I think we should do that.
5 MR. HANNIS: Sure. And the paragraph 16, as I've numbered them in
6 my hand-copied version, in the B/C/S begins at the bottom of page 4 of the
7 B/C/S, the very last line on that page. But because I used the Albanian
8 as the master for purposes of identifying paragraphs and the various
9 translations in English and Albanian -- and B/C/S do not always make
10 paragraph breaks in the same place, in some instances I've had to join
11 paragraphs to keep the numbering consistent. But I'll try to explain that
12 to my B/C/S-speaking colleagues as I go along.
13 Q. So in the B/C/S, at the bottom of page 4 of the B/C/S version, the
14 first line is where I'm beginning and for the next paragraphs until the
15 bottom two-thirds of the page.
16 Mr. Haxhibeqiri, you talk about how from August of 1998 and
17 onwards the VJ would shell villages and then the MUP and the
18 paramilitaries would force the villagers to leave, telling them to go to
19 Albania. You say this continued to and during the NATO bombing. What was
20 the ethnicity of the villagers you're talking about?
21 A. They were all of Albanian ethnicity.
22 Q. And then related to that in paragraph 19, which is the
23 next-to-the-last paragraph on page 5 in the B/C/S you say, I'm quoting
24 from the English, "the worst time for this was during the bombing. It was
25 civilian Albanian property that they deliberately targeted."
1 Who is the "they" that you're referring to when talking about
2 targeting Albanian civilians?
3 A. The Serbs. The Serbs and the Montenegrins.
4 Q. And how was it that the problem got worse during the bombing?
5 What changed?
6 A. Violence was intensified during bombing in response to the NATO
7 air-strikes. Violence and terror start to be perpetrated in a planned,
8 institutionalised way in order to create an atmosphere of fear and of
9 intimidation that make the Hitchcock movies bear no comparison to that,
10 compared to that atmosphere. It was a Hitchcockian atmosphere, I would
12 Q. I want to next go to paragraph 20, which in the B/C/S is the last
13 two lines of -- on page 5. In the English we're on page 5 and about four
14 paragraphs up from the bottom, beginning from the bottom it says: "On the
15 23rd of March." You talk about when your office was searched and the
16 staff arrested. Were you present that day when that happened?
17 A. No, unfortunately no. I left one or two minutes earlier. I don't
18 remember very well. Maybe I left five minutes earlier and I went home.
19 But there were other members, personal members, who continued to work.
20 There were six persons, and once I left the office these forces entered
21 and drove the staff out, beating them, insulting them, and arresting them.
22 They sent them to the secretariat of internal affairs.
23 Q. In that same paragraph you talk about the fact that you had worked
24 with the radio station Voice of America and the Deutsche Welle. Can you
25 tell us what -- can you tell the Court, please, what kind of work you did
1 with the Voice of America and Deutsche Welle.
2 A. We reported on the violence committed at that time in our
3 municipality, about the daily terror perpetrated there. As an NGO, we had
4 a good reputation. We were respected by the public. We were different
5 from the politically formed organisations. We had an independent opinion.
6 Q. In the following paragraph, 21, you mention that: "No NATO bombs
7 hit civilian targets in Gjakove."
8 Can you tell the Court how you know that?
9 A. This is true. The city is proof of that. There is not a single
10 bomb dropped there with the exception of the MUP building which on the
11 21st of May was bombarded, and as a result of that bombing someone who was
12 at home, he suffer -- he was killed actually in his toilet.
13 Q. And I believe you indicated, too, that there was an incident not
14 in the town itself but in mid-April involving a convoy. Are you familiar
15 with that?
16 A. Which paragraph you said, sir?
17 Q. It's not a reference in the paragraph, but it has to do with the
18 issue of civilians being damaged or injured by NATO bombing.
19 A. Yes, it was on the 14th of April. That day these forces, I always
20 mean the police forces, and the military and the paramilitary forces, they
21 drove the citizens out of their homes through use of violence, beating
22 them, insulting them, and setting fire to their homes in order to deport
23 them to Albania. Way -- on the way, part of -- some of them died because
24 of the bombs.
25 Q. Within the town itself, did you -- did you have occasion or take
1 occasion to go around and personally look at all the damage to come to
2 this conclusion that no civilian targets had been bombed?
3 A. Yes, of course, I did go. It -- you mean during the war? The
4 period during the NATO bombardment?
5 Q. At any time. Over what period of time did you do that to come to
6 that conclusion? Was that based on one day's inspection or over a period
7 of months?
8 A. When do you mean actually? Could you explain that to me. What
9 period exactly do you mean?
10 Q. Well, I'm looking at paragraph 21, and in the English it says
11 that: "None of these bombs hit any civilian areas in the town itself, of
12 that I am certain."
13 And I am just inquiring how you were able to know that.
14 A. Yes. Well, the NATO had Serb objectives to bombard. They did not
15 have any civilian objectives that they bombarded. This was very accurate.
16 The bombardment was very accurate because, for example, the big barracks
17 close to the Catholic church, which is next to the Catholic church as a
18 matter of fact, the church was not damaged at all.
19 JUDGE BONOMY: Mr. Hannis, where is the reference to the convoy --
20 MR. HANNIS: There is not a reference to the convoy in his
21 statement, Your Honour. That was based on just following up on the issue
22 of civilians being injured by NATO bombing, and I believe there's a
23 reference earlier in questioning Mr. Abrahams about civilians --
24 JUDGE BONOMY: Where is -- there is nothing in this statement
25 about civilians being injured by NATO bombing?
1 MR. HANNIS: No, Your Honour.
2 JUDGE BONOMY: But the witness has just given evidence about
3 civilians being killed.
4 MR. HANNIS: Yes. Paragraph 21 says: "None of the bombs hit any
5 civilian areas." Then I was inquiring of whether or not there were any
6 bombs that actually hit civilians.
7 JUDGE BONOMY: Well, I would like to hear a bit more about that
8 because the answer is certainly not very clear to me.
9 MR. HANNIS: Okay.
10 Q. Mr. Haxhibeqiri, do you hear Judge Bonomy's question? He would
11 like to hear some more about the convoy in which civilians were killed by
12 the NATO bombing. Can you tell him anything additional about that?
13 A. On the 14th of April, 1999, during the time of NATO bombardments,
14 these forces entered the area called Reka e Keqe and Lugu i Carragojes.
15 Q. Are those areas of Gjakove town?
16 A. Yes, in the south-western part of the city.
17 MR. HANNIS: Your Honour, now it might be helpful if we can put up
18 an exhibit that shows the town. It's Exhibit P10.
19 JUDGE BONOMY: I'm curious about the relationship between the
20 statement that no civilian targets were involved and this evidence that
21 shows that civilians were in fact killed. Now, I'm just trying to
22 understand how that happened according to the witness and how that relates
23 to his clear statement that there weren't any civilian targets.
24 MR. HANNIS: I believe he's talking about no civilian targets in
25 the town and perhaps -- we'll let him answer in talking about buildings or
1 property. The convoy I think was outside of town, but he'll tell you
2 about that.
3 JUDGE BONOMY: Oh, I see, yes. I see. I thought this was leading
4 to a suggestion that these were the locations where the civilians were
5 killed, but that's not the case. All right.
6 MR. HANNIS: Correct.
7 Q. Go ahead, if you could, Mr. Haxhibeqiri. You told us that the
8 forces came into these areas of town that you've just named. Then what
10 A. They went into the villages and threatened with their guns --
11 threatened the citizens with their guns. They drove them out of their
12 homes, insulting them, brutally beating them, driving them into the
14 Q. And I don't know if you have yet a map up on one of your screens
15 showing --
16 A. Not yet.
17 MR. HANNIS: Could we have P10.
18 THE WITNESS: Yes.
19 MR. HANNIS:
20 Q. Now you see it. Can you indicate for the Judges the areas that
21 you were talking about?
22 A. [Interpretation] Yes.
23 Q. Are you able to see them on the map on the screen in front of
25 A. Could you lower it a little bit more. Yes.
1 [In English] This area.
2 Q. Your Honour, I don't know what the best way it is for the witness
3 to --
4 A. [Interpretation] In the direction of the border to Qafa e Morines,
6 MR. HANNIS: Is there a particular pen the witness can use to mark
7 on the exhibit for us?
8 JUDGE BONOMY: Well, we need to know what he's marking, first of
9 all. I mean, I'm at an utter loss at the moment to know what this
10 evidence is about. So it really needs to be explored in greater detail so
11 that we can understand what he's talking about.
12 MR. HANNIS: I understand, Your Honour. We are trying to, first
13 of all, establish where these civilians who were in a convoy came from, as
14 I understand it.
15 Q. Mr. Haxhibeqiri, can you show us what parts of Djakovica town
16 you're talking about?
17 A. I said that that part is called Reka e Keqe, that area is called
18 Reka e Keqe and includes 20 villages, and also Lugu i Carragojes.
19 Q. I don't see those names on the map. Do they appear on this map,
20 the areas that you're talking about?
21 A. No, they don't appear in the map.
22 Q. And where are they from town if this map has north to the top --
23 A. South-west --
24 JUDGE BONOMY: Well, the statement, Mr. Hannis, says that Reka e
25 Keqe is south-west of the town and it's a name for a group of villages,
1 and also Dushkaja, which is to the north-east and is another group of
2 villages. Now it now appears we are talking about something which is in
3 the statement.
4 MR. HANNIS: We are talking about those villages. I don't know if
5 we're talking about the incident in which civilians were killed by NATO
7 JUDGE BONOMY: All right.
8 MR. HANNIS:
9 Q. You do talk about those villagers being driven out of their homes.
10 Can you tell the Court what happened after that and where it happened and
11 how it happened.
12 A. When the convoy, it was a long convoy with villagers, arrived at
13 the place called Meja, the convoy was bombed and several people died.
14 Q. But apart from that incident during your time in Djakovica, you
15 indicated that you saw no evidence that NATO bombs had hit civilian
16 targets in Gjakove town. Is that correct?
17 A. There is no such case when civilian objects or buildings were
19 Q. Now --
20 A. Excuse me. It was a factory producing refreshments. Part of that
21 was bombed, and the motivation was -- or better to say not -- it was not
22 the motivation but it was a fact that there were police and army forces
23 stationed there and they had heavy weaponry.
24 Q. At the factory you've just described?
25 A. Yes, in the yard of the factory.
1 Q. Now, from the time that the NATO bombing began on the 24th of
2 March, where were you and what were you doing?
3 A. From the 23rd when my colleagues were arrested, I left and I was
4 in hiding in the area called Blloku i Ri.
5 Q. Okay.
6 A. I stayed there for a week in hiding.
7 Q. Then where did you go?
8 A. A week later I came back home, I went back home, in the
9 neighbourhood of -- in the old part of the town, where I live.
10 Q. Was there a name for that neighbourhood?
11 A. Blloku i Ri.
12 Q. And that's where you were initially, and then you returned to your
14 A. Yes, exactly.
15 Q. Which is in another part of town. Is there a name for that
17 A. It's called Carshia e Madhe, the great Carshia.
18 Q. And we see those two areas on the map on the screen in front of
20 A. Yes, yes.
21 Q. How long did you stay there?
22 A. I stayed there all the time, with the exception of ten days when I
23 went to another neighbourhood, which is called neighbourhood Hank [phoen].
24 I stayed there for ten days.
25 Q. And during this time that you remained there until the end of the
1 fighting, you described, first of all, I think on the 25th of March that
2 you saw -- I'm reading now from paragraph 22 which is the next paragraph,
3 you saw police and paramilitary working together in the Carshia e Madhe
4 neighbourhood. You say actually you couldn't see it but you got this
5 information from neighbours who were living there and communicating with
6 you. How did you know they were working together?
7 A. I saw them with my own eyes during the whole time of the 78 days
8 of bombardments.
9 Q. In relation to that, paragraph 31 which is the third paragraph
10 down on page 7 of the English and which is on page 7 of the B/C/S just
11 before the dividing dotted line near the bottom. In paragraph 31 you said
12 that from your house you saw on a daily basis homes burning and you said
13 the paramilitary set the fire. First of all, how were you able to see
14 this? How far away were they?
15 A. The houses were 50 metres away, 50 metres or more, but there were
16 some houses which were 25 metres away from the area where I was staying,
17 wherefrom I saw them.
18 Q. How many days did you see that kind of activity going on?
19 A. During the 78 days of NATO bombardment.
20 Q. And how were you able to say that these were paramilitaries as
21 opposed to police or VJ?
22 A. I could distinguish them. I could tell it was them because they
23 had camouflage uniforms and they had stripes and ribbons.
24 Q. You also indicate in that paragraph that there was regular
25 imprisonment of people. What ethnicity are you talking about there?
1 A. They were all Albanians, civilians.
2 Q. And how are you able to know that people were being imprisoned
3 during this time since you were hiding out in your house?
4 A. It was the 7th of May when the fighting started between the KLA
5 and the Serbian forces in the Kodra e Cabratit which is on the outskirts
6 of town, the south-western part.
7 During these fightings, over a hundred people were killed, or more
8 exactly 106 people were killed. Over a hundred houses were burned and 300
9 people were arrested. Of these 300 people, 150 were released. And the
10 rest were arrested, were detained in a warehouse, a workshop warehouse, in
11 the outskirts of town. So these 150 people who were released, they were
12 released a week later, or better to say six -- five or six days later
13 while the rest ended up in Peja. They were sent there by lorry and bus to
14 the prison of Peja. And because there was no room for all of them there,
15 they were sent to the warehouse of a company called Banana. From there
16 they were transported and sent -- they were sent to the Dubrava prison.
17 At the Dubrava prison, of these people that I mentioned, the
18 number that I mentioned, many of them were killed either by the NATO
19 bombings or because they were executed by the prison staff. So 26 people
20 from our municipality were killed there among the 180 people who were
21 killed altogether there.
22 Q. Let me stop you there, if I can, and ask you a question about
23 Gjakove town -- I'm sorry.
24 MR. HANNIS: Your Honour, there's Mr. Visnjic on his feet.
25 JUDGE BONOMY: Yes, Mr. Visnjic.
1 MR. VISNJIC: Your Honour, excuse me.
2 [Interpretation] I would just like to make a brief remark. It
3 consists of two parts first. The witness now has exceeded the framework
4 of his previous statement, especially --
5 JUDGE BONOMY: [Previous translation continues] ...
6 MR. VISNJIC: Oh, I'm sorry.
7 [Interpretation] On one hand the witness has exceeded the bounds
8 of his previous statement, especially the part that relates to the
9 transport of people to Dubrava and their detention right after the arrest.
10 This was something that was not mentioned in his to-date statement. The
11 whole part that relates to Dubrava has already been excluded from this
12 case by your decision, so that was my objection to his testimony here.
13 JUDGE BONOMY: It's of no significance, Mr. Visnjic, because his
14 evidence has made it clear that -- or has not made it clear how it's
15 suggested these people died. So there's no injustice by that reference.
16 On the first point you make, though, there is no reason why the
17 witness should be confined to his statement. If you have insisted, as you
18 have, on cross-examination and the witness is not being presented simply
19 as a -- or his evidence is not being presented simply in written form,
20 then as the Prosecution invite him to give some oral evidence, it's
21 inevitable that that will be on the statement. And there's no rule that
22 confines the witness in that situation to the statement. So I don't think
23 that objection is valid in this situation. And you can take it we will
24 exclude the reference to Dubrava from our minds in dealing with the
1 So please carry on, Mr. Hannis.
2 MR. O'SULLIVAN: Your Honour, if I might.
3 JUDGE BONOMY: Mr. O'Sullivan.
4 MR. O'SULLIVAN: It appears that -- that Mr. Hannis is actually
5 leading this witness viva voce through his testimony and not -- and not
6 limiting it to adopting his statement. And I think it's inappropriate -
7 Mr. Hannis is free to do that - but it's inappropriate for the witness to
8 have the statement in front of him and to read -- to refer to it and read
9 from it if he's in fact testifying viva voce and not as a 92 bis witness
10 who adopts his statement and doesn't -- doesn't testify from it.
11 JUDGE BONOMY: Well, can you give me a reason why that's
12 inappropriate and indeed why it's inappropriate for him to be led through
13 the statement.
14 MR. O'SULLIVAN: It's not inappropriate for him to be led through
15 his -- to be led through his testimony --
16 THE WITNESS: [Interpretation] Of course.
17 MR. O'SULLIVAN: It's inappropriate in my submission for the
18 witness to have a copy --
19 THE WITNESS: [Interpretation] I was given this --
20 JUDGE BONOMY: Mr. Haxhibeqiri, please be quiet for the moment
21 while we listen to counsel's submission.
22 MR. O'SULLIVAN: My submission is if the witness is going to be
23 led what amounts to -- as a viva voce witness and no longer a 92 bis
24 witness, the witness should not be provided or be given a copy of his
25 statement while on the stand. He should be testifying as a regular
1 viva voce witness. Because I think we've gone way beyond merely asking
2 the witness whether this is his statement and whether he adopts it and
3 asks a few general questions on it. We've gone almost paragraph by
4 paragraph here --
5 JUDGE BONOMY: Well, not quite. I'm actually not finding it
6 terribly helpful to have it led this way, I have to say, and I think that
7 must be clear from the questions I've been asking. So from the point of
8 view of judicial efficiency, this is not really an ideal way to do it. I
9 agree with that entirely. But so far as the question of whether it's
10 permissible or not, that's a separate question.
11 So you're saying that in a case where a 92 bis witness is to be
12 cross-examined, then when he's giving his evidence in chief he shouldn't
13 have the statement in front of him. Now, I have difficulty following that
15 MR. O'SULLIVAN: If a witness is being called and led as a 92 bis
16 witness, there may be some -- there's a preliminary question of whether
17 that statement is in fact his statement and whether he adopts it. That's
18 fine. There may be some general questions or additional questions, and I
19 have no problem with that either. But in this case this witness is
20 testifying in relation to this -- what appears to be the entire statement
21 from beginning to end and is in fact a viva voce witness. If Mr. Hannis
22 wants to question him as a viva voce witness, that's fine. But he cannot
23 have the witness statement in front of him while he testifies as a
24 viva voce witness. That's my point. Calling him as a 92 bis witness is
25 inappropriate here because he's actually testifying as a viva voce
2 [Trial Chamber confers]
3 JUDGE BONOMY: Mr. Fila.
4 MR. FILA: [Interpretation] Your Honours, I would like to agree
5 with the position of Mr. O'Sullivan. The question is put whether there is
6 a difference between hearing a witness viva voce or 92 bis because
7 Mr. Hannis today has glossed over this difference because now we are
8 having the witness testify viva voce and also according to 92 bis. He is
9 testifying and he has his statement in front of him to consult. You
10 cannot have both things. I'm trying to simplify things. This is what I'm
11 trying to say. This exceeds 92 bis first of all with the transport, then
12 with a map that is not there. Now we have heard what was happening at
13 Dubrava and he wasn't there.
14 The main objection of this Defence, Your Honour, and let me
15 finish, I don't want to keep getting up several times, is that we cannot
16 see on the basis of this statement what the witness personally saw and
17 what was later found through the investigation. If he was sitting in his
18 own house, then it probably wasn't burned down, otherwise he wouldn't be
19 sitting in it. Then I don't understand what he saw personally, what he
20 found out as an activist of that organisation. All of this is getting
21 mixed up and it's going to create problems, and I don't think that it
22 would be a good thing if somebody comes to testify under 92 bis and then
23 continues to testify as a live witness. Perhaps if somebody comes to
24 testify according to 92 bis, then there's no need to hear them viva voce,
25 but this is turning into the testimony of a live witness.
1 JUDGE BONOMY: Well, that was a rather confusing submission, if I
2 may say so, Mr. Fila. It started off on a basis I clearly understand,
3 which is to support the point made by Mr. O'Sullivan, and I note what you
4 say about that. But the second point has really nothing to do with that
5 because it's equally relevant to the statement as it is without any
6 elaboration orally and that point has already been taken by Mr. O'Sullivan
7 when he first made his objection. And we will be dealing with that
8 particular point, as you already know, when we have heard all the
9 evidence. It's an argument which you have supplemented to some extent,
10 but it's separate to the point I think that we're dealing with at the
12 Now, just give me a second to consult on this.
13 [Trial Chamber and legal officer confer]
14 MR. HANNIS: And, Your Honour, if I may respond before or after
15 you consult with your colleagues --
16 JUDGE BONOMY: Yeah, just not at the moment, Mr. Hannis.
17 MR. HANNIS: Thank you.
18 [Trial Chamber and legal officer confer]
19 JUDGE BONOMY: Yeah, Mr. Hannis.
20 MR. HANNIS: Thank you, Your Honour.
21 JUDGE BONOMY: Yeah.
22 MR. HANNIS: First of all, I want to speak in defence of the
23 witness because as far as I was able to observe, I did not see him reading
24 from his statement to answer my questions.
25 Secondly, his statement was given to him in the beginning because
1 as I found with Mr. Stoparic, our second witness, trying to have the
2 witness verify a statement as his own from the e-court did not work very
3 well because we would have to scroll from top to bottom and turn every
4 page and even then he can't see his signature as he can with a hard copy.
5 So that's why it was put to him.
6 Also, to try to direct him to the topic I want to ask him any
7 questions about, it's there so we can refer to a paragraph and see if I'm
8 referring to paramilitaries, am I talking about paramilitaries in March,
9 April, May, for example.
10 And as I recall, this discussion, starting with Mr. Visnjic's
11 objection, that the witness was talking about things outside the
12 statement, and then Mr. O'Sullivan turned to I'm just leading him through
13 paragraph and paragraph, and he's just repeating live what's in his
14 written statement. So there seems to be a bit of an anomaly there.
15 What I'm trying to do is ask him questions that are not in the
16 statement, but I have to go to the statement to say: When you say
17 paramilitaries in paragraph 14, what are you referring to.
18 JUDGE BONOMY: The first question that needs to be answered there
19 is are you applying or asking the Trial Chamber to apply Rule 92 bis?
20 MR. HANNIS: We're asking you to accept his written statement as
21 part of his evidence in addition to --
22 JUDGE BONOMY: But listen to my question then: Are you asking the
23 Court to apply Rule 92 bis?
24 MR. HANNIS: Yes.
25 JUDGE BONOMY: Well, I would have thought the answer to that was
1 no. I'm surprised at that answer.
2 MR. HANNIS: Your Honour, I want the best of both worlds.
3 JUDGE BONOMY: No. But what I understood was happening here and
4 what needs to be clear before we go any further is that in light of the
5 fact that cross-examination had been authorised of every witness for whom
6 you made a 92 bis application you sought to supplement their evidence by
7 leading some oral evidence from them.
8 MR. HANNIS: That's correct.
9 JUDGE BONOMY: Now, that seems to me to be an application of
10 Rule 89(F). And what you're doing is asking a witness to confirm that
11 something which was originally designed for a different purpose is
12 actually true, and therefore he's presenting it as evidence which falls
13 under 89(F) if we decide to allow that package that was originally
14 designed for 92 bis to be submitted in that way.
15 MR. HANNIS: Your Honour, well, then, that may be my own
16 shortcoming in understanding the difference between 89(F) and 92 bis when
17 a witness is called to give -- when a 92 bis witness is called to give
18 evidence or called to be cross-examined and the Prosecution is allowed to
19 lead some live evidence before that begins.
20 JUDGE BONOMY: It's also clear in 92 bis that the Trial Chamber
21 may admit in whole or in part the evidence of a witness in the form of a
22 written statement in lieu of oral testimony. And again, it may be that
23 that is what you're doing. If you tell me that's what you're doing, then
24 we will consider 92 bis. But I have to say I don't at the moment
25 understand the objection that's being made that you're not allowed to go
1 outwith the area of the 92 bis statement. The rule seems quite clear. It
2 may be admitted in whole or in part in the form of a written statement
3 under 92 bis, and 89(F) allows a similar process.
4 I, for one, am not desperately keen to get bogged down in the
5 detail of these technical arguments when it seems clear that the practice
6 of the Tribunal in the past has allowed this to happen. And when you look
7 at these two rules together, you can see clearly why the practice of the
8 Tribunal has allowed this to happen. So we'll get into an objection which
9 I think on that basis has been steering us away from an appropriate course
10 to follow.
11 The second matter, though, that's raised is the extent to which
12 the witness has the statement in front of him and we have to be practical
13 about this and make sure that the interests of justice are served. And we
14 have to ensure that the witness isn't inappropriately guided by the
15 statement. Now, he himself has already offered to throw it at
16 Mr. O'Sullivan so he can use it which seems to suggest that he is quite
17 happy to proceed without the statement. You, on the other hand, wish it
18 to be used as a beacon to direct him carefully through any difficulties
19 that there are in identifying the subject matter that you're discussing.
20 You're using it for that purpose, as I understand.
21 MR. HANNIS: Only if he needs to to understand my question.
22 JUDGE BONOMY: Correct, correct. So against that background, I
23 think we will proceed on this basis. The objection to going beyond the
24 strict terms of 92 -- of the 92 bis, as you call it, statement is
25 repelled. It seems to us perfectly appropriate to lead oral evidence of a
1 witness, part of his evidence is coming in under 92 bis. And if there
2 were ever any doubt about that, then 89(F) resolves it as long as the
3 Trial Chamber allows you to present the evidence. And since the -- since
4 there is an objection, then we can't take a positive decision finally on
5 the admission of this statement, as you know. But we will allow you to
6 proceed on that basis.
7 And I address now the witness and say to you that, and I think
8 you're perfectly comfortable with this, that insofar as you're being asked
9 questions you should answer them from your recollection and you should use
10 the statement only to make sure that you're understanding the question
11 properly in the way that Mr. Hannis has suggested. So please, ignore it
12 except to the extent that you require to refer to it for clarification of
13 the question, and we'll proceed on that basis.
14 Carry on, Mr. Hannis.
15 MR. HANNIS: Thank you, Your Honour, and -- thank you, Your
16 Honour. In connection with that, I would just indicate it's my general
17 practice and it was my specific practice with this witness to indicate to
18 him that although he would have the statement on the table with him he
19 should not refer to it, or, if he was, he should advise me and the Court
20 that he was looking at his statement to make any answer.
21 JUDGE BONOMY: Perhaps just one final point, Mr. Hannis. It is
22 disappointing that the statement is incomplete in respect of a number of
23 perhaps quite important matters because what happens is you end up with
24 the witness giving answers which really ought not to have been given in
25 light of earlier decisions made -- an earlier decision made by the Trial
1 Chamber. And it's also a bit disappointing that when so much has been
2 committed to writing that we have to have so much oral evidence at this
3 stage. However, we simply ask you to bear that in mind when you come
4 along with the next Rule 92 bis witness.
5 MR. HANNIS: I will bear that in mind, Your Honour. I'm sorry to
6 disappoint the Court.
7 I'm looking at the clock, Your Honour, and based on the fact that
8 lawyers' estimates of time are notoriously bad, and we suggested that
9 between Mr. Stamp and I we might need six minutes. I would like to ask if
10 we could stop with this witness for now and deal with the procedural
12 JUDGE BONOMY: Do you not think you will complete your evidence
13 in-chief with him tonight?
14 MR. HANNIS: Not in ten more minutes.
15 JUDGE BONOMY: No?
16 MR. HANNIS: No. It would be close, but then I don't think we'll
17 have time for the matters I need to address and one of them has a
18 time-limit that expires at the end of the day that I -- so I need to raise
19 it with you now.
20 JUDGE BONOMY: All right. Well, just -- there is one thing,
21 Mr. Haxhibeqiri, that I would like to clarify before we adjourn the
22 evidence for the evening.
23 You said that you became the chairman of the Council for the
24 Defence of Human Rights and Freedoms in 1995.
25 THE WITNESS: [Interpretations] No, I was a member.
1 JUDGE BONOMY: A member from then?
2 THE WITNESS: [Interpretation] After the war. Immediately after
3 the war I became chairman. At the time I gave the statement I was
5 JUDGE BONOMY: Now, are you still the chairman?
6 THE WITNESS: [Interpretation] No.
7 JUDGE BONOMY: So when -- when did you cease to be chairman?
8 THE WITNESS: [Interpretation] 2001.
9 THE INTERPRETER: Could the witness kindly approach the
10 microphones because the interpreters cannot hear him.
11 THE WITNESS: [Interpretation] It was 2002 more exactly, by the
13 JUDGE BONOMY: The interpreters are asking you to come a little
14 closer to the microphones. Thank you.
15 So you were chairman from -- from about June 1999 until 2002?
16 THE WITNESS: [Interpretation] Yes.
17 JUDGE BONOMY: Well, we're being asked now to interrupt your
18 evidence until tomorrow. So the evidence will resume at 9.00 tomorrow
19 morning. You need to be here ready to continue your evidence at that
20 time. Meanwhile, it is very important that you have no discussion about
21 your evidence with anyone. Now, that is either about the evidence that
22 you have already given or about the evidence you may yet give in the
23 course of the case. Now, do you understand that?
24 THE WITNESS: [Interpretation] Yes.
25 JUDGE BONOMY: Thank you. Well, you're now free to leave the
1 court, and we will see you again tomorrow at 9.00 a.m.
2 [The witness stands down]
3 JUDGE BONOMY: Now Mr. Hannis.
4 MR. HANNIS: Thank you, Your Honour. My request relates to the
5 Prosecution's motion for admission of documentary evidence sometimes
6 referred to as the stand-alone documents.
7 JUDGE BONOMY: Yeah.
8 MR. HANNIS: As you will recall, we filed our original motion on
9 the 25th of May. On the 6th of June there was an order from I think the
10 Pre-Trial Judge to submit some further information, which we did on the
11 12th of June with a second submission to detail some of those matters on
12 the 5th of July. The Defence then had until the 4th of June to file the
13 response. We did have a number of responses from the accused.
14 Mr. Sainovic and General Lazarevic filed a joint Defence response.
15 General Lukic filed a response. General Ojdanic filed a response. Those
16 were all fairly detailed responses, and Pavkovic joined in Ojdanic's and
17 Milutinovic also joined in Ojdanic's response.
18 Your Honour, we, based on our preliminary view of those responses
19 filed on Friday, it appears there are some legal and factual issues we
20 need to address. We -- our time-limit is running, and we need to seek
21 leave from the Court to file a reply. This is my oral motion to make that
22 request. In support of that I just want to point out to Your Honour one
23 of the things that -- it comes up in General Ojdanic's response. It
24 relies rather heavily on a recent decision I think from the 13th of July
25 in the Prlic case, which we were not aware of at the time we filed our
1 initial motion and supplemental pleadings. So it's some new jurisprudence
2 that we think we need to respond to. We also -- there are some issues
3 raised by Mr. Sainovic and General Lazarevic regarding the fact that
4 documents admitted in the Milosevic trial should not be admitted here
5 because Mr. Milosevic was not represented by counsel. That was not an
6 issue that was addressed before.
7 In that regard, Your Honour, we're simply making our oral motion
8 at this time for leave to file a reply. And given that the Defence had
9 four weeks to file the response, which is longer than the normal time, and
10 given the length and scope of the responses, we would ask to have until
11 the 18th of August to file a reply. However, I would indicate to the
12 Court, in an ever-optimistic point of view, that upon a more detailed
13 review we might decide we don't need to file one. But since today is my
14 last day to file leave, that's what I'm doing now.
15 JUDGE BONOMY: Thank you.
16 Mr. Visnjic, do you have any objection to this?
17 MR. VISNJIC: No objections, Your Honour, from General Ojdanic's
18 Defence side.
19 JUDGE BONOMY: All right. Thank you.
20 Mr. Fila, I think this concerns you also.
21 MR. PETROVIC: [Interpretation] Your Honour, we have no objection.
22 We have no problems with the suggestion put forward by the Prosecutor.
23 JUDGE BONOMY: Mr. Bakrac.
24 MR. BAKRAC: [Interpretation] The Defence of General Lazarevic has
25 no objection.
1 JUDGE BONOMY: Now, these are the ones referred to.
2 Any other counsel have any comment to make?
3 MR. HANNIS: Lukic, Your Honour.
4 JUDGE BONOMY: I'm sorry?
5 MR. HANNIS: Lukic, Your Honour.
6 JUDGE BONOMY: Oh, sorry. Mr. Ivetic.
7 MR. IVETIC: No objection, Your Honour.
8 [Trial Chamber confers]
9 JUDGE BONOMY: Yeah, we will allow you until the 18th of August to
10 submit a reply if you are so advised.
11 MR. HANNIS: Thank you very much, Your Honour. And that went
12 surprisingly well and quickly, and for once my time estimate was over the
13 actual time.
14 Mr. Stamp has a one-minute matter.
15 JUDGE BONOMY: Mr. Stamp.
16 MR. STAMP: This is something which normally we should be --
17 counsel I think should be dealing with without burdening the Court with
18 it, but it was raised in court today. And at a previous hearing counsel
19 had asked in court that we provide them copies of the underlying material,
20 the two reports that have been the subject of debates here, and I did
21 indicate that we would try to get them in one case from the organisation
22 that had them and we would disclose what we had as soon as we had
23 permission to do so. So I -- to announce to the Defence what the
24 situation is now in respect to the underlying material for the report
25 Under Orders. The Human Rights Watch legal counsel has indicated that
1 they would make an exception in this case and disclose them after
2 reviewing them to see if there are any extra-sensitive informant, having
3 regard to their paramount responsibility to protect the identities of
4 persons who might be in danger. And so they would be doing that and would
5 be giving us access to the material, so then we could disclose it to the
6 Defence as soon as possible.
7 The Secretary-General of the OSCE has indicated that there are
8 very stringent confidentiality requirements in respect of the
9 identities -- in respect to the documents, the underlying material that
10 was used for the report As Seen, As Told, and we are still in discussion
11 with them for permission to disclose the material. I thought I would just
12 put this on the record since the matter has been put on the record by the
13 Defence, although the Prosecution maintains that this is a matter of
14 material which is relevant but not under Rule 68 or not under Rule 66(A).
15 And if the Defence had sought to use the material in court, they should
16 have requested it long before the witnesses attended so that we could make
17 the necessary requirements.
18 Thank you very much, Your Honour.
19 JUDGE BONOMY: Thank you, Mr. Stamp.
20 Well, there's always a sting in the tail of the good news, if
21 that's what you're going to tell me.
22 MR. SEPENUK: Your Honour, just one other thing. I think under
23 the Rules we are entitled to have those statements for cross-examination
24 of any witness who testifies, whether it's an OSCE statement or a Human
25 Rights Watch statement or a the International Crisis Group that we've also
1 heard about or any other non-governmental organisation that has solicited
2 and elicited statements. Now, we have no such statement for this first
4 JUDGE BONOMY: Well, which rule are you referring to?
5 MR. SEPENUK: I believe -- well, we are supposed to get -- as I
6 understand the Rules, we are supposed to get all statements of any
7 Prosecution witness.
8 JUDGE BONOMY: Yeah, but these people aren't -- that's -- I think
9 the point that will be made immediately is that they are not witnesses.
10 You've got the statement of the witness --
11 MR. HANNIS: But also, Your Honour, another point is that some of
12 these statements we don't have in our possession --
13 JUDGE BONOMY: I understand that's a separate question. But the
14 persons referred to are persons interviewed, as you know, and on the basis
15 of these interviews a witness has come here to tell the Court what they
16 amounted to. Now, that's different from these people themselves being
18 MR. SEPENUK: Well, my -- maybe -- but maybe I have a wrong
19 understanding of this, Your Honour. I had thought that any statement made
20 by a witness, whether it's to the Prosecution or to an OSCE or to a Human
21 Rights Watch representative, those particular statements should also be
22 produced before the witness testifies. Now, if I'm wrong in that, I
23 apologise to the Court, but that's my understanding of the law.
24 JUDGE BONOMY: Well, you would have to direct me to the rule that
25 you claim says that.
1 MR. SEPENUK: I believe that Mr. O'Sullivan and I have discussed
2 this, and I believe it was Rule 66, yes.
3 JUDGE BONOMY: Well, Rule 66 relates to the statements of all
4 witnesses whom the Prosecutor intends to call to testify at trial and
5 copies of Rule 92 bis statements. Now, the documents we're discussing at
6 the moment don't fall into these categories.
7 MR. SEPENUK: [Microphone not activated].
8 Rule 66(A)(ii) -- again it talks about the copies of the
9 statements of all witnesses whom the Prosecutor intends to call to testify
10 at trial.
11 JUDGE BONOMY: Yeah, but these are not witnesses he intends to
12 call to testify at trial.
13 It's difficult sometimes, Mr. Sepenuk, to get to grips with the
14 system that admits hearsay in principle and then allows abrogations from
15 that in the interests of justice when you're used to working with a system
16 which excludes hearsay in principle and allows abrogations from that in
17 the interests of justice.
18 MR. SEPENUK: These are not statements, though. You mean an OSCE
19 interview which results in a statement, or Human Rights Watch interview
20 which results in a statement, or International Crisis Group interview
21 which results in a statement are not statements, Your Honours, within the
22 meaning of this rule?
23 JUDGE BONOMY: Well, they're certainly not statements within the
24 meaning of Rule 66(A)(ii). They might fall within 66(B), but there the
25 requirement is that they be in the custody of the Prosecution, which they
1 are not.
2 MR. HANNIS: Your Honour, I think in some instance witnesses that
3 we are calling in this case actually did make -- did have interviews with
4 Human Rights Watch or ICG and there may have been a report taken from
5 them, but I don't know how these forms are. I don't think they are -- I
6 don't know if they're signed or sworn to or any indication they have been
7 adopted by the witness, and also we don't have them in our possession.
8 MR. SEPENUK: Yeah, but, Your Honour, we have already received
9 several statements from the Prosecution relating to witnesses who are
10 going to be testifying in this case. And we asked the Prosecution some
11 time ago -- actually not -- within the last several weeks to produce any
12 other statements that they had. So they've already produced a handful of
13 statements. But I would think it's fundamental justice that any witness
14 who's testified and who has given a prior statement, we should -- we're
15 entitled to have that statement. And so far we've only gotten a handful.
16 As to this first witness, we don't know if this witness was interviewed by
17 OSCE, International Crisis Group, Human Rights Watch --
18 JUDGE BONOMY: Who are you talking about?
19 MR. SEPENUK: This person. The witness right here, the witness
20 who was just excused, Mr. --
21 JUDGE BONOMY: Oh, yeah.
22 MR. SEPENUK: Right.
23 JUDGE BONOMY: So what is it you're saying you should have?
24 MR. SEPENUK: If he has made a statement to Human Rights Watch or
25 to OSCE or to the International Crisis Group or any other non-governmental
1 organisation that the government knows about and has a copy of or could
2 reasonably get a copy of I think in all fairness we should have a copy of
3 that statement.
4 JUDGE BONOMY: Well, I would be very surprised if the Prosecution
5 didn't make available to you any copy of such a statement.
6 MR. HANNIS: Your Honour, I have an e-mail from one of my
7 colleagues that indicates we have 12 witnesses in that position, witnesses
8 that we're calling in this case, who have given a statement to Human
9 Rights Watch or ICG that we have possession of and we have disclosed.
10 JUDGE BONOMY: Yeah.
11 MR. HANNIS: And I agree, we will and we do, when we have them,
12 for witnesses we're going to call.
13 JUDGE BONOMY: This is not a matter that can be resolved here when
14 it doesn't depend on the application of any clearly identified rule. As
15 Mr. Stamp has indicated, the Prosecution are happy to discuss the matter
16 further with counsel and if any further clarification is required, then
17 counsel should direct their inquiries to Mr. Stamp. And if these turn out
18 to be unsatisfactorily dealt with in your view, then you can raise the
19 matter again with the Trial Chamber.
20 MR. SEPENUK: Thank you. And really the main reason I raise it
21 now is that I understand it that we may get copies of these Human Rights
22 Watch interviews. Now, I don't know if this gentleman is included in that
23 group. But if he is included in that group, then he might have to return
24 for cross-examination, a prospect that no one would like to have happen.
25 That's the main reason I raise it now.
1 JUDGE CHOWHAN: I'm in a quandary to understand all this. The
2 point is that a person chooses to make a thousand and one statements here
3 and there. What would be relevant here would be relevant and would even
4 have to produce that statement, statements which have been recorded
5 elsewhere and are not to be used in this court and are considered as
6 classified or confidential statements, of what use are they here and why
7 would they be quoted here, and why should they be produced here? This I
8 couldn't understand.
9 MR. STAMP: Can I say with respect, Your Honour, perhaps to end
10 this, with respect --
11 JUDGE CHOWHAN: Unless of course they are used here, then the
12 question of their production and making these available to the Defence
13 will arise, but why would they arise otherwise? That's the question.
14 MR. STAMP: Well, with respect, because of the rule. The rule
15 provides, 66(A)(ii) that we should give them the statements of all --
16 JUDGE CHOWHAN: [Microphone not activated].
17 MR. STAMP: -- Of all persons who are going to testify. We have
18 done that.
19 MR. IVETIC: With all due respect, and maybe I'm missing
20 something, there's --
21 JUDGE BONOMY: Well, look, this cannot continue as an argument
22 across the floor of the court.
23 Raise the matter, Mr. Ivetic, with Mr. Stamp. If there's another
24 issue to be made because you're not receiving satisfactory information,
25 then you can raise it at that stage.
1 MR. IVETIC: Well, I was just going to state that it's my
2 understanding --
3 JUDGE BONOMY: Just deal with it the way I've said, please.
4 MR. IVETIC: Fair enough.
5 JUDGE BONOMY: All right?
6 The court will adjourn now until 9.00 tomorrow morning.
7 --- Whereupon the hearing adjourned at 5.35 p.m.,
8 to be reconvened on Tuesday, the 8th day of
9 August, 2006, at 9.00 a.m.